Retaliatory arrest claim is time-barred

After the police began harassing Joanne Smith (by following her around and "spooking her"), bad blood between Smith and her family ensued with the police, resulting in traffic tickets filed against Smith. The evidence suggests these tickets were issued in retaliation for complaints that Smith and her family made against the officer, including complaints made to the State Police. The tickets were dismissed, and Smith and her son-in-law sued for an unlawful seizure and retaliatory prosecution. The first claim survives, the second does not.

The case is Smith v. Campbell, decided on April 1. Son-in-law Lilly testified that Campbell had constructively seized her outside her house on when Campbell and another officer surrounded him and blocked his egress when he showed up to defend his mother-in-law's honor. For some reason, Lilly's complaint did not plead this claim under Section 1983, the federal civil rights law that enforces the Fourth Amendment and other constitutional provisions. While the trial court tossed that claim on its rear-end for failure to cite Section 1983, the Second Circuit (Calabresi, Hall and Rakoff [D.J.]) reinstates the claim under recent Supreme Court authority, Johnson v. City of Shelby (2014), which said the claim must proceed if the facts support it, even if the legal theory for relief is imperfectly stated. So, good news for Lilly.

But bad news for Smith, who suffered the police harassment. To win a retaliatory harassment case, you have to prove the officer's actions were substantially motivated by plaintiff's exercise of her First Amendment rights, causing some injury. Smith did complain about the officer's conduct, and the officer's appearance at her house with the tickets shortly after her complaints satisfies the causation requirement. But since this all happened on November 26, 2007, more than three years before Smith filed suit, the case is time-barred.

Smith tries to save the claim by arguing that the statute of limitations did not accrue until the tickets against her were dismissed. She did not know how the criminal case would work out when the police gave her the retaliatory tickets. That argument will work on a malicious prosecution claim, but Smith does not sue on that theory. "Not every Section 1983 claim that arises out of a criminal case requires that the underlying criminal process reach a favorable termination. ... First Amendment claims, even those arising out of the same series of events that give rise to Fourth Amendment claims, do not require a favorable termination in the criminal action to be cognizable as a matter of law."

In other words, in a case like this, the statute of limitations accrues when the police commit the retaliatory action, not when the local criminal court throws out the charge. This means that you can have a claim for retaliatory arrest even if you are actually guilty of the offense that the police charge you with out of retaliation for exercising your First Amendment rights. Don't wait to be exonerated in criminal court if you want to sue the police. Sue them today.