DOCSLIB.ORG

In the Supreme Court State of Florida

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
In the Supreme Court State of Florida IN THE SUPREME COURT STATE OF FLORIDA CASE NO. ______________ DISTRICT COURT OF APPEALS CASE NO. 2D02-5802 ________________________________________________________________ CITY OF ST. PETERSBURG, Petitioner, v. DONALD AUSTRINO and MARIA AUSTRINO, his wife Respondent. __________________________________________________________________ BRIEF OF PETITIONER ON JURISDICTION On Discretionary Review From a Decision of the Second District Court of Appeal JOHN C. WOLFE City Attorney ______________________________ By: DEBORAH GLOVER-PEARCEY Assistant City Attorney City of St. Petersburg P.O. Box 2842 St. Petersburg, FL 33731 (727) 893-7401/FBN: 796761 Counsel for Petitioner 1 TABLE OF CONTENTS Page TABLE OF CONTENTS............................................................................................................ i TABLE OF AUTHORITIES...................................................................................................i-ii STATEMENT OF THE CASE AND FACTS ....................................................................... 1 SUMMARY OF ARGUMENT................................................................................................. 3 ARGUMENT............................................................................................................................... 4 THE SECOND DISTRICT'S APPLICATION OF A "REASONABLE INVESTIGATION" AND "NEGLIGENCE" ELEMENT TO LAW ENFORCEMENT'S DETERMINATION OF PROBABLE CAUSE FOR A WARRANTLESS ARREST WHEN FALSE ARREST IS AN INTENTIONAL TORT, AND THAT ALLOWING THE POST-ARREST INVESTIGATION REPORT AND OPINION TESTIMONY ON PROBABLE CAUSE IS IN DIRECT AND EXPRESS CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS OF THIS STATE AND THE SUPREME COURT ON THE SAME QUESTION OF LAW CONCLUSION........................................................................................................................... 9 CERTIFICATE OF SERVICE...............................................................................................10 CERTIFICATE OF COMPLIANCE ...................................................................................10 TABLE OF AUTHORITIES Cases: Page City of Miami v. Sanders, 672 So.2d 46 (Fla. 3d DCA 1996) ..................................5 City of Orlando v. Ralph Kazarian, 481 So.2d 506 (Fla. 5th DCA 1986) ..................6 City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA 1976) .........................8 Commercial Carrier Corp. v. Indian River City, 371 So.2d 1010 (Fla. 1979).............4 Dickinson v. Gonzalez, 839 So.2d 709 (Fla. 3d DCA)............................................... Dodds v. State, 434 So.2d 940 (Fla. 4th DCA 1983)...............................................7 Everton v. Willard, 468 So.2d 936 (Fla. 1985) .......................................................6 Florida Game and Freshwater Fish Comm'n Dockery, 676 So.2d 471 (Fla. 1st DCA 1996).............................................................................................7 Kayfetz v. A. Best Roofing, Inc., 832 So.2d 784 (Fla. 3d DCA 2002)......................8 i Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982).................................................6 Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978) ..................................................6 State v. Smith, 450 S.2d 480 (Fla. 1984) ...............................................................6 Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla. 1984) ..........................................................................................................8 Trianon Park Condo Association, Inc. v. City of Hileah, 468 So.2d 912 (Fla. 1985)................................................................................ 4, 5 Wong v. City of Miami, 237 So.2d 132 (Fla. 1970) ................................................6 Statutes: F.S. '901.15 (1998).............................................................................................8 Section 893.13, Florida Statutes (1997)..................................................................1 Other: Article V, ' 3(b)(3), Fla. Const..............................................................................1 Fla.R.App.P. 9.030(a)(2)(A)(iv)............................................................................1 ii STATEMENT OF THE CASE AND FACTS By this Petition and pursuant to Article V, ' 3(b)(3), Fla. Const. and Fla.R.App.P. 9.030(a)(2)(A)(iv), City of St. Petersburg ("CITY") seeks discretionary review on the Second District's decision, a copy of which is appended hereto at A-1 (Motion For Rehearing, En banc, and for Rehearing and Clarification denied April 20, 2005). Austrino was arrested for prescription fraud, a violation of Section 893.13, Florida Statutes (1997), by altering a prescription to obtain an unauthorized refill for vicodin, a controlled substance. A Walgreens pharmacist called the police to report the crime. The arrest was made without a warrant based on the officers determination of probable cause after interviewing the pharmacist at Walgreens, where the prescription had been presented, obtaining and reviewing the prescription, interviewing the suspect and contacting the pharmacist again. The charge was dismissed after it was later determined that the refill was valid. Austrino sued the City for false arrest and the City moved for Summary Judgment on probable cause, which was denied. At trial before the jury, the post-arrest internal investigation report and testimony of the internal investigation officer who prepared the report was admitted into evidence. That report indicated that the arresting officer did not have Aenough@ probable cause, it was incumbent upon the officer and pharmacist to contact the prescribing doctor, and the officer did not use proper investigative techniques in violation of a departmental rule. That same internal investigation Officer admitted at 1 trial that only the arresting officer can determine if probable cause existed at the time of arrest. The jury returned a verdict against the City in the amount of $45,000.00, finding the City ninety percent negligent.1 The City filed an appeal of the jury findings of liability for false arrest and damages alleging error in the Circuit Court's decision on probable cause, admission of evidence of post arrest matters and prejudicial opinion testimony on the issue of probable cause. The Second District, on February 9, 2005, affirmed on all points raised writing only to comment on the issue of probable cause and summary judgment. The majority Court opined that because the evidence in all inferences led inevitably to the conclusion that Austrino was arrested without a "reasonable investigation" it held that the facts and circumstances known to the officer were insufficient to give rise to probable cause.2 The Court recognized that a single credible victim or eye witness can provide the basis for probable cause, but because of the hearsay nature of the information provided by the pharmacist opined that it was incumbent upon the officer to further investigate whether there was probable cause to believe a crime had been committed. The dissent opined that the City was entitled to Summary Judgment on the issue of probable cause.3 1The co-defendant, Walgreen's settled before trial, but the jury found it ten percent negligent. 2See Opinion page 5, paragraph 2. The majority struggled with finding otherwise, because then the City was entitled to summary judgment as a matter of law since there were no material facts in dispute, but found significance in an arrest that occurs at 5:00 a.m. 3The dissent opined that although Austrino was arrested based on information ultimately determined to be inaccurate, at the time of arrest the officer had an adequate basis for probable cause. 2 The majority affirmed the admissibility of the post-arrest internal affairs investigation report and opinion testimony on probable cause. SUMMARY OF ARGUMENT Probable cause to make an arrest is an objective standard that is based on what an arresting officer reasonably believes at the time of arrest. The law of probable cause is clearly defined by statutory and case law. The determination is applied on a case by case basis and the type of crime committed has a direct bearing on the probable cause determination. The majority concluded that the officer was negligent by not conducting a reasonable investigation. The claim of false arrest is an intentional tort and not based on a negligence theory. To uphold the majority's analysis of applying a "reasonable investigation" element to probable cause is in direct and express conflict with statutory and case law and is barred by the doctrine of sovereign immunity. The majority=s affirmance of the admission of a post-arrest investigative report and opinion testimony on probable cause is in direct and express conflict with opinions holding that subsequent information does not negate the probable cause that existed at the time of arrest. This court should accept jurisdiction. ARGUMENT THE SECOND DISTRICT'S APPLICATION OF A "REASONABLE INVESTIGATION" AND "NEGLIGENCE" ELEMENT TO LAW ENFORCEMENT'S DETERMINATION OF PROBABLE CAUSE FOR A WARRANTLESS ARREST WHEN FALSE ARREST IS AN INTENTIONAL 3 TORT, AND THAT ALLOWING THE POST-ARREST INVESTIGATION REPORT AND OPINION TESTIMONY ON PROBABLE CAUSE IS IN DIRECT AND EXPRESS CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS OF THIS STATE AND THE SUPREME COURT ON THE SAME QUESTION OF LAW The case before this Court was brought as a false arrest case, but the majority effectively converts the
Load more

Recommended publications
  • Recent Decisions Charles T
    Notre Dame Law Review Volume 21 | Issue 4 Article 3 6-1-1946 Recent Decisions Charles T. Dunn Arthur A. May Roger D. Gustafson Lawrence Turner Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Charles T. Dunn, Arthur A. May, Roger D. Gustafson & Lawrence Turner, Recent Decisions, 21 Notre Dame L. Rev. 369 (1946). Available at: http://scholarship.law.nd.edu/ndlr/vol21/iss4/3 This Commentary is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. RECENT DECISIONS the same deduction as they allow an innocent defendant. Leading case so holding is the Weymouth v. Chicago and N. W. R. Co.9 Another rule which was laid down in a Supreme Court decision allows an innocent plaintiff to recover from the willful trespasser the value of the property at the time it is finally converted to the use of the trespasser; i.e., its value as enhanced by the labor of the defendant. It will be recalled that this rule is very similar to the one applied in the Indiana case above cited as Sunnyside v. Reitz, where the de- fendant's trespass was not willful, but was negligent. In summary of the above citations and discussions, it would seem sound advice to the person who contemplates conversion of metals and ores in Indiana to so do without the display of any willful or inten- tional act in addition to a course of complete abstention from all negligent performance.
    [Show full text]
  • 1 United States District Court District Of
    Case 3:17-cv-30030-MAP Document 24 Filed 12/22/17 Page 1 of 43 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS LE'KEISHA BROWN, ) ) Plaintiff ) ) v. ) ) Civil Action No. 3:17-cv-30030-MAP ) AARON BUTLER, ) ) Defendant ) REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS (Dkt. No. 8) ROBERTSON, U.S.M.J. I. INTRODUCTION Plaintiff Le'Keisha Brown ("Plaintiff") was arrested by Defendant Springfield Police Officer Aaron Butler ("Defendant") for disorderly conduct, assault and battery, and resisting arrest in the aftermath of Plaintiff's sister's arrest at 115 Westford Circle in Springfield, Massachusetts on March 10, 2015. Plaintiff's nine count complaint arising from this incident presents two federal causes of action under 42 U.S.C. §§ 1983 and 1988: a claim for unlawful arrest (Count I); and a claim for the use of excessive force (Count V). Plaintiffs' pendant state law claims allege violations of the Massachusetts Civil Rights Act ("MCRA"), Mass Gen. Laws ch. 12, §§ 11H, 11I (Counts II and VI), false arrest (Count III), false imprisonment (Count IV), assault and battery (Count VII), malicious prosecution (Count VIII), and abuse of process (Count IX). Plaintiff filed suit against Defendant in his individual capacity on March 24, 2017 (Dkt. No. 1). Defendant has moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) (Dkt. No. 8). Plaintiff has opposed dismissal, Defendant has replied to Plaintiff's opposition, and Plaintiff 1 Case 3:17-cv-30030-MAP Document 24 Filed 12/22/17 Page 2 of 43 has submitted a sur-reply (Dkt.
    [Show full text]
  • In the United States District Court for the Northern District of Georgia Atlanta Division
    Case 1:19-cv-00045-TWT Document 35 Filed 06/10/21 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION B. EDWARD BRYANT, Plaintiff, v. CIVIL ACTION FILE NO. 1:19-CV-45-TWT DANA C. REESE, Defendant. OPINION AND ORDER This is a Section 1983 action. It is before the Court on the Defendant’s Motion for Summary Judgment [Doc. 26]. For the reasons set forth below, the Court GRANTS the Defendant’s Motion for Summary Judgment [Doc. 26]. I. Background On February 22, 2017, the Defendant Dana C. Reese, a police officer with the DeKalb County Police Department, was working an approved part- time job at the Walmart located at 3850 Memorial Drive, Decatur, GA 30032. Def.’s SOMF, [Doc. 26], ¶ 1. During her patrol, Officer Reese observed the Plaintiff B. Edward Bryant carrying a rifle inside of the Walmart. Id. at ¶ 2. Before communicating with Bryant, Officer Reese learned from a Walmart employee that Walmart had issued a criminal trespass ban against Bryant. Reese Aff., [Doc. 26], ¶¶ 6-7. The Walmart employee had the criminal trespass document for Bryant in her hand. Id. at ¶¶ 7-8. As Bryant began walking out T:\ORDERS\19\Bryant\19cv45\msjbll\msjtwt.docx Case 1:19-cv-00045-TWT Document 35 Filed 06/10/21 Page 2 of 13 of the store, Officer Reese stopped him by yelling “excuse me sir.” Def.’s SOMF, at ¶ 2. It is disputed whether Bryant had completely exited the store or remained inside. Id. Officer Reese then asked for Bryant’s identification.
    [Show full text]
  • Allowing False Light Tort Claim by Defendant to Proceed to Discovery
    George v. Rehiel, Not Reported in F.Supp.2d (2011) and showed TSA his identification. At the security 2011 WL 10621600 checkpoint x-ray device, he put his carry-on bags and Only the Westlaw citation is currently available. personal items on the conveyor belt. He emptied his United States District Court, pockets of metal, took off his shoes, and walked through E.D. Pennsylvania. the detector, which made no sound. He was directed to an Nicholas GEORGE adjacent area where a TSA screener (Doe 1) asked him to empty his pockets. He did so, removing a set of v. translation flashcards, each with Arabic words on one side William REHIEL, et al. and English on the other. The screener inspected the flashcards and then took plaintiff to a different area, Civil Action No. 10–586. | Oct. 28, 2011. where that screener and another (Doe 2) detained him for 15 minutes while they inspected his belongings. He was Attorneys and Law Firms not carrying weapons, explosives, or items that posed a safety risk. He was not carrying anything suggestive of David Rudovsky, Kairys Rudovsky Messing & Feinberg criminal or prohibited activity. He did not say or do LLP, Mary Catherine Roper, American Civil Liberties anything threatening or provocative. Union of Pennsylvania, Molly M. Tack–Hooper, Berger & Montague PC, Philadelphia, PA, Zachary Katznelson, Although the TSA screeners completed their search of Benjamin Elihu Wizner, Mitra Ebadolahi, American Civil plaintiff’s carry-on items, they detained him for an Liberties Union, New York, NY, for Nicholas George. additional 15–20 minutes. One screener flipped through pages of a book critical of United States foreign policy.
    [Show full text]
  • In the United States District Court Northern District of Texas Dallas Division
    Case 3:06-cv-00640-L Document 61 Filed 04/03/08 Page 1 of 10 PageID 476 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CLINT GREGG,§ § Plaintiff, § § v. § Civil Action No. 3:06-CV-0640-L § TRACTOR SUPPLY COMPANY,§ § Defendant. § AMENDED MEMORANDUM OPINION AND ORDER The court hereby vacates its Memorandum Opinion and Order filed March 20, 2008, and issues this Amended Memorandum Opinion and Order. The court issues the Amended Memorandum Opinion and Order to correct several typographical errors in its Memorandum Opinion and Order of March 20, 2008. The substance of the earlier Memorandum Opinion and Order is not changed, and the rulings made by the court in it are binding on the parties. Before the court is Defendant’s Motion for Summary Judgment, filed November 5, 2007. After careful consideration of the motion, response, reply, appendices, briefs, and applicable law, the court grants in part and denies in part Defendant’s Motion for Summary Judgment. I. Procedural and Factual Background Clint Gregg (“Plaintiff” or “Gregg”) filed this action against Tractor Supply Company (“Defendant” or “TSC”) and Jill Cottle (“Cottle”)* on February 24, 2006 in County Court at Law, Number 1, Ellis County, Texas. Gregg, an employee of TSC at the time of the incident made the basis of this lawsuit, contends that TSC intentionally and wrongfully accused him of stealing a chop *Cottle was dismissed from the action on October 26, 2006, because Plaintiff failed to effect service on her as ordered by the court. Amended Memorandum Opinion and Order - Page 1 Case 3:06-cv-00640-L Document 61 Filed 04/03/08 Page 2 of 10 PageID 477 saw, falsely and intentionally reported it to police, which caused him to be falsely arrested for theft.
    [Show full text]
  • In the United States District Court for the Northern District of Alabama Eastern Division
    Case 1:09-cv-02216-TMP Document 24 Filed 03/31/11 Page 1 of 14 FILED 2011 Mar-31 PM 03:00 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION JERRY COLEMAN, ) ) Plaintiff, ) ) v. ) Case No. 1:09-cv-2216-TMP ) CHRIS SPARKS and ) SHAUN FIRESTONE, ) ) Defendants. ) MEMORANDUM OPINION This cause is before the court on the motion for summary judgment filed October 19, 2010, by the defendants, Chris Sparks and Shaun Firestone. Defendants seek dismissal of all of plaintiff’s claims based upon the statute of limitations, qualified immunity, and other grounds based upon the merits of the plaintiff’s claims. This matter has been fully briefed. The court has considered the pleadings, evidence, and arguments set forth by both parties. The parties have consented to the exercise of jurisdiction by the undersigned pursuant to 28 U.S.C. § 636(c); accordingly, the court submits this memorandum opinion. SUMMARY JUDGMENT STANDARDS Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those Case 1:09-cv-02216-TMP Document 24 Filed 03/31/11 Page 2 of 14 portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
    [Show full text]
  • DCCA Opinion No. 94-CV-238: Elijah Karriem V. District Of
    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 94-CV-238 ELIJAH KARRIEM, APPELLANT v. DISTRICT OF COLUMBIA, APPELLEE No. 94-CV-261 DISTRICT OF COLUMBIA, APPELLANT v. ELIJAH KARRIEM, APPELLEE Appeals from the Superior Court of the District of Columbia (Hon. George W. Mitchell, Trial Judge) (Submitted December 10, 1996 Decided August 20, 1998) Thomas P. Donelson was on the brief for Elijah Karriem. Charles F.C. Ruff, Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, Lutz Alexander Prager, Assistant Deputy Corporation Counsel, and Sonia A. Bacchus, Assistant Corporation Counsel, were on the brief for the District of Columbia. Before TERRY, STEADMAN, and KING, Associate Judges. TERRY, Associate Judge: Elijah Karriem, a street vendor in the District of Columbia, was arrested on three occasions in 1988 and 1989 for failing to obey police orders to relocate his vending stand and for vending in an entrance zone. After each set of charges was dismissed, Karriem sued the District and several individual police officers, alleging false arrest, defamation, and various other intentional torts. The three cases against the District were consolidated for trial.1 After all the evidence was in, the trial court granted directed verdicts for the District on most of Karriem's claims, leaving only three for the jury to decide: false arrest, tortious interference with contractual relations, and abuse of process.
    [Show full text]
  • United States of America United States District Court for the Western District of Michigan Northern Division
    Case 2:17-cv-00108-RJJ-TPG ECF No. 5, PageID.<pageID> Filed 07/12/17 Page 1 of 12 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION JOHN FRANCIS LECHNER, Plaintiff, v. Case No. 2:17-cv-108 HON. ROBERT J. JONKER TIMOTHY DECLAIRE, et al., Defendants. __________________________________/ REPORT AND RECOMMENDATION Plaintiff John Francis Lechner, a non-prisoner pro se litigant, filed this action against The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”); ATF Special Agent Timothy DeClaire; ATF employee Margaret Carvill; ATF employee Melissa Alexander Coleman; The Department of Homeland Security (“DHS”); DHS Special Agent Bruce Wagner; and Assistant United States Attorney Maarten Vermaat. Plaintiff seeks monetary damages. The Court granted Plaintiff leave to proceed in forma pauperis under 28 U.S.C. § 1915. Pursuant to 28 U.S.C. § 1915(e)(2)(B), the undersigned recommends that Plaintiff’s claims be dismissed for failure to state a claim. Plaintiff is no stranger to this Court. In 2012, Plaintiff was convicted by a jury of two counts of transporting explosives without a permit in violation of 18 U.S.C. § 842(a)(3)(A); two counts of improper storage of explosives in violation of 18 U.S.C. § 842(j); one count of possessing explosives while under indictment in violation of 18 U.S.C. § 842(i)(1); and one count of making a materially false statement to government officials in violation of 18 U.S.C. § Case 2:17-cv-00108-RJJ-TPG ECF No. 5, PageID.<pageID> Filed 07/12/17 Page 2 of 12 1001(a)(2).
    [Show full text]
  • False Imprisonment and Arrest -- Powers of a Merchant to Detain Suspected Shoplifters Vance Barron Jr
    NORTH CAROLINA LAW REVIEW Volume 50 | Number 1 Article 19 12-1-1971 Torts -- False Imprisonment and Arrest -- Powers of a Merchant to Detain Suspected Shoplifters Vance Barron Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Vance Barron Jr., Torts -- False Imprisonment and Arrest -- Powers of a Merchant to Detain Suspected Shoplifters, 50 N.C. L. Rev. 188 (1971). Available at: http://scholarship.law.unc.edu/nclr/vol50/iss1/19 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Torts-False Imprisonment and Arrest-Powers of a Merchant to De- tain Suspected Shoplifters The new amendment to North Carolina General Statute section 14- 72.1' is obviously intended to expand the freedom of a merchant, his employees, and police officers to detain and arrest suspected shoplifters. As the immunity from civil liability is limited to circumstances in which the detention is "in a reasonable manner for a reasonable time" and the detention or arrest was made for "probable cause", one might question whether the area of freedom is greater now than under the common law or prior statutory enactment. The purpose of this note is to explore changes in the state of the law as it applies to the situation of the 2 merchant. The amendment does not expand a merchant's immunity from suit for malicious prosecution.
    [Show full text]
  • Favor V. Ohio State Univ
    [Cite as Favor v. Ohio State Univ., 2010-Ohio-4971.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us HUGH M. FAVOR, III Plaintiff v. THE OHIO STATE UNIVERSITY Defendant Case No. 2008-09937 Judge Alan C. Travis DECISION {¶ 1} On July 6, 2010, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B), and plaintiff filed a motion for partial summary judgment pursuant to Civ.R. 56(A) on his claims for assault and battery. On July 20, 2010, plaintiff filed a combined response and second motion for partial summary judgment on his claims for fraud and misrepresentation. On July 26, 2010, defendant filed a response to plaintiff’s first motion for partial summary judgment. On August 27, 2010, the court conducted an oral hearing on the motions. On August 30, 2010, plaintiff filed a motion for leave to file a reply brief, instanter, which is GRANTED. {¶ 2} Civ.R. 56(C) states, in part, as follows: {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” See also Gilbert v.
    [Show full text]
  • Proving Probable Cause: Allocating the Burden of Proof in False Arrest Claims Under § 1983 Sarah Hughes Newmant
    Proving Probable Cause: Allocating the Burden of Proof in False Arrest Claims under § 1983 Sarah Hughes Newmant When George Hinshaw walked into the sheriff's office to inquire about his son's arrest, he probably did not expect to be beaten and arrested. But after a short confrontation with the arresting officer, Mr. Hinshaw was thrown to the lobby floor. As several men held him down, the officer repeatedly stomped on his head, then arrested and jailed him for disorderly conduct. Around 2:00 a.m., Mr. Hinshaw pled guilty to a misdemeanor disorderly conduct charge, paid the fine, and went to the hospital for medical treatment.' Mr. Hinshaw spent two days in the hospital before leaving against medical advice. He re- turned to work two weeks later. At the civil trial on Hinshaw's § 1983 claim for false arrest and excessive force, he was still suffering from numbness in one arm. Although Mr. Hinshaw's story is an extreme example, false arrest cases frequently involve excessive force.' Excessive force may lead to arrest, as an officer arrests his victim to cover up the illegality of his own conduct.! Even where excessive force is not involved, the victim of a false arrest suffers humiliation, loss of liberty, and an arrest record. Police officers have the power to arrest citizens without a warrant if they have probable cause.' A citizen who is arrested without prob- able cause can bring a civil action against the officer under 42 USC t B.A. 1995, Rice University; J.D. Candidate 2006,The University of Chicago.
    [Show full text]
  • Civil Liability for Illegal Arrests and Confinements in California Jennie Rhine
    Hastings Law Journal Volume 19 | Issue 3 Article 14 1-1968 Civil Liability for Illegal Arrests and Confinements in California Jennie Rhine Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Jennie Rhine, Civil Liability for Illegal Arrests and Confinements in California, 19 Hastings L.J. 974 (1968). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss3/14 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. CIVIL LIABILITY FOR ILLEGAL ARRESTS AND CONFINEMENTS IN CALIFORNIA The primary purpose of this note is to explore civil liability in California for false arrests and false imprisonments committed by law enforcement officers. First, however, it is necessary to consider what acts may give rise to liability-i.e. when an arrest or a con- finement is illegal. The law of arrest has been written about by many legal authorities,' and will, for the most part, be but briefly reviewed. However, two particular aspects of the California law of arrest have been given little attention. The first is a 1957 statute which permits the release, with no appearance before a magistrate, of a person ar- rested without a warrant; his police record is then to show only that he has been "detained" rather than "arrested. '2 The effect, if any, of this statute on the legality of the arrest will be discussed. The second aspect to be given particular attention is the legally per- missible length of confinement between an arrest and the arrestee's release or his appearance before a magistrate.
    [Show full text]