William M. Powell
Powell, Jackman, Stevens & Ricciardi, P.A.
The American with Disability Act (ADA)The ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress.To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered. (http://www.ada.gov/).
FALSE DETENTION (FALSE IMPRISONMENT)
EXCESSIVE USE OF FORCE
Your rights granted by the United States Constitution are protected by 42 U.S.C.§1983. The most noted right is under the Fourth Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
42 U.S.C.§1983 provides in part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any right, privileges, or immunities secured by the Constitution and the laws, shall be liable to the person injured in an action at law, suit in equity...."
§1983 provides redress for injuries connected to the violation of Federal Constitutional Rights.Claims involving excessive use of force, seizure of the person (with or without an arrest), are viewed under the Fourth Amendment of the United States Constitution. Persons are protected from arbitrary seizure of their person by the police by the Fourth Amendment to the United States Constitution. Most people have heard of the phrase, "probable cause for an arrest." This is the test to determine whether or not arrest is appropriate. Probable cause is analyzed based on the totality of the circumstances. For probable cause to exist, the facts and circumstances within the police officers knowledge at the time he made the arrest must be sufficient to warrant the conclusion by a prudent person or one of reasonable caution, in believing, in the circumstances shown, that the suspected criminal conduct was committed or the person is committing or about to commit an offense. The police officer needs only arguable probable cause if this is present and the police officer has qualified immunity protection from prosecution from §1983 lawsuits when there is probable cause for the arrest. Police officers may rely upon information gathered by other officers too, even though they conclude there is probable cause based upon the information and make the arrest. In cases without probable cause for arrest, the person is seized, violating their Fourth Amendment right to the United States Constitution. The aforementioned §1983 is the law that grants relief to the victim of a violation. A lot of ink has been shed on this subject. Each case must be evaluated carefully and this summary is not meant to be an exhaustive explanation of how to determine whether or not an arrest or a detainment or prosecution was proper.
When is someone seized by the police? You have been seized by the police, within the meaning of the Fourth Amendment to the United States Constitution, if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. False imprisonment is unlawful detention without legal process. The false imprisonment ends when the person is released. §1983 is the law that grants relief to the victim of a violation of the Fourth Amendment. Detentions that do not become a full-blown arrest may sometimes be justified and constitutional. When a police officer stops an individual but has no basis to suspect that individual is involved in criminal activity, the person has a constitutional right to decline to identify themselves and would be improperly seized if required to stay. However, where an officer has a reasonable suspicion that the person is involved in criminal activity, or about to commit a crime, it does not violate the person's constitutional rights to insist that the person identified himself. Reasonable suspicion is not the same as probable cause, it is a lessor standard. A police officer may perform a pat down search of a person that is lawfully detained during an investigation (reasonable suspicion) when the officer has a reasonable belief that the person may be armed. Voluntary conversations are not the seizure of the person. Temporarily detaining occupants in the car at a valid traffic stop is constitutional. The use of a K-9 dog to walk around the vehicle that has been stopped for a traffic violation is not an unconstitutional search of the vehicle for controlled substances (the length of detention waiting for the K-9 dog to show up may be an issue, and may result in unlawful seizure. For example if the ticket had been issued and then the occupants were asked to remain for the dog to arrive, this would be an unlawful detention because the traffic stop was concluded with the issuance of the citation).Excessive use of force is also a violation of the Fourth Amendment. The courts have applied the Fourth Amendment analysis to persons that have been subjected to force. Determining whether the use of force was reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the person's Fourth Amendment interests, against the countervailing governmental interest at stake. There is no precise mechanical definition. Careful attention to facts and circumstances are required. The court again goes to the "totality of the circumstances" in evaluating the use of force. Whether or not the force was reasonable under the circumstances is judged from the perspective of a reasonable police officer on the scene, not on hindsight, and taking into account the fact that the police officer, in many instances, must make a split-second judgment about the amount of force that is necessary in a particular situation. Police dog bites, police baton, taser, chemical sprays and teargas, handcuffing too tight, hogties, pepper spray, flash bang devices, rubber bullets, and all gunshots are all part of the reasonable and sometimes unreasonable use of nonlethal and lethal force. All of these weapons can be justified and can be abused. The analysis must be carefully performed in order to adequately evaluate whether or not the force was appropriate under the circumstances.If you are stopped by the police (car traffic stop) never be rude and always act with respect. Do not say what you did "wrong," let the police tell you why you were stopped. Remember he/she does not know you, does not trust you, is worried that you may have a weapon, and does not want to be hurt or killed.
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Powell, Jackman, Stevens & Ricciardi, P.A is a Florida law firm helping people that have been injured as a result of medical malpractice, nursing home abuse or neglect, airplane accidents, car accidents, automobile accidents, and all types of personal injury cases and wrongful death matters in Florida. If you or a loved one has been injured in any type of accident in Cape Coral, Ft. Myers, Bonita Springs, Naples, Punta Gorda, Port Charlotte (Lee County, Collier County, Charlotte County) or Washington D.C., call an experienced injury attorney at (239) 540-3333 in Florida to discuss your case.