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Zoey, JD
Zoey, JD, Attorney
Category: Legal
Satisfied Customers: 23178
Experience:  Active member of the NYS bar since 1989
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Is the Police immune with award of damages?

Customer Question

Is the Police immune for counterclaim with award of damages?
Submitted: 6 months ago.
Category: Legal
Expert:  Zoey, JD replied 6 months ago.


Can you put your question into context by supplying more details?

Customer: replied 6 months ago.
My neighbor's mother in law took some pictures while I was allegedly trespassing on her driveway located in the County's Right of Way area and asked the police to arrest me. I was arrested on my property without a warrant and probable cause and put in detention the same day based only on the alleged pictures. THEN the police officer obtained the warrant for my arrest. I was released on a cash bond of $5,700 and will appear for my trial for criminal trespassing. Few weeks prior, I received an email from the police stipulating that since I disagreed with their interpretation of my neighbor's "right of way" I should get a legal opinion from a judge to change their interpretation. I filed a lawsuit for a declaratory judgment but did not receive the judge's ruling yet.
In fact, I was crossing the road to answer the foreman's asking me if his crew cut my TV cable while cutting the trees, Our two driveways are adjacent. While I started to cross the road, I may have "stepped" on my neighbor's driveway. The police arrested me (the Gestapo type used in Europe in the 40') for "Criminal Trespassing. My wife suffers high anxiety to the idea that I can do some jail time. I am 78 years old, ROSS (Retired On Social Security) diabetic heart patient, She does not believe in the Justice.Tomi Delor.
Customer: replied 6 months ago.
I could not get the alleged pictures before I start "discovery".
Expert:  Zoey, JD replied 6 months ago.


Thanks for the detailed reply.

Although jail would be one authorized sentence for a trespassing case, the odds of you going to jail are just about zero for a case like this, unless you take the case all the way to trial and lose.

You have two options here, the same as in every other criminal case, and you don't have to make up your mind right away, The first is to fight the criminal case, which you will have to do in order to be able to have a viable suit for a wrongful arrest. The second would be to accept a plea agreement of some kind.

If you choose to fight the case, you'll be able to challenge the warrantless search at a special pre-trial hearing designed to explore and challenge unlawful search and seizure. If you lose the hearing and go on to lose the trial as well -- not saying you will but just painting a picture you can expect that some jail will be likely.

Otherwise, although jail is one type of punishment authorized by this statute, there are other types of sentences as well that do not involve incarceration. For a guarantee that you won't face jail, you'd need a plea agreement. Trials, even in something like this where the facts are not all that harmful to you, are always a crapshoot. Nothing is a slam dunk for either the defense or the prosecution.

All reports, recordings, photos and the like are work product. They are discoverable at the appropriate time, which is not before the case starts. Your lawyer will receive them from the prosecutor as defined by your state's criminal procedure law and he or she can go over all of the evidence with you so that you can make an informed and intelligent decision about your case.

You should have a lawyer for two reasons. The first is because criminal cases can have lifetime repercussions and a lawyer can minimize those. The second is that you want to sue and whatever happens in your criminal case can be used against you in your civil case. The criminal matter has to be handled correctly so that you don't get in your own way in civil court. Anything you say about this incident can be used against you in civil court as an admission against your interest. Anything your lawyer says cannot be.

Customer: replied 6 months ago.
Thanks but you did not answer my question about police immunity.
Expert:  Zoey, JD replied 6 months ago.

Right, because it shouldn't be your main concern right now. I'm sorry if I didnt' make that clear.

Any conviction on your criminal matter, either by jury or by plea will turn a wrongful arrest into a right one. So your first thought is not to worry about immunity. The police can be sued for wrongful arrest. But this arrest first has to be wrongful, which it isn't yet, since you could be found guilty of the charges.

That's why you need a lawyer. He can get the suit filed in timely fashion so that you don't run into problems with the statute of limitations, but it's not going to go anywhere until the criminal matter is resolved.

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