New York False Arrest Attorney – Lawyer

Outstanding Warrant does not necessarily defeat a claim for false arrest

The NY courts ruled that if the police arrest a person without probable cause, they cannot use the fact that they later learn of an outstanding warrant to defeat the right to recovery monetary damages.


Malvin Omar Urena, Plaintiff-Appellant v. City of New York, et al., Defendants-Respondents, 22611/13; 14825,  April 17, 2015

Being present at a drug transaction does not defeat the claim

In this case, the government tried to argue that because the person arrested was present at the drug transaction, although he played no role, his claim should be defeated.  Mr. Ortiz, the Plaintiff, asserted that he walked out of a store and stumbled into a drug marijuana transaction. The police were executing a buy-bust transaction at the time and claimed Mr. Ortiz was a look-out. When they stopped Mr. Ortiz he had drugs on him. It turned out that he had a prescription for the drugs and the case was dismissed. To defeat the false arrest, false imprisonment, malicious prosecution and 18 US 1983 claims, the police tried to argue probable cause. Mr. Ortiz offered his testimony from his 50-H hearing  and the police officers provided affidavits.  The court ruled that the government failed to establish lack of probable cause to defeat the claim and  permitted the case to go forward on many of Mr. Ortiz's legal claims.


It is interesting the court discussed the rules regarding “strip searches”. The court did not dismiss the allegation and said the trier of fact would have to decide whether the facts as alleged by Mr. Ortiz occurred and whether it was warranted. He claimed that he was asked to take off all his clothes and asked to squat and spread his butt cheeks. The court said that “visual cavity inspections and manual body cavity searches cannot be routinely undertaken as incident to all drug arrests and must instead be based on particular, individualized facts known to the police that justify subjecting an arrestee to these procedures”.

The court discussed whether Mr. Ortiz could recover damages because his handcuffs were on his wrists too tightly. Here Mr. Ortiz loses. There is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort.


It is interesting to note that the court did defeat the claim that the city was responsible for the negligent hiring of the police officer and the allegation of assault and battery.

Perciaccanto v. City of New York, 20839/13  Justice Mitchell Danziger Decided: April 28, 2015


Inadmissible Testimony from Criminal Case Permitted in Civil Trial to Negate Malice Element of Malicious Prosecution Claim

The 2nd Circuit Court of Appeals decided, in Kogut v. the County of Nassau, 13-3130, that testimony that was barred in the original criminal trial may be admitted in a civil suit to negate the element of malice when a claim of malicious prosecution is made.

In this case, Plaintiff John Kogut and other men were convicted of rape and murder in 1986. After spending over 37 years in prison, the case was retried in 2005 and he was found not guilty. As a result of the not guilty verdict, he sued Nassau County and its detectives. After Kogut filed his case claiming false arrest, malicious prosecution and 18 U.S.C. 1983 violations, Mr. Restivo and Mr. Halstead, also wrongfully charged, filed cases that were later joined with Mr. Kogut’s case.

Mr. Restivo, Mr. Halstead and Mr. Kogut wanted separate trials because of statements made to the police after their arrests in 1985. The court did separate the trials.

In deciding the appeal, the court had to answer, amongst other issues, even though the men were falsely charged and found not guilty, whether the County could use the statements to establish that it had probable cause to prosecute. This would defeat the claims of Kogut. The court ruled that because Kogut was seeking recovery for malicious prosecution, as well as for false arrest, the statements of Restivo and Halstead could be admitted in the civil trial to negate the lack-of-malice element, because an element of malicious prosecution is whether the defendants acted with malice or bad intent.

Kogut v. The County of Nassau 13-3130 ( 2nd Circuit of New York decided May 14, 2015)