Amy,

First time commenter. Love your site, and read it daily. Many thanks for the site, and for your books!!

IANAL, but I do have some formal knowledge in this area. I believe you would find that the lawsuit would be filed as a Federal claim under 42 U.S.Code §1983, as the arrest is a seizure, and if done falsely, may amount to an unreasonable seizure under the Fourth Amendment. The Tennessee law is unlikely to factor in, as State law cannot trump Federal Constitutional law.

However, although they could file the Federal claim, without more details, I have no idea if they could prevail.

Perhaps one of the lawyers that read your blog could weigh in.

If you are not involved in your local government at all, then you are stuck w/the LEO tactics you get.

If you are involved then you are stuck w/the LEO tactics you can tolerate because bad guys don't glow in the dark and the fish net scoops up anything swimming in the area.

There is no way out of this except for being involved and working together. Complaining after everyone is emotionally involved gets you nothing.

Allowing complainers not involved to dictate how things are done gets you Al Sharpton and NAACP 'Money talks and you can walk' tactics.

I wonder if this could be taken to a Federal Court where, presumably, it will be struck down.

The rules are quite strict for getting into Federal court.

This would not qualify except under diversity of citizenship, which means that the plaintiff would have to be a non residence of Tennessee, suing the Tennessee police, and there would have to be more than 75,000 dollars is damages.

If the law is potentially unconstitutional, it could be litigated, but I seriously doubt that the Supreme Court has any desire to open this can of worms.

The easier path would be to lobby the Tennessee legislature to repeal the law in question.

I believe you would find that the lawsuit would be filed as a Federal claim under 42 U.S.Code §1983, as the arrest is a seizure, and if done falsely, may amount to an unreasonable seizure under the Fourth Amendment.

Yes, you're not a lawyer. Nor am I. But let ask this what are your damages? that's what the magistrate will ask. The amount of the seized goods? in this case, that's what? hold on...*looks at Amazon for BC powdered painkiller* $0.16 each packet, if you buy the 50 count @ $31.

While the court will be sympathetic to your case, they will be more sympathetic to the cops.

The nasty thing to do is plant some BC powders in the cops car and then phone in an anonymous tip that an officer is using cocaine on the job...

Well, that's what I get for posting...

Again, IANAL.

The question as to whether the Tennessee law is unconstitutional is an entirely different matter. The arrest itself is a seizure under the Fourth Amendment. A Federal lawsuit under §1983 is very common in cases alleging excessive force or false arrest, both of which are seizures, and must meet the reasonableness standard (the use of force in making an arrest, must meet the objective reasonableness standard, as stated by the USSC in Tennessee v. Garner, 471 U.S. 1 (1985), and later reiterated in Graham v. Connor, 490 U.S. 386 (1989)).

It is not difficult to get into Federal Court for this type of case; in fact, such cases are fairly common. One reason they are usually filed in Federal court is that, under 42 U.S. Code §1988, the prevailing party in a §1983 case can seek – and will almost always get – attorney fees and costs paid for by the non-prevailing party. That's a guaranteed pay day for the winning attorney, even if the plaintiff only gets nominal damages, like a $1.

The damages amount to a violation of constitutional rights, and are not dependent on physical injury, although that tends to bolster the plaintiff's case. There is no $ requirement, i.e. $75,000.

Oh, and the IANAL is a disclaimer, not an admission that I (or you, for that matter)am uninformed.

Again, I encourage any attorneys on board to comment.

"It is not difficult to get into Federal Court for this type of case; in fact, such cases are fairly common. One reason they are usually filed in Federal court is that, under 42 U.S. Code §1988, the prevailing party in a §1983 case can seek – and will almost always get – attorney fees and costs paid for by the non-prevailing party. That's a guaranteed pay day for the winning attorney, even if the plaintiff only gets nominal damages, like a $1."

"The damages amount to a violation of constitutional rights, and are not dependent on physical injury, although that tends to bolster the plaintiff's case. There is no $ requirement, i.e. $75,000."

For diversity jurisdiction, there is such a requirement. If this were a *federal question*, diversity jurisdiction would not apply. However the *federal question* standard is a hard huddle to clear.

Often the court will say that the Tennessee State constitution must be looked at first. (Constitutional rights are not necessarily a Federal question)

Might I suggest, simplistically, that laws such as Tennessee's Government Tort Claim Liability Act, have already been litigated, and found constitutional?

Therefore the solution lies with the legislature, and not with the courts?

"But let ask this what are your damages?"

Impound fees, legal fees, reasonable compensation for the time you spent on this, which you didn't spend on work (this can be quite costly for the self-employed, for instance), possibly compensation for losing your job if your employer overreacted or for having your paycheck cut for the time you spent dealing with this. Those are the easily proved damages. Then you have possible damage to your reputation, mental anguish, and the like.

But good luck with any of that.

Add to JD: And in some places you are charged a processing fee just for being arrested - Cook County, IL; Aurora, CO. Your innocence is no defense.

Well, part of our problem here is that I believe we are talking about two different things, sort of.

Let me first agree with you about a couple of the points you make:

1. Yes,it's probable – although I don't know for sure, as I've never specifically researched it – that the Tennessee statute has been found to be Constitutional; and

2. Yes, if this were a diversity jurisdiction question, the threshold amount is $75,000; and

3. Yes, sometimes the Federal Courts look to any applicable state statutes that are on point, especially if there is no existing Federal precedent.

However...

RE: #1. The Constitutionality of the Tennessee statute is irrelevant in the case of excessive force or false arrest, as the Federal Constitution is the "Supreme Law of the Land", and even if an attorney brings both Federal and State claims, the state law pertains to violations of State law, and the Federal Constitutional claims pertain to violations of civil rights (in this context). As a matter of fact, in many lawsuits alleging excessive force or false arrest, attorneys will claim violation of civil rights under the 4th and 14th Amendments, and will also claim violations of various state laws, such as assault, unlawful imprisonment, battery, and a wealth of other things, including (IMHO) off-the-wall claims of negligence, recklessness, and gross negligence.

This is technically known as the "throwing the spaghetti against the refrigerator to see what will stick" test, and is done because – many times – unless claims are made during the early stages of a lawsuit, they cannot be added later. So everything gets alleged at the start, and many things get dropped along the way.

Eventually, through various pleadings and Motions, things get streamlined. One of the very common "streamlinings" that occur is that state law claims are either dropped or combined, and the case moves forward in Federal court, as a §1983 claim. Again, that is almost always done – in large part – because the lawyers want to get paid under §1988.

RE: #2. Diversity jurisdiction is just a mechanism that allows the Federal courts to hear civil suits between people that don't live in the same state, but that wouldn't normally rise to the level of a Federal claim. Otherwise, the argument would be that it's unfair for the courts in one person's home state to hear the suit, as it places unfair demands of time, and travel, on the out-of-state person. I guess they want to inconvenience all parties equally.

The hypothetical we are discussing is not a diversity jurisdiction issue. We are talking about a "federal question jurisdiction" scenario...in fact, we're really talking about the granddaddy of all federal question jurisdiction issues, whether an action by a government actor - such as a police officer - is constitutional.

RE #3. While it's possible that a Federal Court might look to a state statute where there is no Federal precedent sufficiently on point, that is not the case here. There is a great body of case law regarding use and misuse of police authority as regards unreasonable searches and seizures.

As long as I'm bloviating, one more point - Many states have a Tort Claims Act, often referred to as tort reform. While I have never had reason to look at Tennessee's (although I do now, and it's on my list for future fun reading), I am guessing that it is similar in many respects to the ones that I am familiar with. Most were put in place to try to get control of a mish-mash of court rulings relating to liability in civil claims, and to provide streamlining for certain aspects of state governmental immunity. I suspect that this immunity facet is what the original article's author was driving at...that there is immunity under the Tennessee statute for the topic of the original article.

While it might seem contradictory, it's quite possible that there is immunity under state law for actions related to excessive force or false arrest. In fact, in some states the immunity statute has very few exceptions, and false arrest/excessive force is not one of them. In those states, those lawsuits will - of necessity - be brought in Federal Court, as §1983 claims.

Sorry for the long-winded blah-blah-blah. It's one of the reasons I don't often post on blogs; I tend to get into discussions about topics that require long-winded posts, and even I get bored with reading my own posts!

This is a good discussion, and I learned a couple new things by having to look up some new stuff, so thanks.

And - one more time - IANAL.

"While it might seem contradictory, it's quite possible that there is immunity under state law for actions related to excessive force or false arrest. In fact, in some states the immunity statute has very few exceptions, and false arrest/excessive force is not one of them. In those states, those lawsuits will - of necessity - be brought in Federal Court, as §1983 claims."

Jurisdictional issues are complicated. Let's just say, as a matter of public policy, the federal courts are unlikely to want to take on a case of false arrest, where the original grounds for detainment proved to be "not a crime" regardless of the theoretical possibility of bringing a federal case under §1983.

Suppose hypothetically, instead of a bag of powdered aspirin, I had a replica 1911 sitting on the floor of the car, and the policeman drew his weapon on me, ordered me out of the car, and handcuffed me?

My point is *probable cause* does not retroactively become *not probable cause* after the facts are discovered to be not as originally supposed.

I don't like fishing expeditions, anymore than any other libertarian, however, Steve, I think you have gotten so wrapped up in your hypothetical *remedy* for the crime of false arrest that you fail to recognize that the police do make mistakes.
They arrest the wrong people for the wrong crime or for an offense, that turns out later to not be against the law like powdered aspirin or a replica gun.

These situations do not rise to the level of "false arrest" as defined by the criminal and civil code. For a very good reason.... Law enforcement would be paralyzed if they could not arrest you on probable cause, until they were absolutely certain you had committed a crime. That kind of certainty, beyond a reasonable doubt, is reserved for the courts, and not required of a police officer.

,http://en.m.wikipedia.org/wiki/False_arrest

This might add some clarity.

"The Constitutionality of the Tennessee statute is irrelevant in the case of excessive force or false arrest, as the Federal Constitution is the "Supreme Law of the Land"

When you go to law school you will discover that this is possibly one of the most simplistic bullshit statements, anyone could ever make.