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The ‘usual suspect’: falsely arrested three times, is there a viable claim?

Jay Schwitzman, president of the Kings County Criminal Bar Association.  AP Photo

Brooklyn Daily Eagle

Joseph Brown, 29, was arrested in March, on suspicion of a murder in Coney Island. 

Charged with shooting four people and killing one, police said that Brown knocked on the apartment's door and shot a man in the head after being let inside. Investigators say Brown then shot three other people in the apartment.

After reviewing the evidence, police and the Brooklyn District Attorney’s office have now determined that Brown may not have been the shooter. Brown, having spent a week behind bars, was released this past Friday.

“I feel great, man,” Brown said, at a press conference after his release from the Brooklyn Detention Complex. “I’m just glad to be out of there. It’s been a stressful week for me.”

On its own, Brown’s ordeal could be considered a one-off case of mistaken identity. But, this is the third time that Brown has been arrested and charged with a crime, only for it to be later determined that Brown was not the suspected offender.

Court records show that Brown has been imprisoned before, once on a drug possession charge in 2007 and again for felony burglary, trespass, and petit larceny after being suspected of looting a Coney Island Key Food Supermarket in October 2012.  

After the drug possession charge was dropped, Brown sued the city for wrongful arrest. The case was subsequently settled for $30,000. While the felony burglary charge has been dropped, the remaining charges from the October 2012 arrest have not yet been dismissed.

Brown’s ordeal fits into the category coined by criminal defense attorneys as “usual suspects”: persons most often suspected of criminal activity due to a common name, common characteristics, or connection to organized crime or gang activity.    

When usual suspects are routinely arrested for crimes they did not commit, a lawsuit is one potential remedy.

“For an individual to be routinely picked up by the police for having a common name, for example, or for possessing a certain characteristic, there may be grounds for a wrongful arrest lawsuit,” said Jay Schwitzman, president of the Kings County Criminal Bar Association. “But every case is looked at on a case-by-case basis.”
 
Not every instance where a usual suspect is arrested has a wrongful arrest taken place.

“When someone is detained by law enforcement the police officers need probable cause to effectuate the arrest,” said Brooklyn attorney Doug Schneider.  “It is only when it has been established that no probable cause existed for the arrest, that a civil rights action may be brought.”

Probable cause is a significantly low standard that police officers have to meet prior to arresting an individual. In order for probable cause to be found, there must be some reasonable basis for the arrest.

One example when probable cause cannot be established takes place when “the arrest is based on a witness description that is extremely vague,” Schneider noted.

No information has been provided as to the probable cause that led the police to arrest Brown on suspicion of the Coney Island murder.

“To the credit of the DA’s Office, they evaluated the evidence and to avoid the prospect of a wrongful conviction, the DA’s office made the decision that there was not enough evidence to hold Brown,” Schwitzman stated.

Wrongful convictions and associated lawsuits have plagued the Brooklyn DA’s office recently. In February 2013, Jabar Collins filed a $150 million lawsuit against the city and the New York City Police Department after serving 16 years in prison for a crime he did not commit.  

This past January, William Lopez was released from prison after serving 23 years of a 25-years-to-life sentence for a murder he did not commit. Most recently, David Ranta was released from prison, having also served 23 years, for a murder he was wrongly convicted of.

“Police officers are getting creative in their attempts to avoid false arrest charges,” said Wilson A. LaFaurie. “Cops are issuing desk appearances instead of actually physically arresting an individual.”

A desk appearance ticket is an order to appear in Criminal Court for an arraignment.  “By issuing a desk appearance,” LaFauire explained, “the police officer is not putting the individual through the system. This way a cop can avoid a false arrest claim.”

While Brown has been released, the charges against him have not been formally dropped. A spokesman for the Brooklyn DA’s office said that the investigation is ongoing and noted that Brown is due back in court in May.

In each arrest, Brown was represented by a public defender or a legal aid attorney. It is not clear if Brown has retained counsel to explore another wrongful conviction lawsuit against the city and the NYPD.

April 3, 2013 - 10:10am


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