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2nd Cir. Affirms, Denies in Police Harassment Lawsuit

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By Mark Wilson, Esq. on April 09, 2015 4:05 PM

In November, 2007, a state trooper named Ben Campbell began to harass a woman named Joanne Smith. When Smith's adult son, Tom, said he would call 911 and speak to Campbell's supervisor, Campbell left without issuing any tickets.

This incident sparked a series of harassing activities that eventually rose to the level of a civil rights complaint. On April 1, the Second Circuit Court of Appeals affirmed and vacated in part a district court's order dismissing the case.

Alleged Harassment

After Smith and her husband visited the New York State Police Barracks to complain to Campbell's supervisor, she claimed that "officers appeared at [her] home suggesting in an intimidating manner that she plead guilty to all of the traffic tickets and that everything would be reduced to a parking ticket as a result."

After Tom complained at a coffee shop about Campbell's behavior, Campbell appeared at the house looking for him. Smith's son-in-law, Lilly, arrived at the house and had a verbal confrontation with Campbell, who ordered Lilly to leave. Lilly called 911 to report Campbell, but Campbell then left.

And so on. "The amended complaint alleges further acts of harassment by Campbell that are unnecessary to detail here," the court said. For some reason, Smith waited almost three years before filing a lawsuit against Campbell under 42 USC 1983. For that reason, the district court dismissed claims of retaliatory prosecution. It also dismissed an unlawful seizure claim against Lilly on the ground that he placed under the purview of the Fourth Amendment, rather than section 1983.

You Win Some, You Lose Some

After the district court entered its order, the U.S. Supreme Court clarified that "a failure to specify 42 U.S.C. section 1983 as the vehicle for pleading a constitutional claim is not a defect warranting dismissal, at least in the absence of some prejudice to the defendant."

As a result, the Second Circuit overruled the dismissal of this count, finding that Campbell wouldn't be prejudiced by allowing it to remain. Prejudice might be shown if the legal theory advanced in the complaint didn't put the defendant on notice of what he allegedly did wrong, but this isn't that kind of case, said the court.

On the other hand, the Second Circuit upheld dismissal of the retaliatory prosecution claims. The statute of limitations in New York for personal injury is three years, but the plaintiffs waited about three and a half years before filing. Smith claimed that the period should have been tolled while an appeal was in progress -- and that would be true if this were a Fourth Amendment issue, which could potentially impact the underlying criminal case.

Unfortunately, Smith brought the retaliatory prosecution claim under the First Amendment, for which the outcome of the criminal trial changes nothing, meaning the limitations period doesn't toll.

The case now goes back to the district court to determine whether the facts as alleged constitute an unlawful seizure on the Fourth Amendment claim.

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