A Right Without Remedy

No one will ever feel entirely comfortable that the real story behind the killing of teenager Ramarley Graham is known.  There was no video of the shooting. Graham is dead. The officer who shot him while he was purportedly flushing something, presumably marijuana, down the toilet isn’t likely to tell a story of his mistaken reaction. 

There was only one other person with knowledge. From the New York Times :

The officer confronted the man, Ramarley Graham, who was in the bathroom, possibly trying to flush marijuana down the toilet. A moment later, a shot rang out, killing the teenager.

While narcotics officers had followed Mr. Graham to the apartment on East 229th Street in Wakefield thinking he was armed, no gun was found, making the grandmother, Patricia Hartley, 58, a crucial witness.

What makes this alarming is that Patricia Hartley wasn’t treated as a witness, but as the enemy of the police.

After Mr. Graham was killed, Ms. Hartley was taken to the 47th Precinct station house on Laconia Avenue and held for seven hours, said Carlton Berkley, a friend of the family’s who said he had retired from the police force as a detective in the 30th Precinct, in Upper Manhattan. Mr. Berkley added that Ms. Hartley was forced to give a statement about what happened.

“She gave it against her will,” Mr. Berkley said. “She didn’t want to speak to the police.”

It’s unclear what this means.  Not that she didn’t want to be interrogated, but that she was forced to give a statement. Was she held in a room and subject to the Reed Technique?  Was the told she wouldn’t be released unless she answered questions? Was she subject to psychological torture, or physical compulsion?

The official response is that the claim that she was questioned against her will is untrue, and Mrs. Hartley was cooperative.

Steven Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said Ms. Hartley “made no complaint” to an assistant district attorney who was at the station house.

Had she made such a complaint, it would have been relayed to the police, Mr. Reed said.

“If the nature of Mrs. Hartley’s complaint is true, it would be highly insensitive,” Mr. Reed said. “Nobody should be forced to give a statement, let alone someone who had just lost a grandson in the way that Mrs. Hartley did.”

There’s a bit too much wiggle in this statement for comfort.  It doesn’t say that the ADA was in the room as Ms. Hartley was giving her statement, such that she could have expressed her complaint to him.  No, just that he was in the station house. That smacks of an artful denial.

More importantly, what could have possible taken seven hours? The incident probably took no more than a few minutes, and even if she was asked to repeat it a few dozen times, she would be on her way in an hour or two.  It’s pretty hard to imagine that a grandmother who just lost her grandson chose to spend seven hours in the precinct with the cops who killed him.

And then there is the objective evidence that Ms. Hartley was being held incognito and against her will:

Mr. Berkley said he went to the station house after being contacted by Mr. Graham’s father, Franclot Graham, whom he had known for many years. He added that he waited two hours without being able to speak to her.

A colleague of his called Assemblyman Eric A. Stevenson of the Bronx, who also came to the precinct house and asked a man who he believed was an assistant district attorney if Ms. Hartley was being held against her will. The man disappeared, Mr. Stevenson said, and minutes later Ms. Hartley emerged, crying.

Mr. Stevenson said Ms. Hartley’s lawyer, Jeffrey Emdin, had also been unable to speak to her.

But now for the problem. So what? 

The remedy for a coerced statement is suppression, but Ms. Hartley isn’t being charged with anything, and suppression has no applicability to her situation.  There is the violation of her civil rights, which, assuming it can get past a motion to dismiss based on qualified immunity for engaging in necessary police investigation, might produce a damage award of $27 in five or six years and after thousands of hours of time dedicated to the case.  That would mean the attorney for Ms. Hartley would be entitled to a third, less expenses.

The police officer who shot and killed Graham, 30-year-old Richard Haste, is the subject of an investigation.

Officer Haste and a supervisor, Sgt. Scott Morris, 36, who was in a stairwell between the first and second floors when the shot was fired, have been stripped of their guns and badges and placed on nonenforcement duty.

That the supervisor, Sgt. Morris, has been stripped of gun and shield is curious, since he wasn’t there when the shots were fired, and suggests that something went very wrong immediately after the killing.

As for Patricia Hartley, she lost a grandson, she was held for seven hours in the precinct, she was forced to answer questions against her will and there really isn’t anything to do about it.  No one questions her right not to be interrogated, but a right without a remedy isn’t much of a right at all.

H/T Radley Balko

40 comments on “A Right Without Remedy

  1. Lurker

    Is there really a right not to be interrogated? Here in Europe, things are different. At least in my home country, Finland, the police can interrogate any person (as a witness) for not more than 6 hours at a time between 7 am and 22 pm, and a new interrogation may not start for 12 hours after the last one has ended. And there is no upper limit for consecutive interrogations.

    So, if I’m interrogated by the police as a witness for six hours a day for 365 days in a row, I have nothing to complain. No rights have been violated. (Of course, I’m entitled to be compensated for my lost pay.)

  2. SHG

    Yes, there really is a right to be left alone in the United States, and we do not follow the Finland rule. I can’t explain why.

  3. Frank

    If there was an ADA with a set of balls I could see a kidnapping and false inprisonment charge. Not many people would be willing to stand up to a badge-wielding psychopath who has already demonstrated a willing ability to use deadly force as street justice.

  4. Marc R

    An ADA criminally charging a cop will end up without a law enforcement job very quickly. Most ADAs don’t conceive of cops lying much less committing crimes, even far less willing to usurp sovereign immunity to indict them.

  5. spencer neal

    There is a line of First Amendment cases involving “compelled speech.” Ms. Hartley had the well-established right not to speak and she can sue for that violation.

  6. Lurker

    Of course. I did not mean to imply that there would be a similar feature in American law. I was just wondering: if a court (or the Congress) can compel a person to come and testify, why cannot the police do the same? The fact that there is a way for the state to break an innocent person’s right to be left alone, via the courts or via the legislative inquiry, shows that the right to be left alone is only relative, not an absolute. It would make sense that there should be a right for the executive branch to require witnesses to testify already when the criminal investigation has started, clearly before the grand jury stage.

  7. SHG

    There is a way. It’s just not left to the discretion of the police to use it. It’s called a grand jury subpoena.

  8. Barbara Burke

    Isn’t this really a seizure issue under the 4th amendment and whether the seizure was unreasonable? Then damages could be sought for the 4th amendment violation. I cannot find an analogous fact pattern but it reminds me of the cases in which the government holds persons under the material witness statute. It doesn’t seem to rise to the level of a SDP shocks the conscience claim as I think City of Sacremento v. Lewis describes the statndard. Yet I would see damages under an unreasonable seizure 4th amendment claim.

  9. SHG

    It certainly looks like a seizure to me, though it appears the police see it otherwise when they claim she was cooperating. Cause of action isn’t the problem, but remedy. What damages do you suppose a jury would award her if she made it that far, and would she spend it all on a $5 footlong?

  10. spencer neal

    Substantial damages can be recovered in these cases as any practitioner who does civil rights cases can tell you.

  11. Dan

    And in a very technical sense, a grand jury subpoena is a command of the grand jurors, i.e., ordinary citizens, not the government. Technically. Sort of.

  12. SHG

    Uh, no. Not only are there no “substantial damages” to be had, but it would be nearly impossible to find a lawyer to take the case.  As any practitioner who does civil rights cases will tell her.  Where do you people come up with this silliness?

  13. Don Thompson

    Crime, you say? What crime? Tampering with evidence in order to avoid prosecution and disobedience of a police officer are both well-known capital offenses. Who could blame the officer for opening fire under those circumstances? Anything less would promote anarchy, the commingling of sheep and goats, and probably the the end of civilization as we know it.

  14. Erika

    Most practioners of civil rights law I know mainly file suits in the hopes of getting the law changed and would consider having a case tossed on qualified immunity after a finding that a Constitutional right was violated but it was not “established” a victory.

    Most also tend to work in jobs where they are not depended upon 42 USC Sec. 1988 attorneys fees for their livlihood. There is a reason for that 🙂

  15. Sgt. Schultz

    As you’ve already been told, you have no clue what you’re talking about. More important, it’s comments like these that make the poor people who suffer a violation of their rights think that they’ve won the lottery and come to a lawyer with absurd expectations.

    Unlike you, I practice civil rights law. I wouldn’t take this case, nor would anyone else I know. The burden would be overwhelming, and the chance of recovery of anything even close to making it worthwhile is non-existent. And this case is by no means a slam-dunk, with the police certain to say she came willingly and remained voluntarily, so it’s her word against the police.

    But when lawyers who do practice civil rights law have to tell these poor people that they haven’t won the lottery, they get irate, as if it’s us who are abusing them or we’re part of the conspiracy. So please don’t say something that’s not only completely ridiculous, but make everyone more miserable.

  16. SHG

    Well, isn’t it your fault that there’s no substantial damages since somebody on the internet said there was.  It must be you.

  17. Barbara Burke

    Actually, Sgt. Schultz, your view is not entirely accurate. The facts of this case could lead to a nice fee award for an attorney. So long as the plaintiff prevails – even nominally – the attorney can get the lodestar reasonable amount for his or her efforts. A recent 2nd circuit case Millea v. Metro North held as such. The damage award was 204 dollars, yet the attorney’s fee was 144,000 based on the lodestar. Not such bad earnings, even for a trench lawyer like yourself . . .

  18. spencer neal

    Actually, I do practice civil rights law and have so for over thirty years. I never said that the case was easy, they rarely are, but it can be won. Nor did I saw that it was winning the lottery.

  19. SHG

    My concern isn’t about attorneys fees, but about it being worthwhile for the plaintiff. While they’re all full of fight in the beginning, a $204 payoff after all the plaintiff goes through isn’t quite what must have in mind.

    As for the fee award, first you have to win before you worry about the lodestar.

  20. SHG

    And still you argue that her 7 hours of questioning is worth “substantial damages?” I’m having some serious problems with that. 

  21. spencer neal

    By “substantial damages” I am not talking about hundreds of thousands of dollars. But I can see a jury getting pretty exercised by police officers holding an innocent woman for seven hours, just after her son was killed by the police, simply to coerce her to sign a statement to absolve them.

    That evaluation comes from my experience representing civil rights claimants in my state. After all, that is the only basis that anyone can use, one’s own experience.

  22. SHG

    This is like pulling teeth.  So what exactly are you talking about by “substantial damages.” What would your jury award?  What would the judge sustain? What would be upheld on appeal?  And include in your calcs that the defendant’s case is that she was there willingly to cooperate in the investigation, and only post hoc decides that she wants to see if she can get some money.

    So what are your numbers?

  23. Burgers Allday

    There will almost certainly be a civil suit because of the shooting, and the attendant large potential damages for the shooting. I would imagine that the grandmother’s claims could tag along free on the civil suit for the shooting. The plaintiffs’ atty will likely want to expand discovery as wide as possible, so she would be expected to want those claims in the case at least at first. Also, I seem to recall (and I could be wrong about this), but I think even a $27 win can qualify for attorney fee shifting type damages.

    I wouldn’t be surprised if the grandmother would rather see firings of police officers, rather than cash anyway. Even if her civil suit is only $27, it helps force the police to limit how much they extend themselves to cover for blameworthy officers. IOW, the police “IAD” better when they know someone might be reviewing that work critically at a later time.

  24. SHG

    The killing is a different issue. The point of this post is about the lack of remedy for being seized and compelled to give a statement against one’s will.  I realize that it’s hard to divorce the issue from the collateral facts, but it just takes focus.

  25. Burgers Allday

    You pointed out that the dollar value of hoer claims, standing in isolation, is low. I wrote to say that even if that is true, they still have a high dollar value because of the way that they co-operate with and support other, potentially very high value claims which will be brought. Sorry for not being clearer.

  26. SHG

    You were clear, but only under the peculiar facts of this case, and assuming the estate isn’t subject to public administration, and assuming it doesn’t turn out that the shoot is determined to be justifiable.

    Had it not been for the killing, we would have never learned about what happened to the grandmother, but it happens often to others and never makes the news, thus depriving us (me?) of the opportunity to discuss the separate issue.

  27. spencer neal

    I don’t know what a jury would award or even if a jury would agree with version of the facts. However, if this case came in the door, I would take the case on my usual basis, fees to come from 42 USC 1988, which is how people like Ms. Hartley get attorneys for cases like these. I would be willing to gamble that I can win her case for her, get her damages that would satisfy her sense of justice for being treated so shabbily and get paid for my time by the losing side.

    To be a civil rights attorney you have to be willing to make intelligent gambles and then get lucky once in while.

    I am guessing that you don’t do these kinds of cases.

    One of my case was Franklin v. Foxworth, a case that I had to take to the Ninth Circuit to win. I don’t have the cite right now but you can find it on LEXIS. That was a tough case.

  28. Burgers Allday

    Okay. There was a good case out of, IIRC: Oklahoma last year. Suspect shot a policeman. A couple, who were his friends, were at driving late at night in some vicinity to the manhunt. The friends got arrested and strip searched and otherwise treated not nicely for a couple of hours.

    It has probably been about a year, but I seem to recall that the decision (probably denial of qi on sj mot) was favorable to the couple-turned-plaintiffs.

    The wrongful arrest issue (even in absence of a beating or consequential damages like loss of employment) does come up in real life cases that are actually brought. Maybe the prevailing view is that damages are automatically de minimus, but I don’t think that is an accurate generalization.

    Bonus points if you know who Mertilla Jones is without using whatever AOL search engine it is that you use.

  29. spencer neal

    Your post is titled: “A Right without a Remedy.” I pointed out that there was indeed such a remedy. Then, the discussion apparently veered off into whether there could be proved damages sufficient to justify a lawsuit.

    Like I said before, I do these cases.

  30. Barbara Burke

    Today’s NYLJ column, “Court Approves Attorneys Fees Despite Low Damages.”

    Where do we recall hearing that? Ah yes, it was in my earlier post. Even the great Jack B. cited to the case I referenced. To conclude, there is a remedy.

  31. SHG

    Aaarrrggghh, no, no, no.  You’re not getting this. A remedy is damages.  Remember, a case is made of a right, a writ and a remedy. Damages aren’t legal fees, they’re compensation for the victim.  While the grant of fees, which is contingent on winning, and then persuading a judge to give a worthwhile (because not all judges are Jack B.) award may be good for the lawyers, it does nothing for the client.  Note the “low damages?” That’s the remedy, or more to the point, that lack of a meaningful remedy.  We don’t do this so lawyers can make money, but so the victims can be compensated.

    And see above, where Mr. “Substantial Damages, I do this” caved when put to the test.

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