Legal Question in Criminal Law in Georgia

possible illegal arrest / constitutional violation

While in Columbus GA visiting a friend we decided to go to a local nightclub. I was speaking to a female when a bouncer (security) grabbed me by the neck and arm and pushed me outside. He then shoved me to the ground and yelled, ''I was not permitted to remove my shirt in the club.'' At no time did I ever do such a thing! I heard one of his buddies say ''no the other guy.''

I was irate and began to yell. One of the security officers was apparently an off duty police officer and they physically tackled me and I was immediatly arrested for disorderly conduct. The arresting officer put me in the vehicle (with cuffs) and never questioned me. After talking to the ''off duty officer'' he said I was going to jail for Disorderly Conduct. We went to the hospital (head was bleeding) and I earned my 2nd count for cursing at him. Then went to the jail where I paid an over $600 fine. I question the validity of the arrest...he never read me my Miranda Rights! This seems to me a violation of 4th Amendment. The security at the club were violent and after they made the mistake they ''stuck together'' in the story -- good ol boy. The judge in the case seemed irrational and seemed not to want to hear my case.

I want this off my record

Asked on 2/27/05, 1:20 am

2 Answers from Attorneys

Glenn M. Lyon, Esq. MacGREGOR LYON, LLC, Business Attorneys

Re: possible illegal arrest / constitutional violation

Miranda rights are only required to be given when questioned while in custody, not at the time of arrest. Don't believe everything you see on television.

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Answered on 2/27/05, 12:01 pm

Edward Hoffman Law Offices of Edward A. Hoffman

Re: possible illegal arrest / constitutional violation

Failing to give Miranda warnings does not invalidate an arrest and is not a ticket out of jail. Such a failure means that answers the defendant gave to police questioning while in custody cannot be used against him in court. Any evidence the police have that they did not get as a result of such questioning can still be used. In most cases, the prosecution can prove its case without using the defendant's statements. Miranda only becomes an issue when the prosecutor tries to use evidence obtained via police questioning after the defendant should have been read his rights.

While I agree throwing you out of the bar was a mistake, that is not the same as an arrest and it is not relevant to whether your arrest was proper. The law applies to all of us equally, whether we have been treated fairly by others or not. Being wrongly tossed out of the bar is not a license to start yelling while neihbors are sleeping.

You were arrested for disorderly conduct, which may well have been an appropriate charge depending upon how and what you were yelling, what time it was, etc. Cursing at an officer is a good way to get hit with that charge again, which is precisely what happened.

The only potential constitutional violation I see is the tackle, which may have been an unreasonable seizure depending upon the circumstances. Part of this is a factual argument about whether it was reasonable to tackle you under the circumstances, but there is another wrinkle. Since the Fourth Amendment limits only what the government can do, this argument will only be available if the guard who tackled you was the same one who also worked as a police officer -- and even then, only if he was acting in the course and scope of his duties at the time. (Off-duty officers who make an arrest often do so as part of their job, so the fact that his shift was over does not necessarily end the analysis.) If the guard who tackled you was a private citizen then the Constitution probably won't help you much.

There may also be an issue about right to counsel. It sounds like you went to court without an attorney; depending upon the punishment you were facing, the state may have been required to offer you one. If the maximum punishment was a fine like the one you received, then you probably had no right to counsel, but it's worth looking into.

You may also have factual arguments about whether your conduct before the arrest qualified as disorderly and whether your subsequent comments to the police justified the second charge, but that's about all the encouragement I can offer. Miranda seems to be a non-issue in this case.

Was the judge irrational for not listening to you? Maybe, but not likely. If your arguments were based on Miranda or on the fact that you shouldn't have been tossed out of the bar, then they were not relevant to the case. Judges usually have a lot of work to do and are not inclined to waste time while a defendant makes irrelevant arguments.

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Answered on 2/27/05, 2:49 am

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