Thursday, May 29, 2014

Wire Tap Law for Recording Police Defeated Again: GERICKE v BEGIN

MAY 23, 2014 United States Court of Appeals For the First Circuit Before Thompson, Selya and Lipez, Circuit Judges.

Carla Gericke, was arrested for wiretapping allegations in 2010 after filming her friend being pulled over and excessive force used by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights. She filed a Civil action for deprivation of rights under 42 U.S. Code § 1983.

CARLA GERICKE, Plaintiff Appellee v GREGORY C BEGIN WEARE POLICE CHIEF:"Accordingly, we hold that the district court properly denied qualified immunity to the officers on Gericke's section 1983 claim that the wiretapping charge constituted retaliatory prosecution in violation of the First Amendment.


Elements of a Section 1983 Claim

To prevail in a claim under section 1983, the plaintiff must prove two critical points: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.
A state is not a "person" under section 1983, but a city is a person under the law (Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 [1989]). Similarly, state officials sued in their official capacities are not deemed persons under section 1983, but if sued in their personal capacities, they are considered to be persons. Thus if a plaintiff wants to bring a section 1983 claim against a state official, she or he must name the defendants in their personal capacity and not in their professional capacity. Like a state, a territory, such as the territory of Guam, is not considered to be a person for the purposes of section 1983.
 A successful section 1983 claim also requires a showing of the deprivation of a constitutional or federal statutory "right."

For More See Section 1983 at the  

Circumstances in which a claim for damages may lie under 42 U.S.C. § 1983 and the defenses to such a claim.

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