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22 2016 Nov

Unlawful Arrest & False Imprisonment

False Arrest and Imprisonment in South Carolina

To bring a claim of false arrest and false imprisonment in South Carolina the pivotal issue is whether or not the underlying arrest, or the arrest warrant, was made on the basis of probable cause.  The plaintiff carries the burden of demonstrating lack of probable cause. Thus, the question becomes, did the arresting officer have probable cause to make the arrest, and if a warrant was required did the warrant sufficiently state facts that establish probable cause needed to make the arrest? 

The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exceptions from liability and damages contained therein. S.C.. Code Ann. § 15-78-40 (Supp. 1998).

The South Carolina Court of Appeals articulates the probable cause test in Anthony Gist v. Berkeley County Sheriff's Department. “The fundamental issue in determining the lawfulness of an arrest is whether there was "probable cause" to make the arrest. Wortman v. Spartanburg, 310 S.C. 1, 425 S.E.2d 18 (1992). "Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests upon such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise." Id. at 4, 425 S.E.2d at 19. "In determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable, prudent and cautious men, not legal technicians, act." Summersell v. South Carolina Dep't of Pub. Safety, 334 S.C. 357, 365, 513 S.E.2d 619, 623 (Ct. App. 1999). The issue of probable cause is a question of fact and ordinarily one for the jury. Wortman, 310 S.C. 1, 425 S.E.2d 18.

If it is found that there is no probable cause for an arrest then one arrested without cause may bring a host of claims under the South Carolina Tort Claims Act against the arresting authority, including but not limited to the following:

  1. False Arrest and False Imprisonment;
  2. Malicious Prosecution;
  3. Negligence;
  4. Assault and Battery
  5. Excessive Force and Illegal Seizure;
  6. Negligent Hiring, Retention, or Supervision of Employees;
  7. Abuse of Civil Rights, Section 1983 Actions.​

False Arrest and Imprisonment

In order to recover under a theory of false arrest in South Carolina the plaintiff must prove: (1) the defendant caused the plaintiff to be arrested; (2) the decision to arrest was intentional; and (3) the arrest was unlawful in that it was done without probable cause. “The essence of the tort of false imprisonment consists of depriving a person of his liberty without lawful justification.” Jones v. City of Columbia, 301 S.C. 62, 64, 389 S.E.2d 662, 663 (1990).

In order to prevail on a claim for false imprisonment, the plaintiff must establish: (1) the defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful. Andrews v. Piedmont Air Lines, 297 S.C. 367, 377 S.E.2d 127 (Ct. App. 1989). False imprisonment is an intentional tort; negligence is not an element. See Jeffcoat v. Caine, 261 S.C. 75, 198 S.E.2d 258 (1973).

Restraint constituting a false arrest may be committed by words alone or acts alone, or by both, and may operate merely on the will of the individual, or by personal violence, or by both. It is not necessary that the individual be confined within a certain area, a prison, or within walls, or that he be assaulted, or even touched. The tort of false arrest does not require an actual injurious touching. It is not necessary that there should be any injury done to the individual's person, or to his character, or reputation. Nor is it necessary that the wrongful act be committed with malice, ill-will, or even with the slightest wrongful intention. Further, it is unnecessary that the act be under color of any legal or judicial proceeding. All that is necessary is that the individual be arrested without probable cause based on the acts and omissions of the defendant. Dorn v. Town of Prosperity (D.S.C. August 6, 2008).

Malicious Prosecution

The elements of a malicious prosecution claim are: (1) institution of judicial proceedings, by the defendant, (2) termination of the proceedings in the plaintiff's favor, (3) malice, (4) lack of probable cause, and (5) damage. Jordan v. Deese, 317 S.C. 260, 452 S.E.2d 838, 879 (1995).

Have you been charged with a crime or arrested without probable cause? If you believe that you have please contact an attorney immediately. Milt Stratos II is a South Carolina lawyer with experience bringing wrongful arrest and false imprisonment claims.  Contact Us today for a FREE consultation.

22 2016 Nov

South Carolina Jury Awards $150,000 in South Carolina False Arrest Case

South Carolina Jury Awards $150,000 in South Carolina False Arrest Case

On November 9, 2016, a York County jury awarded a six figure verdict to a local gentleman who successfully raised the castle doctrine after having allegedly defended himself on his property from an aggressive neighbor.  In a strange twist of events, the Plaintiff was later charged by the local Sheriffs’s office and arrested for assault and battery of a high and aggravated nature.   

The local solicitor later dismissed the criminal charges on the basis that the Plaintiff was in fact acting under color of the law, specifically the S.C.. Protection of Persons and Property Act, when he defended himself from the aggressive neighbor.  

Thereafter, the plaintiff filed suit under the South Carolina Tort Claims Act, and alleged the Sheriff’s office acted without cause (false arrest), and asserted a claim of malicious prosecution.   The jury sided with the Plaintiff after short deliberation.  The case is styled Shane Carter v. Sheriff Bruce Bryant, 2014-CP-46-01307.

Have you been charged with a crime or arrested without probable cause? If you believe that you have please contact an attorney immediately. Milt Stratos II is a South Carolina lawyer with experience in wrongful arrest and imprisonment.  Contact Us today for a FREE consultation.

8 2016 Nov

SOUTH CAROLINA PASSES ANTI MUG SHOT EXTORTION LAW

SOUTH CAROLINA PASSES ANTI MUG SHOT LAW

South Carolina residents and those arrested in South Carolina, and their loved ones, may soon reap the benefits of new law aimed at putting an end to extortious mug shot websites that until now have operated on the fringes of the law to extort thousands of individuals arrested in South Carolina. 

Mug shot websites extract publicly available South Carolina booking photos and arrest records from local governments, and post the information on their websites. This act in and of itself is harmless and perfectly legal.  However, the mug shot sites then employ a cunning search engine optimization (“SEO”) strategy to make sure that a Google search of an arrestee’s name results in a mug shot image and record being placed among the first search results.  Significantly, Google images places high relevance on the mug shot websites images, which results in booking photos showing up nearly first in Google. (Google is allegedly changing their search algorithm to make mug shot websites less relevant).  Mug shot sites then charge anywhere from $99.00 – $399.000 to remove the booking photo and arrest data from their site, regardless of whether an arrest was unlawful, or the charge was dismissed and expunged.  With numerous mug shot websites operating at one time, and new sites coming to life regularly, an arrestee could potentially spend thousands trying to protect their image on the web.

Signed into law by Governor Nikki Haley and effective May 16, 2016, South Carolina, generally not known for being at the forefront of progressive, consumer protection legislation, published an amended Section 17, Criminal Procedure, making the lucrative practice of requiring a fee to remove booking photos and records from a website unlawful.  A link to the new law

Key Points of S.C. § 17-1-60:

1.   Jurisdiction.  The law includes “transacting business in South Carolina” language, which potentially extends the court’s jurisdiction such that the owners of offending mug shot sites may be forced to litigate in South Carolina.

2.   Unlawful.  The law makes it unlawful to obtain booking photos or records knowing:

a. they will be posted to a website or any other publication; and

b. removal or revision of the record requires payment of a fee or other consideration.

3.   Unlawful II.  A catchall subsection, § 17-1-60(C), makes it unlawful to require the payment of a fee or other consideration to remove, revise, or refrain from posting to a website or any other publication the arrest and booking records of a person arrested in South Carolina.

4.   Removal.  If an arrestee’s charge was discharged, dismissed, expunged, or the person was found not guilty, you may request that an offending website remove your booking photo and records if you comply with the formal requirements under the law.  The mug shot website must comply with the request within 30 days.  If they fail, and your request was proper, you may file suit, seek damages, and attorney’s fees and costs.

5.   Government Liability.  The law further makes it unlawful for an employee of a state or local government agency to provide booking records knowing:

a. it will be published on a nongovernmental website or any other publication; and

b. removal or revision of the arrest or booking records requires the payment of a fee.

Attorney Milt Stratos II has successfully defeated mug shot web sites with and without this new legislation, and forced the offending sites to delete a client’s image and booking records permanently.  If you or a family member is a target of mug shot websites, and your mug shot on the web represents a significant PR issue, please contact attorney Milt Stratos II, at Stratos Law, LLC to schedule a consultation. 

22 2014 Apr

DUI: What Happens if I Refuse Testing?

South Caroliona DUI Laws: Implied Consent and Basic Rights

In the event you refuse to submit to a field sobriety test, or chemical tests of breath, blood or urine you will be subject to South Carolina’s Implied Consent law.  Your license must be immediately suspended for at least 90 days. S.C. Code Ann. § 56-5-2950(a).

License Revocation Hearing

If your license is suspended you do have the right to an administrative hearing to challenge the suspension. The scope of the hearing is limited to whether you were (1) lawfully arrested or detained, (2) and/or whether you were advised in writing of your rights and refused to submit to testing.  A successful challenge will result in a recession of the suspension. S.C. Code Ann. § 56-5-2951, 2951(F).

In the event you have been charged with a DUI it is in your best interest to consult an attorney immediately.  Please feel free to contact a Charleston DUI lawyer at Stratos Law for a free initial consultation.

13 2013 Aug

Nonviolent Drug Possession and Fed. Mandatory Minimum Sentence Issued Red Card

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U.S. Attorney Gen. Abandons Federal Mandatory Minimum Sentencing For Nonviolent Drug Offenders

August, 12, 2013

Since the inception of the War on Drugs in the 1980’s, mandatory minimum prison sentences have been in place for drug related charges at the federal level.  The effect of these mandatory minimum sentences is that judges were not afforded the discretion to impose shorter sentences based on the specific circumstances of the case.  Nonviolent drug offenders without criminal histories or ties to large-scale organizations would be sentenced to the same amount of incarceration time as drug kingpins or violent dealers.  As a result, prisons across the U.S. have suffered from rampant overpopulation. According to the U.S. Bureau of Justice Statistics, federal prisons are operating at nearly 40% above capacity and hold more than 219,000 inmates.  Of these prisoners, nearly half are incarcerated on drug related convictions.  Thirty percent of the federal drug convictions each year are of African Americans, and Hispanics account for 40% of the convictions.  At a state level, 225,000 prisoners are there for drug offenses, and it is estimated that anywhere between nine and ten million prisoners go through local jails each year. 

Today, U.S. Attorney General Eric Holder announced that he is changing the Justice Department’s policy of using mandatory minimum sentences at the federal level, and he encourages state and local authorities to follow suit and reconsider their own sentencing policies. “Low-level, nonviolent” drug offenders will no longer face mandatory minimum prison sentences.  "Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," Holder said.  Certain low-level offenders "who have no ties to large-scale organizations, gangs, or cartels" will not be charged with offenses that impose stiff mandatory minimum sentences. Rather, he said, they will be charged with offenses that carry sentences "better suited to their individual conduct." Aggressive enforcement of federal criminal laws is necessary, but "we cannot simply prosecute or incarcerate our way to becoming a safer nation," Holder said.  In addition to no longer prosecuting low level drug offenders under mandatory minimum sentences, Holder aims to expand compassionate release for inmates who no longer pose a danger to society such as elderly inmates who did not commit violent crimes or who have served significant portions of their sentences.

Holder’s announcement today has been met with bipartisan support.  What remains to be seen is how the 94 U.S. Attorneys’ offices across the country, now given the authority to exercise discretion in handling their drug related criminal cases, will implement these changes. 

Authored: Malena Dinwoodie, Stratos Law LLC

 

 

8 2013 Aug

Can a Police Officer Open Your Car Door? | S.C. Supreme Court Discusses the Fourth Amendment

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Gregory McHam v. State

Fourth Amendment Search of Vehicle During Traffic Stop

In a recent post-conviction relief case before the South Carolina Supreme Court, the Court reviewed an issue of first impression about whether a police officer’s opening of a car door during a traffic stop constituted a “search” under the Fourth Amendment.  The Court ruled that it did. 

The open door “enables the officer to observe portions of the interior of the vehicle that would not otherwise be readily visible to those who are outside the vehicle.”  The Court went on to stipulate, however, that in cases where the officer believes that he or she is in danger, the warrantless search is not a violation of the motorist’s Fourth Amendment rights.  Justice Donald W. Beatty, writing on behalf of the Court, stated that the search is justified based on “the general principle that officer safety can justify the opening of a door to an occupied vehicle under reasonable circumstances.” 

Though concern has been raised by some criminal defense lawyers across the state that this ruling may serve as justification for police officers to routinely open vehicle doors as traffic stops are inherently dangerous, others point out that the application may be relatively narrow according to the facts of the case.  Even though an officer may be allowed to open the door, they must still have probable cause to rifle through the vehicle.  Additionally, a police officer’s already established power to ask a person to step out of the vehicle effectuates the same result: opening the vehicle door.  At least one lawyer suggested a simple solution- lock your car doors.

16 2013 Jul

State of Florida vs. George Zimmerman | Jury Instruction

Please see the link below to read the full jury instruction in State of Florida vs. George Zimmerman, C/A No.: 2012 CF 1083 AXXX.

Final Jury Instructions, State of Florida vs. George Zimmerman