Common law rightsFree people vs. police statePersecutionsPolitical figuresWarrantless arrest

Must pay up front to sue for false arrest, attorney says of reporter’s risky case

A state trooper, center, and Franklin, Tenn., cops block entrance of reporter David Tulis, left, as he seeks to cover the secret judicial conference in Franklin, Tenn., on Nov. 6, 2021. (Photo Franklin police department)
After being arrested, I talk with police officers in an ambulance about whether I should be taken to the jail and booked, or agree to a citation. I should have said, take me to the Williamson County jail for a magistrate hearing on the spot, as officer William Orange violated Tenn. Code Ann. § 40-7-103 in arresting me without a warrant. I was exercising my right to cover a government body meeting under the open meetings act. (Photo Franklin police department)

CHATTANOOGA, Tenn., Sept. 11, 2022 — “I have reviewed the documents you sent,” says a Tennessee lawyer to whom I sent a lawsuit proposal.  “As we discussed, I primarily see one or two claims civil rights you might have.”

By David Tulis / NoogaRadio 96.9 FM

I have spent many hours on the phone and in email seeking an attorney to handle my case in Williamson Countyafter my Nov. 6, 2021, arrest after I exercised my rights and insisted on attending the secretive Tennessee judicial conference held that weekend Franklin, Tenn., at the Embassy Suites at Cool Springs. I was arrested and charged with criminal trespass. A judge dismissed the case as lacking probable cause.

“The first, and most substantial, is the false arrest/malicious prosecution claim,” this good attorney says. “The judge found that there was ‘no probable cause,’ which is a good first step.  However, there are some cases where such a finding is not dispositive in the underlying case.  In other words, the officer still might not be liable despite the finding at the preliminary hearing.  The second claim, is for the too tight handcuffs.  Both of these claims are only against the arresting officer, as his employer is not vicariously responsible except in some uncommon circumstances.

“Both of these claims, though, are relatively minor in terms of damages.  I could easily see the maximum recovery on these cases to be only $10,000 or less.  Cases like these sometimes are quickly settled with no litigation.  However, you indicated that you actually want litigation and ultimately a trial.  That could actually pose a problem.  Defendants in these cases can make an offer of judgment.  If your recovery at trial is less than the offer of judgment then you may not be able to recover all of your costs and/or attorney’s fees.  You might even be subject to paying the other side’s attorney fees.

“There is also a chance that your malicious prosecution claim would fail entirely because you were never taken into custody and kept in jail.  There has to be a deprivation of liberty beyond the initial arrest for a malicious prosecution claim to succeed.  Also, the mere fact that you have to go to court for a preliminary hearing is not sufficient.  That means the only claim you would have is the false arrest claim.  Damages would be affected in that event.

“Also, as mentioned, the claim would be brought just against the arresting officer.  While it is possible that you may have a claim against the hotel as well, it would not be based on violation of your civil rights.  It would simply be a common law claim for malicious prosecution.  It is also possible that you would have a First Amendment claim.  However, I am not well versed in those claims and cannot evaluate whether you have a viable claim or not.  The First Amendment claim may be broad enough to cover others beyond the arresting officer, but I don’t really know for sure.

“If you want someone to take the case to trial just for publicity sake, then I am probably not the attorney for the case.  Under normal circumstances, I would recommend you settle the case if they paid $10,000.  If you want the case to go to trial, then you would be doing so with a great risk of losing out on any additional recovery.  I take these cases expecting to either get paid when a settlement is reached or obtain a judgment for my attorney fees after the case is won at trial. 

“Because neither of those is likely, then I would require an up-front retainer and payment by the hour (which is currently $450 per hour).  Attorney fees in a case like this could easily be more than $50,000 through trial.

“You can call some other attorneys and see if they are more interested in the publicity that this could generate.  I do this to make a living, though, and not to make a name for myself.

There are only a few good civil rights attorneys in this area.  *** As a reminder, there is a one-year statute of limitations on cases like these.  That period would run from the date of the arrest.”

If you know an attorney to handle this case for me in U.S. district court in Davidson County, please contact me immediately.

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