"Legal advice requested..." Topic

I am looking for a bit of legal advice here. My brother was arrested falsely and I want to know what recourse he can have.

Extra to know stuff, This happened in TN, He has a "Emo" dress and hair, he is only 20, shy, and doesn't want to rock any boats.

Full story;

My brother drove my mothers vehicle to the local mall. He had a couple girls with him that wanted to do some shopping.

They went into a Claire's and started to look around. My brother while attempting to get a ring out of the back of one of their swivel racks knocked off a large pile of stock on accident.

He sat on the ground and proceeded to hold up the jewelry and show it to the girls, to see if they wanted it as he put them away. The girls picked out 3 pieces they liked and he finshed putting up everything that he had knocked down.

He took them up the cashier and paid for the 3 items. After he paid the cashier asked him "Where are the rest you took?"
He said he didn't take any and she kept claiming that he stole something. She kept harassing him so he pulled everything out of all of his pockets and showed her that nothing was in any of them. She still claimed he did so she run over and locks the store door and calls the security guards.

The guard asks to search him and my brother doesn't argue and they check his pockets again. He still have everything that was in his pockets on the checkout counter at this point. He cannot find anything so and the cashier is still insisting that he did steal something. So he calls his supervisor to come there. The supervisor questions everyone and proceeds to check my brother himself. Nothing is found but she still swears that he took something so the guard calls the cops.

A pair of county police come in and they ask a lot of questions and then say that they want to check my brother. He gets checked by the police and they find nothing. She still keeps swearing that he took something so the cops arrest him for shoplifting with no evidence. When they arrest him they tell him to "turn around, your being arrested for shoplifting" He asks them why as after 3 searches they have found nothing and he legally paid for what he wanted and he did what was asked thru the whole thing is he being arrested. They said that in Tennessee that if your accused and the accuser demands it they have to arrest the person.

At this point they handcuff my brother, They DO NOT read him his rights, and take him to jail.

When they process him they cannot take a proper thumbprint as his is all scarred up. The police accuse him of "attempting to hide his identity." by purposely slashing it. They then go on to threaten him with "Falsifying Information" when they ask his address and it he gives the correct address but they have never heard of the road so they claim he is lying. They finally find it on a map. While they are looking for the road they start harassing him about why the vehicle(thats in my mothers name) is licensed in a different county? They then further accuse him of lying about his address and keep threating him until they finally find his adress.

They get done and take him to a holding cell. He asks if he can get his phonecall to let our mother know where he is, and that her vehicle is still at the mall. They tell him that he is going to be in there, "So long you'll be able to make lots of calls" They don't let him make his call, leave him in there for a couple of hours. He then gets release and is set to goto court in 3 months.

They inform my brother then that he is not allowed ever back at the mall and they will arrest him again if he is found there again. He ask if this ban is until my court case and he is told that the mall has said that he is never to come back.

Now, He was falsely accused with no evidence. Arrested without being given his Miranda right, and not given the ability to make a phone call. Then he is banned for life from a mall that he did nothing too in the first place.

I am pushing him to talk to a lawyer about it. I am right in thinking he would have a case here right?

Uhhh yeah! It sounds like there is no reason for him to worry about getting in trouble himself. And if he wanted to sue it would certainly NOT be a frivolous lawsuit.

He does not want to do anything, so why the interest in changing his mind? Do you like people mixing in in your life?

TMP is not the place to get legal advice – go see a lawyer!

And if everything you have said is true, and I have reason to disbelieve you, then you do have a good case against the store in question, their staff, and the police.

But go see a lawyer!

Even if your brother doesn't want to seek damages, he would be well advised to have a lawyer just to protect himself ( wellllll,…. maybe he should seek to stick the Mall with his legal costs )

There is only one piece of legal advice that makes any sense and that is "GET HIM A LAWYER!!!!!!!" That is, if he is really innocent.

As a former KMart security manager, I find his story full of holes. NO store manager would possibly carry through on this without any evidence. Even back in the 70s, they were scared out of their wits by any claims of false arrest.

If he doesn't want to press matters, that should tell you all you really need to know about his innocence, wimpy Emo or not.

Sue? Hell yah! Given your details, a really good lawyer would have a field day with this one.

Sounds pretty routine. Something similar happened to me when I was in college. I was innocent as well, but they didn't press charges. It's going to cost you a grand or two to get a lawyer. The lack of Miranda rights/hostile questioning will probably make no difference. I don't know about TN, but you might have a harassment claim, a false accusations claim, or something similar. Sounds like somebody didn't like your brother. You might want to ask him why the woman was so upset with him. Was he hostile to her? Was he acting immature with his friends, etc. Is there something about him that the woman could take offense?

Regardless of his guilt or innocence, get him a lawyer.

Take him to a lawyer. He may not care right now, but in a few years he'll regret having a record. It will haunt him for life. If nothing else, a chat with a lawyer will tell you whether or not you have a case.

He needs a lawyer. If he should ever want a security clearance or any one of a myriad of other similar issues for background checks, he would be barred. There are too many jobs now that require clean backgrounds.

Erik

Get a lawyer.
Many states now have 'concealment' statutes on the books, essentially meaning that if a person 'conceals' store property on his person s/he can be charged with shoplifting regardless of whether or not they leave the store with said property – the concealing is held to demonstrate intent to commit larceny. If the store employee/manager believe he commited this offence, that is what he would be charged with.
Regarding Miranda – this is a common misunderstanding. Miranda applies to questioning whilst under arrest – just because you are arrested does NOT mean you must be read your rights; you need be advised of your 'Miranda rights' only if you are in custody/under arrest and are going to be questioned. If you are not going to be questioned, Miranda is not necessary. General 'processing' questions – DOB, where you live, etc may be asked without Miranda readings. However, it is generally considered sloppy Police work to not advise Miranda at time of arrest.
The phone call – bluntly, you do not have a specific right to a phone call, but it is common practice to allow one.
In many states, a private entity – ie a shopping mall manager – can bar a person from the mall at will; this is not up to the police.

Seriously, get him a lawyer to get him clear of this as quickly and quietly as possible. You may even get the court date dropped and everyone moves on.

Unfortunately, as far as your recourse, even if events are word for word as described, there is nothing in this story that is bad enough to get the satisfaction you are looking for.

The lawyers will tell you the same. The authorities will simply be annoyed if you complain through their channels.

Understand, I am with you on this. I would be beyond angry as well. But, my encounters with officialdom have been very unsatisfactoy from whichever viewpoint I have been involved. I have been accused, I have accused. I have been "punk" vs "respectable citizen" as well as the other way around. The one common thread is that I walk away even more frustrated by the unfairness and officialdom's complete uncaring indifference to truth or justice. (I'm getting angry recalling just the incidents even as I type this.)

Get a lawyer, get officialdom out of his life and move on.

Guiscard

Get a lawyer.
Even if he is guilty, he still needs one…

I question the wisdom of asking us what to do – but the refrain of 'have him get a lawyer' is good advice

- now if your brother wanted to know what scale, which manufacturer, what paint scheme, or whether to go new release or OOP Lawyer – then we'd be able to help

Firebomb the mall!!!….no wait!?!…get a lawyer…

Justin, I am just trying to make sure he protects himself. There is no reason for him to have false information on his record.

Astromonican, LOL, I know TMP is not the end place for legal advise. It is a good shout box though. I would only take real legal advise from a lawyer and that is what I am trying to get him to do. To just talk to one and see what his options are to protect himself.

Erik, Having gone thru getting one myself in the military I know what a hassle that can be and part of the reason I want him to protect himself in this matter.

JLA, Noting was concealed, he was accused with no evidence against him. about the police work/lack off I was pushing my brother to talk to a lawyer. I don't know the laws like they do.

Guiscard, I'm not looking for that million dollar payout but to make sure his name is cleared. It's a unfair situation to have this on his record for life as someone decided to make wild accusations.

Wow, definatley get a lawyer I know in the UK this would be a different kettle of fish. They must have charged him for something for him to go to court?

They charged him with shoplifting.

Without a lawyer, wouldn't he have to defend himself when he went to court? That would be a disaster. He always has the right to a county lawyer.

I have a problem with his knocking down a display and then taking way too much time to put it back. Classic shoplifting scheme with multiple people "helping" restore order.

BTW too many people get their 'legal advice' from watching too many TV shows!

Sad to say, but he needs a criminal attorney immediately!

Justin, I am just trying to make sure he protects himself. There is no reason for him to have false information on his record.

And what false information do you think is going to be on his record. He was arrested and held in the cells. Obviously I don't know what happens in the States but here you cannot get get that information erased.

So lets walk through it:

Now, He was falsely accused with no evidence.

Yes thats right, evidence should be provided for a conviction but you can be arrested without a solid case.

Arrested without being given his Miranda right, and not given the ability to make a phone call.

Other people have made the points about this. Perhaps a complaint to the police dept is in order?

Then he is banned for life from a mall that he did nothing too in the first place.

Now I would imagine that that is in the hands of the owners of the Mall. They don't want him, they don't have to have him. Correct in US law?

The main point in getting a lawyer involved IMHO is to make a defense in court or to sue someone for his treatment. I gather suing is common in the US and if you have a good case, the lawyer will do it 'no win, no fee'.

But I repeat, let your brother make up his mind about how he lives his life. If you mix in and get it wrong, that could be a problem between you and him forever.

"Now, He was falsely accused with no evidence."

Be careful not to think of evidence as limited to physical things i.e. they found nothing on him. The oral evidence of a witness is just as much evidence. Of course its value is another matter, but its enough, as it was here to get him arrested. In court the lack of finding anything will be useful in calling into question the witness assretion that he took something. A lot may turn on the detail of why she thought he had secreted something, and whether her assumptions were reasonable.

However as everyone has said, get a decent lawyer involved to defend the criminal charge, let your brother decide on the civil action.

I understand that starting an civil action while the criminal charges are pending is a common tactic in the US. Any of our American brothers-in-Law confirm or deny.

He'll probably want a lawyer when he goes to court.

As for being able to get some sort of redress, it'll come down to his word against the word of the clerk and the arresting officers – who do you suppose the judge will believe?

It sucks, but that the way it is.
-Kle.

It depends on the laws in your state. In Washington State, this would be false imprisonment and possibley would generate a 1983 action (denial of constitutional rights under color of state law). GET A LOCAL ATTORNEY TO LOOK AT THIS

mjc

I would expect an attorney to ask to see the stolen items in court. I sat on a shoplifting trial and that was the very first piece of evidence introduced. I would next expect the clerk, the security, and the police to be put on the stand and to explain just what stolen items were found on him.

What you don't say is whether or not his two girlfriends were arrested for shoplifting and whether or not they had stolen items on them. If they did, he can be held as an accomplice in the shoplifting.

They wouldn't have arrested him unless there was some evidence. The story he told you might not be 100% accurate.

No, the only one that was blamed was my brother. The girls were not bothered at all. No one stole anything the cashier just claimed that he did.

Thunder, He was told that even without evidence that if they still want to press charges they can. They did.

I would never have any reason to doubt my brother. He is always one to do the right thing.

CP;

He always has the right to a county lawyer.

He has the right, but I'd not want some bored assigned lawyer protecting me!

I have a problem with his knocking down a display and then taking way too much time to put it back. Classic shoplifting scheme with multiple people "helping" restore order.

Well he knocked down a whole row… not a whole display and sat down and held up each too see if the girls liked them as he pick up what he knocked down.

I'm not sure where the "help" was. It's not like they were all down there "picking" things up. He was the only one putting back what he knocked down.

BTW too many people get their 'legal advice' from watching too many TV shows!

Hence, me suggesting to him that he talks to a lawyer from the get go. I'm not a lawyer but I know enough to suggest to him to talk to one. Whatever I think should be done or not he needs to be able to protect himself.

Well, as it developes, please keep this thread updated. I'd like to see how it turns out. It's hard to imagine someone being arrested without evidence, but not out of the question. Stranger things have happened with the law.

You can get a copy of the report. Be sure to get all the pages. Ask for one that is not redacted.
Maybe this will help answer any concerns.

Get a lawyer.

But since you asked here's a lay mans opinion.

Sadly, I think the best you can hope for is a quick clearing of name.

False arrest – A credible complainant makes a report of theft … the police pretty much have to arrest him and investigate.

Miranda rights – might be important if he is found guilty, otherwise?

Aggressive questioning and accusations – pretty much what questioning suspects is all about. You could hardly sue the police for not being polite to a suspect.

False accusation – Mistaken accusation is not a crime. You'll have to prove they deliberately or recklessly accused him of theft. Tough when he had knocked down a jewelery display and proceeded to pick through it.

Ban from mall – A mall is private property. Around here because it is open to the public you can enter without permission but if you are asked to leave and you don't, it becomes criminal trespass.

Around here, there would be an investigating officer and a public prosecutor assigned. These are the guys who decide if it actually goes to court so your brother might get a call saying the charges are dropped.

OTOH the first time the investigating office opens your brothers file might be on the morning of the court case.

So, a good lawyer is the place to start.

Some thoughts:
Miranda has been addressed (incidently, in the Miranda case,a fter they threw out the confession, he was convicted anyway). Miranda is all about interrogation after arrest, nothing to do with arrest itself.
In California, police can't arrest on misdemeanors unless they see it happen. But the store clerk can do a citizen's arrest and the police will do the transport. Which sounds like what happened here.
By the way, you may want to wait on the lawyer for a bit. If the DA files a complaint, you would want a criminal lawyer.
If they don't (which could happen), you want a civil lawyer, not a criminal one. THey aren't always the same thing.

I preface this by pointing out that I work as a police prosecutor and may be biased in some of the things I am about to say. The arrest of your brother and his treatment by police are separate from the allegation of the theft. Deal with the criminal allegation first. There may be a complaint mechanism with regards to his treatment by the officers, but your brother will have to do that for himself and the complaint should be able to be made now or after the case has been determined. There may be civil remedies (launching a lawsuit), but again a lawyer can give some advice on that.

I say the following not knowing you or your brother and without being able to evaluate the beliefs and moral character of either of you. Firstly, you have only heard your brother's side of the story. You have not seen the evidence the police rely upon. You weren't at the scene or the police station. Otherwise upstanding people have made mistakes and tried to steal from stores before and those same people, through shame or other motives have lied to their relatives about what has happened. The girls may have committed the crime and he may be lying to protect them. Alternatively his perception of what occurred may be different from what happened (who said what rather than being mistaken about taking anything). This can and has occurred in stressful situations such as this. Typically when I run a case I find the truth lies somewhere between the two differing accounts.

Next, the advice given by others here is the most appropriate. He MUST speak to a lawyer as soon as possible, especially if he intends to plead not guilty. Choose the lawyer carefully. I know some extremely competent legal aid lawyers but their resources are limited and their time may be even more limited. Whether you go public or private you may still end up with a plodder. Choose someone who specialises in criminal law and if possible get a recommendation of a good practitioner. By consulting a lawyer early you maximise the chances of having the charge withdrawn (before having to go to court) and give your brother the best chance to defend himself.

Third – the two girls are witnesses (otherwise they should have been charged as co-offenders). They must go to court and give evidence of what happened (indeed here the prosecution would probably be obliged to call them). Without their testimony the court will have to decide whether to believe your brother or the shop assistant (assuming there is no other evidence). I'm sure you can see what the power of their evidence could be in rebutting any case the prosecution puts forward.

Lastly, this is your brother's fight. Your account of his actions goes against your description of his personality. He stood up to the officers when he maintained his innocence and when he requested his rights. This doesn't sound like someone who rolls over and isn't prepared to stand up for himself. It is up to him to act, get a lawyer, find out exactly what the police are relying upon to prove their case, and assert his innocence in court. He can choose to let the officer's conduct slide but fight the charge, that is not rocking the boat. Alternatively he can roll over accept the charge and his treatment. Speaking personally, that is not the conduct of an innocent person and there is more to this than he is telling you should he take this option. Lastly, he can go the whole hog, fight the charge and take action about his treatment. Regardless of which way he goes he must speak to a lawyer.

Get him a lawyer and get him cleaned up for the court date. I am amazed at the number of defendents that show up for court as their true selves. It may seem like you're making a stand for who you are, however, it's better to be free at the end of the day. Dress pants with a dress shirt and tie. No colors, no metal, no Star Fleet Uniform.

It's the world we live in.

Vince

Get a copy of the report. Also get the charge documents. The documents could be in the form of a warrant or a ticket. Your brother should have a copy of the warrant, ticket, or bond paperwork.
In the documents the Statute that was violated should be listed. Look up the stuff in a Law book.
Anyone that has been charged should do this but almost all do not.
Getting all the documents could save some money. A lawyer charges for all time involved doing anything concerning a case.

Good points raised,people.

As a former FLGS owner who lost a lot of faith in people,I
can understand the clerk's ire.

That said,people who look guilty through the filter of too
much theft can still be innocent.

Why WERE the girls ignored (if they were)?

Was his behavior suspicious because "normal" people just leave the messes they cause for the store to deal with?

Get your lawyer.

The attorney may visit the mall all sweet as pie and ask for
a copy of the security camera footage for that time period.

Awwww…. it's been taped over,has it?

Or all the store had was those fake cammeras to act as deterrents?

Toooo bad….. What proof does the store have that its perception of events is accurate?

I'd think they'd need to show an unalteres/unalterable film
of all the customers' actions (not just his or the girls but anyone who may or may not have been searched and questioned).

The store inventory should be compared to the recorded sales,etc.

That would put the onus on the store to put its money where its mouth is.

If they can't produce film or a discrepancy in inventory that shows SPECIFIC items were taken ( not "I know he took something") then their version of things looks pretty iffy
when the presumption of innocence exists.

As for courtroom dress,I'm no lawyer but I've heard people express resentment at "dress for success" type costuming that seems to want to disguise the person and hide their true character and identity.

Yes,lose what might give a false negative impression but
be subtle.

Don't let him come across as a con artist playing the part of an innocent.

The emo style allows him enough "mundane" options that he could dress in a "respectable" manner that doesn't have the
feel of a costume and still be true to himself.

(A touch of the Asian aesthetic,cowboy look,early 20th century or steampunk might work.)

The idea would be to look at what's socially acceptable and at his preferences and concentrate on the overlaps.

Tone down the more outre elements of the emo and raise the bar enough on the "regular" stuff to show that he's not putting on a front.

He's an honest (albeit different) boy.

The lawyer may want to dress him to emphasize youth and vulnerability or provide distraction from unfavorable testimony.

That's fine if it doesn't incite resentment and discomfort
from the defendant or those passing judgement on him.

This is less about making anyone suffer than it is forcing the truth out into the open and insisting that fair,humane practices are maintained on all sides.

If he can show sincere respect or the other side shows nothing but petulance,then the reality will be to his advantage.

Folks in Tennessee may like clean-living types but we are
also a culture of iconoclasts and people who have had to struggle for a fair shake.

Let him show that he has moral strength and his youth,fashion sense,lifestyle,etc. will have a lot less influence.

He can come across as someone dangerous and alien or someone
caught in a situation that might trap any of us at any time.

Anyone who is forthright and takes responsibility for his actions has an edge-even if he's innocent.

Anyone who shows contempt for others and their rights (especially if they lie about it) will have some good Southerners ready to tear them apart.

If he seeks good counsel,listens to them,plays to his strengths and exudes respect for himself and those around him,he should do o.k.

(Plus,the mall/store will be responsible for providing half his defense.)

Good luck!

"(Plus,the mall/store will be responsible for providing half his defense.)"

I don't know where you got this. He has to pay for his own defense, unless the court finds him indigent and appoints an attorney.

Not payment for it but possible evidence in his favor.

They'd need to provide:

1. proof something was even missing.

2. a reasonable expectation that missing items could not
have disappeared any other way.

3. proof that all other possible parties were treated the same way as the defendant.

4. proof that he was not treated in an inappropriate manner even if he were guilty.

As I indicated above,the onus is on them to provide video tapes,credible witnesses,discrepancies in inventory,etc.
to take the matter beyond "He said,She said".

Otherwise,the mall might as try to attribute shrinkage to
disgruntled boggarts,errant crows or the Yakuza equivalent of the Lipstick Mafia.

BTW,boggarts = malicious fairies.

How old is your brother?

I missed it in your original post