By: Christie McGuinness

The United States Congress passed Section 1983 in response to a serious problem in the United States: The Ku Klux Klan. The ideology behind the statute was that persons who have had their civil rights violated by someone working for the state should have a remedy available to them. Because 1983 is derived from the Constitution of the United States of America, the majority of civil rights claims are brought in federal court. However, this does not mean that states are allowed to violate the rights of its citizens. After all, the states were the original source of all civil rights until the passing of the Bill of Rights.

Each state has their own procedure for how its citizens are allowed to sue its employees and agencies. In the state of New York, potential plaintiffs have to file a Notice of Claim. This Notice of Claim is really directed to answering the major questions: Who are you suing? Which agency are you suing? What happened? When did it happen? As the title explains, this is about putting the municipality ‘on notice’ of the grievance. Part of that notice includes the plaintiff identifying who exactly, i.e., the person or actor, who created the grievance. However, that is not always so easy for plaintiffs to identify. For example, you may not know the name of the agent or the police officer who you allege violated your constitutional rights. So the question remains: what happens when someone fails to identify an individual defendant? Is the plaintiff allowed to still sue that individual defendant even though they were not mentioned in their notice of claim?

In the case of Antoine Flowers, a Manhattan Supreme Court Justice threw out cases against five police officers. (Jason Grant, Notice of Claims Ruling Cited in Narrowing of Suit Against City, NY Law Journal ). The issue of the Notice of Claim came before the judge in a summary judgment motion. The judge took the time to opine on the merits of the case, i.e., whether summary judgment should be granted to the police officers due to a legal determination of probable cause, which is an absolute defense to a false arrest claim. The judge determined that she could not make that determination of law because there were material facts still in dispute. Despite, the determination that a jury needed to decide the merits of the case, the judge still dismissed the case as to five police officers on procedural grounds: The Notice of Claim. The five police officers were not identified on the Notice of Claim, but rather only the City of New York and the NYPD were named.

This ruling has left the appellate divisions of New York divided. The First and Second departments, covering most of the five boroughs, have held that unidentified individuals may not be sued when they are not included in the Notice of Claim. The Third and Fourth Department, however, have precedent stating that those individual agents who are not named in the Notice of Claim may still be sued. This Department split has called for the NY Court of Appeals, the highest court in New York, to make a definitive ruling on this issue.

The defendant police officers were represented by The New York City Law Department.

In the State of New Jersey, the form is called the Notice of Tort Claim. There is a strict 90-day statute of limitations for these forms to be served on the parties involved that runs from the date of the incident that is the subject of the claim.

The question still remains: how do we strike the appropriate balance? Plaintiffs must be permitted to have these lawsuits go forward and to do so, they must be provided time to determine the identity of the defendants, but public servants cannot also live in constant fear of being sued, which requires adoption of an appropriate statute of limitation.