In the blink of an eye, a peaceful day of yardwork for Penny McCarthy turned into a nightmare. She was on her driveway in Phoenix, Arizona, in a sleeveless shirt, shorts, and slippers, when a team of United States Marshals pulled up in unmarked vehicles and aimed firearms at her. Penny—who is a 67-year-old grandmother—was clearly at their mercy. And yet, the officers threatened to “hit” her, frisked her, placed her in handcuffs and ankle shackles, and drove her away from home.
The officers did not so much as check Penny’s driver’s license or run any other basic checks on her identity before violently arresting her. The whole time, Penny calmly but persistently insisted that there must be a mistake. The officers claimed that she was Carole Rozak, for whom they had an arrest warrant. But Penny was not Rozak, and Penny had no connection to Rozak. The officers had made a huge, inexcusable error.
Over the next day, Penny had her mugshot, DNA, and fingerprints taken at a federal courthouse. She was transported to a federal detention facility over an hour away. She was strip searched three times. And she spent the night locked in a cold cell without a blanket. Through it all, Penny again and again reiterated that she was Penny McCarthy, not Carole Rozak. But it did no good.
The next day, Penny was transported back to the courthouse. A public defender told the court that Penny claimed she was not Carole Rozak. The prosecutor asked the judge for more time to get the results of fingerprint and DNA comparisons. The judge obliged, setting an identity hearing for the next month. The judge released Penny with certain orders, including to check in with the public defender each week.
The federal government dismissed the proceedings against Penny, but the damage from her wrongful arrest and continued detention are long-lasting. She now fears being alone and taking her dog for a walk. She sold her home and moved out of the state, trying to escape the feelings of insecurity at her own home in Phoenix. She worries law enforcement officers will again mistake her for Carole Rozak.
The officers violated Penny’s rights under Arizona law and the federal constitution. They violated the Fourth Amendment by holding her at gunpoint and patting her down without any basis to believe she was a criminal or armed and dangerous. The officers also arrested Penny without a reasonable basis to believe that she was Carole Rozak, in violation of the Fifth Amendment’s due process clause. And the officers violated a host of Arizona laws.
Government officials should be held accountable when their inexcusable mistakes harm people and violate their rights. That is why Penny is teaming up with the Institute for Justice (IJ) to hold the officers and the United States government accountable for their errors and to guard against this nightmare happening to someone else.
Case Team
Clients
Attorneys
Paul Avelar
Managing Attorney of the Arizona Office
Case Documents
Complaint
Media Resources
Get in touch with the media contact and take a look at the image resources for the case.
Andrew Wimer Director of Media Relations [email protected]
Related News
Press Release
Woman Traumatized by False Arrest Sues US Marshals
Penny is violently arrested and thrown in jail.
Penny McCarthy is a grandmother in her mid-sixties. She has always tried to be law-abiding. Before the U.S. Marshals wrongly arrested her, Penny had never been arrested or charged with a crime other than a traffic infraction.
On March 5, 2024, early in the afternoon, she was minding her own business doing yardwork at home in Phoenix, Arizona. Suddenly, three unmarked vehicles pulled up to her driveway, and the people inside aimed firearms at her and shouted at her to put her hands up. Penny complied. The officers said they had a warrant for her arrest. Penny was in disbelief. She asked, “For me?” and the officers yelled, “Yes, for you.” She asked the officers if they knew who she was and if they could confirm they were police. They simply threatened to “hit” her and tase her if she turned her head toward them. (Penny was clearly nonthreatening, wearing a sleeveless shirt, shorts, and slippers.)
Six officers then approached her on her driveway and handcuffed her. They walked her to one of the unmarked vehicles—a white van or SUV. There she asked again if the officers knew who she was. The officers said, “Carole Rozak.” And Penny said that is not who she is. The officers then said, “Penny McCarthy.” Penny said that is who she is, but she has never been Carole Rozak and she can prove it.
The officers didn’t give Penny a chance. They patted her down, placed her in a police vehicle, shackled her legs, and drove away from her home. They did not allow her to tend to her dog, barking inside the house; to show identification; to retrieve her purse, phone, or keys; or to tell anyone in her life what was happening. Penny feared she was being kidnapped.
That fear increased as the officers drove Penny behind a nearby grocery store. Penny said she didn’t know there was a police facility there. Indeed, there was not. Some of the officers switched vehicles behind the store. Then the officers took Penny to the United States Marshals Office in downtown Phoenix.
There, Penny again insisted that she was not Carole Rozak but Penny McCarthy. One officer called Penny’s sister, who also explained that there must be some mistake; Penny has never been in trouble with the law. But it did no good. Penny’s mug shot was taken. So were her fingerprints and a DNA sample. One officer falsely claimed that Penny’s fingerprints matched those of Rozak. That was simply wrong, as a federal prosecutor would later confirm.
Penny was strip searched and locked in a holding cell.
Penny is held at a federal detention facility and presented at a hearing as Carole Rozak.
Penny was soon transported on a bus, in hand and leg shackles, to a federal detention facility in Florence, Arizona. Her clothing was taken. She was strip searched again, this time in front of dozens of other women. And she was placed in a cold cell overnight without a blanket. On documents Penny was asked to sign, she wrote her true legal name and information about her parents and birth. The officers disregarded her claim that she was not Carole Rozak and her pleas for a phone call.
The next day, Penny was strip searched a third time and placed on another bus, shackled yet again, and transported back to Phoenix. She was presented in court as Carole Rozak to answer for Rozak’s failing to report to a probation officer 25 years earlier. The federal public defender assigned to Penny explained to the court that Penny claimed to be Penny McCarthy, not Carole Rozak, and that Penny had family members at the hearing who could testify to her identity. But the judge did not take evidence on Penny’s identity at the hearing. Instead, the federal prosecutor asked for more time to compare Penny’s fingerprints and DNA to Rozak’s, and the judge obliged, setting an identity hearing for the next month. The judge released Penny with some orders, including that she check in with her public defender each week.
Four days before the identity hearing, the federal prosecutor asked the court to dismiss the proceedings against Penny. The results of the fingerprint and DNA comparisons had proven that Penny was not Carole Rozak.
The officers fail to run basic background checks.
Penny should never have been arrested in the first place. The officers failed to run the most basic of background checks on Penny. Had they done so, they would have known that Penny was not Carole Rozak. Rozak was wanted on a warrant issued in 1999 by a court in Oklahoma, for failing to check in with a probation officer after she was released from prison in Texas for nonviolent crimes.
Rozak is Canadian, is more than four years older than Penny, and had no connection to Penny. Penny had never lived in Canada, Oklahoma, or Texas. Penny has family who all live in the United States. And she has a valid driver’s license, marriage licenses, a birth certificate, and a social security card—none of which match Carole Rozak’s information.
The officers apparently targeted Penny based on the mere facts that Rozak may have for some time used parts of Penny’s maiden name as an alias, and Penny and Rozak are both white females in their sixties or seventies. That’s simply not enough to reasonably believe Penny was Rozak. Especially given how many people have names matching or resembling Penny’s and other names Rozak may have used as aliases.
The officers failed to check any of Penny’s government-issued documents. They apparently used only Penny’s name and a picture on Penny’s Facebook profile page. Indeed, the picture showed that Penny is a white woman in her sixties or seventies. But the officers had, at best, a 25-year-old photo of Rozak for comparison. And no reasonable person looking at old photos of Rozak, comparing them to Penny’s Facebook photos, would identify Penny as Rozak.
Penny seeks accountability.
After Penny was released, a local news station reported the incident, and it caught the attention of a congressional committee on the judiciary. Congressmen Jim Jordan and Andy Biggs sent a letter to the Department of Justice Inspector General, asking for an investigation into the matter and a report back on findings and recommendations. So far, the investigation has not produced any accountability.
Penny submitted a claim to the U.S. Marshals Service, but the agency did nothing with the claim for more than six months, so it was deemed denied.
As a result, Penny has teamed up with the Institute for Justice, to hold the responsible officers and agency accountable and help ensure the same kind of inexcusable error does not terrorize anyone else.
The Legal Claims
Penny’s case asserts claims under the Federal Tort Claims Act (FTCA) against the individual officers’ United States government employer. The officers committed various torts under Arizona law, as well, including assault, battery, trespass, false imprisonment, malicious prosecution, and negligence. If the United States is not liable for these torts, then the individual officers are.
Penny’s case also asserts claims against the individual officers under the federal constitution. The Fourth Amendment prohibits unreasonable searches and seizures. Particularly given that the officers lacked a warrant to arrest Penny and lacked a reasonable belief that she was Carole Rozak, their initial detention of her at gunpoint and their continued detention of her were unreasonable. Also, because Penny was obviously nonthreatening in slippers on her driveway, the officers’ use of firearms and threats to “hit” her were unreasonable, even if she had been the sought-after Carole Rozak. The officers’ arrest and detention of Penny without having run basic checks on her identity also offended the Fifth Amendment’s Due Process Clause. Essentially, the officers arbitrarily apprehended Penny at her home.
Penny’s case is not the first mistaken identity arrest IJ has addressed. IJ filed an amicus brief on behalf of David Sosas all over the country in support of a David Sosa who had been wrongfully arrested and detained multiple times. IJ also brought a lawsuit on behalf of Jennifer Heath Box, who was arrested and held in jail for three days because she shared parts of her name with the subject of an arrest warrant.
Similarly, IJ represents individuals whose homes were mistakenly identified as the locations of suspects. For example, Trina Martin is seeking accountability after officers executed a warrant at the wrong address—her house. The Supreme Court recently heard her case. And Amy Hadley seeks compensation after officers mistook her house as the place where a suspect was posting on Facebook.
All these cases are part of IJ’s Project on the Fourth Amendment, which strives to protect the right to be secure, especially when it comes to your “person.” The case is also part of IJ’s Project on Immunity and Accountability, which seeks to hold government officials accountable for violations of constitutional rights. When government officials make a mistake, whether by arresting the wrong person or storming the wrong house, those officials—not innocent people—should pay the price.
The Litigation Team
Penny is represented by IJ Senior Attorney Paul Avelar .
About the Institute for Justice
The Institute for Justice is a national nonprofit law firm that litigates to protect Americans’ liberty. As part of IJ’s Project on Immunity and Accountability, IJ works to uphold the Fourth Amendment, to guarantee due process of law, and to combat qualified immunity—a court-created doctrine that frustrates government accountability and bars the vindication of constitutional rights.
