PHOENIX—Penny McCarthy, a grandmother wrongly arrested by U.S. Marshals, overcame a critical legal hurdle in her lawsuit against the United States government and federal agents over the harms she suffered and the violation of her constitutional rights. U.S. District Judge Roslyn O. Silver rejected the government’s attempt to dismiss the suit Penny filed with the Institute for Justice (IJ) last year.
“This is a step in the right direction for getting justice and making sure that the U.S. Marshals never do this to someone else,” said Penny. “I still don’t understand why I was mistaken for a criminal and treated like a violent one, and I hope that now I can start to get some answers and hold the people who did this responsible.”
Penny was working in her front yard last year when U.S. Marshals sped down her road, blocked her in her driveway, and held her at gunpoint. They called her a name she had never heard: “Carole Rozak.” Bodycam footage of the arrest shows Penny’s confusion as the marshals yell at her to look away from them, insisting that she should know they are police. Less than two minutes after the marshals confronted her, Penny was put into the back of an unmarked van and shackled.
She spent the next 24 hours in custody with the government insisting she was someone she was not.
“What happened to Penny clearly violated her rights. There must be some way to enforce those rights in court,” said IJ Attorney Marie Miller. “This decision is a step toward that enforcement and toward uncovering how the U.S. Marshals could engage in such egregious errors and over-the-top treatment of an innocent, harmless person.”
Alongside claims under Arizona law and the United States Constitution, Penny’s case asserts claims under the Federal Tort Claims Act (FTCA). Congress created the FTCA to allow people to sue the government when they are harmed by federal employees. Originally, the FTCA did not permit suits for “intentional torts,” including false arrest. But after several notorious raids of wrong houses in the 1970s, Congress reformed the FTCA to explicitly permit suits for false arrest, battery, malicious prosecution, and other torts.
Recently, IJ filed a similar suit on behalf of U.S. citizen and Iraq combat veteran George Retes. George was detained for three days and three nights without any communication and released without being charged with a crime. Since Penny filed her suit, IJ also won a U.S. Supreme Court case, Martin v. United States, the case of an Atlanta family whose home was wrongly raided by an FBI SWAT team.