PHOENIX—A grandmother wrongly arrested by U.S. Marshals sued the United States government and federal agents over the harms she suffered and the violation of her constitutional rights. Her story of being mistaken for a criminal is frightening and should concern everyone.
Penny McCarthy 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.
The Fourth Amendment protects Americans from unreasonable false arrests, and the government must compensate victims when officers violate the Constitution. Today, Penny filed suit with the Institute for Justice (IJ) under Arizona law, the United States Constitution, and the Federal Tort Claims Act (FTCA), which allows people to sue the federal government when federal officers cause them harm.
“The officers’ misidentifying Penny was inexcusable and violated state and federal law,” said IJ Senior Attorney Paul Avelar. “To make matters worse, even if Penny had been the fugitive they were looking for, the officers’ over-the-top display of force was uncalled for, given that the fugitive was wanted only for failing to check in with a probation officer after being released from prison twenty-five years ago for nonviolent crimes.”
Penny’s time in custody was a terrifying ordeal. After being processed at a federal courthouse, Penny was sent to a federal detention facility more than an hour away. During her time in custody, Penny was strip searched three times. After a sleepless night in a cold holding cell, she was sent back to the courthouse.
There, 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 that Penny 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. While she sold her home and moved out of the state, the psychological effects from the whole experience have stayed with her. She worries law enforcement officers will again mistake her for Carole Rozak.
“I’m still afraid that one day I will be pulled over and again mistaken for a criminal,” said Penny. “I’m suing because I don’t want this to happen to anyone else. Unless someone is held responsible, someone else will go through this same nightmare.”
Alongside claims under Arizona law and the United States Constitution, Penny’s case asserts claims under the 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.
IJ is currently waiting on the Supreme Court to issue a decision in Martin v. United States, a case of an Atlanta family whose home was wrongly raided by an FBI SWAT team. The family’s FTCA suit was dismissed by the lower court.
The Institute for Justice is a nonprofit public interest law firm that works to protect the Fourth Amendment and seeks accountability when the government violates constitutional rights. 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.