The Mayor Strikes Back: Baraka Sues Habba For False Arrest And Malicious Prosecution.
I have twice written about the arrest, and then the dismissal of charges, against Newark Mayor Ras Baraka. Today sees an interesting development in the case as Mayor Baraka has sued Allina Habba and a man named Ricky Patel. You can read the lawsuit HERE, and I recommend doing so, it is only 17 pages long.
To quickly summarize the history, on May 9th Mayor Baraka sought to inspect an ICE detention facility in his city believing it had city code violations. When he arrived three members of Congress were also attempting to tour the facility. Baraka went through the gate, was asked to leave, and left. A swarm of armed and armored, and often masked, agents then came out of the facility to suddenly arrest him. This reckless action resulted in a scrum with the mob. Eventually, Baraka was arrested, detained for hours, and charged with trespass.
Acting United States Attorney for New Jersey, who got the job after incompetently representing Trump, publicly gloated about the arrest on social media. In violation of DOJ policy Habba publicly declared that Baraka “committed trespass,” ignored multiple warnings to leave, and “has willingly chose to disregard the law.” “NO ONE IS ABOVE THE LAW” she cackled in all caps. Other public statements from her office and the DOJ doubled down on all this.
Just 13 days later Habba would eat her words. Habba announced that “after extensive consideration” she was dropping all charges against the Mayor. At the time I noted that “apparently such ‘extensive consideration’ was not applied before indicting the mayor.” That failure is now a chicken coming home to roost. As Baraka’s lawsuit alleges, “video became public showing that Defendants Habba and Patel had lied,” compelling the dismissal.
As a consolation Habba announced the indictment for Congresswoman LaMonica McIver who Habba claims assaulted ICE officers. While McIver was inside the jostling scrum, the videos I have seen don’t show the claimed assault, so we will just see where that goes.
Baraka’s lawsuit presents two new facts I have not seen before.
- Baraka was invited into the facility by a guard at the facility who believed letting him in would calm the crowd. After he had been there for awhile, and met with the Congressional Representatives, codefendant Ricky Patel told him to leave. About five minutes later the agents came out to get him creating the conflict associated with his arrest.
- When Baraka’s criminal charges were dismissed the judge in the case issued a scathing order reprimanding Habba and her office for the arrest and charges. Some quotes from Judge Espinoza’s order are definitely worthwhile.
“Your role is not to secure convictions at all costs, nor to satisfy public clamor, not to advance political agendas . . .
The hasty arrest of Newark Mayor Ras Baraka, followed swiftly by the dismissal of these trespassing charges a mere 13 days later, suggests a worrisome misstep by your Office. An arrest, particularly of a public figure, is not a preliminary investigative tool. It is a severe action, carrying significant reputational and personal consequences, and it should only be undertaken after a thorough, dispassionate evaluation of credible evidence . . .
The apparent rush in this case, culminating today in the embarrassing retraction of charges, suggests a failure to adequately investigate, to carefully gather the facts, to thoughtfully consider the implications of your actions before wielding your immense power. Your Office must operate to a higher standard than that.”
Baraka asserts three causes of action. Two or for so called “Bivens Actions” for 4th Amendment violations by the false arrest and malicious prosecution. The third is for defamation under relevant state law. The Bivens claims are the heart of it and let’s talk about what that is and the chance of success.
It comes from the 1971 Supreme Court case of Bivens v. Six Unknown Agents. In that case Federal Narcotics agents, without a warrant, searched the home of Webster Bivens and despite not finding anything arrested him on drug charges. While the charges were later dropped, Bivens sued. The Supreme Court held a private cause action against the agents individually was permissible for egregious violations of Constitutional rights.
The Supreme Court has subsequently worked to limit Bivens actions, generally denying them when the breached Constitutional right asserted does not involve a credible claim of false arrest. This lawsuit quite notably does. Justice Thomas has even expressed sentiments that Bivens was wrongly decided and that such a cause of action could only exist via Congressional implementation. However, under existing law, Baraka brings a credible Bivens action.
The defendants will attempt to dismiss the case on a claim of “qualified immunity.” This doctrine is intended to protect law enforcement officers except for “all but the plainly incompetent or those who knowingly violate the law” (Malley v. Briggs). Under this doctrine law enforcement officers who reasonably, although mistakenly, violate a person’s constitutional rights are immune from civil lawsuit.
It is accordingly a reasonableness test and whether the defendants’ actions were reasonable should normally be a fact question for a jury. That would get the Mayor to discovery and the deposition of the United States Attorney for New Jersey, Allina Habba. In that deposition she would be compelled to explain not only her public statements about Baraka’s arrest, but also her prior statements pledging to use her office to “turn New Jersey red.”
I think two things are clear. First, Baraka has a better case against Habba than Habba ever had against Baraka. I expect his to last a good bit longer than 13 days. Second, Habba should definitely not represent herself, she sucks at lawyering.