'Don't You Want To Confirm Who I Am?' a Mistakenly Arrested Grandmother Asked the Marshals. They Did Not.
Penny McCarthy is suing the federal agents who insisted she was a fugitive despite overwhelming evidence to the contrary.
Penny McCarthy is not now, and has never been, Carole Rozak. Yet in March 2024, half a dozen U.S. marshals accosted McCarthy in the front yard of her Phoenix home, insisting that she was Rozak, who was wanted on a warrant for failing to comply with parole conditions after she was released from a Texas prison in 1999. McCarthy, a 66-year-old grandmother with no criminal record, was bewildered by the sudden assault, especially because the marshals were in plain clothes and driving unmarked cars, which made her wonder if they were even cops at all. She insisted, again and again, that she was not Rozak. But the marshals refused to entertain the possibility that they had made a mistake—one that could have been easily corrected by examining readily available documentation of McCarthy's identity.
That bizarre episode is at the center of a civil rights lawsuit that McCarthy filed on Tuesday in the U.S. District Court for the District of Arizona. The misidentification of McCarthy "was inexcusable and violated state and federal law," says Institute for Justice senior attorney Paul Avelar, who represents McCarthy. "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."
Rozak's crimes included bank fraud, interstate transportation of stolen property, and making a false statement to a financial institution. She had no record of criminal activity since 1997. Yet the marshals treated McCarthy like a violent felon. They pointed guns at her, barked confusing commands, threatened to tase her, handcuffed her, and frisked her. She was detained for more than 24 hours, which included three humiliating strip searches and a sleepless overnight stay in a chilly, uncomfortable, and unsanitary cell.
At McCarthy's first appearance before a judge, her public defender reiterated that McCarthy was not Rozak, which an assistant U.S. attorney conceded was possible. In light of the uncertainty, the judge released McCarthy pending an identity hearing, which proved unnecessary after fingerprint and DNA comparisons confirmed what she had been saying all along.
As a result of that terrifying ordeal, McCarthy sold her house and moved out of Arizona, where she had been living for less than a year. According to her lawsuit, she "fears future humiliation and law-enforcement errors resulting from her blundered arrest and continued detention." She "no longer feels safe and comfortable at home," "rarely walks her dog for fear that she will again be wrongfully apprehended," and "fears that she will again be misidentified and arrested while out running errands." She has trouble sleeping and is "afraid to be by herself," even "in her own front yard."
McCarthy's anxiety is not just understandable but rational in light of the egregious carelessness that led to her arrest and imprisonment. She resembles Rozak only in very broad ways: Both are white women older than 65. But McCarthy is four years younger than Rozak. McCarthy is a U.S. citizen who was born and raised in California, while Rozak is Canadian. Rozak has lived in Canada, Oklahoma, South Carolina, and Texas, places where McCarthy had never resided at the time of her arrest.
McCarthy has blue eyes, while Rozak's eyes are green. The warrant for Rozak did not describe any "scars, tattoos, or distinguishing marks." McCarthy has a hysterectomy scar across her abdomen and a unique tattoo on her right shoulder that she designed herself.
McCarthy's social security number, issued by the U.S. government, is completely different from Rozak's social security number, which was issued by the Canadian government. According to McCarthy's lawsuit, "not a single digit matches." The two women's signatures and handwriting do not match. And of course, as the feds eventually discovered when they bothered to check, McCarthy and Rozak have different fingerprints and different DNA.
Despite all the evidence to the contrary, the U.S. marshals who arrested and detained McCarthy were sure she was Rozak. How is that possible? McCarthy discovered a clue while sitting in the car that took her to the U.S. Marshals Office in Phoenix: She "saw what she later learned was the warrant for Rozak's arrest, along with an 8.5″ x 11″ paper filled nearly to the margins with [McCarthy's] Facebook profile picture."
The picture itself did not support the hypothesis that McCarthy was Rozak, especially given the difference in eye color. The most recent photo of Rozak that the marshals had was 25 years old. According to the complaint, "a person comparing a picture of [McCarthy's] face to a 25-year-old picture of [Rozak] would not reasonably identify [McCarthy] as Rozak." But the Facebook page included McCarthy's maiden name, which happened to resemble one of Rozak's many aliases.
According to government records, one of the names that Rozak went by was Penny Leigh Burns. McCarthy was born Penny Lynn Burns, although she went by that name for just the first 17 years of her life, until her first marriage.
Avelar, McCarthy's lawyer, found that "at least 165,000 people in the United States have the last name Burns," while possibly hundreds "have the name Penny Burns." Yet this seems to have been the only basis, aside from race, sex, and approximate age, for concluding that McCarthy was Rozak.
McCarthy had plenty of evidence to contradict that conclusion, including her driver's license from Colorado, where she had lived before Arizona. That license complied with the Real ID Act, which requires a confirmed social security number, verification that the driver is a U.S. citizen or legal resident, and documentation of the driver's full name, birth date, and residential address. McCarthy also had "government-issued identification dating back decades," including old driver's licenses, a birth certificate, and a social security card. "Family photos dating back decades" likewise "would have proven that [McCarthy] was not Rozak and had never looked like Rozak."
The marshals were not interested in any of that. When they confronted McCarthy, they stopped her from going back to her house, even to lock the door or attend to her frantically barking dog. They did not allow her to call anyone who might have confirmed her identity. "Don't you want to confirm who I am?" she asked. The marshals did not. And according to the lawsuit, McCarthy "was never informed of her rights or allowed to call family, an attorney, or her boss."
At her house, in the car, at the U.S. Marshals Office, and at a federal detention facility in Florence, Arizona, McCarthy steadfastly rejected the identity that the marshals had thrust upon her. When her jailers called out for Carole Rozak, which happened a couple of times, she initially did not respond, because that is not her name and she did not want to implicitly concede that it was.
After McCarthy was fingerprinted, a marshal claimed her prints matched Rozak's, which was not true. As the complaint notes, "fingerprint comparisons—especially those performed quickly—are often not reliable." The same marshal also claimed he had gotten a "hit" on McCarthy's tattoo, implying that Rozak had the same tattoo, which also was not true.
According to the lawsuit, "a young female officer who was booking Penny remarked something along the lines of, 'Someone's going to get into a lot of trouble for this, aren't they?'" So far, that also has proven to be inaccurate.
After the government officially dropped the case against McCarthy on April 8, 2024, the U.S. Marshals Service (USMS) issued a statement saying it had "received confirmation from fingerprint analysis that Ms. Penny McCarthy is not the fugitive Carole Anne Rozak, wanted for an outstanding parole violation warrant in Oklahoma." The USMS said it was conducting "a thorough review" of the circumstances that had led to the erroneous identification. But according to the lawsuit, "whatever review the U.S. Marshals Service has conducted has produced no meaningful disciplinary actions or policy changes, or other corrective action."
To the contrary, the USMS said a "preliminary review" found that "USMS officials followed proper procedures, in good-faith reliance on the outstanding warrant." It added that it would "continue its evaluation of the investigation" and that it "regrets any inconvenience caused by the mistaken identification of Ms. McCarthy."
Last November, House Judiciary Committee Chairman Jim Jordan (R–Ohio) and Rep. Andy Biggs (R–Ariz.), chairman of the Subcommittee on Crime and Federal Government Surveillance, asked Michael Horowitz, the Justice Department's inspector general, to investigate what happened to McCarthy and report his findings to the committee. "From publicly available information, it appears that the USMS violated Ms. McCarthy's constitutional rights during the arrest," Jordan and Biggs said in their letter to Horowitz. "We are very concerned at both the USMS's carelessness and the excessive force during this encounter. The USMS's lack of regard for Ms. McCarthy's due process rights is very troubling, and oversight is necessary to ensure similar abuses do not happen in the future."
Biggs added that "what happened to Mrs. McCarthy is something that really shouldn't happen to anybody." Unsurprisingly, McCarthy agrees. "I'm still afraid that one day I will be pulled over and again mistaken for a criminal," she says. "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."
McCarthy's lawsuit alleges that the six marshals who arrested her either deliberately or recklessly disregarded the evidence that she was not Rozak. The defendants also include the marshal who dishonestly or erroneously claimed McCarthy's tattoo and fingerprints matched Rozak's, plus "a female who identified herself as a supervisor."
The latter marshal, who conducted one of the strip searches, persisted in detaining McCarthy even after speaking on the phone to her sister, who "explained that there must have been a mistake in arresting Penny, because Penny had never been in trouble with the law and would not do anything that would get her arrested." The lawsuit describes two more defendants: unnamed "employees or agents of the United States Marshals Service or another agency of the United States who misidentified [McCarthy] as Carole Rozak, using Facebook or other means, and whose acts or omissions contributed to Penny's initial detention at gunpoint, arrest, and continued detention."
The defendants "failed to run basic checks on [McCarthy's] identity and disregarded plain evidence that [she] was not Carole Rozak," the lawsuit says. "They lacked probable cause to believe she was Rozak or had otherwise committed a crime."
McCarthy's claims include assault, battery, trespass, false imprisonment, negligence, malicious prosecution, and Fourth Amendment violations. Two of the counts rely on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 decision in which the Supreme Court said federal employees can be sued for violating the Fourth Amendment. Echoing that case, the defendants in McCarthy's lawsuit include "Six Unknown Named Agents of the United States Marshals Service."
As Reason's Billy Binion notes, subsequent Supreme Court decisions make it doubtful whether Bivens claims are viable in practice. But McCarthy is also seeking compensation under the Federal Tort Claims Act (FTCA), which allows people to sue the federal government for torts committed by its employees within the scope of their employment. And six counts in McCarthy's lawsuit involve state tort claims that Avelar argues she should be allowed to pursue against individual defendants notwithstanding the limitations imposed by the Federal Employees Liability Reform and Tort Compensation Act, a.k.a. the Westfall Act.
The Westfall Act generally makes the FTCA the "exclusive" remedy for common law torts committed by federal employees, but it makes an exception for constitutional violations. Avelar says that exception should cover McCarthy's claims. Alternatively, he argues, "the Westfall Act is unconstitutional as applied to her, and whatever barrier the Act poses to her state-law counts is invalid and ineffective."
By whichever route, McCarthy "is entitled to judgment in her favor," the lawsuit says. "A central promise of our justice system is that people like Penny McCarthy are entitled to be made whole when government agents fecklessly strip them of their liberty, security, clothing, and dignity."
