Penny McCarthy’s life changed in less than two minutes on March 5, 2024.
The Phoenix grandmother was outside doing yardwork when a team of U.S. marshals arrived in unmarked vehicles and jumped out with weapons drawn.
McCarthy had done nothing illegal or suspicious. But the marshals accused her of being Carole Anne Rozak, a fugitive wanted for a 25-year-old parole violation for a nonviolent crime.
McCarthy had no connection to Rozak, but the marshals refused to listen or check her ID.
“Turn away or you’re going to get hit,” one marshal screams on bodycam video.
The next thing McCarthy knew, she was shackled and handcuffed in the back of a van. She feared the worst when the vehicle stopped behind a nearby grocery store.
“My first thought was: ‘I have just been compliant in my own kidnapping. I am going to die,’” she said.
After changing where they were seated, the marshals proceeded to a federal courthouse. The next 24 hours were tense. Officers collected a DNA sample from McCarthy, snapped her mugshot, took her fingerprints and strip-searched her. Then they took her by bus more than one hour away to a federal detention facility in Florence.
Officers strip-searched her a second time and locked her overnight in a cold cell without a blanket. The next morning, they strip-searched her again and took her back to the courthouse. The whole time, they called her “Rozak.”
A judge granted unsupervised release when McCarthy appeared, and dismissed the criminal case a few weeks later. But the damage was done.
McCarthy was left traumatized and disillusioned. “I raised five children who respect the law,” she said. “And now I feel stupid for doing that.”
Rather than go away quietly, McCarthy filed an administrative claim with the U.S. Marshals Service. She hoped the agency would do the right thing and make amends. But the response was silence.
Rep. Jim Jordan (R-Ohio) and Rep. Andy Biggs (R-Ariz.) followed up in November 2024, asking the Office of Inspector General to gather facts and hold the responsible parties accountable. This investigation remains open.
McCarthy appreciates the intervention. But she wants a ruling for herself and future victims of government abuse, so she sued in the federal District Court in Arizona on June 9. My public interest law firm, the Institute for Justice, represents her.
Getting to trial will be difficult. Decades of court decisions have put public agencies and their employees largely out of reach of civil liability. Federal officers are especially untouchable.
McCarthy will try anyway. If she can get to the merits of her case, showing wrongful detention should be easy. The marshals apparently targeted McCarthy based on the mere fact that Rozak might have used parts of McCarthy’s maiden name as an alias at some point, and both women are white females in their 60s or 70s.
Many people could fit this description. That is simply not enough reason to point rifles at a woman and haul her away — especially without talking to her or confirming her identity by, say, checking any of her government-issued documents.
A reasonable person would hesitate, yet such cases of mistaken identity are common. Jennifer Heath Box spent three days in a Florida jail because parts of her name matched the subject of an arrest warrant. Meanwhile, multiple innocent families have had their homes raided because SWAT teams conducted shoddy investigations or failed to double-check addresses.
A recent Supreme Court decision could help. Atlanta resident Trina Martin and her family sued the FBI after a botched wrong-location raid at her home in 2017. Lower courts dismissed the lawsuit without trial, but the new ruling will allow the case to proceed after eight years of legal wrangling.
McCarthy’s journey is just starting, but she has vowed to fight. “I am never going to keep quiet through this,” she said. “The whole world is going to know who was after me.”
Americans are supposed to be able to sue the government for constitutional violations — otherwise, the Bill of Rights would be a mere list of empty promises. Judges should take note: A right without a remedy is just a suggestion.
Paul Avelar is a senior attorney at the Institute for Justice in Phoenix, Arizona.
