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Epic SCOTUS Decisions

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Epic SCOTUS Decisions

To learn more about the awesome new ruling that allows for going after a tyrant government office or government officer read below 2022 ruling!!!!

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well – 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964); Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); see also Coulello v. State of California, 45 Cal.2d 57 (1955); Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the
attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, bur den, delay or violate legal rights.

Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Zamos v. Stroud

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

learn about how NOT TO violate your employers rights, after all civil servants work for the people, the tax payer. Got it DA Federal Civil Right$ $tatute$

Thompson vs Clark new-supreme-court-ruling-makes-it-easier-to-sue-police/

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines $ubject to Open Records Requests

Other Pro$ecutor Caselaw:

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City, of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer. The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. § 1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause. The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.) held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S. _______ (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6 (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

https://steeringlaw.com/police-misconduct-articles/can-you-sue-the-police-for-malicious-criminal-prosecutions/

Constitutional Tort Law and Legal Definition

Constitutional torts are violation of one’s constitutional rights by a government servant. Constitutional tort actions are brought under 42 USCS § 1983 against government employees seeking damages for the violation of federal constitutional right, particularly those arising under the Fourteenth Amendment and the Bill of Rights.

42 USCS § 1983 reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

thompson-v-clark-364-f-supp-3d-178/

thompson-v-clark-holds-fourth-amendment-claim-under-%c2%a7-1983-for-malicious-prosecution

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

cited https://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Bias – Removal of Prosecutor People v. Superior Court (Greer)

Abuse – Removal of Prosecutor People v. Superior Court (Greer)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job 
conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government
does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders,
addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the
specter of personal liability.

Spencer v. Peters

After several unsuccessful appeals, the relevant facts of which will be discussed throughout this order, Mr. Spencer's prison 
sentence was commuted to community supervision in 2004 by then Governor Locke. Dkt. 63-18. Following his release from prison.

This is a great hearing you click below you can hear the proceedings audio and discussion. This an excellent source for young hungry new attorneys! good luck in your career, work hard, good ethics, good nature, respect God in your work and doings just as you steer clear of harming attorney client privilege respect the attorney God privilege and do right by him! use your fantastic mind to work around the obstacles while still respecting God and his expectations he has for all of us. Live right, you only live once! YOLO is not a reason to go nuts, its a reason to straighten ones morals inline with the creator before your time is up. Now that is a lottery ticket you don’t want to forget buy, heaven beats anything you get here…. and you pay for it by doing good here now for God!
spencer-v-peters/

Gerardo Rodarte v. Joseph Gutierrez – arises from the arrest and pretrial detention

you can read more on this gerardo-rodarte-v-joseph-gutierrez/

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Negligent Employee Actions

read case Martin v. Thomas et al. 2022 – Opens Line for Direct Negligence Claims from Employee Actions

Excerpts taken from SCOTUS around Robin v. Hardaway

Supreme court cases from digging around Robin v. Hardaway 1790.
Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

424 F.2d 1021 US v. Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.

DA Caitlyn Harrington did this to me above she is the dumb cunt i called her

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NAFFE v. FREY It is uncontested that Naffe is domiciled in Massachusetts, Frey is domiciled in California, and the County of Los Angeles is a citizen of California for purposes of diversity jurisdiction, see Moor v. Alameda Cnty., 411 U.S. 693, 717–18, 721–22 (1973). The parties are thus “completely diverse.” See Strawbridge v. Curtiss, 7 U.S. 267, 267–68 (1806).

Norman v. Zieber, 3 Or at 202-03 US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”

“The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987), McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ”

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193 Notification of legal responsibility is “the first essential of due process of law”. See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.” Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Please feel Free to read the excellent pamphlet to help you secure your RIGHT to contracts!

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

and here is the Amendment to OUR US LAW that GRANTS YOU THESE RIGHTS

Overview of Contract Clause

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.” Court will assign to common-law terms their common-law meaning unless legislature directs otherwise.

People v. Young (1983) 340 N.W.2d 805,418 Mich. 1. Common law, by constitution, is law of state.

Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

The common law is in force in Michigan, except so far as it is repugnant to, or inconsistent with, the Constitution or statutes of the state. Stout v. Keyes (1845) 2 Doug. 184, 43 Am. Dec. 465.

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins ,118 U.S. 356 (1886).

“He is not to substitute even his juster will for theirs; otherwise it would not be the ‘common will’ which prevails, and to that extent the people would not govern.” See: Speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C. May 11,1919, entitled, “Is there a Common Will?”

“… The Congress cannot revoke the Sovereign power of the people to override itself as thus declared.” See: Perry v. United States , 294 U.S. 330, 353 (1935).

“In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins ,118 U.S. 356, 370 (1886).

“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden, 27 U.S. 1

No legislature can bargain away the public health or the public morals. The people themselves cannot do it. much less their servants. See: New Orleans Gas Co v. Louisiana Light Co ,115 U.S. 650 (1885).

People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation: and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Diet. (1870). The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

What is a constitution? It is the form of goverState v. Suttonnment, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government: yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves: that the men acting by virtue of delegated powers may do. not only what then- powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him hi their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio. 392 U.S. 39 (1967).

“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987

Sovereignty itself is. of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails., as being the essence of slavery itself.

(Yick Wo vs. Hopkins, U.S. 356 (1886). “…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316,404,405; Yick Yo v. Hopkins, 118 U.S. 356, 370.” The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.” City of Dallas v Mitchell, 245 S.W. 944

Supreme Court Justice Bandeis eloquently affirmed his condemnation of abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared: “Decency, security, and liberty alike demand that Government officials shall be subjected to the same rules of conduct that are commands to the Citizen. In a government of laws, existence of the government will be imperiled if it fails to obsereve the laws scruplously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.” To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcement student, practitioner, supervisor, and administrator ”

State v. Manuel, North Carolina, Vol. 20, Page 121 (1838) The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State”. “The People of a State are entitled to all rights which formerly belonged to the King by his prerogative.”

“In the United States the People are sovereign and the government cannot sever its relationship to the People by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967).

“The People of a State are entitled to all rights which formerly belonged to thePiper v. PearsonKing by his prerogative.” Lansing v. Smith, 4 Wendell 9, 20 (1829)

In Europe, the executive is synonymous with the sovereign power of a state…where it is too commonly acquired by force or fraud or both…In America, however the case is widely different. Our government is founded upon Compact. Sovereignty was, and is, in the People. Glass v. The Sloop Betsy, 3 Dall 6.(1794)

It is a Maxim {an established principle} of the Common Law that when an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when a Statute is general, and any prerogative Right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound. The People vs. Herkimer, 15 Am. Dec. 379, 4 Cowen 345 (N.Y. 1825).

Chisholm v. Georgia, Dallas Supreme Court Reports, Vol. 2, Pages 471, 472 (1793) “It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects… and have none to govern but themselves…”

Ex parte – Frank Knowles, California Reports, Vol. 5, Page 302 (1855) “A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the States, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the Constitution, which must be deduced from its various other provisions.”

Manchester v. Boston, Massachusetts Reports, Vol. 16, Page 235 (1819) “The term, citizens of the United States, must be understood to intend those who were citizens of a state, as such, after the Union had commenced, and the several states had assumed their sovereignties. Before this period there was no citizens of the United States…”

Butler v. Farnsworth, Federal Cases, Vol. 4, Page 902 (1821) “A citizen of one state is to be considered as a citizen of every other state in the union.”

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

[Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit, 686F.2d 616 (1882)“… there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.”

Income taxes Gregory v. Helverging, 293 U.S. 465, 1935 “The legal Right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted” 1895: In Pollock vs Farmers’ Loan & Trust Co, the Supreme Court rules that general income taxes are unconstitutional because they are unapportioned direct taxes. To this day, the ruling has not been overturned. January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional; The 16th Amendment applies only to gains and profits from commercial and investment activities: The 16th Amendment only applies to excises taxes; The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment. …the [16th] Amendment contains nothing repudiating or challenging the ruling in the Pollock Case that the word direct had a broader significance since it embraced also taxes levied directly on personal property because of its ownership, and therefore the Amendment at least impliedly makes such wider significance a part of the Constitution — a condition which clearly demonstrates that the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended, that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself and thereby to take an income tax out of the class of excises, duties and imposts and place it in the class of direct taxes… Indeed in the light of the history which we have given and of the decision in the Pollock Case and the ground upon which the ruling in that case was based, there is no escape from the Conclusion that the Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided, that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment… 1939: Congress passes the Public Salary tax, taxing the wages of federal employees.

1940: Congress passes the Buck Act authorizing the federal government to tax federal workers living in the States. 1942, Congress passes the Victory Tax under Constitutional authority to support the WWII effort. President Roosevelt proposes a voluntary tax withholding program allowing workers across the nation to pay the tax in installments. The program is a success and the number of tax payers increases from 3 percent to 62 percent of the U.S. population. 1944: The Victory Tax and Voluntary Withholding laws are repealed as required by the U.S. Constitution, however, the federal government continues to collect the tax claiming it’s authority under the 1913 income tax and the 16th Amendment. Erie Railroad v. Tompkins, 1938 Supreme Court of the United States had decided on the basis of Commercial (Negotiable Instruments) Law: that Tompkins was not under any contract with the Erie Railroad, and therefore he had no standing to sue the company. Under the Common Law, he was damaged and he would have had the right to sue. Hence, all courts since 1938 are operating in an Admiralty Jurisdiction and not Common Law courts because lawful money (silver or gold coin) does not exist. Courts of Admiralty only has jurisdiction over maritime contracts on the high seas ad navigable water ways. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if ‘each provision requires proof of an additional fact which the other does not.’ Id. at 304.

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894) Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) “The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1 “All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the ‘same elements test’ set forth in Blockburger when it over-ruled the ‘same conduct’ test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the ‘same elements’ test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911)

(early precedent establishing that in a subsequent prosecution ‘[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other’).

ENGLISH TORT LAW 61. Ashby v. White, (1703) 92 Eng. Rep. 126 (K.B.); BLACKSTONE, supra note 59, at 23. 62. 5 U.S. (1 Cranch) 137, 163-66 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded . . . . [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”).

ENGLISH TORT LAW Ashby v. White, (1703) 92 Eng. Rep. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the Commons. Sir Thomas Powys (c. 1649-1719) defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts. Judgment Holt CJ was dissenting in his judgment in the High Court, but this was upheld by the House of Lords. He said at pp 273-4: “ “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal… And I am of the opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action on the case is not maintainable, because
there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights. To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

[U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] The United States District Court has only such jurisdiction as Congress confers. [Eastern Metals Corp. v. Martin] [191 F.Supp 245 (D.C.N.Y. 1960)]

City of Canton v. Harris, 498 U.S. 378 (1989) “failure to train” train its officers adequately with respect to implementing the following Department policies:

FLYER & NEWS WEBSITE LAW

Flyers US constitutional rights, Freedom of Speech & Press

There shall be no Law passed to abridge or restrain freedom of speech or the press. Freedom of speech encompasses all manner of expression, both verbal and non-verbal

U.S. Supreme Court

Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
Marbury v. Madison Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. “In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.
State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
Sable Communications of California v. Federal Communications Commission (1989)
When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
Cohen v. California (1971) 403 U.S. 15 (1971), The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.
Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.

HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.

People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speech words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
Karlan v. City of Cincinnati (1974) Police officers cannot use “fighting words,” as an excuse to abuse because police officers are trained to exercise a higher degree of constraint than the average citizen.
Reno v. American Civil Liberties Union (1997)
speech on the Internet is entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
Bible Believers v. Wayne County (6th Cir.) (2015)
The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
Albert Krantz v. City of Fort Smith
A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
Lucas v. Arkansas (1974)416 U.S. 919 (1974)
The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
Lewis v. City of New Orleans (1974) The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
City of Houston v. Hill (1987) In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
STATE of Nebraska, appellee, v. Darren J. DRAHOTA – Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
STATE of Iowa, Appellee, v. William James FRATZKE, Appellant – William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
State of Wisconsin v. Thomas G. Smith – Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “Because these letters were directed at an elected political official and primarily discuss issues of public concern — Michael’s qualifications for and performance as a selectman — the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.” And this was true even though the letters were sent to him at home. the case law link was above, but you can actually read the newspaper article of his exact doings here
People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE, v. DAVID THOMAS POWERS determined although they may be a little annoying they were NOT ILLEGAL!
Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
such as condemnation of political officials (even left expressly for that official).
Vermont’s Top Court Weighs: Are KKK Fliers 1st Amendment Protected Speech? see also Vermont v. Schenk 2015

Watch this different display of US RIGHTS in a JERSEY OFFICIAL MEETING by ANGRY CONSTITUTIONALIST https://www.youtube.com/watch?v=0wUH7GJjlYQ

It doesn’t look like our constitutional right of freedom of the press is going away any time soon.

FREEDOM OF THE PRESS DEFINITION

The freedom of communication and expression through media and/or published material. Flyers are communication and expression through published media material.

HANDBILL DEFINITION

A single page leaflet advertising events, services or other activities. Flyers are typically used by individuals or business’ to promote their product or services.

They are a form of mass marketing or small scale community communication. Information News Flyers are a legal form of community communication handbills by definition. A Website is a Digital Handbill of leaflet, it is the digital form of handing them out, how else could one get a peacefully assembly organized in todays society 2022

LITTER DEFINITION

Litter consists of waste products
Information News Flyers (same as LA Times or LA Weekly or other Leaflet Information/News) are not waste products or litter by legal definition and to claim or mislead holds no water to the law.
Flyers are not trash by legal definition and to mislead and claim they are would hold no water to the law.

TRASH DEFINITION

Unwanted or undesired waste material.

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly. “The press was to serve the governed, not the governors.” —U.S. Supreme Court Justice Hugo Black in New York Times Co. v. United States (1971)

excerpts taken from NO Law requires you to record / pledge your private automobile

“Men are endowed by their Creator with certain unalienable rights, -‘life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit: second, that if he devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.” Budd v. People of State of New York, 143 U.S. 517 (1892).

There should be no arbitrary deprivation of life or liberty, or arbitrary spoilation of property. (Police power, Due Process) Barber v. Connolly, 113 U.S. 27, 31; Yick Yo v. Hopkins, 118 U.S. 356.

To Wit:

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.” In Re Newman (1858), 9 C. 502.

Constitutional Law § 101 – right to travel – 5. The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. 6. Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another is a basic right

Under the US Constitution.

Constitutional Law § 101 – law chilling assertion of rights – 7. If a law has no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional. Shapiro v Thompson, 394 US 618, 22 L Ed 2d 600, 89 S Ct 1322.

So with all of that in mind, cite/deliver the cases above and

you have given the agency, etc. knowledge!

Under USC Title 42 §1986. Action for neglect to prevent …, it states: Every person who, having knowledge that any wrongs conspired or to be done… and having power to prevent or aid in preventing … Neglects or refuses so to do … shall be liable to the party injured… and; The means of “knowledge”, especially where it consists of public record is deemed in law to be “knowledge of the facts“. As the means of “knowledge” if it appears that the individual had notice or information of circumstances which would put him on inquiry, which, if followed, would lead to “knowledge”, or that the facts were presumptively within his knowledge, he will have deemed to have had actual knowledge of the facts and may be subsequently liable for any damage or injury. You, therefore, have been given “knowledge of the facts” as it pertains to this conspiracy to commit a fraud against me.

I state now that I will NOT waive any fundamental Rights as:
“waivers of fundamental Rights must be knowing, intentional, and voluntary acts, done with sufficient awareness of the relevant circumstances and likely consequences. U.S. v. Brady, 397 U.S. 742 at 748 (1970); U.S.v. O’Dell, 160 F.2d 304 (6th Cir. 1947)”.

And that the agency committed fraud, deceit, coercion, willful intent to injure another, malicious acts, RICO activity and conspired by; Unconscionable “contract” – “One which no sensible man not under delusion, or duress, or in distress would make, and such as no honest and fair man would accept.”; Franklin Fire Ins. Co. v. Noll, 115 Ind. App. 289, 58 N.E.2d 947, 949, 950. and; “Party cannot be bound by contract that he has not made or authorized.” Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

The State cannot diminish rights of the people. Hurtado v. California, 110 U.S. 516.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.” Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system; but it is commonly used as the designation of a court of special, limited, or statutory jurisdiction, whose record must show the existence and attaching of jurisdiction in any given case, in order to give presumptive validity to its judgment. In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.” Nestor v. Hershey, 425 F2d 504.

The binding shackles of Government is the Constitution, to wit:

If the state were to be given the power to destroy rights through taxation, then the framers of our constitutions wrote said documents in vain. A republic is not an easy form of government to live under, and when the responsibility of citizenship is evaded, democracy decays and authoritarianism takes over. Earl Warren, “A Republic, If You Can Keep It”, p 13.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind. 336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.” Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee. Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442. “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power. Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property. This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.” Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives. Not one of them has a right to ignore or disregard these mandates...” John F. Jelko Co. vs. Emery, 193 Wisc. 311; 214 N.W. 369, 53 A.L.R., 463; Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

The People are the Sovereign!

People are supreme, not the state. Waring vs. the Mayor of Savannah, 60 Georgia at 93.

The people of the State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people. State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Private Corporate State / Municipality Policy Enforcement Officer
a.k.a Police Officer Duties and limitations of power

“Nothing is gained in the argument by calling it ‘police power.’” Henderson v. City of New York, 92 U.S. 259, 2771 (1875); Nebbia v. New York, 291 U.S. 501 (1934).

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the constitution. Wright v. Georgia, 373 U.S. 284, 291-2.

That an officer or employee of a state or one of its subdivisions is deemed to be acting under “color of law” as to those deprivations of right committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Page, 1961, 365 U.S. 167. (Civil law)

Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under “color of law.” Stringer v. Dilger, 1963, Ca. 10 Colo., 313 F.2d 536. (Civil law)

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” Bacahanan vs. Wanley, 245 US 60; Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613.

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.

Call Recording In California

Improperly filed no facts and filed as felony it can only be a misdemeanor

objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774–776; Vera v. O’Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;. Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.

Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488 (citation omitted). A person’s subjective belief that the call should not be recorded or monitored is not the test.

Courts that have analyzed the issue of whether a communication is confidential under § 632 have considered the totality of the surrounding circumstances to determine whether the parties had an objectively reasonable expectation that the conversation would not be recorded or overheard. Kight, supra, 200 Cal.App.4th at 1397.

Factors relevant to determining whether an objectively reasonable expectation of privacy exists (that is, that no one is secretly recording or listening to a phone conversation) include, but are not limited to:

who initiated the call,
the purpose and duration of the call,
the customer’s prior relationships, experiences and communications,
whether confidential information was conveyed, and, or course
whether an admonition/disclosure/warning was given during the call at the outset, or otherwise. See Kight, supra, 200 Cal.App.4th at 1397 (citing Kearney); see also Flanagan, supra, 27 Cal.4th at 776–77 (remanding for consideration whether son had objectively reasonable expectation that his private telephone conversations with his father were not being recorded by the father’s wife); Nissan Motor Co., Ltd. v. Nissan Computer Corp. (C.D.Cal.2002) 180 F.Supp.2d 1089, 1093–94 (conversations between counsel concerning litigation related matters were deemed confidential communications within the meaning of Section 632); People v. Pedersen (1978) 86 Cal.App.3d 987, 994 (“The nature of the meeting and the manner in which it was carried out are such that the court could reasonably conclude that it was no different than other business meetings of the parties that were not”).

The supposed victim did not have a reasonable expectation that his or her call would not be overheard or recorded. Kearney, supra, 39 Cal.4th at 117-118.

As a corollary to this element, obtaining consent to record or monitor is its own defense, but, of course, notification and consent also undermine the expectation of privacy element. See Kearney, supra, 39 Cal.4th at 100, 118.

plaintiff probably needs not to have suffered appreciable, compensable, or even nominal “damage” to assert a viable claim. But compare FAA v. Cooper (2012) ___ U.S.____, 132 S.Ct. 144

“The statute of limitations in which to commence an action for invasion of privacy is one year.” Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 880. The statute of limitations on a cause of action under Penal Code § 632 commences when the plaintiff knew, or should have known, of the defendant’s unlawful acts. Montalti v. Catanzariti (1987) 191 Cal.App.3d 96, 97-98.

Where a caller is made aware that the call or conversation was, or is, being monitored or recorded, there is no violation of § 632 because there is no objectively reasonable expectation of privacy. Id. at 100, 118; Weiner, supra, 2012 WL 3632025 at *3, fn. 2.Moreover, by continuing with the conversation after being so warned, consent is given by implication. See Kearney, supra, 39 Cal.4th at 100, 118.

In any event, where the plaintiff knows the call is being recorded and goes forward without objection and participates anyway, consent should be implied. See Kearney, supra, 39 Cal.4th at 100, 118.

Under restricted circumstances, even an illegal recording can be used in a court of law. While it could not be used to present affirmative evidence in the case or to prove a point, it can be used to prevent perjury of a witness. In Frio v Superior Court (1988) 203 Cal.App.3e 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code Section 632 as a shield for perjury.

the limits on use of that evidence. In People v Crow (1994), the court stated, “Evidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence..”

Prior decisions in Sanders v. American Broadcasting Cos. (1999) 20 Cal.4th 907 explain that “while privacy expectations may diminish significantly in the workplace, in the workplace, they are not lacking altogether.” Sanders v. American Broadcasting Cos.

My workplace cameras record 24/7 in safe workplace areas

https://goodshepherdmedia.net/a-brief-overview-of-call-recording-in-california/

learn more

Right to Truth – Victims’ Bill of Rights – Prop 8 1982

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.” Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights. “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.” (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In Land v. Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.” Brady v. Roosevelt, 317 US 575 (1943); FHA v. Burr, 309 US 242 (1940); Kiefer v. RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared, that “…where any state proceeds against a private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.” Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662; Bothke v. Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved agency — but only in a “ministerial” and not a “discretionary capacity…” Thompson v. Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction. Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160; Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief. “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622

“Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country,
it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

JURISDICTION NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

Stump v. Sparkman, id., 435 U.S. 349. Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.

Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) “Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”

Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.

Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”

Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984). “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his cannot protect us. All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey. 1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

– Article 1 of the Bill of Rights – guarantees freedom of religion-
Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1. Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

for true knowledge of how sophisticated the legal minds of our forefathers were read how intricate their minds worked absent of all modern inventions including modern internet free schooling.

California Civil Code Section 52.1 California Civil Code Section 52.1 – The Bane Act

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties. California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here california-civil-code-section-52-1/

Civil Code Section 52.1, the Tom Bane Civil Rights Act, authorizes suit against anyone who by threats, intimidation, or coercion interferes with the exercise or enjoyment of rights secured by the state or federal Constitutions or laws without regard to whether the victim is a member of a protected class. (Civ. Code § 52.1.)

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

to read the full statute click link below
cited

42-us-code-1983-civil-action-for-deprivation-of-rights/

Recoverable Damages Under 42 U.S.C. Section 1983

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of rights under color of law

18 U.S. Code § 241 – Conspiracy against rights

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof

How to file a complaint of Police or other Government Official Misconduct Click Here

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights. Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

To learn more about SB 2 Police Decertification Process – Changes to Government Code – senate-bill-2-police-decertification-process/
SB 2, Expanding Civil Liability Exposure – sb-2-expanding-civil-liability-exposure/

Pro Se Case Law

Bruce Baldinger v. Antonio Ferri, No. 12-4529 (3d Cir. 2013)

Haines v. Kerner, 404 U.S. 520 (1971)
Plaintiff-inmate filed pro se complaint against prison seeking compensation for damages sustained while placed in solitary confinement. In finding plaintiff’s complaint legally sufficient, Supreme Court found that pro se pleadings should be held to “less stringent standards” than those drafted by attorneys.

Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member.

Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
Plaintiff who consulted defendants’ law firms regarding workers’ compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff’s representation was limited only to filing workers’ compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim.

Johnson v. Board of County Comm’rs, 868 F.Supp. 1226 (D. Colo. 1994)
Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff’s official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in litigants’ misrepresentation of pro se status in violation of ethical rules.

Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to ghostwrite pleadings for pro se plaintiffs abused additional leeway given to pro se filings.

U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney’s duty of candor to the court, interferes with the court’s ability to supervise the litigation, and misrepresents the litigant’s right to more liberal construction as a pro se litigant.

Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order.

Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant’s pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules.

Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of “ghost writing,” which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of “unbundled” or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.

Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record.

Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.

Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
In a lawsuit, plaintiff’s counsel of record requested that another firm make a “special appearance” at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true “special appearance”.

Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct.

Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney’s assistance to the court upon filing.

Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
Attorney, with matrimonial client’s consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.

Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.App.)
Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.

Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official “attorney of record”. The court found that it was not bound by agreements made between client and attorney and that a court may “require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct”. The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal.

Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not “abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant”.

Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina.

Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.

Elmore v. McCammon (1986) 640 F. Supp. 905
“… the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.”

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
Pro se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment.”

Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals
The plaintiff’s civil rights pleading was 150 pages and described by a federal judge as “inept”. Nevertheless, it was held “Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff’s Pleadings without regard to technicalities.”

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
“Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices… the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law.”

Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.”

Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
“The practice of law cannot be licensed by any state/State.”

Sims v. Aherns, 271 SW 720 (1925)
“The practice of law is an occupation of common right.”

CITED http://caught.net/prose/proserulings.htm

Pro Se Forms and Forms Information (Tort Claim Forms here as well)

Introducing Digital Evidence in California State Courts

Click Here to Read Supreme Court Rulings and Laws Regarding the Introduction of Digital Evidence in California

Mandated Reporting Laws

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up

https://goodshepherdmedia.net/wp-content/uploads/2022/11/laws-EVERYONE-should-know-especially-cops.mp4

https://www.youtube.com/@DonutOperator

California Constitution
Article VI – Judicial
Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

(Sec. 13 added Nov. 8, 1966, by Prop. 1-a. Res.Ch. 139, 1966 1st Ex. Sess.)

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police & Civilians real Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

Texas v. Johnson – Offensive? – 1st Amendment

Snyder v. Phelps (2011) – Offensive? – 1st Amendment

The Consumer Review Fairness Act – What It Is & Why It Matters

Learn More About True Threats Here below….

Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Speech Is Not Violence and Violence Is Not Speech

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Selected Issues in Malicious Prosecution Cases

Mi$Conduct – Judicial Mi$Conduct Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC – Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Everything you need to know about a Defamation Case

How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Retrieving Evidence / Internal Investigation Case

Pitchess Motion & the Public Inspection of Police Records

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1 – The Bane ActInterference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Why Make a Federal Case Out of It?

The Truth News — Tue, 05 Nov 2024 09:18:19 +0000

Why Make a Federal Case Out of It?

U.S. Const. art. III, § 2; 28 U.S.C. §§ 1331-1332, 1367.
- U.S. Constitution Article III, Section 2, and 28 U.S.C. §§ 1331, 1332, and 1367 relate to the jurisdiction of federal courts in the United States:
  - U.S. Constitution Article III, Section 2 Grants the judicial power to the federal courts to hear cases arising under the Constitution, laws, and treaties of the United States. It also grants the Supreme Court original jurisdiction over cases involving ambassadors, public ministers, and consuls, and cases where a state is a party.
  - 28 U.S.C. § 1331 Grants federal district courts original jurisdiction over civil actions that arise under the Constitution, laws, or treaties of the United States. The well-pleaded complaint rule determines if a case “arises under” federal law.
  - 28 U.S.C. § 1332 Grants federal courts jurisdiction over civil actions between citizens of different states, or between a citizen of a state and a subject of a foreign state, if the amount in controversy exceeds $75,000. This is known as diversity jurisdiction.
  - 28 U.S.C. § 1367 Grants federal district courts supplemental jurisdiction over claims that are related to claims in an action over which the court already has jurisdiction. It also tolls the period of limitations for claims while they are pending and for 30 days after they are dismissed.
see U.S. Const. amend. IV, § 1; International Show Co. V. Washington, 326 U.S. 310, 316 (1945)
- Personal jurisdiction is constitutional when a defendant has minimum contacts with the state where a lawsuit is brought such that notions of fair play and substantial justice would not be offended.
see 28 U.S.C. § 1391 Venue generally
1. Applicability of Section.—Except as otherwise provided by law—
  
  (1)this section shall govern the venue of all civil actions brought in district courts of the United States; and
  
  (2)the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.
2. Venue in General.—A civil action may be brought in—
  
  (1)a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
  
  (2)a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
  
  (3)if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
3. Residency.—For all venue purposes—
  
  (1)a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled;
  
  (2)an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and
  
  (3)a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.\
4. Residency of Corporations in States With Multiple Districts.— For purposes of venue under this chapter, in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.\
5. Actions Where Defendant Is Officer or Employee of the United States.—
  
  (1)In general.— A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.
  
  (2)Service.— The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.
6. Civil Actions Against a Foreign State.—A civil action against a foreign state as defined in section 1603(a) of this title may be brought—
  
  (1)in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;
  
  (2)in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;
  
  (3)in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or
  
  (4)in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.
7. Multiparty, Multiforum Litigation.— A civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.
  
  (June 25, 1948, ch. 646, 62 Stat. 935; Pub. L. 87–748, § 2, Oct. 5, 1962, 76 Stat. 744; Pub. L. 88–234, Dec. 23, 1963, 77 Stat. 473; Pub. L. 89–714, §§ 1, 2, Nov. 2, 1966, 80 Stat. 1111; Pub. L. 94–574, § 3, Oct. 21, 1976, 90 Stat. 2721; Pub. L. 94–583, § 5, Oct. 21, 1976, 90 Stat. 2897; Pub. L. 100–702, title X, § 1013(a), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 101–650, title III, § 311, Dec. 1, 1990, 104 Stat. 5114; Pub. L. 102–198, § 3, Dec. 9, 1991, 105 Stat. 1623; Pub. L. 102–572, title V, § 504, Oct. 29, 1992, 106 Stat. 4513; Pub. L. 104–34, § 1, Oct. 3, 1995, 109 Stat. 293; Pub. L. 107–273, div. C, title I, § 11020(b)(2), Nov. 2, 2002, 116 Stat. 1827; Pub. L. 112–63, title II, § 202, Dec. 7, 2011, 125 Stat. 763.)

Civil Resource Manual

45. Removal

When suit has been brought against the government, or an officer or agency thereof, in a state or local court, an important threshold question is whether the action should be removed to the United States district court. In suits brought against the United States under 28 U.S.C. § 2410 (see USAM 4-4.540), removal will be left to the discretion of the USA, absent a specific request from the Civil Division concerning whether or not to remove. In determining whether or not to remove such cases or to recommend the removal of other cases, the USA should consider:

The likelihood of a fair disposition in the state or local court
Whether federal statutes, regulation or decisional law may be challenged in the litigation
The preference for taking appeals through the federal court system particularly When an open legal issue is involved
The relative convenience of handling the case for the U.S. Attorney
Whether the party suing the United States is attempting to secure a federal forum by bringing a facially jurisdictionally invalid suit against the United States

As noted in USAM 4-2.100, the United States may not be sued in state court at all, absent express statutory consent. Formerly, removal to the federal court of such an unconsented suit did not cure the jurisdictional defect, even in a situation in which the federal court would have had jurisdiction if the action had originally been instituted there. See Minnesota v. United States, 305 U.S. 382, 388-389 (1939); Gleason v. United States, 458 F.2d 171, 174 (3d Cir. 1972). This doctrine of “derivative jurisdiction” was abolished by section 3 of the Judicial Improvements Act of 1985, codified at 28 U.S.C. § 1441(e). See Lewis v. Windsor Door Co., 926 F.2d 729, 730 n.2 (8th Cir. 1991).

In other civil suits against government officers, employees, service personnel, and agencies, and particularly in cases in which personal injury, death, a significant federal interest, or property damage is involved, care should be taken to remove to the United States district court. Most of these actions will have to be removed within the thirty days specified in 28 U.S.C. § 1446(b). However, removal of tort suits under the provisions of the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(2), may be effected any time prior to trial, as may most suits against a member of the armed forces on account of an act done under color of office or status. See 28 U.S.C. § 1442a. Garnishment actions against the government seeking child support or alimony payments pursuant to 42 U.S.C. § 659 ordinarily should be removed unless the client agency will honor the garnishment writ or order.

The statute generally authorizing removal of state court suits against federal officers for acts under color of office, see 28 U.S.C. § 1442(a)(1), does not permit removal by federal agencies. Int’l Primate Protection League v. Adm’rs of Tulane Educational Fund, 500 U.S. 72, 76 (1991) [Editor’s Note: 28 U.S.C. § 1442 was amended in 1996 to allow agencies to remove cases to federal court].

[updated September 2000] [cited in USAM 4-2.400] source

28 U.S. Code § 1446 – Procedure for removal of civil actions

Generally.—A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
Requirements; Generally.—
1. The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
2. 1. When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
  2. Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
  3. If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
3. Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
Requirements; Removal Based on Diversity of Citizenship.—
1. A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.
2. If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that—
  1. the notice of removal may assert the amount in controversy if the initial pleading seeks—
    1. nonmonetary relief; or
    2. a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and
  2. removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).
3. 1. If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an “other paper” under subsection (b)(3).
  2. If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under paragraph 1).
Notice to Adverse Parties and State Court.—Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
Counterclaim in 337 Proceeding.—With respect to any counterclaim removed to a district court pursuant to section 337(c) of the Tariff Act of 1930, the district court shall resolve such counterclaim in the same manner as an original complaint under the Federal Rules of Civil Procedure, except that the payment of a filing fee shall not be required in such cases and the counterclaim shall relate back to the date of the original complaint in the proceeding before the International Trade Commission under section 337 of that Act
 [1] Where the civil action or criminal prosecution that is removable under section 1442(a) is a proceeding in which a judicial order for testimony or documents is sought or issued or sought to be enforced, the 30-day requirement of subsection (b) of this section and paragraph (1) of section 1455(b) is satisfied if the person or entity desiring to remove the proceeding files the notice of removal not later than 30 days after receiving, through service, notice of any such proceeding.

(June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, § 83, 63 Stat. 101; Pub. L. 89–215, Sept. 29, 1965, 79 Stat. 887; Pub. L. 95–78, § 3, July 30, 1977, 91 Stat. 321; Pub. L. 100–702, title X, § 1016(b), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 102–198, § 10(a), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 103–465, title III, § 321(b)(2), Dec. 8, 1994, 108 Stat. 4946; Pub. L. 104–317, title VI, § 603, Oct. 19, 1996, 110 Stat. 3857; Pub. L. 112–51, § 2(c), Nov. 9, 2011, 125 Stat. 545; Pub. L. 112–63, title I, §§ 103(b), 104, Dec. 7, 2011, 125 Stat. 760, 762.)

The What, When, How, and Why of Removing to Federal Court Before a Defendant Is “Properly Joined and Served”

Defendants often seek to move their cases to federal court after being sued in state court for reasons such as procedural consistency, efficient docket management, and reduced liability.
“Snap removal” is a procedural play where both forum and out-of-state defendants can remove a case to federal court before any in-state, forum defendant is formally served, allowing them to assert federal question or diversity jurisdiction.
While snap removals have been controversial, four federal circuit courts of appeals have upheld the practice, emphasizing the plain meaning of the removal statute and its effectiveness in discouraging fraudulent attempts to make lawsuits removal-proof.

Defendants, including individuals and corporate entities, often want to remove their cases to federal court after being sued in state court. There are frequently manifold reasons for doing so. Federal courts can provide consistency in procedure, more efficient docket management, increased opportunities for final resolution of asserted claims through motion practice, and reduced liability in the case of adverse judgments. But the strict metes and bounds of a federal court’s subject matter jurisdiction and the statutory requirements of removal under 28 U.S.C. §§ 1441 and 1446 limit a defendant’s ability to proceed in federal court once an action has been filed in state court. Courts normally defer to a plaintiff’s choice of forum and endeavor to prevent forum shopping between state and federal systems. Moreover, federal courts are courts of limited jurisdiction—unlike state courts, which have general jurisdiction—and they have an affirmative and ongoing obligation to ensure that the cases before them are based on federal question or diversity jurisdiction. See 28 U.S.C. §§ 1331, 1332; Fed. R. Civ. P. 12(h)(3). How then can defendants desiring to have a federal court assess their defenses and potential counterclaims navigate these barriers to entry? An answer lies in the oft-debated but readily available procedural play of “snap removal.”

Federal Courts’ Limited Jurisdiction

Congress has broadly authorized federal courts to exercise subject matter jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, or “where the matter in controversy exceeds the sum or value of $75,000” and the dispute is between citizens of different states, U.S. citizens and foreign citizens, or U.S. citizens and foreign states. 28 U.S.C. § 1332(a). The existence of federal question jurisdiction is often conflated with a plaintiff’s need to prove a defendant’s obligations under federal law or a defendant’s reliance on federal law as a defense, as in the case of preemption. See, e.g., Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003). Diversity jurisdiction is often more clear-cut, but a plaintiff may attempt to preemptively defeat such jurisdiction by naming a defendant that is a citizen of the same state—i.e., a forum defendant. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); accord Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015).

Removal Generally

Under the federal removal statute, a case that implicates federal question or diversity jurisdiction is removable within 30 days after formal service of process of the initial pleading. 28 U.S.C. § 1446(b)(1). Whether an initial pleading has been properly served varies by state, but the U.S. Supreme Court has clarified that the 30-day period does not begin until the plaintiff has effectuated formal service of process. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). This is crucial, as the filing of a summons or complaint alone does not trigger the removal clock. Id. at 347–48. There must also be proper service. See id. Where a state court complaint names multiple defendants, all “properly joined and served” defendants must consent to removal unless they are fraudulently joined. 28 U.S.C. § 1446(b)(2)(A); see also Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).

There is a readily apparent logic to these limitations. Plaintiffs are afforded deference in their choice of forum as masters of their complaint. Foreign or out-of-state defendants are not forced to litigate a case in a state court with which they are unfamiliar without some avenue of reprieve. And in multi-defendant cases, one defendant cannot unilaterally change the forum without appropriate notice to codefendants.

Snap Removals

The question then is this: Where a defendant would prefer to pursue claims and defenses in federal court—for reasons real or perceived, anecdotal or empirical—how can that be effectuated once a complaint is filed in state court? If the alleged claims arise under federal law or are completely preempted, defendants can remove as usual and assert federal question jurisdiction. In addition, if complete diversity among the parties on both sides of the v does not exist, diversity removal is not possible. In the intermediate case, however, where there is not federal question jurisdiction, complete diversity does exist, and a forum defendant is the only bar to removal under section 1441(b)(2), the way to navigate a case from state to federal court has been more difficult. But the path forward is now more favorable. A close read of the removal statute provides the solution: A forum defendant does not actually exist until that defendant has been “properly joined and served.”

Recognizing this window of opportunity, fast-acting and savvy defendants have charted a path in the past two decades, which has been validated by four federal circuit courts of appeals: snap removal. With this procedural mechanism, both forum and out-of-state defendants can remove a case to federal court with arguable or no federal question jurisdiction and complete diversity among the named defendants as long as they do so before any in-state, forum defendant is formally served.

Once removed, the defendant or defendants can assert federal question jurisdiction if it exists, and can rely on diversity jurisdiction if it does not, to stay in federal court. Further, and importantly, the federal court’s decision on the propriety of removal will generally be final as a practical matter, because the denial of a motion to remand is an interlocutory order that is not usually subject to immediate appeal. See, e.g., 28 U.S.C. § 1447(d); 15A Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3914.11 (3d ed. 1992) (“One aspect of appealing orders as to removal and remand remains blessedly simple. An order denying remand is not final. . . .”); see also Estate of Bishop By & Through Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1274–75 (9th Cir. 1990); Neal v. Brown, 980 F.2d 747, 748 (D.C. Cir. 1992) (collecting cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits).

Although a path has been laid, the issue of how to leverage the window of time between the filing of a summons and complaint and service poses another barrier to entering a federal courthouse’s doors. Thankfully, the ability to monitor court dockets electronically has made it easier to traverse this final hurdle. However, it does require a keen and vigilant eye on the potential litigation landscape and an ability to file removal papers quickly in what amounts to a service race to the courthouse with plaintiffs.

Snap Decisions

Unsurprisingly, snap removals have been controversial among courts and commentators alike. Opponents criticize the practice as contrary to the spirit of diversity jurisdiction—especially when the in-state defendant is the party removing the case—and an unfair exploitation of a procedural technicality. See, e.g., Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014) (affirming Rule 41(a)(2) dismissal where plaintiff filed a state court action and provided courtesy copies to defendants—one of whom was a forum defendant—and defendants removed the action before formal service after interpreting the purpose of “properly joined and served” as an effort to prevent “gamesmanship” by plaintiffs and defendants). Critics also argue that snap removal may lead to improper conduct such as a defendant misleading a plaintiff into not formally serving a complaint or evading formal service to buy time to remove.

Proponents of the practice point to the statutory text, which explicitly conditions the forum defendant rule on “served” defendants, as well as traditional tools of statutory construction. They argue that the plain meaning of the removal statute permits snap removal. Further, there is a practical and policy argument supporting the practice: Snap removals disincentivize plaintiffs from attempting to make lawsuits removal-proof by fraudulently joining in-state defendants that they have no intention of actually serving.

To date, there is a split of authority among district courts addressing whether the practice is permissible, but four circuit courts of appeals addressing the issue have upheld the practice. The Sixth Circuit led the way in 2001, noting in a footnote that “the inclusion of an unserved resident defendant in [an] action does not defeat removal” based on diversity jurisdiction. McCall v. Scott, 239 F.3d 808, 813 n.2 (6th Cir.), amended on denial of reh’g, 250 F.3d 997 (6th Cir. 2001). Several years later, in 2018, the Third Circuit upheld snap removal after a substantive analysis in Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d. Cir. 2018). To be sure, the court described the procedure as “pre-service machinations to remove a case that [] otherwise could not [be removed.]” Id. at 154. But after addressing the issue as one of statutory interpretation, the Third Circuit held that snap removal is proper based on “the plain meaning of the statute” and the absence of “an extraordinary showing of contrary legislative intent.” Id. The Second Circuit soon after followed suit and affirmed the propriety of this procedure without hesitation, finding it “is neither absurd nor fundamentally unfair.” Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 707 (2d Cir. 2019) (“Put simply, the result here—that a home-state defendant may in limited circumstances remove actions filed in state court on the basis of diversity of citizenship—is authorized by the text of Section 1441(b)(2)[.]”). And, most recently, the Fifth Circuit has given its blessing, explaining it does not have “any doubt about the propriety of removal because . . . the text [section 1441(b)(2)] is unambiguous.” Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., 955 F.3d 482, 487 (5th Cir. 2020).

Since these decisions, district courts in several circuits have allowed allow snap removals. E.g., Kornfeind v. Kia Am., Inc., No. 23-cv-01796, 2023 WL 8456111, at *2 (C.D. Cal. Dec. 6, 2023); DMO Methuen, LLC v. FCA U.S., LLC, No. 23-cv-10724, 2023 WL 7548084, at *3 (D. Mass. Sept. 29, 2023); WFG Nat’l Title Ins. Co. v. Bay, No. 22-cv-01010, 2023 WL 6595846, at *3 n.3 (D. Or. Aug. 30, 2023), adopted, 2023 WL 6930918 (D. Or. Oct. 19, 2023).

The U.S. Supreme Court and other circuits courts of appeals have yet to weigh in on the practice.

Snapbacks?

Of note, the removal statute was amended by Congress in 2011, after snap removals had become more common, but the relevant language allowing snap removals was not altered. Congress has since contemplated taking action to change the removal statute. House Resolution 5801, styled as the Removal Jurisdiction Clarification Act of 2020, would have essentially eliminated snap removals by requiring district courts to remand (i.e., “snap back”) snap removal cases upon a plaintiff’s motion. But as its title suggests, the bill has languished for several years in the House Committee on the Judiciary (specifically the Subcommittee on Courts, Intellectual Property, and the Internet). There is no immediate indication that this legislation will ever become law.

Key Takeaways

Given all this, there are a few key takeaways. First, for defendants and their counsel who have reason to anticipate litigation and prefer to litigate in federal court, it is important to monitor state court docket activity. Second, defendants and counsel should be fluent in the service of process rules in the states where litigation is expected. Third, it is a good practice, when litigation is anticipated, to prepare snap removal templates that can be tailored and filed shortly after notice of a filed state court complaint is received. Finally, the grass is not always greener in federal court for every litigation. The pace is often faster, and state court may offer greater flexibility with procedural and evidentiary rules. In addition, the potential judge assignment in either state or federal court is a key consideration that can have a material effect on the course of a litigation. Although time is of the essence with snap removal, be sure to consider these factors as well before filing. source

Requirements for Removing a Case From State Court to Federal Court

State and federal courts have overlapping jurisdiction over many legal claims. Plaintiffs are responsible for choosing where to file their lawsuits, but defendants can have their say in some situations. “Removal” is the process of transferring a lawsuit filed in state court to the United States District Court with jurisdiction over the same area.

A defendant can remove a case from state to federal court by filing a notice of removal in federal court and then notifying the state court and the other parties. They might need the agreement or joinder of any other defendants, or they might be able to remove a case on their own. After removal, the state court no longer has jurisdiction over the lawsuit. A plaintiff can move the federal court to remand the case to state court, but the state court otherwise has no further involvement. Before removing a case, a defendant should consider the potential advantages of federal court and review the jurisdictional requirements and local rules for removal.

Why Remove a Case to Federal Court?

Federal courts may present certain advantages for defendants. For example:

Since federal judges have lifetime appointments, their courts often offer more consistency in terms of matters like docketing.
Federal courts tend to have more experience with certain types of lawsuits, so removal could mean that the case makes it through the court more efficiently.
Rules of procedure and caselaw are often more consistent in federal court. The Federal Rules of Civil Procedure are the same throughout the nation, and all district courts in a circuit are bound by the same precedents.
Jury pools in federal courts usually come from a wider geographic area.

If a defendant decides that federal court would offer enough advantages, they should begin looking at the procedure for removal.

Deadline to Remove a Case

A defendant has 30 days from the date when they receive the plaintiff’s petition or complaint to remove the case to federal court. A case that is not removable when it is first filed can become removable later if the plaintiff adds new claims, joins more defendants, or increases the amount in controversy. A defendant can remove a case within 30 days of receiving an amended petition or complaint. In many situations, however, the defendant cannot remove the case if more than one year has elapsed since the lawsuit was first filed.

Federal Subject Matter Jurisdiction

A case is removable to federal court only if the federal court would have had subject matter jurisdiction in the first place. The two most well-known bases for federal court subject-matter jurisdiction are:

Federal question jurisdiction: The case arises under the US Constitution or a federal statute; and
Diversity jurisdiction: The plaintiff(s) and defendant(s) are from different states, and the amount in controversy is at least $75,000.

Federal courts can exercise supplemental jurisdiction over state-law claims that are closely related to the other claims in the lawsuit.

If a plaintiff who is a citizen of California files suit in a California state court against a defendant who is a citizen of Minnesota, for example, they could file in federal court if the amount of their claims is $75,000 or more. If a plaintiff is asserting causes of action under both federal and state laws, a federal court could have jurisdiction over all the claims under federal question and supplemental jurisdiction.

A lawsuit that is removable based solely on diversity jurisdiction is subject to an additional restriction. It cannot be removed if any defendant is a citizen of the state in which it is filed.

Venue for Removal

Once a defendant has determined that a federal court can exercise subject matter jurisdiction over the lawsuit, they must identify the court where they can file a notice of removal. Federal law states that removal must be to the district court in “the district and division within which such action is pending.” If a plaintiff files a lawsuit in a New York state court in Manhattan, for example, the court to which the case should be removed would be in the Southern District of New York.

Filing the Notice of Removal

The procedure and timing for filing a notice of removal partly depend on the basis for federal subject matter jurisdiction. The notice of removal must include “a short and plain statement of the grounds for removal.” The defendant must attach copies of all the documents served in the state case.

When a defendant seeks to remove a case based on general federal jurisdiction, all of the defendants who have been served in the state case must either consent or join the removal. If a defendant wants to remove the case more than 30 days after a different defendant was served, that defendant can still consent to removal.

If a lawsuit is not initially removable, a plaintiff can render it removable later, such as by adding a claim that falls under federal question jurisdiction. A defendant can remove the case within 30 days of receiving the amended complaint or petition, as long as the original pleading was filed no more than one year earlier. A court can waive the one-year limit if it finds that the plaintiff “acted in bad faith in order to prevent a defendant from removing the action.” For example, a plaintiff who misrepresented the amount in controversy to avoid diversity jurisdiction may be considered to have acted in bad faith.

Notice to State Court and Other Parties

The defendant must notify the other parties and the state court “promptly” after filing the notice of removal in federal court. It must provide written notice to the other parties and file a copy of the notice with the clerk of the state court.

Severing State-Law Claims

The federal court will review its jurisdiction over the causes of action in the lawsuit. It can exercise supplemental jurisdiction over state-law claims. If it finds that it does not have supplemental jurisdiction, the court may sever those claims from the lawsuit and remand them to state court.

Cases That Are Not Removable

Federal law states that certain claims may not be removed to federal court. These include claims against railroads and motor carriers for $10,000 or less, workers’ compensation claims, and civil lawsuits brought under the Violence Against Women Act. source

Removal to Federal Court

The plaintiff is the master of his/her complaint, including where and in what court it is filed. However, the defendant can sometimes wrest the complaint out of state court and have it heard in federal court instead.

Procedurally, it is simple. The defendant files a motion to remove in federal court, a notice to the same effect in state court, and gives notice to all the parties. The case is then docketed in federal court and proceeds there. For examples of removal petitions (sometimes called notices), filter this Docket Search by jurisdiction. See also Form – Petition for Removal, and Form – Notice to State Court of Removal.

After defendants remove the case to federal court, the plaintiffs may move to remand it back to state court. The federal court can also remand the case back to state court on its own (sua sponte) if the court determines it lacks jurisdiction to consider the action. For additional information about remand, see Overview – Remand.

Removal, governed by 28 U.S.C. § 1441, ends the case in state court and transfers the action to federal court instead. Generally:

• only a case that could have originally been brought in federal court is subject to removal;

• only the defendant can remove the case; and

• all defendants must agree to remove the action (with limited exceptions – see below).

Federal Jurisdiction Required

Only cases that would have had original jurisdiction in a federal district court may be removed from state court. 28 U.S.C. § 1441. See Overview – Subject Matter Jurisdiction. Therefore, the defendant has to assert and demonstrate federal question, diversity, or statutory jurisdiction.

Federal question jurisdiction, 28 U.S.C. § 1331

Whether the complaint presents a federal question is judged by the well-pleaded complaint rule. See Point of Law (POL). That is, for federal question jurisdiction to attach, an issue of federal law must appear on the face of the complaint. If the complaint includes only state-law claims, a federal defense is not enough to support removal, even if the complaint anticipates that the defendants will assert it. POL.

But the plaintiff can’t avoid stating a federal claim simply by “artfully pleading” around a necessary issue of federal law embedded in the claims. POL. If a substantive issue of federal law or important federal policy must be decided to provide relief in the complaint, that can support removal. For example:

• Courts permit removal where federal law completely preempts state law. This is a narrow exception, but issues of securities law, labor law, ERISA, and other comprehensive regulatory schemes provide examples of state law claims or issues that must be decided under federal law.

• Courts may hold that a claim is necessarily federal, where the right to relief, if any, depends on resolution of a substantial, disputed federal question. POL.

Diversity jurisdiction: more stringent than under 28 U.S.C. § 1332

Diversity must be complete AND no defendant can be a citizen of the state in which the suit is brought. 28 U.S.C. § 1441(b)(2). This is a more stringent rule than the rule for cases originally filed in federal court. However, most circuits hold that the “no resident citizen” requirement isn’t jurisdictional and can be waived if no remand motion is filed within the required period. POL.

For purposes of the rule, a corporation is a citizen of both its state of incorporation and that of its principal place of business. 28 U.S.C. § 1332(c)(1). There are specific rules for each type of entity, so the statutes must be carefully reviewed. 28 U.S.C. § 1332(d).

The defendant must show by a preponderance of the evidence that the amount in controversy requirement for diversity jurisdiction is met. POL.

If the complaint doesn’t assert an amount in controversy, the defendants must make a good faith estimate of the amount based on the pleadings. POL. Jurisdictions have different rules about proving the amount in controversy, so jurisdictional-specific research is required.

Only Defendants Remove

The statute says “defendant or defendants” can file the notice of removal. Counterclaim defendants and third-party defendants don’t count as “defendants” for purposes of being able to initiate removal.

All Defendants Must Join/Consent

This is required unless removal is based on CAFA (see below). POL. The consent for removal must be explicit and all defendants must sign the removal filing in federal court.

PRACTICE TIP: Gauge and get consent from all co-defendants well before the deadline. It will be required in writing to file the notice.

Timing

Notice of removal must be filed in state court within 30 days “after receipt … through service or otherwise, of a copy of the initial pleading setting forth the claim for relief.” 28 U.S.C. § 1446.

If the case becomes removable after that time expires, a notice of removal must be filed within 30 days of defendant’s notice of the change (e.g., the filing of a revised complaint stating a federal claim).

One year is the absolute cut off if a federal court’s jurisdiction is based on diversity jurisdiction. CAFA is a possible exception (see below). 28 U.S.C. § 1446(c)(1).

WATCH YOUR DEADLINES. Did the defendant already respond to the complaint in state court? If not, following removal, a response is due 21 days from the date the defendant received summons and the complaint, or five days from the date of removal, whichever is longer, to file a response to the complaint. See FRCP 81(c).

PRACTICE TIP: Consider contacting plaintiff to stipulate a date for response.

Procedure

In general, a defendant must file a petition for removal in federal court, a notice of removal in the state court, and give notice of the removal to all parties in the action. See Overview – Removal Process (28 U.S.C. § 1446).

PRACTICE TIP: Local rules may dictate the format of certain aspects of the petition or notice, and might impact what must be included in the petition. To find local rules, click on the relevant state on the map under State Resources on the Litigation Intelligence Center.

Generally:

• Attach the petition for removal to the state court notice.

• Attach the state court notice to the federal petition for removal.

• Attach a copy of everything in the state court docket to the petition for removal.

Removal Jurisdiction Is Narrow

The burden of establishing federal jurisdiction is on the party seeking removal. The statute is strictly construed against removal jurisdiction. POL.

Fee Shifting Provision

28 U.S.C. § 1447(c) includes a fee shifting provision. If the court finds there was no “objectively reasonable basis” for removal, it can award fees and costs of remand to the plaintiff. POL.

CAFA Removal

The Class Actions Fairness Act 28 U.S.C. § 1453 (CAFA) was written to expand federal court access for class actions. CAFA generally permits removal where:

• The case is a class action under FRCP 23 or similar state rule or statute;

• The aggregate number of class members in all proposed classes is 100 or greater; and

• The amount in controversy is $5 million or more (aggregated among claims and plaintiffs, exclusive of interest and costs).

The remand rules under CAFA are more relaxed from those that generally apply. Key differences include:

• CAFA requires only minimal geographic diversity, instead of complete diversity with no defendant resident in the state where suit was brought. Minimal diversity here means, essentially, that at least one plaintiff is a citizen of a state where no defendant resides. Because entities have dual citizenship, at minimum, this inquiry can be complex.

• CAFA doesn’t require all of the defendants to agree to remove the action. Any one defendant can do it on its own.

• The one-year outer limit for removing diversity cases provided in 28 U.S.C. § 1446(c)(1) does not apply to covered class actions removed under CAFA.

Mass actions can also be removed under CAFA, but specific separate rules apply. See 28 U.S.C. 1332(d)(11)(B)(i). See the statute for differences between mass actions and class actions, including limitations on transfer.

See Overview – Removing Under CAFA.

Other Removal Statutes

All are strictly construed against removal:

28 U.S.C. § 1369 – Under 28 U.S.C. § 1441(e), if the suit is about an accident in which at least 75 people died, removal is an option.

28 U.S.C. § 1442 – Under this statute a federal officer can remove an action if he/she acted under color of law.

28 U.S.C. § 1442(1)(a) – Under this statute a member of the armed forces can remove any case.

28 U.S.C. § 1443 – This is a “civil rights” removal. Under this statute a defendant can remove if he or she will be denied a federal civil right in state court.

28 U.S.C. § 1452 – This statute relates to bankruptcy removal. When a case filed in state court is related to a bankruptcy proceeding, it can be removed to federal court if that court has jurisdiction over the bankruptcy proceeding.

Unremovable Actions

Under 28 U.S.C. § 1445, some actions are not removable.

Some actions can’t be removed at all, such as:

-Actions against a railroad;

-Workers’ compensation proceedings;

-Actions for less than $10,000 against carriers for losses to specific shipments

Appealability

There is no appeal from an order of remand based on lack of subject matter jurisdiction or a timely raised procedural defect in the removal. 28 U.S.C. § 1447(d). Statutory exceptions apply for some defendants. (28 U.S.C. 1442, 28 U.S.C. 1443), but generally there is just one shot at removal. If the case is remanded, the defendant can’t seek reconsideration or appeal.

If the defendant removed under CAFA, appeal is allowed under 28 U.S.C. § 1453(c)(1), but very tight time limits apply. You must apply within 10 days of the order for remand. SeeSmart Code®.

source

Why Make a Federal Case Out of It?

Imagine this scenario: you live in and own a house in Florida, and it is badly damaged by a storm. You file an insurance claim with your insurance company, which is headquartered outside of Florida, and your insurance company denies your claim. You disagree with the insurance company’s assessment of the claim, and you hire a lawyer to represent you in a lawsuit against your insurer. Your lawyer starts a lawsuit against your insurance company in state court, in the county where your house is located. Everything appears to be going smoothly, and then suddenly your attorney informs you that your insurance company has removed your case from state court into a federal court. How did your state court case suddenly become a federal case? How can an insurance company remove your case to a completely different court—with completely different procedures—all by itself? This article examines these questions.

To understand how a case filed in state court can be removed to a federal court, you must first understand a little bit about how jurisdiction works. Simply put, “jurisdiction” describes a court’s legal authority to administer justice. In practical terms, “jurisdiction” describes a court’s ability to hear and resolve cases. A court must always have jurisdiction over a case in order to even begin the case. Without jurisdiction, a court has no authority over a case whatsoever. In the United States, jurisdiction is generally comprised of two components: (1) jurisdiction over the subject matter of a case (the law and the facts of the case), and (2) jurisdiction over the parties in the case (also known as “personal jurisdiction”). In order to have jurisdiction over a case, a court must have both personal jurisdiction and subject matter jurisdiction over the case.

Regarding personal jurisdiction, a court must have jurisdiction over the parties to a lawsuit. For example, a court in Florida would not have personal jurisdiction over individuals in Oregon for a dispute that only took place in Oregon. Personal jurisdiction can become far more complicated, especially when dealing with corporations (which are legal entities that can be all over the world), but the general idea is that the parties to a lawsuit must have some connection to the state in which the lawsuit is brought. An Ohio man suing another Ohio man for an event that occurred in Ohio cannot bring a suit in Florida to resolve the dispute; he would most likely have to bring it in Ohio. Likewise, in the opening scenario, a Florida state court would have personal jurisdiction over the case, because both you and your house are located in Florida, and your insurance company has transacted business in Florida by issuing you an insurance policy under the laws of the state of Florida.

Regarding subject matter jurisdiction, certain courts have only limited subject matter jurisdiction. That is to say that certain courts can only resolve disputes in very narrow areas of the law. For example, federal bankruptcy courts alone have the legal authority to hear and decide bankruptcy cases. No other court in the country has that power. By contrast, most state level trial courts are courts of “general jurisdiction”, meaning that their subject matter jurisdiction is not limited to certain types of disputes. They have the general power to resolve most disputes that arise within their geographical area of the state (such as a county), apart from certain pre-empted subject matters (such as bankruptcy). In the first example, you can properly bring your lawsuit against your insurance company in your local circuit court, because your dispute (most likely a breach of contract action) falls within the general jurisdiction of your state court. Most likely, your attorney would bring suit in the county where you and your house reside.

Now, how does a state court claim suddenly wind up in federal court? Federal courts in the U.S. are courts of limited jurisdiction. Federal courts only have the power to resolve disputes in a number of limited subject matters. Among these subject matters, are (1) disputes involving federal question(s) and (2) disputes involving “diversity of citizenship”. Federal question jurisdiction is exactly what it sounds like. In order for a federal court to have jurisdiction arising under federal question jurisdiction, the case must involve some kind of federal law (i.e. a “federal question”). Unsurprisingly federal courts have the power to interpret federal laws, and create federal case law. Interestingly, state courts also have the power to interpret federal laws, and they are not bound by federal courts’ decisions (apart from the U.S. Supreme Court).

Federal diversity jurisdiction arises when two conditions are met: (1) there must be complete diversity of citizenship between the parties and (2) the “amount in controversy” is greater than $75,000.00. Diversity of citizenship is also exactly what it sounds like. The parties must be citizens of different states. In the first example, diversity of citizenship exists in your case, because you reside in Florida, and your insurance company is headquartered outside of Florida. As to the second element, your claim against your insurance company must be greater than $75,000.00, in order to have diversity jurisdiction.

Once federal diversity jurisdiction exists, any claim—even if it is also proper in state court—may be brought in federal court. When you started your lawsuit, you could have brought your claim in either state court or federal court. Even though you brought your claim in state court, the other party has the right to remove your case to federal court within 30 days after receiving the lawsuit. This is according to federal law, which expressly grants “original jurisdiction” to the federal court in all diversity cases (28 U.S.C. § 1332). Procedurally, this is done by the party seeking to move the case to federal court by filing a “Notice of Removal” in the federal court. If your attorney believes that their removal to federal court is improper, then you can file a “Motion for Remand” within 30 days after the filing of the Notice of Removal. Once a case is removed to federal court (and not remanded back to state court), then the case will be decided by a federal judge. All of the procedural rules of the federal court will apply to your case, even though the federal judge will still apply state law.

Why do some insurers prefer to remove cases to federal court? There are potentially strategic reasons to do so. For instance, if an insurer sees that the case has been assigned to a judge in a state court that they think will rule unfavorably to them, they may want to remove the case to another judge, which can be easily done by removal to federal court. Likewise, many attorneys are not admitted to federal court, or they are not familiar with federal court procedures, so removal may be a way for the insurance company to catch your attorney off-guard. Also, federal courts tend to be generally uniform across the country, and abide by strict procedural guidelines. Some insurers may prefer the increased formality of the federal court system, which again can catch an unfamiliar attorney off-guard.

If you are concerned that your insurance claim could potentially end up in federal court, or if you have a question about your claim in general, please give us a call. Many of our attorneys have experience practicing in both state and federal courts, and we have attorneys who have experience dealing with federal removal issues. source

Selected Issues in Malicious Prosecution Cases

The Truth News — Thu, 22 Aug 2024 08:55:45 +0000

Selected Issues in Malicious Prosecution Cases

Although it is frequently stated that actions for malicious prosecution are not favored by the law, this should not be used to deny a legitimate cause of action. So it is stated that the courts “should not be led so astray by the notion of a ‘disfavored’ action as to defeat the established rights of the plaintiff.” (Jaffe v. Stone (1941) 18 Cal.2d 146, 159.)

In the words of the California Supreme Court: “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to a panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 50-51.) The judicial process is adversely affected by a malicious prosecution cause not only by the clogging of already crowded dockets but by the unscrupulous use of the courts by individuals as instruments within which to maliciously injure their fellow man. (Id. at 51.)

Each of the following elements must exist for the plaintiff to prevail on a claim for malicious prosecution:

1. The prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff’s favor;

2. The defendant lacked objective probable cause to bring the original action;

3. The defendant must have initiated the original action with subjective malice;

4. The malicious prosecution action was a substantial factor in causing the plaintiff to suffer damages.

Final and Favorable Termination

There must be a final termination of the action before a malicious prosecution action can be brought. All time for appeals, motions for rehearing, new trial and the like must have run before an action for malicious prosecution may be filed. In addition to being a final termination of the underlying case, it must be favorable to the defendant in the underlying litigation. “Favorable termination” means more than showing simply that the malicious prosecution plaintiff prevailed in the underlying action. It is not necessary for the defendant in the prior case to be exonerated after a trial on the merits. But the termination must reflect favorably on the defendant’s innocence. If the termination does not relate to the merits of the termination, such as a dismissal on technical or procedural grounds, it is not favorable in the sense that it would support a subsequent action for malicious prosecution. (Maleti v. Wickers (2022) 82 Cal. App. 5th 181; Casa Herrera, Inc. v. Beydoun (2004) 32 Cal. App. 4th 336; Lackner v. LaCroix (1979) 25 Cal. 3d 247, 250.)

A voluntary dismissal of the prior action, even one without prejudice, will generally constitute a favorable termination which will support an action for malicious prosecution, unless it was the result of a settlement or compromise. In most cases, a unilateral dismissal is considered to be a termination in favor of the defendant in the underlying action. The dismissal may be viewed as an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. But it is not enough merely to show that the proceeding was dismissed; the reason for the dismissal of the action must be examined to determine whether the termination is reflected on the merits. (Maleti v. Wickers (2022) 82 Cal. App. 5th 181.)

Some of the other terminations of an action that are deemed favorable to the defendant in the underlying action include:

By summary judgment that reflects on the merits of the claim.

A dismissal for failure to prosecute reflects on the merits of the action, a natural assumption being that one does not simply abandon a meritorious action once instituted.

A plaintiff’s decision not to amend a pleading to reallege one or more causes of action after a demurrer to those claims is sustained on substantive grounds with leave to amend may, upon a proper showing, constitute a favorable termination on the merits of the abandoned claim.

After a judgment of nonsuit because the plaintiff failed to designate an expert on causation.

Where the court dismissed the underlying action because the claims were barred by the litigation privilege.

A dismissal resulting from negotiation, settlement or agreement is generally not deemed a favorable termination of the proceedings because of its ambiguity. A termination based upon the action being barred by the statute of limitations is deemed technical or procedural as distinguished from a substantive termination.

Final and favorable termination of the action must be distinguished from the lack of probable cause element of the tort of malicious prosecution. Whether a prior action was terminated favorably tends to show the innocence of the defendant in the underlying action, an issue not affected by the objective tenability of the claim.

The plaintiff may pursue a claim for malicious prosecution where one theory in an underlying multi-claim action was pursued without probable cause and with malice, even though there was probable cause to pursue other theories. A defendant cannot escape liability for the malicious prosecution of an unjustified claim by joining it with a justified claim. (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal. App. 5th 117, 128; Albertson v. Raboff (1956) 46 Cal. 2d 375, 385; Mabie v. Hyatt (1998) 61 Cal. 4th 581, 592.)

Where a malicious claim is only one of multiple claims, the plaintiff need not show that all claims were resolved on the merits as long as at least one claim was terminated on the merits. But favorable termination requires favorable resolution of the underlying action in its entirety, not merely a single claim. If the plaintiff in the original action succeeds on any of his or her claims, the favorable termination element is not satisfied and the malicious prosecution action cannot be maintained. (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal. App. 5th 117, 128.) The fact that a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause does not alter the rule that there first must be a favorable termination of the entire action. (Crowley v. Katleman (1994) 81 Cal. 4th 666, 686.)

Lack of Probable Cause

The element of probable cause calls on the trial court to make an objective determination whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. Whether one has probable cause to file an action is determined by that person’s knowledge at the time the original or an amended complaint is filed, not by knowledge that is acquired at a later time. As one court observed, “a litigant cannot be permitted to file a suit based merely on a wing and a prayer and then be retroactively justified by some serendipitous discovery.” (Williams v. Coombs (1986) 179 Cal. App. 3d 626, 632 fn. 4.)

The probable cause element of a malicious prosecution action requires an objective determination of the “reasonableness” of the defendant’s prior lawsuit, i.e., whether, on the basis of the facts known to the defendant and fully disclose to the attorney, any reasonable attorney would have objectively believed the institution of the prior action was legally tenable. If so, the prior action was objectively reasonable, and the malicious prosecution defendant is entitled to prevail regardless of what his subjective intent or belief in bringing the prior action may have been. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, 875, 886; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 594.)

The resolution of probable cause or lack thereof is a question of law that calls for the application of an objective standard to the facts on which the defendant acted. Because the tort of malicious prosecution is intended to protect an individual’s interest in freedom from unjustifiable and unwarranted litigation, if the trial court determines that the prior action was objectively reasonable, the plaintiff in the malicious prosecution action has failed to meet the threshold requirement of demonstrating an absence of probable cause and therefore defendant is entitled to prevail. Sheldon Appel Co. v. Albert & Oliker 47 Cal.3d 863, 878.

Probable cause to bring an action does not depend upon it being meritorious, as such, but it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.

Probable cause may be established by the defendant in a malicious prosecution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to the attorney, have been advised by the lawyer that they have a good cause of action, and have honestly relied and acted upon the opinion and advice of the lawyer. (Mabie v. Hyatt (1998) 61 Cal. 4th 581; Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1556.) It is irrelevant whether the lawyer’s analysis or advice is correct or not: “There can be no imputation to a client of his attorney’s misconceived legal analysis so as to void the client’s good faith reliance on his counsel’s advice.” (Brinkley v. Appleby (1969) 276 Cal. App. 2d 244, 247.)

Attorney’s Liability

As noted above, probable cause to bring the action is based on whether any reasonable attorney would have believed the institution of the prior action was legally tenable. In Tool Research & Engineering Corp. v. Henigson ((1975) 46 Cal. App. 3d 675, 682-83.), the court held that an attorney has probable cause to represent a client in litigation where, after a reasonable investigation and industrious search of legal authority, the attorney has an honest and good faith belief that the client’s claim is tenable in the forum in which it is to be tried. ((1975) 46 Cal. App. 3d 675, 682-83.) Courts held that under Tool Research & Engineering Corp. a malicious prosecution plaintiff could establish a lack of probable cause simply by showing that its former adversary’s attorney failed to perform reasonable legal research or factual investigation before filing a claim on his or her client’s belief. (See, e.g., Williams v. Coombs (1986) 179 Cal. App. 3d 626, 640-44; Weaver v. Superior Court (1979) 95 Cal. App. 3d 166, 188-90.)

This inquiry was ruled irrelevant to the attorney’s probable cause by the Supreme Court in Sheldon Appel Co. v. Albert & Oliker (supra, 47 Cal.3d 863). The high court therein stated that an attorney’s duty of care runs primarily to his or her own client rather than to the client’s adversary, and which, on the basis of important policy consideration, precludes the adversary from maintaining a negligent cause of action against its opponent’s attorney. In Sheldon Appel Co., the court reasoned that allowing inadequate research to serve as an independent basis for proving the absence of probable cause on the part of an attorney would tend to create a conflict of interest between the attorney and his or her client. A cautious attorney would be tempted to create a record of diligence by performing extensive legal research, not for the benefit of his or her client, but rather simply to protect himself or herself from the client’s adversary in the event the initial suit fails. (Id. at 883.) If the trial court determines that the prior action was not objectively tenable, the extent of a defendant’s attorney’s investigation and research may be relevant to the question of whether or not the attorney acted with malice.

The attorney’s subjective belief in the legal tenability of the prior action is not a necessary element of probable cause. However, if the trial court concludes that the prior action was not objectively tenable, evidence that the defendant’s attorney did not subjectively believe that the action was tenable would clearly be relevant to the question of malice. Inasmuch as an attorney who does not have a good faith belief in the tenability of an action will normally assume that a court will come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable.

If the issue which the attorney is called upon to decide is fairly debatable, “then under his [or her] oath of office, he [or she] is not only authorized but obligated to present and urge his [or her] client’s claim upon the court. And if it subsequently is determined that the position honestly taken by the attorney was erroneous he [or she] shall be relieved from responsibility.” Brinkley v. Appleby (1969) 276 Cal. App. 2d 244, 247.

To establish malice for both liability and punitive damages, personal hostility or ill will need not be shown; the absence of an honest and sincere belief in the validity of the claim is sufficient. To establish malice for both liability and punitive damages, personal hostility or ill will need not be shown; the absence of an honest and sincere belief in the validity of the claim is sufficient. Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 66.

If the trial court concludes that the prior action was not objectively tenable, evidence that the defendant attorney did not subjectively believe that the action was tenable would be clearly relevant to the question of malice. Inasmuch as an attorney will normally assume that a court is likely to come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, 881-82.

Expert legal testimony is not permitted on the issue of whether any reasonable attorney would conclude that the claim advanced in the prior action was tenable, it being thoroughly established that such matter is essentially within the province of the court to decide. If there is a factual dispute, then such factual dispute is up to the jury to resolve. But if there is no factual dispute, or the jury determines the facts, it is a question of law for the trial court to determine if there was probable cause as a matter of law.

Damages Recoverable

A successful plaintiff in a malicious prosecution case is entitled to recover:

The cost of defending the prior action, including reasonable attorney’s fees and court costs;

Compensation for injury to his or her reputation or impairment of social and business standing;

Mental or emotional distress; and

Punitive damages.

Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51.

Where the underlying case involved malicious actions with substantiated actions, the plaintiff does not have the burden of showing that his or her damages were specifically attributed to the malicious prosecution as opposed to the prosecution which was not malicious. (Albertson v. Raboff (1956) 46 Cal. 2d 375, 385; Singleton v. Perry ((1955) 45 Cal. 2d 389, 498; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 592.) source

Damages

The easiest damages to determine are the out-of-pocket costs you incurred. These would include the cost of hiring a lawyer to defend yourself, court fees, and any lost wages due to missed time at work.

Other damages are more difficult to calculate. You may ask for compensation for emotional distress and other intangible damages caused by your ordeal. These can vary from case-to-case.

Punitive damages are also a possibility in a malicious prosecution case. These damages can also vary dramatically depending on all of your facts and circumstances.

Malicious Prosecution

Series 1500 – Malicious Prosecution

1500. Former Criminal Proceeding – Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Affirmative Defense – Proceeding Initiated by Public Employee Within Scope of Employment (Gov. Code, § 821.6)
1504. Former Criminal Proceeding – “Actively Involved” Explained
1505-1509. Reserved for Future Use
1510. Affirmative Defense – Reliance on Counsel
1511. Wrongful Use of Civil Proceedings – Affirmative Defense – Attorney’s Reliance on Information Provided by Client
1512-1519. Reserved for Future Use
1520. Abuse of Process – Essential Factual Elements
1521-1529. Reserved for Future Use
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
1531-1599. Reserved for Future Use
VF-1500. Malicious Prosecution – Former Criminal Proceeding
VF-1501. Malicious Prosecution – Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution – Wrongful Use of Civil Proceedings – Affirmative Defense – Reliance on Counsel
VF-1503. Malicious Prosecution – Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process
VF-1505-VF-1599. Reserved for Future Use

source

CACI No. VF-1500. Malicious Prosecution – Former Criminal Proceeding

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1500. Former Criminal Proceeding – Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. VF-1504. Abuse of Process

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2024 edition)

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC – Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

The Truth News — Sun, 07 Jul 2024 06:13:06 +0000

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

California makes the majority of appellate case information available to the public and can be easily accessed online. Case information includes the case summary, docket, disposition, briefs, parties and attorneys, and lower court. Both California’s Appellate Courts and Supreme Court case information sites update case information once each hour throughout the business day.

If you are looking for a specific case, or for your own case, in a California Court of Appeal or California Supreme Court, then you can take the following steps to find it.

Step 1: Go to the California Courts Webpage.

First, navigate to the California Courts: The Judicial Branch of California webpage. It can be found at the following link:
https://www.courts.ca.gov/.

Step 2: Scroll Halfway Down the California Courts Homepage.

About halfway down the California Courts homepage, you will see a headline labeled “Courts.” Under that, you will see the following categories:

Step 3: For California Court of Appeal Cases, Select Appellate Case Search.

California Courts Website – Appellate Courts Case Information – Search – Appellate Case Search – web UI screenshot – form.

Under the category “Courts of Appeal,” you will see a link for Appellate Case Search. Click on that link or type into your browser the following:
https://appellatecases.courtinfo.ca.gov/.

From that page, you can select which Appellate District you want to search within. Links for each Appellate District search page are as follows:

1^st Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=1
2^nd Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=2
3^rd Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=3
4^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=4
- Division 1 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41
- Division 2 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=42
- Division 3 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=43
5^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=5
6^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=6

From there, you will be able to search by additional characteristics for the case for which you are searching.

If you are unsure which Appellate District your case is in, but know which California County Superior Court your trial case was heard in, you can easily find out which appellate court your case should be in. Here are the counties that each Appellate District court has jurisdiction over:

1^st Appellate District — Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma.
2^nd Appellate District — San Luis Obispo, Santa Barbara, Ventura, and Los Angeles.
3^rd Appellate District — Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba.
4^th Appellate District — San Diego, Inyo, Riverside, San Bernardino, and Orange.
5^th Appellate District — Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.
6^th Appellate District — Monterey, San Benito, Santa Clara, and Santa Cruz.

Step 4: For California Supreme Court Cases, Select Supreme Court Case Search.

California Courts Website – Appellate Courts Case Information – Search – Supreme Court Case Search – web UI screenshot – introduction.

Under the category “Supreme Court,” you will see a link for “Supreme Court Case Search.” Click on that link or type into your browser the following:
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0

Technically, you can access both California Court of Appeal cases and California Supreme Court cases from the initial link (https://appellatecases.courtinfo.ca.gov/); however, the link provided for the Supreme Court allows you to search additional characteristics within Supreme Court cases only.

Step 5: How to Search

From the Appellate Courts Case Information search page (https://appellatecases.courtinfo.ca.gov/), you can search for both California Court of Appeal cases and Supreme Court cases. First, you select which type of case you want. Then, you should select “Search.”

Once you get to the page within the court system that you are trying to search, you can narrow your search according to the following characteristics:

Case Number
Party (Last Name/Organization)
Attorney (Last Name/Law Firm)
Case Caption (Party v. Party)
Court Calendar Date (for Court of Appeal only)

Enter whatever information you have for the case and you will be taken to a Search Results page.

Step 6: Selecting Your Case

From the Search Results page, you will see a list of cases that match the characteristics you put into the search page. The following information will describe each case in the search results:

Supreme Court Case Number (and parties)
Court of Appeal Case Number
Trial Court Case Number
Attorney and Firm Name (this may not appear if you search by party name)

Next, you should click on the case number of the case for which you want to see the information. It will be highlighted and underlined when you move your mouse cursor over it.

Step 7: Reviewing Information About Your Case

Once you select the case you want to review, you will be taken to a webpage with information about that case specifically. There will also be the following information in what appears to be tabs:

Case Summary
Docket
Briefs
Disposition
Parties and Attorneys
Lower Court

You can click on each of the links on these tabs to review information about your case. Some of them may be blank if there is no information for that particular section.

Step 8: Getting E-Mail Updates About Your Cases

From the Case Search website, you can also sign up to receive automatic e-mail notifications about cases. In order to do that, select which court you want to find a case within on the initial search page (https://appellatecases.courtinfo.ca.gov/), and then instead of “Search,” select “E-mail.” You will be taken to a page where you can input your email address, the case number, and which case activity of which you want to be notified. source

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews

The Truth News — Sat, 30 Dec 2023 08:49:56 +0000

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews

In the case before the Court of Appeal of the State of California Second Appellate District Division Eight, the plaintiff, a construction company, sued the defendant, a homeowner, for defamation after the homeowner posted critical comments about the company online. The homeowner had hired the construction company to repair her home after it was damaged by a fallen tree. Dissatisfied with the work, the homeowner reported the company to the Contractors State License Board and began posting negative reviews of the company on her blog and Yelp. In response to the defamation lawsuit, the homeowner filed a special motion to strike, arguing that her comments were protected by the litigation privilege. The trial court denied the motion, and the homeowner appealed.

The appellate court affirmed the lower court’s decision, holding that the homeowner’s online posts were not covered by the litigation privilege. The court explained that the litigation privilege applies only to communications made in judicial or quasi-judicial proceedings that have some connection to the litigation. The homeowner’s posts were public criticisms of the construction company, some of which did not even mention the Contractors State License Board. Therefore, the court found that the posts were akin to press releases and lacked the necessary connection to the proceedings before the board. The court also rejected the homeowner’s arguments that the construction company failed to plead that her statements were unprivileged, that her statements were true, and that her statements were merely her opinions.

How you deal with negativity directly reflects your brand. Let’s dive into my takeaways from the article.

Social media is an invaluable tool to help businesses connect with consumers. However, when customers offer negative feedback online, it can significantly impact a company’s reputation.

Addressing public criticism on social media requires a careful touch. The results of your company approaching the issue in the wrong way can be shared widely, which could lead to backlash from your customer base. It helps to be aware of both the dangers and the potential benefits before you engage with consumers regarding comments they’ve posted online.

1. Don’t Divert Blame

Always take accountability, even if you disagree with the author of the review. Take negative feedback on the chin, respond respectfully, and move on. My goal is to move the complaint to private conversation and de-escalate the situation so that it’s no longer in public view. Encourage them to email or call you if they want to discuss the matter further.

2. Be Respectful

Respect is key! Always remember that how you communicate is a direct reflection of your brand. It is possible to be kind, stern, and respectful all at the same time in your responses (like the southern version of ‘Bless Your Heart.’). Always keep in mind that providing excellent customer service centered around respect is essential.

3. Don’t Get Defensive

Acknowledge the comment and spend time processing what the other person has to say. When you do respond, list the ways you’re addressing the issue. If the topic is sensitive or controversial, again provide your contact info and ask them to contact you directly – my goal is always to move the conversation offline successfully. Opening up a dialogue goes a long way.

4. Show That You’re Taking It Seriously

Social media matters—this is the most important thing to remember. All comments on social media, regardless of how negative or outlandish, must be taken seriously. You should carefully craft all responses to convey a sense of why they made the comments. Write a reply that indicates the company takes all comments seriously.

5. Make Sure The Customer Feels Heard

When responding to criticism on social media, it’s essential to ensure that the customer feels legitimately heard. Acknowledge their frustrations, own up to the feedback they’ve shared, and encourage them to direct message you to make things right. You may not have a perfect answer, but making a meaningful effort goes a long way with that individual and others reading your public interaction.

6. Respond As Quickly As You Can

Respond to the negative comment or review as quickly as you can. A speedy response signals to both the poster and others reading the negative perspective that you care about them.

7. Craft A Personalized Message

Negative feedback provides businesses with a great opportunity. Instead of sending a scripted response, take the time to craft a personalized message that helps your customer overcome the issue. Sure, not all outcomes will end positively, but this shows prospective customers that you are willing to help and are active in dealing with any problems.

8. Respond With A Solution Right Away

As a business owner, marketing manager, or VP of all things, empowering your social team to resolve customer complaints at first communication is vital in customer resolution. Posting that resolution or a clear path to the solution in your first response to a negative review will help make things right with your customer. It will also signal to future readers that you’re a responsive business that will care for them if the need arises.

9. Be Thankful For Feedback

When grounded in facts and focused on revealing honest mistakes, negative feedback is a blessing in disguise because it allows us to learn and improve our product or service. That is why we need to be thankful for such feedback, be brave enough to acknowledge our mistakes, and show how we will fix them. Then, we have the chance to turn it into a positive perception.

While it is effective to address negative feedback publicly, you always run the risk of adding fuel to the fire and augmenting awareness of the negative info. My best strategy starts with honesty and transparency – and moving the negativity from online into a person-to-person conversation providing the best customer service experience possible. source

Section 832.7 – Peace officer or custodial officer personnel records

The Truth News — Fri, 02 Jun 2023 20:58:47 +0000

Section 832.7 – Peace officer or custodial officer personnel records

Obtaining Police Records by State

How Access to California Police Records click here

Cal. Pen. Code § 832.7

Section 832.7 – Peace officer or custodial officer personnel records

(a)Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.

(b)

(1)Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code):

(A)A record relating to the report, investigation, or findings of any of the following:

(i)An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii)An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury.

(iii)A sustained finding involving a complaint that alleges unreasonable or excessive force.

(iv)A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.

(B)

(i)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.

(ii)As used in this subparagraph, “sexual assault” means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.

(iii)As used in this subparagraph, “member of the public” means any person not employed by the officer’s employing agency and includes any participant in a cadet, explorer, or other youth program affiliated with the agency.

(C)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury.

(D)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

(E)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.

(2)Records that are subject to disclosure under clause (iii) or (iv) of subparagraph (A) of paragraph (1), or under subparagraph (D) or (E) of paragraph (1), relating to an incident that occurs before January 1, 2022, shall not be subject to the time limitations in paragraph (11) until January 1, 2023.

(3)Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action. Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.

(4)A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.

(5)If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1), unless it relates to a sustained finding regarding that officer that is itself subject to disclosure pursuant to this section. However, factual information about that action of an officer during an incident, or the statements of an officer about an incident, shall be released if they are relevant to a finding against another officer that is subject to release pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1).

(6)An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:

(A)To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.

(B)To preserve the anonymity of whistleblowers, complainants, victims, and witnesses.

(C)To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers.

(D)Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.

(7)Notwithstanding paragraph (6), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.

(8)An agency may withhold a record of an incident described in paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:

(A)

(i)During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the misconduct or use of force occurred or until the district attorney determines whether to file criminal charges related to the misconduct or use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agency’s determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.

(ii)After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.

(iii)After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about misconduct or use of force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.

(iv)In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delay by filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any successor rule, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation.

(B)If criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.

(C)During an administrative investigation into an incident described in paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether the misconduct or use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the misconduct or use of force, or allegation of misconduct or use of force, by a person authorized to initiate an investigation.

(9)A record of a complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded.

(10)The cost of copies of records subject to disclosure pursuant to this subdivision that are made available upon the payment of fees covering direct costs of duplication pursuant to subdivision (b) of Section 6253 of the Government Code shall not include the costs of searching for, editing, or redacting the records.

(11)Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8), records subject to disclosure under this subdivision shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.

(12)

(A)For purposes of releasing records pursuant to this subdivision, the lawyer-client privilege does not prohibit the disclosure of either of the following:

(i)Factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney.

(ii)Billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.

(B)This paragraph does not prohibit the public entity from asserting that a record or information within the record is exempted or prohibited from disclosure pursuant to any other federal or state law.

(c)Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of the complaining party’s own statements at the time the complaint is filed.

(d)Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved.

(e)Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement they know to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or their agent or representative.

(f)

(1)The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.

(2)The notification described in this subdivision is not conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.

(g)This section does not affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.

(h)This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531.

(i)Nothing in this chapter is intended to limit the public’s right of access as provided for in Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.

Ca. Pen. Code § 832.7

Amended by Stats 2022 ch 58 (AB 200),s 5, eff. 6/30/2022.

Amended by Stats 2021 ch 615 (AB 474),s 339, eff. 1/1/2022, op. 1/1/2023.

Amended by Stats 2021 ch 409 (SB 2),s 5.5, eff. 1/1/2022.

Amended by Stats 2021 ch 402 (SB 16),s 3, eff. 1/1/2022.

Amended by Stats 2018 ch 988 (SB 1421),s 2, eff. 1/1/2019.

Amended by Stats 2003 ch 102 (AB 1106), s 1, eff. 1/1/2004.

Amended by Stats 2002 ch 63 (AB 1873), s 1, eff. 1/1/2003.

Amended by Stats 2002 ch 391 (AB 2040), s 6, eff. 1/1/2003.

Amended by Stats 2000 ch 971 (AB 2559), s 1, eff. 1/1/2001.

https://casetext.com/statute/california-codes/california-penal-code/part-2-of-criminal-procedure/title-3-additional-provisions-regarding-criminal-procedure/chapter-45-peace-officers/section-8327-peace-officer-or-custodial-officer-personnel-records

CALIFORNIA LEGISLATURE–2021-2022 REGULAR SESSION

Assembly Bill No. 2557
Introduced by Assembly Member Mia Bonta
February 17, 2022

An act to amend Section 832.7 of the Penal Code, relating to peace officers.

AB 2557 – as introduced, Mia Bonta. Peace officers: records.

LEGISLATIVE COUNSEL’S DIGEST

AB 2557, as introduced, Mia Bonta. Peace officers: records.

Existing law, the California Public Records Act, requires a state or local public agency to make public records available for public inspection and to make copies available upon request and payment of a fee, unless the records are exempt from disclosure. Existing law makes peace officer and custodial officer personnel records and specified records maintained by any state or local agency, or information obtained from these records, confidential and prohibits these records from being disclosed in any criminal or civil proceeding except by discovery.

This bill would make records and information obtained from records maintained by an agency or body established by a city, county, city and county, local government entity, state agency, or state department for the purpose of civilian oversight of peace officers subject to disclosure pursuant to the California Public Records Act. The bill would require those records to be redacted only as specified. By increasing duties on local entities, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote Required: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Immediate Effect NO Urgency: NO Tax Levy: NO Election: NO Usual Current Expenses: NO Budget Bill: NO Prop 25 Trailer Bill: NO

The people of the State of California do enact as follows:

SECTION 1. The Legislature finds and declares that public access to information concerning civilian complaints regarding peace officers, including the records of proceedings of civilian law enforcement review agencies, is crucial to safe and effective law enforcement in the state. It is the intent of the Legislature, in enacting this act, to abrogate the decision in Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, to restore public access to peace officer records, and to restore public access to meetings and hearings that were open to the public prior to the Copley Press decision.

SEC. 2. Section 832.7 of the Penal Code is amended to read:

832.7. (a) Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office, or the Commission on Peace Officer Standards and Training.

(b) (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code):

(A) A record relating to the report, investigation, or findings of any of the following:

(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii) An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury.

(iii) A sustained finding involving a complaint that alleges unreasonable or excessive force.

(iv) A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.

(B) (i) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.

(ii) As used in this subparagraph, “sexual assault” means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this subparagraph, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.

(iii) As used in this subparagraph, “member of the public” means any person not employed by the officer’s employing agency and includes any participant in a cadet, explorer, or other youth program affiliated with the agency.

(C) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury.

(D) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

(E) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.

(2) Records that are subject to disclosure under clause (iii) or (iv) of subparagraph (A) of paragraph (1), or under subparagraph (D) or (E) of paragraph (1), relating to an incident that occurred before January 1, 2022, shall not be subject to the time limitations in paragraph (8) until January 1, 2023.

(3) Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action. Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.

(4) A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.

(5) If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1), unless it relates to a sustained finding regarding that officer that is itself subject to disclosure pursuant to this section. However, factual information about that action of an officer during an incident, or the statements of an officer about an incident, shall be released if they are relevant to a finding against another officer that is subject to release pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1).

(6) An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:

(A) To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.

(B) To preserve the anonymity of whistleblowers, complainants, victims, and witnesses.

(C) To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers.

(D) Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.

(7) Notwithstanding paragraph (6), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.

(8) An agency may withhold a record of an incident described in paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:

(A) (i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the misconduct or use of force occurred or until the district attorney determines whether to file criminal charges related to the misconduct or use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agency’s determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.

(ii) After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.

(iii) After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in misconduct or used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about misconduct or use of force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.

(iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delay by filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any successor rule, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation.

(B) If criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.

(C) During an administrative investigation into an incident described in of paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether misconduct or the use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the misconduct or use of force, or allegation of misconduct or use of force, by a person authorized to initiate an investigation.

(9) A record of a complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded.

(10) The cost of copies of records subject to disclosure pursuant to this subdivision that are made available upon the payment of fees covering direct costs of duplication pursuant to subdivision (b) of Section 6253 of the Government Code shall not include the costs of searching for, editing, or redacting the records.

(11) Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8), records subject to disclosure under this subdivision shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.

(12) (A) For purposes of releasing records pursuant to this subdivision, the lawyer-client privilege does not prohibit the disclosure of either of the following:

(i) Factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney.

(ii) Billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.

(B) This paragraph does not prohibit the public entity from asserting that a record or information within the record is exempted or prohibited from disclosure pursuant to any other federal or state law.

(c) Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of the complaining party’s own statements at the time the complaint is filed.

(d) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form that does not identify the individuals involved.

(e) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement that they know to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or their agent or representative.

(f) (1) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.

(2) The notification described in this subdivision is not conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.

(g) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, or the holding in Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, records and information obtained from records maintained by an agency or body established by a city, county, city and county, local government entity, state agency, or state department for the purpose of civilian oversight of peace officers shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). A record disclosed pursuant to this paragraph shall be redacted only to remove personal data or information such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers, to preserve the anonymity of complainants and witnesses, or to protect confidential medical, financial, or other information in which disclosure would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct by peace officers and custodial officers, or where there is a specific, particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or others.

(g)

(h) This section does not affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.

(h)

(i) This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531.

(i)

(j) Nothing in this chapter is intended to limit the public’s right of access as provided for in Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.

SEC. 3. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

https://custom.statenet.com/public/resources.cgi?id=ID:bill:CA2021000A2557&ciq=ncsl&client_md=1c5939e5a79f136311c30544d3e45b5d&mode=current_text

More access also below

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

PUBLIC RECORDS REQUEST CONTACTS for Los Angeles County (click here for media policy)

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

Obtaining a Report from LASD Records (You, 3rd party or consel can obtain)

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

How do I submit a request for information?

from the ACLU we have 2 types of SB 1421 Templates for Sample Requests

1. Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

2. Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

We also have more robust sample letters below:

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Sample Letter | Police Recordings

Download Word document | Download PDF

The CPRA is now located at Government Code sections 7920.000-7931.000
The First Amendment Coalition also has some useful information to help explain the PRA process.

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Mi$Conduct – Judicial Mi$Conduct Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

How do I submit a request for information?

Templates for Sample Requests

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Retrieving Evidence / Internal Investigation Case

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Attorneys Liabilities – Geragos v. Abelyan (2023)

The Truth News — Sun, 23 Apr 2023 05:55:01 +0000

Attorneys Liabilities – Geragos v. Abelyan (2023)

Geragos v. Abelyan (2023) 88 Cal.App.5th 1005

But when does zealous advocacy exceed the bounds of the law and cross the line into actionable conduct such as extortion or perjury or even worse setting someone up with a fake crime? The Second District Court of Appeal recently examined this question again in the case of Geragos v. Abelyan (2023) 88 Cal.App.5th 1005.

With new counsel, a client sues his former attorneys, alleging they accepted $27,500 in fees from him but did not perform the promised legal services. New counsel engages in communications via email and telephone with the former attorneys’ representative and discusses the possible filing of a State Bar claim. The former attorneys file a cross-complaint against the client and his new counsel for extortion, among other claims. The client and his new counsel file an anti-SLAPP motion, which the trial court granted.

The Second Appellate District affirmed. The court found that none of the communications presents extortion as a matter of law. The court concluded that cross-defendants made the threshold showing that the cross-complainants’ complaint is based on protected activity and thus subject to the anti-SLAPP statute. The court found that the cross-complainants did not carry their burden of showing a probability of overcoming cross-defendants’ litigation privilege defense. Accordingly, the trial court properly granted the special motions to strike the cross-complaint.

Seal & Destroy a Criminal Record

The Truth News — Thu, 02 Mar 2023 20:32:27 +0000

Seal & Destroy a Criminal Record

Information on sealing and destroying an arrest record can be found at California penal code section 851.87 through 851.92. For purposes of PC 851 motions the defendant is referred to as the Petitioner. A petitioner’s request to seal and destroy an arrest record may be sought in several situations, including after the successful completion of a diversion program or after the defendant was arrested but not convicted of the crime for which he or she was arrested.

Diversion Related 851 Motion: Diversion is program whereby an accusatory pleading is placed on hold while the defendant completes terms of diversion. Terms of diversion are similar to probation terms and usually include an order to pay fines, stay out of trouble, complete classes, etc. If the terms of diversion are successfully completed the defendant’s criminal case is dismissed (diverted). Thereafter, the defendant may request that the court seal and destroy the defendant’s arrest and diversion sentence (PC 851.87 Abbrev.). More information on diversion programs may be found at Diversion.

Note: For arrest records that are sealed after the successful completion of diversion the defendant may state that he or she has not been arrested except in certain circumstance, including, but not limited to, a response to a direct question in an application to become a peace officer.

Employment: The petitioner may not have his or her criminal record that is sealed and destroyed after a diversion program used against him or her to deny employment (PC 851.87).

No Conviction after Arrest: Per PC 851.91(a) a person who is arrested but not convicted of a crime may petition the court to have his or her arrest related records sealed (PC 851.91 Abbrev.).

For purposes of PC 851.91 motions, an arrest does not result in a conviction if any of the following is true:

The statute of limitations has run on every offense upon which the arrest is based;
the prosecutor timely filed criminal charges, but the arrest did not lead to a conviction because the criminal charges were dismissed and may not be refiled, or
because the defendant was acquitted of the criminal charges.

Exception: If the defendant intentionally evaded law enforcement efforts to prosecute the arrest then he or she may be denied the sealing and destruction of his or her criminal record. This is true even if the any of the above required condition would otherwise apply to the defendant’s 851 petition.

PC 851.91 After Appeal: If the defendant was found guilty at a criminal trial but his or her conviction was reversed on appeal and any of the condition above apply then the defendant may petition to have his or her arrest sealed pursuant to PC 851.91.

Limitations: A petition may have his or her criminal arrest and related records sealed and destroyed as a matter of right if the arrest is not based upon domestic violence with a pattern of domestic violence, child abuse with a pattern of child abuse, or elder abuse with a pattern of elder abuse, unless the court finds that granting the petition serves the best interest of justice.

Note: A pattern of abuse means “two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.” (PC 851.91)

In determining whether the granting the 851.91 petition would be in the interest of justice (despite the fact that the defendant has a pattern of abuse prior to the current arrest) the court will consider the following: the hardship to the petitioner, the good conduct of the petitioner, the circumstances of the petitioner’s prior arrests, and more. In other words, if the petitioner is arrested for a crime, and that arrest never leads to a criminal conviction, then the petitioner may have his or her arrest sealed.

In Sum, If the arrest was for a crime that did not involve a pattern of abuse against a child, a person domestically related to the petitioner, or an elder, then the petitioner may have his or her arrest sealed as a matter of right; but, if the arrest did involve a crime for which the petitioner has a pattern of abuse against a child, a domestically related person, or an elder, then the defendant will be required to show that the sealing of his or her arrest record would be in the best interest of justice (PC 851.91).

Petition Procedure: PC 851 petitions start with the filing of a petition to seal and destroy arrest and related records with the proper court (the court that has jurisdiction over the matter where the arrest occurred). Copies of the petition must be served on the arresting law enforcement agency and on the prosecutor no less than fifteen days before the petition is heard in criminal court. Thereafter, the prosecuting attorney may file a response to the petition. The district attorney’s response may include police reports and other records in his or her efforts to show that the petition should not be granted the requested relief. If the district attorney objects at the initial hearing on the matter, the hearing will be continued at least sixty days so that the prosecuting attorney can prepare a more thorough response.

Note: In cases where the defendant has a right to the sealing and destruction of arrest and related records as a matter of right the district attorney is less likely to file a response to the petition (PC 851.91).

If the petition to seal and destroy an arrest and related records is granted, whether the request is made after the successful completion of diversion (PC 851.87) or pursuant to a PC 851.91 motion, the petitioner’s arrest and related records will be sealed and destroyed according to the following: The court will send a report to the Department of Justice, the prosecuting attorney, and the relevant law enforcement agency stating that the relief sought was granted. The report will indicate that the arrest is deemed not to have occurred and the petitioner may answer question relating to the sealed arrest that he or she has not been arrested for the offense; however, as stated, the arrest is not sealed and destroyed for all purposes.

For example, a prosecuting attorney may use an arrest record against the defendant in subsequent prosecution even if that arrest record was sealed and destroyed pursuant to PC 851.87 or 851.91. In addition, a sealed and destroyed arrest record may not be denied in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensing by any state or local agency, or for contracting with the CA State Lottery Commission.

Statistical Info Not Sealed: A sealing and destruction of an arrest record does not destroy the booking information related to that arrest. For example, the petitioner’s fingerprints, photographs, or DNA collected during the booking process remains in the records of the Department of Justice. Also, the destruction of an arrest record does not mean that an agency authorized to search the petitioner’s criminal history will not know the defendant was arrested; rather, the facts and circumstances of the arrest are sealed but petitioner’s criminal record may continue to reflect that an arrest was “sealed.”

Court Records Sealed: The records sealed means files, and materials created, compiled, or maintained by or for the court in relation to court proceedings, and includes, but is not limited to, indexes, registers of actions, court minutes, court orders, court filings, court exhibits, court progress and status reports, court history summaries, copies of state summary criminal history information and local summary criminal history information, and any other criminal history information contained in any of those materials (PC 851.92 Abbrev.).

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How to Seal & Destroy Arrest Records in California

If you were arrested for a crime but never convicted, California law allows you to get your arrest records sealed and destroyed as a matter of right. Sealing a record means that it will not show up on most criminal background checks. Records of arrest will be destroyed, including

police reports,
fingerprints,
booking photos, and
rap sheet entries.

The process to seal a record involves three key steps:

You must first file a petition in the city or county where the arrest took place.
The petition must be served on the local prosecuting agency and the police agency that made the arrest.
Then a hearing takes place where a judge decides whether to grant or deny the petition.

A criminal defense attorney can handle the entire process for you.

The current law as to sealing originated as California Senate Bill 393, which then-Governor Jerry Brown signed into law on October 11, 2017. Called the Consumer Arrest Record Equity Act (CARE Act), SB 393 is now codified in Penal Code 851.87 PC. This section allows you to have your record of the arrest sealed as a matter of right when:

No criminal charges were ever filed,
Criminal charges were filed but later dismissed,
You were found “not guilty” (acquitted) in a jury trial,
Your conviction was vacated or overturned on appeal, or
You successfully completed a pretrial diversion or pre-sentencing program, such as Penal Code 1000 deferred entry of judgment. ¹

An exception to sealing an arrest record as a matter of right is when you have a history of arrests and/or convictions for:

Domestic violence,
Child abuse, and/or
Elder abuse.

As of July 1, 2023 with the passage of Senate Bill 731 – The Clean Slate Act, most people’s arrest and conviction records will get automatically cleared from their criminal record through a process called “automatic relief“:

Misdemeanor arrests should be sealed after 1 year if there are no charges, and felony arrests should be sealed after 3 years if there are no charges.
Cases that get dismissed should be cleared immediately.
Convictions of cases where you are granted probation should be cleared once the case closes.
Otherwise, misdemeanors convictions will be cleared 1 year after the case ends, while felony convictions will be cleared 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

1. What are the benefits of sealing an arrest record?

Criminal records are public records. This means that anyone can access another person’s criminal history.

Prospective employers, apartment owners, state licensing agencies, insurance companies — even potential dating partners — can run a background check and see someone’s criminal history. Such people may not care whether an arrest was justified or resulted in a conviction.

California’s “ban the box” law (codified in AB 1008) prohibits employers from considering a job applicant’s arrests that did not ultimately lead to a conviction. Again, however, employers may dismiss some job candidates because of their arrest records without ever stating this.

But once an arrest record is sealed under PC 851.87, members of the public will no longer be able to see it. The arrest record, police investigative reports, photos, fingerprints and court records will be inaccessible except for limited use by the state of California or criminal justice agencies. In short, a record seal gives the defendant a fresh start.

2. What is California’s Clean Slate Law / SB-731?

In full effect as of July 1, 2023, California’s Clean Slate Law (SB-731) automatically clears most arrest and conviction records from your criminal history after certain conditions or waiting periods are met.

Your California criminal record	When your record is eligible for automatic relief (in most cases)
Misdemeanor arrest with no charges brought	1 year after the arrest
Misdemeanor charge which gets dismissed	Immediately after the dismissal
Misdemeanor conviction where you are granted probation	Immediately after probation is done
Misdemeanor conviction where you are not granted probation	1 year after case closes
Felony arrest with no charges brought	3 years after the arrest
Felony charge which gets dismissed	Immediately after the dismissal
Felony conviction where you are granted probation (not including serious, violent, or sex offender crimes)	Immediately after probation is done
Felony conviction where you are not granted probation (not including serious, violent, or sex offender crimes)	4 years after case closes

The Clean Slate Act takes the burden off you to file a motion to seal or expunge your record. Plus for the first time, it allows for automatic relief of felony convictions where you may have been incarcerated – thereby greatly increasing the employment and housing prospects for countless people.²

Note that the automatic record relief process may get delayed if you pick up new criminal cases in the interim. Plus if your criminal record is never eligible for automatic relief, you still may be able to get relief by filing a petition to seal or expunge.

Also note that automatic relief does not restore firearm rights.

3. Who is eligible to seal an arrest?

Penal Code 851.87 gives people the right to have an arrest record sealed as long as their arrest did not result in a conviction. For purposes of PC 851.87, an arrest did not result in a conviction if any of the following apply:

No charges were filed and the statute of limitations on each possible felony, misdemeanor, or infraction charge has expired;³
Charges were filed but they were later dismissed and cannot be refiled (for example, as the result of a Penal Code 995 motion);⁴
Charges were filed but the defendant was acquitted (found “not guilty”) at trial;
The defendant was convicted, but the conviction was vacated or reversed on appeal and the charge(s) may not be refiled; or
Charges were dismissed after the defendant successfully completed a pretrial or pre-sentencing program such as drug diversion.⁵

Note that as of July of 2022, California has been automatically sealing misdemeanor records of people who have stayed out of trouble for one year. Then as of July of 2023, California is automatically sealing most felony records of people who have stayed out of trouble for four years.

However, this automatic record sealing process excludes people convicted of serious or violent felonies. These people would still need to formally petition for a record seal. Plus, sex offenders generally cannot get a record seal.⁶

how to expunge a conviction under California Penal Code 1203.4 PC. Expunging is a more difficult process since the defendant has pleaded guilty or “no contest” to, or been convicted of, a crime.

The key is that there was no conviction and no exceptions apply.

4. What does it mean to seal an arrest “as a matter of right”?

Under the old law (Penal Code 851.8 PC) the person who was arrested had the burden of proving that he or she was “factually innocent.”

SB 393 / PC 851.87 shifts the burden of proof to the prosecutor to prove that someone is not entitled to seal their record — for instance due to a pattern of domestic violence or because charges can still be filed.

Almost everyone else is entitled to have their arrest records sealed as a matter of right (automatically). The key is that the arrest did not result in a conviction and no exceptions apply.

5. Who is NOT eligible to have an arrest record destroyed in California?

A person is not eligible to have an arrest record sealed if any of the following apply:

He or she may still be charged with any of the offenses upon which the arrest was based;⁷
The arrest was for murder or another crime for which there is no statute of limitations (unless the person was acquitted or found factually innocent of the charge);⁸
The person was not charged because he or she intentionally evaded law enforcement efforts to prosecute the arrest, such as by absconding from the jurisdiction;⁹
The person evaded efforts to prosecute the arrest by engaging in identity fraud and was subsequently charged with a crime for that act of identity fraud.¹⁰

6. What counts as a “pattern” of domestic violence or abuse?

People are not entitled to seal a California arrest as a matter of right if their criminal record shows a “pattern” of:

Domestic violence,
Child abuse, or
Elder abuse.

Under SB 393 and California Penal Code 851.91 a “pattern” is defined as two or more convictions, or five or more arrests, within a three-year period.¹¹

However, people who fall into this category can still petition to have their records sealed on the grounds that doing so would “serve the interests of justice.”

In determining whether the interests of justice would be served by sealing an arrest, the judge may consider any relevant factors, including (but not limited to):

Hardship to the petitioner caused by the arrest that is the subject of the petition;
Declarations or evidence regarding the petitioner’s good character;
Declarations or evidence regarding the arrest; or
The petitioner’s record of convictions.

7. When can a sealed arrest record be legally used in California?

Although sealing a record effectively destroys it for most purposes, it does not entirely cease to exist.

The sealed arrest may be pleaded and proved if the petitioner is subsequently prosecuted for any other offense.¹²

Additionally, a criminal justice agency may, in the regular course of its duties, access and disclose the arrest to other law enforcement agencies to the same extent as if it had not been sealed.¹³

Sealing also does not relieve the petitioner from:

Any existing duty to register as a sex offender pursuant to California Penal Code 290 PC;
Any legal prohibition against holding public office that may result from the arrest;¹⁴
Any prohibition against owning or possessing a firearm or susceptibility to a conviction for violating California’s “felon with a firearm” law;¹⁵ or
The obligation to disclose the arrest as otherwise required by law in response to a direct question on an application for:
- Public office,
- Employment as a peace officer,
- Licensing by any state or local agency, or
- A contract with the California State Lottery Commission.¹⁶

Finally, it should be noted that sealing an arrest applies solely to the specific arrest being contested. It does not erase one’s entire criminal record. People must submit a separate petition for each arrest on their record that did not result in a conviction.

8. Is there a deadline for moving to seal my California arrest record?

Under prior California Penal Code 851.8 people had just two years from the later of their arrest or the filing of charges to petition to seal their arrest record. Penal Code 851.87 contains no time limit for petitioning.

However, the new law has not yet been tested in court.

Accordingly, we recommend filing a petition to seal an arrest as soon as it is no longer possible for the prosecutor to file or refile charges.

An experienced California criminal lawyer can help you determine when you have eligibility to file for relief.

9. What is the process?

Note that the record seal process is automatic for most

misdemeanors (if you stayed out of trouble for one year) and
non-serious and non-violent felonies (if you stayed out of trouble for four years).¹⁷

9.1. Filing the petition with the court

A petition to seal an arrest record in California must be filed either:

In the superior court in which charges based on the arrest were filed or,
If charges were not filed, in the city or county in which the arrest occurred.

The petition must then be legally served on both:

The prosecuting attorney of the city or county in which the arrest occurred, and
The law enforcement agency that made the arrest.¹⁸

Penal Code 851.91 requires the following information to be provided with the petition to seal the arrest record:

The petitioner’s name and date of birth.
The date of the arrest for which sealing is sought.
The city and county where the arrest took place.
The name of the law enforcement agency that made the arrest.
Any other information identifying the arrest, such as a case or court number.
The alleged offenses upon which the arrest was based or charges were filed.
A statement that the petitioner is entitled to have his or her arrest sealed either as a matter of right or in the interests of justice, as applicable.
If the petition is based on the interests of justice, a statement of how those interests would be served by granting the petition and declarations in support.¹⁹

9.2 The hearing

If the District Attorney contests the petition the court will schedule a hearing.

The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.

At the hearing the judge will examine the arrest record and, if necessary, evidence of why sealing is in the interests of justice.

Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records — and because the judge can deny your motion with prejudice so that you may not re-file your request — it is critical to hire a skilled California criminal defense attorney.

A responsible attorney will thoroughly research your court case and make sure all paperwork is done correctly the first time to ensure that no time is lost due to incomplete or inadequate forms. S/he will also conduct the PC 851.87 hearing and argue your case to the judge.

10. How long does it take?

If your criminal record is eligible for an automatic seal pursuant to the Clean Slate Act, your record should be cleared within a month. Otherwise, it typically takes about ninety (90) days after filing a petition to get a court order to seal an arrest record in California.

Within 30 days of the court’s issuance of the order to seal an arrest record, the court will notify:

The law enforcement agency or agencies that made or participated in the arrest,
The law enforcement agency that administers the master criminal history records, and
The California Department of Justice.

The petitioner’s master criminal record and court record will then be updated to note that the arrest has been sealed. The file will be stamped that the record may not be released outside the criminal justice sector.

The responsible local law enforcement agency will ensure that this information is included in all master copies, digital or otherwise, of the police investigative report related to the arrest that was sealed.

Arrest records, police officer investigative reports, and court records that are sealed under this section shall not be disclosed to any person or entity except:

The person whose arrest was sealed, or
A criminal justice agency (which may use the information to the same extent as if the arrest had not been sealed).²⁰

11. What remedy do I have if a sealed arrest record is released?

Improper dissemination of a sealed arrest can be punished by a civil penalty of between $500 and $2,500 per violation. The penalty may be enforced by a city attorney, district attorney, or the Attorney General.

The person affected may also have the right to bring a lawsuit for compensatory damages or possibly even punitive damages (if the release was reckless or intentional).

Our California personal injury lawyers offer free consultations to people who have suffered damages as a result of their arrest record being unlawfully released.

12. What is the difference between sealing arrest records and sealing juvenile records?

Sealing and destroying an adult arrest record under PC 851.87 is a completely different process from sealing a juvenile record. You are eligible to seal your California juvenile criminal record if

You are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
As an adult, you have not been convicted of any crimes involving moral turpitude (that is, crimes that involve dishonesty or immoral behavior), and
There is no pending civil litigation based on the juvenile incident.²¹

Legal references:

Penal Code 851.91; 851.92(b)(2)(B). See, for example, People v. E.B.(Cal. App. 6th Dist., 2020) 51 Cal. App. 5th 47. Before the enactment of SB 393, it was difficult for someone whose arrest did not result in a conviction to get the arrest record sealed. The person essentially had to prove to bring a petition for factual innocence per PC 851.8 and show that the person never should have been arrested — even when the prosecutor never filed charges or the charges were later dismissed. The arrest would then show up on the criminal background checks run by potential employers, landlords and others, leading to unfair discrimination against innocent people. Under the new law, all a person must do is demonstrate to a judge that the arrest did not result in a conviction (“legal innocence”). The burden then shifts to the prosecutor to prove that the applicant is NOT entitled to have his or her record sealed (for instance because the person has a background of domestic violence).
SB-731. AB 1076. PC 1203.045. PC 851.93. See old Penal Code 851.8 PC. The old procedure required people who were arrested but not charged to submit a “petition to seal and destroy arrest records” to the relevant law enforcement agency. Not hearing back in 60 days indicated the agency denied the petition. Otherwise, the agency would seal the record and – after three years – physically destroy it. Finally, a petition for factual innocence would need to be filed with the relevant superior court, which will then hold a hearing on the matter. In cases where there were charges followed by a dismissal or acquittal, the person would instead submit the petition to the court and D.A. rather than the police agency. The court would then hold a hearing on the matter.
California Penal Code 851.91(a)(1)(A).
Penal Code 851.91(a)(1)(B)(i).
Penal Code 851.91(a)(1)(B)(ii) & (iii).
Senate Bill 731 (2022). Penal Code 851.93. Soumya Karlamangla, California Will Soon Have the Nation’s Most Expansive Record-Clearing Law, NY Times (November 28, 2022).
Penal Code 851.91(a)(2)(A).
Penal Code 851.91(a)(2)(B).
Penal Code 851.91(a)(2)(C). Note that the mere existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.
Penal Code 851.91(a)(2)(D).
Penal Code 851.91(c)(2).
Penal Code 851.91 (e)(2)(B)(i).
Penal Code 851.92 (b)(6).
Penal Code 851.91 (e)(2)(B)(iv).
Penal Code 851.91 (e)(2)(B)(iii).
Penal Code 851.91 (e)(2)(B)(ii).
Senate Bill 731 (2022). Penal Code 851.93.
Penal Code 851.91 (b)(1)(B) & (D).
Penal Code 851.91(b)(1)(E).
Penal Code section 851.92(b)(2)(B)(6).
California Welfare and Institutions Code 781 and 781.5.
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Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

The Truth News — Tue, 25 Jan 2022 04:25:04 +0000

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

An expungement under California Penal Code 1203.4 PC allows you to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. When the court grants it, an expungement releases you from many of the negative consequences of a criminal conviction.

The language of the code section states that:

1203.4. (a) (1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if they are not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code.

Who is eligible to have a conviction expunged?

Expungement is available to you if you were convicted of either California misdemeanors or felonies provided that:

You have successfully completed probation for the offense, and
You either:
- Did not serve time in state prison for the criminal case, or
- Served time in state prison, but would have served it in the county jail had the crime been committed after implementation of “Realignment” under Proposition 47.¹

Note that the California Department of Justice reviewed and sealed all past marijuana convictions that are no longer considered crimes now that recreational marijuana is legal. This process should have been done by July 1, 2020. See California Assembly Bill 1793 (2018).

What does a California expungement do?

Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.²

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers on job applications.

As it is, California’s ban the box law, AB 1008, bars employers from asking about your criminal record until there is a conditional offer of employment.

But once a conviction has been expunged under California law, it does not have to be disclosed to an employer even after the employer makes a conditional offer of employment.

Who is not eligible for an expungement in California?

You are not eligible for expungement if you:

are currently charged with a criminal offense,
are on probation for a criminal offense or
are serving a sentence for a criminal offense.

You are also not eligible for expungement if you are convicted of certain sex crimes involving children.

If you are not eligible for expungement, you may be able to get relief for your offenses through:

1. How the California expungement process works

An expungement is a form of post-conviction relief authorized by California Penal Code 1203.4 PC. It releases you from “all penalties and disabilities” arising out of a conviction.

As criminal defense attorney John Murray³ explains,

“In today’s economy — where finding a job is tougher than ever — you want to do everything in your power to make yourself the most desirable candidate. Clearly, this includes being able to state that you have a clean criminal record–something that a PC 1203.4 expungement may allow you to do.”

Expungements are also beneficial for securing or maintaining California professional licenses and for joining many professional organizations. Dismissal of an offense offers a “fresh start” from an otherwise criminal past.

1.1. Who is eligible to get a California expungement?

As a basic rule, Penal Code 1203.4 PC authorizes an expungement for a misdemeanor or expungement for a felony offense provided you:

successfully completed probation (either felony probation or misdemeanor probation), and
are not currently:

charged with a criminal offense,
on probation for a criminal offense, or
serving a sentence for a criminal offense.⁴

If you are applying for PC 1203.4 relief, you must have successfully completed probation in its entirety (or obtained an early termination of probation, discussed below).

What does it mean to “successfully complete probation”?

“Successfully completing probation” means that you:

completed all the terms of your probation (that is, paid all fines and restitution, completed any counseling programs, community service, etc.),
attended all required court appearances (either personally or through an attorney), and
did not commit any new crimes while on probation.

How does “realignment” affect eligibility under PC 1203.4?

If you went to California state prison — either at the time of judgment or because of a probation violation — you do not generally qualify for a PC 1203.4 expungement.

But there is an exception if you would have served your sentence in county jail if you had committed the crime after “realignment.” (For more information, please see the discussion on Penal Code 1203.42 in Section 1.4, below).⁵

Can prisoners who worked as firefighters through a prison fire camp get an expungement?

In many cases, yes. And you may be able to get your parole waived. Learn more here: California Assembly Bill 2147 (2020).

1.2. Who is NOT eligible to get a California expungement?

As noted above, a conviction cannot be expunged if you were sentenced to state prison UNLESS the crime is one for which you would now be sentenced to jail.

Beyond that, there are also certain felony offenses that can never be expunged. These include serious sex offenses committed against children, such as

Penal Code 286(c) PC California’s law against sodomy with a child,
Penal Code 288 PC California’s lewd acts with a child law,
Penal Code 287 (c) PC California’s law against oral copulation with a child, and
Penal Code 261.5(d) PC California’s statutory rape law, which prohibits sexual intercourse between persons who are 21 years and older and persons younger than 16.⁶

1.3. Can I get an expungement if I violated (or didn’t satisfy) my probation?

It is generally true that you must have successfully completed all conditions of probation to be granted an expungement.

But even if you received a probation violation, all hope is not lost. The court will hold a special hearing to determine whether you are nonetheless a good candidate for expungement.⁷

The court’s discretion to dismiss a conviction

In the wake of a probation violation, the court has wide discretion as to whether to grant or deny a petition for a PC 1203.4 expungement. Factors that the judge may consider include (but are not limited to):

your overall performance while on probation,
the seriousness of the underlying conviction,
your criminal history, and
any additional evidence that shows why you are deserving of this relief, such as
- opportunity to obtain a good job,
- support of the applicant’s family,
- strong community ties, etc.

1.4. What if I could have been sentenced to county jail under Prop 47 realignment?

If you were convicted and sentenced to state prison, you may still be able to expunge a conviction. You are eligible if you would have been sentenced to jail for the crime had it been committed after 2011’s Proposition 47 Realignment legislation.

This exception is found in California Penal Code 1203.42 PC. Relief under Penal Code 1203.42 is not automatic but may be granted by a court, in its discretion. Judges can grant the expungement if they believe it would be in the interests of justice.

To qualify under PC 1203.42, the crime must have been one currently punishable in county jail AND:

at least two years have passed since you completed your sentence, and
you are not:
- under supervised release for a crime,
- serving a sentence for any offense,
- on probation for any offense, or
- charged with the commission of any crime.

How do I obtain an expungement under PC 1203.42?

The expungement process in California starts by filing a petition with the court under Penal Code 1203.42. You may make the application:

in person,
by an attorney, or
by a probation officer authorized in writing.

The court may then either:

Permit you to withdraw your plea of guilty or “nolo contendere” (no contest) and enter a plea of not guilty, or,
If you have been convicted after a plea of not guilty, set aside the verdict of guilty.

In either case, the court will then dismiss the accusations against you. Afterward, you will be released from all penalties and disabilities resulting from the offense to the same extent as a regular expungement under PC 1203.4.

2. How do I expunge a criminal record in California?

Expunging criminal records in California requires the following five steps:

Step 1: Hire an attorney

The expungement process is confusing and time- and paperwork-intensive. There are many opportunities for error that could get an application denied. But experienced criminal defense attorneys know how to streamline the process and get it right on the first try.

Step 2: Fill out the proper forms

A criminal defense attorney knows which forms to use for each situation. Otherwise, most expungement application forms are available at the relevant courthouse or through an internet search.

For example, if you completed misdemeanor probation, you would fill out a petition to dismiss a misdemeanor under PC 1203.4. If probation has not been completed, you would instead fill out a motion to terminate probation. And if that is denied, you would fill out a petition for dismissal.

Note that felonies cannot be expunged until they get reduced to misdemeanors. Courts usually grant requests to reduce wobblers (crimes that can be felonies or misdemeanors) down to misdemeanors.

But non-wobbler felonies can only be reduced to a misdemeanor by filling out a form pursuant to PC § 17(b)(3). Only then can you fill out a petition to dismiss a misdemeanor under PC 1203.4.

Also note that you must fill out one form for each conviction to be expunged. You can also include character references with the expungement petition.

Step 3: File for expungement

Once the proper forms are filled out, they must be filed with the court where the case was heard. The court will usually respond within five months.

Every court has its own policies and fees. Sometimes expungement forms must be delivered in person or mailed.

Timely filing paperwork is critical. For example, you must provide the prosecutor with at least 15 days’ notice prior to the hearing. This is to give the prosecutor an opportunity to review the case and object if desired.

If you are indigent, you may be able to get financial assistance to cover the filing fees.

Step 4: Prepare for the expungement hearing

Whether you have to appear at your expungement hearing depends on the case. Your criminal defense attorney will keep you informed and help prepare for the hearing if necessary.

Ultimately, the judge makes the decision whether to grant an expungement. There is no jury. You are more likely to get an expungement if you:

are able to hold down a job,
had no additional convictions, and
have completed all required community service.

Step 5: Refile if the petition is denied. Seal the expungement if the petition is granted.

If the judge denies the expungement, after six months you can file a new petition with any required changes.

If the judge grants the expungement, the defense attorney should then seal the case so it is no longer visible to the public. And you can deny ever having a criminal record in most situations. Some exceptions are if you:

run in public elections,
apply for a state license, or
seek employment with the California Lottery Commission.

2.1. What an expungement can do

There are numerous benefits to obtaining a California expungement. Some of the most significant include:

An employer may not discriminate against your job application based on expunged convictions⁹;
Easier to obtain a state professional license;
Expunged convictions can’t be used to impeach your credibility as a witness in court (unless you are the defendant being prosecuted in the subsequent case);¹⁰ and
In some cases, helping avoid certain immigration consequences such as deportation.

Limitations on the disclosure of expunged convictions to potential employers

The value of a PC 1203.4 expungement has increased significantly in recent years.

This is because, in the past, your criminal history was unlikely to be discovered by anyone but law enforcement.

But then information companies began indexing criminal court records into vast national databases that could be searched by name and date of birth.

This new technology allows:

potential employers,
licensing agencies, and
professional organizations

to conduct a background check and find a criminal record in moments.

This is where the benefits of an expungement come into play. It is easy now for potential employers to find out about a past criminal conviction.

But legally if a conviction has been expunged, they may not use it to deny you employment.

2.2. What an expungement will NOT do

Unfortunately, there are several limitations on what an expungement under California Penal Code 1203.4 PC can do. For example, an expungement will not:

overturn a driver’s license suspension or revocation,¹¹
restore California gun rights under Penal Code 29800 PC California’s felon with a firearm law,¹² or
end the duty to register as a California sex offender under Penal Code 290 PC.¹³

Expunged convictions may also still be used as prior convictions to enhance sentencing. For instance, an expunged DUI conviction still counts as a prior if you are later arrested for another DUI.

And an expunged conviction that would count as a “strike” for purposes of California’s three-strikes law is still a strike.¹⁴

How to obtain the relief an expungement cannot grant

Additional rights can often be restored through alternative avenues of post-conviction relief.

These include:

A California Certificate of Rehabilitation, and/or
A California Governor’s Pardon¹⁵

2.3. When can I apply for a PC 1203.4 expungement?

If you are eligible under PC 1203.4, you may petition the court to expunge a conviction on the earlier of:

completion of probation, or
early termination of probation (which must be granted by a court).

(Note that if you qualify under PC 1203.42, you may only petition the court if at least two years have passed since the completion of your sentence).

Can I petition for early termination and expungement at the same time?

Many times, a California criminal defense lawyer can expedite the expungement process by “packaging” a number of motions into one.

The most common example of such packaging includes asking the court in a single proceeding to:

grant an early termination of probation (which the court has the option of granting as long as the petitioner is in compliance with the terms of his or her probation),
reduce a felony to a misdemeanor (in cases where the felony offense is classified as a “wobbler” — that is, a charge that the district attorney could have filed as either a felony or a misdemeanor), and
expunge a conviction.

2.4. What is the difference between expungement and sealing/destroying records?

Many people who contact us about expungements also wish to “seal and destroy” adult and juvenile criminal records.

Sealing and destroying arrest records per SB 383 is a totally different process from expunging records of criminal convictions under PC 1203.4.

You are entitled to have a California arrest record sealed and destroyed if:

you were arrested, but the prosecutor never filed criminal charges, or
the case was dismissed in court, or
you were acquitted by a jury following a jury trial, or
the conviction was overturned and dismissed on appeal, or
you successfully completed a program of diversion, such as Prop 36 drug diversion or Penal Code 1000 deferred entry of judgment,¹⁶

Sealing an arrest record generally allows you to state that you have never been arrested for a crime. This is because in order to seal a record the judge must declare you factually innocent.

Sealing a juvenile arrest record

Sealing a California juvenile court record provides you with the same benefits as sealing an adult record. You may seal a juvenile arrest record if:

you are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
as an adult, you have not been convicted of any crimes of moral turpitude (that is, a crime involving dishonesty or immoral behavior), AND
there is no pending civil litigation based on the juvenile incident.

Once the judge grants the motion to seal and destroy a juvenile arrest record it is sealed for 3 years and destroyed thereafter.¹⁷

3. Frequently Asked Questions about California Expungement Law

Q. How long will my criminal record stay on the books after I get an expungement?

A. Criminal records are maintained indefinitely even if a conviction was expunged under Penal Code 1203.4 PC. Criminal records do not automatically go away after a certain amount of time.

If the court doesn’t expunge or seal and destroy the record(s), the conviction(s) will always be a part of your criminal record.

Q. Who can access my criminal record after I get an expungement?

A. Criminal records are “public records.” So anyone can access a criminal record even after a PC 1203.4 expungement — unless the record is sealed.

People who often access criminal records include:

potential employers,
landlords, and
licensing agencies.

Q. What happens when I expunge my record?

A. In California, when a record is expunged, a plea of guilty or no-contest (or a conviction after trial) gets set aside by a judge. You then enter a new plea of “not guilty” and the judge dismisses the case.¹⁸

Q. How long does it take to expunge my record?

A. Generally, we can have a PC 1203.4 petition filed and heard within one to two months. But this can vary depending on the county in which you reside.

In cases where you are actively seeking employment, we can seek to expedite the process.

Q. How do I find out if I qualify to have my record expunged?

A. Generally, you qualify for an expungement under Penal Code 1203.4 if you:

committed a felony or misdemeanor and were not incarcerated in the California state prison,
fulfilled the terms of your probation, and
were not convicted of one of the specific crimes that make you ineligible to receive a California expungement.¹⁹

But, to make sure, contact a California criminal defense attorney.

Q. What is “felony reduction”?

A. If you were convicted of a “wobbler” (that is, a crime that can be charged as either a felony or misdemeanor), you can generally petition to reduce the felony conviction to a misdemeanor.²⁰

Q. Will you reduce my felony to a misdemeanor prior to expunging the record?

A. Yes. If your conviction was for a wobbler, we will petition the court to have the felony reduced to a misdemeanor prior to having it expunged under PC 1203.4. We will also ask for an early termination of probation where appropriate.

Q. Does it cost more to have my felony reduced BEFORE expungement?

A. No. The price is the same. Reducing the felony first just expedites the process.

Q. Do I have to appear in court?

A. Generally not. The California expungement process typically allows a lawyer to appear on your behalf through all stages of the proceedings.²¹

Q. What is the filing fee for a California expungement?

A. It varies, depending on

the county in which you reside, and
whether you were convicted of a misdemeanor or a felony.

For example, Los Angeles County doesn’t charge a filing fee per se, but will charge a maximum of $120 once the court rules on the motion. San Bernardino County charges a $270 filing fee. San Diego County charges a petition fee of $60 for a misdemeanor and $120 for a felony.

All counties have some type of financial assistance available if you are unable to pay.

Q. How will I know that my California criminal record was expunged?

A. We provide you with a signed order by a California Superior Court Judge setting aside the conviction and dismissing the case.

Q. After my record is expunged, can I answer “No” if I’m asked whether I have a criminal record?

A. Yes. This is one of the benefits of obtaining a PC 1203.4 California expungement. Once the court grants an expungement, you can legally answer “no” if asked about a criminal record UNLESS:

You are applying to become a peace officer or run for public office,
You are applying to work for the California Lottery Commission, or
You are applying for a state license.²²

Q. Will expunging my record help me find a better job?

A. Many times, yes. If the employer doesn’t run a background check, they will probably never find out about the conviction. Remember — you no longer have to disclose any conviction unless and until the employer makes a conditional offer of employment.

But even if an employer does conduct a background check, it will show if a conviction was expunged. This will tell the potential employer that a California court has said you are ready to make a “fresh start”.

Q. Will expunging my record help me obtain a state license?

A. Often times, yes. Many California state licensing authorities require expungement of a conviction under Penal Code 1203.4 PC before they will issue a license.

But even when an expungement is not enough, we may be able to help you obtain a “Certificate of Rehabilitation,” which offers even more benefits.²³

Q. What is a “Certificate of Rehabilitation”?

A. A Certificate of Rehabilitation (“COR”) is a court order stating you have been rehabilitated from your criminal past.²⁴

You must wait between seven (7) and ten (10) years after being released from custody, depending on the specific offense for which you were convicted.²⁵

There are many benefits to a Certificate of Rehabilitation, including:

A certificate of rehabilitation becomes an automatic application for a Governor’s Pardon;
You cannot be denied a state license without other cause;
A COR sends a message to prospective employers that you have overcome your criminal history and are prepared to make a fresh start.

But remember — an expungement or COR is not necessary for an arrest that did not result in a conviction. Employers (and prospective employers) may not discriminate against you based simply on arrests. In fact, they aren’t even legally allowed to inquire about them.²⁶

Q. What is a Governor’s Pardon?

A. A Governor’s Pardon is the ultimate relief from the penalties and disabilities associated with a criminal conviction.²⁷

You must usually wait at least ten (10) years after being discharged from probation or parole in order to apply to the governor for a pardon. Or you must obtain a finding of factual innocence (discussed above under section 2. sealing and destroying records).²⁸

If you receive a Certificate of Rehabilitation, you may apply for a pardon in as little as seven (7) years after release from custody. This is because a COR acts as an automatic application for a pardon.

Q. What are my options for sealing and destroying my California arrest records after I get an expungement?

A. There are a number of ways to seal records. The most common are:

sealing of juvenile records,
sealing of arrest records, and
sealing of records after plea withdrawal and case dismissal.

Juvenile arrest records

In order to be eligible for sealing a juvenile record, two criteria must be met:

The juvenile court jurisdiction must have terminated at least five years ago.
You must not have suffered a conviction for a crime of moral turpitude (that is a dishonest or immoral crime) as an adult.²⁹

But even if these two criteria have been met, certain serious crimes cannot be sealed.³⁰ These crimes include:

murder,
robbery and
child molestation.

Sealing of records generally

Except as set forth above, sealing an arrest record is generally possible if

You were arrested and no accusatory pleading was filed,
The DA dismissed the case, or
You were found “not guilty” after a California jury trial.³¹

Also, if you prove that you were factually innocent of the charges, the arrest record will be ordered sealed for 3 years and destroyed thereafter.³²

Q. I have a felony and can’t get a green card or citizenship. Can you help me?

A. Many times, yes. We are often able to get a non-U.S. citizen’s wobbler felony reduced to a misdemeanor. This makes you eligible for permanent residency and ultimately U.S. citizenship. Or we may be able to get a conviction set aside completely.

Once we review the facts and circumstances of your case, we research the most promising options to help avoid immigration issues such as deportation or removal.

Q. I am required to register as a sex offender pursuant to California Penal Code 290 PC. Can an expungement help me obtain relief from my lifetime duty to register as a sex offender and get off Megan’s list?

A. No. A California Penal Code 1203.4 PC expungement cannot provide this type of relief. But a Certificate of Rehabilitation and Governor’s pardon often can, as long as the conviction was not for a sex crime against a child.³³

source

What Is California Penal Code 1203.4?

California Penal Code (CPC) 1203.4 outlines the legal process for expungement of certain criminal convictions in California.

“Expungement” means a criminal conviction is set aside or dismissed after completing certain criteria (e.g., probation).

It allows you to legally state that you weren’t convicted of the offense, which can help improve job prospects, secure or maintain professional licenses, and join certain organizations.

Who Is Eligible for a 1203.4 Expungement (California)?

Under California Penal Code Section 1203.4, you’re eligible for expungement if:

You’ve been convicted of a misdemeanor or felony and successfully completed probation.
You’ve been convicted of a misdemeanor or felony and weren’t placed on probation — in this case, you can only petition one year after the date of conviction.

To clarify, you need to meet all terms to “successfully complete probation,” including:

Paying fines and restitution
Completing counseling programs, community service, etc.
Attending all court appearances
Not committing new crimes while on probation

Also, to be eligible, you can’t currently be:

Charged with a criminal offense
On probation for a criminal offense
Serving a sentence for a criminal offense

What Crimes Are Not Eligible for Expungement in California?

If you were sentenced to state prison, you generally don’t qualify for expungement under CPC 1203.4.

In addition, some criminal offenses can never be expunged, including sex crimes against children like:

Sodomy with a Minor (Penal Code Section 286(c))
Lewd and Lascivious Acts with a Minor (Penal Code Section 288)
Oral Copulation with a Minor (Penal Code Section 288a(c))
Unlawful Sexual Intercourse with a Minor (Penal Code Section 261.5(d))

9 Benefits of Getting an Expungement of Criminal Records in California

Everyone eligible for expungement under CPC 1203.4 or 1203.4a should petition for it.

This is because having a clean criminal record comes with several benefits:

It helps with employment — you won’t have to disclose your conviction on job applications.
It forbids employers from discriminating against you due to your criminal records.
It may make it easier to get state professional licenses.
It may reduce barriers to immigration and related issues.
You’ll regain certain civil rights, like the right to vote and serve on a jury.
It’ll improve your eligibility for government assistance programs.
It’ll boost your eligibility for housing and rental applications.
It’ll reduce the negative social stigma that comes with having a criminal record.
It makes it easier to adopt a child.

4 Things CPC 1203.4 Does NOT Do

There are several benefits to getting your criminal records expunged under CPC 1203.4, but it isn’t a silver bullet. You’ll still have some limitations that come with a past conviction:

Record expungement won’t lift driving privilege restrictions or reinstate a suspended or revoked driver’s license.
It won’t restore your gun rights in California if your conviction prevents firearm ownership.
It won’t exempt you from registering as a sex offender under Penal Code Section 290.
If you’re charged in the future, your expunged conviction will still count as a prior conviction and may increase your sentence.

You’ll have to address these limitations through other means. Your gun rights can be restored with a Governor’s Pardon, for example.

4 Steps to Expunge Your Criminal Records under California Penal Code 1203.4

To expunge your criminal records under CPC 1203.4, you need to take the following four steps:

1. Hire an Attorney

The expungement process is complex and paperwork-heavy. Most people end up making mistakes that lead to their petitions being denied.

2. Fill Out the Required Forms

A criminal defense attorney knows which forms to use. You can find most of these documents at your local courthouse or on the internet:

Use the PC 1203.4 petition form for misdemeanors with completed probation.
File a motion to terminate probation for uncompleted probation — if that’s denied, you need to fill out a petition for dismissal.

Felonies need to be reduced to misdemeanors before being expunged. You can request a court to reduce your wobbler offense.

For non-wobbler offenses, you need to fill out a form under PC § 17(b)(3) before petitioning for dismissal under PC 1203.4.

3. File for Expungement

After filling out the correct forms, you need to file them with the court where your case was heard.

Every court has its own policies and fees — this is where things get tricky:

You may have to deliver the forms in person or through the mail.
There are various deadlines to deliver subsequent paperwork.
The prosecutor will review your paperwork and my object.

4. Prepare for Your Expungement Hearing

Not everyone has to appear at their expungement hearing. Your defense attorney can help you prepare if needed.

If the judge grants your petition, you need to seal the case to hide it from the public — your defense attorney can do this for you.

If your petition was denied, you can file a new one six months later.

FAQs About California Penal Code 1203.4 (Expungement)

1. What Does “Dismissed per 1203.4” Mean?

In practical terms, “dismissed per 1203.4” means your conviction has been set aside, and you can legally state that you weren’t convicted of the offense.

2. How Do I Get a Dismissed Case off My Record in California?

To get a dismissed case off your record in California, you need to petition the Superior Court that has jurisdiction over your case and file a copy of the petition with the DA’s office.

3. How to Find a Qualified Expungement Attorney in California?

The best way to find a qualified expungement attorney in California is to look at the attorney’s experience and client reviews.

4. Can All Misdemeanors Be Expunged in California?

In California, nearly all misdemeanors can be expunged aside from some Vehicle Code violations and other rare exceptions.

5. What Is Considered a Misdemeanor in California?

A misdemeanor is any offense punishable by fines, probation, community service, or up to one year in county jail.

6. How Long Before You Can Expunge a Felony in California?

We can help you start the felony expungement process once you complete all terms of probation. If you didn’t receive probation, we can begin one year from the date of your conviction.

7. How Much Does It Cost to Get Your Record Expunged in California?

The cost of getting your record expunged in California varies depending on several factors, such as:

The complexity of your case
Filling fees
Attorney fees
Notary fees
Whether you’re eligible for financial assistance

8. How Long Does It Take to Expunge a Misdemeanor in California?

The time it takes to expunge a misdemeanor in California varies, depending on factors like the specific court’s caseload. It usually takes us two to four months to complete the entire process.

9. Will I Have to Attend a Court Hearing to Get My Records Expunged?

In most cases, a court hearing isn’t necessary. If a hearing is scheduled, we can almost always handle all court appearances for you.

10. What Happens If My Expungement Request Is Denied?

If your expungement request is denied, consulting with an attorney is essential. We can review your case and advise you on whether appealing the judge’s decision or reapplying at a later time is the best course of action.

11. How Do You Check If Your Record Has Been Expunged?

The easiest way to check if your criminal record has been expunged is to visit the court where your case was handled and ask to see the records. If the court tells you they don’t have your records, it means they were expunged.

12. Can Employers See Expunged Records (California)?

Typically, employers can’t see expunged records on a standard background check.

13. Do I Have to Disclose Expunged Records in California?

Generally, you don’t have to disclose expunged records in California. Exceptions include:

Applying for law enforcement or government agency jobs
Dealing with certain immigration matters
Applying for a state license
Running in public elections
Applying for a license, contract, or job with the State Lottery Commission

14. Can Police See Expunged Records in California?

Expunged records are inaccessible to general law enforcement. Under exceptional situations, they may be retrieved and used; but it typically requires a court order or statutory authorization.

15. Does 1203.4 Restore Gun Rights?

Expungement under 1203.4 does not restore gun rights if your conviction disqualified you from owning firearms (e.g., you were convicted of a violent felony such as murder, robbery, assault with a deadly weapon, etc.).

16. Can You Become a Police Officer with an Expunged Felony in California?

Technically, you can become a police officer with an expunged felony in California, but it’s very unlikely you’ll qualify. Talk to the police department you want to apply for to find out what their policy is.

17. What Is the Difference Between 1203.4 and 1203.4 A?

As we mentioned above, CPC 1203.4 focuses on expungement after probation.

California Penal Code 1203.4a allows you to petition to have infractions and misdemeanors with no probation expunged from your record one year after the conviction date.

18. What Is the Difference Between a Pardon and an Expungement in California?

An expungement under CPC 1203.4 seals your criminal conviction — for most purposes, it’s as if it never happened.

A pardon restores certain rights such as firearm and voting rights. However, your records will still show in background checks.

20. What Is the New Law for Expungement in California 2023?

The new law for expungement in California — SB 731 — is a transformative bill for those living with the consequences of having a criminal record. It came into effect on July 5, 2023.

Get a Second Chance at Life: Expunge Your Criminal Records with Legal Help

source

What is the new leaf program ?

EXPUNGEMENT OF CRIMINAL RECORDS IN CALIFORNIA – PENAL CODE 1203.4 PC

Criminal Defense Lawyers Helping People Expunge Convictions From Their California Criminal Record

A PC 1203.4 expungement of criminal record is an option for defendants who have successfully completed probation.

Expungement of criminal records in California in covered under Penal Code Section 1203.4. If you have been convicted of a crime, it’s typically very difficult to find a job and move forward with your life.

Most employers and landlords now routinely run background checks, which will reveal your past criminal history.

This clearly means if you have been convicted of crime, getting your criminal record expunged can have a impact on your quality of life.

So, what exactly does it mean to have your criminal record expunged?

In basic terms, it releases you from the penalties associated with your criminal conviction, meaning a potential employer in theory is prohibited from using your past conviction against you in their hiring decision or even asking you about it in the job interview.

Therefore, an expungement, pursuant to Penal Code Section 1203.4, can be an important step to make sure your life is not permanently impacted by a past criminal conviction.

It’s important to stop here for a moment and make a very critical note that California has no legal process for an actual expungement, which would completely seal a criminal conviction.

Most people incorrectly refer to a section 1203.4 dismissal as an expungement, believing their past conviction will be removed or erased from their record, known as a rap sheet..

This is a common myth and false. Instead, when a 1203.4 dismissal is granted, the court will vacate your conviction and enter a dismissal notation on your.

Once your conviction is dismissed, you can truthfully answer on an employment application that you have never been convicted of a crime.

However, many background checks will still show the conviction and dismissal, but the law prohibits an employer from using a dismissed conviction against you in hiring decisions.

See related information: Reduce a Felony Conviction to Misdemeanor and Early Termination of Probation in California.

If you were convicted of a crime in California and are seeking an expungement, call a Los Angeles criminal defense lawyer at Eisner Gorin LLP.

Our attorneys will need to closely review the details of your conviction in order to determine eligibility and legal options.

Expunged criminal records can certainly have an impact on your ability to obtain a job.

Now that we have covered the basic concept of an expungement, let’s take a closer look below.

CALIFORNIA PENAL CODE SECTION 1203.4 – EXPUNGEMENT

A California expungement of criminal records under Penal Code Section 1203.4 is an option for defendants convicted of either misdemeanors or felonies that have successfully completed probation and not served time in state prison.

The legal definition states, in part:

In any case in which a defendant has fulfilled the conditions of probation, or in any other case in which a court, in its discretion in the interests of justice, determines that a defendant should be granted the relief, the defendant shall be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or if they were convicted after a plea of not guilty, the court shall set aside the verdict of guilty and dismiss the accusations against the defendant and shall thereafter be released from all penalties and disabilities resulting from the offense of which they were convicted.

This means you are eligible to petition the court to get your criminal records expunged once you have completed your entire probationary period.

If the court decides to terminate your probation before the end of the probationary period, you can petition for an expungement when the probation ends.

If you were convicted of a misdemeanor offense or an infraction and not granted probation, you can petition to have your criminal record expunged after one year the court issued judgment.

WHO IS ELIGIBLE FOR A CALIFORNIA EXPUNGEMENT?

The following categories of people are eligible to expunge their criminal record under California under Penal Code Section 1203.4:

If you were convicted of a misdemeanor or felony offense and have successfully completed probation, then you can petition the court to have the conviction dismissed; You will need to petition the court to have certain felony convictions reduced to a misdemeanor before being dismissed;
If you were convicted of a misdemeanor or felony offense and never placed on probation, you can petition the court to have the conviction dismissed after one year from the date of conviction.

It’s important to note that successfully completing probation means you completed all the terms of your probation, including paying all fines, restitution, completed any counseling programs, community service, attended all required court appearances, and did not commit any new crimes while you were on probation.

In some cases, even if you violated the terms of your probation, it might be possible to still have your record expunged.

The court will hold a hearing in order to determine whether to grant your request for an expungement.

Call a Los Angeles criminal defense attorney at our law office if you have any questions about expungement eligibility.

WHO IS NOT ELIGIBLE FOR A CALIFORNIA EXPUNGEMENT?

If you were sent to a California state prison sentence, you can’t expunge your criminal record.

Additionally, there are certain criminal offenses that can’t be expunged. This includes some sex crimes against children, including:

California Penal Code Section 286(c) – Sodomy with a Minor,
California Penal Code Section 288 – Lewd and Lascivious Acts with a Minor,
California Penal Code Section 288a(c) – Oral Copulation with a Minor,
California Penal Code Section 261.5(d) – Unlawful Sexual Intercourse with Minor.

WHAT IMPACT CAN AN EXPUNGEMENT HAVE ON MY LIFE?

Typically, one of the most significant impacts on your life after a California expungement is helping you obtain employment.

In many cases, you do not have to disclose a criminal conviction on an employment application and an employer is prohibited from discriminating against you for having your record expunged.

An expungement may also help you obtain a state professional license and could even help you avoid immigration issues.

After your conviction has been expunged from your record, it will still show you were arrested and convicted, but the conviction was dismissed in the interest of justice.

This is not the same as a factual innocence motion.

WHAT A PENAL CODE SECTION 1203.4 DISMISSAL DOES NOT DO

After your California conviction has been dismissed under PC 1203.4, there are some limitations on what it can do for you, including:

If your conviction resulted in any driving privilege restrictions, a dismissal will not change the restrictions;
A dismissal will not reinstate a suspended or revoked driver’s license;
If you conviction prevents you from owing or possessing a firearm, a dismissal will not restore your California gun rights;
A dismissal will not end your legal obligation to register as a California sex offender under Penal Code Section 290;
If you are convicted on another criminal offense in the future, your dismissal can still be used as a prior conviction to enhance sentencing;

In some cases, the issues listed above could possibly be resolved through other avenues of post-conviction relief, including a California Certificate of Rehabilitation or a California Governor’s Pardon. source

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

SB 393: The Consumer Arrest Record Equity Act – 851.87-851.92 & 1000.4-11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

Cleaning Up Your Criminal Record in California (focus OC County)

**Governor Pardons Click Here for the Details**

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PENAL CODE – PEN 1203.4

PART 2. OF CRIMINAL PROCEDURE [681 – 1620]

( Part 2 enacted 1872. )

TITLE 8. OF JUDGMENT AND EXECUTION [1191 – 1233.12]

( Title 8 enacted 1872. )

CHAPTER 1. The Judgment [1191 – 1210.6]

( Chapter 1 enacted 1872. )

(a) (1) When a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if they are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if they have been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in their probation papers, of this right and privilege and the right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve them of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have custody or control of a firearm or to prevent conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

(3) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.

(4) Dismissal of an accusation or information pursuant to this section does not release the defendant from the terms and conditions of an unexpired criminal protective order that has been issued by the court pursuant to paragraph (1) of subdivision (i) of Section 136.2, subdivision (j) of Section 273.5, subdivision (l) of Section 368, or subdivision (k) of Section 646.9. These protective orders shall remain in full effect until expiration or until any further order by the court modifying or terminating the order, despite the dismissal of the underlying accusation or information.

(5) This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

(b) Subdivision (a) of this section does not apply to a misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or a felony conviction pursuant to subdivision (d) of Section 261.5, or to an infraction.

(c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.

(2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interest of justice, may order the relief provided pursuant to subdivision (a) to that defendant.

(3) (A) A petition for relief under this section shall not be denied due to an unfulfilled order of restitution or restitution fine.

(B) An unfulfilled order of restitution or a restitution fine shall not be grounds for finding that a defendant did not fulfil the condition of probation for the entire period of probation.

(C) When the court considers a petition for relief under this section, in its discretion and in the interest of justice, an unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief.

(d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement when the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.

(e) (1) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.

(2) It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.

(f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.

(g) Notwithstanding the above provisions or any other law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.

(Amended by Stats. 2022, Ch. 734, Sec. 3. (SB 1106) Effective January 1, 2023.)

Communications Decency Act and Section 230 (1996)

The Truth News — Thu, 07 Oct 2021 19:30:24 +0000

Communications Decency Act and Section 230 (1996)

Donna Rice Hughes of the anti-pornography organization Enough is Enough meets reporters outside the U.S. Supreme Court in Washington on March 19, 1997, after the court heard arguments challenging the 1996 Communications Decency Act. The Court, taking its first look at free speech on the internet, found the law that made it a crime to put indecent words or pictures online where children can find them was overly broad and infringed on other speech protected by the First Amendment. (AP Photo/Susan Walsh)

Congress enacted the Communications Decency Act as part of the Telecommunications Act of 1996 in an attempt to prevent minors from gaining access to sexually explicit materials on the internet.

It prohibited any individual from transmitting “obscene or indecent” messages to a recipient under 18 and outlawed the knowing display of “patently offensive” materials in a manner available to those under 18.

To encourage internet service providers to remove harmful content, Section 230 was added to provide immunity to those that screened or removed offensive or indecent material that was posted on their sites by third parties.

In 1997, the U.S. Supreme Court struck down the portions of the Communications Decency Act that criminalized the transmission of obscene, indecent and patently offensive material, finding that the law was overbroad and criminalized speech protected by the First Amendment.

Section 230 remained and has been the focus of numerous challenges and debate as people have been harmed by content posted on websites and social media. Since 2020, Congress has filed several bills to repeal or rewrite Section 230. A case before the U.S. Supreme Court was heard in February 2023 regarding the extent of immunity for social media company algorithms that recommend content.

Law prohibited transmitting obscenity to minors

The purpose of the Telecommunications Act of 1996 was to update the Communications Act of 1934 to encourage new technologies and reduce regulation of the relevant industries to promote competition among service providers.

The Communications Decency Act was added as an amendment out of concern about pornography and other sexual and indecent material on the internet reaching minors. It included a provision to verify the age of site visitors.

The potential penalties for violating the law included fines, imprisonment or both.

Congress uses Miller test for Communications Decency Act

Congress tried to inoculate the Communications Decency Act against constitutional challenge under the First Amendment by using the Miller test in defining prohibited material.

The Miller test was developed by the Supreme Court in Miller v. California (1973) to define obscene speech, which is not protected by the First Amendment.

The three prongs of the Miller test are:

whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The Communications Decency Act borrowed this language to bar the use of computer services to display to minors “any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

Immediately after President Bill Clinton signed the bill into law, the American Civil Liberties Union and numerous other organizations challenged its constitutionality. The American Library Association filed a separate suit. Both lawsuits targeted the provisions criminalizing “indecent” and “patently offensive” online communications.

Supreme Court: Law restricting indecent material on internet violates First Amendment

The U.S. Supreme Court agreed and, in Reno v. American Civil Liberties Union (1997), ruled the law was unconstitutionally overbroad because it suppressed a significant amount of protected adult speech.

Justice John Paul Stevens acknowledged the legitimacy of the government’s interest in protecting children from harm. But he also noted that the level of suppression was unacceptable. The use of the terms “indecent” and “patently offensive,” far from narrowing the scope of the act, broadened its provisions to include any materials concerning sexual or excretory functions regardless of whether such materials conformed to the other prongs of the Miller test.

The Court worried that health care materials, explicit discussions of techniques to prevent the transmission of AIDS and other useful protected speech could be affected.

After the Court’s decision, Congress drafted another online pornography law called the Child Online Protection Act (COPA) of 1998 that barred communication of materials online that were deemed harmful to individuals under 17 years of age, using the Miller test to describe such materials.

In 2004, the U.S. Supreme Court in Ashcroft v American Civil Liberties Union allowed an injunction to stand because the government did not show that less restrictive means were possible to protect children, such as by using blocking or filtering software.

Section 230 comes under increased scrutiny

The origin of Section 230 as part of the Communications Decency Act can be traced to two New York court decisions in the early 1990s that caused alarm among lawmakers who wanted online service providers to remove as much indecent material from the internet as possible so it would be safe for children.

In the first decision, Cubby, Inc., v. CompuServe, a New York court in 1991 found that CompuServe could not be held liable for defamatory comments posted in one of the company’s special-interest forums because it did not review any of content before it was posted on its boards. It simply hosted the content.

A few years later in 1995, a New York court found in Stratton Oakmont, Inc., v. Prodigy Services Co. that because Prodigy moderated its online message boards and deleted some messages for “offensiveness and ‘bad taste,’” it could be held liable for content published on its boards.

Lawmakers were alarmed that these opinions discouraged internet service providers from developing new moderation tools and methods. They also were concerned that providers who were trying to moderate content would either stop or start putting severe restrictions on what they allowed on their sites to avoid liability.

Over the years, several lawsuits have been filed against internet service providers to try to overcome the immunity provided by Section 230. For example, lawsuits targeted companies including a “revenge porn” operator whose business was devoted to posting people’s nude images without consent, a gossip site that urged users to send in “dirt,” a message board that knew about users’ illegal activity but refused to collect information to hold them accountable, and a purveyor of sex-trade advertisements whose policies were designed to prevent the detection of sex trafficking.

However, courts over the years have consistently upheld the immunity granted to internet platforms.

Supreme Court declines to rule on Section 230 immunity in social media case

In 2023, Section 230’s immunity clause reached the U.S. Supreme Court.

In that case, Gonzalez v. Google (2023), the family of a 23-year-old student killed in an ISIS attack in Paris claimed that Section 230 does not immunize Google, which owns YouTube, from being held civilly liable for aiding and abetting terrorists under the Anti-Terrorism Act.

The plaintiffs argued that YouTube’s algorithms recommending videos from the terrorist group ISIS constitute content created by YouTube and thus Google is not immune from liability under Section 230.

Though taking the case to review the extent of Section 230’s shield of liability, the Court decided that based on its decision the same day in Twitter v. Taamneh (2023), the plaintiffs would have little, if any, relief under the Anti-Terrorism Act. It had decided in Twitter that the social media companies could not be shown to “aid and abet” terrorists simply by hosting their content, failing to remove it or recommending the content to others. Thus, the Court said it “is sufficient to acknowledge that much (if not all) of plaintiffs’ complaint seems to fail.”

Meanwhile, politicians from both political parties, including President Joe Biden and Republican Senator Lindsey Graham, have called for a rewrite of Section 230. Lawmakers have filed several bills since 2020 to repeal or rewrite the law.

source

2nd District Court of Appeal - 2DCA Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

Epic SCOTUS Decisions

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION. FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

California Supreme Court, 2004 32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

Other Pro$ecutor Caselaw:

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$​

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974 – MALICIOUS PROSECUTOR & OFFICER

Bias – Removal of Prosecutor People v. Superior Court (Greer)

Abuse – Removal of Prosecutor People v. Superior Court (Greer)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

Spencer v. Peters

Gerardo Rodarte v. Joseph Gutierrez – arises from the arrest and pretrial detention

Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Negligent Employee Actions

read case Martin v. Thomas et al. 2022 – Opens Line for Direct Negligence Claims from Employee Actions

Excerpts taken from SCOTUS around Robin v. Hardaway

FRAUD$ BY GOVERNMENT

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

FLYER & NEWS WEBSITE LAW

Flyers US constitutional rights, Freedom of Speech & Press

U.S. Supreme Court

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,” such as condemnation of political officials (even left expressly for that official).

Vermont’s Top Court Weighs: Are KKK Fliers 1st Amendment Protected Speech? see also Vermont v. Schenk 2015

excerpts taken from NO Law requires you to record / pledge your private automobile

To Wit:

Under the US Constitution.

The binding shackles of Government is the Constitution, to wit:

The People are the Sovereign!

Private Corporate State / Municipality Policy Enforcement Officer a.k.a Police Officer Duties and limitations of power

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Call Recording In California

Government / Public Servants / Officers / Judges Not Immune from suit!

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

Jurisdiction challenged to all, at any and all times

California Civil Code Section 52.1 California Civil Code Section 52.1 – The Bane Act

42 U.S. Code § 1983 – Civil action for deprivation of rights

How to file a complaint of Police or other Government Official Misconduct Click Here

Pro Se Case Law

Pro Se Forms and Forms Information (Tort Claim Forms here as well)

California Constitution Article VI – Judicial Section 13.

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN: Click Here Officers and DA’s for (Procedure to Follow)

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police & Civilians real Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
such as condemnation of political officials (even left expressly for that official).

Private Corporate State / Municipality Policy Enforcement Officer
a.k.a Police Officer Duties and limitations of power

California Constitution
Article VI – Judicial
Section 13.

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here