Police Misconduct in California – How to Bring a Lawsuit
Victims of police misconduct, brutality, or excessive force can file a lawsuit in California. That lawsuit is usually based on civil rights violations.
The lawsuit can seek money damages for the victim. It can also demand an injunction that would prevent future misconduct. It could even lead to criminal charges being filed against the police officer.
Police misconduct can take a variety of different forms. Some of the most common include:
- unlawful detention,
- false arrest,
- excessive force,
- relying on racial profiling, and
- committing perjury.
When police violate a person’s civil rights, the victim can be entitled to a remedy. That remedy may include:
- criminal prosecution of the offending officer,
- a civil rights lawsuit demanding an injunction and/or monetary damages,
- a Bivens claim demanding monetary damages, and/or
- filing an internal affairs complaint with the police department.
In this article, California police misconduct :
- 1. What is police misconduct in California?
- 2. What is unlawful detention?
- 3. What is a false arrest?
- 4. What is excessive force?
- 5. How can police commit misconduct by using racial profiling?
- 6. Is it misconduct when police commit perjury?
- 7. What are the remedies for police misconduct in California?
- 8. Can victims file a complaint with the police department or town?
- 9. Can evidence found through the misconduct be excluded from court?
- 10. What is a Section 1983 claim?
- 11. What is a Bivens lawsuit?
- 12. Can police misconduct lead to criminal prosecution?
- 13. Can police be decertified by the government following misconduct?
1. What is police misconduct in California?
Police misconduct refers to inappropriate or illegal behavior by officers in their official capacity. Often this results in a civil rights violation.
Civil rights come from federal law or the U.S. Constitution. Some of the most common rights that are violated in police misconduct are:
- the freedom from unreasonable searches and seizures,
- the prohibition against cruel and unusual punishments,
- the right to due process before being deprived or life, liberty, or property,
- freedom of speech, and
- the right to privacy.
These rights can be violated by state actors, such as:
- police officers,
- sheriffs, and
- officers at law enforcement agencies like the DEA or ICE.
2. What is unlawful detention?
An unlawful detention is a police stop that violates the victim’s Fourth Amendment rights.
Some detentions are more intrusive and controlling than others. The more intrusive the detention, the more certain a police officer has to be that the suspect committed a crime. In order of intrusiveness, there are 3 types of police encounters:
- Consensual encounters. These are not detentions. Law enforcement officers can initiate these at any time. The suspect is free to leave.
- Detentions. These are brief encounters that allow police to question a suspect and sometimes search a suspect for a weapon. They often take the form of a stop-and-frisk or a traffic stop. Police need a reasonable suspicion that a crime has occurred.1
- Arrests. These are when police take a suspect into custody. Police can make a full search of a suspect during an arrest. They can use handcuffs to control the suspect and bring him to a jail facility. Police need to have probable cause to make an arrest.
Detentions can be unlawful if they violate the victim’s rights. This can happen if:
- the detention was unreasonable long in duration,2
- there was no probable cause for an arrest,
- the police officer could not have had a reasonable suspicion of a crime when they detained the victim,
- excessive force was used during the detention, or
- the arrest warrant was invalid and the officer knew it.
3. What is a false arrest?
An arrest is an intentional deprivation of someone’s freedom of movement. That deprivation compels the person to stay or go somewhere, against his will.3
An arrest can be a false arrest if the peace officer had no legal authority to make it. False arrests violate the victim’s Fourth Amendment rights. They are also known as false imprisonments. They can happen when:
- police make an arrest without a warrant or probable cause, or
- police use an invalid arrest warrant to make an arrest.
Some victims are arrested without a warrant. In these cases, the police officer has to show he or she had probable cause.4 This requires showing there was reasonable cause to believe the person arrested had committed either:
- a felony, or
- any crime in the officer’s presence.5
Other arrests happen pursuant to a warrant. These can still be false arrests if the warrant was invalid.
Even if the warrant was invalid, though, the arrest can be legal if the officer acted in good faith.6
4. What is excessive force?
Police commit misconduct when they use excessive force during an arrest. The use of excessive force can make the arrest unreasonable. This can violate the victim’s Fourth Amendment rights.
Police are only allowed to use as much force as is reasonably necessary to make the arrest.7 Factors include:
- whether the victim reasonably appeared to pose an immediate threat to the officer or others,
- the seriousness of the crime at issue, and
- whether the victim was resisting arrest or trying to get away.8
In California, courts also note the officer’s decisions leading up to the use of force.9
When police use deadly force on someone, they can be charged with a crime. A new law in California makes it easier for this to happen.10 Previously, police could use deadly force when it was reasonable under the circumstances. Under the new law, it can only be used when necessary. And courts can consider the actions of both
- the police and
- the victim preceding the fatal encounter.
As of 2021, chokeholds are specifically prohibited. And as of 2022, any techniques or transport methods that involve a substantial risk of positional asphyxia are prohibited. Also as of 2022, police may not use tear gas or rubber bullets to disperse crowds except to defend against a threat to life or serious bodily injury or to bring an objectively dangerous and unlawful situation safely and effectively under control.11
When deadly force is used, it can also violate the victim’s due process rights. It would have deprived the victim of their life without due process of law.
5. How can police commit misconduct by using racial profiling?
Police can commit misconduct by using racial profiling to detain people. This practice is most common when police stop-and-frisk people they suspect of wrongdoing.12
Racial profiling cannot create the reasonable suspicion needed for a detention. That reasonable suspicion has to concern a particular person not a class of people.13 Using someone’s race as a reason for detaining them violates that person’s:
- Fourth Amendment right to be free from searches and seizures that are unreasonable, and
- Fourteenth Amendment right to equal protection under the law.
6. Is it misconduct when police commit perjury?
Police misconduct also includes committing perjury. Police officers perjure themselves when they lie under oath. They can do this:
- during trial,
- in grand jury testimony,
- in police reports, or
- in affidavits supporting probable cause for a search or arrest warrant.
This can make the resulting warrant invalid. Using the warrant can violate the victim’s Fourth Amendment rights.
Perjury is also a crime. It can lead to charges of offering false evidence, as well.
7. What are the remedies for police misconduct in California?
There are remedies available for victims of police misconduct. They include:
- filing a complaint with the police department,
- asking the court to exclude any evidence that was found as a result of the misconduct, and
- file a civil rights lawsuit through Section 1983 or a Bivens claim.
In some cases, pursuing these remedies can lead to a criminal case against the cop.
8. Can victims file a complaint with the police department or town?
Victims of police misconduct can always file a complaint with the police department. That complaint can detail what happened and demand repercussions. In some cases, the complaint can lead to:
- the officer getting fired,
- a suspension,
- the officer being reassigned to another area in the department, or
- a reprimand against the officer.
9. Can evidence found through the misconduct be excluded from court?
Victims in police misconduct cases can find themselves facing a criminal charge. Evidence may have been obtained by violating the suspect’s civil rights. The defense can bring a suppression motion asking that this evidence be excluded from the trial. Without the evidence obtained through the misconduct, the prosecutor may have little else to use.
10. What is a Section 1983 claim?
Misconduct victims can also file a civil rights lawsuit under 42 U.S.C. Section 1983. These claims hold actors liable for civil rights violations done under color of law.
1983 lawsuits can produce the following remedies:
- an injunction, or court order designed to keep the misconduct from happening, again, and/or
- monetary damages.
The injunctions from successful 1983 claims can lead to significant changes in the police department. It can force the department to:
- retrain officers,
- revise their official way of doing things,
- review internal customs, and
- fire offending police officers.
The monetary damages from a Section 1983 claim can include:
- compensatory damages, to compensate the victim for his or her losses,
- punitive damages, to punish the police officer, and
- presumed damages, to cover for the loss of liberty from the victim’s violated rights.
However, recovering monetary damages in a Section 1983 claim requires overcoming qualified immunity. Qualified immunity is a defense that the police officer can raise. It protects them from having to pay monetary damages in a lawsuit if:
- they did not violate someone’s constitutional rights, or
- they did, but the right was not clearly established.14
The lawsuit can be filed against state or local officials and entities, like:
- the officer who committed the misconduct,
- the police department, and/or
- the town, county, or municipality.15
Note that recent California law, Senate Bill 2, says that a police officer cannot raise a qualified immunity defense in lawsuits filed under the Tom Bane Civil Rights Act. A citizen can file a suit under this Act if a police officer interfered by threat, intimidation, or coercion with that party’s constitutional rights.
11. What is a Bivens lawsuit?
A Bivens lawsuit is a civil rights lawsuit for money damages that is filed against a federal official. It is very similar to a Section 1983 claim. Unlike 1983 claims, though, Bivens lawsuits can be filed against federal actors like:
- narcotics officers at the federal Drug Enforcement Agency, or DEA,16 or
- FBI agents.
Also unlike 1983 claims, Bivens claims cannot be filed against entities like:
- Department of Justice (DOJ),
- Immigration and Customs Enforcement (ICE), and
- Federal Deposit Insurance Corporation (FDIC).17
Like 1983 claims, though, defendants can claim qualified immunity for their actions.
12. Can police misconduct lead to criminal prosecution?
Police agency misconduct can be so egregious that it leads to criminal prosecution. The officer can be charged with a crime.18
Criminal charges against police for misconduct are rare. They often only come after truly outrageous conduct, such as severe police brutality, sexual assault, police shootings, or planting evidence. They tend to only be filed after the victim or his or her family file a lawsuit and begin to uncover damning evidence.
13. Can police be decertified by the government following misconduct?
Currently, California is one of only four states that does not have the power to strip police officers of their licenses. But if Senate Bill-2 becomes law, the government could kick officers out of the profession following sexual assault, dishonesty, abuse of power, physical abuse, and other serious misconduct.19
- California Law Enforcement Agencies, including county sheriff’s departments
- California State Attorney General (Xavier Becerra)
- Los Angeles Police Department (LAPD)
- California State Legislature, including lawmakers in the state assembly and state senate
- Law Enforcement Associations, including police unions, police chief associations, the California District Attorney’s Associations, and sheriff’s deputy associations
- Terry v. Ohio, 392 U.S. 1 (1968).
- Illinois v. Caballes, 543 U.S. 405 (2005).
- California Civil Jury Instructions (CACI) 1400.
- Cervantez v. J.C. Penney Co., 595 P.2d 975 (Cal. 1979). See also California Civil Jury Instructions (CACI) 1401.
- California Civil Jury Instructions (CACI) 1402.
- California Civil Jury Instructions (CACI) 1406.
- California Civil Jury Instructions (CACI) 440 and California Penal Code 835a.
- Graham v. Connor, 490 U.S. 386 (1989). See also Hernandez v. City of Pomona, 207 P.3d 506 (Cal. 2009). See also California Penal Code 835 PC.
- Hayes v. County of San Diego, 305 P.3d 252 (Cal. 2014).
- Assembly Bill 392.
- California Penal Code 835a; California Assembly Bill 392 (2019); Anita Chabria, “Newsom signs ‘Stephon Clark’s Law,’ setting new rules on police use of force“, Los Angeles Times, (August 19, 2019); California Assembly Bill 1196 (2020). Assembly Bill 490 (2021). Assembly Bill 48.
- See Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y. 2013).
- Chandler v. Miller, 520 U.S. 305 (1997).
- Harlow v. Fitzgerald, 457 U.S. 800 (1982). See also Rivas-Villegas v. Cortesluna (2021) 142 S. Ct. 4.
- Monell v. Department of Social Services, 436 U.S. 658 (1978).
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (the Federal Bureau of Narcotics was a predecessor to the DEA).
- FDIC v. Meyer, 510 U.S. 471 (1994) (involving the Federal Savings and Loan Insurance Corporation, the predecessor to the FDIC).
- Marina Trahan Martinez, Nicholas Bogel-Burroughs, and Sarah Mervosh, “Fort Worth Officer Charged With Murder for Shooting Woman in Her Home,” The New York Times (October 14, 2019).
- Robert Lewis, Fired: California bill aims to decertify police for serious misconduct, CalMatters (July 26, 2021).
LAW ENFORCEMENT MISCONDUCT
Investigations and Prosecutions
About the Law Enforcement Misconduct Statute
Deliberate Indifference to a Serious Medical Condition or a Substantial Risk of Harm
Failure to Intervene
INVESTIGATIONS AND PROSECUTIONS
The Department of Justice (“The Department”) vigorously investigates and, where the evidence permits, prosecutes allegations of Constitutional violations by law enforcement officers. The Department’s investigations most often involve alleged uses of excessive force, but also include sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody. These cases typically involve police officers, jailers, correctional officers, probation officers, prosecutors, judges, and other federal, state, or local law enforcement officials. The Department’s authority extends to all law enforcement conduct, regardless of whether an officer is on or off duty, so long as he/she is acting, or claiming to act, in his/her official capacity.
In addition to Constitutional violations, the Department prosecutes law enforcement officers for related instances of obstruction of justice. This includes attempting to prevent a victim or witnesses from reporting the misconduct, lying to federal, state, or local officials during the course of an investigation into the potential misconduct, writing a false report to conceal misconduct, or fabricating evidence.
The principles of federal prosecution, set forth in the United States Attorneys’ Manual (“USAM”), require federal prosecutors to meet two standards in order to seek an indictment.
First, the government must be convinced that the potential defendant committed a federal crime. Second, the government must also conclude that the government would be likely to prevail at trial, where the government must prove the charges beyond a reasonable doubt. See USAM § 9-27.220.
 The USAM provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.
ABOUT THE LAW ENFORCEMENT MISCONDUCT STATUTE
The federal criminal statute that enforces Constitutional limits on conduct by law enforcement officers is 18 U.S.C. § 242. Section 242 provides in relevant part:
“Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime].”
Section 242 is intended to “protect all persons in the United States in their civil rights, and furnish the means of their vindication.” Screws v. United States, 325 U.S. 91, 98 (1945) (quoting legislative history).
To prove a violation of § 242, the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation of § 242 is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.
Establishing the intent behind a Constitutional violation requires proof beyond a reasonable doubt that the law enforcement officer knew what he/she was doing was wrong and against the law and decided to do it anyway. Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated, § 242 requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful. See Screws v. United States, 325 U.S. 91, 101-107 (1945). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.
In cases of physical assault, such as allegations of excessive force by an officer, the underlying Constitutional right at issue depends on the custodial status of the victim. If the victim has just been arrested or detained, or if the victim is being held in jail but has not yet been convicted, the government must, in most cases, prove that that the law enforcement officer used more force than is reasonably necessary to arrest or gain control of the victim. This is an objective standard dependent on what a reasonable officer would do under the same circumstances. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).
If the victim is a convicted prisoner, the government must show that the law enforcement officer used physical force to punish , retaliate against, an inmate, or otherwise cause harm to the prisoner, rather than to protect the officer or others from harm or to maintain order in the facility. See Whitley v. Albers, 475 U.S. 312, 319 (1986).
Law enforcement officers who engage in nonconsensual sexual contact with persons in their custody deprive those persons of liberty without due process of law, which includes the right to bodily integrity. The Department investigates and prosecutes instances of nonconsensual sexual misconduct committed by patrol officers, federal and state probation officers, wardens, and corrections officers, among others. Sexual misconduct includes, but is not limited to, sexual assault without consent (rape), sexual contact procured by force, threat of force or coercion, and unwanted or gratuitous sexual contact such as touching or groping.
To prove that a law enforcement officer violated a victim’s right to bodily integrity, the government must prove that the victim did not consent to the defendant’s actions. Prosecutors can establish lack of consent or submission by showing that the defendant officer used either force or coercion to overcome the victim’s will. It is not necessary to prove that the defendant used actual violence against the victim. Coercion may exist if a victim is told that an officer will bring false charges or cause the victim to suffer unjust punishment.
Deliberate Indifference to a Serious Medical Condition or a Substantial Risk of Harm
Section 242 prohibits a law enforcement officer from acting with deliberate indifference to a substantial risk of harm to persons in custody. Therefore, an officer cannot deliberately ignore a serious medical condition of or risk of serious harm (such as a risk that an inmate will be assaulted by other inmates or officers) to a person in custody. To prove deliberate indifference, the government must prove that the victim faced a substantial risk of serious harm; that the officer had actual knowledge of the risk of harm; and that the officer failed to take reasonable measures to abate it.
Failure to Intervene
An officer who purposefully allows a fellow officer to violate a victim’s Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them.
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