How Far Does Qualified Immunity Go for Government?

By David L. Hudson Jr.

Qualified immunity is a doctrine that shields government officials from liability unless they violated clearly established statutory or constitutional law. 

Under this doctrine, a government officials could violate a person’s First Amendment rights, but not face liability because the law was not settled or known at the time the official engaged in such conduct.

Qualified immunity protects government officials when law is unsettled

The idea behind qualified immunity is that society should not punish a government official unless that official knew or should have known what he or she was doing was unlawful.  Furthermore, the doctrine advances the idea that we do not want to chill the conduct of government officials who may be leery of acting in certain situations for fear of being sued. 

Previously, courts had applied a two-part test to determine whether a government official was entitled to qualified immunity.  Under this test, a court first analyzed whether or not a government official had violated a constitutional right. If there was a violation of a constitutional right, then the court determines whether or not that constitutional right was clearly established. 

In Pearson v. Callahan (2009), a Fourth Amendment search and seizure case, the Supreme Court provided that reviewing federal district courts could apply the “clearly established prong” first without deciding whether or not there was a violation of a constitutional right.  Some legal commentators have criticized this approach, pointing out that it can slow the growth of constitutional law, because courts can bypass the first inquiry of whether there has been a constitutional violation. 

Law enforcement is sometimes protected in free speech cases through qualified immunity

The U.S. Supreme Court has determined in many cases that government officials were entitled to qualified immunity in First Amendment cases. 

For example, in Wood v. Moss (2014), the Court ruled that Secret Service agents were entitled to qualified immunity when they removed protestors away from then President George W. Bush. 

Similarly, in Reichle v. Howards (2012), the Court ruled that Secret Service agents were entitled to qualified immunity from a lawsuit alleging a retaliatory arrest.  

Another example is Morse v. Frederick (2007) in which the Court ruled that a high school principal was entitled to qualified immunity for suspending a public high school student for displaying a “Bong Hits 4 Jesus” sign at a school-sanctioned event.

But the extent of qualified immunity in free speech cases has sometimes raised questions. In 2021, the U.S. Supreme Court declined to review a free-speech case in which the 8th U.S. Circuit Court of Appeals granted qualified immunity to college officials at Arkansas State University. Justice Clarence Thomas wrote in a statement with the denial to hear Hoggard v. Rhodes (2021) that he thought the doctrine of qualified immunity needed to be reevaluated or the “one-size-fits-all” approach examined. He argued that school officials who have plenty of time to make “calculated decisions” about student speech rights were different from police officers who have to make split-second decisions that might infringe on constitutional speech rights.

This article was last updated in 2021 by encyclopedia staff. David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), the author of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).

cited https://mtsu.edu/first-amendment/article/1560/qualified-immunity

Makes it Ea$ier to $ue Police When Criminal Charge$ are Dropped!

In order to $ue, a defendant doesn’t have to be found not guilty by a judge or jury and prosecutors don’t have to state that they wrongly filed charges, the court said.

WASHINGTON — The Supreme Court on Monday made it easier to sue police and the government for malicious prosecution when charges are later dropped.

In a 6-3 ruling, the court said that in order to sue, a defendant doesn’t have to be found not guilty by a judge or jury and prosecutors don’t have to state that they wrongly filed charges. It’s enough, the court said, if the charges are simply dismissed.

“The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed,” Justice Brett Kavanaugh wrote for the court’s majority.

The ruling was a victory for a Brooklyn man, Larry TEdit Edit status hompson, who was arrested after a relative who was staying in his apartment called 911 and claimed Thompson was sexually abusing his newborn daughter.

When the police arrived, he said they couldn’t come in without a warrant. They barged in anyway and handcuffed him after a brief scuffle. The baby was taken to a hospital for evaluation, but the only marks on the child turned out to be diaper rash.

The relative who called 911 “apparently suffered from a mental illness,” court records said.

Even so, Thompson was charged with resisting arrest and kept in jail for two days. The prosecutor then dropped the charges, and the judge dismissed the case — both without explanation.

Thompson sued, claiming malicious prosecution and violation of his constitutional rights. He prevailed before a federal trial judge, but the U.S. Court of Appeals for the 2nd Circuit ruled that such a claim can succeed only when a case ends with some affirmative indication of innocence.

The Supreme Court on Monday said that ruling was mistaken. Dissenting, Justice Clarence Thomas, Samuel Alito, and Neil Gorsuch said the court was wrong to validate Thompson’s claim under the Fourth Amendment. They said the elements of a malicious prosecution are wholly different than the constitutional guarantee against illegal search and seizure and called Thomas’ lawsuit “a hybrid claim of uncertain scope.”

Marie Miller, an attorney for the Institute for Justice, a nonprofit public interest law firm, filed a friend-of-the-court brief on Thompson’s behalf. She said the court’s decision “rightly rejected an additional shield for government officials who have violated constitutional rights.”

Such a shield “flipped the principle of innocent-until-proven-guilty on its head,” Miller said. “It also incentivized prosecutors to charge people with crimes they did not commit to shield officers from liability.”

 

we also have the article on KNOW YOUR RIGHTS – HOW TO SUE THE GOVERMENT, COPS, AND GOVERMENT OFFICIALS
this has more than just Thompson vs Clark,  this has all the winners! Lets get our rights
misconduct-know-more-of-your-rights/we also have the article on PROSECUIONAL MISCONDUCT 
malicious-prosecution-prosecutorial-misconduct/if you want to read the and download the PDF directly from the US SUPREME COURT
https://www.supremecourt.gov/opinions/21pdf/20-659_3ea4.pdfcited https://www.nbcnews.com/politics/supreme-court/supreme-court-makes-easier-sue-police-criminal-charges-are-dropped-rcna22844

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)

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.

we also have the article on our site here thompson-v-clark-364-f-supp-3d-178/

•  Police Discretion
• The police violated my rights
• DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
• How to File a complaint of Police Misconduct?
• Suing for Misconduct – Know More of Your Rights
• New Supreme Court Ruling makes it easier to sue police
• Prosecutorial Misconduct, What is it?
• Frivolous, Meritless or Malicious Prosecution
• Malicious Prosecution / Prosecutorial Misconduct
• Prosecutorial Misconduct
•  Vindictive Prosecution – Georgetown University
•  VINDICTIVE AND SELECTIVE PROSECUTION
•  Misconduct by Judges & Prosecutor
• CALIFORNIA ATTORNEY MISCONDUCT LAW
• Equality Act 2010 – Discrimination and mental health
• Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008
• Fighting A Judgment Without Filing An Appeal Settlement Or Mediation – Options to Appealing
• Right to Truth – Victims’ Bill of Rights – Prop 8 1982
• 118.1 PC – Police Officers Filing False Reports

The Bane Act is a California law that allows you to sue for damages if someone uses violence, threats, intimidation or coercion to interfere with your state or federal civil rights. You can potentially recover

1. compensatory and punitive damages,
2. attorney’s fees, and
3. civil penalties.

The civil rights to which the Act applies include your right to:

• Vote,
• Bear arms,
• Speak, or
• Associate with certain people.

A Bane Act lawsuit can be filed against anyone who interfered with your right through the use of:

• Violence,
• Threats of violence,
• Intimidation, or
• Coercion.

A Bane civil action typically demands that the defendant pay:

• Compensation for the interference,
• Punitive damages,
• Attorneys’ fees, and
• A civil penalty of $25,000.

1. What are lawsuits under the Bane Act in California?

Bane Act lawsuits are civil claims filed under the Tom Bane Civil Rights Act.¹ You can file a Bane Act lawsuit against someone who interfered with your civil rights. That interference can take the form of such constitutional violations as:

• Threats of violence,
• Actual violence,
• Intimidation, or
• Coercion.

Anyone can file a Bane claim, even if they are not part of a protected class. Common plaintiffs in Bane cases are hate crime victims harmed due to their sexual orientation, national origin, or race. It does not matter whether the perpetrators were private citizens or law enforcement using excessive force. It does not matter whether the plaintiff was the sole victim or part of a group of persons who were harmed.

Because a Bane lawsuit is a civil cause of action, rather than a criminal one, victims can recover monetary damages in the form of compensation.

Bane Act lawsuits can be filed against anyone, including individual people, corporations,² and even the government.³

2. What are considered civil rights?

Under the Bane Act in the state of California, your civil rights are any legal right you have under the:

• U.S. Constitution,
• California state constitution,
• Laws of the United States (federal law), or
• State law.⁴

These rights include, for example:

• Your right to be free from police searches or seizures that are unreasonable under the Fourth Amendment to the U.S. Constitution,⁵
• Your right to vote under the California Voting Rights Act, and
• Your right to file a civil rights complaint in federal court under 42 U.S.C. § 1983.

3. What do I have to prove in a Bane Act lawsuit?

To succeed in a Bane lawsuit under California law, you have to prove either that:

• The defendant made threats of violence against you or your property that made you reasonably believe that they would be carried out if you exercised your civil right, or
• The defendant acted violently against you or your property to prevent you from exercising your rights or to retaliate against you for doing so.

In addition to one of these options, you also have to show that:

• You were harmed, and
• The defendant’s conduct was a substantial factor in causing your harm.⁶

3.1. Attempted violations are sufficient

It is not necessary to show that the defendant actually kept you from exercising your rights. An attempt to keep you from exercising your rights can lead to liability under the Bane Act.⁷

3.2. No discriminatory intent necessary

You also do not need to show that the defendant acted with discriminatory intent.⁸ It is enough for the defendant to try to keep you from exercising your rights. This makes Bane lawsuits different from Ralph Act lawsuits.

3.3. Mere speech cannot lead to liability

However, without more, speech alone cannot lead to liability under the Bane laws.⁹ The speech has to be a threat of violence that creates a reasonable fear of imminent harm.

4. What damages are available in a Bane Act lawsuit in California?

Bane Act lawsuits can recover monetary damages that compensate you for your actual damages, including:

• Medical bills from any violence or other medical conditions,
• Mental anguish and emotional distress,
• Lost wages during your recovery,
• Lost earning capacity,
• Pain and suffering, and
• Loss of consortium for your family during the ordeal.

The Bane Act requires this compensation to be at least $4,000. It also allows the jury to triple this amount of compensation.¹⁰

Successful Bane claims can also recover:

• Attorney’s fees,
• Punitive damages (also called exemplary damages),
• A civil penalty of $25,000, and
• Injunctive relief/equitable relief,
• Restraining orders against the defendant.

5. Is the Bane Act only in California?

Yes, the Bane Act is a California state law. But it protects people whose state or federal rights are interfered with by threats, intimidation, or coercion. And it is common for victims to sue for Bane Act violations along with § 1983 violations in federal court rather than state court.¹¹

6. Can police officers assert a qualified immunity defense in a Bane Act lawsuit?

Probably not. Law enforcement used to be able to raise a qualified immunity defense in Bane Act cases where they violated a person’s constitutional rights while investigating a crime.

The defense worked as a complete bar to liability.

However, recent California law says police officers can no longer raise this defense in cases brought under the Bane Act. The new law also states that prison guards and their employers cannot use a qualified immunity defense in cases where they injure prisoners or fail to provide them with medical care.¹²

7. What is the statute of limitations for the Bane Act?

The Bane Act statute does not spell out a specific statute of limitations. So, depending on the case, courts apply one of the following time limits to sue:

“For liability arising out of common law neglect or personal injury, a two-year statute of limitations applies, but for statutory actions, a three-year limitation applies.”¹³

Furthermore, these statutes of limitations can be prolonged by six months according to the Tort Claim Act.¹⁴ source

Legal References:

What is California Civil Code § 52.1 which is also known as the Bane Act?

The Bane Act And Beyond

California’s civil rights statutes, especially The Tom Bane Act, are an untapped resource that extends far beyond the usual police misconduct cases

California’s civil rights statutes represent an untapped resource for plaintiffs whose rights have been interfered with as a result of the intentional tortious conduct of public and private actors in a variety of contexts and circumstances. In addition to broad statutory language that can encompass a multitude of tortious conduct, including conduct of employers and others who have “aided” another in the deprivation of one’s statutory and common-law rights, these statutes contain significant remedies such as punitive damages and attorney’s fees. Exploring just three of California’s civil rights statutes provides a glimpse of what is possible and will hopefully spark an interest in pursuing these virtuous claims.

California Civil Code § 52.1 (The Bane Act)

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.) To obtain relief under Section 52.1, a plaintiff does not need to allege that a defendant acted with discriminatory animus or intent; liability only requires interference or attempted interference with the plaintiff’s legal rights by the requisite threats, intimidation, or coercion. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841-843 (“Venegas I”).)

“The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union Sch. Dist. (2007) 149 Cal.App.4th 860, 883.)

While Bane Act violations most often accompany section 1983 and Monell claims in federal court, the reach of the Bane Act extends far beyond police misconduct cases. Indeed, while one might assume that a constitutional right must be at issue, the statute does not require interference with only those rights secured by the constitution. Rather, as described in Section 52.1, a plaintiff’s legal rights include “rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civ. Code, § 52.1, subd. (a) (emphasis added).) Although in Venegas I, the California Supreme Court repeatedly referred to “laws of this state” as “statutory rights” (see Venegas I, supra, 32 Cal.4th at pp. 841-43), in construing the exact same term in the context of the Fair Employment and Housing Act (“FEHA”), the Supreme Court found that the phrase “laws of this state” includes both statutes and common law (Rojo v. Kliger (1990) 52 Cal.3d 65, 75-76). Thus, the reach appears to extend beyond the interference of constitutional and statutory rights and includes rights secured by common law.

Furthermore, and as explicitly stated in Section 52.1, liability does not require actual interference with a plaintiff’s legal rights. Rather, even an attempted interference is enough to give rise to a Bane Act claim. (Civ. Code, § 52.1, subds. (a), (b); Ramirez v. County of Los Angeles (C.D. Cal. 2005) 397 F. Supp. 2d 1208.)

The Act provides for liability for interference or attempted interference with an individual’s rights “by threats, intimidation, or coercion.” While the terms “threat,” “intimidation” or “coercion” are not defined in Section 52.1, courts have applied their ordinary and common meaning. (See, e.g., Zamora v. Sacramento Rendering Co. (E.D. Cal. 2007) No. Civ. S-05-00789 DFL KJM, 2007 WL 137239, *8, n. 6 [defining intimidation according to its ordinary meaning as “to make timid or fearful”]; McCue v. S. Fork Union Elem. Sch. (E.D. Cal. 2011) 766 F. Supp. 2d 1003, 1011 [explaining “[f]or the purposes of the Bane Act, the term ‘threat’ means ‘an “expression of an intent to inflict evil, injury, or damage to another.”]; see also Kahn and Links, Cal. Civ. Practice: Civil Rights Litigation (2016) § 3:19.) But with the lack of attention litigants have devoted to the Bane Act, there is little to no authority discussing the meaning of these terms.

A federal district court case, Cole v. Doe 1 thru 2 Officers of City of Emeryville Police Dept., 387 F. Supp. 2d 1084, 1102-04 (N.D. Cal. 2005), addressed the meaning and found that even in the absence of any excessive force, “[u]se of law enforcement authority to effectuate a stop, detention (including use of handcuffs), and search can constitute” a threat, intimidation or coercion. (Cole, 387 F.Supp.2d at p. 1103.) In reaching this conclusion, Cole relied on the “persuasive reasoning” of the unpublished California court of appeal decision in Whitworth v. City of Sonoma, 2004 WL 2106606 (Cal.App.1st Dist. 2004), which held that the conduct of a police officer physically barring a person from entering a meeting is a form of “coercion” under the Bane Act, even if there was no actual use of force. (See also O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 502 [assuming without deciding that police officers’ conduct in demanding that protesters leave a college campus and then arresting one of them after he refused to discontinue his activities constituted “coercion” for purposes of Civ. Code, § 52.1].)

By its terms, Section 52.1 does not require a showing of violence or threat of violence. (Cole, at p. 1103; but see Judicial Council of California Advisory Committee on Civil Jury Instructions (“CACI”) 3066 [incorporating an element of violence within the prescription for threats, coercion or intimidation for a Bane Act violation].) The only express exception, and it is, arguably, the exception that proves the rule, is that liability may not be based on “speech alone” unless “the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (Civ. Code, § 52.1, subd. (j).) Thus, the only place where section 52.1 specifically requires the threat of violence is where the threats, intimidation or coercion are being accomplished by speech alone.

The test for whether a defendant violates Section 52.1 for interference with a legal right by threats, intimidation or coercion is whether a reasonable person, standing in the shoes of the plaintiff, would have been intimidated, threatened or coerced by the actions of the defendants. (Richardson v. City of Antioch (2010) 722 F.Supp.2d 1133, 1147; Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289-90.)

A defense gains traction

One issue that is gaining some traction among those defending Bane Act violation claims is the notion that the showing of “threats, intimidation or coercion” must be separate and independent from the wrongful conduct constituting the rights violation. Defendants often argue that in order to maintain a claim under the Bane Act, the threatening, intimidating or coercive conduct at issue must be separate from the interference with constitutional or statutory rights. But such an interpretation conflicts with plain language of the statute and is premised upon a flawed understanding of Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947.

Shoyoye, a wrongful-detention case where the plaintiff had been over-detained by approximately 16 days as a result of unintentional clerical error, merely held that a Bane Act claim cannot be premised upon a constitutional violation – occurring as a result of “mere negligence rather than a volitional act intended to interfere with the exercise or enjoyment of the constitutional right” – where the element of coercion is implicit in the constitutional violation. (Id. at pp. 957-959.) As noted by the Court, Section 52.1 was not intended to redress harms “brought about by human error rather than intentional conduct.” (Id. at p. 959.)

Neither Shoyoye, nor the statutory language of Section 52.1, requires that the conduct amounting to a threat, intimidation or coercion cannot also be the conduct alleged to be a violation of civil rights.

With respect to who a Bane Act claim may be brought against, Section 52.1 allows claims to be brought against “a person or persons, whether or not acting under color of state law ….” (Civ. Code § 51, subd. (a).) The scope of this is as broad as it seems. The word “person” includes the panoply of non-biological legal persons, including corporations and public agencies. (See Civ. Code, § 14 [defining “person” to include a corporation]; see, e.g., Jones v. Kmart Corp. (1998) 17 Cal.4th 329 [reversing liability against a corporation under the Bane Act on unrelated substantive grounds, but never disputing the liability of a corporation under the Bane Act]; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744 [affirming Bane Act liability against a county].) Further, “[g]overnment entities have respondeat superior liability for their employees’ Bane Act violations.” (Gant v. County of Los Angeles (C.D. Cal. 2011) 765 F. Supp. 2d 1238, 1249-50.)

Relief includes attorney’s fees

For violation of the Bane Act, Section 52.1, subdivision (b) states that any individual whose rights have been interfered with by threats, intimidation or coercion, “may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” (Civ. Code § 52.1.) Section 52 permits such relief as actual damages, statutory damages (including civil penalties), exemplary damages, and attorney’s fees. (Civ. Code § 52.)

In light of these significant remedies, and the broad scope of liability, it is surprising that more Bane Act violations are not pursued. In his concurrence opinion in Venegas v. County of Los Angeles, Justice Baxter highlighted the breadth of Bane Act liability as the statute is currently worded. (Venegas, 32 Cal.4th at pp. 844-45.) According to Justice Baxter, the Legislature “might have inadvertently transformed section 52.1 from its originally intended purpose as a weapon…to combat the rising incidence of hate crimes, to a generally applicable catchall provision that will encourage claimants to seek section 52.1’s sweeping remedies…in commonplace tort actions to which those special statutory remedies were never intended to apply.” (Ibid.) He further noted that “it should not prove difficult to frame many, if not most, asserted violations [of federal and state rights]…as incorporating a threatening, coercive, or intimidating verbal or written component.” (Id. at pp. 850-51.) Notably, in the more than 10 years that have passed since Venegas, the Legislature has taken no action to narrow the scope of the Bane Act’s language.

California Civil Code section 51.7 (The Ralph Act)

Beyond the Bane Act is Civil Code section 51.7, “The Ralph Act,” which prohibits all violence or intimidation by threat of violence committed against any person or property because of a person’s sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, sexual orientation, or position in a labor dispute or because of the perception that a person has one or more of these characteristics. The Ralph Act does not limit its protections to persons with these explicitly enumerated characteristics, but rather notes that the “identification … of particular bases of discrimination is illustrative.” (Civ. Code, § 51.7, subd. (a).) The civil right protected by the Ralph Act is the right to be free from violence because of a person’s protected characteristic such as race, sex or sexual orientation.

Similar to the Bane Act, the Ralph Act does not define any of the three operative words “violence,” “intimidation” or “threat.” Words alone can violate the Ralph Act. (See Long v. Valentino (1989) 216 Cal.App.3d 1287, 1296-98.) The appropriate standard to determine whether the threatened violence was intimidating is “‘would a reasonable person, standing in the shoes of the plaintiff, have been intimidated by the actions of the defendant and have perceived a threat of violence?’” (Winarto v. Toshiba America Electronics Components, Inc. (9th Cir. 2001) 274 F.3d 1276, 1289-90 [because the victim of the threat in that case was a woman, the Ninth Circuit stated that its test would specifically focus on the standard of “the reasonable woman.”].)

Unlike a claim under the Unruh Act, a Ralph Act claim can be made by an employee against an employer. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441.) Recognizing that neither the language nor the history of the Ralph Act bars claims arising in an employment setting, the Court observed “[s]adly, hate does not end when an employee walks through the door of his or her place of employment. The staggering impact of cases of workplace violence based on race, religion and other classifications described in these statutes is unfortunately known to us too well.” (Id. at p. 1457.)

The remedies for a Ralph Act civil claim are set forth in Civ. Code § 52, subd. (b), which provides for actual damages, punitive damages, civil penalty, attorney’s fees as well as injunctive relief.

Civil Code § 51.9 (sexual harassment in defined relationships)

Another civil rights statute that is often overlooked is Civil Code section 51.9, which was enacted in 1994, and establishes a cause of action for sexual harassment in certain defined relationships where “[t]here is an inability by the plaintiff to easily terminate the relationship,” including, but not limited to, relationships between a plaintiff and a physician, landlord or teacher. (See Civ. Code, § 51.9, subd. (a), subsection (1), (a),(d) & (e).)

The cause of action requires: (1) the existence of a business, service, or professional relationship; (2) the defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe; (3) there is an inability by the plaintiff to easily terminate the relationship; and (4) “[t]he plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).” (Civ. Code, § 51.9.)

While a claim for violation of Section 51.9 may often accompany a claim for violation of the FEHA (Gov. Code, § 12900 et seq.), as explicitly provided in the statute itself, it is no way limited to sexual harassment in the workplace. Such a claim may be appropriate where a teacher sexually abuses a student, or a landlord regularly harasses a tenant on the basis of gender. The availability of such statutory liability may expand theories otherwise unavailable to such victims.

Concluding thoughts

One further observation that may entice use of these civil rights statutes is the provision in Civil Code section 52, providing that: “Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable …” for actual damages as well as exemplary damages, a civil penalty and attorney’s fees as may be determined by the court.

Pursuant to this provision, where a police officer is found liable for denying a plaintiff the right to be free from violence or the threat of violence based on a protected characteristic under Section 51.7, and, where there are facts supporting the police department’s knowledge of similar such violations (similar to Monell liability), the police department may be equally liable to the victim for its conduct in aiding, inciting or conspiring in that denial under section 52(b). Or, considering a claim for violation of section 51.9 involving a teacher and a student, should the facts reveal that the school knew that the teacher had engaged in inappropriate conduct with other students and yet took no action to investigate or otherwise protect the plaintiff, the school could very well be found to have aided the teacher in sexually harassing the student and thus equally as liable under section 52(b). Indeed, the very presence of subsection (b) in section 52 suggests that the Legislature contemplated the role of third parties in assisting in the violation of these statutory claims.

In short, California’s civil rights statutes, and specifically Civil Code sections 52.1, Civil Code 51.7 and Civil Code 51.9, are worth reviewing, and hopefully pursuing, in the fight to protect citizens rights. 

source

California Civil Code Section 52.1

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights

Bringing a “Malicious Prosecution” Claim in California

Malicious prosecution is a civil cause of action in California that you bring when a person files a frivolous claim against you – a lawsuit was filed not based on merits of the claim, but rather for some ulterior purpose – and you suffered damages as a result.

Civil Lawsuit

A claim of malicious prosecution is a civil case, not a criminal one. This claim is meant to deal with filed lawsuits that are:

• filed to harm;
• filed to harass; and
• completely without merit.

Criminal Cases

When a person is falsely accused of a crime and criminal charges are filed as a result, there is a lot of harm that can result.

When this is the case, the person that was falsely accused can file a civil lawsuit for malicious prosecution against the person that falsely accused him or her of a crime.

1. What is “malicious prosecution” under California law?

The tort of malicious prosecution is a civil cause of action in California designed to go after individuals who file frivolous lawsuits and cause damages as a result.¹

In order to prove these causes of action, the plaintiff (the injured party) is required to prove certain elements.

1.1 What are the elements of this cause of action?

There are four main elements for a malicious prosecution suit in California:

1. Lack of Probable Cause: If a claim is brought for an improper purpose or without justification, the case is without probable cause. This is analyzed in each individual case to determine whether the case was brought against a person who should not be named in a lawsuit.
2. Malice or Malicious Intent: The litigant who brought the frivolous lawsuit must have done so with some ill purpose, not simply by mistake. Naming the wrong person in a lawsuit by accident would not constitute malice.
3. Winning the Frivolous Lawsuit: The plaintiff in the malicious prosecution case must show that he or she won the prior lawsuit at least as to any claims filed under the new lawsuit (“favorable termination”).
4. Legal Damages: Both economic and non-economic compensatory damages can be considered and must be proven at trial.

It is important for an injured person to prove all the elements for this claim. Failing to prove any one of the elements of this cause of action will result in a loss at trial.

1.2 What does the jury consider when deciding whether I proved my case?

In order to prove a claim of malicious prosecution against a person, the plaintiff must prove the following by a preponderance of the evidence:

• that the defendant was actively involved in bringing about the lawsuit;
• that prior action ended in the plaintiff’s favor;
• that no reasonable attorney or reasonable person in the defendant’s circumstances would have believed that there were reasonable grounds to bring the underlying action against the plaintiff;
• that the defendant acted primarily for a purpose other than succeeding on the merits of the claim;
• that the plaintiff was harmed by the underlying case; and
• that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.²

The trial court jury must decide whether each of these elements is proven, except for the second regarding whether the prior lawsuit ended in the plaintiff’s favor. That is decided by the trial judge.³

1.3 What is an example of a case where this would apply?

An example can help illustrate this legal concept.

Example: James and Anita are recently divorced and tensions between them are extremely high. James feels slighted by the divorce proceedings and decides to get back at Anita. James’s car was recently damaged by vandals after it was parked outside of the Bronco’s stadium, but he decides to file a lawsuit against Anita blaming her for the damage to his car.

Anita wins the lawsuit as it is clear from the evidence she did not commit the damage. She can file a malicious prosecution lawsuit against James because he acted with malice to bring a frivolous lawsuit against her, and she suffered financial loss as a result.

2. What does “preponderance of the evidence” mean under California law?

A preponderance of the evidence standard is a less stringent standard than “beyond a reasonable doubt” used in criminal cases.

California law defines preponderance of the evidence to mean:

• that the evidence on one side outweighs or is more than the evidence on the other side.⁴

The “weight” of the evidence has to do with its power to convince a jury that the evidence is true or correct, not the number of witnesses or amount of evidence.⁵

If a jury believes that the plaintiff proved his or her case more than 50% of the way, then this burden is met.

3. Can I file a lawsuit due to a frivolous criminal charge?

If a person is falsely accused of a crime in California, the false accuser could be held liable via civil action for malicious prosecution.

A person falsely accused of a crime can file a civil claim if:

• he or she was falsely accused;
• he or she pleads not guilty; and
• the charges are dismissed.⁶

Example: Susan really hates her neighbor Alice. Susan knows that Alice’s children play soccer and have lots of bruises on their legs, so she calls the police and accuses Alice of abusing her children physically. Susan says she witnessed the abuse herself. The police arrest Alice, and she is charged with a crime.

Eventually, the police and prosecutor realize Alice is innocent and drop all charges. Alice can file a claim for malicious prosecution against Susan.

In the above example, Susan can be sued even though it was the prosecutor that brought the charges. This is because it was her fault that the criminal case was initiated, not the prosecutor’s.⁷

4. Does California favor these types of claims?

Generally speaking, claims for malicious prosecution are disfavored in California, except under appropriate circumstances. It is not unusual for plaintiffs to lose these cases on summary judgment as a matter of law.

These claims can have a “chilling effect” on legitimate lawsuits by people who have honestly been injured by others. Because of this, the law and California courts look strictly at cases to determine whether a cause of action for malicious prosecution is valid.

Just because California does not “favor” these lawsuits does not mean that a truly wronged person is out of luck. When the right case exists, the law strictly protects the injured party because not only is a frivolous case harmful to the injured person, but it is also harmful to the administration of justice and the American system of law.⁸

5. What types of damages can I recover when I win my case?

When a person is successful in his or her malicious prosecution claim, the person can recover both economic and non-economic damages.

Economic damages that can be awarded include but are not limited to:

• attorney fees,
• lost wages due to time spent in trial or incarceration,
• costs of litigation,
• cost of bail bond,
• medical or psychological therapy costs,
• court fees and expenses, and
• other financial loss.

Non-economic damages the plaintiff can win include but are not limited to:

• pain and suffering,
• humiliation,
• loss of reputation,
• embarrassment, and
• emotional distress.

The plaintiff may also be able to recover punitive damages, which car far exceed compensatory damages.

With the help of an experienced California attorney, an individual who has suffered as the result of a frivolously filed civil or criminal lawsuit can prove his or her damages and receive compensation for the losses he or she has suffered.

6. How long do I have to sue?

There is a one or two-year statute of limitations to bring a malicious prosecution suit depending on the case. The one-year limit usually applies to cases where the defendant is an attorney.⁹

For questions about malicious prosecution claims or to confidentially discuss your case with one of our skilled California personal injury attorneys, do not hesitate to contact us at the Shouse Law Group.

We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. We appear in both state superior courts, appellate courts, and United States federal courts.

Legal References:

Misconduct – Know More of Your Rights

Sometimes in Life you really can become the victim any of the following, although this list is not complete and always growing the following are reasons to look into your rights.  If you have experienced any of the following, contact a TORT CLAIM Lawyer for any of the following  behaviors by either Law Enforcement, Judges, or District Attorney’s:

• discrimination if you have been discriminated because you are mental ill, or have any AXIS II abnormalities like being socially awkward, Sigma personality type, Asperger’s Syndrome  (a form of Autism Spectrum Disorder), or any personality disorder including PDD-NOS disorder  if you need to help with mental health discrimination learn more on this topic click here
• hate against you for being of any race, color, ethnicity, gender, mental impairment, physical impairment, age, sexual orientation or any other form of picking on someone in a negative fashion to show animosity and distain for their classification or they way they classify themselves or section. if you need to help with discrimination learn more on this topic click here
• malevolence
• collusion getting your buddies to help do wrong or working with those that do
• persuasion / coercion
• threats or intimidation by using tactics like scaring witness with malicious prosecution or abuse of power to hide their doings
• bribery (pay to dismiss or make a case “disappear” aka pay to play)
• blackmail (pay to dismiss or make a case “disappear” aka pay to play)
• extortion (pay to dismiss or make a case “disappear” aka pay to play)
• lying aka perjury
• manipulating evidence
• falsifying evidence 
• overlooking clear evidence (neglect)
• not checking evidence (due diligence)
• over reach (stretching laws outside of their content)
• hunting for crimes / cherry picking SOME DA OR POLICE TAKE CASES PERSONALLY AND ITS OBVIOUS TO EVERYONE BUT THEM
• gang type activity by law enforcement (working in unison with covering up or knowledge of such there of)
• being set up, must have proof not just hearsay
• not doing their job (allowing crimes to take place or judges orders not to be followed)
• different rules for the goose than the gander
• bias – not going after certain individuals and showing preferable treatment to others facing the similar offenses or even worse yet are treated as angels 

If you would like to learn more about Chapter 289 – Peace Officers and Other Law Enforcement Personnel which is their guidelines to give you a broader understanding of their side chapter-289-peace-officers-and-other-law-enforcement-personnel/

POLICE HAVE CLICKS OR GANGS WITHIN THEM CLICK HERE TO LEARN

NOT ALL POLICE ARE BAD, IT IS A SELECT FEW WHEN VIEWED NUMERICALLY AS A PERCENTAGE BUT WHEN ANYLYZED NUMERICALLY IT VERY HIGH WHEN COUNTED PER HUMAN HUMAN AN NOT AS A PERCENTAGE.

PERSERVING THE BADGE AND ITS MEANING IS DETRIMENTAL TO HAVING A FUNCTIONING CIVIC MINDED SOCIETY, THE MOMENT LAW ENFORCEMENT CROSSES THE LINE OF TRUST, THE IRREVERSIBLE DAMAGE IS INCONCEIVABLE BY THE WRONGDOERS.  These slubberdegullions infect the departments they work for, brining others down with them and inherently destroying community trust in the process.  This not only harms the community but it harms the moral of the good ones, like i stated before, percentage wise its low, but 1% of 10,000 is still 100 people and there is 660,288 cops give or take so that means there are roughly 6603 dirty cops, and that is with a 1% statistic which is because catching the dirty ones is even harder. 6603 dirt cops / 50 states = 132 dirty cops per state and that is if the number was closer to a real number 2-3% that is roughly 12,000-18,000 dirty cops!  GOOD MEN WANT GOOD THINGS, IT STARTS WITH FAMILY AND YOUR UPBRINGING AND MORALITY THAT DETERMINES IF YOU HAVE A CIVIC MIND AND DESERVE THE PRIVELEDGE TO HELP AND PROTECT OTHERS, NOT HARASS, KILL OR FRAME!

If you may experience this with anytime you challenge certain low self esteem, irritated, anti-social psychosocial personality types.  to learn more about these 3 items below in orange click here

1. Some individuals seek power to have control over others, while others want to have more influence over their own lives.
2. Individuals may seek power over others due to fear or mistrust, which can motivate choosing coercive and antisocial strategies to control them.
3. In contrast, individuals seeking power for self-determination tend to aim toward prosocial leadership and cooperation instead.

To learn more about how a victim of a real crime can use an audio recording can be used in any court proceeding to prove perjurylook here (California Constitution article I, § 28 Right to Truth – Victims’ Bill of Rights – Prop 8 1982) you cannot just record someone, unless their is no expectation of privacy (i.e. they record at the office,  you tell them they continue to blab)those are legal and no need for any (California Constitution article I, § 28 Right to Truth – Victims’ Bill of Rights – Prop 8 1982) to be applied.  But if you are secretly recording and there is no expectation of privacy, and you know what the other person is doing is a crime against you and your soul purpose is to use it to prove another’s statement is perjurious, it however cannot be used to convict 

If you are dealing with lying witnesses and you have forensic proof that can establish a lie…. then you can sue them for Malicious Prosecution which can lead to civil and even penal actions being taken up against them.  There is a slew of other reasons providing they are not judges, they have almost complete immunity but jurisdictional issues and operating outside of their official Judgeship Capacity can lead to a successful penetration, it’s hard and case by case, tolearn more about how to penetrate their vale of immunity click here.  Prosecutors are less immune than judges to find out how to penetrate their vale of immunity click here and cops can be sued are are far less immune, especially when constitutional rights are involved and liberties deprived now a days as of 4.4.2022 to find out how to penetrate their vale of immunity click here !  To learn more about perjury click here

If your Accuser has falsified evidence and you can prove it read up here on the correct laws for them Whether Cop or Civilian ITS WRONG!

What can happen to dirty cops ?

• IN EXTREME CASES THEY CAN SERVE TIME
• BE HIT IN A CIVIL LAWSUIT
• LOOSE PENSION AND ASSETS, BANK ACCOUNT
• EVEN BE GARNISHED IN THE FUTURE  FROM THEIR FUTURE NEW CAREER DOING SOMETHING ELSE
• DISGRACE THEMSELVES, THEIR FAMILY NAME AND REPUTATION OF THEMSELVES FOREVER (A COMMUNITY STANDING OF LESS VALUE THAN A CRIMINAL) while compounding the injustice that the bade of good officers consistantly receives due to neglegent sociopaths working with a badge who TARNISH it so THE GOOD OFFICERS THAT SACRIFICE THEIR LIFE EVERYDAY FOR CIVILITY IN SOCIETY have shame they did not earn, you shat on them!

TORT CLAIMS WHEN APPLIED IN THE CORRECT MANNER DO TOUCH HOME FOR LAW THAT ABUSES LAW

For police to take sides, collude and lie just to save what? what are you saving exactly? The force? The Badge? NOPE

actions like that disgrace the honor and privilege they hold being civil servants to us citizens.  They often are not but always should be held at the highest standards as they  represent what they wish out of their citizens.  They are mere civil servants, serving the real penal code and serving the badge by being honest in all your doings, never to take sides, but to be a mere non

In this article we will cover:

1. Suing for police misconduct (reasons for Tort)
2. Suing for prosectional misconduct (reasons for Tort)
3. Suing for Violation your US Constitutional Rights (reasons for Tort)
4. Retrieving Police Data, their police line recordings, and bodycam Footage SB1421 form & learn here

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

• Thompson v. Clark holds Fourth Amendment claim under § 1983 for malicious prosecution read here
  • Thompson v. Clark, 364 F. Supp. 3d 178 read here
• Sullivan v. County of Los Angeles False Imprisonment- 12 Cal.3d 710 read here
• Walton v. Gomez – Reiterates many past findings  read here
•  SB1421 Form, The Right To Know Act – Access to California Police Records form here
  • THE LAW SB1421 code is here
• Police Decertification Process through SB-2  read here
  • Senate Bill 2 Legislature read here
    
  • New Laws from SB2 Protect You from Police Misconduct read here

Having Trouble getting the truth from police cams or phone system?

are Police or DA’S giving you the runaround ?

Know your rights and use their reluctance as a larger settlement in the Tort, for preventing Justice by using their position to manipulate, each delay shows intent, each method cements their behavioral psychology. Preventing justice by abusing their power is a constitutional violation. learn more below:

to find out more about police body camera law form here 

To Learn the most common US Constitutional Violations the US Government abuses the most.

learn more below:

• US Constitution read here

  • First Amendment – Freedom of Religion Speech, and Press read here
    • Freedom of the Press read here
    • Citizens & Non Protective Government Offices or Officials read here
    • First Amendment Federal court reaffirms right to film police read here
  • Second Amendment – Right to Bear Arms read here
  • Fourth Amendment – Search and Seizure read here
  • Fifth Amendment – Right Not to Self Incriminate / Double Jeopardy read here
  • Eight Amendment – Cruel & Unusual Punishment read here 
  • Fourteenth Amendment – Deliberate Indifference – Causing Harm – Due Process Clause read here
    • 9.32 Particular Rights – Fourteenth Amendment – Interference with Parent/Child Relationship read here
    • Deliberate Indifference – Causing Harm – Due Process Clause read here
    • Miranda Rights read here
    • How Far Does Probable Cause Go? Where Do Your Rights Begin? read here

Is there any resources when there is a problematic co-conspirator District Attorney or Judge (doing a solid for a friend or few)?

Why yes there is! Not only are they held to the same standards as Police, they have one added caveat both judges and district attorney are lawyers, so they are governed by The State Bar in your state.  If your state is like California it holds Judges & Prosecutor’s not only to the Standard State Bar that they hold all lawyers to but one more last caveat specific ones governing them in particular.  We believe in our country at times its our leaders and servants that become unethical through unscrupulous nefarious shady actions and eschew justice for friendships they make in their legal community of unethical through unscrupulous nefarious shady employees of the government.  Many southern California police have gangs withing them!

TO LEARN MORE ON POLICE GANGS AND CLICKS WITHING THE RANKS CLICK HERE.

Remember although times are changing in some areas old habits die hard.  The police have always been the “Good Ole’ Boys” although many are mere slubberdegullions and if you dare say one of them did something wrong you will find the police gang click which includes some district attorneys and judges, they have a long reach of corrupt ties!

We hope the resources below will help you with these specific type of professionals:

• Misconduct by Judges & Prosecutor read here
• California Attorney Misconduct Law read here
• Malicious Prosecution / Prosecutorial Misconduct read here
• Frivolous, Meritless or Malicious Prosecution read here
• Vindictive Prosecution – Georgetown University read here
• What is abuse of process? read here
• Vindictive & Selective Prosecution  read here
• Prosecutorial Misconduct, What is it ? read here

• California Rules of Professional Conduct and Other Related Rules and Codes can be found here
• New UPDATE California Rules of Professional Conduct Maintaining the Integrity of the Profession (Rules 8.1 – 8.5)  found here
• Types of misconduct by lawyers, judges and DA’s list is ever changing and examples can be found PDF here
• To complain about a judges conduct here is the link to the form to see a sample of what yours should look like Click here

To learn how THESE MALICIOUS ACTIVITIES HERE are linked in with 18 U.S. Code § 241 – Conspiracy against rights

To learn how 18 U.S. Code § 241 can linked in with 18 U.S. Code § 242 – Deprivation of rights under color of law

and what to do about it How to File a complaint of Police, Judge, DA, and ALL Government Employee Misconduct?

cited some from https://www.losangelescriminallawyer.pro/california-penal-code-section-118-1-pc-police-officers-filing-fa.html#:~:text=Under%20California%20Penal%20Code%20Section,report%20on%20a%20criminal%20matter.

AN IN DEPTH ARTICLE ABOUT PROESECUTIONAL MISCONDUCT click here

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

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

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

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.

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

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

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/

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/

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

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.

cited sullivan-v-county-of-los-angeles-12-cal-3d-710/

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/

Prosecutorial Misconduct

“It is prosecutorial misconduct, the weaponization of the Justice System, and an attack by Radicals who desperately don’t want me to have fair and adequate family law/law enforcement services. Especially based previous misconduct and dismissed PC 653 Annoying and harassing phone calls to a residence  (public office isn’t a residence either) against law enforcement (they were recorded and case was dismissed after blackmail was paid to the OC DA Victim Rape Victim Fund (click here to listen to to 2 calls taken over 1 year apart)  cases and the recent criminal malicious prosecution of me when I complain of their negligence and their own crimes they have committed against me and my son.”

DOJ on Prosecutorial Misconduct

Prosecutorial overreaching and misconduct distort the truth-finding process and taint the credibility of the criminal justice system, including the outcomes they generate. NACDL is dedicated to attaining meaningful, systemic reform to help prevent the insidious harm caused when a prosecutor carelessly, or purposefully, fails in his or her duties to us all. This page (click here) contains resources from the Department of Justice on the problem of prosecutorial misconduct.

 You may try this small tool below if suited for you order

• Section 1008 – Motion to reconsider matter and modify, amend or revoke prior order
  Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008/
• Fighting A Judgment Without Filing An Appeal Settlement Or Mediation – Options to Appealing
  fighting-a-judgment-without-filing-an-appeal-settlement-or-mediation-options-to-appealing/
• RULE 9  RECONSIDERATION; APPEAL
  rule-9-reconsideration-appeal/

Malicious Prosecution

Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:

• law enforcement:
  • charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
  • intends to punish a person by harassing them with criminal proceedings;
  • intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
  • charges a person with a crime to divert attention from the actual perpetrator.A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.

Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.

Relationship to “Abuse of Process” and “False Arrest”

Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.

Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.

Malicious Prosecution and False Arrest as a Civil-Rights Violation

In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.

Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:

• (a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
• (b)there was a lack of probable cause for the criminal prosecution;
• (c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
• (d) the criminal proceeding was resolved in the plaintiff’s favor.

Bringing a “Malicious Prosecution” Claim in California

Malicious prosecution is a civil cause of action in California that you bring when a person files a frivolous claim against you – a lawsuit was filed not based on merits of the claim, but rather for some ulterior purpose – and you suffered damages as a result.

Civil Lawsuit

A claim of malicious prosecution is a civil case, not a criminal one. This claim is meant to deal with filed lawsuits that are:

• filed to harm;
• filed to harass; and
• completely without merit.
• 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.

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.

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.

to learn more about SB 2 Police Decertification Process – Changes to Government Code

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SB 2, Expanding Civil Liability Exposure

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

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