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

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

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

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

cited https://www.justice.gov/crt/deprivation-rights-under-color-law#:~:text=Section%20242%20of%20Title%2018,laws%20of%20the%20United%20States.

cited https://www.law.cornell.edu/uscode/text/18/242

To learn how this is linked in with 18 U.S. Code § 241 – Conspiracy against rights

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Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

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

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

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

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

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

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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

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

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

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

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

Deprivation of Rights – Under Color of the Law

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

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

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

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

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

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

Joinder In Family Law Cases – CRC Rule 5.24

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

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

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

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

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

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

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

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

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2022 edition)

MALICIOUS PROSECUTION CACI No. 1501 925 Copyright Judicial Council of California

downland entire Judicial Council of California Civil Jury Instructions CACI Here

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING 

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

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

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

Section 241 makes it unlawful for two or more persons to agree to injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the Unites States or because of his or her having exercised such a right.

Unlike most conspiracy statutes, §241 does not require, as an element, the commission of an overt act.

Section 241 is used in Law Enforcement Misconduct and Hate Crime Prosecutions. It was historically used, before conspiracy-specific trafficking statutes were adopted, in Human Trafficking prosecutions.

cited https://www.justice.gov/crt/statutes-enforced-criminal-section#:~:text=18%20U.S.C.%20%C2%A7%20241&text=Section%20241%20makes%20it%20unlawful,having%20exercised%20such%20a%20right.

also cited https://www.law.cornell.edu/uscode/text/18/241

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

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

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

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

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

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

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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

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

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

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

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

Deprivation of Rights – Under Color of the Law

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

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

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

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

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

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

Joinder In Family Law Cases – CRC Rule 5.24

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

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

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

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

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

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

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

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

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

Overcoming Qualified Immunity in Civil Rights Claims

Qualified immunity is a legal doctrine that protects government officials from lawsuits seeking money damages. The doctrine applies when officers are exercising discretion in their official capacity. The defense of qualified immunity, when invoked successfully, leads to dismissal of civil claims.

The doctrine of qualified immunity protects different classes of government officials, state officials, and public officials. Some of these include:

• State governors,¹
• School officials,²
• Prison officials,³ and
• Police officers.⁴

Under this doctrine, police officers can act without fear of being sued. It can protect them as long as their conduct does not:

• violate the victim’s constitutional rights, which
• were so clearly established that a reasonable person would have known them.⁵

When government officials successfully raise this doctrine in a lawsuit, the court will generally dismiss the case.

Qualified immunity cases involve lawsuits that seek monetary damages in federal courts. If the lawsuit only demands a change in policy, this doctrine cannot be invoked.⁶

Questions of police reform have reached a fever pitch in the wake of the killing of George Floyd by Minneapolis police, and the police violence and police use of tear gas in the ensuing protests. Some members of the Senate in Congress suggest doing away with these police protections altogether. Meanwhile, the U.S. Supreme Court has recently turned down several federal appeals court cases involving how this doctrine keeps police brutality victims from recovering settlements.⁷

1. How can victims of police misconduct overcome qualified immunity?

Overcoming qualified immunity is critical in a police misconduct lawsuit. Claiming this doctrine is one of the first things that police officers do when they are sued. If they convince the judge that they are immune from the lawsuit, the judge will likely dismiss the case. The victims will recover nothing for their losses if this happens.

Police officers accused of misconduct have the burden of proving they are immune from a lawsuit. Victims can argue that immunity does not apply. To do this, one would have to show two prongs:

1. their constitutional rights were violated, and
2. those rights were so clearly established that a reasonable officer / reasonable official would have known he/she committed the constitutional violation.

Only by overcoming the qualified immunity defense can a victim recover money damages.

A trial court’s / district court’s decision about these cases can be appealed right away. The case does not have to go to the end before it can be contested to an appeals court. Police officers can appeal lower courts’ decisions even if they prevailed on one of the steps.⁸

2. What is a constitutional right?

Constitutional rights are those that are enshrined in the U.S. Constitution or federal law.

In the context of police misconduct, they include:

• protection from unlawful detentions, false arrest (no probable cause), and illegal searches, search warrants, or seizures,⁹
• freedom from cruel and unusual punishments (which can include excessive force, unnecessary use of force, and deadly force a.k.a. police brutality),¹⁰ and
• safety from sexual assault, harassment, or other crimes.¹¹

Rights guaranteed under state law cannot be used to overcome qualified immunity.¹² Only federal rights count.

3. When is a constitutional right clearly established?

Police cannot invoke the qualified immunity doctrine if they violated a right that was clearly established. It has to be clearly established at the time of the violation.

What makes a constitutional right “clearly established” is up for debate.¹³ The Supreme Court has made conflicting statements about it. At best, the court has provided a general rule of thumb. A right is clearly established if a police officer had fair notice of it.¹⁴

However, police officers often stress that there are no laws that prohibit exactly what they did. Victims often have to show that the officer’s conduct was prohibited by a more general rule.

Example: An FBI agent searches a home without a warrant. The victims of the search claim it was an unreasonable search that violated their Fourth Amendment civil liberties. Law enforcement claims that the case involves particular details involving a constitutional question that have never been decided, before.¹⁵

4. What remedies are there for a civil rights violation?

Overcoming the qualified immunity test means the officer can be held personally liable for their actions. They can be compelled to pay compensation to the victim.

It is rare for the police officer’s employer to be held vicariously liable.¹⁶ When police commit misconduct, they usually violate official police procedures. This means the department or town is not liable for the misconduct because it broke their rules.

There is one way for the department or town to be held responsible for civil damages. This is if the officer was acting according to a policy or custom.¹⁷

Punitive damages are also possible in civil rights cases. It requires overcoming qualified immunity, though. They are far more common in civil rights cases than in personal injury lawsuits.

5. What is the law in California?

California law says that police officers, government officials, and public officials can assert a qualified immunity defense in certain cases.

Note, though, that there is arguably no qualified immunity for California police officers accused of false arrest or imprisonment.¹⁹ And unlike federal law, California law places the burden on the police to justify a false arrest or imprisonment.²⁰

Further, under California’s Tom Bane Civil Rights Act, citizens can file civil lawsuits against government employees if they interfere by threat, intimidation, or coercion with that person’s constitutional rights. Government employees are barred from raising a qualified immunity defense in these cases.²¹

Under California Senate Bill 2, prison guards and their employers cannot use a qualified immunity defense in most cases where they injure prisoners or fail to provide medical care to them.²²

When California law enforcement officers get sued for misconduct, they can ask their police department to defend them going forward. Whether the case settles or the police officer is found liable at trial, the police department is responsible for paying all compensatory damages to the plaintiff. This includes expenses for medical bills, lost wages, pain and suffering, and other out-of-pocket expenses.

California law does not make police departments liable for paying punitive damages in police misconduct lawsuits. However, the department can elect to pay punitive damages anyway if:

1. the trial judgment is based on an act or omission of an officer (or former officer) acting within the course and scope of his or her employment,
2. at the time of the misconduct, the officer acted in good faith, without actual malice, and in the apparent best interests of the department, and
3. payment of the claim or judgment would be in the best interests of the department.²⁰

(Punitive damages are meant to punish the defendant rather than compensate the plaintiff. And punitive damages only come into play if the case goes to trial and the defendant loses.)

For cases in Nevada, please see our article on criminal justice cases against the government in Nevada.

Legal References:

Cited https://www.shouselaw.com/ca/civil-rights/qualified-immunity/

A NICE MANUAL EXPLAINING DIFFERENT IMMUNITIES with DIFFERENT GOVERNEMTN STATE_IMMUNITY_TORT_CAPS_NOV_2017

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the 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, except that in any action brought against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a 
statute of the District of Columbia.

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

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

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

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

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

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

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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

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

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

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

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

Deprivation of Rights – Under Color of the Law

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

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

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

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

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

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

Joinder In Family Law Cases – CRC Rule 5.24

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

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

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

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

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

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

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

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

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

Penal Code 995 Motion to Dismiss in California

Penal Code “995 Motions” in California

In California state criminal prosecutions, a Penal Code 995 Motion is a defense motion asking the court to dismiss one or more felony counts on the grounds that they were improperly sustained at the preliminary hearing. The motion can be brought after the preliminary hearing but before trial.

A 995 motion (pronounced “nine-nine-five”) is essentially an appeal of the preliminary hearing judge’s decision to bind the case over for trial. Technically it is known as a “motion to set aside the information.” “Information” is the legal name for the criminal complaint in a California felony prosecution.

Thus a 995 motion asks the trial judge to “set aside” (dismiss) all or part of the complaint. The judge will grant the motion if there were insufficient legal grounds to bind the defendant over for trial.

1. What is a Penal Code 995 motion?

A motion under California Penal Code 995 asks a trial judge to dismiss all or part of a criminal case.

It applies in cases in which:

• All the charges are for felonies, or
• The charges include both felony and misdemeanor charges.¹

The motion may also apply to a prosecutor’s request for sentencing enhancements and/or allegations of special circumstances.

All the charges – including enhancements and special circumstances – must be supported by facts. The preliminary hearing judge must decide if those facts are strong enough to merit a trial.

If the defense believes the preliminary hearing judge decided incorrectly, they can bring a 995 motion. This asks the trial judge to review the preliminary hearing judge’s decision.

2. When can you make a 995 motion?

When a defendant is charged with a felony there is a preliminary hearing. At this hearing, a judge determines whether there is enough evidence to send the case to trial.²

If so, the judge will “hold the defendant to answer” for the crimes. This means the case can move forward. The prosecutor will then file an “information” (complaint) with the trial court.

Once the prosecutor files the information with the trial court, the defense can make a Penal Code 995 “motion to set aside the information.” This is usually done before any other California pretrial hearings.

In essence, the motion asks the trial judge to review the preliminary judge’s decision.

What Are Some Reasons Why a Motion to Dismiss Can Be Filed?

A motion to dismiss is often filed based on procedural reasons, rather than the merits of the claim. Some reasons a party might file a motion to dismiss include:

• The statute of limitations has expired.
• The court does not have jurisdiction over the parties or the subject matter of the case.
• The venue, or location where the lawsuit was filed, is not proper.
• The complaint was not served on the defendant properly.
• The plaintiff failed to name a necessary party in the complaint, or named the wrong party.

The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action.

3. What are the legal grounds for a 995 motion?

The purpose of the preliminary hearing is to “weed out groundless or unsupported charges.”³

Charges are considered groundless or unsupported when:

1. The defendant was illegally committed for trial, and/or
2. The defendant was committed for trial without probable cause.

If either of these applies, the trial court will grant the motion to set aside the information.

Let’s take a closer look at what these two things mean.

3.1. The defendant was illegally committed for trial

A defendant is “illegally committed” when they are denied a substantial right during the preliminary hearing. Such rights include (but are not limited to):

• The right to be represented by a lawyer;⁴
• The right to be advised that they can be represented by a lawyer;⁵
• The right to have the preliminary hearing conducted in “one session”;⁶ and
• The right to present and cross-examine witnesses at the hearing.⁷

3.2. The defendant was committed without probable cause

The Due Process Clause of the Fourteenth Amendment requires that a judge have probable cause in California to try someone for a crime.

This means that a judge can only send a case to trial if the allegations in the complaint are supported by facts.⁸

The facts do not need to prove that the defendant is guilty beyond a reasonable doubt. That determination is for the jury (or, in a bench trial, the judge).

Though the facts must be sufficient enough that a reasonable person could have “an honest and strong suspicion that the defendant is guilty” of the crime(s) charged.⁹

As Palm Springs criminal defense attorney Michael Scafiddi¹⁰ explains:

“As long as there is some evidence that supports probable cause, a judge cannot grant a 995 motion.¹¹ Still it is often worth bringing the motion anyway. A 995 motion is an opportunity to highlight weaknesses in the prosecution’s case at an early stage.”

3.3. Examples of specific defects

Lack of probable cause and illegal commitment can arise in a number of situations. Some of the most common include (but are not limited to):

3.3.1. Illegal evidence

Evidence of a crime may not be obtained by violating federal or California search and seizure laws. If the only evidence in the case came from an illegal search, the judge should grant the 995 motion.¹²

Example: The police pull Bill over for a broken brake light on his car. During the stop, Bill is polite and cooperative. He does not seem intoxicated. But the police tell Bill to open his trunk. Inside they find a bag of cocaine. Bill is arrested and charged with Health and Safety Code 11350, possession of a controlled substance and Health and Safety Code 11351, possession of drugs for sale.

But the police had no probable cause to suspect Bill of a crime. So ordering him to open his trunk was illegal. If there is no other evidence, the preliminary hearing judge should not set the case for trial. If they do, however, Bill’s California criminal defense attorney should be able to prevail on a 995 motion.¹³

3.3.2. Insufficient evidence

The prosecution must introduce facts to support every element of the charges, including:

• All elements of each felony charge,
• All elements of any misdemeanor charges,
• Any basis for a sentencing enhancement, and
• Grounds for a finding of special circumstances.

Example: Let’s say in the above example that Bill was acting suspicious. This gave the police probable cause to search his trunk. But the prosecutor presents no evidence of intent to sell (such as scales or separate baggies). The complaint simply contains the bare allegation that Bill intended to sell the cocaine. Since there are no facts to support the allegation, Bill’s 995 motion should be granted as to the possession for sale charge.¹⁴

3.3.3. “Fatal” findings of fact

Sometimes the preliminary judge makes a factual finding that tends to establish the defendant’s innocence.

A common example is a ruling that a key eyewitness is not credible.¹⁵ For instance,

• a witness may not have been able to adequately identify the defendant because of poor lighting and distance from the crime scene, or
• a witness may have testified only that the defendant “looked like” the perpetrator.¹⁶

If this is the only evidence supporting a complaint, the preliminary hearing judge should not commit the charge to trial. If they do, it is an error. The trial judge should grant the 995 motion.

3.3.4. Failure to provide discovery

The Due Process Clause requires a prosecutor to disclose any and all evidence that is favorable to the defendant.¹⁷ If they willfully fail to do so, the charges should be dismissed.

Example: When the police stop Bill in the example above, Bill tells them he borrowed the car from his neighbor. During their investigation, the police speak to several other people who tell them Bill asked to borrow a car from them earlier that evening. The prosecutor does not disclose this to Bill. Since their testimony could have helped prove that Bill was telling the truth, the failure to disclose it violates Bill’s due process rights.

3.3.5. Failure to file the information within the deadline

The prosecutor has only 15 days after the preliminary hearing in which to file the “information” (trial complaint) against the defendant.¹⁸

If the prosecutor does not file the complaint within 15 days of the preliminary judge’s order, the trial judge should grant the defendant’s 995 motion to dismiss the case.¹⁹

4. What charges can a motion to set aside the information apply to?

California preliminary hearings apply to felony complaints. If there are no felony charges, there is no preliminary hearing.

A criminal complaint often combines both felony and misdemeanor counts. It may also allege facts in support of:

• Sentencing / penalty enhancements (such as a California gang enhancement), or
• Special circumstance allegations (such as lying in wait in a California murder case).

The defense can use a 995 motion to challenge any of these counts, enhancements or circumstances, including the misdemeanors.²⁰

5. What is the process for a Penal Code 995 motion?

The defense will typically file a 995 motion after the case is assigned to a trial judge and before any other pretrial proceedings.

The hearing on the motion does not take long – usually less than one hour. The defense attorney argues first, then the prosecutor. The defense attorney then has the opportunity to make a final argument.

The judge will usually issue a decision immediately after the arguments conclude. Though they may occasionally continue the case in order to consider the arguments further.

6. What happens if I win a 995 motion?

If the trial court grants a 995 motion, the affected charges will be dismissed. Though the prosecutor has the right to appeal the decision.

While the appeal is pending, the prosecutor can:

• Proceed with a California jury trial or bench trial on the remaining counts (if any), or
• Request a continuance of the trial until the appeal is resolved.²¹

Or the prosecutor can skip the appeal and simply re-file the charge(s) in a new complaint. Though California follows a “two dismissal” rule. Under this rule, charges that have been dismissed twice can generally not be prosecuted again.²²

There are some exceptions to the two-dismissal rule. Your California criminal lawyer can explain the exceptions to you if you are in this situation.

6.1. What happens to my bail if my case is dismissed?

If all the charges are dismissed after a 995 motion, the court must either:

• Refund the defendant’s California bail within 15 days,²³ or
• If the prosecutor refiles the charges, apply the bail to the new offense(s).²⁴

7. What happens if I lose a 995 motion?

If the judge denies a 995 motion, the defendant has the right to appeal the decision. The time in which the appeal must be filed depends on the original grounds cited in the motion.

If the grounds were an illegal commitment, the defendant has until 60 days from the date of their California arraignment to file an appeal.²⁵

If the grounds were commitment without probable cause, the appeal must be filed within 15 days of the judge’s denial of the 995 motion.²⁶

If the defendant does not appeal or loses the appeal, the case will proceed toward trial.

Legal references:

In California state criminal procedure, a motion to dismiss pursuant to Penal Code Section 995 gives the defendant the option of moving a trial court to dismiss their criminal case following a preliminary hearing at which the defendant was held to answer on one or more criminal charges.

In simple terms, a PC 995 motion to dismiss is a legal motion asking for the dismissal of a criminal case. It’s filed after a preliminary hearing in a felony case.

Under Penal Code 995, if the judge at the preliminary hearing incorrectly allowed the case to proceed, then a defendant’s criminal defense lawyer could file a PC 995 motion. This motion is asking the trial judge to partially or entirely dismiss the criminal complaint. In other words, the defense makes the motion after the preliminary hearing, but before a trial.

A 995 motion is an appeal of the preliminary hearing judge’s decision to set the case for trial and often called a “motion to set aside the information.” Typically, a judge will grant the motion if they find there were insufficient legal grounds to hold the defendant over for trial.

A 995 motion can’t be used to respond to a criminal complaint of only misdemeanor charges, but could be used if the charges include both felony and misdemeanor charges. This is because without a felony charge, there will be no preliminary hearing. Filing motions, such as a PC 995, is a crucial component in the criminal case process in California.

There are many situations where it’s appropriate to file a Penal Code 995 motion. However, the most common are a lack of probable cause and illegal commitment.

To give readers important information about a 995 motion to dismiss, our California criminal defense attorneys are providing an overview below.

PRELIMINARY HEARING AND PROBABLE CAUSE

At a preliminary hearing, the court hears evidence, usually from one or more police officers, regarding the basis for the defendant’s arrest. The preliminary hearing has many features of a jury trial, but also has important differences.

Most obviously, the preliminary hearing is held by a judge with no jury present. The judge is the finder of fact and resolves all credibility issues between witnesses. Second, and perhaps most importantly, the burden of proof, while still on the government, is much lower than at a jury trial.

We are all familiar with the “beyond a reasonable doubt” standard, the highest in the law, which applies at a criminal jury trial. At a preliminary hearing, conversely, the standard is only probable cause.

The preliminary hearing probable cause standard is stated in different ways by various appellate courts through time, but essentially it requires the government to put forth sufficient evidence that a reasonable person would find that the person being charges likely committed the crime.

This is a standard somewhere below 50%, which is known as a preponderance. For that reason, a preliminary hearing court can find that it is more likely than not that the defendant is not guilty, but still hold them to answer for the charge following preliminary hearing where the evidence raises a reasonable inference of guilt.

DEFENDANT COMMITTED WITHOUT PROBABLE CAUSE

The Fourteenth Amendment requires a judge have probable cause in California to try somebody for a crime. In other words, they can only send the case to trial if the allegations are not supported by facts. Again, the facts don’t have to prove defendant’s guilty beyond a reasonable doubt, but they have to be sufficient enough that a reasonable person would have a strong suspicion they are guilty of the crime charged.

A motion under Penal Code Section 995 therefore has to allege that the court could not have found a reasonable inference of guilt based on the evidence presented by the prosecution. While the burden of proof is low, it is still on the government.

Where the government’s case derives solely from information which requires speculation, conjecture, or guess-work in order to infer the defendant’s guilt, a dismissal pursuant to Penal Code Section 995 is proper. The trial court must also appraise the case in light of the whole record, not just isolated bits of evidence selected by the prosecution.

PROCESS FOR A PENAL CODE 995 MOTION

Procedurally, a Penal Code Section 995 motion is almost always brought before a trial court with a judge other than the one who presided over the preliminary hearing. Though this is not legally required, this procedure is preferable over having the same judge hear a Penal Code Section 995 motion as the one who heard the preliminary hearing.

This allows the Section 995 process to function as a check on the preliminary hearing court, with a set of fresh eyes re-evaluating the case to check for obvious errors.

It should be noted, however, that the trial court which hears the Penal Code Section 995 motion to dismiss is not reviewing the record at the preliminary hearing as if it had itself heard the preliminary hearing. All reasonable inferences in favor of the preliminary hearing judge’s determination will be afforded by the trial court.

There are relatively infrequent, though certainly not unheard of, instances however where the trial court will determine that the evidence presented at the preliminary hearing was truly insufficient and the judge erred in holding the defendant to answer.

This determination will take the form of setting aside the Information – the charging document filed post-preliminary hearing against the defendant – and dismissing the case completely.

PC 995 OPPORTUNITY TO DISMISS CRIMINAL CHARGES

Through the Penal Code Section 995 vehicle, therefore, defendants have an opportunity to have their cases dismissed completely by a judge without having to risk a jury trial. This is unique in California criminal procedure – leaving aside the limited circumstances which give rise to a demurrer – as there is no true analogue to a motion to dismiss as exists in civil procedure.

If the trial court grants a 995 motion, the charges will be dismissed. However, the prosecutor can appeal the decision. While their appeal is pending, the prosecutor could proceed with a trial on any remaining charges, or request a continuance of the trial until appeal is resolved. They also have the option to just re-file the charge in a new complaint.

If all charges are dismissed after a 995 motion, the court has to either refund defendant’s bail within 15 days, or apply the bail to the new charges if the prosecutor refiles charges.

CONTACT OUR CRIMINAL ATTORNEYS FOR HELP

If you or a family member has been charged with a felony and has had a preliminary hearing at which the defendant was held to answer and the case bound over to the trial court, you should consult an experienced Los Angeles criminal defense lawyer about the viability of the Penal Code Section 995 motion to dismiss.

Even if such a motion is ultimately denied, the filing of an effective Section 995 motion puts the court and the prosecution on notice of the important issues in the case and, if nothing else, can often inspire a more favorable settlement in the matter.  Effective litigation at the Penal Code Section 995 phase of a felony prosecution is a crucial part of achieving a favorable result in a California felony criminal case.

Eisner Gorin LLP is a nationally recognized criminal defense law firm with a team of highly experienced lawyers. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. We also have an office right next to the Van Nuys Courthouse located at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for a consultation at (310) 328- 3776.

CITED https://www.egattorneys.com/criminal-case-process-california/995-motion-to-dismiss

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