Malicious Prosecution / Prosecutorial Misconduct

Avoid being Victims of the Justice Systems by shady prosecutors

When the scales are tipped we are all in jeopardy of the injustice that follows that tipping of the blindly held scales of justice

More and more these days we see the US Government hiring or having elected into office abusive individual that ruin and erode justice.  Justice is fair to everyone always, it cuts on either of its sides depending on the side that is wrong.  In recent times we are discovering more and more about these abusive individuals that have careers with our Government.  Our Government and Freedoms must stay intact and clean, never tarnished, and if tarnished fixed and cleanup immediately so that the scales may re-adjust back to even where the belong.  It is rare that we lose sight of right and wrong as good people we are all subject to being wrong.

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.

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

Pro$ecutor‘$ Duty to the citizen

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

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

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

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

• 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal

system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

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

California Civil Code Section 52.1

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.

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

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.

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.

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

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

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

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

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

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 

A Pitchess motion is where you as the defendant seek to inspect a law enforcement officer’s personnel record for evidence of police misconduct. Defense attorneys typically bring a Pitchess motion when they suspect officers may have acted improperly, such as by filing a false police report or using excessive force.

California Senate Bill 1421 was signed into law in September 2018. This new law makes a Pitchess motion unnecessary for some types of information requests.

Under SB 1421, four types of police records are now open for public inspection. These records pertain to the situations when:

1. An officer shoots his gun at a person;
2. An officer uses force against another person and the result is death or great bodily injury;
3. There is a prior finding that an officer committed a sexual assault; and,
4. An officer commits a dishonest act (such as perjury or filing a false report).

After Senate Bill 1421, Pitchess motions are still relevant if:

• You seek information from an officer’s personnel file; and,
• That information is not authorized for inspection under SB 1421.

Examples of information you may seek that is not covered within SB 1421 may include:

• Records that show that an officer racially profiled; or,
• Records that show that an officer coerced a confession; or
• Records show other prejudicial acts or the falsification of evidence/testimony.

In accordance with Pitchess motions procedures and standards, a Pitchess motion must include:

1. A description of the type of records or information you seek; and,
2. A showing of “good cause” for the records’ release.

If the judge decides that a Pitchess motion shows “good cause” for disclosing an officer’s personnel records, the judge holds a private “in camera” hearing to decide which records are relevant to the case.

1. When can I gain access to police personnel files?

A strong defense to some criminal accusations is to show that a police officer committed misconduct against you. Some forms of misconduct are when officers:

• Use excessive force,
• Racially profile,
• Coerce confessions,
• Lie in a police report, and
• Plant evidence.

In misconduct cases, police records – in particular an officer’s personnel file – are relevant evidence because they allow you to see if the arresting officer in your case committed some type of misconduct in past cases. A showing of any type of pattern of misconduct would be critical to build an effective defense.

Under California law, you can attempt to obtain information from an officer’s personnel file by either:

1. Requesting this information pursuant to SB 1421; or,
2. Filing a Pitchess motion with the court.¹

2. What has been the effect of Senate Bill 1421?

California Senate Bill 1421 does four important things:

1. Makes certain police records open to public inspection;
2. Specifies what types of “records” are eligible for release;
3. Provides instructions on redacting certain information; and,
4. Prohibits disclosure of information in an officer’s personnel file in other cases.

2.1. Types of records open to public inspection

Under SB 1421, there are four types of personnel records that are open to public inspection. These are:

1. Records relating to an incident, or investigation, involving a police officer shooting his gun at a person;
2. A record relating to an incident, or investigation, involving a police officer using force against a person, and the result is death or great bodily injury;
3. Records relating to an incident in which there was a finding that a police officer engaged in sexual assault; and,
4. Records relating to an incident where there was a finding that an officer acted dishonestly.²

As to the fourth category of records, dishonest acts may include:

• Perjury;
• False statements;
• Filing false reports;
• Destroying evidence;
• Falsifying evidence; and,
• Tampering with evidence.³

2.2. Specific “records’ that may be released

In the four scenarios above, SB 1421 authorizes the public inspection of “records” found in a police officer’s, or other law enforcement officer’s, personnel file.

According to the Senate Bill, “records” include such items and information as:

• Investigative reports;
• Photographic, audio and video evidence;
• Transcripts or recordings of interviews;
• Autopsy reports;
• Documents setting forth findings or recommended findings; and,
• Copies of disciplinary records.⁴

2.3. Redacting of information

Senate Bill 1421 states that when authorized records are open for inspection, some information must get redacted, or edited, to protect the identity of certain parties and witnesses.

The information that gets redacted includes:

• Personal information (for example, addresses, telephone numbers, and names of family members);
• Confidential medical or financial information;
• Information prohibited by federal law;
• Information the disclosure of which would create a danger to an officer’s safety; and,
• Information where the public interest served by not disclosing it outweighs the public interest served by disclosing it.⁵

2.4. Disclosure of other records prohibited

Senate Bill 1421 does not provide for the full disclosure of all records within an officer’s personnel file. Public inspection is only available for the four types of records specifically listed in the bill (please see 2.1 above).

The disclosure of any other information from a personnel file is prohibited under the new law, unless allowed under Section 1043 of the Evidence Code.⁶

California Evidence Code 1043 EC applies to information contained within an officer’s personnel file. EC 1043 states that this information is privileged, and thus not obtainable, unless you file – and are successful in bringing – a Pitchess motion.

This means Pitchess motions are still relevant under California law; and, they must get filed to obtain records not authorized under SB 1421.

3. How do you file a Pitchess motion?

California Evidence Code sections 1043 and 1045 outline the process for filing a Pitchess motion. The process includes three important elements:

1. Procedural steps for filing the written motion;
2. A showing of “good cause;” and,
3. An “in camera” hearing.

3.1. Procedural steps

You file a Pitchess motion before the beginning of your criminal jury trial, typically before the preliminary hearing. It must be in writing.⁷

Under Evidence Code 1043 EC, a Pitchess motion must include:

1. Identification of the criminal court case, you, the officer(s) whose records are being sought, and the governmental agency that has custody of the records;
2. A description of the type of records that are being sought;
3. Proof that you have notified the agency that holds the records of the motion and proof of service; and,
4. An affidavit showing “good cause” for the disclosure of the records (this is often written and signed by your criminal defense attorney).⁸

3.2. Showing of “good cause”

A showing of “good cause” exists if the affidavit sets forth both:

1. A specific factual scenario that supports allegations of officer misconduct in your case; and,
2. Reasons why the misconduct would be material to your defense.⁹

Example: Wendell is arrested after an undercover officer claims that Wendell tried to purchase drugs from him. Wendell files a Pitchess motion, and his “good cause” affidavit asserts that Wendell never tried to buy drugs from the officer, and the officer was simply lying.

The affidavit also explains that any information in the officer’s personnel record that would establish a history of dishonesty and filing false reports would be relevant information for Wendell’s case. The court decides that this affidavit is sufficient to show “good cause” for disclosure of the records under Evidence Code 1043 EC.²⁵

For police misconduct to have “materiality” to the pending litigation, there must be:

1. A link between the criminal charges in the case and the defense; and,
2. A showing why the requested information would make a difference to the defense.¹⁰

3.3. “In camera” hearings

If the above procedural requirements are meant, and good cause is shown, then a Pitchess motion moves onto an “in camera” hearing conducted by a judge.

“In camera” means that the hearing is private rather than in open court. The only people that usually attend are:

• The officer whose records are being sought; and,
• Any other people the officer is willing to have present (usually the custodian of records for the police department).¹¹

During the in camera review hearing, the trial court judge evaluates whether or not the information in the officer’s personnel files is relevant to your defense. Only information that the judge determines is relevant will be disclosed to you. The judge does not serve as a trier of fact and consequently does not decide credibility or weigh the evidence.¹²

Records that cannot be disclosed

There are certain types of information that the judge cannot disclose to you (unless the information is exculpatory, which means suggesting that you are innocent). Records that are off-limits include:

1. Information about complaints against the officer(s) that occurred more than five (5) years before the alleged police misconduct in your case,
2. The personal conclusions (as opposed to the disciplinary action) of any other officer investigating a citizen’s complaint against the officer(s), and
3. Facts that are so remote that disclosing them would have little or no practical benefit.¹³

Recipients of Pitchess materials may not reveal them for other purposes than the case at hand. If there is good cause, the court may issue a protective order to keep the information secret.¹⁴

4. What are the possible outcomes of a Pitchess motion?

There are two possible outcomes to a Pitchess motion. These are that the motion is:

1. Granted, and information is disclosed; or,
2. Denied, and information is not disclosed.¹⁵

4.1. Motion granted

If a court grants a Pitchess motion, and the judge finds records relevant to your defense, the records are not typically turned over. Rather, the judge provides you the name and contact information of anyone that previously filed a complaint against the officer.¹⁶

Your attorney then contacts those persons to interview them about the facts and can present them as possible witnesses. However, if the parties are unavailable or not findable, then you can obtain the actual records of an earlier complaint.¹⁷

If the judge orders disclosure of the officer’s personnel records, but the agency that keeps the records refuses to comply with the court’s orders, then the state must dismiss the charges against you.¹⁸

4.2. Motion denied and information not disclosed

If a court denies a Pitchess motion, and you are then convicted of the charges against you, you can appeal the conviction.

In the appeal, you would argue, in part, that your Pitchess motion should not have been denied because you showed “good cause” to gain access to the officer’s personnel file. The appellate court would then determine whether denying the Pitchess motion was an “abuse of discretion.”

If the lower court never conducted an in-camera review on the Pitchess motion, the appellate court can opt to “remand” the case so the lower court can conduct the in-camera hearing. Only when the lower court conducts an in-camera review – and then denies the motion – can an appellate court then reverse the denial.¹⁹

5. Why is it called a Pitchess motion?

Pitchess motions are named after the 1974 California Supreme Court case of Pitchess v. Superior Court (1974) 11 Cal. 3d 531.

6. What is a Brady letter?

Prosecutors and police officers may keep a Brady letter (also referred to as a Brady list), which is a list of the names of police with criminal convictions or with past incidents of lying.

Officers placed on a Brady List risk termination or demotion. If they testify in trial, the defense could impeach their credibility.

Additional resources

For more in-depth information, refer to these scholarly articles:

• Pitchess v. Brady: The Need for Legislative Reform of California’s Confidentiality Protection for Peace-Officer Personnel Information – McGeorge Law Review.
• Reconciling Brady and Pitchess: Association for Los Angeles Deputy Sheriffs v. Superior Court, and the Future of Brady Lists – San Diego Law Review.
• Good Cop, Bad Cop – Anyone’s Guess: A Review of the Pitchess Motion for Criminal Discovery in the State of California – Whittier Law Review.
• Reevaluating California’s Pitchess Process in Light of the Police Officer Misconduct Problem – Available at SSRN.
• Constructing a Better Estimate of Police Misconduct – PolicyMatters Journal.

Legal References:

HOW TO WIN A PITCHESS MOTION — A PREMIER CRIMINAL DEFENSE ATTORNEY EXPLAINS

Police misconduct can greatly influence what happens in a criminal case. Learn how the best criminal defense attorneys use Pitchess Motions to obtain information about improper police activity.

HOW TO WIN A PITCHESS MOTION

Getting a Pitchess Motion granted by the judge requires your attorney to understand the law and know how to use evidence to support the motion. Award-winning criminal law attorney Aaron Spolin generally fights Pitchess Motions by taking these steps: (1) utilize specific facts to allege officer misconduct and (2) articulate a logical link between the misconduct and the defense we will use.

Prosecutors might keep a “Brady List,” which is a list of the names of police with criminal convictions or past incidents of lying.

Former Prosecutor Aaron Spolin Explains How to Win a Pitchess Motion

1. Utilize Specific Facts: The best way to win a Pitchess Motion is with specific facts gathered from an independent investigation and through the discovery process. The Pitchess Motion must allege officer misconduct by providing a specific factual scenario establishing a plausible fact-based need for the records. Further, a judge is more likely to grant a Pitchess Motion if the request is narrowly tailored to the potential misconduct or impropriety.
2. Articulate a Logical Link Between the Misconduct and the Defenses: It is not enough to simply state that we believe the evidence would be helpful to your defense. We must articulate a logical link between the misconduct and the defenses we will use.

For example, if we claim that an officer used excessive force when arresting a defendant who is charged with resisting arrest, we should include the police report as an exhibit to the motion to show that there was an altercation during the arrest. We would not seek records of an officer’s sexual harassment since it has nothing to do with the defense. Instead, we would narrowly tailor the request to obtain evidence of similar past wrongdoings by the officer.

Another example may be where a defendant claims that an officer falsified information or planted evidence. A declaration should be filed with the motion stating exactly what the officer did or what evidence was planted. Allegations under oath that a detective fabricated evidence may rise to the level of misconduct to gain access to the personnel file where the credibility of the officer becomes an important question.

A Pitchess Motion should be filed if there is any indication that an officer acted improperly.

WHAT IS A PITCHESS MOTION?

A Pitchess Motion is a legal document requesting the court to allow the defense to inspect a law enforcement officer’s personnel file for evidence of police misconduct. These motions are typically brought during the pre-trial phase when the defense suspects that an officer may have acted improperly.

In the Pitchess Motion process, California is balancing two interests:

1. Protecting the privacy of its employees and maintaining secrecy of government information
2. Complying with mandates of due process and allowing access to records with good cause

Due Process Gives You a Right to This Information

The Constitutional right to due process requires that the prosecution provide the defendant with discovery. Under a court ruling in the case Brady v. Maryland, 373 U.S. 83 (1963), the prosecution must disclose any favorable evidence related to guilt. Discovery includes any evidence related to the case, whether or not the prosecution would ultimately use it for trial.

Some examples of evidence that must be provided to the defendant through the informal discovery process include the following:

• Physical evidence obtained in the investigation
• Names, addresses, and telephone numbers of witnesses
• Written and/or oral statements made by the defendant and any codefendants

Format of Pitchess Motion

A Pitchess Motion must include the following information:

• The time and place the motion will be heard
• The officer’s name
• A description of the information sought
• A statement based on reasonable belief that the government has the records or information sought
• An affidavit or declaration showing materiality
• An affidavit or declaration showing good cause for the disclosure

Good Cause and Materiality

In order to show good cause and materiality, the Pitchess Motion must make a valid claim justifying the discovery of the records being requested. The motion must have a declaration that explains which defense theory will be used and how that theory is tied to the specific facts from the case. It must be shown that the records being sought will aid in this defense.

However, it is important to note that a defendant is not required to disclose their defense strategy to the prosecutor. Thus, these documents can be filed under seal to protect the defendant from disclosing too much to the other side.

What Kind of Evidence Can a Pitchess Motion Be Used For?

Some police records are openly available to the public under California Senate Bill 1421 and do not need to be obtained through Pitchess Motion. For example, an officer’s use of force resulted in great bodily injury or death must be disclosed if requested through the informal discovery process. Also, evidence of dishonest acts by a police officer, such as perjury, must be disclosed. Other records that must be disclosed include when an officer shoots their gun at a person and if there is a prior finding that an officer committed a sexual assault. However, there are narrow exceptions in the records that are available to the public.

Other types of records are protected and cannot be obtained by simply requesting a copy from the police agency. A defendant must file a Pitchess Motion to gain access to other records that might be useful in their defense. Examples include prior complaints and records showing the following:

• Use of excessive force
• Fabricating probable cause
• Racial profiling
• Unlawful traffic stops
• Planting or tampering with evidence
• Sexual harassment
• Coercing confessions

Those records may be contained in investigative reports, photographs, audio and video files, transcripts of interviews, autopsy reports, disciplinary records, and other documents setting forth or recommending findings.

PROCESS FOR BRINGING A PITCHESS MOTION

A Pitchess Motion can be brought at any time after a person is charged with a crime, but before trial. It is a pre-trial motion. There is no set time limit for bringing a Pitchess Motion. However, it should be filed as soon as possible in order to give the defendant enough time to litigate the motion and conduct an adequate investigation if the motion is granted and evidence is obtained. It can even be filed before the preliminary hearing.

What Happens If the Motion Is Granted?

If the court decides the Pitchess Motion meets the requirements, it will grant the motion. If granted, the judge will review the records in private in what is called an in-camera hearing. That means the judge will review the records in their chambers with a representative from the police department, but without the defense attorney or District Attorney. If the judge finds anything relevant, it will then be revealed to the defendant.

Further, if the judge finds that some records are relevant, the judge does not turn over actual records to the defense. Instead, the judge will provide the defendant’s attorney with the names and contact information of potential witnesses, including anyone who has made complaints against an officer. This will allow the attorney to contact those people and gather information.

What Happens If the Pitchess Motion is Denied?

All is not lost if the court denies your Pitchess Motion. If the motion was litigated in a California Superior Court, the issue is then preserved for an appeal. You can request that the Court of Appeal review the Superior Court’s actions and decision in deciding the Pitchess Motion. The Court of Appeal reviews a Superior Court’s denial of the motion for an abuse of discretion.

There are several ways to attack an appeal. Your attorney can argue that the Superior Court abused its discretion by denying the motion and withholding records. Also, the Superior Court’s procedures can be challenged. The Court of Appeal will determine if proper procedures were followed, such as whether the court held a hearing on the motion or improperly denied it without an in camera hearing.

HOW A LAWYER MAKES A DIFFERENCE

Police misconduct can result in evidence that is ultimately used against the defendant to get an unfair outcome. source

PITCHESS MOTIONS IN CALIFORNIA

One widespread defense strategy a good attorney might employ when you’re charged with a crime is to seek to discredit the testimony of the law enforcement officer who arrested you.  This is an especially relevant strategy when the officer is suspected of misconduct, such as using excessive force or filing a false report.

Simply put, a Pitchess motion is a defendant’s request to inspect a law enforcement officer’s personnel file for evidence of misconduct, often part of the pretrial process when they believe the police officer acted improperly.

California Senate Bill 1421 was signed into law in 2018, making a Pitchess motion unnecessary for some types of requests for information because they are open for public inspection.

These open public records include situations when police shoot their weapon at someone, use force that results in great bodily injury or death, a finding they committed a sexual assault, or a dishonest act, such as perjury.

However, Pitchess motions are still necessary if the defendant wants information from an officer’s personnel file and the information was not authorized for inspection under SB 1421.

Some examples of information a defendant typically seeks include records where the officer used racial profiling, prejudicial acts, coerced confessions, or falsifying testimony or evidence. A Pitchess motion must describe the type of records or information they seek and show “good cause” to release the records.

Suppose a judge decides that a Pitchess motion shows “good cause” for disclosing a police officer’s personnel records. In that case, the judge holds a private “in-camera” hearing to determine whether the records are relevant to the case.

One of the most effective tools in implementing this strategy is for your attorney to file a Pitchess motion, a specialized discovery motion in California law where the defendant requests access to the law enforcement officer’s personnel records.

WHAT IS THE ORIGIN OF A PITCHESS MOTION?

The Pitchess motion originated from the landmark California case, Pitchess v. Superior Court, in 1974. In this case, Sheriff Peter J. Pitchess challenged the defendant’s request for complaints filed against the deputies involved in his arrest.

The California Supreme Court ruled in favor of the defendant, holding that defendants have a right to access a law enforcement officer’s personnel records for information that might impugn the officer’s credibility or demonstrate their propensity for violence.

WHEN AND WHY IS THIS MOTION USED?

As noted, the primary purpose of a Pitchess motion is to uncover potential material that can be used to challenge or impeach the credibility of a police officer, especially in cases where the officer’s conduct is directly relevant to the topic at hand.

This is typically based on their past misconduct. For instance, if a defendant alleges that an officer used excessive force or fabricated evidence, a Pitchess motion can be instrumental in obtaining records that may support these claims.

This motion is particularly significant in the context of police misconduct records because it provides a legal avenue for accessing information that is typically considered privileged and confidential.

This includes details about an officer’s history of misconduct complaints, disciplinary actions, and other relevant behavioral patterns. Such information can be crucial in shaping the defense strategy and potentially influencing the trial’s outcome.

WHAT ARE THE CHANGES IN THE LAW?

As noted, as of 2018, Senate Bill 1421 has implemented essential changes in the law that make certain police records available to the public without the need to file a Pitchess motion. The main provisions of SB 1421 apply to records related to:

• Officer-Involved Shootings and Use of Force: Records relating to incidents where police fired a weapon at someone or when the officer’s use of force resulted in death or great bodily injury are now available to the public.
• Sexual Assault: Records involving sustained findings of sexual assault committed by on-duty law enforcement officers against members of the public are available under this law.
• Dishonesty Related to Criminal Investigations: The law also allows access to records where an officer was found dishonest in reporting, investigating, or prosecuting a crime. This includes perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.

While SB 1421 broadens access to certain types of law enforcement records, it doesn’t eliminate the need for Pitchess motions.

Examples of police record information not covered by SB 1421 may include incidents involving racism or racial profiling, coerced confessions, etc. If a certain file or piece of information is unavailable under SB 1421, your attorney may still have to file a Pitchess motion to obtain access. Under SB 14 21, records can include the following:

• Pictures;
• Video and audio evidence;
• Transcripts of any interviews;
• Recording of any interviews;
• Investigation reports;
• Disciplinary records;
• Documents of recommended findings;
• Autopsy reports.

Notably, when authorized records are open for inspection, some information must be redacted or edited to protect certain people, such as witnesses. The information that is usually redacted includes the following:

• Personal info, such as addresses, phone numbers, and names of family members;
• Any information that would place the officer’s safety at risk;
• Any information where the public interest is not served;
• Medical or financial information.

WHAT HAPPENS WHEN A PITCHESS MOTION IS FILED?

A successful Pitchess motion must go through a particular series of steps, as discussed below.

Filing the Motion

The attorney must include the following essential information when filing a Pitchess motion:

• Identifying information (i.e., defendant, court case, officer in question, agency holding the records, etc.);
• A description of the specific records being requested;
• Proof that the relevant agencies have been given notice that the records are needed; and
• Proof of good cause as to why the records are needed. (A judge will NOT grant a Pitchess motion unless good cause is established.)

In-Camera Hearing

Suppose the attorney has presented the motion correctly and proven good cause. In that case, the judge will hold an in-camera hearing (meaning “in private”) with only the police officer in question and anyone the officer wishes to be present.

During this hearing, the judge will review police files to determine which information is relevant to the case. Only information that the judge determines is relevant will be disclosed to the defendant. Off-limits records include the following:

• Complaints against the officer occurring more than five years before the alleged police misconduct;
• Personal conclusions of any other officer investigating a citizen complaint against the officer, and
• Information so insignificant that disclosing it would have little or no practical benefit to the case.

Notably, any Pitchess materials can’t be disclosed for purposes other than the case in question, and the judge could issue a protective order to keep the information private if there is a good cause.

GRANTING OR DENYING THE MOTION

After the in-camera hearing, the Judge will rule whether to grant or deny the Pitchess motion.

If the motion is denied: None of the police records requested will be released. If the motion is granted, remember that the requested files will still not be released to the defense in most cases outright.

Instead, the Judge will provide the name and contact information of the people who filed previous complaints against the officer that generated those files, and your attorney may then interview them to get their testimony. Only if those witnesses are not available to testify will the actual records be released.

If the Pitchess motion is granted and the agency in question refuses to release the officer’s personnel records, the charges will be automatically dismissed.

Prosecutors might keep a “Brady List,” which is a list of the names of police with criminal convictions or past incidents of lying. 

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Pitchess Motions

A Pitchess motion (from Pitchess v Superior Court, 11 C3d 531 (1974)) is a special type of motion for discovery that requests information from a police officer’s confidential employment file. The need for this motion usually arises when the defendant alleges police misconduct. The type of information generally sought after with the Pitchess motion includes personnel records which show prejudicial acts, falsifying evidence and/or testimony, and the use of excessive force while on the job. To be successful on this motion, defense counsel must be able to establish that this information will pertain to some aspect of the defense.

Based on the Pitchess case, California Evidence Code sections 1043 to 1046 provide avenues to obtain some of the information which is sought by a Pitchess motion. Under these provisions, when defense counsel seeks to obtain officer personnel records they must file a written motion with the court. The written motion must be accompanied by other documents to be valid such as: a notice of the motion, a declaration or affidavit, police report copies detailing the detention and arrest of the defendant, and the proof of service.

The most detailed part of filing a Pitchess motion is the affidavit. Under California Evidence Code section 1043(b)(3), the affidavit must be based on “good cause” by demonstrating sufficient facts which show why such information is necessary and relevant to the issues in the defense’s case. The relevance between the information sought and the specific defense theory must have a strong link to prove such information will be material, and thus establish good cause. The court will determine whether good cause exists at a hearing where the agency holding the record, the district attorney, and the defendant and his/her attorney discuss the matter.

Under California Evidence Code sec. 1045, once the court is satisfied that good cause exists, it must then look at the evidence sought and determine whether it is indeed relevant to the defense’s case.

The court’s analysis is done through an “in camera” hearing, meaning that it is conducted outside of the presence of the jury and counsel. This hearing must be held by the court if the defendant shows that it was possible that the officer engaged is some sort of misconduct. Usually facts are alleged by the defense which shows how officer misconduct could’ve occurred. The defense may establish this by merely providing a different recitation of the factual circumstances, or may deny the facts as presented in the report by law enforcement. Garcia v Superior Court, 42 C4th 63, 72. In this examination, the court does not act as the trier of fact and thus will not determine credibility[1] or weigh evidence. [2]

Where the judge agrees with the defense that the information is relevant, an order is issued to disclose the information. Generally, the court will only mandate the disclosure of the names and contact information for witnesses involved in previous events with the officer. However, there are ways for the defense to get the actual reports of the incidents under certain circumstances, i.e. the witness is not available, the witness doesn’t remember, or refuses to discuss the incident.

Certain information is precluded from disclosure in a Pitchess motion. This includes events that happened too remotely in time, or the conclusions noted by internal affairs officers during the police investigation. Yet some of this information may still be available to the defense if it can show it relates to exculpatory information as provided by the Brady case.[3] Other information that is not disclosable is the personal information of the officer such as his/her place of residence.Hackett v Superior Court, 13 C4th 96 (1993).

Under a central case dealing with Pitchess motions, Alford v Superior Court, 29 C4th 1033 (2003), the court is required to order the recipient of Pitchess materials to not disclose them for any other purpose. Additionally, Alford holds that the district attorney will not automatically get access to the Pitchess documents. Protective orders may be issued to ensure the continued secrecy of the information involved. However, a protective order will only be issued if there is good cause to support it.

California Evidence code 1040(b) generally allows the government (i.e. law enforcement) to exercise a privilege over confidential information for which disclosure is against the public interest. Normally, to achieve the disclosure of such information, one needs to show that the interest to the public outweighs the agency’s need for disclosure. The use of a Pitchess motion can sometimes obtain access to the information even if the privilege is found valid. A law enforcement agency can be subject to discovery sanctions if it does not turn over the information in favor of continuing a claim to privilege. The situation can lead to a dismissal of the prosecution’s criminal complaint where there is no valid claim to privilege and the agency still refuses to provide the info requested.[4]

Whenever the prosecution appeals the allowance of a Pitchess motion, the appellate court will look to see if an abuse of discretion occurred. If the previous court denied the motion without conducting its in camera review, the appellate court can choose to remand the case and require the in camera hearing.[5] A reversal of the denial will only occur where the court has in fact done an in camera hearing and subsequently denied the motion.[6]

Pitchess motions can be used in DUI cases where a defendant believes the officer engaged in some sort of misconduct during the DUI investigation. This often occurs where there was some type of undue aggressiveness by police. A defense attorney will use the Pitchess motion process described above to obtain information about the officer’s past misconduct and inclination to treat suspects in an abusive manner. The Pitchess information can also be used to show past prejudicial acts by the officer, or a pattern of falsifying evidence. If you believe any of these situations occurred in your case, it is important to inform your criminal defense attorney to determine if a Pitchess motion will help your defense.

[1] Warrick v Superior Court, 35 C4th 1011 (2005)
[2] People v Gaines, 46 C4th 172 (2009)
[3] City of Los Angeles v Superior Court, 29 C4th 1 (2002)
[4] Dell M v Superior Court 70 CA3d 782.
[5] People v Gaines 46 C4th 172.
[6] People v Memro 38 C3d 658

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Discovery And Police Officers: The Pitchess Process

Discovery relating to a peace officer’s job performance or disciplinary actions must follow a unique, statutory process

Under California law, certain information related to peace officers enjoys a conditional privilege. This limited privilege is held by both the peace officer and the agency. (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) So whether you are representing an officer in a personal-injury or employment matter, or suing a law enforcement agency for battery or other civil-rights’ violations, you need to understand what information is privileged and how to get the information you need – or how to protect your client’s right to privacy

To obtain information from officer personnel records, complaint investigations, or disciplinary action against a peace officer, a party must follow a unique, statutory discovery method. Although this discovery vehicle is generally codified at Evidence Code sections 1043 et seq., it is often referred to as Pitchess, for the landmark California Supreme Court case Pitchess v. Superior Court (Echeveria) (1979) 11 Cal.3d 531. This article discusses the development of the Pitchess process and describes what kind of information is conditionally privileged. The article concludes by offering guidance through the Pitchess-motion procedure, which generally consists of a noticed motion setting forth, by counsel’s affidavit, good cause for the court to conduct an in camera review to determine which records are relevant and to be produced.

The development of the Pitchess process

In 1974, the Legislature adopted Penal Code section 832.5.This section requires law-enforcement agencies to establish a procedure for investigating citizen complaints against peace officers. Section 832.5 also requires the agencies to retain records of the original complaint and investigation for at least five years.

That same year, the California Supreme Court decided Pitchess. Cesar Echeveria was charged with battery of certain deputy sheriffs. Echeveria claimed that he acted in self-defense in response to excessive force by the deputies. As part of his defense, Echeveria sought investigations of citizen complaints of excessive force against those same officers. The Pitchess Court permitted Echeveria to obtain the investigations over Sheriff Pitchess’s objections. (Pitchess, supra, 11 Cal.3d at 534.)

The Pitchess decision rocked the law-enforcement world, and record shredding and discovery abuses allegedly followed. (See San Francisco Police Officers’ Assn. v. Sup. Ct. (City & Cty. of San Francisco) (1988) 202 Cal.App.3d 183, 189.) To curtail these practices, the Legislature enacted changes to the statutory scheme to balance the right to privacy of the peace officer and the employing agency with the interest of justice. (See City of Azusa v. Sup. Ct. (Madrigal) (1987) 191 Cal.App.3d 693, 696-97.) In 1978, Penal Code section 832.5 was amended at the same time Penal Code sections 832.7, 832.8 and Evidence Code section 1043 were added by Senate Bill No. 1436. With these amendments, the Legislature attempted to protect a party’s right to a fair trial and the officer’s privacy interest. (People v. Mooc (2001) 26 Cal.4th 1216, 1227.)

Evidence Code section 1043(a) sets forth the initial Pitchess procedure:

In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

Case law has refined the parameters of this process. Notably, a Pitchess motion trumps general discovery rules in both the civil and criminal context. (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400; see also, People v. Sup. Ct. (Gremminger) (1997) 58 Cal.App.4th 397, 403 [statutory Pitchess scheme takes precedence over discovery procedures in the Code of Civil Procedure]; Fagan v. Sup. Ct. (People) (2003) 111 Cal.App.4th 607, 310 [prosecutor must comply with Pitchess process to disclose Pitchess information of retired peace officer defendant].) So, information protected by the Pitchess privilege is not discoverable under Civil Discovery Act inspection demands. (See Cty. of Los Angeles v. Sup. Ct. (Uhley) (1990) 219 Cal.App.3d 1605, 1609; but cf. Dominguez v. Sup. Ct. (City of San Gabriel) (1980) 101 Cal.App.3d 6, 11 [finding that the City’s rights under Evidence Code sections 1043 et seq. were not impaired irrespective of how plaintiff’s motion to compel was entitled].)

In fact, the agency with custody or control of the records has no obligation to respond to a Code of Civil Procedure section 2031 request for production of Pitchess information. Moreover, the failure to respond to such a request does not waive any Pitchess objections the agency may have. (Uhley, supra, 219 Cal.App.3d at 1611.) Nor may Pitchess information be disclosed pursuant to a California Public Records Act request. (Hemet v. Sup. Ct. (Press-Enterprise Co.) (1995) 37 Cal.App.4th 1411, 1422; Cty. of Los Angeles v. Sup. Ct. (Kusar) (1993) 18 Cal.App.4th 588, 600.) The privilege applies to both pre-trial discovery and live testimony. (Fletcher v. Sup. Ct. (Oakland Police Dep’t) (2002) 100 Cal.App.4th 386, 403.)

Whether the Pitchess process is available in administrative proceedings is uncertain. In Brown v. Valverde (2010) 183 Cal.App.4th 1531, the First District Court of Appeal found that the Pitchess process is not available in Department of Motor Vehicle administrative per se hearings. (Id., 183 Cal.App.4th at 1535.) In Riverside County Sheriff’s Department v. Stiglitz (2012) 147 Cal.Rptr.3d 292, however, the Fourth District court of appeal expressly analyzed and “completely” distinguished Brown, supra. The Stiglitz court found that an administrative hearing officer may rule on a Pitchess motion where such discovery is relevant in a Government Code section 3304(b) hearing, which is an administrative appeal of discipline imposed against a public safety officer. (Id., 147 Cal.Rptr. at 308, 313.) On January 16, 2013, the California Supreme Court granted review of the Fourth District’s opinion, depublishing the appellate opinion and leaving the issue uncertain until the case is decided.

As for federal court, the Pitchess process is not binding. (Jackson v. Cty. of Sacramento (E.D.Cal.1997) 175 F.R.D. 653, 654.) The California Pitchess discovery rule requires that the requesting party make showing of materiality, which was specifically rejected in Federal Rule of Evidence 402. (Soto v. City of Concord (N.D.Cal.1995) 162 F.R.D. 603, 609 at n.2.)

Information subject to the Pitchess privilege

Penal Code sections 832.7 and 832.8 provide the foundation for what kind of information related to peace officers is subject to the conditional Pitchess privilege. The information is protected regardless of whether it could be obtained from other sources. (Hackett v. Sup. Ct. (Glin) (1993) 13 Cal.App.4th 96, 100.)

Penal Code section 832.7(a) states, in pertinent part:

Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. . . .

Penal Code section 832.8 states,

As used in Section 832.7, “personnel records” means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(b) Medical history.

(c) Election of employee benefits.

(d) Employee advancement, appraisal, or discipline.

(e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.

(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.

“Personal data” does not include the officer’s identity, unless the officer was the subject of a complaint or disciplinary hearing, the employing agency, dates of current employment, or other information relating to the officer’s current job status. (Comm’n on Peace Officer Standards & Training v. Sup. Ct. (Los Angeles Times Commc’ns, LLC) (2007) 42 Cal.4th 278, 294-96, 299.) Nor does personal data include an officer’s salary. (Int’l Fed’n of Prof’l & Technical Eng’rs v. Sup. Ct. (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319, 341.)

The definition of “personnel records” pertaining to “complaints” is expansive and includes many types of documents related to potential or actual disciplinary action against an officer. Such records are not limited to Internal Affairs investigations, but also include Citizen Review Board’s reports. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 898, 900.) Furthermore, “[u]nsustained complaints are discoverable as well as sustained complaints.” (People v. Zamora (1980) 28 Cal.3d 88, 93, n.1 (citing Saulter v. Muni. Ct. (People) (1977) 75 Cal.App.3d 231, 240; Kelvin L. v. Sup. Ct. (Cabell) (1976) 62 Cal.App.3d 823, 829).)

“Personnel records” also encompass disciplinary proceedings against peace officers. (Copley Press, Inc. v. Sup. Ct. (Cty. of San Diego) (2006) 39 Cal.4th 1272, 1279.) Disciplinary proceedings and citizen complaints are subject to the Pitchess scheme regardless of “the mechanisms set up by a local jurisdiction to handle such matters . . . .” (Berkeley Police Ass’n v. City of Berkeley (2008) 167 Cal.App.4th 385, 401 (citing Copley Press, Inc., supra, 39 Cal.4th at 1294-95); see also San Francisco Police Officers’ Ass’n, supra, 202 Cal.App.3d at 188 (determining that a local rule allowing the complainant access to the hearing officer’s decision or director’s recommendation violates confidentiality provisions).) The Pitchess privilege remains applicable to “personnel records” even after a peace officer leaves her or his employment, so long as the former peace officer was employed as an officer when the conduct being investigated occurred. (Gremminger, supra, 58 Cal.App.4th at 406.)

The agency often argues that any disclosure of information related to complaint investigations should be limited to the names and addresses of witnesses, as typical in criminal cases. In the criminal context, disclosure was limited to names and contact information of witnesses and complainants because the court believed the information was sufficient for the requesting litigant to prepare his or her case. In civil litigation, however, the rationale for this limitation may not apply. The court in Haggarty v. Superior Court (Guindazola) (2004) 117 Cal.App.4th 1079, 1090 stated:

The central rationale underlying the rule limiting discovery to witness identifying information is that the actual documents of third-party complaint information often have minimal relevance and constitute a substantial invasion of officer privacy. This reasoning does not apply in this case. As compared with the third-party complaint situation, the information contained in the Internal Affairs report is highly probative. Guindazola has the burden of proving the elements of his claims, and the investigation at issue concerns the very incident that is the subject of the civil claim. Additionally, Haggerty’s reasonable privacy concerns are diminished because he is the defendant in the litigation and the requested internal investigation records concern his actions that are alleged to be wrongful and will be fully litigated at trial. (Ibid.)

Moreover, the criminal-case opinions explicitly hold that if the information disclosed proved inadequate, the requesting party is not precluded from discovering additional information from the personnel files. (See, e.g., Carruthers v. Muni. Ct. (People) (1980) 110 Cal.App.3d 439, 442 [recognizing right to receive additional discovery if initial disclosures prove inadequate]; City of Azusa, supra, 191 Cal.App.3d at 696-97 [noting that disclosure of additional information was proper under Pitchess, supra, where witnesses were unavailable for interviews or could not remember details of events about which they had complained]; Kelvin L., supra, 62 Cal.App.3d at 829 [approving disclosure of witness identification information, but noting that if for any reason that information was inadequate, petitioner could move for further discovery].)

The nuts and bolts of the Pitchess procedure

The Noticed Motion

Evidence Code section 1043 sets forth the requirements of the Pitchess motion, and states,

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.

A party must set forth with “some specificity” the type of information sought. (Warrick v. Sup. Ct. (City of Los Angeles Police Dep’t) (2005) 35 Cal.4th 1011, 1021.) The information requested must demonstrate that the party is not simply going on a fishing expedition. (City of Santa Cruz, supra, 49 Cal.3d at 85.) In City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal.3d 74, the Court found that “other complaints of excessive force” sufficiently described the type of records sought and met the standard for good cause. (See id., 49 Cal.3d at 90-91.) In addition, if a party is seeking records related to an excessive force claim, the motion must also include the relevant police reports on the circumstances of the force alleged. (See Evid. Code, § 1046.)

The motion should be served on opposing counsel as well as the agency, or agencies, with custody or control of the records requested. (See Evid. Code, § 1043(c).)

The Affidavit(s) Showing Good Cause

The affidavit or declaration demonstrating good cause is the most critical component of the Pitchess motion. Evidence Code section 1043(b)(3) requires a showing of “good cause” by affidavit, which must demonstrate both “materiality” as well as a “reasonable belief” that the government agency has custody and control of the records or information from the records. An affiant need not, however, prove the existence of particular records – the “‘reasonable belief’ . . . may be premised upon a rational inference from known or reasonably assumed facts.” (City of Santa Cruz, supra, 49 Cal.3d at 90 (emphasis in the original).)

“This two-part showing of good cause is a ‘relatively low threshold for discovery.’” (Warrick, supra, 35 Cal.4th at 1019 (citing City of Santa Cruz, supra, 49 Cal.3d at 83); see also People v. Gaines (2009) 46 Cal.4th 172, 182 (accord).) These “‘relatively relaxed standards’ serve to ‘insure the production’ for the trial court review of ‘all potentially relevant documents.’” (Warrick, supra, 35 Cal.4th at 1016 (citing Santa Cruz, supra, at 49 Cal.3d 84).)

“Information is material if it ‘will facilitate the ascertainment of the facts and a fair trial.’” (Haggerty, supra, 117 Cal.App.4th at 1086 (internal citations omitted).) The California Supreme Court articulated four factors by which a party can demonstrate materiality: (1) a logical connection between the information requested and the party’s claims at issue; (2) the information requested is tailored to support the party’s; (3) the requested discovery will support or is likely to lead to information that would support the claims; and (4) the theory under which the information might be admissible at trial. (Warrick, supra, 35 Cal.4th at 1027; see also Gaines, supra, 46 Cal.4th at 182 (accord).) Obtaining information to impeach an officer’s credibility is permitted. (Garden Grove Police Dep’t v. Sup. Ct. (Reimann) (2001) 89 Cal.App.4th 430, 433 (review denied).)

Note, however, that the trial court is not tasked with evaluating whether a party’s theories are credible, or whether the party will prevail. The trial court does not weigh or assess the allegations, and does not determine whether they are persuasive. (Warrick, supra, 35 Cal.4th at 1025-1026.) A party is not required to present a credible or believable factual account of, or a motive for, police misconduct. (Uybungco v. Sup. Ct. (San Diego Police Dep’t) (2008) 163 Cal.App.4th 1043, 1049.) A party must simply present a plausible factual foundation for the discovery requested: a scenario that could or might have occurred. (Warrick, supra, 35 Cal.4th at 1026.)

Importantly, the affidavit for “good cause may be submitted by counsel.” (People v. Memro (1985) 38 Cal.3d 658, 676, overruled on other grounds.) The California Supreme Court expressly allows counsel’s declaration to be made on information and belief – no personal knowledge is required. In fact, “the Legislature expressly considered and rejected a requirement of personal knowledge [for section 1043(b)(3) affidavits].” (City of Santa Cruz, supra, 49 Cal.3d at 88-89 (emphasis in original. Indeed, “counsel need not disclose the source of the information asserted or how it was obtained . . . .” (Garcia v. Sup. Ct. (City of Santa Ana) (2007) 42 Cal.4th 63, 72.) The declaration may be filed under seal if necessary to protect the attorney-client or attorney work product privileges. (Id., 42 Cal.4th at 68.) Submitting a declaration by counsel protects a party from cross-examination on the document.

Thus, the declaration lays out the theory of the case, explaining why the records are essential to the issue. If you are making a Pitchess motion, don’t be coy in the declaration. Lay out the facts, and demonstrate to the court why these records are crucial to your theory of the case. The declaration is your best chance to have a “presence” in chambers while the court is conducting the in camera review to determine which documents the court will order produced. The court generally will not stop the in camera proceedings to question you about why certain documents might be relevant, or request additional briefing on an issue. The declaration is your only opportunity to refute the agency’s objections to relevance in chambers. If you are opposing a Pitchess motion, scrutinize the supporting affidavit for whether the facts averred to adequately support the requested information.

The In Camera Review and Production

The court will conduct in camera review of the documents before ordering any of the records produced. On occasion, the custodian of records for the agency will appear with the relevant documents on the day of the hearing on the Pitchess motion, so the court may proceed with the in camera inspection right away. The court may also schedule the in camera review for a later date.

Upon order of the court, “the custodian of records is obligated to bring to the trial court all ‘potentially relevant’ documents . . . .” (City of Santa Cruz, supra, 49 Cal.3d at 84.)

[I]f the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. . . [T]he locus of decision making is to be the trial court, not the . . . . custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive . . . . The trial court should then make a record of what documents it examined before ruling on the Pitchess motion.

(Mooc, supra, 26 Cal.4th at 1229.)

To make an adequate record of the documents examined, the court may photocopy the records the custodian produced and place them in a confidential file, or the court can make a list of or state for the record the documents examined. (Sisson v. Sup. Ct. (Dumanis) (2013) 216 Cal.App.4th 24, 38.) A proper record facilitates any appellate review for abuse of discretion.

To determine which records, if any, will be ordered produced, the court reviews the documents in camera for relevance. To be relevant, the records must contain information which may lead to the discovery of admissible evidence. (Gaines, supra, 46 Cal.4th at 182; Warrick, supra, 35 Cal.4th at 1024; Haggerty, supra, 117 Cal.App.4th at 1087.) The information discovered does not have to be ultimately admissible at trial. (Larry E. v. Sup. Ct. (City of Long Beach) (1987) 194 Cal.App.3d 25, 31-32.) The court may also consider whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).)

Despite the permissive standard of relevance, the Evidence Code places certain restrictions on what information can and cannot be disclosed. Evidence Code section 1045(b) enumerates specific exceptions to what information is per se not relevant and cannot be disclosed. Section 1045(b) finds that information that is not relevant includes:

(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

Furthermore, “[r]ecords of peace officers or custodial officers, . . . including supervisorial officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure.” (Evid. Code, § 1047.) The court must also consider whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).)

The in camera proceeding may take minutes, days, or even a series of hearings of a course of months. With the budget cuts, be prepared to provide a private court reporter. The transcript will be sealed, and any documents ordered produced will be subject to a protective order. At minimum, the protective order will prohibit the records disclosed or discovery from being used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code, § 1045(e).) The court may also issue a protective order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression” upon a showing of good cause pursuant to a motion of the agency or the officer. (Evid. Code, § 1045(d).)

A Pitchess motion is a powerful tool to obtain information from the personnel records of peace officers, including complaint investigations or disciplinary actions by the employing agency. Often, law enforcement agencies have dedicated Pitchess units to respond to – i.e., oppose – Pitchess motions. Understanding how the Pitchess process works will help you make an informed decision on how to best serve your client’s interests, whether you are making a Pitchess motion, or opposing one. source

When and Why Does a Judge Have to Grant a Pitchess Motion?

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) has been interpreted in many ways over the years, mostly associated with a criminal defendant’s right to certain discovery of police officer personnel file materials to support a defense to defendant.

The Reader’s Digest Version:  A judge must grant a Pitchess Motion if a defendant shows such information in a police officer’s personnel records concerning police officer misconduct in the past is material to the subject matter of the case against defendant.  The judge’s order, under Pitchess, can only order production of documents stretching five years back, not more.

OR ANY OTHER GOVERNMENT OFFICIALS

• CALIFORNIA PIU3 COMPLAINT ABOUT LAW ENFORCEMENT / POLICE / SHERIFF or other LEO ETC https://oag.ca.gov/sites/all/files/agweb/pdfs/consumers/le_complaint_policy.pdf
  or https://oag.ca.gov/sites/all/files/agweb/pdfs/civilrights/citizencomplaintpolicy.pdf
• Contact the Department of Justice to report a civil rights violation https://civilrights.justice.gov/report/
• United States District Court Complaint for Violation of Civil Rights (Non-Prisoner)
  https://www.uscourts.gov/forms/pro-se-forms/complaint-violation-civil-rights-non-prisoner 
• Criminal Enforcement of Police Illegal Conduct https://www.fbi.gov/contact-us
  to find out what crimes they investigate FBI investigates or learn more about public corruption FBI investigates
• Discrimination or Civil Rights Violation Complaint against DOJ employee or DOJ funded organization form HERE for Violation Civil Rights
  Federal Civil Enforcement Info visit civilrights.justice.gov.
• Tort Claims – Claim for Damage, Injury, or Death
  Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here
  
• California – California Tort Claims Act – California Tort Claim Form Here
  More info on filing a Tort Claim against the State of California more info or a Quick Run Down
• How to Recover “Punitive Damages” in a California Personal Injury Case Learn More
• Overcoming Qualified Immunity in Civil Rights Claims Learn More
• Judge Misconduct Form Here & Learn More Here 

read more about this subject:

Police Misconduct in California – How to Bring a Lawsuit

Tort Claims 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

Helpful articles involving Torts

How to File a complaint of Police or Government Misconduct?

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

Section 1983 Lawsuit   How to Bring a Civil Rights Claim

Offsite Help 

• Civil Rights
• File Government Claim for Eligible Compensation site
• Claims Against the Government (Pamphlet)
• claim-damage-injury-or-death

You may need assistance obtaining police reports, incident reports, bodycam footage etc..

Retrieving Police Data, their police line recordings, and bodycam Footage SB1421 form & learn here

Getting to know your representatives in your city – All the handwork done for you!

How to Contact Your Elected local State Official Representatives 

• President Joe Biden online, or call the White House switchboard at 202-456-1414 or the comments line at 202-456-1111 during business hours.
• State Tribunal Governments
• The Senator(s) of your Specific State
• California Senators
• House of Representatives
• The Governor of your Specific State
• Local Governments
• State Governments
• State, County, and Municipal Courts
• State Attorneys General
• Find the names and current activities of your state legislators
• Your Local Mayor Locate your mayor by name, city, or population size.
• county executive (the head of the executive branch of government in your county)
• Get contact information for your city, county, and town officials.
• and if our organization missed any here is the whole kit and kaboodle:
  A-Z of U.S. federal government departments and agencies including websites, emails, phone numbers, addresses, and more here
• last but not lease TREASURE Getting Uncle Same to Enforce YOUR RIGHTS! click here for this great pamphlet on making sure you get the government to enforce your rights as your constitution states PDF Download  Detailed office information along with address, phone numbers, emails.

Claims against  government agencies must generally be submitted to the agency before a lawsuit can be filed, pursuant to the California Torts Claims Act and federal Federal Torts Claims Act (28 USC § 1346 and 28 USC §§ 2671-2680). Some agencies have forms for submitting claims;

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/

Commonly-Requested Claims Forms

Find a Lawyer and Affordable FCTA EQUIPED Legal Aid

• Legal Aid https://www.usa.gov/legal-aid
• National Trial LAW FCTA Attorney
• Levin & Perconti FCTA Attorney
• McKeen & Associates, PC FCTA Attorney
• Dore Law Group FCTA Attorney
• Shouse Law –  tort-claims-act
• FTCA Attorney’s (Federal Tort Claims Act) Attorney’s SEARCH 

if your complaint involves any of the following matters, generally not investigated by the DOJ OIG LIKE:

You may want to read up on the FEDERAL RULES OF CIVIL PROCEDURE

The Federal Rules of Civil Procedure (pdf) (eff. Dec. 1, 2020) govern civil proceedings in the United States district courts. Their purpose is “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The rules were first adopted by order of the Supreme Court on December 20, 1937, transmitted to Congress on January 3, 1938, and effective September 16, 1938. The Civil Rules were last amended in 2020. download that here

Here is the DOJ Police Misconduct

ADDRESSING POLICE MISCONDUCT LAWS ENFORCED BY THE DEPARTMENT OF JUSTICE

The vast majority of the law enforcement officers in this country perform their very difficult jobs with respect for their communities and in compliance with the law. Even so, there are incidents in which this is not the case. This document outlines the laws enforced by the United States Department of Justice (DOJ) that address police misconduct and explains how you can file a complaint with DOJ if you believe that your rights have been violated.

Federal laws that address police misconduct include both criminal and civil statutes. These laws cover the actions of State, county, and local officers, including those who work in prisons and jails. In addition, several laws also apply to Federal law enforcement officers. The laws protect all persons in the United States (citizens and non-citizens).

Each law DOJ enforces is briefly discussed below. In DOJ investigations, whether criminal or civil, the person whose rights have been reportedly violated is referred to as a victim and often is an important witness. DOJ generally will inform the victim of the results of the investigation, but we do not act as the victim’s lawyer and cannot give legal advice as a private attorney could.

The various offices within DOJ that are responsible for enforcing the laws discussed in this document coordinate their investigative and enforcement efforts where appropriate. For example, a complaint received by one office may be referred to another if necessary to address the allegations. In addition, more than one office may investigate the same complaint if the allegations raise issues covered by more than one statute.

What is the difference between criminal and civil cases? Criminal and civil laws are different. Criminal cases usually are investigated and handled separately from civil cases, even if they concern the same incident. In a criminal case, DOJ brings a case against the accused person; in a civil case, DOJ brings the case (either through litigation or an administrative investigation) against a governmental authority or law enforcement agency. In a criminal case, the evidence must establish proof “beyond a reasonable doubt,” while in civil cases the proof need only satisfy the lower standard of a “preponderance of the evidence.” Finally, in criminal cases, DOJ seeks to punish a wrongdoer for past misconduct through imprisonment or other sanction. In civil cases, DOJ seeks to correct a law enforcement agency’s policies and practices that fostered the misconduct and, where appropriate, may require individual relief for the victim(s).

FEDERAL CRIMINAL ENFORCEMENT

It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. (18 U.S.C. §§ 241, 242). “Under color of law” means that the person doing the act is using power given to him or her by a governmental agency (local, State, or Federal). A law enforcement officer acts “under color of law” even if he or she is exceeding his or her rightful power. The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, theft, or the intentional fabrication of evidence resulting in a loss of liberty to another. Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed.  What remedies are available under these laws? These are criminal statutes. Violations of these laws are punishable by fine and/or imprisonment. There is no private right of action under these statutes; in other words, these are not the legal provisions under which you would file a lawsuit on your own.

FEDERAL CIVIL ENFORCEMENT

“Police Misconduct Provision”

This law makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. (34 U.S.C. § 12601). The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. In order to be covered by this law, the misconduct must constitute a “pattern or practice” — it may not simply be an isolated incident. The DOJ must be able to show in court that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct. However, unlike the other civil laws discussed below, DOJ does not have to show that discrimination has occurred in order to prove a pattern or practice of misconduct. What remedies are available under this law? The remedies available under this law do not provide for individual monetary relief for the victims of the misconduct. Rather, they provide for injunctive relief, such as orders to end the misconduct and changes in the agency’s policies and procedures that resulted in or allowed the misconduct. There is no private right of action under this law; only DOJ may file suit for violations of the Police Misconduct Provision.

Title VI of the Civil Rights Act of 1964 and the “OJP Program Statute”

Together, these laws prohibit discrimination on the basis of race, color, national origin, sex, and religion by State and local law enforcement agencies that receive financial assistance from DOJ. (42 U.S.C. § 2000d, et seq. and 34 U.S.C. § 10228). These laws prohibit both individual instances and patterns or practices of discriminatory misconduct, i.e., treating a person differently because of race, color, national origin, sex, or religion. The misconduct covered by Title VI and the OJP (Office of Justice Programs) Program Statute includes, for example, harassment or use of racial slurs, discriminatory arrests, discriminatory traffic stops, coercive sexual conduct, retaliation for filing a complaint with DOJ or participating in the investigation, discriminatory use of force, or refusal by the agency to respond to complaints alleging discriminatory treatment by its officers. What remedies are available under these laws? DOJ may seek changes in the policies and procedures of the agency to remedy violations of these laws and, if appropriate, also seek individual remedial relief for the victim(s). Individuals also have a private right of action in certain circumstances under Title VI and under the OJP Program Statute; in other words, you may file a lawsuit yourself under these laws. However, you must first exhaust your administrative remedies by filing a complaint with DOJ if you wish to file in Federal Court under the OJP Program Statute.

Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973

The Americans with Disabilities Act (ADA) and Section 504 prohibit discrimination against individuals on the basis of disability. (42 U.S.C. § 12131, et seq. and 29 U.S.C. § 794). These laws protect all people with disabilities in the United States. An individual is considered to have a “disability” if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

The ADA prohibits discrimination on the basis of disability in all State and local government programs, services, and activities regardless of whether they receive DOJ financial assistance; it also protects people who are discriminated against because of their association with a person with a disability. Section 504 prohibits discrimination by State and local law enforcement agencies that receive financial assistance from DOJ. Section 504 also prohibits discrimination in programs and activities conducted by Federal agencies, including law enforcement agencies.

These laws prohibit discriminatory treatment, including misconduct, on the basis of disability in virtually all law enforcement services and activities. These activities include, among others, interrogating witnesses, providing emergency services, enforcing laws, addressing citizen complaints, and arresting, booking, and holding suspects. These laws also prohibit retaliation for filing a complaint with DOJ or participating in the investigation. What remedies are available under these laws? If appropriate, DOJ may seek individual relief for the victim(s), in addition to changes in the policies and procedures of the law enforcement agency. Individuals have a private right of action under both the ADA and Section 504; you may file a private lawsuit for violations of these statutes. There is no requirement that you exhaust your administrative remedies by filing a complaint with DOJ first.

HOW TO FILE A COMPLAINT WITH DOJ

Criminal Enforcement of Police Illegal Conduct

If you would like to file a complaint alleging a violation of the criminal laws by law enforcement discussed above, you may contact the Federal Bureau of Investigation (FBI), which is responsible for investigating allegations of criminal deprivations of civil rights. You may also contact the United States Attorney’s Office (USAO) in your district. The FBI and USAOs have offices in most major cities and have publicly-listed phone numbers.

You can find your local office here:
https://www.fbi.gov/contact-us

Civil Enforcement

If you would like to report a violation of the Police Misconduct Statute, Title VI, or the OJP Program Statute, contact the Justice Department at civilrights.justice.gov.

How do I file a complaint about the conduct of a law enforcement officer from a Federal agency?

If you believe that you are a victim of criminal misconduct by a Federal law enforcement officer (such as Immigration and Customs Enforcement; the FBI; Alcohol, Tobacco, Firearms and Explosives; Drug Enforcement Agency, United States Marshals Service, or the Border Patrol), you should follow the procedures discussed above concerning how to file a complaint alleging violations of the criminal laws we enforce. If you believe that you have been subjected by a Federal law enforcement officer to the type of misconduct discussed above concerning “Federal Civil Enforcement,” visit civilrights.justice.gov.

Reproduction of this document is encouraged.

This flyer is not intended to be a final agency action, has no legally binding effect, and has no force or effect of law.  This document may be rescinded or modified in the Department’s complete discretion, in accordance with applicable laws.  This flyer does not establish legally enforceable rights or responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent.  For more information, see “Memorandum for All Components: Prohibition of Improper Guidance Documents,” from Attorney General Jefferson B. Sessions III, November 16, 2017.

https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice

What to Report TO the OIG and it involves any of the following below use these resources

You may report waste, fraud, abuse, or misconduct relating to a DOJ employee, program, contract, or grant to the OIG Hotline. The OIG accepts complaints related to the following DOJ components:

The DOJ OIG also has jurisdiction to investigate allegations of whistleblower retaliation involving:

§1346. United States as defendant

28 U.S.C.
United States Code, 2015 Edition
Title 28 – JUDICIARY AND JUDICIAL PROCEDURE
PART IV – JURISDICTION AND VENUE
CHAPTER 85 – DISTRICT COURTS; JURISDICTION
Sec. 1346 – United States as defendant

LAW ENFORCEMENT MISCONDUCT

Investigations and Prosecutions

About the Law Enforcement Misconduct Statute

Physical Assault

Sexual Misconduct

Deliberate Indifference to a Serious Medical Condition or a Substantial Risk of Harm

Failure to Intervene

INVESTIGATIONS AND PROSECUTIONS

The Department of Justice (“The Department”) vigorously investigates and, where the evidence permits, prosecutes allegations of Constitutional violations by law enforcement officers. The Department’s investigations most often involve alleged uses of excessive force, but also include sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody. These cases typically involve police officers, jailers, correctional officers, probation officers, prosecutors, judges, and other federal, state, or local law enforcement officials. The Department’s authority extends to all law enforcement conduct, regardless of whether an officer is on or off duty, so long as he/she is acting, or claiming to act, in his/her official capacity.

In addition to Constitutional violations, the Department prosecutes law enforcement officers for related instances of obstruction of justice. This includes attempting to prevent a victim or witnesses from reporting the misconduct, lying to federal, state, or local officials during the course of an investigation into the potential misconduct, writing a false report to conceal misconduct, or fabricating evidence.

The principles of federal prosecution, set forth in the United States Attorneys’ Manual (“USAM”), require federal prosecutors to meet two standards in order to seek an indictment.

First, the government must be convinced that the potential defendant committed a federal crime. Second, the government must also conclude that the government would be likely to prevail at trial, where the government must prove the charges beyond a reasonable doubt. See USAM § 9-27.220.^[1]

^[1] The USAM provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.

ABOUT THE LAW ENFORCEMENT MISCONDUCT STATUTE

The federal criminal statute that enforces Constitutional limits on conduct by law enforcement officers is 18 U.S.C. § 242. Section 242 provides in relevant part:

“Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime].”

Section 242 is intended to “protect all persons in the United States in their civil rights, and furnish the means of their vindication.” Screws v. United States, 325 U.S. 91, 98 (1945) (quoting legislative history).

To prove a violation of § 242, the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation of § 242 is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.

Establishing the intent behind a Constitutional violation requires proof beyond a reasonable doubt that the law enforcement officer knew what he/she was doing was wrong and against the law and decided to do it anyway. Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated, § 242 requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful. See Screws v. United States, 325 U.S. 91, 101-107 (1945). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.

Physical Assault

In cases of physical assault, such as allegations of excessive force by an officer, the underlying Constitutional right at issue depends on the custodial status of the victim. If the victim has just been arrested or detained, or if the victim is being held in jail but has not yet been convicted, the government must, in most cases, prove that that the law enforcement officer used more force than is reasonably necessary to arrest or gain control of the victim. This is an objective standard dependent on what a reasonable officer would do under the same circumstances. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).

If the victim is a convicted prisoner, the government must show that the law enforcement officer used physical force to punish , retaliate against, an inmate, or otherwise cause harm to the prisoner, rather than to protect the officer or others from harm or to maintain order in the facility. See Whitley v. Albers, 475 U.S. 312, 319 (1986).

Sexual Misconduct

Law enforcement officers who engage in nonconsensual sexual contact with persons in their custody deprive those persons of liberty without due process of law, which includes the right to bodily integrity. The Department investigates and prosecutes instances of nonconsensual sexual misconduct committed by patrol officers, federal and state probation officers, wardens, and corrections officers, among others. Sexual misconduct includes, but is not limited to, sexual assault without consent (rape), sexual contact procured by force, threat of force or coercion, and unwanted or gratuitous sexual contact such as touching or groping.

To prove that a law enforcement officer violated a victim’s right to bodily integrity, the government must prove that the victim did not consent to the defendant’s actions. Prosecutors can establish lack of consent or submission by showing that the defendant officer used either force or coercion to overcome the victim’s will. It is not necessary to prove that the defendant used actual violence against the victim. Coercion may exist if a victim is told that an officer will bring false charges or cause the victim to suffer unjust punishment.

Deliberate Indifference to a Serious Medical Condition or a Substantial Risk of Harm

Section 242 prohibits a law enforcement officer from acting with deliberate indifference to a substantial risk of harm to persons in custody. Therefore, an officer cannot deliberately ignore a serious medical condition of or risk of serious harm (such as a risk that an inmate will be assaulted by other inmates or officers) to a person in custody.  To prove deliberate indifference, the government must prove that the victim faced a substantial risk of serious harm; that the officer had actual knowledge of the risk of harm; and that the officer failed to take reasonable measures to abate it.

Failure to Intervene

An officer who purposefully allows a fellow officer to violate a victim’s Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them.
https://www.justice.gov/crt/law-enforcement-misconduct#iap

Looking for all your federally protected civil rights statutes?

Are you are looking for all federally protected civil rights statutes click here

read more about this subject:

Police Misconduct in California – How to Bring a Lawsuit

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

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury Definition by Law

We also have the Penal Code 132 PC – Offering False Evidence

We also have the California Penal Code 134 PC – Preparing False Evidence

We also have the 118.1 PC – Police Officers Filing False Reports

We also have the Spencer v. Peters – Police Fabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC – Making a False Police Report in California

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

Know Your Rights Click Here

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

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

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

Suing for Misconduct – Know More of Your Rights

Police Misconduct in California – How to Bring a Lawsuit

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

New Supreme Court Ruling makes it easier to sue police

CACI No. 1501. Wrongful Use of Civil Proceedings

perjury is considered a crime of moral turpitude

Can Police Lye on Affidavits  – Short Answer, NO! THAT IS A VIOLATION OF PC 118.1

Not if they Value their Career & Freedom and Don’t want civil responsibility

Police have no expectation of privacy on phone calls.  Police lines are recorded expectations end there!

Perjury Definition

The law defines perjury as the act of:

“Any person who, in any affidavit taken before any person authorized to administer oaths, swears, affirms, declares, deposes, or certifies that he will testify, declare, depose, or certify before any competent tribunal, officer, or person, in any case then pending or thereafter to be instituted, in any particular manner, or to any particular fact, and in such affidavit willfully and contrary to such oath states as true any material matter which he knows to be false, is guilty of perjury.”

California Penal Code 118 PC

Examples Of Perjury

The following are some examples of this crime:

• Lying when questioned about committing a crime of which he had full knowledge. For example, witnessing a homicide and responding on the stand or in an interrogation with the prosecutor who was not present at the scene.
• Being summoned by a court to give a statement about a robbery and misrepresenting the facts. Either accusing an innocent or omitting actions relevant to the case.
• Sign an affidavit in which false information is offered on a particular matter. For example, on the tax return.
• Authenticate as a notary a document under oath, knowing that it is false.
• You typed up a declaration per your lawyer’s request that contained information that you knew to be false even though you signed the declaration under the penalty of perjury.
• You were a witness at a friend’s homicide trial where you knowingly and intentionally testified falsely while under oath, providing an alibi for your friend.
• You are a notary public who authenticated a document you knew was forged under the penalty of perjury.
• You are a defendant in a hit and run accident and during a deposition, you falsely testified under oath that when you approached the plaintiff’s car after the accident, you detected a strong smell of marijuana; you in fact knew that this was not the case.

What Elements Constitute The Crime And Penalty Of Perjury In California?

To prove perjury the prosecutor must prove that the defendant:

• Swore to testify and tell the truth under penalty of perjury,
• Deliberately declared their testimony to be true despite knowing it to be false.
• Refused to provide details of a fact, deliberately omitted them, or presented inconsistent testimony.
• The information provided was of a “material” nature.
• Knew they were testifying under oath, and
• Intended to make a false statement when they appeared in court.

It is important to specify that for the penalty of perjury in California to be constituted, the message must also be communicated.

For example, you fill out a job or other application form under oath with false information and then change your mind and do not submit it. In that case, you will not have committed perjury. Even if someone else filed it for you.

What Is A Material Fact?

It is necessary that the statement lead to a material fact. That is, it is of importance or generates consequences.

The law qualifies a fact as material when:

• It is used to influence the outcome of the procedure performed, or
• It was likely to influence that result.

However, in a trial it is not a prerequisite that the testimony necessarily influence the judicial process. Just as it is not established that the person had to know that his statement was material.

Under What Circumstances Could You Be Charged With Perjury?

A person can be prosecuted for perjury if they give false information by:

• Testifying in court.
• Being questioned by a competent authority.
• A signed affidavit.
• Any other official signed statement,
• Applying for a driver’s license through the California Department of Motor Vehicles (DMV) DL 44 form .
• Signing a certificate.

What Is The Penalty For The Crime Of Perjury In California?

Perjury in the state is penalized as a felony with:

• Imprisonment for one year in the county jail.
• Imprisonment of two to four years in the state jail and/or
• Maximum fine of $10,000.

At the judge’s discretion, the court may order an alternative measure of parole. Thus, the convicted person would not have to remain in prison while serving the sentence. source

The judge has discretion to issue the penalty how he sees fit based on the following factors:

• Seriousness of your perjury,
• Whether your perjury harmed another person.

The judge can issue any of the following penalties:

• Felony probation
• Imprisonment in county jail up to 1 year
• Imprisonment in state prison for two, three or four years.

Suborning Perjury

Under California Penal Code Section 127 in addition to committing perjury a person can also be convicted for a “suborning perjury”. Suborning perjury means that the defendant intentionally persuaded, invited or coerced another person to commit perjury either in writing or verbally.

California Penal Code 118 PC defines the crime of perjury as when a person deliberately gives false testimony while under oath. A conviction is a felony punishable by probation, fines, and up to 4 years in jail or prison.

The language of the statute reads that:

118. (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.

This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.

(b) No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence.

Examples of perjury

• lying about the identification of a suspect when testifying in a California criminal trial.
• providing false information about a car accident in a deposition for a personal injury case.
• giving false information on a material matter in a signed affidavit.

Defenses

A defendant can challenge a penalty of perjury charge with a legal defense. Common defenses include showing that:

• any falsehood was not intentional in nature
• the subject matter was not “material”, and/or
• the person was not actually under oath.

Penalties

A violation of this statute is a felony.

1. This table breaks down the 15 states with security camera laws and notes where video surveillance is allowed and under what circumstances.
2. An oath is an affirmation or any other method authorized by law to affirm the truth of a statement. []
3. Elements. Penal Code 118; CALCRIM No. 2640. []
4. Could be in a form of testimony, declaration, deposition, or certification. []
5. Someone commits an act willfully when he or she does it willingly or on purpose. CALCRIM No. 2640. []
6. Information is material if it is probable that the information would influence the outcome of the proceedings, but it does not need to actually have an influence on the proceedings.  Knowledge of Materiality is not necessary. Penal Code Section 123. []
7. Specific Intent to Testify Falsely Required.  People v. Viniegra (1982) 130 Cal.App.3d 577, 584 [181 Cal.Rptr. 848]; see also People v. Hagen (1998) 19 Cal.4th 652, 663–664 [80 Cal.Rptr.2d 24, 967 P.2d 563] [discussing intent requirement for perjury]. []
8. Penal Code Section 124; People v. Griffıni (1998) 65 Cal.App.4th 581, 596 [76 Cal.Rptr.2d 590] [delivery requirement applies to “declaration”; discussing at length meaning of “deposition,” “declaration,” “certificate,” and “affidavit”]; Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [108 Cal.Rptr.2d 123]; People v. Post (2001) 94 Cal.App.4th 467, 480–481 [114 Cal.Rptr.2d 356]. []
9. Good Faith Belief Statement True Negates Intent. People v. Von Tiedeman (1898) 120 Cal. 128, 134 [52 P. 155] [cited with approval in People v. Hagen (1998) 19 Cal.4th 652, 663–664 [80 Cal.Rptr.2d 24, 967 P.2d 563]]; People v. Louie (1984) 158 Cal.App.3d Supp. 28, 43 [205 Cal.Rptr. 247]. []
10. People v. Baranov (1962) 201 Cal.App.2d 52, 60–61 [19 Cal.Rptr. 866]. []
11. There must be some other evidence that the defendant’s statement was false that corroborates the testimony of the witness. People v. Di Giacomo (1961) 193 Cal.App.2d 688, 698 [14 Cal.Rptr. 574]; Penal Code Section 118(b).  This other evidence may be direct or indirect. []

Exceptions:

allow anyone to recording any criminal civilians harming them 

The Truth Wins, Finally!

California Supreme Court Concludes Over Secret Recording: Not Barred!

People v. Guzman – Secret Recordings – Right To Truth Prop 1982

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

RECORDING-CONVERSATIONS-CHART

Page 2135 Calcrim  defines confidential communication as such:
[A confidential communication does not include a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.]

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

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

senate-bill-2-police-decertification-process/

SB 2, Expanding Civil Liability Exposure

sb-2-expanding-civil-liability-exposure/

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

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