Like Monopoly’s Bank Error in Your Favor Collect $200. A Error in a Judicial Proceeding is Always in your favor!

and if they harmed your civil rights it is a tortable offense as well meaning Civil lawsuit against the agency and/or the individual civil servant goverment employee

read below:

California Constitution Article VI – Judicial Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.

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

https://www.thenalfa.org/blog/defense-prevailing-party-in-dvpa-case-dropped-by-plaintiff/

“Motion Hearing re attorney fees is denied with prejudice.”

erroneous prevailing party determination resulted in a miscarriage of justice….[B]ecause the respondent on petition for a domestic violence restraining order, the trial court had discretion to deny his request for prevailing party attorney fees under [Family Code] section 6344, subdivision (a).”

Art, VI, §13 of the state Constitution, reversal is called for only where an error has resulted “in a miscarriage of justice” which, she declared, did not occur.

you can download it directly from the goverment here https://www.courts.ca.gov/documents/article_vi_current.pdf

A Brief History of the California Constitution

THE California State Constitution is one of the oldest state constitutions still in use today; it’s 130 year history defined by revision, amendment and reform. The constitution’s long life, coupled with numerous partial-reform efforts, has resulted in what is today the world’s third longest constitution. With 512 amendments, the Constitution of California is eight times the length of the U.S. Constitution and has been criticized as “a perfect example of what a constitution ought not to be”1 and derided for being “more about legal technicalities than principles; an embarrassment for an otherwise cutting-edge state”.2

Statehood
IN 1848 the United States acquired California from Mexico under the terms and conditions of the Treaty of Guadeloupe Hidalgo. When a gold discovery at Sutter’s Mill the following year sparked the famous California Gold Rush, the U.S. Congress acted swiftly to grant California statehood. Lacking an effective territorial administration for its rapidly growing population, California’s leaders were pressed to draft a workable constitution. With the backing of Brigadier General Bennett Riley, California’s military governor, 48 delegates convened a Constitutional Convention in Monterey. After final ratification, the delegates submitted the constitution to Congress and on Sunday, September 9, 1850, California was admitted to the Union as the 31st State.

Heavily based on other state constitutions, the 1848 California Constitution proved inadequate to meet the long-term needs of the flourishing new state.3 Political leaders tried to amend the document via constitutional convention and the amendment process, however, during the 30 years which followed statehood, all three constitutional convention ballot proposals failed to win voter support and, of the many constitutional amendments proposed, only three became law. Finally, in 1877 the state legislature again submitted the question of convening a Constitutional Convention to the voters, this time it passed.

THE Constitutional Convention of 1878-79 produced California’s second constitution. Although technically surviving into the modern era, the document has done so weighted down with over 500 amendments and having been put through a 12 year revision process from 1966 to 1974. Although state constitutional conventions have been commonplace throughout U.S. history, the circumstances surrounding the 1878 California Convention resulted in features which would distinguish California’s constitution from other states. Convened amidst economic upheaval, the 1878 convention had an unusually strong focus on social and economic reform. As a result, whereas most constitutions limit themselves to detailing the broad legal principles on which future laws are to be made, the 1878 constitution instead addressed many subjects normally considered statutory in other states.4

In the decades after 1879, between its focus on statutory measures and legislative amendment, the California Constitution began to swell. California’s 1911 adoption of direct democracy through the ballot initiative and referendum gave citizens and interest groups the power to amend the constitution through individual initiatives. By 1930, the California constitution had grown to over 65,000 words (by comparison, the Constitution of the United States has about 4,500 words).5 The increasingly unwieldy nature of the document led to wholesale revision efforts, and on separate occasions in 1898, 1914, 1928, and 1929 the legislature put the question of a constitutional convention to the voters, where each time the measure was defeated. Finally, in 1935, voters approved convening a Constitutional Convention. However, in the midst of coping with the Great Depression, a convention was never convened.

Reform and Failure
FOLLOWING WWII, constitutional conventions surged in popularity as citizens sought to modernize obsolete and outdated state constitutions. Since 1945, Constitutional Conventions have been held in Alaska, Connecticut, Georgia, Hawaii, Illinois, Louisiana, Michigan, Missouri, Montana, Rhode Island.

Meanwhile in California, in 1947 the state legislature authorized a Joint Interim Committee to draft a new constitution. They were to be assisted by an Advisory Committee which counted among its members two ex-governors, constitutional experts, and representatives from a variety of major political organizations and interest groups.6 With such an illustrious and knowledgeable group, real constitutional reform seemed assured. However, interest groups were able to limit the work of the committee to simply eliminating obsolete language.7 As it became clear the committee had no teeth, public interest faded. Although most of the Joint Interim Committee’s final recommendations were approved by both the legislature and the voters, the recommendations amounted to little more than reducing the constitution’s length by about 14,000 unnecessary words. Even with the cuts, by the late 1950’s the California constitution had grown to over 80,000 words with 350 amendments, making it the second most longest in the country.

approved) measures to empower the legislature to propose substantial constitutional revisions in addition to individual amendments.  The legislature responded by appointing a new special body responsible solely for constitutional reform: the Constitution Revision Commission.

Over the course of almost a decade, the Constitution Revision Commission of 1964 to 1971 brought about some of the most substantial reforms of California’s constitution since the convention of 1878.  The commission’s members included lawyers, educators, businesspeople, labor leaders, civic leaders, and others, along with a dedicated staff.8 Proposition 1-A, a key amendment element of the commission’s work, authorized major refurbishments of California’s system of governance. Voters accepted many other amendments drafted by the commission as well, addressing various constitutional improvements and simplifications.  However, when it came to several particularly significant and controversial topics, such as budget reform and the amendment process, the commission found itself deadlocked between competing interest groups and was consequently unable to make significant recommendations. By the end of the process the Constitution Revision Commission, much like the Joint Interim Committee before it, had accomplished little more than reducing the length of the state’s constitution.

During the 1990’s Governor Pete Wilson appointed the second Constitutional Revision Commission.  Convened at a time of economic recession, the bipartisan group  had a specific mandate: examine the most controversial aspects of the constitution reform and suggest reforms.  Pointing out that the state possessed more than 7,000 units of government and over 32 million residents, yet was governed by a constitution written when the population was closer to 800,000, the commission argued that major substantive constitutional changes were needed.  In 1996 the commission released a list of constitutional recommendations aimed at improving accountability and responsiveness of government, eliminating barriers to efficiency and flexibility, and assuring that the state kept its fiscal house in order by maintaining a balanced budget.  However, by the time the commission issued its final report California’s economy had recovered, the pressure to immediately act faded, and the commission’s work was ultimately neglected.

“The People’s Way”
CALIFORNIA’S financial system had become so fragile and so complicated that  few expected it was capable of weathering a sudden crisis, such as deep and prolonged recession. The twin arrivals of the housing collapse and the banking crisis of 2008-2009, and the recession which has been left in its wake, has proved more than enough to bring California to the brink.
The scope of the failure has been spectacular. In April of 2008, even before the banking crisis was in full swing, the Governor announced a once-unimaginable budget deficit of $20.8 billion for fiscal year 2008-2009, which took Sacramento a record 80 days past the budget deadline to reconcile. However, after the budget’s eventual passage, Sacramento was immediately forced to grapple with the $24 billion projected 2009-2010 deficit, which immediately ballooned to $26 billion on midnight July 1st, on what has become the inevitable moment every year when the budget becomes past-due.

The collapse has reaped disastrous consequences on the state. At 11..6%, California’s unemployment rate is among the nation’s highest. Following California’s issuance of IOU’s to creditors to pay its bills, California’s bond rating was lowered to just above “junk” status. California’s public schools, once the nations best, long ago fell towards the bottom and are about to become even more crowded and even less well-equipped.

A May 2009 article appearing in The Economist magazine described California’s need for a new constitution as “both necessary and likely” and went on to mention the state’s thousands of overlapping government districts and marvel: it’s a “surprise anything works at all”.9 Today, calls for fundamental reform of the constitution have been revived amidst record deficits, record budget delays, and the state government’s record-low job approval rating. The system has proven incapable of reforming itself, and citizens have begun to explore ways to reform the system from the outside. When Governor Arnold Schwarzenegger was asked by the LA Times to comment on the push to call a Constitutional Convention, he called the effort “the only hope that I have”.10

Political dysfunction at the state level is not a new phenomenon. On numerous occasions throughout US history citizens of particular states have decided, when faced with such problems, to take the government back into their own hands.  During the 1963 Michigan Constitutional Convention, Wayne State University produced what has since become a classic black and white documentary about American democracy. At the closing moments of “Michigan Can Lead the Way”, the narrator editorialized:
“There had been fears the convention would be too conservative; fears that it would be too liberal; fears that it would be racked by politics…Pro-labor or pro-farmer or pro-business…Favoring the present, trapped in the past, lost in the future. The convention had been all of these, it was not an assemblage of angels. It was a convention of men and women. Taking the best it could agree on for our time and for our people…This was the process. Sometimes calm, sometimes not so calm. Either way, it was the people’s way. It was the way of a free democracy.”

——————-

1 E. Dotson Wilson and Brian S. Ebbert. California’s Legislature (Sacramento: California   State Legislature, Office of the Chief Clerk of the Assembly, 1998), 16.
2 Lascher, Edward. “It’s too easy to amend California’s Constitution.” Editorial. Los Angeles Times 4 Feb. 2009. 15 July 2009 <http://www.latimes.com/news/opinion/commentary/la-oe-hodson4-2009feb04,0,983208.story>.
3 Lee, Eugene C. “The Revision of California’s Constitution”. California Policy Seminar Brief, Vol. 3, No. 3. (April) 1991): 1.
4 Lee, Eugene C. “The Revision of California’s Constitution,” California Policy Seminar Brief, Vol. 3, No. 3     (April 1991): p. 1.
5 Lee, Eugene C. p. 2.
6 Lee, Eugene C. p. 3.
7 Hyink, Bernard L. “California Revises its Constitution”. The Western Political Quarterly, Vol. 22, No. 3 (September 1969): p. 640.
8 Lee, Eugene C. “The Revision of California’s Constitution,” California Policy Seminar Brief, Vol. 3, No. 3     (April 1991): p. 4.
9 “The Ungovernable State”. The Economist, May 14th 2009. http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=13649050
10 Goldmacher, Shane. “Schwarzenegger threatens to shut down state government.” Los Angeles Times, June 11, 2009. Accessed July 20, 2009. http://articles.latimes.com/2009/jun/11/local/me-arnold-budget11

source

learn more about TORT here:

What is a Tort?

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

Bidna v. Rosen (1993) – Family Law Tort – Civil Malicious Prosecution

WRITS and WRIT Types in the United States

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

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

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

When The Prosecution Drops Charges

Thompson v. Clark – Malicious Prosecution claim under § 42 U.S.C. 1983 for malicious prosecution

Functions and Duties of the Prosecutor – Prosecution Conduct

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

What is Abuse of Process? When the Government Fails Us

Prosecutorial Investigations

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

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Police BodyCam Footage Release – California

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

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Lawyers’ Obligation of Candor to Opposing Parties and Third Parties

Seal & Destroy a Criminal Record

Oath and Obligation’s of Attorney – California Lawyers

Epic SCOTUS Decisions

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

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

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

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

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

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

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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

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

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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

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

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

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

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

Deprivation of Rights – Under Color of the Law

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

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

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

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

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

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

Joinder In Family Law Cases – CRC Rule 5.24

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

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

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

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

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

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

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

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

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

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

Plaintiff Larry Thompson brings this action against defendant police officers pursuant to 42 U.S.C. § 1983

New findings filed 10.21.2021 finished 4.4.2022
Suing the Government for Malcious Behavior that breaches your constitutional rights

Opinion

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/