Malicious Prosecution / Prosecutorial Misconduct

Avoid being Victims of the Justice Systems by shady prosecutors

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

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

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

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

Pro$ecutor‘$ Duty to the citizen

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

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

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

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

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

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

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

California Civil Code Section 52.1

The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties.

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

Prosecutorial Misconduct

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

DOJ on Prosecutorial Misconduct

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

Malicious Prosecution

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

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

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

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

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

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

Malicious Prosecution and False Arrest as a Civil-Rights Violation

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

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

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

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

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

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

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

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording  and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in  Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights.  Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the 

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

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

A Section 1983 lawsuit is a legal claim alleging that a state or local official has violated your civil rights under the United States Constitution. These actions may be brought in state or federal court. Victims can pursue

1. monetary damages or
2. an injunction to stop the improper conduct.

The injunction can prevent the violation from happening again. The damages can compensate the victim and punish the wrongdoer. However, victims have to Overcoming Qualified Immunity in Civil Rights Claims defense in order to recover monetary damages. Note, though, that recent law bars the use of this defense in some cases. How Far Does Qualified Immunity Go for Government?

1. What is a Section 1983 lawsuit?

A Section 1983 lawsuit is a civil rights lawsuit. It can be filed by someone whose civil rights have been violated. The victim can file a lawsuit if the wrongdoer was acting under color of law.¹

Civil rights are those guaranteed by the U.S. Constitution or certain federal laws.¹ The Supreme Court recognizes that there is a deprivation of rights when:

• police misconduct such as excessive force and unreasonable use of force (like the use of a taser during an arrest),²
• police officers wantonly search a victim’s home and kill their dogs,³
• a judge sexually assaults women while in the course of his/her job,⁴
• state officials strip welfare recipients of their benefits,⁵
• jail guards put an ex-gang member in a prison cell with current gang members, even after being told of the danger.⁶

Rights guaranteed by state law cannot be the basis of a Section 1983 lawsuit. Only federal rights are protected by the statute.⁷

Technically, Section 1983 is nothing more than a procedural device based on a federal statute. It gives federal courts jurisdiction to hear civil rights cases. No one can be liable under Section 1983. Instead, it creates liability for violating other federal laws. That is why 1983 cases always include an alleged violation of another law, such as the:

• First Amendment,
• Fourth Amendment (for example, arrests without probable cause, unreasonable searches),⁸
• Eighth Amendment,⁹
• Fourteenth Amendment (for example, lack of due process, equal protection), or
• Social Security Act.¹⁰

At common law, prior to Section 1983, lawsuits against the state and its agents were barred by sovereign immunity. Section 1983 was originally designed to protect slaves who were freed in the Civil War. Southern states passed laws that harassed and intimidated African Americans. Law enforcement officers in the south used their positions to assault victims.

The law was passed by legislators as a part of the Civil Rights Act of 1871. This act of Congress allowed black victims to file a lawsuit and recover money damages. That lawsuit could be filed in federal court. The congressional intent was for victims to avoid state court decisions. In state court, the victim would likely have faced a strong bias.

2. What does “under color of law” mean?

The civil rights violation has to be committed “under color of law.” People act under color of any statute when they behave with the apparent authority of the state. While on the job, police department officers and jail guards act under color of state law.¹¹

State officials can act under color of law while they break the law, too. They can violate official policy and still maintain the appearance of state action.¹² So long as they have the appearance of state actors, they can be sued.

Example: Acting on their own, 13 uniformed police officers break into a house and arrest a man in front of his family. They hold him at the station for 10 hours before releasing him without charge.¹³

This means that off-duty police officers can be acting under the color of law. However, there have to be signs that the officer made it seem like he was on the job (acting in “an official capacity”). Factors could include:

• showing a police badge,
• claiming to be a police officer,
• brandishing a gun,
• behaving like a police officer, and
• acting like an arrest was being made.

However, working for the state does not always mean that a person acts under color of law. Some people who technically work for the state cannot act under color of law.

Example: Public defenders cannot act under color of law. Their role is to fight the state’s prosecutions.¹⁴

On the other hand, people who do not work for the government can still act under color of law. This can happen if they conspire with government officials to deprive someone of their civil rights.

Example: A businessman works with a corrupt judge to keep a competitor from drilling oil wells.¹⁵

3. Who can I sue under Section 1983?

Victims of civil rights violations can sue people who acted under the color of law. This includes:

• people who work for the government (including state government, local government, and government for the District of Columbia),
• other individuals who conspire with those government workers, and
• certain government entities.

A Section 1983 litigation claim can be filed against state and local officials such as:

• police officers,
• sheriff’s deputies,
• state or county prison guards,
• police chiefs,
• county sheriffs,
• prison wardens, and
• other public officials

However, Section 1983 does not normally reach federal officials.¹⁶ Federal officials can only be sued under Section 1983 if they act alongside state or local officials.¹⁷ When they are acting on their own, federal officials can be sued in a Bivens claim instead. (See our article on Bivens vs 1983).

Private individuals can also be sued if they conspire with state officials. This would make them act under color of law.¹⁸

When the constitutional violation was a custom or policy of the municipality, the municipality can be sued, too.¹⁹ Municipalities include:

• towns,
• villages,
• cities,
• counties, and
• any municipal program or department, like a school board or public transit service.

However, states like California or Texas cannot be sued in a Section 1983 claim.²⁰

4. Can you bring a 1983 claim in state court?

Victims who suffered deprivation of any rights can file a Section 1983 cause of action in state lower courts (district courts).²¹ However, the ability to recover monetary damages is drastically reduced. The state official cannot be sued for official conduct for money damages.²²

5. What damages can I obtain?

Successful Section 1983 claims can produce 2 kinds of remedies:

• compensatory damages for the civil rights violation known as monetary damages, and/or
• prospective relief, also known as injunctive relief.

The court can award monetary damages for compensation as well as punitive damages. The compensation aims to cover the victim’s:

• medical bills,
• lost wages,
• reduced earning capacity,
• pain and suffering,
• loss of liberty from the civil rights violation, and
• possibly attorney’s fees

The punitive damages aim to punish the wrongdoer for violating the victim’s rights. They cannot be recovered from a municipality, though.²³

Some state officials are absolutely immune to 1983 claims for monetary damages. This absolute immunity applies to their official conduct. These people include:

• prosecutors,²⁴
• judges,²⁵ and
• state lawmakers.²⁶

Section 1983 claims that demand damages are also susceptible to the qualified immunity defense. This defense allows other state officials to claim they were acting in good faith. The defense can succeed so long as they did not:

• violate the victim’s civil rights, and
• those rights were so clearly established that a reasonable officer would have known their conduct was a violation.²⁷

However, municipalities cannot make use of the qualified immunity defense. They can be held liable even if they did not know they were violating the victim’s constitutional rights.²⁸

Note also that recent California law, Senate Bill 2, bars police officers from raising a qualified immunity defense in California lawsuits brought under the Tom Bane Civil Rights Act.  A citizen can file a Bane Act suit if any government employees interfered by threat, intimidation, or coercion with that party’s constitutional rights.

Senate Bill 2 also prohibits prison guards and their employers from using a qualified immunity defense in cases where they injured a prisoner or failed to provide him/her with medical care.

Section 1983 causes of action can also pursue prospective relief. This comes in the form of an injunction, or court order. That order changes be made to prevent another, similar violation from happening in the future.

6. Is there a statute of limitations?

There is a statute of limitations for Section 1983 claims. This means the civil action (lawsuit) must be filed within a certain time frame. However, that length of time depends on the type of constitutional violation.

Courts have to apply the statute of limitations that is most similar to the violation.²⁹ This is often a personal injury statute of limitations, which tends to be 3 years. However, some 1983 cases can have different time constraints.