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Malicious Prosecution / Prosecutorial Misconduct

The Truth News — Tue, 04 Feb 2025 21:18:31 +0000

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.

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.

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

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.

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

Malicious Prosecution and False Arrest as a Civil-Rights Violation

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.

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

The Truth News — Mon, 12 Aug 2024 09:52:30 +0000

Thomp$on v. Clark – Maliciou$ Pro$ecution

The Evil / Incompetent Prosecutor performing meritle$$ ca$e$ against his fiduciary duty

§ 42 U.S.C. 1983 for malicious prosecution

Thompson v. Clark
United States Supreme Court
April 4, 2022
JSH Attorneys: Justin Ackerman and Ashley Caballero-Daltrey

U.S. Supreme Court Rules That Favorable Termination of Charges For 4th & 14th Amendment Malicious Prosecution Claim Need Not Show Affirmative Indication of Innocence

In a ruling today, the United States Supreme Court held that a Fourth Amendment claim under § 1983 for malicious prosecution does not require that the plaintiff show that the criminal prosecution ended with some affirmative indication of innocence. The Court resolved a circuit split on the issue with its holding.

In this case, Larry Thompson was charged and detained for two days and later released from jail after being charged with obstructing governmental administration and resisting arrest. The charges against Thompson were dismissed before trial without explanation by the prosecution or trial court judge. Thompson then brought suit under 42 U.S.C. § 1983 for damages against the police officers, including a Fourth Amendment claim for malicious prosecution. Under Second Circuit precedent, he was required to show some affirmative indication of his innocence. Because he could not, the district court dismissed his case and the Second Circuit affirmed the dismissal on the same basis.

The U.S. Supreme Court granted review in order to resolve a circuit split on the requirements of “favorable termination” for a Fourth Amendment malicious prosecution claim. It explained that in order to determine the elements of this claim, it had to first look at the elements of the most analogous tort as of 1871 when § 1983 was enacted, as long as doing so was consistent with the values and purposes of the constitutional right at issue. The Court reviewed the practice of American courts in 1871 to determine the elements of malicious prosecution. After a lengthy historical analysis, it concluded that courts in 1871 largely agreed that a “favorable termination” meant the prosecution ended without a conviction, but did not require anything more.

Applying this standard, the Court found that the plaintiff satisfied the requirement that his criminal prosecution – which the prosecution had moved to dismiss – ended without a conviction. As a result, the Court reversed the judgment of the Second Circuit and trial court’s determination that he could not bring a malicious prosecution claim. However, it left open a number of questions for remand, including: whether the plaintiff was ever seized as a result of the alleged malicious prosecution, whether he was charged without probable cause, and whether the defendant was entitled to qualified immunity.

Prior to this decision, federal courts in Arizona generally followed Arizona state law on malicious prosecution, which usually required a plaintiff to show some affirmative indication of innocence (not just a voluntary dismissal by a prosecutor). Going forward, federal courts will have to follow Thompson and will only require a plaintiff show that their prosecution ended without a conviction. It also left open a number of other viable defenses to a 1983 malicious prosecution claim, such as probable cause and qualified immunity.

Facts of the case

Camille Watson was staying with her sister and her sister’s husband, Larry Thompson, when she dialed 911 after seeing a diaper rash on the couple’s infant daughter and mistaking the rash for signs of abuse. In response, two Emergency Medical Technicians (EMTs) arrived at Thompson’s apartment building to investigate. The EMTs saw nothing amiss, and, unaware of Camille’s 911 call, Thompson told the EMTs that no one in his home had called 911. He asked the EMTs to leave, and they did.

Four police officers followed up to investigate the alleged child abuse and insisted on seeing Thompson’s daughter. Thompson asked to speak to the officers’ sergeant, and after being denied that request, asked whether the officers had a warrant (which they did not). Nevertheless, they physically tried to enter Thompson’s home, and when Thompson attempted to block the doorway, the officers tackled and handcuffed him. He was arrested and taken to jail, where he spent two days. He was charged with resisting arrest and obstructing governmental administration, and about three months later, the prosecution dropped the charges against him, stating that “People are dismissing the case in the interest of justice.”

Thompson filed a Section 1983 malicious prosecution claim against the police officers involved. A federal district court granted judgment as a matter of law in favor of the defendants on Thompson’s malicious prosecution claim due to his failure to establish favorable termination of his criminal case, which is required under binding Second Circuit precedent. The appellate court affirmed.

To succeed on a claim of malicious prosecution under Section 1983, a plaintiff must show:

(1) the suit or proceeding was instituted without probable cause,
(2) the motive in instituting the suit was malicious—that is, for a purpose other than bringing the defendant to justice, and
(3) the prosecution terminated in the acquittal or discharge of the accused. The purposes of this third element—favorable termination of the underlying criminal case—are:
- (a) to avoid parallel civil and criminal litigation,
- (b) to prevent inconsistent civil and criminal judgments, and
- (c) to prevent civil suits from being improperly used as collateral attacks on criminal proceedings.

Most American courts have considered a favorable termination to mean simply a prosecution that ends without conviction and cannot be revived. Thus, if the prosecutor abandons the case or the court dismisses the case without stating a reason, these satisfy the third element of a malicious prosecution claim. Acquittal of the defendant is not required. Respondents’ claims to the contrary are not persuasive.

READ COURT OPINION

Justin Ackerman represents clients in federal and state appellate matters in cases involving excessive force, wrongful death, personal injury, bad faith, and premises liability. After graduating as the valedictorian of his class from Phoenix School of Law, Justin worked as a law clerk for the Hon. Michael J. Brown in Division One of the Arizona Court of Appeals. Justin has successfully represented clients and argued before the Arizona Court of Appeals, Arizona Supreme Court, and Ninth Circuit Court of Appeals.

jackerman@jshfirm.com | 602.263.4430 | jshfirm.com/jackerman

Ashley Caballero-Daltrey is a member of the firm’s Appellate Department where she represents clients in federal and state appellate matters and dispositive motions. Before joining JSH, Ashley worked as a law clerk for Vice Chief Justice Ann Scott Timmer of the Arizona Supreme Court. She has extensive experience researching and drafting memos across several different areas of law, as well as completing dozens of research projects and memos in torts, civil procedure, government claims, contracts, and land use.

adaltrey@jshfirm.com | 602.263.4489 | jshfirm.com/adaltrey

cited https://www.jshfirm.com/u-s-supreme-court-rules-that-favorable-termination-for-fourth-amendment-malicious-prosecution-claim-need-not-show-affirmative-indication-of-innocence/

if you want to read the and download the PDF directly from the US SUPREME COURT https://www.supremecourt.gov/opinions/21pdf/20-659_3ea4.pdf

or you can read it from us here https://goodshepherdmedia.net/thompson-v-clark-364-f-supp-3d-178/

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

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

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

Thompson v. Clark – 4th and 14th Amendment

The Truth News — Sat, 02 Jul 2022 10:03:46 +0000

Thompson v. Clark, 364 F. Supp. 3d 178

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

14-CV-7349

2019-03-12

Larry THOMPSON, Plaintiff, v. Police Officer Pagiel CLARK; Police Officer Paul Montefusco; Police Officer Gerard Bouwmans; Police Officer Phillip Romano, Defendants.

Counsel for Larry Thompson, David A. Zelman, 612 Eastern Parkway, Brooklyn, NY 11225, 718-604-3072, Cary London, 30 Broad Street, Suite 702, New York, NY 10004, 212-203-1090 Counsel for Pagiel Clark, Paul Montefusco, Gerard Bouwmans, Phillip Romano, Kavin Suresh Thadani, New York City Law Department, 100 Church Street, Rm 3-195, New York, NY 10007, 212-356-2351, Phillip R. DePaul, New York City Law Department, 100 Church Street, Rm 3-208, New York, NY 10007, 212-356-2413

JACK B. WEINSTEIN, Senior District Judge

Counsel for Larry Thompson, David A. Zelman, 612 Eastern Parkway, Brooklyn, NY 11225, 718-604-3072, Cary London, 30 Broad Street, Suite 702, New York, NY 10004, 212-203-1090

Counsel for Pagiel Clark, Paul Montefusco, Gerard Bouwmans, Phillip Romano, Kavin Suresh Thadani, New York City Law Department, 100 Church Street, Rm 3-195, New York, NY 10007, 212-356-2351, Phillip R. DePaul, New York City Law Department, 100 Church Street, Rm 3-208, New York, NY 10007, 212-356-2413

MEMORANDUM AND ORDER

JACK B. WEINSTEIN, Senior District Judge:

I. Introduction…181

II. Background…182

A. Warrantless Entry…182

B. Dismissal of Plaintiff’s Criminal Charges…183

i. State Criminal Prosecution…183

ii. Criminal Court Appearances…184

iii. Evidentiary Hearing…185

III. Law…190

A. Burden of Proof for Exigency…190

i. Exigent Circumstances Generally…190

ii. Other Circuit Precedent…191

iii. Second Circuit Precedent…191

iv. Burden Shifting…192

v. Burden of Proof Problem…193

B. Termination in Favor of the Accused…195

IV. Application of Law…195

A. Exigency Burden…195

B. Favorable Termination…196V. Conclusion…197

A. Exigent Circumstances Burden…197

B. Malicious Prosecution…197

I. Introduction

In this 42 U.S.C. § 1983 civil jury trial, two rules of law of the Second Circuit have been applied that can and should be changed: 1) where the police enter a house without a warrant and rely on exigent circumstances, the burden of proof on non-exigency is on the plaintiff-householder; and 2) where a civil § 1983 plaintiff must prove his state criminal prosecution ended in a ruling on the merits in his favor, an ambiguous ruling by the State court is construed as a ruling that dismissal was not on the merits, that is to say it was not on a finding of non-guilt.

Both these rules erect an unnecessary barrier to justice; both improperly limit enforcement of federal law in civil suits against police officers when they violate the constitution. They seriously dilute the force of the federal constitutional protection against police violators of constitutional rights.

It is trite but still true that a person’s home is conceptually his castle. This principle was taken from English common law and chiseled into the granite of our Constitution. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….”); see also Welsh v. Wisconsin , 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (citation omitted) ). Its origins date as far back as the early 17^th century.

[T]he house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and although the life of man is a thing precious and favoured in law; … if thieves come to a man’s house to rob him, or murder, and the owner of his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing …. [E]very one may assemble his friends and neighbours to defend his house against violence: but he cannot assemble them to go with him to the market, or elsewhere for his safeguard against violence: and the reason of all this is, because domus sua cuique est tutissimum refugium.

Semayne’s Case , 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1603); see also 4 William Blackstone, Commentaries 223 (1765–1769) (“And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle ….”).

The present case forces a reassessment of this oft-repeated maxim. It poses questions about what the ordinary law-abiding citizen can, and should, do to protect himself and his family from an unwarranted, but possibly lawful, governmental intrusion into his home. Compare Jason Brennan, When All Else Fails: The Ethics of Resistance to State Injustice 2, 4 (2019) (“[O]ne pressing question for political philosophy is what ordinary citizens are licensed to do in the face of injustice…. Instead of exit, voice, or loyalty, this book defends the fourth option: resistance…. [It] includes more active forms of resistance, such as blocking police cars, damaging or destroying government property, deceiving and lying to government agents, or combating government agents.”) with I. Bennett Capers, Criminal Procedure and the Good Citizen , 118 Colum. L. Rev. 653, 663 (2018) (“[T]he good citizen should not hesitate to open his bag, pocket, or home to the police, or to otherwise consent to a search.”).

Plaintiff Larry Thompson brings this action against defendant police officers pursuant to 42 U.S.C. § 1983. The litigation results from an encounter between police officers responding to a report of serious baby abuse and a new father intent on protecting his family from what he believed to be an unlawful forced entry into his apartment.

At 10:00 p.m. one evening in Brooklyn, plaintiff, his wife, and their one-week old daughter were at home preparing for bed. Four armed uniformed police officers arrived at their door seeking to enter the apartment without a warrant. The officers were there to investigate a partially corroborated 911 call reporting that a child was being molested.

They believed the exigency of an ongoing possible threat to a child’s safety justified their warrantless entry. Thompson, with his child safe and well-cared for in the back bedroom, believed otherwise. He blocked them from entering and, according to the officers’ testimony, pushed one of the officers. They forced him to the ground, arrested him, handcuffing him, and according to plaintiff, beat him. The report of child abuse turned out to be false—the 911 call came from a disturbed relative temporarily living in plaintiff’s apartment. The child was never in any danger.

Before the court are two vexing issues related to plaintiff’s unlawful entry and malicious prosecution claims: first , which party bears the burden of proof on the exigent circumstances exception to the warrant requirement; and, second , whether, as an element of his malicious prosecution claim, plaintiff can establish that his criminal charges were terminated on the merits in his favor. This memorandum addresses both issues.

II. Background

A. Warrantless Entry

At about 10:00 p.m., on the night of January 15, 2014, plaintiff was home with his fiancé, now wife, and new born baby in their Brooklyn apartment. Trial Tr. 601:12–24, Jan. 25, 2019. The family was getting ready to go to sleep. Id. at 601:22–24. The Thompson’s were in their underwear. Id. at 601:20–602:1. Earlier that day, the parents had taken their one-week old daughter to her first doctor’s check-up. Id. at 598:1–14. She received a clean bill of health. Id. at 598:15–18.

His wife’s sister, Camille Watson, who was staying in the couple’s apartment, called 911. Trial Tr. 263:14–24, Jan. 24, 2019. She reported that her week-old niece was being sexually abused by the baby’s father at 339 Lincoln Place, Apt. 2E, in Brooklyn. Trial Tr. 496:13–18, Jan. 25, 2019. She identified the father as a 41-year-old black male, roughly five feet five inches tall, and 150 pounds. Id. Plaintiff met that description. See id. at 508:11–509:8. She stated that the baby had red rashes on her buttocks area. Id. at 496:13–18.

Two Emergency Medical Technicians (“EMT”) were directed to the scene by radio to investigate the report of child abuse. Id. at 456:20–25. They were met outside by a woman who did not identify herself, but they assumed to be the 911 caller. Id. at 461:5–10. The female, later identified as Camille, asked the EMTs to follow her. Id. at 461:12–14. Camille led them into the apartment where they observed another woman holding a baby. Id. at 461:15–25. The EMTs were confronted by plaintiff. Id. at 462:19–462:6. Thompson appeared angry and asked them what they were doing in his apartment. Id. at 463:20–464:18. He denied that anyone in the apartment called 911. Id. at 464:12–18. The EMTs told him that they might have the wrong address and left. Id. at 464:19–21.

Police Officers Pagiel Clark, Paul Montefusco, Gerard Bouwmans, and Phillip Romano received a radio direction to respond to 339 Lincoln Place and investigate a man fitting plaintiff’s description for suspected child abuse. See id. at 503:7–504:9. The call first came over as a report of “possible child abuse,” but was later changed to an “assault in progress.” Trial Tr. 334:15–335:2, Jan. 24, 2019. The EMTs informed the arriving officers that they received a report of a child being abused and they needed to check on the baby. Trial Tr. 464:8-465:18, Jan. 25, 2019; see also id. at 480:5–6 (“If we don’t make patient contact, then we get in trouble.”). They told the police officers that they had left the apartment without examining the baby because plaintiff seemed “aggressive” and they felt “uncomfortable.” See id. at 465:16–18, 478:3–479:9.

One officer knocked on the door of apartment 2E and Thompson opened it. Id. at 510:10–16, 515:22–516:2. The officers stood outside of the apartment door. Id. at 510:17–511:14. They were armed and in uniform. Id. at 512:12–20. They told Thompson that they needed to enter the apartment. Trial Tr. 295:11–14, Jan. 24, 2019. He responded that they were not coming in without a warrant and refused to let them pass. Trial Tr. at 611:1–10, Jan. 25, 2019.

Officer Montefusco attempted to cross the threshold. See id. at 523:2–15; Trial Tr. 303:23–304:1, Jan. 24, 2019. Thompson blocked his path and, according to the officers’ testimony, shoved Officer Montefusco. E.g. , Trial Tr. 523:16–19, Jan 25. 2019; Trial Tr. 107:18–21, Jan. 23, 2019. The officers rushed in, pushing Thompson to the floor and handcuffing him. Trial Tr. 524:2–10, Jan. 25, 2019. Thompson testified that he did not resist arrest, but that Officer Montefusco threw him to the ground and began to choke him, while the other officers kicked and punched him. Trial Tr. 711:24–712:15, Jan. 28, 2019. Defendants contend that he resisted arrest by flailing his arm preventing the officers from placing handcuffs on him. Trial Tr. 570:16–24, Jan. 25, 2019.

The officers entered the apartment with the EMTs. Id. at 485:4-5. The EMTs observed red marks on the baby’s buttocks but determined, after taking the child to the hospital, there was only a diaper rash. See id. at 486:2–7; Pls.’ Summ. J., Ex. D, Dillahunt Dep. 25:1–25. There was no evidence of abuse. See Trial Tr. 486:2–7, Jan. 25, 2019.

Camille, who had called in the false report, suffered from mental illness. Trial Tr. 237:16–20, Jan. 24, 2019. The police sensed that she had some form of mental dysfunction. Id. at 324:3–13.

Thompson was transported in a police patrol car to the seventy-seventh precinct. Trial Tr. 538:16–22, Jan. 25, 2019. He requested medical attention for back and neck pain, and was brought by two of the officers to Interfaith Hospital. See id. at 539:9–540:8; Def. Ex. F, Interfaith Hospital Medical Records, Jan. 16, 2014. An x-ray showed swelling, but no permanent injury. See Def. Ex. F; Trial Tr. 636:23–637:1, Jan. 25, 2019. Pain medication and a neck brace were prescribed. Trial Tr. 635:18–19, Jan. 25, 2019; Trial Tr. 330:7–9, Jan. 24, 2019. He was returned by the police to the precinct and then was transported to Brooklyn Criminal Court. Trial Tr. 637:12–638:7, Jan. 25, 2019.

B. Dismissal of Plaintiff’s Criminal Charges

i. State Criminal Prosecution

Thompson was arrested on January 15, 2014 following the incident in his home. Id. at 530:11–531:3. He was charged with obstructing governmental administration in the second degree, NYPL § 195.05, and resisting arrest, NYPL § 205.30. Id. at 531:24–532:7. A person is guilty of obstructing governmental administration in the second degree in New York,

when he [or she] intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering ….

N.Y. Penal Law § 195.05.

Under New York law, this crime has four elements: “(1) prevention or attempt to prevent (2) a public servant from performing (3) an official function (4) by means of intimidation, force or interference.” Cameron v. City of New York , 598 F.3d 50, 68 (2d Cir. 2010). Police officers must be engaged in lawful conduct to support an arrest for obstruction. Kass v. City of New York , 864 F.3d 200, 207 (2d Cir. 2017) (“[T]he public servant must be performing an official function that is ‘authorized by law.’ ” (citation omitted) ).

” ‘Interference’ within the meaning of Section 195.05 must be a ‘physical interference.’ ” Basinski v. City of New York , 706 F. App’x 693, 698 (2d Cir. 2017) (citing People v. Case , 42 N.Y.2d 98, 101, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977) ). “New York courts, however, have construed ‘physical interference’ broadly.” Id. (citing In re Davan L. , 91 N.Y.2d 88, 91, 666 N.Y.S.2d 1015, 689 N.E.2d 909 (1997) ). As the United States Court of Appeals for the Second Circuit explained in Kass v. City of New York :

The [next] element is that an individual must prevent or attempt to prevent a public official from performing a lawful official function by interfering with that function. Although the interference must at least in part be “physical” and cannot consist solely of verbal statements, an officer may consider both words and deeds in determining whether the individual’s conduct is sufficiently obstructive to justify an arrest. Such interference can consist of inappropriate and disruptive conduct at the scene of the performance of an official function even if there is no physical force involved. This element of the statute is satisfied when an individual intrudes himself into, or gets in the way of, an ongoing police activity.

864 F.3d at 207 (citations omitted).

A person is guilty of resisting arrest when he or she “intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” N.Y. Penal Law § 205.30. Probable cause for resisting arrest arises only when there is probable cause for charging some other crime. Curry v. City of Syracuse , 316 F.3d 324, 336 (2d Cir. 2003).

ii. Criminal Court Appearances

Plaintiff was arraigned on January 17, 2014. After being held in custody for two days, he was released on his own recognizance. See Trial Tr. 658:4–18, Jan. 25, 2019.

Thompson next appeared in court about two months later. According to his testimony, he was offered an Adjournment in Contemplation of Dismissal and told to “stay out of trouble and everything will go away.” Id. at 644:14–16. He rejected this offer because he “ha[d] to see this to the end” and “didn’t think … anything should be on [his] record about this.” Id. at 644:18–645:4.

He returned to court a month later on April 9, 2014. At this hearing, his criminal charges were dismissed “in the interest of justice” on motion of the Brooklyn District Attorney. The entire transcript of this hearing reads:

Proceedings

COURT OFFICER: Calendar add-on 2014KN004196, Thompson.

MS. LUNN [defense counsel]: The people have agreed to dismiss. It’s Mr.

Scott’s case. We advanced it from – –

MS. TIERNY: People are dismissing the case in the interest of justice.

THE COURT: The matter is dismissed.

Def. Ex. B, Transcript of State Criminal Proceeding, Apr. 9, 2014.

Neither the prosecution nor the court provided any specific reasons on the record for the dismissal. Nor was there any mention of the charges being dismissed pursuant to New York Criminal Procedure Law (“CPL”) § 170.40, which is the section of the CPL devoted to interest of justice dismissals. Section 170.40 of the CPL requires the court to state its reasons on the record for dismissing a matter in the interests of justice. See N.Y. Crim. Proc. Law § 170.40 (“An order dismissing an accusatory instrument … in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.”).

Plaintiff’s Certificate of Disposition states that the charges were dismissed on motion of the District Attorney and indicates that the case was sealed pursuant to CPL § 160.50. Pl. Ex. 5, Certificate of Disposition, Apr. 8, 2015. This State sealing provision, entitled “Order upon Termination of Criminal Action in Favor of the Accused,” is applicable only to those whose criminal actions were terminated in their favor (as defined within CPL § 160.50(3) ). See N.Y. Crim. Proc. Law § 160.50.

iii. Evidentiary Hearing

An evidentiary hearing was held on January 24, 2019 in federal court. Renate Lunn, a Legal Aid attorney and plaintiff’s former defense counsel, testified regarding her recollections of plaintiff’s criminal prosecution.

On direct examination, defense counsel Lunn said she could not remember why the prosecutor moved for dismissal. See Trial Tr. 209:19–24, Jan. 24, 2019. She testified that she had never filed a motion to dismiss in the interest of justice. Id. at 207:23–25. She did recall making an oral motion to dismiss for facial insufficiency on the ground that the complaint did not lawfully state a crime. Id. at 210:6–9. The criminal court judge denied this motion and allowed her to put the motion in writing, which she never did. Id. at 210:11–211:2.

Q Ms. Lunn, I bring your attention to January 15th of 2014 where were you employed?

A Legal Aid Society in New York City.

Q Did there come a time when you represented a gentleman named Larry Thompson?

A Yes.

Q Do you remember what Larry Thompson was charged with?

A I’d have to refresh from my recollection by looking at the complaint, but I believe it was obstructing governmental administration, resisting arrest.

Q Were you the assigned attorney for Legal Aid Society for his case?

A Yes.

Q Did he plead guilty or was his case dismissed?

A His case was dismissed.

Q Did you file a motion under the interest of justice to have the case dismissed?

A No.

Q Did you — in your legal opinion, can you just tell us what happened when you went to court with this case for the best of your recollection?

A The first time it was on, I think the prosecution provided discovery. It was adjourned — well, after arraignment, it was adjourned for discovery, we received some discovery. And then, after that, the next court date it was dismissed….

Q Was there any evidence at all in the case that this case was dismissed out of sympathy for the accusation or for any ill health reason that he had? …

A May I look at my notes to refresh my recollection? I have notes from my conversation with prosecutors…. I’m just looking. I don’t have any information about health issues. And when I spoke to the prosecutor, what I remember about this case was just being outraged at the thought that someone could be arrested for obstructing governmental administration in his own home. But I don’t have detailed notes about any sort of sympathetic mitigating circumstances like I would have if I was doing a motion for dismissal in the interest of justice.

Q Understood. Was there any discussion that you recall between you and the prosecutor that there was an inability to proceed by the prosecutor due to a lack of reasonable doubt — lack of probable cause that the case could continue in court to a successful conclusion?

A I honestly don’t remember.

Q Okay. Was there any — do you remember any specific evidence that was brought out in the discovery? You touched upon it that he was in his house, that he was arrested, [do] you remember having a conversation with the prosecutor or the judge that it would be impossible to prosecute him for being in his house and obstructing at the same time?

A Yes. I made a motion at the arraignment to dismiss for facial sufficiency which would be not in — not out of mitigating circumstances, but because — the complaint doesn’t even state a crime. It could not legally state a crime.

Q Was there an opposition to that?

A I think it was asked [by the court] that I put it in writing.

Q And did you?

A No…. The court denied any oral application to dismiss without prejudice.

Q And asked you to put it in writing?

A Yes.

Q Subsequently, the D.A. — did the D.A. tell you they were moving to dismiss …?

A Yes.

Q Did they say anything in regards to that why anything that you recall about that conversation?

A I don’t recall anything about the conversation.

Q Okay. And what was the time, from the time that you made the oral application to dismiss, to the time that the prosecutor said they’re going to dismiss on their own, how long was that?

A I made the oral application at arraignment, and the actual dismissal happened on the second adjourn date….

Id. at 207:8–211:14.

Defense counsel Lunn was asked generally about interest of justice dismissals under CPL § 170.40.

Q Isn’t it true, Ms. Lunn, that there is a specific CPL provision regarding interest of justice dismissal[s] …?

A Yes.

Q Do you recall what that [is]?

A Off the top of my head, no, I remember we call it by the lead case. It’s known as a Clayton motion in New York City.

Q I believe it’s CPL 170.40.

A That sounds right….

Q CPL 170.40 is the interest of justice dismissal provision of the CPL; is that correct?

A Yes. I recently filed such a motion or drafted such a motion so I’m familiar with the standards and the factors the court should look at that are listed in 170.40.

Q Please tell us what you know about the statute?

A It’s a motion that can be made … to dismiss a case in the interest of justice. There’s a series of factors that can be looked at. History and character of the defendant, the nature, if any, of police misconduct. The effect that dismissing the case would have on the community’s trust and faith in the criminal justice system. The level of guilt of the defendant and any harm that was done to anybody. There’s a series of factors that the court may consider not one is necessarily dispositive.

Q Do you recall if there’s a provision in CPL 170.40 which requires the criminal court, if it’s going to make a dismissal in the interest of justice, to state its reasons on the record?

A I don’t remember off the top of my head.

Q Were any?

COURT: It says, “Upon issuing such an order, the Court must set forth its reasons, therefore, on the record.”

Q Was that done?

A No.

Id. at 217:3–220:14.

On cross-examination, she was shown the transcript from the April 9, 2014 hearing. Id. at 212:11-17. She testified that she did not remember any discussions taking place at the criminal court proceeding that were not contained in the transcript. Id. at 214:6-9.

Q Let the record reflect that I have shown Ms. Lunn Defense Exhibit B. Ms. Lunn, do you recognize that document?

A Yes.

Q What does it appear to be to you?

A A transcript of a proceeding in criminal court on April 9, 2014….

Q And in what case does this transcript pertain to?

A People v. Larry Thompson.

Q Is this the transcript for the underlying criminal case against Mr. Thompson that this lawsuit is currently about?

A Yes.

Q And what is the date on the transcript?

A April 9, 2014….

Q Does that accurately reflect the conversation that took place before the criminal court on the last day of the underlying criminal case against the plaintiff, Mr. Thompson?

A I don’t have an independent recollection to say. I don’t have any reason to doubt it and I don’t have any reason to believe that that’s more or less accurate than any other transcript….

Q And is there any information or anything that was that you recall being said at the last criminal court proceeding that’s not contained within this transcript?

A Not that I recall but, of course, if we’d been called to the bench to discuss it, or if there had been some discussion that was off the record that wouldn’t be in the transcript but I don’t remember anything like that….

Q So you have no specific recollection. Any other conversation for the court besides what’s contained in this transcript?

A Correct….

Q And [the transcript] states, you state, “The People have agreed to dismiss. It’s Mr. Scott’s case. We advanced it from.” I read that correctly; right?

A Yes.

Q And Ms. Tierney speaks next…. Was she an assistant district attorney?

A I believe so, but it doesn’t necessarily mean she’s the one assigned to the case. The way courts work in Brooklyn is that there is one district attorney assigned to a courtroom. So she’s handling all the cases in the courtroom. It would be very unlikely that it was her particular case….

Q I understand that, Ms. Lunn. But Ms. Tierney was there on behalf of the People of the State of New York as an assistant district attorney prosecuting the case on that day?

A Yes, correct.

Q Ms. Tierney states people are dismissing the case in the interest of justice?

A Correct….

Q And then the next thing is the court states the matter is dismissed; is that right?

A Correct.

Q There’s no other information here?

A Correct.

Q You don’t make any statements according to this transcript after Ms. Tierney said that the people are dismissing the case in the interest of justice; correct?

A Correct.

Q And you stated earlier that you actually previously made a motion before the court to have the case dismissed; right?

A Yes.

Q And that was orally denied; correct?

A Without prejudice.

Q But it was orally denied?

A Yes.

Q And there was no motion of yours granted in this criminal case; correct?

A Correct.

Q Is there anything in this transcript that affirmatively indicates that the case was being dismissed because there was an affirmative indication that the plaintiff was innocent of the charges he was charged of?

A Not in this transcript, no.

Q And it’s correct that the prosecutor made the decision to dismiss the case; right?

A Yes.

Id. at 212:11–216:18.

Defendants questioned her about the Certificate of Disposition formally dismissing charges against plaintiff.

Q First of all, … referring specifically to Plaintiff’s Exhibit 5, the certificate of disposition, you still have that document in front of you; correct?

A Yes.

Q It states that the case was dismissed on motion of the D.A.; is that right, if you refer your attention to the middle of the case under case “disposition information,” do you see that about halfway down the page?

A Yes, I see that….

Q [U]nder “court action” it states, “Dismissed — motion of D.A.” Correct?

A Correct.

Q And that’s actually what happened, right, the case was dismissed on the motion of the D.A.; right?

A Correct.

Q There’s nothing in this indicate that [states] the dismissal of the criminal charge affirmatively indicate that the plaintiff was innocent of charges?

A Correct.

Q There’s nothing in the criminal court transcript that indicates that the plaintiff[‘]s charges against him were dismissed because there was an affirmative indication that he was innocent of the charges; correct?

A Correct.

Q And it was you don’t know why the district attorney’s office moved to dismiss the case, did you?

A No.

Id. at 220:19–221:21.

In an exchange in the federal hearing, defense counsel Lunn testified that she spoke with an assistant district attorney prior to the April 9, 2014 hearing and was told that the case would be dismissed. She could not recall the specifics of this discussion. Id. at 222:2–10. But the fact that she did not have detailed notes on mitigating factors led her to believe that the discussion was purely about the legal deficiencies of the case. Id. at 222:11–21. She added that, based on her experience and the facts of the case, she did not think it was lawful to arrest the plaintiff for refusing to allow the police into his home. Id. at 223:16–25.

COURT: Well, Ms. Lunn, you state on the record, “The People have agreed to dismiss.” Does that suggest that you had a conversation with the prosecutor?

WITNESS: I did have a conversation with the prosecutor before that court date.

COURT: And what did you and the prosecutor say?

WITNESS: I honestly don’t remember. In looking at my notes from my conversations with Mr. Thompson, I don’t have a lot of notes on mitigating factors and sympathetic factors about his work history or his family history, so I don’t — but I’d be speculating as to exactly what I was saying. I can only say that if I had detailed notes, there’s some cases where I might have detailed notes about someone’s work history, their mental health issues, what’s going on in their lives. And so, those are things [that] I’m calling a prosecutor [with] and sharing with them in the hopes of getting a better disposition. The lack of those notes in the file makes me leads me to believe that the conversation was just about the fact that he was charged with obstructing governmental administration in his own home that there was a legal problem with the case….

COURT: But you had made an oral motion to dismiss [for facial insufficiency], had you not?

WITNESS: Yes.

COURT: And the court denied it?

WITNESS: Correct.

COURT: Asking you to put it in writing?

WITNESS: Correct.

COURT: Did you?

WITNESS: No.

COURT: Do you remember how you argued that motion? What you said?

WITNESS: May I look at the complaint? May I have a moment to refresh my recollection and look at the complaint? … In order for a complaint charging resisting arrest to be facially sufficient, there has to be an allegation that of the arrest was lawful, and in this complaint, the allegation is that the … the police officers instructed Mr. Thompson to allow them into his home and he refused to let them into their home. And in order to be placed under arrest, that was my understanding, and it does not seem to me … a lawful

arrest to arrest someone for not allowing the police into their home…. What I do remember about the case when [plaintiff’s attorney] called me was the idea that someone was arrested in their home for not letting the police into their home. And I think that’s what I would have brought to the court’s attention that very first time that I saw the complaint.

COURT: Anything you want to say that may help decide what the nature of the dismissal was? …

WITNESS: The nature of criminal court as it’s practiced in New York City is that there is an assigned attorney in each courtroom who just has a stack of files and handles stands up on every case and that’s in front of them and their files aren’t always detailed they’re just reading from whatever notes the actual assigned assistant district attorney assigned to particular cases has left for them.

COURT: That may not be the assistant speaking in court as indicated in the record before us.

WITNESS: Exactly. So the assistant speaking in court is not necessarily the person who has reviewed the case and made a decision about it. She is usually reading off of what’s call[ed] a status sheet, some sort of printout that her colleague has provided for her….

COURT: You say on Line 3 the People have agreed to dismiss Mr. Scott’s case and the attorney for the state says the People are dismissing the case. So she made the motion but it was not her case; is that correct?

WITNESS: Yes. I have in my notes that I spoke to assistant district attorney Terry Scott on April 3rd.

COURT: Does it show what you spoke to him about.

WITNESS: No. All I wrote is, “They’ll dismiss!” And then we agreed to advance the case to April 9th.

Id. at 221:24–225:21.

III. Law

A. Burden of Proof for Exigency

i. Exigent Circumstances Generally

“[A] principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.” Welsh , 466 U.S. at 748, 104 S.Ct. 2091. Warrantless searches inside a home are illegal, unless an exception to the warrant requirement exists.

One exception is the presence of exigent circumstances. “[T]he essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an urgent need to render aid or take action.” Loria v. Gorman , 306 F.3d 1271, 1284 (2d Cir. 2002) (citation omitted). “[P]olice officers may enter a dwelling without a warrant to render emergency aid to a person whom they reasonably believe to be in distress and in need of that assistance.” Tierney v. Davidson , 133 F.3d 189, 196 (2d Cir. 1998). They may do this if, based on the totality of the circumstances known to the investigating officers at the time of entry, it was “objectively reasonable” for them to do so. See id. ; Mincey v. Arizona , 437 U.S. 385, 393–94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (“[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” (citation omitted) ). ii. Other Circuit Precedent

In criminal cases, it is well-established that the police officers bear the burden of proving exigent circumstances. See, e.g. , Welsh , 466 U.S. at 749–750, 104 S.Ct. 2091 (“[E]xceptions to the warrant requirement are few in number and carefully delineated, and … the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.”); Kentucky v. King , 563 U.S. 452, 474, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (“[T]he police bear a heavy burden … when attempting to demonstrate an urgent need that might justify warrantless searches.”).

The law is less clear in a civil action under 42 U.S.C. § 1983. There is a split among the circuit courts over which party has the burden of proof in civil cases.

The United States Court of Appeals for the Third, Sixth, Ninth, and Tenth Circuits have assigned the burden of proof on the government. See Parkhurst v. Trapp , 77 F.3d 707, 711 (3d Cir. 1996) ; Hardesty v. Hamburg Township , 461 F.3d 646, 655 (6th Cir. 2006) abrogated on other grounds by Morgan v. Fairfield Cty., Ohio , 903 F.3d 553 (6th Cir. 2018) ; Hopkins v. Bonvicino , 573 F.3d 752, 764 (9th Cir. 2009) ; Armijo ex rel. Armijo Sanchez v. Peterson , 601 F.3d 1065, 1070 (10th Cir. 2010). These courts generally rely on criminal cases for support. See, e.g. , Armijo ex rel. Armijo Sanchez v. Peterson , 601 F.3d at 1070 (citing United States v. Reeves , 524 F.3d 1161, 1169 (10th Cir. 2008) (reversing district court’s denial of criminal defendant’s motion to suppress evidence obtained in violation of the Fourth Amendment) ).

By contrast, the United States Court of Appeals for the Seventh and Eighth Circuits have placed the burden of proof on the plaintiff. Bogan v. City of Chicago , 644 F.3d 563, 568 (7th Cir. 2011) ; Der v. Connolly , 666 F.3d 1120, 1128 (8th Cir. 2012). They base their conclusion largely on what they describe as the “established principles governing civil trials,” refusing to adopt the criminal governmental burden in civil actions. E.g. , Bogan v. City of Chicago , 644 F.3d at 570 (“[E]mploying a criminal burden of proof is contrary to established principles governing civil trials, namely, that the ultimate risk of nonpersuasion must remain squarely on the plaintiff.” (citations omitted) ); cf. Crowder v. Sinyard , 884 F.2d 804, 824 (5th Cir. 1989) (“Applying the long-standing rule that the plaintiff bears the burden of proving each essential element of a claim, we agree that the court erred in placing upon the defendants the burden of proof” with respect to the plain view exception to the warrant requirement.).

iii. Second Circuit Precedent

The leading case in the United States Court of Appeals for the Second Circuit on this issue appears to be Ruggiero v. Krzeminski , 928 F.2d 558 (2d Cir. 1991). It indicates that the court shares the apparent view of the Seventh and Eighth circuits.

In Ruggiero , plaintiffs brought § 1983 claims for an unlawful search alleging that defendant police officers’ warrantless search of their home was not excused by one of the exceptions to the warrant requirement, such as consent. Id. at 560.

A question on appeal was whether the trial judge erred by failing to instruct the jury that the burden of proving an exception to the Fourth Amendment warrant requirement rested on the defendants. Id. at 562. The court expressly rejected the argument that once a plaintiff established that the search was not authorized by a warrant, the burden shifted to the defendant to prove that the search was justified by a specific exception. See id. at 563. It explained:

It is true that searches and seizures conducted without warrants are presumptively unreasonable . The operation of this presumption, contrary to the Ruggieros’ contention, cannot serve to place on the defendant the burden of proving that the official action was reasonable. Rather, the presumption may cast upon the defendant the duty of producing evidence of consent or search incident to an arrest or other exceptions to the warrant requirement. However, the ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials. See Fed.R.Evid. 301. We see no reason to depart from the usual allocation of burdens in a civil trial.

Id. (emphasis added) (citations omitted).

The Court of Appeals for the Second Circuit has not overruled Ruggiero . See Tirreno v. Mott , 375 F. App’x 140, 142 (2d Cir. 2010) (providing a summary of Second Circuit precedent post- Ruggiero ). It continues to cite it approvingly in cases involving the exigent circumstances exception. See, e.g. , Harris v. O’Hare , 770 F.3d 224, 234 n.3 (2d Cir. 2014), as amended (Nov. 24, 2014) (“Of course, as in all civil cases, ‘the ultimate risk of non-persuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials.’ ” (citing Ruggiero , 928 F.2d at 563 ) ); Tierney v. Davidson , 133 F.3d at 196 (“A[n] … important distinction is that the burden in the state [criminal] action was on the state to prove that an exception to the warrant requirement applied, whereas [in civil cases] the burden is on [the plaintiff] to establish that the search was unlawful.” (citing Ruggiero , 928 F.2d at 563 ) ); cf. Jackson v. City of New York , 29 F.Supp.3d 161, 176 n.20 (E.D.N.Y. 2014) (stating that the presumption that warrantless searches are unreasonable “does not shift the burden of persuasion to defendants” (citing Ruggiero , 928 F.2d at 563 ) ).

Yet, some uncertainty apparently remains regarding the scope and propriety of the Second Circuit’s policy. Post- Ruggiero , the court has, on occasion, adopted the criminal burden of proof in civil cases involving exceptions to the warrant requirement. In Anobile v. Pelligrino , 303 F.3d 107 (2d Cir. 2002), a § 1983 action challenging the lawfulness of a warrantless search, the court neither distinguished nor cited Ruggiero for its assertion that “[t]he official claiming that a search was consensual has the burden of demonstrating that the consent was given freely and voluntarily.” Id. 124 (citation omitted). Similarly, in Loria v. Gorman , 306 F.3d 1271 (2d Cir. 2002), a § 1983 case alleging unlawful entry, the court failed to cite Ruggiero , instead relying on Welsh v. Wisconsin , for its conclusion “that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Id. at 1284–85 (citation omitted). Some district courts in this circuit have placed the burden of persuasion on the police. See, e.g. , Webster v. City of New York , 333 F.Supp.2d 184, 194 (S.D.N.Y. 2004) (“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” (citation omitted) ); Palmieri v. Kammerer , 690 F.Supp.2d 34, 44-45 (D Conn 2010) (“The police officer, however, bear[s] a heavy burden when attempting to demonstrate an urgent need.” (alteration in original) (citation omitted) ).

iv. Burden Shifting

Ruggiero recognizes that warrantless searches create a presumption of unreasonableness that “may cast upon the defendant the burden of produc[tion].” Id. at 563. But it maintains “established principles governing civil trials” require that the burden of persuasion remains with the plaintiff. Id. ; cf. Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 255–56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (finding that, in employment discrimination cases, while defendant carries the burden of production to rebut plaintiff’s prima facie case of discrimination, plaintiff retains the burden of persuasion); United States v. $ 557,933.89, More or Less, in U.S. Funds , 287 F.3d 66, 76 n.5 (2d Cir. 2002) (noting how the Civil Asset Forfeiture Reform Act of 2000 overhauled civil forfeiture procedure by placing the burden of proving, by a preponderance of the evidence, the right to forfeiture on the government, who acts as the plaintiff).

The Second Circuit relies on the presumption definition, Federal Rule of Evidence 301, for the proposition that the burden of persuasion on exigency does not shift to the police. Ruggiero , 928 F.2d at 563. This is what Rule 301 states (emphasis added):

In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally .

It is not necessary, however, to use “presumptions” at all, rather than a plain unvarnished “burden of proof” analysis.

The present rule placing pleading and proof burdens on plaintiffs in civil cases is not absolute. For example, the Second Circuit has held in false arrest cases that when an arrest is made without a warrant, the defendant bears the burden of proving probable cause as an affirmative defense. See, e.g. , Mitchell v. City of New York , 841 F.3d 72, 77 (2d Cir. 2016) ; Raysor v. Port Auth. of New York & New Jersey , 768 F.2d 34, 40 (2d Cir. 1985) (“[A] deprivation of liberty without ‘reasonable cause’ is a section 1983 violation as to which the defendant bears the burden of proving reasonableness ….” (citations omitted) ); Dickerson v. Napolitano , 604 F.3d 732, 751 (2d Cir. 2010). The Second Circuit has also held that, in customs forfeiture actions under 19 U.S.C.A. § 1595a, once the government demonstrates probable cause that the merchandise was used in illegal activities, the burden of persuasion then shifts to the claimant to show, by a preponderance of the evidence, that the merchandise is not subject to forfeiture. See United States v. Davis , 648 F.3d 84, 96 (2d Cir. 2011) ; 19 U.S.C. § 1615.

v. Burden of Proof Problem

The Court of Appeals—like most courts—relies upon the often-confusing concept of presumptions in its analysis. See Ruggiero v. Krzeminski , 928 F.2d at 563. Instead, it should, it is respectfully suggested, rely on a clean and clear burden of proof analysis eliminating any reference to presumptions.

The issue before the court can best be summed up as a simple burden of proof problem. The burden is on the police to supply a warrant or some other rationale for entry into a person’s home, such as “exigent circumstances” or “consent” or “hot pursuit.” See Weinstein’s Federal Evidence § 301App.01[4] at 301 App.–11 (2d ed. 2009) (“The considerations that determine which party shall bear responsibility for a particular aspect of the case are policy, fairness, and probability…. As a matter of policy, imposing the burden on plaintiff serves to handicap recovery in [certain] cases. Fairness suggests access to evidence, ease of proof, and perhaps general considerations of credibility.”). This is not a problem of presumptions—a foggy term that should be avoided for it can be confusing to judges and juries. See Fed. R. Evid. 301 advisory committee’s note to 1974 Enactment (explaining courts’ duties when instructing parties on presumptions). The federal rule on presumptions—stating that presumptions should not shift burdens—was ultimately written after much dispute. See Daniel J. Capra, Advisory Committee Notes to the Federal Rules of Evidence That May Require Clarification 4 (Federal Judicial Center, 1998) (“[ Rule 301 ] is the culmination of a battle between two conflicting views on the effect a presumption should have…. The practical difference is in the quality and quantity of evidence required to overcome the presumption.”).

By using the term “presumption” rather than “burden of proof”—which a jury can easily understand since a burden of proof definition is specifically, and clearly, written in the charge—the Court of Appeals has weakened the legal protections of the Fourth Amendment. It has confused this issue, ignoring the fundamental importance of a person’s constitutionally protected right to be free from unreasonable searches and seizures inside his or her home.

Rigid, mechanical approaches should not be adopted when assigning burdens in unlawful entry cases. In support of an argument for protecting high standards to prove exigent circumstances, one author cites to Justice Bradley in Boyd v. United States , 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886) :

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Adrienne Lewis, Comment, The Fourth Amendment – The Burden of Proof for Exigent Circumstances in a Warrantless Search Civil Action , 65 SMU L. Rev. 221, 226–27 (2012). “The literal construction of burdens of proof in civil cases,” she concludes, “is exactly the type of silent approach that leads to the ‘gradual depreciation of the right’ that Justice Bradley speaks of.” Id. at 227.

“Allocating burdens of persuasion involves distinct substantive policies favoring one class of litigant over another.” Jack B. Weinstein, Norman Abrams, Scott Brewer & Daniel S. Medwed, Evidence Cases and Materials 1351 (10th ed. 2017). The Second Circuit Court of Appeals has chosen to shift the odds towards the defendants, in effect, diminishing a plaintiff’s ability to enforce his or her constitutionally protected rights as a householder. This appellate decision subverts the express will of the United States Constitution, which explicitly favors the rights of the house-dweller over that of police officers. The burden should be on governmental officials seeking to enter a home without a warrant. See, e.g. , Payton v. New York , 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“[A] greater burden is placed … on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.” (citation omitted) ). B. Termination in Favor of the Accused

As part of a § 1983 malicious prosecution claim, a plaintiff must prove his state criminal proceeding was terminated in his favor. See Murphy v. Lynn , 118 F.3d 938, 947 (2d Cir. 1997). “In general, the question of whether a termination was favorable to the accused is a matter of law for the court, but where questions remain as to the reason for the termination, this becomes an issue of fact for the jury.” Rodriguez v. City of New York , 291 F.Supp.3d 396, 413–14 (S.D.N.Y. 2018). “A dismissal out of mercy is not a favorable termination because mercy presupposes the guilt of the accused.” Arum v. Miller , 273 F.Supp.2d 229, 234-35 (E.D.N.Y. 2003) (citation omitted).

“[A] plaintiff asserting a malicious prosecution claim under § 1983 must … show that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence.” Lanning v. City of Glens Falls , 908 F.3d 19, 22 (2d Cir. 2018) ; see also Thompson v. City of New York , No. 17CV3064(DLC), 2019 WL 162662, at *3 (S.D.N.Y. Jan. 10, 2019) (holding that plaintiff cannot show his criminal case was favorably terminated because his dismissal on speedy trial grounds does not affirmatively indicate his innocence). “[W]here a dismissal in the interest of justice leaves the question of guilt or innocence unanswered, … it cannot provide the favorable termination required as the basis for [that] claim.” Lanning , 908 F.3d at 28–29 (citation omitted); see also Hygh v. Jacobs , 961 F.2d 359, 368 (2d Cir. 1992) (“A dismissal in the interest of justice is neither an acquittal of the charges nor a determination of the merits,” thus leaving open the question of innocence or guilt. (citation omitted) ).

IV. Application of Law

A. Exigency Burden

The Second Circuit’s reasoning in Ruggiero is arguably broad enough to place the burden of proving all exceptions to the warrant requirement, including exigency, on the plaintiff. But subsequent cases seem to go in the other direction, placing the burden of proving exigent circumstances in § 1983 actions on the government. And its apparent suggestion that the burden of persuasion never shifts to the defendant in civil trials is belied by other Second Circuit precedent.

Although the law in this circuit remains unclear, it appears that the current rule is that the plaintiff bears the burden of proof for exigent circumstances. This seems wrong as policy: the burden of proving an urgent need so compelling that it justifies a warrantless entry should generally rest with the government. Unlike consent, the facts that establish exigent circumstances are uniquely within the knowledge of the police officers. Whether there was a need to render emergency aid so compelling requiring immediate action is wholly dependent upon the facts often known only to the police officer at the time of the warrantless entry. The evidence available at the time to the householder is irrelevant. As is rightfully understood in the criminal context, police officers should bear a heavy burden when overcoming a person’s fundamental right to be secure in the home from unreasonable searches and seizures. There is no sound basis in law for this principle not to extend to civil matters.

This is a simple problem of allocating the burden of proof. Since the Fourth Amendment has already chosen to favor a person’s right inside his own dwelling over that of the police officer’s right of entry, courts should do the same by placing the burden on police officers to prove that exigency justified their warrantless entry. See Lewis, supra , at 227 (“The [court’s] holding is inconsistent with the Supreme Court’s motivation to limit the situations where exigent circumstances make warrantless searches reasonable because it could lead to a situation where a plaintiff alleging violation of his civil rights is left without the ability to … defend those civil rights. The spirit of the Fourth Amendment is to give protective rights to citizens.”); cf. See Capra, supra , at 4 (“The Advisory Committee reasoned that presumptions are based on a combination of probability and fairness. If that combination of factors is strong enough to warrant a presumption, it should also be strong enough to shift the risk of nonpersuasion to the party against whom the presumption operates.”)

B. Favorable Termination

Plaintiff failed to satisfy the favorable termination element of his § 1983 malicious prosecution claim as a matter of current Second Circuit law. Based on the facts and law of this unusual case, where there was substantial evidence that the officers’ warrantless entry was lawful and the plaintiff pushed, or at minimum physically interfered with, a governmental official, plaintiff cannot establish that his obstruction charge was dismissed in a manner affirmatively indicative of his innocence. See Lanning v. City of Glens Falls , 908 F.3d at 25 (2d Cir. 2018) (“[F]ederal law defines the elements of a § 1983 malicious prosecution claim … [and] requir[es] affirmative indications of innocence to establish ‘favorable termination’ ….”).

The federal court’s ruling against defendant should not be based on the District Attorney moving to dismiss the criminal charges “in the interest of justice” at the April 9, 2014 hearing. Such a broad ruling risks eviscerating malicious prosecution claims altogether. It would give prosecutors almost unlimited power to bar such claims, regardless of the strength or weakness of the underlying accusations. They could insulate police officers and district attorneys simply by repeating the phrase “in the interest of justice” in all cases they sought to discontinue for any reason. More must be required to qualify as an interest of justice dismissal that could, in effect, foreclose future claims for malicious prosecution. See Burke v. Town of E. Hampton , No. 99-CV-5798, 2001 WL 624821, at *12 (E.D.N.Y. Mar. 16, 2001) (“In this Circuit, it is well established, as a matter of law, that ‘[a dismissal in the interests of justice] cannot provide the favorable termination required as the basis for a claim of malicious prosecution.’ ” (alteration in original) (citation omitted) ).

In the present case, evidence was presented suggesting plaintiff’s innocence. His case was sealed pursuant to CPL § 160.50, a provision for criminal prosecutions terminated in favor of the accused. He testified that he was offered an Adjournment in Contemplation of Dismissal at his second court date and told that if he accepted this offer, and stayed out of trouble, it would all “go away.” Trial Tr. 644:5–16, Jan. 25, 2019; but see Stampf v. Long Island R.R. Auth. , No. 07-CV-3349 SMG, 2011 WL 3235704, at *3 (E.D.N.Y. July 28, 2011) (“[A]n adjournment in contemplation of dismissal is defined as a favorable termination pursuant to Section 160.50(3)(b), yet well-settled case law establishes that it is not a favorable termination for purposes of a malicious prosecution claim.” (citation omitted) ) aff’d in part, vacated in part sub nom. Stampf v. Long Island R. Co. , 761 F.3d 192 (2d Cir. 2014).

When his case was dismissed on motion of the Brooklyn District Attorney at the April 9, 2014 hearing, the prosecutor merely stated that the dismissal was “in the interest of justice.” Def. Ex. B. There was no formal entry of an “interest of justice” dismissal pursuant to CPL § 170.40 (the State statute governing interest of justice dismissals). The court did not give its reasons on the record for a dismissal in the interest of justice, as required under State law. See New York Crim. Proc. L. § 170.40. There is little, if any, evidence that sympathy for the accused was a factor in the dismissal.

Plaintiff’s defense attorney, Renate Lunn, testified credibly about her recollections of plaintiff’s case. She said she never filed a motion for dismissal in the interest of justice. Trial Tr. 207:23–25, Jan. 24, 2019. She recalled making an oral motion to dismiss without prejudice for facial insufficiency, which was denied by the judge. Id. at 210:6–22; see Russell v. Journal News , 672 F. App’x 76, 78-79 (2d Cir. 2016) (finding that a dismissal without prejudice based on facial insufficiency does not constitute a favorable termination because it is not a decision on the merits).

Defense counsel Lunn did not remember why the District Attorney moved to dismiss the case. She testified that, based on her experience, it would have been unlawful to prosecute Thompson for “not allowing the police into [his] home.” Trial Tr. 223:16–25, Jan. 24, 2019. She recalled speaking to an assistant district attorney prior to the April 9, 2014 hearing and being told that the charges would be dismissed. Id. at 225:15–21. She observed that her notes did not contain any mention of mitigating circumstances, which she typically would have written down if she were seeking to persuade a prosecutor to dismiss a case out of mercy. Id. at 222:5–16. This indicates to her that the conversation with the assistant district attorney only concerned the legal shortcomings of the criminal case against Thompson. Id. at 222:17–21.

Left open is the question of how much evidence must be supplied by a plaintiff to show that the dismissal was essentially for innocence. Courts addressing this question should not forget that, in our criminal justice system, the accused are deemed innocent until proven guilty beyond a reasonable doubt. See Coffin v. United States , 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). The assumption of innocence remains with a defendant throughout a case and is not overcome until either a plea is taken or a guilty verdict is returned. Thus, any ambiguity on whether the dismissal was on the merits should be decided in defendant’s favor.

V. Conclusion

A. Exigent Circumstances Burden

The general rule in civil cases—predicated on sound constitutional policy—should place the burden on police officers to prove, by a preponderance of the evidence, exigent circumstances justifying a warrantless entry. Placing the burden of persuasion on the civilian plaintiff is a repeated injustice that should stop now.

B. Malicious Prosecution

Plaintiff’s malicious prosecution claim should be treated as if it was on the merits—i.e., the defendant was not guilty. An ambiguous state dismissal should be accepted as being based on non-guilt, in part because of the assumption of innocence before conviction.

SO ORDERED.

sited https://casetext.com/case/thompson-v-clark-21

or download the PDF from our site Here or
if you want to read the and download the PDF directly from the US SUPREME COURT https://www.supremecourt.gov/opinions/21pdf/20-659_3ea4.pdf

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Overcoming Qualified Immunity in Civil Rights Claims

The Truth News — Fri, 22 Apr 2022 11:57:58 +0000

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:

their constitutional rights were violated, and
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:

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,
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
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:

Scheuer v. Rhodes, 416 U.S. 232 (1974).
Wood v. Strickland, 420 U.S. 308 (1975).
Procunier v. Navarette, 434 U.S. 555 (1978).
Pierson v. Ray, 386 U.S. 547 (1967).
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Mitchell v. Forsyth, 472 U.S.C. 511 (1985) (“an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial”); Fry v. Melaragno, 939 F.2d 832 (9th Circuit Court of Appeals 1991).
Josh Gerstein, Supreme Court turns down cases on ‘qualified immunity’ for police, Politico (June 15, 2020)(though Justice Sonia Sotomayor and Justice Clarence Thomas indicated that the doctrine warrants review); Jamie Ehrlich, Democrats team for effort to end doctrine shielding police as GOP backs off, CNN (July 1, 2020)(“Similar legislation was introduced in the House in June by Reps. Ayanna Pressley, a Massachusetts Democrat, and Justin Amash, a Michigan Libertarian, finding support from 60 members of Congress on all sides of the aisle…Some Republicans have said they are willing to look at revision rather than elimination.”); see also the Institute for Justice regarding qualified immunity jurisprudence.
Camreta v. Greene, 131 S.Ct. 2020 (2011); see also Callahan v. Millard Cty, 494 F.3d 891 (Tenth Circuit 2007); Haugen v. Brousseau, 339 F.3d 857 (Ninth Circuit 2003).
See e.g., Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); see also Zadeh v. Robinson, 928 F.3d 457 (Fifth Circuit 2019).
Hope v. Pelzer, 536 U.S. 730 (2002). See also See also Rivas-Villegas v. Cortesluna (2021) 142 S. Ct. 4.
See U.S. v. Lanier, 520 U.S. 259 (1997); see also Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1983 and the common law good-faith defense.
Davis v. Scherer, 468 United States Supreme Court 183 (1984).
Compare Brosseau v. Haugen, 543 U.S. 194 (2004) (rights are only “clearly established” if there is a court case recognizing them in a scenario similar to the victim’s) and Hope v. Pelzer, Supra (court cases involving fundamentally similar cases are not necessary).
Hope v. Pelzer, Supra.
Anderson v. Creighton, 483 U.S. Supreme Court 635 (1987); also see Malley v. Briggs, 457 U.S. 335 (1986).
Monell v. Department of Social Services, 436 U.S. 658 (1978).
See Owen v. City of Independence, 445 U.S. 622 (1980); also see case law Saucier v. Katz, 533 U.S. 194 (2001), a prior case to Pearson v. Callahan, 555 U.S. 223 (2009).
California Penal Code 847.
California Penal Code 847.
California Civil Jury Instructions 1401-1402.
See Senate Bill 2 (approved by Governor September 30, 2021).
See same.

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

The Truth News — Sun, 03 Apr 2022 22:12:56 +0000

How to Bring a Civil Rights Claim

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

monetary damages or
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

A Section 1983 lawsuit is a civil rights lawsuit that can be filed by someone whose civil rights have been violated.

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.

Legal References:

See e.g., Gonzaga University v. Doe, (2002) 536 U.S. 273; see 42 USC 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a stat. of the District of Columbia.
Bryan v. MacPherson, (9th Cir. 2010) 630 F.3d 805. See also Rivas-Villegas v. Cortesluna (2021) 142 S. Ct. 4.
San Jose Charter of the Hell’s Angels Motorcycle Club v. City of San Jose, (9th Cir. Court of Appeals, 2005) 402 F.3d 963.
U.S. v. Lanier, (1997) 520 U.S. 259.
Maine v. Thiboutot, (1980) 448 U.S. 1, 100 S. Ct. 2502.
Cortez v. County of Los Angeles, (9th Cir. 2002) 294 F.3d 1186.
Maine v. Thiboutot, Supra. In addition, see Estate of Fritz ex rel. Fritz v. Hennigar, (8th Cir., 2021) 2021 U.S. App. LEXIS 36124; Garrett v. Murphy, (3d Cir., 2021) U.S. App. LEXIS 32385. Savarese v. City of New York, (S.D.N.Y., 2021) U.S. Dist. LEXIS 124390. Gray v. White, (5th Cir., 2021) U.S. App. LEXIS 34119.
Bryan v. MacPherson, Supra.
Cortez v. County of Los Angeles, Supra.
Maine v. Thiboutot, Supra.
Screws v. United States, (1945) 325 U.S. 91; West v. Atkins, (1988) 487 U.S. 42, 49.
Home Telephone & Telegraph Co. v. Los Angeles, (1913) 227 U.S. 278.
See Monroe v. Pape, (1961) 365 U.S. 167.
Polk County v. Dodson, (1981) 454 U.S. 312.
Dennis v. Sparks, (1980) 449 U.S. 24.
Wheeldin v. Wheeler, (1963) 373 U.S. 647.
Tongol v. Usery, (9th Cir. 1979) 601 F.2d 1091.
Dennis v. Sparks, Supra; Bivens claims (a.k.a. Bivens action) under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1971) 403 U.S. 388; see also Roberts v. City of Fairbanks, (9th Cir. 2020) 947 F.3d 1191.
Monell v. Department of Social Services of the City of New York, (1978) 436 U.S. 658 (re. municipal liability.)
The Eleventh Amendment prevents states from being sued in federal court. Will v. Michigan Dep’t of State Police 491 U.S. 58 (1989) decided that states are not considered a “person” that can be sued under Section 1983, blocking lawsuits in state court.
Maine v. Thiboutot, Supra.
Will v. Michigan Department of State Police, Supra.
City of Newport v. Fact Concerts, (1981) 453 U.S. 247.
Imbler v. Pachtman, (U.S. Supreme Court, 1976) 424 U.S. 409; 42 U.S. Code § 1983 (“In any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”).
Stump v. Sparkman, (1978) 435 U.S. 349.
Tenney v. Brandhove, (1951) 341 U.S. 367.
Harlow v. Fitzgerald, (1982) 457 U.S. 800.
Owen v. City of Independence, (1980) 445 U.S. 622.
Owens v. Okure, (1989) 488 U.S. 235.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics
Thompson v. Clark, 364 F. Supp. 3d 178
Spencer v. Peters – Police Fabrication of Evidence
Hemphill v. New York – 6th Amendment
Sullivan v. County of Los Angeles – 12 Cal.3d 710
Silva vs Langford 2022 – No 821.6 Immunity FAIL

https://www.shouselaw.com/ca/civil-rights/1983-lawsuits/

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

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

To Learn More…. Read MORE Below and click the links

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have theClear and Present Danger Test – 1st Amendment

We also have theGravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene….

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

We also have theBrayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have thePublius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – 1st Amendment

We also have the Introducing TEXT & EMAILDigital Evidencein California Courts – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE 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 theFederal Perjury – Definition by Law

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

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

We also have thePenal Code 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

We also have the Penal Code 115 PC – Filing a False Document in California

Know Your Rights Click Here (must read!)

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

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

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

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

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

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

New Supreme Court Ruling – makes it easier to sue police

RELATIONSHIPWITH YOURCHILDREN& YOURCONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment thisCODE PROTECTS all US CITIZENS

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment thisCODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment thisCODE PROTECTS all US CITIZENS

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relatingfor PARENTS RIGHTS Help!

Contesting / Appeal an Order / Judgment / Charge

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Epic Criminal / Civil Rights SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Rights Help – Click Here

Suing for Misconduct – Know More of Your Rights

The Truth News — Wed, 01 Dec 2021 00:25:39 +0000

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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:

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.
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.
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”).
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:

Proceeding on which malicious prosecution action may be based, generally, Romualdo P. Eclavea, J.D.; John A. Gebauer, J.D.; Alys Masek, J.D.; Kimberly C. Simmons, J.D.; Susan L. Thomas, J.D.; and Mary Ellen West, J.D. See also Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881; see also Zamos v. Stroud (2004) 32 Cal.4th 958, 970.
Judicial Council of California Civil Jury Instructions, CACI No. 1501. Wrongful Use of Civil Proceedings.
Same as 2.
Environmental Law Foundation v. Beech-Nut Nutrition Corp., 1st Dist. Ct. App., 235 Cal.App.4th 307 (“Preponderance of the evidence means ‘ “that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed.”)
Supra. See also Tri-Union, (2009, Court of Appeal) 171 Cal.App.4th 1549 at p. 1567.
Singleton v. Perry, 45 Cal. 2d 489 (California Supreme Court, 1955); Twyford v. Twyford, 63 Cal. App. 3d 916 (3d Dist. 1976).
Nunez v. Pennisi (2015) 241 Cal.App.4th 861 (“Liability for malicious prosecution is not limited to one who initiates an action. A person who did not ﬁle a complaint may be liable for malicious prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later time.’ ”
See California’s Anti-SLAPP statute (California Code of Civil Procedure 425.16).
See CCP 340.6; CCP 335.1.

source

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

Some individuals seek power to have control over others, while others want to have more influence over their own lives.
Individuals may seek power over others due to fear or mistrust, which can motivate choosing coercive and antisocial strategies to control them.
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 perjury look 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:

Suing for police misconduct (reasons for Tort)
Suing for prosectional misconduct (reasons for Tort)
Suing for Violation your US Constitutional Rights (reasons for Tort)
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?

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

DOJ on 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.

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

Malicious Prosecution and False Arrest as a Civil-Rights Violation

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.

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

California Civil Code Section 52.1

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

DOJ on 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.

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

Malicious Prosecution and False Arrest as a Civil-Rights Violation

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

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/

https://goodshepherdmedia.net/wp-content/uploads/2022/09/cait-final.mp4

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS **INFO BULLETIN Click Here Officers and DA’s for (Procedure to Follow)**

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF files taken from

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE 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 Penal Code 134 PC – Preparing False Evidence

We also have the Penal Code 118.1 PC – PoliceOfficer$ Filing False Report$

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

We also have the Penal Code 148.5 PC – Making a FalsePoliceReport in California

We also have the Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court SanctionClick Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Know Your RightsClick Here (must read!)

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

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

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

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

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

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

GRANDPARENT CASE LAW

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

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

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

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

Parent’s Rights & Children’s Bill of Rights

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn moreHERE

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

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment

Retrieving Evidence / Internal Investigation Case

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports, and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery RequestsOCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization FormRelease of Case Information – Click Here

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIAClick Here

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutorial Misconduct

Judicial & Prosecutorial Conduct

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

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

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

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

Suing the Government Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

Malicious Prosecution / Prosecutorial Misconduct

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

DOJ on Prosecutorial Misconduct

Malicious Prosecution

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

Malicious Prosecution and False Arrest as a Civil-Rights Violation

Tort Claims Form File Government Claim for Eligible Compensation

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

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

California Civil Code Section 52.1

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

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

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

Thomp$on v. Clark – Maliciou$ Pro$ecution

The Evil / Incompetent Prosecutor performing meritle$$ ca$e$ against his fiduciary duty

§ 42 U.S.C. 1983 for malicious prosecution

Thompson v. Clark United States Supreme Court April 4, 2022 JSH Attorneys: Justin Ackerman and Ashley Caballero-Daltrey

U.S. Supreme Court Rules That Favorable Termination of Charges For 4th & 14th Amendment Malicious Prosecution Claim Need Not Show Affirmative Indication of Innocence

Facts of the case

Learn more about these sujects

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Thompson v. Clark – 4th and 14th Amendment

Thompson v. Clark, 364 F. Supp. 3d 178

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

MEMORANDUM AND ORDER

Table of Contents

I. Introduction

II. Background

A. Warrantless Entry

B. Dismissal of Plaintiff’s Criminal Charges

i. State Criminal Prosecution

ii. Criminal Court Appearances

iii. Evidentiary Hearing

III. Law

A. Burden of Proof for Exigency

i. Exigent Circumstances Generally

iii. Second Circuit Precedent

iv. Burden Shifting

v. Burden of Proof Problem

IV. Application of Law

A. Exigency Burden

B. Favorable Termination

V. Conclusion

A. Exigent Circumstances Burden

B. Malicious Prosecution

Overcoming Qualified Immunity in Civil Rights Claims

Overcoming Qualified Immunity in Civil Rights Claims

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

2. What is a constitutional right?

3. When is a constitutional right clearly established?

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

5. What is the law in California?

Legal References:

A NICE MANUAL EXPLAINING DIFFERENT IMMUNITIES with DIFFERENT GOVERNEMTN STATE_IMMUNITY_TORT_CAPS_NOV_2017

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

How to Bring a Civil Rights Claim

1. What is a Section 1983 lawsuit?

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

3. Who can I sue under Section 1983?

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

5. What damages can I obtain?

6. Is there a statute of limitations?

Legal References:

Tort Claims File Government Claim for Eligible Compensation

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

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

Thompson v. Clark
United States Supreme Court
April 4, 2022
JSH Attorneys: Justin Ackerman and Ashley Caballero-Daltrey

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