Malicious Prosecution / Prosecutorial Misconduct

Avoid being Victims of the Justice Systems by shady prosecutors

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

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

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

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

Pro$ecutor‘$ Duty to the citizen

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

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

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

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

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

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

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

California Civil Code Section 52.1

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

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

Prosecutorial Misconduct

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

DOJ on Prosecutorial Misconduct

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

Malicious Prosecution

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

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

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

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

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

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

Malicious Prosecution and False Arrest as a Civil-Rights Violation

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

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

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

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

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

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

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

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

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

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

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

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

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

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

read below:

California Constitution Article VI – Judicial Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.

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

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

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

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

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

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

A Brief History of the California Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

——————-

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

source

learn more about TORT here:

What is a Tort?

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

WRITS and WRIT Types in the United States

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

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

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

When The Prosecution Drops Charges

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

Functions and Duties of the Prosecutor – Prosecution Conduct

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

What is Abuse of Process? When the Government Fails Us

Prosecutorial Investigations

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

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Police BodyCam Footage Release – California

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

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Lawyers’ Obligation of Candor to Opposing Parties and Third Parties

Seal & Destroy a Criminal Record

Oath and Obligation’s of Attorney – California Lawyers

Epic SCOTUS Decisions

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

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

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

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

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

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

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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

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

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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

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

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

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

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

Deprivation of Rights – Under Color of the Law

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

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

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

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

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

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

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

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

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

Joinder In Family Law Cases – CRC Rule 5.24

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

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

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

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

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

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

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

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

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

OR ANY OTHER GOVERNMENT OFFICIALS

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

read more about this subject:

Police Misconduct in California – How to Bring a Lawsuit

Tort Claims File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

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

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

Helpful articles involving Torts

How to File a complaint of Police or Government Misconduct?

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

Section 1983 Lawsuit   How to Bring a Civil Rights Claim

Offsite Help 

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

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

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

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

How to Contact Your Elected local State Official Representatives 

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

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

If you would like to learn more about Chapter 289 – Peace Officers and Other Law Enforcement Personnel which is their guidelines to give you a broader understanding of their side chapter-289-peace-officers-and-other-law-enforcement-personnel/

Commonly-Requested Claims Forms

Find a Lawyer and Affordable FCTA EQUIPED Legal Aid

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

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

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

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

Here is the DOJ Police Misconduct

ADDRESSING POLICE MISCONDUCT LAWS ENFORCED BY THE DEPARTMENT OF JUSTICE

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

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

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

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

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

FEDERAL CRIMINAL ENFORCEMENT

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

FEDERAL CIVIL ENFORCEMENT

“Police Misconduct Provision”

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

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

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

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

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

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

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

HOW TO FILE A COMPLAINT WITH DOJ

Criminal Enforcement of Police Illegal Conduct

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

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

Civil Enforcement

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

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

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

Reproduction of this document is encouraged.

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

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

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

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

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

§1346. United States as defendant

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

LAW ENFORCEMENT MISCONDUCT

Investigations and Prosecutions

About the Law Enforcement Misconduct Statute

Physical Assault

Sexual Misconduct

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

Failure to Intervene

INVESTIGATIONS AND PROSECUTIONS

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

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

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

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

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

ABOUT THE LAW ENFORCEMENT MISCONDUCT STATUTE

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

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

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

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

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

Physical Assault

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

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

Sexual Misconduct

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

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

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

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

Failure to Intervene

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

Looking for all your federally protected civil rights statutes?

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

read more about this subject:

Police Misconduct in California – How to Bring a Lawsuit

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

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

We also have the Federal Perjury Definition by Law

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

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

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

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

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

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

Know Your Rights Click Here

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

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

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

Suing for Misconduct – Know More of Your Rights

Police Misconduct in California – How to Bring a Lawsuit

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

New Supreme Court Ruling makes it easier to sue police

CACI No. 1501. Wrongful Use of Civil Proceedings

Suing the Police – Sullivan v. County of Los Angeles , 12 Cal.3d 710

[L.A. No. 30251. Supreme Court of California. November 4, 1974.]

JACK SULLIVAN, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent

In Bank. (Opinion by Tobriner, J., with Wright, C. J., Mosk and Sullivan, JJ., concurring. Separate dissenting opinion by Burke, J., with McComb and Clark, JJ., concurring.) [12 Cal.3d 711]

COUNSEL

Hugh R. Manes for Plaintiff and Appellant.

John H. Larson, County Counsel, Philip H. Hickok, Peter R. Krichman and Thomas H. Warden, Deputy County Counsel, for Defendant and Respondent.

OPINION

TOBRINER, J.

This case presents the question whether an individual who is confined in a county jail beyond his proper jail term may maintain an action for false imprisonment against the county or whether such a suit is barred by the governmental immunity provisions of the California Tort Claims Act. The superior court concluded that the governmental immunity sections precluded the action, but, as will appear, we have determined that that decision was in error; accordingly we conclude that the judgment must be reversed.

Plaintiff Jack Sullivan instituted the present action against defendant County of Los Angeles as a result of his alleged confinement in Los Angeles County jail for several days beyond the termination of his sentence. The confinement grew out of the following circumstances.

On June 6, 1967, plaintiff was arraigned in municipal court on a misdemeanor charge of contributing to the delinquency of a minor in violation of Penal Code section 272; he entered a not guilty plea to the charge. The following day plaintiff pled guilty to a separate drunk driving charge (Veh. Code, § 23102, subd. (a)) and was sentenced to pay a fine of $250 plus penalty assessment or serve 50 days in city jail. Plaintiff did not pay the fine and began serving the 50-day drunk driving sentence on June 7, 1967. [12 Cal.3d 714]

On June 20, while plaintiff was serving his drunk driving sentence, the municipal court consolidated the charge of contributing to the delinquency of a minor with two felony charges pending against plaintiff and transferred the charges to the superior court. On July 13 plaintiff’s motion to dismiss the two felony counts was granted; the contributing to the delinquency of a minor charge was transferred back to municipal court and was dismissed on July 21. The municipal court issued an order to the sheriff to release plaintiff immediately after that dismissal but no release order had been issued by the superior court when the felony charges were dismissed on July 13. fn. 1 Plaintiff’s 50-day drunk driving sentence expired on July 26 fn. 2 but because no release order had been issued by the superior court plaintiff remained in jail until August 7. He was finally freed only after writing to the superior court for the unissued release order.

Plaintiff then brought this action for false imprisonment against the county predicated upon the sheriff’s failure to release him. Plaintiff alleged in his amended complaint that he was imprisoned in the county jail by county sheriffs and employees who acted “with knowledge … that there were no charges of any kind pending against [him] and that [he] was entitled to his [release] and freedom” or who “in the exercise of reasonable care … should have known that there were no charges of any kind pending against [him] … and that [he] was entitled to his release and freedom …” fn. 3 [12 Cal.3d 715]

The trial court granted the county’s motion for judgment on the pleadings on the ground that under Watson v. County of Los Angeles (1967) 254 Cal.App.2d 361 [62 Cal.Rptr. 191] and section 821.6 of the Government Code, the county was immune from liability for acts of county employees in instituting or prosecuting a criminal proceeding. Plaintiff thereafter appealed.

For the reasons which follow we conclude that plaintiff has stated a cause of action against the County of Los Angeles. If, at a subsequent trial, plaintiff can prove the alleged facts, the county will be both directly and derivatively liable for injury caused to plaintiff by his false imprisonment. [1] No immunity provision in the California Tort Claims Act insulates the county from liability for false imprisonment.

1. The county’s failure to release plaintiff after dismissal of all charges against him, as mandated by Penal Code section 1384, renders it directly liable under Government Code section 815.6.

Government Code section 815.6 provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” [2] In this case plaintiff alleges injury due to defendant’s failure to release him from jail after dismissal of all charges against him. Penal Code section 1384 speaks precisely to this situation: “If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom; …” (Italics added.)

Two Court of Appeal cases have applied section 815.6 fn. 4 in situations very similar to the instant case. In Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375 [40 Cal.Rptr. 863], plaintiff was kept in jail after sufficient bail had been posted for his release in disregard of the mandatory duty to release on posting of bail provided in Penal Code section 1295. The Court of Appeal held that failure of the city to perform its statutorily imposed mandatory duty to release plaintiff rendered it directly liable for [12 Cal.3d 716] damages under section 815.6. The mandatory duty to release on bail was designed to protect against the very injury which occurred.

Similarly in Bradford v. State of California (1973) 36 Cal.App.3d 16 [111 Cal.Rptr. 852], employees of the State of California failed to record the fact that charges had been dismissed against the plaintiff; as a result he was rearrested. The Court of Appeal held that Penal Code sections 11116 and 11116.6 imposing a mandatory duty upon the state to record such dismissals, were intended to avoid the danger of possible future illegal arrest and incarceration. The state could not claim immunity from liability for damages arising out of its failure to perform a mandatory duty imposed by statute.

In the case before us plaintiff alleges that county employees retained him in jail after all charges against him had been dismissed despite the mandatory duty of Penal Code section 1384. Plaintiff alleges that he suffered precisely the kind of injury that section 1384 purports to prevent: continued incarceration. Therefore, assuming the truth of the allegations of imprisonment, Government Code section 815.6 imposes direct liability upon the county for plaintiff’s damages unless the county can demonstrate that “it exercised reasonable diligence to discharge the duty.”

The county contends, however, that, assuming the applicability of section 815.6, section 844.6, subdivision (a)(2) bars the present action. That section provides: “Notwithstanding any other provision of this part, … a public entity is not liable for: … (2) An injury to any prisoner.” In our opinion the county mistakenly argues that because plaintiff was a “prisoner” fn. 5 at the time he was allegedly falsely imprisoned, the section bars recovery for any “injury” fn. 6 resulting from the false imprisonment.

[3] In a false imprisonment case, the “injury” suffered by an individual is the illegal confinement itself rather than any detriment occurring after imprisonment; in other words, false imprisonment is not an “injury to a prisoner” but instead is an injury to a non-prisoner which converts him into a prisoner. [12 Cal.3d 717]

Although the county emphasizes that plaintiff had already been confined in jail at the time of the alleged false imprisonment, the Legislature surely did not intend to distinguish between an individual who is wrongfully deprived of his liberty before his jail term starts and one wrongfully deprived of his liberty after his jail term ends. Continued confinement cannot legally make him a “prisoner” when the jail term has expired; in the eyes of the law plaintiff is no longer a “prisoner.” [4] In short, we conclude that section 844.6’s reference to “an injury to any prisoner” does not apply to a case of false imprisonment; the section accordingly, in the instant case, does not immunize the county.

2. If, as alleged, the county sheriff knew or should have known that all charges against plaintiff had been dismissed, the county is derivatively liable for the sheriff’s wrongful failure to release him.

Under the facts alleged in the complaint, the county also faces derivative liability for plaintiff’s alleged false imprisonment. Government Code section 820 provides that, unless immunized by statute, “a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Section 815.2 extends that employee liability to the public entity. fn. 7 Indeed, section 820.4 deals specifically with liability for false imprisonment; it declares immunity for public employees for their non-negligent acts “in the execution or enforcement of any law” but provides that “[n]othing in this section exonerates a public employee from liability for false arrest or false imprisonment.” [5] Thus if the county sheriff fn. 8 is liable as a public employee under sections 820 and 820.4 for his alleged failure to release plaintiff from jail after all charges against him were dismissed, then the county will be derivatively liable for those acts under section 815.2.

[6] Under California common law the jailer has long been held liable for false imprisonment if he knew or should have known of the illegality [12 Cal.3d 718] of the imprisonment. In Abbott v. Cooper (1933) 218 Cal. 425, 429-430 [23 P.2d 1027] this court held a jailer liable for damages for false imprisonment because he “knew or should have known” from statements of the arresting officers of the illegality of the arrest. (See also Smith v. Madruga (1961) 193 Cal.App.2d 543, 546 [14 Cal.Rptr. 389].) And more recently, in Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375, 386 [40 Cal.Rptr. 863], the Court of Appeal found a city derivatively liable for false imprisonment based upon the acts of city employees in holding the plaintiff in jail after payment of bail for his release.

A similar result was reached in Whirl v. Kern (5th Cir. 1969) 407 F.2d 781, certiorari denied 396 U.S. 901 [24 L.Ed.2d 177, 90 S.Ct. 210] in which the plaintiff sued a sheriff for deprivation of civil rights because of false imprisonment. In Whirl plaintiff was kept in jail for nine months after the dismissal of felony charges against him. The sheriff who detained him did not receive the usual individual dismissal notice from the court in plaintiff’s case although he did receive, instead, a group listing of dismissals which included plaintiff’s name. The sheriff claimed he did not know plaintiff’s name was on the list.

In holding the sheriff liable for false imprisonment, the Whirl court stated: “The responsibility for a failure of communication between the courts and the jailhouse cannot justifiably be placed on the head of a man immured in a lockup when the action of the court has become a matter of public record. Ignorance and alibis by a jailer should not vitiate the rights of a man entitled to his freedom. … [U]nlike his prisoner, the jailer has the means, the freedom, and the duty to make necessary inquiries. [¶] … The tort of false imprisonment is an intentional tort. [Citation omitted.] It is committed when a man intentionally deprives another of his liberty without the other’s consent and without adequate legal justification. [Citations omitted.] Failure to know of a court proceeding terminating all charges against one held in custody is not, as a matter of law, adequate legal justification for an unauthorized restraint. Were the law otherwise, Whirl’s nine months could easily be nine years, and those nine years, ninety-nine years, and still as a matter of law no redress would follow. The law does not hold the value of a man’s freedom in such low regard. [¶] The sheriff, of course, must have some protection too. His duty to his prisoner is not breached until the expiration of a reasonable time for the proper ascertainment of the authority upon which his prisoner is detained.” (407 F.2d at p. 792.) [12 Cal.3d 719]

We reaffirm the test for false imprisonment liability stated in our earlier decisions and illustrated in the Whirl case. If the sheriff “knew or should have known” that plaintiff’s incarceration was unlawful because all charges against him had been dismissed, then the sheriff is liable for false imprisonment. The test requires either that the sheriff have actual knowledge that the imprisonment of the plaintiff is unlawful or alternatively that he have some notice sufficient to put him, as a reasonable man, under a duty to investigate the validity of the incarceration. (Cf. Rest. 2d Torts, § 45, com. b.) The slight burden which this duty imposes upon the sheriff must be viewed in light of plaintiff’s overriding interest in avoiding unjustified incarceration. As the Whirl court stated: “The law does not hold the value of a man’s freedom in such low regard.” (407 F.2d at p. 792.) It is slight solace for the deprivation of one’s liberty to be told that the jailer carelessly failed to follow his instructions to unlock the jailhouse door.

[7a] The county argues that its sheriff can never be held liable for false imprisonment despite the common law rule of liability because the sheriff enjoys immunity under Government Code section 821.6. That section provides: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” The county apparently views the section’s reference to “instituting or prosecuting any judicial … proceeding” as sufficiently broad to encompass retaining a person in jail although no criminal proceedings remain pending against him. This argument erroneously interprets the scope of section 821.6.

In the first place, the plain meaning of the language in section 821.6 demonstrates that the section does not encompass the retaining of a person in prison beyond his term. According to Webster’s Third New International Dictionary (1961) “institute” means “to originate and get established … [to] initiate,” and “prosecute” means “to institute legal proceedings against; esp: to accuse of some crime or breach of law or to pursue for redress or punishment of a crime or violation of law in due legal form before a legal tribunal.” Thus, viewed literally, the language of the section does not reach the act of holding a person in jail beyond his term.

Second, and more importantly, the history of section 821.6 demonstrates that the Legislature intended the section to protect public employees from liability only for malicious prosecution and not for false imprisonment. The Senate Committee comment to the section states that “The California courts have repeatedly held … public employees immune from liability for this sort of conduct. [Citing several California cases which deal with public [12 Cal.3d 720] employee immunity from malicious prosecution suits: White v. Towers (1951) 37 Cal.2d 727 [235 P.2d 209]; Coverstone v. Davies (1952) 38 Cal.2d 315 [239 P.2d 876]; Hardy v. Vial (1957) 48 Cal.2d 577 [311 P.2d 494] and one case dealing with public entity immunity for malicious prosecution: Dawson v. Martin (1957) 150 Cal.App.2d 379 [309 P.2d 915].] This section continues the existing immunity of public employees; and, because no statute imposes liability on public entities for malicious prosecution, public entities likewise are immune from liability.”

[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.

Furthermore, the Senate Committee comment to section 821.6 states that the section “continues the existing immunity of public employees ….” While government employees were, prior to the enactment of that section, immune from liability for malicious prosecution, they were not immune from charges of false imprisonment and were liable for knowingly imprisoning a person without proper legal authority. (Abbott v. Cooper (1933) 218 Cal. 425 [23 P.2d 1027]; Oppenheimer v. City of Los [12 Cal.3d 721] Angeles (1951) 104 Cal.App.2d 551 [232 P.2d 30].) [9] Therefore, at the time of the enactment of section 821.6 no existing immunity attached to false imprisonment which could be continued under that section.

Our narrow interpretation of section 821.6’s immunity, confining its reach to malicious prosecution actions, finds corroboration in another governmental immunity provision, section 820.4 discussed above. That section grants public employees immunity for their nonnegligent acts in executing or enforcing any laws but specifically provides that “[n]othing in this section exonerates a public employee from liability for false arrest or false imprisonment.” The preservation of liability for false imprisonment in this corollary section demonstrates that the California Torts Claims Act distinguishes false imprisonment and malicious prosecution. It recognizes the previously existing immunity of public employees from liability for malicious prosecution but saves the existing liability for false imprisonment.

The case of Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375 [40 Cal.Rptr. 863] supports this interpretation. In Shakespeare the plaintiff was held in jail after sufficient bail had been posted for his release. He sued for both malicious prosecution and false imprisonment. The Court of Appeal held that section 821.6 barred the malicious prosecution action but that section 820.4 specifically preserved the false imprisonment action.

Ignoring the Shakespeare case, defendant county here relies solely upon Watson v. County of Los Angeles (1967) 254 Cal.App.2d 361 [62 Cal.Rptr. 191]. In Watson the plaintiff completed a 30-day sentence and was released. Because the county clerk failed to record plaintiff’s completion of his sentence, plaintiff was rearrested and imprisoned again. In affirming the dismissal of plaintiff’s subsequent false imprisonment action, the Court of Appeal reasoned that the clerk’s failure to record service of the sentence was the first step toward plaintiff’s subsequent arrest and incarceration and therefore came within the scope of “instituting or prosecuting a criminal proceeding” under section 821.6

The Watson decision, however, has been soundly criticized by the principal architect of the California Tort Claims Act, Professor Van Alstyne, for its failure to distinguish between malicious prosecution and false imprisonment. As Professor Van Alstyne observes: “Watson, unfortunately, fails to recognize or explain how its conclusion can be squared with the distinction made in the California Tort Claims Act between malicious prosecution [citation omitted] and false imprisonment [citation omitted], or with the clear legislative history [citation omitted] demonstrating that [12 Cal.3d 722] section 821.6 codified the recognized common law immunity of prosecutors and other law enforcement officers from malicious prosecution actions, in order to prevent interference with their discretionary and quasi-judicial responsibility for institution and prosecution of enforcement proceedings. Nor does the court attempt to explain how the defendants’ negligence in the ministerial recordkeeping can be transmuted into the kind of discretionary determination — to initiate proceedings against the plaintiff — which the immunity was designed to safeguard.” (Van Alstyne, Cal. Government Tort Liability Supplement (Cont.Ed.Bar 1969) § 5.63, pp. 24-25.) [7b] In accordance with Professor Van Alstyne’s criticism, we specifically disapprove the Watson decision. fn. 10

Since section 821.6 cannot be interpreted to defeat the common law liability for false imprisonment preserved in section 820.4, the county sheriff remains liable for his alleged knowing imprisonment of appellant. fn. 11 Under section 815.2 the sheriff’s liability is in turn attributed to his employer, the county.

[10] We conclude that the County of Los Angeles is potentially liable for its alleged false imprisonment of plaintiff both independently under section 815.6 and derivatively under sections 820, 820.4 and 815.2. Since no provision for governmental immunity protects the county in an action for false imprisonment, the trial court erred in dismissing plaintiff’s cause of action.

The judgment is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.

Wright, C. J., Mosk, J., and Sullivan, J., concurred. [12 Cal.3d 723]

BURKE, J.

I dissent. The Legislature has made it quite clear that public entities are wholly immune from liability for any injuries to persons confined in prisons or jails, including injuries to the person, reputation, character or feelings of persons falsely imprisoned by police or prison authorities. The obvious intent of the statutory provisions which I discuss below was to provide to the public entity a broad immunity for the acts and omissions of its agents in their dealings with persons confined in prisons or jails. There is simply no basis whatever for holding, as the majority do, that persons unlawfully confined in prison cannot be considered “prisoners” under the applicable legislation. This unsound analysis could drastically undermine the legislative intent to provide broad immunity in this area, for a public entity could be held liable for all kinds of injuries to persons able to prove that they were injured while unlawfully confined in prison.

The Legislature devoted a separate chapter of the 1963 Tort Claims Act to “Police and Correctional Activities” (Gov. Code, § 844 et seq.). Section 844.6 sets forth the general rule of immunity, providing that “Notwithstanding any other provision of this part [relating to liability of public entities and employees], except as provided in this section and in [other sections not here pertinent], a public entity is not liable for: … (2) An injury to a prisoner. … (d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission. …”

Thus, section 844.6 immunizes public entities from liability for an “injury” to a “prisoner.” Liability of the public employee, is unaffected by the section; in fact, another section provides that although a public employee is not liable for an act or omission, “exercising due care, in the execution or enforcement of any law,” the section further provides that “Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.” (Italics added.) Therefore, plaintiff herein may indeed have a cause of action for false imprisonment against various public employees. The question before us, however, is whether a cause of action lies against defendant county by reason of plaintiff’s allegedly false imprisonment. As noted above, if plaintiff was a “prisoner” at the time of his false imprisonment, section 844.6 would immunize defendant county from liability for any “injury” he suffered as a result thereof.

The majority evidently concede that false imprisonment constitutes an “injury” within the meaning of section 844.6, since that term is broadly defined in section 810.8 to mean “death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his [12 Cal.3d 724] person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.” (Italics added.) Clearly, one who is falsely imprisoned suffers damages identical in nature to those described in section 810.8.

It should be equally apparent that plaintiff herein was a “prisoner” under section 844.6. The majority’s contrary holding ignores the plain language of the act. Thus, section 844 provides that “As used in this chapter [which includes § 844.6], ‘prisoner’ includes an inmate of a prison, jail or penal or correctional facility.” (Italics added.) The record discloses that plaintiff was indeed an inmate (as distinguished from a guard, guest or visitor) of Los Angeles County jail during the period of his allegedly false imprisonment. It seems inescapable that defendant county is immune from liability to plaintiff by reason of section 844.6.

The majority seek to escape the inescapable by reasoning that “… false imprisonment is not an ‘injury to a prisoner’ but instead is an injury to a non-prisoner which converts him into a prisoner.” (Ante, p. 716.) This peculiar logic appears based upon the unfounded and unprecedented assumption that plaintiff had become a “non-prisoner” once his term had expired. Yet a “prisoner” is an “inmate of a … jail” (§ 844), and it is uncontradicted that plaintiff remained an inmate throughout the period in question despite his claim of illegal confinement.

The majority thus would narrowly construe the term “prisoner” to refer to one lawfully restrained. Yet the courts have refused to construe the term narrowly; “On the contrary, almost every popular dictionary as well as law dictionary and encyclopaedic work, states in words or substance that a prisoner is a person ‘under arrest,’ ‘in custody,’ ‘in jail,’ ‘in prison’; in short, one who is being restrained involuntarily. The test is not whether he has been informed against, indicted, arraigned, tried or convicted.” (Italics added; Datil v. City of Los Angeles, 263 Cal.App.2d 655, 659 [69 Cal.Rptr. 788]; see Sava v. Fuller, 249 Cal.App.2d 281 [57 Cal.Rptr. 312].) Likewise, in the instant case, the test should not be whether the person has been properly or lawfully confined, or whether he has already served his term of confinement. Rather, it is the fact of confinement itself, and not the legality thereof, which renders one a “prisoner” under section 844.6.

Since the provisions of section 844.6 immunize defendant county from the instant suit, there is no need to consider the application of other sections of the Tort Claims Act upon which liability might be based. By its terms section 844.6 immunity overrides “any other provision” in the act, including [12 Cal.3d 725] the sections relied upon by the majority in parts 1 and 2 of their opinion.

I would affirm the judgment.

McComb, J., and Clark, J., concurred.

­FN 1. Plaintiff was in jail on a remand order which requires that he be held in custody until another court order releasing him or fixing his sentence is issued.

­FN 2. Plaintiff, subtracting five days for good behavior, claims the sentence actually was completed on July 22, rather than on July 26. This dispute, however, bears only on the extent of damages and is not relevant here.

­FN 3. The court below properly took judicial notice of relevant files, records and documents of the superior and municipal courts which disclosed that felony charges against plaintiff were dismissed by the superior court on July 13, 1967, but that no release order was issued to the sheriff until August 7, 1967. That fact does not defeat plaintiff’s allegation that the sheriff actually knew or in the exercise of due care should have known that charges against plaintiff had been dismissed and that his continued incarceration was illegal. That no release order was sent merely forecloses one possible source of the sheriff’s alleged knowledge but is not sufficient to defeat plaintiff’s allegation that the sheriff had knowledge.

In passing on the motion for judgment on the pleadings the trial court improperly involved itself in the merits of whether the sheriff actually had knowledge that appellant was being illegally detained in prison. The trial judge stated in the course of argument on the motion that “[a]s a practical matter, I am going to make the assumption that there is no proof … that the Sheriff knew … that there were no charges pending against [plaintiff].” The issue of proof of knowledge did not arise before the trial court nor does it arise before us. For purposes of reviewing the judgment on the pleadings we must accept as true plaintiff’s allegation that the sheriff had the requisite knowledge. (See Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 411-412 [62 Cal.Rptr. 401, 432 P.2d 3]; 4 Witkin, Cal. Procedure (2d ed.) § 162, pp. 2817-2818.)

­FN 4. Hereafter, unless otherwise indicated, all section references are to the Government Code.

­FN 5. Section 844 provides: “As used in this chapter, ‘prisoner’ includes an inmate of a prison, jail or penal or correctional facility.”

­FN 6. Section 810.8 provides: “‘Injury’ means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.”

­FN 7. 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.

“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

­FN 8. Plaintiff might have, but did not, base his claim against the county upon an allegation that the county clerk negligently failed to issue the release order. Plaintiff apparently concluded that Watson v. County of Los Angeles (1967) 254 Cal.App.2d 361 [62 Cal.Rptr. 191], discussed infra, immunized the county clerk. Since, as we note infra, we disapprove the Watson holding, plaintiff on remand may seek leave to amend his complaint to include this alternative ground for liability.

­FN 9. Thus in Hardy v. Vial (1957) 48 Cal.2d 577, 580 [311 P.2d 494] defendants filed an affidavit with the college which employed plaintiff accusing plaintiff of immoral acts and thereby procuring his dismissal from teaching. Coverstone v. Davies (1952) 38 Cal.2d 315, 319 [239 P.2d 876] involved a defendant deputy sheriff who had arrested the plaintiff and signed an affidavit alleging criminal violations. In White v. Towers (1951) 37 Cal.2d 727, 728-729 [235 P.2d 209, 28 A.L.R.2d 636] the defendant Fish and Game Commission investigator signed a sworn affidavit claiming plaintiff had violated water pollution laws. Finally, in Dawson v. Martin (1957) 150 Cal.App.2d 379, 381 [309 P.2d 915] defendant building inspector swore to a complaint charging plaintiff with two violations of the county building code.

­FN 10. We also disapprove Herndon v. County of Marin (1972) 25 Cal.App.3d 933 [102 Cal.Rptr. 221] and Apelian v. County of Los Angeles (1968) 266 Cal.App.2d 550 [72 Cal.Rptr. 265] to the extent that these decisions rely on the Watson holding.

­FN 11. The county also asserts that Penal Code section 847 grants the sheriff immunity. That section provides that no peace officer shall be civilly liable for false arrest or false imprisonment arising out of an arrest when such arrest is lawful. This section does not aid the county, however, both because the validity of the initial arrest in this case is not contested by the plaintiff and because an unlawful detention after a lawful arrest is alone sufficient to give rise to a cause of action for false imprisonment. (Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 735 [85 Cal.Rptr. 281].)

The county did not contend, nor could it have successfully contended, that the sheriff was protected by section 820.2 immunity from liability for discretionary acts. Release of a prisoner after dismissal of charges against him is nondiscretionary since it is specifically mandated by Penal Code section 1384. (Cf. Elder v. Anderson (1962) 205 Cal.App.2d 326, 331 [23 Cal.Rptr. 48].)

cited https://scocal.stanford.edu/opinion/sullivan-v-county-los-angeles-27837

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

New Supreme Court Ruling makes it easier to sue police

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

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

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

Suing for Misconduct – Know More of Your Rights

Police Misconduct in California – How to Bring a Lawsuit

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Police Discretion

The police violated my rights

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

How to File a complaint of Police Misconduct?

Suing for Misconduct – Know More of Your Rights

New Supreme Court Ruling makes it easier to sue police

Prosecutorial Misconduct, What is it?

Frivolous, Meritless or Malicious Prosecution

Malicious Prosecution / Prosecutorial Misconduct

Prosecutorial Misconduct

 Vindictive Prosecution – Georgetown University

 VINDICTIVE AND SELECTIVE PROSECUTION

 Misconduct by Judges & Prosecutor

CALIFORNIA ATTORNEY MISCONDUCT LAW

Equality Act 2010 – Discrimination and mental health

Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008

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

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

118.1 PC – Police Officers Filing False Reports

Overcoming Qualified Immunity in Civil Rights Claims

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. What is a constitutional right?

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

In the context of police misconduct, they include:

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

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

3. When is a constitutional right clearly established?

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

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

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

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

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

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

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

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

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

5. What is the law in California?

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

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

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

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

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

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

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

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

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

Legal References:

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

A NICE MANUAL EXPLAINING DIFFERENT IMMUNITIES with DIFFERENT GOVERNEMTN STATE_IMMUNITY_TORT_CAPS_NOV_2017