Law Offices of Jerry L. Steering
Wisdom * Justice * Constitution * Compensation
The Law Offices of Jerry L. Steering serves the City of Laguna Beach, the Orange County cities shown below, and the surrounding counties of Los Angeles, Riverside, San Bernardino and San Diego. Mr. Steering has been suing police officers and defending bogus criminal cases since 1984.
You Don’t Have To Commit A Crime To Be Falsely Arrested.
If you think, as a practical matter, that you live in a free country, you’re wrong. We don’t. We live in a police state; at least to a very appreciable degree; too appreciable. We are now in a “police state”, because, as a practical matter, the police can do whatever they want to, and then procure the institution of a bogus criminal case against you; to beat you down; morally, mentally, emotionally, and especially, financially (i.e. thousands of dollars in attorney’s fees and bail bond costs to fight bogus fabricated allegations.)
Moreover, because of “Contempt Of Cop” crimes that are so vague that any verbal challenge to a police officers authority, or any failure to immediately comply with an order from a police officer, can and is viewed by essentially brainwashed Deputy District Attorneys, you don’t have to commit a crime to be arrest for one.
Just imagine that you have just left a restaurant in Laguna Beach and a Laguna Beach Police Department police officer approaches you from nowhere and tells you to get on the ground. Instead of immediately proning yourself out on the ground, you ask the officer, “What’s going on?” The officer again commands you to get on the ground, and you tell the officer that you’ll get on the ground if the officer tells you what’s going on; all of this happening within a few seconds. The officer then body slams you on the sidewalk, knee drops your back and neck, starts screaming out “stop resisting” (even though you’re not) and tases you. Who’s the criminal? Did you commit a crime? Many Deputy District Attorneys will file criminal charges against you for violation of Cal. Penal Code § 148(a)(1); resisting / obstructing / delaying a peace officer in the performance of his duties; the most abused and misused statute in the California Penal Code.
How many people are willing to spend tens of thousands of dollars to defend themselves on charges of “resisting / delaying / obstructing a peace officer, engaged in the performance of his/her duties” (Cal. Penal Code § 148(a)(1)), a misdemeanor, when they get an offer from the District Attorney’s Office to a plea of violation of Cal. Penal Code 415 (disturbing the peace), with no jail or fine? Are you? Are you willing to pay thousands of dollars to preserve your right to sue? If you don’t get competent defense, you’ll get railroaded. If you plead guilty or no contest to anything, you can’t sue for either your false arrest or your malicious criminal prosecution. See, Heck v. Humphrey, 512 U.S. 477 (1994) (can’t sue for false arrest if plead guilty or no contest to any crime, even if the police didn’t have either warrant or probable cause), and Cal. Gov’ t Code § 821.6 (statutory absolute malicious prosecution immunity for any public employee.)
Section 821.6 Immunity had been extended by the California court to a legal and logical absurdity. Cal. Gov’ t Code § 821.6, now immunizes the police under California state law for any sort of abuse or misconduct during any sort of police contacts, calls for service, investigations, or warrant executions. See, Amylou v. County of Riverside, 28 Cal.App.4th 1205 (1994) (Section 821.6 immunizes police for all California state law torts during police investigation, save battery and false arrest); See also, Kilroy v. State of California, 119 Cal.App.4th 140 (2004) (police officer immune for lying to judge to get search warrant for private residence.)
The police know that the District Attorney’s Office takes great pride in protecting the police from civil liability, by filing and prosecuting criminal action. They do this to beat you down; to make it so expensive for you to defend yourself on bogus criminal charges, such as resisting arrest, that you take a plea bargain, and, in effect, bar a lawsuit by you for either false arrest, malicious prosecution, and, in most such cases, unreasonable force. They also do this to protect themselves from internal discipline and criminal liability for civil rights violations (18 U.S.C. § 242.) The employing police agency will (almost) always deny that their officer engaged in wrongful conduct, especially in swearing contest type cases, where there is no video recording of the police beatings. Because the employing police agency will (almost) always back their officers by touting their (false) version of the story in order to avoid civil liability to the employing entity for the actions of their officers, it’s almost impossible to discipline them. For example, the City of Inglewood, California, fired Inglewood Police Department officer Jeremy Morse, for the video recording beating of a teenager at a gas station. When it came time for the civil suit against the City and the officers for the beating, the City contended that the officers acted properly. Accordingly, since the City took that position, fired officer Jeremy Morse sued the city, and won $1,400,000.00 for his “wrongful” firing.
False Arrests And Police Beatings Are More Common Than You Would Think.
Police Misconduct is rampant and condoned and defended by the command structure of most, if not all, modern police agencies. See, Orange County Sheriff’s Department police torture videos, and other police beating videos throughout the Country. There is a “Blue Code of Silence” between and among peace officers throughout the nation, and everyone knows this. This is no startling revelation. The County of Los Angeles has itself released a public document, acknowledging the existence of, and actually condemning, the Sheriff’s Department’s own rogue gangs of sadistic jailers at the Los Angeles County Central Men’s Jail. See, The Citizens Commission on Jail Violence September 28, 2012.
In 2012, a retired Los Angeles County Sheriff’s Department Captain, Bob Olmsted, told the Los Angeles Times, that the L.A. County Men’s Central Jail was, essentially, a torture chamber, run by these rogue jailer gangs of sadistic sociopaths (Minnesota Viking logo tattoos on on their ankles.) Discipline for beatings was not existent, and torturing inmates was actually required for jailer gang initiation. See, “L.A. County sheriff’s official tells of jail brutality”, LA Times, July 7, 2012. See also, “L.A. County jail violence sheriff’s fault, panel says”, LA Times, September 28, 2012. Rival Sheriff’s Department jailer gangs even got into a rumble between the “3000 Boys” (the third floor jailers) and the “2000 Boys” (the second floor jailers) at a Sheriff’s Department Christmas party.
In 2010 the Los Angeles County Sheriff’s Department shot to death 15 people, who they claimed were reaching for their waistband; notwithstanding that none of the shooting victims were armed. No one was prosecuted or disciplined. Who needs a hunting license? Join the Los Angeles Sheriff’s Department, and you can shoot who ever you want to (unless the shooting is video recorded. If it is, the politicians may have to get rid of the officer.)Even as long ago as 1992, the Ninth Circuit Court of Appeals held in a published decision that the “Vikings” gang of Deputy Sheriff’s at the Lynwood Sheriff’s Station, that they were a Neo-Nazi white supremacist gang within the LA County Sheriff’s Department. See, Thomas v. County of Los Angeles, et al., 978 F.2d 504 (1992.)
The leader of the sociopath / sadistic torturing faction of the Los Angeles County Sheriff’s Department, recently retired LA Sheriff’s Department Undersheriff Paul Tanaka, is now running for Sheriff of LA County. Paul Tanaka was, or maybe still is, a member of the Nazi Sheriff’s Department gang the “Vikings”; who have the Minnesota Vikings logo tattooed on their legs.
Following Captain Bob Olmsted’s revelations to the FBI, the FBI did an undercover investigation at the Los Angeles County Men’s Central Jail. The FBI investigation resulted in the Indictment of 18 Deputy Sheriffs and their Supervisors for torturing inmates and obstructing the FBI’s investigation by hiding prisoners in the county jail population. These 18 Indictments of Los Angeles County Sheriff’s Department personnel resulted in the very recent resignation of L.A. County Sheriff Lee Baca.
Thus, at least as a practical matter, we live in a police state, because the police can, in the real world, do whatever they want to do to you, and get away with it. True, the police have to justify their outrages, but the system is rigged to permit them to do so.
You’re Being Criminally Prosecuted Because Prosecutors Are Either: 1)The Instrument Of Police Oppression, Or 2) Simply Incompetent In Their Understanding Of What Type Of Conduct, Can Be, And Actually Is, Criminalized, By The “Contempt Of Cop” Group Of Criminal Statutes.
WHY THE COPS CAN GET USUALLY GET AWAY WITH IT; AMERICANS’ BELIEF SYSTEM ABOUT POLICE OFFICERS
Most Americans have a deeply held belief that police officers don’t beat-up civilians who don’t deserve it. People believe what they want to believe, and they don’t want to believe that the persons entrusted with their safety, routinely beat-up and “frame” innocents; often for fun, or to bolster their frail egos, or to protect their fellow officers. However, in the real world, many police officers do just that. A substantial minority of peace officers actually do beat, torture and falsely arrest those that defy their authority, or somehow bruise their fragile egos. Almost all American police officers will cover for their fellow officers (i.e. writing bogus crime reports and conspiring to write the same, testifying that an innocent committed a crime that he/she didn’t.) Thus, in the real world, the crime of “battery on a peace officer (Cal. Penal Code § 242 / 243(b)), is almost always, in reality, battery by a peace officer; otherwise known as “excessive force” or “Unreasonable Force”, and the crime of resisting arrest (resisting or obstructing or delaying a peace officer; Cal. Penal Code § 148(a)(1)), is almost always the choice crime to arrest a civilian who committed no crime. The police can fairly easily obtain convictions of their victims for “resisting / obstructing / delaying a peace officer”, because almost any conduct by a civilian can be characterized as falling within the ambit of that statute; especially conduct that jurors find themselves believing is not the way that they would have handled that situation. Moreover, because the statute is so vague, Deputy District Attorney’s routinely file these type of cases, simply to protect the police. In many of these bogus criminal prosecutions for violation of Cal. Penal Code § 148(a)(1), the Deputy District Attorney will argue pure nonsense as to why you committed a crime, such as: a) by making the officer deal with you (i.e. asking him why he wants you to do something), you delayed his investigation of you, b) by not immediately complying with his orders, you delayed his investigation of others, c) by asking him a question, you interfered with the officers investigation, d) by not getting on the ground fast enough (i.e. immediately, without question or protest) you caused him to have to beat you up, which delayed his investigation, and e) other assorted nonsense.
WHY THE COPS CAN GET USUALLY GET AWAY WITH IT; THE JURORS
To attack the jury system is to attack an institution that has been the primary barrier between oppression and freedom in the English speaking world since 1215 (King John signing the Magna Carta.) This is not an attack on the jury system. It is merely a reflection as to why in false arrest, unreasonable force and malicious prosecution cases, the way that a jury decides these type of cases is as much political, as it is an exercise in fact finding. The persons who ultimately get to sit on juries in these cases, have no real idea as to how police officers actually act, and have no idea how truly institutionally corrupt, police agencies really are when it comes to defending the County / City coffers and their and the politicians’ images. Many of them have an emotional predisposition to believe the police; no matter how many obvious falsehoods they may utter. They consider themselves “Pro-Police”, any often feel that the cops are getting a raw deal in the media, and need their support. With these kind of white / upper-middle class types, if a cop testifies under oath with a straight face, that’s it. You’re goose is cooked. Guilty. You’ve really got to prove that you’re innocent in these type of cases. Try convincing a Newport Beach Superior Court white affluent jury that you didn’t act rudely toward a peace officer, or somehow delay or obstructed the officer’s investigation of you, by exercising your right to not speak with the officer. The harmony of all of this, is that since Section § 148(a)(1) of the Penal Code (resisting / obstructing / delaying a peace officer in the lawful performance of their duties) doesn’t actually mean anything, and is so vague and amorphous, that a jury can make it fit their enmity for the accused; enmity created by the mere fact that you stand accused at all.
In both civil and criminal cases, the parties have some say in the composition of the jury. The jury pool are supposedly called randomly, and the Court and the lawyers get to ask them questions. That part of a trial, questioning potential jurors, is called voir dire, that in French means, to speak the truth. Each side gets a certain numbers of peremptory challenges, that they can use to strike persons from sitting as jurors. In a federal court civil rights case, each side usually gets four peremptory challenges. So far, sounds fair. Here’s the rub.
Most people who have actually seen police officers beat-up a civilian have a lasting terrible feeling about police misconduct. Almost invariably, when they are asked by the lawyers or the Court about whether their prior experience with police misconduct will cause them to be prejudice against either side, they almost always say Yes. Most such people who have seen police beatings and the false prosecutions of their friends, are so deeply affected, that they invariably tell the Court that they are biased against police officers (in this type of case), and that they cant really put-aside that bias and be completely fair and impartial. Once they make that statement, any such jurors are then routinely excused for cause from sitting on that jury. Thus, the jurors who would more likely be favorable to the civil rights plaintiff (or criminal defendant accused of some crime against a peace officer), is excused for cause from sitting on the jury. The lawyer defending the case for the police doesn’t even had to use one of their jury peremptory challenges to get rid of that juror. All of the others jurors who do get to sit, are people who have never seen police misconduct; leaving a jury that, unfortunately, have no concept of the way that police, and police organizations, actually act.
Therefore, when Miss, Mrs. or Mr. Citizen gets falsely arrested, beaten-up or maliciously prosecuted by police agencies, and gets criminally prosecuted for conduct that often isn’t criminal (i.e. “creative use” of the California criminal statute Penal Code § 148(a)(1)), these “sanitized jurors” will generally not believe that the police really did what Miss, Mrs. or Mr. Citizen claim that they did, unless Miss, Mrs. or Mr. Citizen’s attorney can really prove otherwise; real proof; like a video, audio, or a bus load of highly observant nuns with photographic memories who testified about clearly indefensible police conduct. That’s why the jury system rigged against persons victimized by the police; because the only people who ever get to sit in judgment in these type of cases as jurors, are persons who have never had a bad experience with a police officer, or and who has not seen outrageous police conduct. Their life experience tells them something that’s just not true; that police officer don’t beat people up unless they did something to deserve it. You, therefore, need great proof to dispel that belief by jurors.
All Article III federal Judges are appointed for life. It means, that unless a federal judge is impeached by the House of Representatives and removed by the Senate, they sit for life. The idea of lifetime appointment of Judges by the Founding Fathers of the United States is based on the notion that Judges aren’t supposed to be political weather vanes; that is, they’re not supposed to changes direction with the prevailing political winds. This is a good thing. A person should not be deprived of their Constitutional Rights because respecting their rights would be unpopular. However, there are drawbacks to this.
The problem with lifetime appointment of Article III federal judges, is that if you get a bad one appointed, we’re stuck with him for life. That is a bad thing. The problem with a “bad judge” is that one side or another, won’t get a fair trial. A trial based on the law; not on the Judges political leanings. Unfortunately, unfair trials, especially unfair in the Court’s rulings against civil rights plaintiffs, are far too common. Take the case of the late United States District Judge Andrew Hauk. Judge Hauk was so against civil rights plaintiffs, especially police brutality plaintiffs, that the Ninth Circuit Court of Appeals ordered that could not longer preside over police misconduct cases because he wouldn’t give anyone suing the police a fair trial.
As United States District Judge J. Spencer Letts once said, Judges can make a case come out anyway they want to; they just don’t. Well, Judge Letts was right about the first part, but not the second. Ask any experience trial lawyer, and they will tell you that your case has a much better chance of success if a particular Judge presides, and a much worse chance if another particular Judge presides. Why is this? Why would the Judge make a difference? Aren’t the Federal Rules of Evidence supposed be understandable and applied uniformly? We’ll, yes, the Federal Rules of Evidence are understandable, but as persons with undefendable positions often say, “Don’t bring facts into this argument.”
Unfortunately, the Judges appointed by Democrats are, on par, much more sympathetic to civil rights / police misconduct plaintiffs than those appointed by the Republicans. That is a simple fact. It is not an endorsement of the Democratic Party Platform, or any particular Democrat. There, of course, are many fine Republican Senators. However, over all, just go through the federal judicial roster, and you will find that the Judges (state and federal) appointed by the Democrats are much better for civil rights / police misconduct plaintiffs, than those appointed by the Republicans. This is a fact of life. If you’re a Republican and are offended by this, we’re sorry. We don’t mean to offend anyone. We just speak the truth.
Judges are not mere referees. They do call balls and strikes at trial (i.e. objections and whether to overrule or sustain the same), but they also define the strike zone, and the appellate Judges (i.e. Court of Appeals and the Supreme Court) re-write the rules of the game, all of the time. So, if you have a civil rights / police misconduct case, your chances of success often depend on what Judge you have. That why the cops get away with it; Conservative Judges.
FALSE ARREST CASES – DON’T CALL THE COPS UNLESS YOU WANT SOMEONE AT LEAST IN JAIL, OR VERY POSSIBLY DEAD
All of use have broken some sort of law, but most of us don’t go around holding-up liquor stores. The odds are, that if you are inquiring about a police misconduct case, such as a false arrest case, that you fall into three basic categories of ways that the police came into contact with you, and then falsely arrested you, or worse.
I. I Called The Police To Protect Me, So Why Was I The One Who Was Beaten-Up And Arrested?
A frequent type of case in which the police falsely arrest an innocent person, is when you, your spouse, your lover, or your parent or child, call the police. Many times family members feel that they cannot control mentally ill (or mad or drunk / drugged-up) people, including and especially their relatives, so they call “911″; often believing that the ambulance and paramedics are going to come to actually help them. They may not have even thought that the police would be the responding agency, but when they find out that the police are there, trouble may be awaiting. Once the cops are on the scene, they are taught to take charge, and anyone challenging, or even questioning, the police giving orders or their authority to do so, even seemingly unreasonable ones, is going to either get physically abused by the police, or falsely arrested by the police, or both.
Also, many spouses or lovers call the police on each other, to get the other person out of the house; even for a night or two. The police are not there to solve your family problems, so when you make that call, don’t make it unless you want your spouse or lover to go to jail, or worse. Cops are not counselors. They take people to jail. That’s what they do. So remember, when you call the police on your parent, child, lover or spouse, the person who ends-up getting thumped and arrested by the police just may be you. “No” you say? The police won’t arrest me if I’m the party calling the police. You’re wrong. They don’t care who called. All that the seem to care about, is how you respond to them; regardless of how unreasonable they act. If then, they thump you and beat you up, the odds are, that the police won’t even investigate the subject matter that you called about. Now, all of their attention is on you, since they violated you.
Also, do not use the police to get a border or a family member out of your house, unless the person is posing a “real” threat of imminent serious physical harm. If it’s that bad that you can’t stay in the house, then leave and get a hotel room, or just leave. The police cannot summarily evict / eject a civilian from a home in which they reside; whether they’re on the lease or not. In California, if a person resides at a home, only a Judge can force them to leave; either in the form of: 1) a Writ of Possession (the Court Order that the landlord gets in an “unlawful detainer” action, to give to the Sheriff’s Department, to eject you from your home, when you don’t pay your rent); 2) a Civil Harassment Restraining Order (under Cal. § Civ. Proc. Code 527.6); 3) a Domestic Violence Restraining Order (under Cal. Family Code § 6320), and 4) an Emergency Protective Order in a criminal case (pursuant to Cal. § Penal Code 136.2.)
II. Contempt Of Cop Cases- A Frequent Reason For False Arrests By Police Officers
“Contempt Of Cop”cases, are bogus criminal actions, brought against innocents by criminal prosecutors, for essentially, “bruised ego” violations. The “ego bruising”, is really nothing more than a civilian not immediately, and without protest or question, getting-down on the ground in a proned position, or not doing something that the officer wants you to do (lawful, reasonable or not) immediately, and without question or protest. The Constable‘s “ego” is typically “bruised”, by your conduct, such as: 1) asserting your Constitutional rights, or 2) claiming knowledge of them, or 3) asking the Constable why you’re being ordered to lie down on the ground while your chest is being illuminated by the red spot of a pistol or rifle targeting device; 4) telling the Constable that you have a medical condition that makes it difficult or painful to get on the ground; 5) telling the Constable that he can’t do something (i.e. can’t go in my house without a warrant; you can’t make me go inside or come outside); 6) failing to consent to an entry or a search; and 7) not exiting your house when ordered to do so (even though the police generally can’t order you to exit a private residence; save probable cause to arrest for serious dangerous felony, coupled with an emergency; See, United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985) and Elder v. Holloway, 510 U.S. 510 (1994.) These are but a few examples. The list is endless, but the theme is the same. Failing to immediately do whatever the police tell you to do, without protest, challenge or remarks, often will result in your being beaten-up, falsely arrested, and maliciously criminally prosecuted.
These, “Contempt Of Cop” cases, typical involve the police using force upon persons (i.e. beating them) and/or falsely arresting them, and then inventing bogus allegations of violations various “Contempt Of Cop” statutes, such as violations of: 1) Cal. Penal Code § 148(a)(1) (resisting / obstructing / delaying peace officer [commonly called "resisting arrest"]; the most abused statute in the Penal Code; 2) Cal. Penal Code § 240/241(b) (assault on a peace officer); 3) Cal. Penal Code § 242 / 243(b) (battery on a peace officer); and 4) Cal. Penal Code § 69 (interfering with public officer via actual or threatened use of force or violence.) Cal. Penal Code § 69 is a “wobbler”; a California public offense that may be filed by the District Attorney’s Office as either a felony or a misdemeanor. In Orange County, Riverside County and Los Angeles County, allegations of violation of Penal Code 69 are usually filed as misdemeanors. In San Bernardino County, however, allegations of violation of Cal. Penal Code 69 are filed as felonies much more often than her sister counties. If they shoot you, they may even charge you with Cal. Penal Code § 245(d); assault on a peace officer in a manner likely to result in great bodily injury.
Believe it or not, most experienced police officers have a pretty good functional understanding of basic fourth amendment search and seizure issues. For example, police academytraining about basic street contacts with civilians includes the following:
- Detentions of persons (inside and outside of homes);
- Arrests of persons (with and without a warrant, and inside and outside of homes);
- The use of force on persons (pre-trial detainees and convicts);
- Probation searches (inside and outside of homes);
- Parole searches(inside and outside of homes);
- Search warrants (obtaining and serving residential and commercial warrants);
- Pat-down searches;
- Warrantless searches of persons;
- Warrantless searches of vehicles;
- Warrantless searches of homes (i.e.exigent circumstances and emergency doctrine.)
Once you get past the basics, however, most police officers really don’t understand what the Constitution forbids them from doing. Police officers simply are not sufficiently trained to properly act within with long established Constitutional constraints on them. It takes years for lawyers and judges to understand fourth amendment search and seizure issues, and they often disagree about whether certain conduct is, or is not, constitutional.
Moreover, just like the rest of us, the cops make mistakes all of the time. They are human, and, therefore, false arrests by police officers are often the product of either sheer incompetence (i.e. the police arrest another for conduct that isn’t criminal), or of the police officer attempting to justify his/her unlawful conduct against a civilian (i.e. provoking verbal remonstrance, and then beating-up the civilian for protesting), by arresting, and then framing their victims (i.e. authoring false police reports, suborning and committing perjurious court testimony, concealing exculpatory evidence) of his federal criminal (18 U.S.C. 242), and otherwise tortious misconduct.
FALSE ARREST CASES; CALIFORNIA LAW
FALSE ARREST BY PEACE OFFICER – ELEMENTS AND PROOF – CALIFORNIA LAW
A “false arrest” is the same “tort” as a “false imprisonment” under California law. Unlike federal law, under California law, the burden is on the police to justify their “seizure” (false arrest / false imprisonment) of you at a civil trial (See, California Civil Jury Instructions (“CACI”) 1401 [False Arrest by Peace Officer Without Warrant] and 1402 [Peace Officer's Justification / Defense To Claim Of False Arrest].) Under California law, a peace officer (i.e. police officer or deputy sheriff) may arrest another for a felony for which the officer has “probable cause” to believe person committed, or may arrest another for a misdemeanor that was committed in their presence (See, Cal. Penal Code § 836.) “Presence is not mere physical proximity but is determined by whether the offense is apparent to the officers senses. People v. Sjosten, 262 Cal.App.2d 539, 543544 (1968″.) An officer can arrest a civilian, upon probable cause, for any felony; committed in the presence of an officer or not. Cal. Penal Code § 836. However, it does not violate the fourth amendment, for an officer to arrest for a misdemeanor that was committed outside of the presence of the officer.
FALSE ARREST BY PEACE OFFICER – NO “QUASI-QUALIFIED IMMUNITY” – CALIFORNIA LAW
“There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer . . . acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances:
(1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.”
Although police civil defendants have argued that Section 847(b)(1) immunizes peace officers for false arrests like the “qualified immunity” provided for police false arrest civil defendants federal court, that code section cannot be reasonably construed that way. The first part of Section 47(b)(1) (“The arrest was lawful”), logically changes nothing, for if the arrest was lawful, then there is no liability under anyone’s theory; kind an unintended legal redundancy. The second part of Section 47(b)(1) (“the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful”), could only reasonably be meant to apply to a situation, where an officer arrested a civilian based upon either: 1) an arrest warrant that did issue, but for which there was no probable cause to have issued (the officer who obtained the arrest warrant on insufficient grounds committed the fourth amendment violation, and is liable for the false arrest, unless otherwise protected, such as by “qualified immunity“), or 2) when the officer had “reasonable cause”, which is essentially a term equivalent to “probable cause” under the jury instructions that are used at the trial of this particular tort (See, CACI 1402; . . . arrest lawful if . . . “reasonable cause to believe that the plaintiff committed a crime“ is the standard for whether a peace officer’s arrest of a civilian was lawful.) Therefore, logically, Section 47(b)(1) provides no immunity for California peace officers for a false arrest. That does not mean, however, that a state or federal judge won’t disagree with that proposition. It is not fully developed under either California law, or by the federal district court’s interpretation of that statute.
FALSE ARREST BY PEACE OFFICER – FEDERAL LAW – GENERALLY
A “false arrest” under federal law, is considered a violation of a person’s right to be free from an “unreasonable seizure” of their person under the Fourth Amendment (See, Ninth Circuit Court of Appeals Model Civil Jury Instruction for Arrest Without Probable Cause Or Warrant.) The United States Supreme Court has defined a “seizure of a person” as when a reasonable person would not feel free to leave the presence of police officers and to go about their business. See, United States v. Mendenhall, 446 U.S. 544 (1980.)
In 1871, Congress enacted the Ku Klux Klan Act (42 U.S.C. 1983), that gives any person whose federal Constitutional rights have been violated, a right to sue, any person who violated those rights under the color of state law, in a United States District Court. Section 1983 lawsuits can also be brought in a state court of general jurisdiction; See, 42 U.S.C. 1988. Accordingly, a person who is falsely arrested by a peace officer (i.e. police officer, deputy sheriff, or some other officer who derives peace officer powers from state law), may sue the police officer under Section 1983, as well as under California state law.
In federal court, in a civil Fourth Amendment “arrest without probable cause” case (a federal false arrest case), the jury is instructed at the end of the case, on the following definition of “probable cause”:
“Probable cause exists when, under all of the circumstances known to the officer[s] at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime” (See, Ninth Circuit Court of Appeals Model Civil Jury Instruction 9.20, Arrest Without Probable Cause Or Warrant.)
Therefore, that standard, whether “an objectively reasonable police officer would conclude there is a “fair probability” that the plaintiff has committed or was committing a crime”, is the standard that the propriety of an arrest, outside of the home is judged by, in federal court in the states comprising the Ninth Circuit Court of Appeals (Ninth Circuit Model Civil Jury Instruction 9.20). It doesn’t matter what the thousands of other cases, from the Supreme Court on down, say about what “probable cause” means. All that matters, is what a civil jury is going to be told is the standard that they should judge the facts by, in their deliberations (a civil jury is the “Judge of the facts” ["trier of fact"], and the District Judge is the “Judge of the law”.)
Some justices say that the words “probable cause“, are found in the text of the fourth amendment itself, and that is the standard for a seizure of a person by the government that was established by the Founding Fathers at the Constitutional Convention in Philadelphia in 1791; not reasonable suspicion:
“MR. JUSTICE DOUGLAS, dissenting.
I agree that petitioner was “seized” within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a “search.” But it is a mystery how that “search” and that “seizure” can be constitutional by Fourth Amendment standards unless there was “probable cause” [n1] to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.
The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue and that [p36] was the offense charged, there would be “probable cause” shown. But the crime here is carrying concealed weapons; [n2] and there is no basis for concluding that the officer had “probable cause” for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of “probable cause.” We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action. We have said precisely the opposite over and over again. [n3] [p37]
In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.” Moreover, the meaning of “probable cause” is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100-102:
The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of “probable cause” before a magistrate was required.
That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant [p38] for arrest. And that principle has survived to this day. . . .
. . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.
The infringement on personal liberty of any “seizure” of a person can only be “reasonable” under the Fourth Amendment if we require the police to possess “probable cause” before they seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.
In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175.
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. [p39] Until the Fourth Amendment, which is closely allied with the Fifth, [n4] is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.” Terry v. Ohio, 392 U.S. 1 (1968) Douglas,J. Dissenting.
Moreover, it does not matter what the arresting officer’s state of mind was, even if he was mistaken as to the crime committed, so long as in retrospect, a reasonably well trained officer would have believed that there was a “fair probability” that you committed a crime.
The Closely Related Offense Doctrine; A Reasonable But Now Extinct Approach To Whether Civil Liability Attaches To An Arrest.
The Ninth Circuit Court of Appeals used to employ a doctrine entitled the “Closely Related Offense Doctrine.” Under that doctrine, if an officer arrested a civilian for one particular crime, but the police officer didn’t have probable cause to have arrested the person was for that crime, if a reasonably well trained officer would have believed that probable cause existed to have arrested the person for some other crime that was “closely related” to the crime that the person was arrested for, then the arrest is valid under the “Closely Related Offense Doctrine.” Bingham v City of Manhattan Beach, 341 F.3d 939 (9th Cir. 2003.) However, the “Closely Related Offense Doctrine” was overruled by the U.S. Supreme Court in Devenpeck v. Alford, 543 U.S. 146 (2004.)
“Our cases make clear that an arresting officers state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. . . . That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. . .. [T]he Fourth Amendments concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent.” See, Devenpeck v. Alford, 543 U.S. 146, 15253 (2004.)
Accordingly, the arresting police officers belief about what crime a person committed is irrelevant. All that matters is whether a reasonably well trained officer would have entertained a belief that the person arrested committed a crime; that is, the “reasonably well trained officer” in the abstract. If that fictional “reasonably well trained police officer” would not have believed that a crime had been committed, the arrested person may be able to obtain compensation for his/her false arrest.
Many times an officer mistakenly believes that certain conduct is a crime, but it’s not (See, Tab above for “Police Misconduct News“, and the Section therein entitled “Possum Impossible”; the Lorenzo Oliver case; Ninth Circuit Court of Appeals holds that, as matter of law, no crime committed.) Other times, an officer arrests a person for a crime that he has no warrant or probable cause for, but, under the facts as the officer knew them, there was nonetheless a crime committed, that would have been apparent to the officer is he was familiar with that particular criminal statute. So long as a reasonably well trained officer would have believed that probable cause existed from the facts known to the arresting officer, the arrest is generally lawful. See, Devenpeck v. Alford, 543 U.S. 146, 15253 (2004.)
Atwater And The Rise Of The Police State
If a police officer arrests you for any violation of law, even a parking ticket or a seat-belt violation, actually taking you to jail and booking you does not violate the Fourth Amendment; at least since 2001. See, Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (arrest for violation of Texas seat-belt statute that carries a maximum $50.00 fine and no jail, not violative of the Fourth Amendment’s prohibition against “unreasonable searches and seizures”.)(See also, however, stinging Dissent by Justice O’Connor in Atwater:
“Such unbounded discretion [to arrest for even the most trivial offense] carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of an epidemic of unnecessary minor-offense arrests. Ante, at 33, and n. 25. But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officers subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. See Whren v. United States, supra, at 813. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers post stop actions which are properly within our reach comport with the Fourth Amendments guarantee of reasonableness . . . . The Court neglects the Fourth Amendments express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.” Atwater v. City of Lago Vista, 532 U.S. 318 (2001) O’Connor, J., Dissenting.
FALSE ARREST BY PEACE OFFICER – FEDERAL LAW – QUALIFIED IMMUNITY
Under the Qualified Immunity Doctrine, so long as a reasonably well trained officer could have believed that a person’s conduct constituted a crime, the officer who actually violated the Constitutional rights of another is nonetheless immune from being liable for damages caused by the officer’s Constitutional violation:
“The qualified immunity analysis involves two separate steps. First, the court determines whether the facts show the officers conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the alleged conduct did not violate a constitutional right, then the defendants are entitled to immunity and the claim must be dismissed. However, if the alleged conduct did violate such a right, then the court must determine whether the right was clearly established at the time of the alleged unlawful action. Id. A right is clearly established if a reasonable official would understand that what he is doing violates that right. Id. at 202. If the right is not clearly established, then the officer is entitled to qualified immunity. While the order in which these questions are addressed is left to the courts sound discretion, it is often beneficial to perform the analysis in the sequence outlined above. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). Of course, where a claim of qualified immunity is to be denied, both questions must be answered.” Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009.)
These days, qualified immunity for false arrests are so common, that they almost make false arrest cases impossible to win.
WHAT YOU CAN DO
Someone has to stand-up to the bullies of society, who think that using state police power to humiliate others, is funny, and makes them big men (or women.) There are thousands of others like you, who are good people, and have been somehow, for some reason that you could not have ever imagined, victimized by the government. It might as well be you. Stand-up for justice. Stand-up for our form of self-government. Stand-up for the spilled-blood of our fathers, who bravery died to prevent the very thing, that the government is doing to you right now.
Click on “Home”, above, or the other pages shown, for the information or assistance that we can provide for you. If you need to speak with a lawyer about your particular legal situation, please call the Law Offices of Jerry L. Steering for a free telephone consultation. Also, if you have been the victim of a False Arrest or Excessive Force by a police officer, check our Section, above, entitled: “What To Do If You Have Been Beaten-Up Or False Arrested By The Police“.
Thank you, and best of luck, whatever your needs.
Law Offices of Jerry L. Steering
Jerry L. Steering, Esq.