Can You Sue The Police For Malicious Criminal Prosecutions?

 

 

 

 

 

The California Law Review Commission was created by statute in 1953, to assist the Legislature and the Governor by examining California law and recommending needed reforms. In 1963 the California Law Review Commission studied the then existing common law immunities for public employees, including judges, prosecutors and police officers (i.e. absolute Judicial Immunity, Stump v. Sparkman, 435  U.S. 349 (1978)), and absolute immunity for criminal prosecutors (Imbler v. Patchman, 424 U.S. 409 (1975).)  “Common law immunities”, are immunities enjoyed by usually governmental officials from claims or even lawsuits, that were “created” by judicial fiat; by the learned Judges of our state courts and of the federal bench. The word “common law” literally means judge made law.

 

Although one 2011 Ninth Circuit Court of Appeals case held that public prosecutors may even be sued for malicious criminal prosecutions A criminal defendant may maintain a malicious prosecution claim not only against prosecutors but also against others —including police officers and investigators —who wrongfully caused his prosecution” Smith v. Almada, 640 F.3d 931 (2011) This was a clear misstatement by the Ninth Circuit of prosecutorial immunity; that of a public prosecutor. See, Imbler v. Patchman, 424 U.S. 409 (1975) (absolute prosecutorial immunity for filing and prosecuting any criminal action.)

 

The Ninth Circuit cannot simply ignore Imbler because it’s a U.S. Supreme Court case, and it hasn’t.   In reviewing the then existing common law immunity of a public employee for a malicious criminal prosecution, the  California Law Review Commission recommended that although individual liability of for public employees be kept, that the public employer be liable for the malicious criminal prosecution by its employee:

 

“7. The immunity from liability for malicious prosecution that public employees now enjoy should be continued so that public officials will not be subject to harassment by “crank” suits. However, where public employees have acted maliciously in using their official powers, the injured person should not be totally without remedy. The employing public entity should, therefore, be liable for the damages caused by such abuse of public authority; and, in those cases where the responsible public employee acted with actual malice, the public entity should have the right to indemnity from the employee.”  California Law Review Commission, Recommendation relating to Sovereign Immunity; Number 1-Tort Liability of Public Entities and Public Employees January 1963; p.817.

 

Contrary to that recommendation of the California Law Review Commission, that a person who is the victim of an attempted frame-up should have some legal remedy,  the California legislature enacted Cal. Gov’t Code § 821.6, that provides for absolute malicious prosecution immunity for any public employee, acting in the course and scope of their employment.  

 

Cal. Gov’t Code § 821.6 Provides:

 

“821.6.  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.”

 

This is simply malicious prosecution immunity under California state law for any public  employee, including peace officers, acting in the course and scope of their employment. This section represents an exercise of sovereign immunity; “the King can do no wrong.”   The California Courts have bent-over backwards (or “forwards” [sticking it to you], for the body politic) to protect police officers from being liable for damages caused by their attempted framing of persons; including damages for innocents having to sit in jail on trumped-up charges that were almost always brought to justify the unjustified use of force, or brought to justify an officer’s premature arrest of a person. Frankly Ladies and Gentlemen, this is outrageous, and downright un-American. It’s morally wrong (i.e. “Thou shalt not bear false witness”), it’s ethically wrong (what could be worse than framing your victim), and it simply should not be tolerated. However, if this author had a nickel for every falsehood testified to by a peace officer in LA County, he would be richer than Bill Gates.

 

An arrest before investigation often results in a malicious prosecution, because the officer has taken that step from which there is no return; his/her false arrest of you. Personal, peer and institutional / administrative pressures, demand that the peace officer neither admit his/her mistake of law, nor apologize for same. Police agencies never admit that they’re wrong, and never apologize. The mistaken officer now has to defend that decision to arrest you, even if it was based on an honest, but legally insufficient mistake about whether the conduct that he/she accused you of constituted a crime. So, when the District Attorney’s office files a criminal case against you for a crime against the officer, there’s no taking it back. The cop has to lie about something material and inculpatory, to avoid  liability, or he is gone from the department. Period.

 

There are other officers who simply contrive bogus reports to cover themselves, since you look like you were run-over by a truck, and he/she doesn’t have a hair out of place. So, you have two basic categories of malicious criminal prosecutions:

 

1) ”The Creepy Cop”. When the cop was the aggressor and knows that he/she is in the wrong, and abuses his/her their authority knows what happened, and composes a fictional account of his encounter with you; orally (i.e. internal affairs interviews [recorded and in writing]; bogus arrest / crime reports, falsely accusing you of committing a crime against him/her, when you’re the victim of his/her crimes against you.)

 

2) The “Incompetent Cop”; When the cop doesn’t put material false statements of fact in his report (i.e. a bogus report), but doesn’t know that the conduct that he arrested you for is not a crime.

 

  

Such a malicious criminal prosecution, is the violating peace officer’s “first bite at the apple”; their first chance to preclude the violated plaintiff (the victim of police misconduct) from suing the violating police officer. A false arrest is legally determined based on what a police officer knew about your conduct and intent, at the time of your arrest. However, notwithstanding that being the case, the Conservatives on the Supreme Court of the United States, and, more recently, the Supreme Court of California, have decided to preclude you from suing for your false arrest, if you’re convicted of the crime. This is so, notwithstanding the fact that your conviction is not a legal determination that there was probable cause to arrest you. See, Heck v. Humphrey, 512 U.S. 477 (1994) and Yount v. City of Sacramento, 43 Cal. 4th 885 (2008.)  

 

 

 

 

As shown above, when the California Legislature rejected the recommendation of the California Law Review Commission, and immunized public employees (acting in the course and scope of their employment) from malicious prosecutions by them; nothing more. Earlier California cases limited the scope of section 821.6 to its obvious meaning; that Section 821.6 only provides immunity for malicious prosecutions; not for other California torts. See, Sullivan v. County of Los Angeles, 12 Cal.3d 710 (1974) (Section 821.6 doesn’t provides immunity for anything other than for a malicious prosecution.)

 

Finding a new way to stick-it to the public to protect incompetent or corrupt police officers, the California Courts have even expanded, ad nauseam, malicious prosecution immunity to other actions that have never been deemed associated with actual criminal prosecutions. This “theory” of what police conduct is now immunized from civil liability (i.e. getting sued), is nonsensical, intellectually dishonest, and does nothing other than create a license for California peace officers to lie, cheat and trample your rights. For example, under this expansion of Section 821.6, the police are immune for perjuring themselves on a search warrant application, to a Judge to get a search warrant for your home (Kilroy v. State of California, 14 Cal.Rptr.3d 109 (2004).) It also immunizes California peace officers from being held accountable for using force or violence to prevent, dissuade or retaliate against you for exercising your Constitutional rights (save a claim based on a false arrest theory; Gillan v. City of San Marino, 147 Cal.App.4th 1033 (2007)), and for any actions by the police associated with their investigatory functions; even for defamation / libel. See, Ingram v. Flippo, 74 Cal.App.4th 1280 (1999.)

 

The rationale for this unwarranted and simply evil expansion of Section 821.6, is that since you can’t have a criminal prosecution without an investigation (except when the police are beating you up or falsely arresting you, so there’s no need for any “investigation”), and since you can’t have an investigation without a detention and/or an arrest and/or a search, let’s just immunize police officers for everything associated with any criminal investigation; no matter how malicious or in bad-faith it’s being carried-out; whether or not it results in any prosecution, other than false arrest / false imprisonment and/or a battery. See, Amylou R. v. County of Riverside, 28 Cal.App.4th 140 (1994) (Government Code Section 821.6 immunity for all police investigations, save false arrest and battery), and Kilroy v. State of California, 119 Cal.App.4th 140 (2004) (Section 821.6 immunity even immunizes a police officer obtaining the issuance of a search warrant, when obtained by deliberate falsehoods made to issuing Judge.)   The officers may not be all that familiar with words like res judicata or collateral estoppel, or may not of even heard of Heck v. Humphrey,  but they know enough; that if they get you convicted, you definitely cannot sue the officer for either false arrest or malicious prosecution, and, most likely, you can no longer sue (either as a practical or technical matter) for the use of unreasonable force upon you.   Therefore, in order to protect him/her self from any criminal  liability (i.e. 18 U.S.C. §§ 241 [conspiracy to deprive of federal Constitutional rights] & 242 [violation of federal Constitutional rights under color of law]; Cal. 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.)  

 

Ladies and Gentlemen, on July 5, 2016 the Ninth Circuit Court of Appeals came to our rescue from the cruel incantations and consequences of the California Court of Appeals, in their twisted expansion of Section 821.6 immunity. In Garmon v. County of Los Angeles, No. 12-55109 (July 5, 2016)the Ninth Circuit Court of Appeals held that Section 821.6 immunity only immunizes government officials (i.e. the police) for their malicious prosecutions of innocents; not for anything else; in direct contradiction of those California Court of Appeal cases cited above, when they expanded ad nauseum malicious prosecution immunity to just about everything else. The basis for the Ninth Circuit’s holding in Garmon, is that the language of Section 821.6 is clear, and that the last pronouncement by the California Supreme Court on Section 821.6 immunity limited  the reach of that immunity only to claims of malicious criminal prosecutions, and nothing more.

 

So, what is the state of the law on the immunity regarding Section 821.6? Simple. If you are in a California state court Section 821.6 immunity will basically immunize the cops for any California state law claims other than a false arrest / false imprisonment or a battery; save non-arrest or case investigation issues. Other than that, too bad for the innocent. You’re out of luck. 

 

However, if your case involves claims that would be given Section 821.6 immunity if you were in a California state court, and instead, you are in a United States District Court within the territorial jurisdiction of the Ninth Circuit Court of Appeals, Section 821.6 immunity should not be available to the police. State court, cops win; federal court cops lose. Imagine that. That is the present state of Section 821.6 immunity.

 

Tort claims are typically matters of state law, raising no federal question. However, theconduct 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. 

 

 

 

 

 

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266(1994), there is a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors. There are a myriad of Ninth Circuit Court of Appeals cases that allow the plaintiff in your typical police “beat-em-up” and “hook-em up” case, that allow the plaintiff who was deemed to have been falsely arrested and the victim of unreasonable force by police officers, to obtain monetary redress (i.e. money), as discussed below.

 

This political and practical consensus in the law is that a malicious criminal prosecution violates the Fourth Amendment’s proscription against “unreasonable searches and seizures”, but is not a substantive due process violation under the Fourteenth Amendment. Most United States District Courts and the United States Courts of Appeals (the federl intermediate level appellate courts) permit a Section 1983 remedy for a malicious criminal prosecution.  The First, Second, and Eleventh Circuits compose the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, must satisfy the common law elements of the claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrate on whether a constitutional violation exists.

 

Currently, all of the federal Circuits, save the Seventh Circuit Court of Appeals, recognize the “Constitutional Tort” of malicious prosecution by peace officers. Although their reasoning may somewhat differ these United States Courts of Appeals allow monetary redress for a person who was subjected to a malicious criminal prosecution, federal (via 42 U.S.C. §  1983.) They do so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action, compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy. 

 

Although sister circuits have categorized the Third Circuit as a “Tort Circuit”, the Third Circuit has more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continues to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause.  The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail. 

 

The Ninth Circuit Court of Appeals has held that a person who the government attempted to frame, may sue under Section 1983 for their malicious criminal state court prosecution, as a “naked constitutional tort”; as an unreasonable seizure under Fourth Amendment to the United States Constitution. Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.)   This is the position of most of the other federal Circuit Courts of Appeals. The Ninth Circuit also relies on California substantive law on the elements of the tort of malicious prosecution, and its parameters.   There is no basis for the Ninth Circuit doing this, other rather than their abhorrence of the government being able to frame a civilian who was the victim of police abuse, with impunityThere is no reason why the courts can simply declare the right to be free from a malicious criminal prosecution to be so fundamental, that “it goes without saying that in our system of ordered liberty, it’s a Constitutional violation. The vehicle for this being the Ninth Amendment and the Fourteenth Amendment’s guaranty of substantive due process of the law.

 

The Ninth Circuit has also continued its pre-Galbraith held that in order to plead basis upon which to state a viable claim under Section 1983 for damages for your attempted frame-up; that the malicious prosecution was brought with the intent to deprive you of some other “specific” constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.)

 

In other words, some right other than the right to be free of a malicious criminal prosecution. This basis for the creation of the “Constitutional Tort” of “malicious criminal prosecution” by the Ninth Circuit; that you were maliciously prosecuted (i.e. attempted frame-up) to deprive you of some other Constitutional right, makes no sense. If the police attempted to frame you because you criticized them, that’s a straight-up First Amendment Free Speech / Right To Petition For Redress Of Grievances violation. You don’t need to prove the “constitutional tort” of malicious prosecution, as your damages are the same.

 

Notwithstanding that obvious exercise in logic, the Ninth Circuit nonetheless felt compelled to make that illogical construct in the 1980′s in Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987). In that case a black man of African descent claimed that two LAPD officers beat-him-up and falsely arrested him while calling him a “nigger” and a “koon”, and latter attempted to frame him by submitting false police reports to the Los Angeles City Attorney’s Office and lying at his trial; testimony that the jury didn’t believe. The Ninth Circuit allowed him to sue for his malicious prosecution, because it was brought to deprive him of “some other constitutional right”; in this case, the right to equal protection of the laws (i.e. actions committed because of Usher’s race.) That is, that the “malicious prosecution” was merely the tool that the officers used to deny Usher “equal protection of the laws.

 

On it face, however, Usher’s analysis is faulty. Under the Usher Line of case, all that the aggrieved plaintiff needs to show to claim to recover damages for their bogus malicious prosecution, is that the officers procured their bogus criminal prosecution to violate some other constitutional right. In Usher, his malicious prosecution was procured because of his race. Accordingly, the constitutional violation was a violation of Usher’s right to equal protection of the laws under the 14th Amendment to the U.S. Constitution; exactly the equal protection that the 14th Amendment was designed to protect. Similarly, if the police had procured Usher’s bogus criminal prosecution because he verbally protested or verbally challenged their actions, then Usher could recover damages for his malicious criminal prosecution as a violation of his right to Freedom of Speech / Right to Petition the Government for Redress of Grievances under the First Amendment.

 

Notwithstanding that pre-Galbraith and pre-Albright language, you can, as a real life practical matter, usually get a United States District Judge to allow you to sue for a malicious criminal prosecutions as a “naked constitutional tort”, and they usually are not going to insist that your malicious criminal prosecution was brought to deprive you of some other right. However, to this day, the confusion in Ninth Circuit cases sometimes results in some District Court judges still requiring malicious prosecution plaintiffs to show the violation of some other constitutional right to obtain damages for your malicious criminal prosecution. However, this issue should be settled soon. 

 

The United States Supreme Court has now granted review (Writ of Certiorari) of a case out of the Seventh Circuit Court of Appeals that held that a malicious criminal prosecution is not actionable as a constitutional tort under the Fourth Amendment. See, Manuel v. City of Joliett, 14-9496 (2016). That case was argued before the Supreme Court on October 5, 2016, and, a decision should issue during the current October’s Term of the Supreme Court; presumably sometime in 2017. The actual question that the Supreme Court is deciding in Manuel v. City of Joliett is:

 

“The question presented is whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment. This question was raised, but left unanswered, by this Court in Albright v. Oliver, 510 U.S. 266 (1994). Since then, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a Fourth Amendment malicious prosecution claim is cognizable through 42 U.S.C. § 1983 (“Section 1983″). Only the Seventh Circuit holds that a Fourth Amendment Section 1983 malicious prosecution claim is not cognizable.”

 

Hopefully, that Supreme Court Case will put the issue to rest, and will provide that a malicious criminal prosecution is a straight-up Fourth Amendment violation. However, for the time being, assuming that one is proceeding under Galbraith, a malicious prosecution plaintiff must prove the elements of common law malicious prosecution under California law. There are California Appellate cases that have even held that the District Attorney dismisses your criminal case, if there was a scintilla of doubt in the mind of the dismissing party of the guilt of the accused (i.e. you), that there was not a sufficient favorable termination of the criminal case to constitute a sufficient “favorable termination.”

 

In order to prevail on your federal malicious prosecution claim in a California United States District Court and the other states and protectorates within the territory of the United States Court of Appeals for the Ninth Circuit, one must prove that they were maliciously prosecuted under California law (which is sort of ridiculous, since Cal. Gov’t Code Section 821.6 gives the police complete immunity for attempting to frame you.) This is no joke. A malicious criminal prosecution, is “sort of” (when the politicians feel like it) recognized as a federal Constitutional tort, but the federal court simply adopts California state malicious prosecution law, as the Constitutional standard for proving that claim. The problem with this, as a practical matter, is that the California courts have acted more like the Delphic Oracle, than Courts of Equity, whose primary function is to seek the truth and to do justice. Although the vindication of federal Constitutional rights are of great importance (according to Congress) and are deserved of great respect, the California courts flat-out start-out their malicious prosecution analysis, by stating that malicious prosecution, is a disfavored remedy. The California courts then view the state tort with general disdain, so their rulings on various issues, such as what is a sufficient “favorable termination” of the underlying criminal action to satisfy the “favorable termination” element of the tort of malicious prosecution, are, for lacked of a better term; creepy. Creepy in the sense, that they knowing are permitting persons who lied to a District Attorney or his/her Deputy District Attorney, that you committed a crime, when you were probably the victim. Under California law the elements of a malicious criminal prosecution are:

 

1)  The defendant was actively instrumental in causing the plaintiff to be prosecuted, or in causing the continuation of the prosecution (i.e. submitting bogus arrest reports to get you prosecuted for a crime that you’re innocent of, and continuing to withhold exculpatory evidence);

 

2)  The criminal action against the plaintiff ended in plaintiff’s favor (i.e. Not Guilty Verdict; Dismissal by prosecution based on belief of innocence, or sometimes, claim that prosecution did not believe that it would have obtained a conviction against the defendant/malicious prosecution plaintiff. If one makes any sort of deal or bargain in exchange for the dismissal of criminal charges, the criminal action will not be considered to have ended in plaintiff’s favor for malicious prosecution purposes. THAT MEANS, YOU CAN’T AGREE TO ANYTHING; NOT EVEN ONE DOLLAR TO THE BATTERED WOMEN’S SHELTER; NOTHING AT ALL.

3)  That no reasonable person in defendant’s circumstances would have believed that there were grounds for causing the plaintiff to  be arrested or prosecuted (i.e. the defendants, here the cops, made-up their story about you have resisting or battered them; something completely  normal);

 

4)  That the defendant acted primarily for a  purpose he defendant other than to bring the plaintiff to justice (i.e. the defendants, here the cops, made-up their story about you have resisting or battered them, to falsely convict you, to protect themselves; primarily from civil liability, that the employing entity is going to pick-up any tab for anyway.)

 

5)  The plaintiff was harmed; and (i.e. attorney’s fees, litigation expenses, lost wages / profits from work/employment, mental / psychological   damages, damage to reputation; etc.);

 

6)  The defendant’s conduct was a substantial factor in causing the plaintiff’s harm (i.e. that the prosecutor either relied on the defendant cop’s bogus story about the incident complained of, and prosecuted the plaintiff [the defendant in the underlying criminal case], or the cops caused the prosecutor to file the underlying criminal case by pressuring him/her to do so, against his/her independent judgment; all resulting in damages; attorney’s fees, mental and emotional distress,  damage to reputation and  business reputation, etc.);

 

7)  The malicious actions of the defendant caused plaintiff to suffer injury, damage, loss or harm (i.e. attorney’s fees, mental and emotional distress, damage to reputation and business reputation, etc. CACI No. 1500 (verbatim.)

 

 

Under California law, although private citizens neither have the authority to charge another with a crime, even private citizens are deemed to have procured a criminal prosecution if they knowingly present false material information to police or prosecutorial authorities that results in a bogus criminal prosecution. See, Williams v. Hartford Insurance Company, 147 Cal.App.3d 893, 195 Cal.Rptr. 448 (1983.) A private person’s reporting, even knowingly falsely, criminal conduct by another to police officials that results in a false arrest, is also conduct immunized by statute (Cal. Civil Code § 47(b)), and by case law (Hagberg v. California Federal Bank32  Cal. 4th 350 (2004)). A private person who falsely and maliciously procures the criminal prosecution of another (that is favorably terminated for the criminal defendant) may nonetheless be sued for damages for a malicious criminal prosecution. A private person may also be sued for violation of another’s federal Constitutional rights, if they acted in conspiratorial, concerted or joint action with a state official (i.e. a police officer) to deprive another of their federal Constitutional rights.

 

A police officer will be deemed to have procured (to have legally “caused”) a malicious criminal prosecution if he submits materially false police reports that prosecutorial authorities rely on in deciding to file criminal charges against the Section 1983 plaintiff, or, if he pressures the prosecutor in filing the case, when he wouldn’t have otherwise done so. See, Smiddy v. Varney, 803 F.2d 1469 (9th Cir. 1986) (malicious prosecution plaintiff must rebut presumption of independent prosecutorial judgment [that is, the presumption of the regularity of governmental proceedings under the federal rules of evidence] in deciding to prosecute, by showing that prosecutor either relied on materially false representations by police, or succumbed to pressure by the police (or others), such as filing the criminal action, to protect the police; not because the defendant was guilty.) See also, Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988); Barlow v. Officer George Ground, 943 F.2d 1132 (9th Cir. 1991); Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987), Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621 (9th Cir. 1988.)

 

 

 

“A plaintiff who proves that police arrested him without probable cause is entitled to compensation for the economic and non-economic damages he incurs as a proximate result of these violations. Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988). Reasonable attorney’s fees incurred by the plaintiff can constitute part of the foreseeable economic damages, unless the prosecutor’s decision to file charges is such an independent judgment that it must be considered the proximate cause of the subsequent criminal proceedings. Id., at 1389-90. However, under California state law, you cannot obtain damages for your false arrest, for your continued incarceration in jail, after than point in time when the District Attorney files criminal charges against you with the Court. See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997.)  The rationale for that holding is that since Cal. Gov’t Code § 821.6 provides immunity to any California public employee (acting in the course and scope of their employment) from civil liability for damages caused by their procuring your bogus and malicious criminal prosecution, that they are not civilly liable to you for any continued confinement of you in jail because of your criminal prosecution. Accordingly, under California state law, a police officer who falsely arrests you may be liable in damages to you for your arrest and incarceration; but only for that period of time prior to the DA’s Office filing a criminal case against you. If you’re required to post bail to be released from pre-trial custody, and you either can’t or won’t post bail, or, if you’re simply denied bail and have to remain in jail before your trial, the dirty rat cop that falsely procured your completely bogus criminal prosecution isn’t liable for either your confinement on false charges, or for having to defend those bogus charges.

 

It’s logical, but it’s wrong, cruel and evil nonetheless.

 


Accordingly, depending on the Judge that you get, and where you are in the United States, you may or may not be able to obtain redress for your malicious criminal prosecution. However, even if your Judge will not allow you to obtain damages for your malicious criminal prosecution, you should nonetheless be able to obtain the same damages for your arrest without probable cause or a warrant under the Fourth Amendment to the United States Constitution.

 

Good luck,

 

Jerry L. Steering, Esq.

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