IS THERE A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION UNDER EITHER CALIFORNIA STATE LAW OR FEDERAL LAW?
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.
“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.)
MALICIOUS PROSECUTION IMMUNITY UNDER CALIFORNIA LAW EXPANDED AD NAUSEUM.
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.)
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 California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.
MALICIOUS CRIMINAL PROSECUTIONS BY PEACE OFFICERS ARE NOW FINALLY CONSIDERED TO BE A VIOLATION OF A PERSON’S FOURTH AMENDMENT RIGHTS.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017.
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 was 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 federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer. The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.
Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal (via 42 U.S.C. § 1983.) They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy. Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it 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.
Until March 21, 2017, the Ninth Circuit Court of Appeals 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 was the position of most of the other federal Circuit Courts of Appeals. The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a Fourth Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech. Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) In other words, some other constitutional 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 SUPREME COURT FINALLY HOLDS THAT A PERSON MAY RECOVER DAMAGES FOR THEIR INCARCERATION WHILE AWAITING TRIAL ON BOGUS CRIMINAL CHARGES THAT THE PERSON PREVAILED ON.
When the police arrests you without a warrant, unless you are either released pursuant to a citation / promise to appear in court, or on you own recognizance, or on bail, you will stay locked-up in jail until you appear in court; usually 48 hours. Although the Supreme Court has mandated that 48 hours period as the longest you can be held in jail without a warrant before seeing a judge, County of Riverside v. McLaughlin (89-1817), 500 U.S. 44 (1991), California Courts routinely ignore Justice O’Connor’s 48 limit, often jailing person without a warrant for three or four days, citing Cal. Penal Code Section 825 (“825. (a) (1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays“); the very statute found to be unconstitutional in County of Riverside v. McLaughlin.
Accordingly, even under California law you may recover damages for your false arrest from the police for your being in jail prior to criminal charges being filed against you. However, because Cal. Gov’t Code § 821.6 gives police officials complete immunity for civil damages for procuring your bogus criminal prosecution, if you are kept in jail after the District Attorney’s Office files a criminal case against you the police are no longer liable for damages for your bogus criminal prosecution and your continued confinement in jail while awaiting trial on those charges under California state law (not federal). Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997.) The rationale for that holding is that as 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, as it is the malicious criminal prosecution keeping you in jail and no longer the arrest by the police officer, the peace officer is not liable for either your bogus criminal prosecution or for your confinement in jail awaiting trial. That, however, is not the end of the story.
Although California state law immunizes any public employee for damages caused by their procurement of a bogus and malicious criminal case against you, federal law gives some relief to those so aggrieved.
“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. Borunda v. Richmond, at 1389-90.
As discussed above, if the District Attorney’s Office has filed a criminal case against you by the time that you appear in court, then your confinement is no longer justified pursuant to an arrest by the police, but instead pursuant to a criminal Complaint , Indictment or a Petition to Revoke Probation or Parole (and it’s attendant “parole hold“) filed with a court. At that point in time, the criminal case against you that was filed by the District Attorney’s Office is what is keeping you in jail, awaiting trial.
On March 21, 2017 the United States Supreme Court finally held that a police officer may be liable for damages caused incarceration in a jail based on police report that falsely accused the person of a crime in Manuel v. City, of Joliett, 14-9496 (March 21, 2017).
Manuel raised the following question:
The Supreme Court dodged the question of whether a malicious criminal prosecution by a police officer is a constitutional violation, and if it is, what provision of the federal constitution do we attribute it to. Manuel v. City, of Joliett, 14-9496 (March 21, 2017). However, the Supreme Court did allow for the recovery of damages for the continued incarceration caused by a materially false and misleading police report that resulted in the filing of a bogus criminal action, after the criminal action was filed.
1. Manuel may challenge his pretrial detention on Fourth Amendment grounds. This conclusion follows
from the Court’s settled precedent. In Gerstein v. Pugh, 420 U. S. 103, the Court decided that a pretrial detention challenge was governed by the Fourth Amendment, noting that the Fourth Amendment establishes the minimum constitutional “standards and procedures” not just for arrest but also for “detention,” id., at 111, and “always has been thought to define” the appropriate process “for seizures of person[s] . . . in criminal cases, including the detention of suspects pending trial,” id., at 125, n. 27. And in Albright v. Oliver, 510 U. S. 266, a majority of the Court again looked to the Fourth Amendment to assess pretrial restraints on liberty. Relying on Gerstein, the plurality reiterated that the Fourth Amendment is the “relevan[t]” constitutional provision to assess the “deprivations of liberty that go hand in hand with criminal prosecutions.” Id., at 274; see id., at 290 (Souter, J., concurring in judgment) (“[R]ules of recovery for such harms have naturally coalesced under the Fourth Amendment”). That the pretrial restraints in Albright arose pursuant to legal process made no difference, given that they were allegedly unsupported by probable cause.
As reflected in those cases, pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process. The Fourth Amendment prohibits government officials from detaining a person absent probable cause. And where legal process has gone forward, but has done nothing to satisfy the probable-cause requirement, it cannot extinguish a detainee’s Fourth Amendment claim. That was the case here: Because the judge’s determination of probable cause was based solely on fabricated evidence, it did not expunge Manuel’s Fourth Amendment claim. For that reason, Manuel stated a Fourth Amendment claim when he sought relief not merely for his arrest, but also for his pretrial detention. Pp. 6–10. Manuel v. City, of Joliett, 14-9496 (March 21, 2017)
The Court’s decision on the Fourth Amendment only changes the law in the Seventh Circuit. However, the Court punted on the broader question whether common law malicious prosecution elements, including favorable termination, should play any role in section 1983 jurisprudence outside of situations covered by Heck v. Humphrey, 512 U.S. 477 (1994), where plaintiffs effectively challenge existing convictions.
Manuel provided the Court with its first opportunity in the twenty-three years since Albright v. Oliver to consider the elements of such claims. Regrettably, it did not do so in Manuel. Still, the Court will one day have to deal with these issues, including the favorable termination requirement.
When it does, recently confirmed Justice Gorsuch will be involved in the decision. And it is worth noting that then-Judge Gorsuch concurred in the judgment in Cordova v. City of Albuquerque, 816 F.3d 645 (10th Cir. 2016), where he came out against incorporating the common law tort elements of malicious prosecution, including favorable termination, in section 1983 cases.
If you have questions about malicious criminal prosecutions and whether you have a viable malicious prosecution case, please contact the Law Office of Jerry L. Steering for a free telephone consultation.
Jerry L. Steering, Esq.
The Law Offices Of Jerry L. Steering, 4063 Birch Street, Suite 100, Newport Beach, CA 92660, 949-474-1849, (Fax) 949-474-1883, email@example.com