LAW OFFICES OF JERRY L. STEERING
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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.)
How many people are willing to spend tens of thousands, if not hundreds 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). 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 to anything, you can’t sue for the federal Constitutional tort of a malicious criminal prosecution (a “tort” that’s not available against a public employee, including and especially the cops, under the immunities provided to public employees under California state law, and a very “tenuous” federal Constitutional tort. See, Cal. Gov’ t Code § 821.6 (statutory absolute malicious prosecution immunity for any public employee engaged in the course and scope of public employment; since 1963, by statute.) Section 821.6 Immunity had been extended to absurdity by right wing judges who’s agenda is to create shields to almost any sort of government misconduct so long as the police mischief could be deemed a prelude to some possible potential investigation, as a prelude to a potential criminal prosecution.
See, Amylou v. County of Riverside, Kilroy, et al. The police typically author bogus police reports that claim that you committed some crime, like resisting / obstructing / delaying a peace officer and/or battery on a peace officer, that result in a bogus criminal prosecution against you. They 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.
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.) The (just forced out of office) LASD Undersheriff, Paul Tanaka, is a member of the Vikings; a White supremacist Neo-Nazi organiztion with the Los Angeles Sheriff’s Department. See, Thomas v. County of Los Angeles, 978F.2d 504 (9th Cir. 1992.)
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.
Approximately, 90% of “Contempt of Cop” case criminal prosecutions are bogus; either: 1) simple frame-ups, to justify a peace officer’s use of force, or an unlawful arrest, or some other commonly committed Constitutional violations, or 2) simply mind boggling applications (i.e. strained theories of Cal. Penal Code 148(a)(1) violations), or misunderstandings (i.e. don’t understand what Cal. Penal Code 148(a)(1) proscribes), by public prosecutors, as to what types of constitutionally protected conduct, can be criminalized by the government, and, what conduct actually is so criminalized by California criminal statutes.
The District Attorney’s Office is the police. They will routinely file these bogus criminal ”contempt of cop” actions at the request of police agencies, who need to get their victims criminally prosecuted; to beat them down, and to make them take a plea of some sort; to preclude, or at least substantially impair, the police misconduct victim’s (the criminal defendant’s) ability to seek redress; civil, or otherwise; a basic First Amendment Constitutional right (to sue and/or complain about the police; the rights of Freedom of Speech and to Petition the government for redress of grievances.)
Motives For Public Prosecutors To File A Bogus Criminal Action
Simple “Frame-ups”, To Justify A Peace Officer’s Use Of Force, Or An Unlawful Arrest, Or Some Other Commonly Committed Constitutional Violations
Police agencies will almost always back the police officer who beat you, tased you, shot you, pepper-sprayed you, falsely arrested you, submitted false police reports to get you criminally prosecuted, or otherwise abused you. They will destroy evidence, conceal evidence, fabricate evidence, author false police reports, procure false and malicious criminal prosecutions; commonly and routinely for bogus claims of resisting / obstructing / delaying peace officer, assault and battery on a peace officer, and other similar frame-up to cover crimes/torts by cops, and suborn perjury. They will do (almost) anything that will tend to exonerate the officer who victimized you. They do this by falsely prosecuting you.
These cases are, for the most part, misdemeanor criminal prosecutions. Some of the creepier prosecutors think that they’re actually doing you a favor, by allowing you to plead away your civil claims and give you a minor conviction (i.e. misdemeanor, infraction or a plea with a deferred entry of judgment.) Moreover, the deck is staked against you to the maximum extent permitted by law. For example, in Orange County, California, the Court will only provide a Court Reporter for a misdemeanor criminal case, if the defendant is indigent. Otherwise, you can pay the Court Reporters fee for the trial (probably about $1,500.00 per day if you’re lucky; as if the defendant can even afford the lawyer.)
Moreover, the prosecutors in these “contempt of cop” type cases, are usually young and aggressive newer lawyers, who are learning to be trial lawyers by prosecuting misdemeanors, and seeking to make a name for themselves. Many of them see these “contempt of cop” type cases, as an opportunity to increase their influence with the various police agencies that they are protecting from obloquy, and civil and criminal liability, as well as their rising star status with the DA’s office.
In City’s such as Los Angeles and Anaheim, the City Attorneys Office prosecutes misdemeanor offenses, and the District Attorneys office still prosecutes felonies. These City Attorneys Offices, are the very same agencies that are charged with defending the City coffers, from being depleted by lawsuits brought by victims of Constitutional violations, perpetrated upon the criminal defendant that they are prosecuting. If the police misconduct victim, pleads guilty, then, generally, they are barred from suing for a false arrest, and sometimes even from suing for excessive force.
That all being the case, many Deputy District Attorneys and City Attorneys are quite motivated to “Frame The Innocent”; to emotionally and financially beat-down, and (primarily) to civilly impair or disable, the victim of police misconduct (i.e. false arrest / excessive force / malicious prosecution / withholding exculpatory evidence) from vindicating both their honor and dignity (by convicting you.)
a) For career advancement of misdemeanor prosecutors within their own agency, and within the law enforcement community (protecting the County / City coffers, and, perhaps, hoping someday to seek the endorsement of the police, in a run for Judge;
b) Because the Deputy District Attorneys who review case filing packets that are sent from police agencies, actually do not understand that the conduct complained of by the police, does not constitute a violation of Cal. Penal Code 148(a)(1); misdemeanor “resisting / obstructing / delaying a peace officer engaged in the lawful performance of his/her duties.” This is more common that one might imagine. c)To protect the offending peace officers, and their employing agency, from civil and administrative liability;
c) To protect the offending peace officers, from criminal liability;
d) To protect the offending peace officers, from criminal internal discipline (i.e. an admonition, to suspension, or termination from employment);
e) To protect their pending and past criminal and civil cases, involving the offending officers. Officers who have a proven bad reputation for honesty or brutality, are essentially “finished” as police officers, as the prosecution has a duty to disclose such exculpatory evidence to the defense (i.e. Brady v. Maryland, 373 U.S. 83 (1963)), and “proven liars” are not all that convincing in Court. Moreover, when police officers are caught committing crimes of dishonesty (perjury, framing innocents, false arrests based upon lies by the officer(s), stealing narcotics, selling narcotics, torturing inmates and other persons in police custody), persons who were convicted, and may still be in prison, maybe able to vacate their convictions and to get out of prison,. even if they’[re guilty, because many appellate courts feel that a conviction based on the testimony of such a police officer cannot stand.
The "perjury show" involved in the prosecution of these type of cases is choreographed by the police agency, the District Attorney's Office, and their experts and minions. That's right; perjury. Ask any judge or lawyer about the chances of any witness in a Court proceeding actually getting prosecuted for perjury, for testifying falsely in a California or Federal courtroom. After all, in almost every case, criminal or civil, there are two mutually exclusive versions of at least the key material facts. Someone must be lying, so someone is usually committing perjury in a trial. By the way, perjury is a crime that usually requires two witnesses to convict, so if you’re alone and get gooned by the local Constables, the threat of a perjury prosecution, is generally not available as any protection for those unfortunates who were beaten-up, because the police are guaranteed not to tell the truth.
HOW CAN I POSSIBLY BE PROSECUTED FOR A CRIME THAT I AM INNOCENT OF?
In California, the Deputy District Attorney’s have a slogan: “Anyone can convict the guilty”; It takes real talent, however, to convict the innocent.” It takes even less talent to convict one of violation of Cal. Penal Code § 148(a)(1.)
Almost all “Contempt of cop cases” usually allege bogus violations of the following statutes: 1) Cal. Penal Code § 148(a)(1) (resisting / obstructing / delaying peace officer); 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 Cal. 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 more often than her sister counties. Mr. Steering has advised or consulted on, or have represented clients in, literally thousands, of these “contempt of cop” type cases; both civil and criminal. By far, the most commonly abused criminal in California is the primary “contempt of cop” statute; violation of Cal. Penal Code § 148(a)(1).
WHY ARE CRIMINAL CONTEMPT OF COP CASES SO DIFFICULT TO DEFEND IN COURT?
“Contempt of Cop” cases, especially California Penal Code Section § 148(a)(1) cases, are very often difficult to defend, because of several factors, including:
2) The Barriers to Discovery in Contempt Of Cop Cases;
3) The Jury Pools who Sit on Contempt Of Cop cases, and
4) The Jury Instructions in Contempt Of Cop criminal trials;
5) The predisposition of persons to believe police officers;
6) The ease with which police officers lie in Court; they’re professionals at it.
The Void For Vagueness Doctrine
“To satisfy due process, a penal statute [must] define the criminal offense  with sufficient definiteness that ordinary people can understand what conduct is prohibited and  in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U. S. 352, 357. The void-for-vagueness doctrine embraces these requirements.” See, United States v. Skiling, ___ U.S. ____ (2010) (“the intangible right of honest services” language of 18 U.S.C. § 1346 void for vagueness, and can be interpreted as only proscribing bribes and kickbacks; not manipulation of stock prices.)
Cal. Penal Code § 148(a)(1), otherwise known as “contempt of cop”, is the most abused criminal statute in California, simply because it’s so vague. It’s like “Alice in Wonderland”; it means everything and it means nothing. It’s over inclusive; it’s under inclusive. It means whatever the jury wants it to mean. For example, what does “resisting” an officer mean? Is not immediately dropping to the ground on one’s belly and putting one’s hands behind one’s back, after being ordered to do so by a peace officer, a crime? If so, why? Is failing to open the door to one’s home when directed to do so by a peace officer a crime? If so, why? Is failing to exit one’s residence when ordered to do so by a peace officer a crime? Is demanding to know what’s going on before complying with police orders a crime? Is failing to identify oneself to a peace officer upon a demand to do so, a crime? Is verbally challenging a peace officer’s authority to do something, a crime? Is arguing with a police officer “delaying” an officer’s investigation? Is causing an officer to deal with you “delaying” a peace officer? How do you know if the peace officer is engaged in the lawful performance of his/her duties; something necessary for that crime to be committed? Do we have to immediately and without question, obey whatever “commands” that we are given by a Constable? No reasonable person of average intelligence could possibly know the answers to these questions. However, persons are convicted for these very acts and omissions in California every day.
California Penal Code § 148(a)(1) is the quintessential statute that really is “void for vagueness.” See, Skiling v. United States, ___ U.S. ____ (2010.) Section 148(a)(1) is also the statute of choice by police officers to arrest a civilian for violating, for non-criminal conduct, such as for “failing the attitude test”, and other non-criminal actions (i.e. questioning or challenging or protesting police conduct) that lead to Section 148(a) arrests. The ambiguity of Cal. Penal Code § 148(a)(1) creates an opportunity to arrest innocents for “imaginary”(contrived) conduct, that is really no crime at all. Section 148(a)(1) prosecutions are the government’s vehicle to beat-down the victims of the police abuse (i.e. false arrests, excessive force); to use a criminal case to preclude or impair civil redress to those police abuse victims. See, Heck v. Humphrey, 512 U.S. 477 (1994) (can’t sue for false arrest if convicted of crime, even if government didn’t have warrant or probable cause to arrest when arrest was made); See also, Susag v. City of Lake Forest, 94 Cal.App.4th 1401 (2002) (can’t sue cops for excessive force if convicted of resisting arrest.)
There are a variety of Appellate Court cases that provide guidance on what exactly, Section 148(a)(1) prohibits, and what type of conduct is, or is not, proscribed by that statute. So, for example, Appellate cases regarding Section 148(a)(1) show guiding lights as to what that statute means, such as: 1) a person need not quickly respond to even lawful police commands, and has a Constitutional right to verbally challenge, dispute or protest police actions (See, People v. Quiroga, 16 Cal.App.4th 961,966 (1993).) That’s really not what the problem is. The problem is, that in a real criminal trial, in a real California Superior Court, with a real California Superior Court Judge, it is unlikely that when the jury is instructed by the Court on what conduct Section 148(a)(1) prohibits, the Standard California Judicial Council Jury Instructions for violation of Section 148(a)(1) will be given, and not those other Appellate Court cases that provide enough guidance for a jury to know what Section 148(a)(1) actually proscribes.
When a Jury Instruction for a criminal offense is contained in the California Judicial Council Standard Form Jury Instruction Manual (“CALCRIM“), that instruction is usually the only instruction given to the jury on that issue. Although “Special Instructions” are submitted by the lawyers in a case to the court, most of the time they are not given. The Standard California Judicial Council Jury Instructions for violation of Section 148(a)(1) is CALCRIM 2656. It is essentially a recitation of the statute, with an explanation that a peace officer is not lawfully performing his/her duties if they are making an unlawful detention or arrest, or are using excessive force. The California Appellate Courts have integrated the holding of People v. Curtis, 70 Cal.2d 347 (1969) into CALCRIM 2670; that since a peace officer has no duty to act unlawfully, that if the peace officer is acting unlawfully, that he/she is not engaged in the lawful performance of her duties. However, the Jury Instruction does not mention other unlawful conduct, such as, for example: a)First Amendment retaliation (i.e. cop taking action against another for exercise of protected free speech); b) cop unlawfully entering residence to make arrest; c) cop executing a search warrant that is either facially deficient, or was obtained unlawfully [i.e. insufficient probable cause alleged, or outright falsehoods in warrant application to have obtained warrant]; d) ordering one out of residence; e) unreasonably seizing civilians in an unnecessarily painful, humiliating or degrading way. These are but just a few examples, but the point is made; that there are many things that the police do that are unlawful, and unlawful conduct by a police officer is a defense to, such as to violations of:1) Cal. Penal Code 148(a)(1) (resisting / obstructing / delaying peace officer); 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) (See, People v. Curtis , 70 Cal.2d 347 (1969) (defendant cannot be guilty of any crime, an element of which, requires the police officer to be in the lawful performance of his/her duties.) However, it doesn’t matter if those constitutional violations (the examples of unlawful police conduct) are viable defenses in criminal actions for “Contempt Of Cop“ crimes, because if those defenses aren’t contained in a special Jury Instruction, anything that the lawyers say to the jury is just argument; nothing more, and without the force of the law; the law by which they are instructed.
Accordingly, because there are so many creative ways that a prosecutor can claim that certain conduct is criminalized by Section 148(a)(1), and so little guidance, the jury is left to basically decide your guilt or innocence by how they feel about you and about your conduct during the incident complained of. Just Imagine, you got your butt kicked in front of your children for protesting an officer’s command to prostrate yourself on the ground, and the prosecution argues any of those examples discussed above. If you said words that might anger a juror, or act in a manner that they can’t imagine themselves acting like (until someone tells one of them to get down on the ground, immediately and without question), then “Contempt Of Cop“ is just the ticket for the jury to let you know that they disapprove of your conduct. Moreover, typically, most of the disapproved conduct perceived by the jury, is based upon police fabrications and choreographed perjury, rather than the actual conduct of the “Contempt Of Cop“ criminal defendant. Unlike most other legitimate professions, lying under oath is an art form in the police profession. It is literally their job; their duty to themselves.
The deal is so rigged against most people, who cannot pay tens, if not hundreds of thousands of dollars in attorney’s fees, to defend your honor and your dignity. For example, in California Superior Courts, you actually have to pay to get criminally prosecuted (i.e. have copies of items of discovery made for your lawyer.) Behind the Orange Curtain you don’t get a free court reporter in a misdemeanor case; even for a jury trial; something mind boggling , since you get one every where else in Southern California, unless your indigent.] So, if you have your own retained counsel in a criminal case, your going to have to bring your court reporter for any misdemeanor case, because the County of Orange is too cheap to pay for one.
“THE GREATEST SCAM ON EARTH”; WHY THE AVERAGE INNOCENT JOE OR JANE , GETS CRIMINALLY PROSECUTED FOR “RESISTANCE” / “CONTEMPT OF COP” CRIMES: PART II; THE DISCOVERY “SHAM” OF THE EVIDENCE CODE’S STATUTORY SCHEME FOR THE PRODUCTION OF PEACE OFFICER PERSONNEL RECORDS
1) The Barriers to Pre-Trial “Discovery” in Contempt Of Cop Cases
Barriers to Discovery Of Items Of Evidence, Not Contained In Police Personnel Records; California’s Statutory Scheme For Discovery In Criminal Cases; Proposition 115 and Cal. Penal Code 1054 et seq.
One would think that one’s “liberty” interest, is even greater than their “financial or pecuniary” interest. That being the case, one would opine that “discovery” in a criminal action, would be at least as expansive as that in mere civil litigation; haggling over money. However, the opposite is the case. This seemingly unjustifiable position is justified and condoned by the politicians, since they view the body politic as presuming that if you’re arrested, then you must be guilty, and, therefore, the citizenry is not going to pay for those pesky depositions and document and evidence production demands and inquiries. Moreover, in California Superior Courts, you actually have to pay to get criminally prosecuted (i.e. have copies of items of discovery made for your lawyer.) Behind the Orange Curtain you don’t get a free court reporter, even for a jury trial, in a misdemeanor criminal case; something mind boggling [you get one every where else in Southern California, unless your indigent.] So, if you have your own retained counsel in a criminal case, your going to have to bring your own court reporter to transcribe your trial.
Mr. Steering also has, over the years, developed criminal case discovery strategies for these actions, that, in large part, are due to 1) extensive experience in obtaining criminal discovery in these types of cases, and 2) intricate knowledge of what items of evidence are available from a particular police agency, that will help show your innocence. This is in large part, due to Mr. Steering’s obtaining discovery of evidence in hundreds of civil lights actions (i.e. suing the police.) Most of the time in Superior Court criminal actions, because of Proposition 115 (that limits discovery in criminal actions; See, Cal. Penal Code 1054 et seq.), the police simply don’t give the prosecution what items of evidence that they have about a particular case, even though it is perfectly clear to them that the items of evidence are not privileged, and must be turned-over to the lawyer for the criminal defendant. Prior to Proposition 115, criminal defense lawyers in California were able to directly subpoena the police agencies for items of evidence. Proposition 115 changed that. It requires that a criminal defendant who seeks evidence from the police agency that was an investigating and/or arresting agency in your case, first make an informal request upon the prosecutor for the requested items. After the prosecutor then fails to produce all of the items of evidence, the criminal defendant make bring a Motion to Compel Discovery. The problem with all of this, is that at the hearings on the Motion to Compel Discovery, the prosecutor usually tells the Court that he/she requested the items of evidence sought from the police agency, and that they told him that the items don’t exist. This is normal, even though in the majority of these Motions and requests, the items really do exist; the police just don’t want to produce them (either too lazy or the evidence is too exculpatory.) Once the prosecutor tells the Judge that the sought items of evidence don’t exist, that’s it for most Judges. You don’t get what you need and your Motion to Compel is denied. Some Judges will let you call witnesses at the hearing on the Motion to Compel Discovery (usually from the same police agency from which the evidence is being sought), but there is no provision in the California Penal Code’s statutory criminal discovery scheme for such hearings.
Moreover, lawyers who don’t do civil rights cases, do not have the opportunity to learn and determine, what types of items of “real evidence” are available from a particular police agency, because: 1) you can’t take depositions in criminal cases, so the criminal (only) lawyer can’t ask questions of key agency personnel about key items of evidence (including how the information is stored, what the items are, and what the items of evidence are used for); 2) the discovery methods available in civil rights cases (especially in federal court, such a demands for identification, inspection and production of documents, interrogatories and request for admissions) are much more productive than the exclusive method of discovery in California criminal cases (Cal. Penal Code 1054 et seq.), and 3) you can’t get any really meaningful or detailed information about the police officer / deputy sheriff that you’re accused of committing a crime against in a California Superior Court criminal prosecution (See, later, Section on Limited Discovery In State Criminal Prosecutions; Pitchess Motions.) Accordingly, no one is accountable. The prosecutor says that the police say items of evidence don’t exist, and the police are usually not called upon to say anything. When the Judge actually allows the criminal defense lawyer to put police agency witnesses on the stand at hearings on Motions to Compel regular criminal discovery (in Riverside County the Judges usually don’t allow such testimony), half of the time the police either flat out lie (i.e. don’t have theses items), or claim that they couldn’t find any such requested items. Who is going to call them on their lies? The District Attorney’s Office? The Attorney General? The U.N.? The Pope? Who? The answer is no one, and you, the falsely accused, get screwed. Fair?
Therefore, your lawyer needs to be an expert in evidence preservation, since police agencies are notorious for claiming that something doesn’t exist; only later to be disproven, but not with any consequences. The Law Office of Jerry L. Steering uses the most current techniques based on existing evidence preservation law, to shore-up the odds in the “scales of justice” / “good vs. evil” scheme of things, by making the proper discovery demands to the investigation / arresting police agency, and by make the proper discovery demands to prosecuting authorities, and the motions to compel discovery that usually have to be filed to actually get the myriad of material / probative evidentiary items.
If you have a contempt of cop case, civil or criminal, the Law Offices of Jerry L. Steering can help you. Please call us at (949) 474-1849, or email us at email@example.com.
THE EXCLUSIONARY RULE’S UNINTENDED CONSEQUENCE OF PERVERTING CONSTITUTIONAL PROTECTIONS
People who believe the Courts are a bunch of judges who let the criminals go free for the slightest technicality, have no concept of reality. In fact, most people don’t have a clue as to what Constitutional rights they have, or, in many situations, what Constitutional rights they used to have. For example, most people believe that when the police arrest you, that they are somehow obligated to read you your Miranda warnings. They aren’t, and they usually don’t.; especially when the witnessed or participated in the event that they are calling a crime. All that Miranda v. Arizona, 384 U.S. 436 (1966) stands for, is the proposition that after you’re in police custody (i.e. arrested), that any statement that you make to the police in response to custodial police interrogation, cannot be introduced into evidence against you at your criminal trial, unless you were first advised of your right to counsel (under the Sixth Amendment to the United States Constitution) and your right against self-incrimination (under the Fifth Amendment to the United States Constitution.) However, if you take the witness stand and testify at your criminal trial, statements made by you that were obtained in violation of Miranda can then be introduced against you, because the exclusionary rule is not a license to lie.
In California criminal cases, the Appellate Courts very often distort and pervert (i.e. actually change, via judicial fiat, the contours the protections provided for in the United States Constitution, by simply stating that the Constitution doesn’t prohibit a particular form of government conduct), so they don’t have to exclude evidence in a criminal trial; evidence that will often prove the defendant’s guilt, and without which, the government had no case. This, unfortunately, is the unintended consequence of the exclusionary rule; the rule created by the United States Supreme Court, to curb unlawful police conduct that results in the police illegally obtaining evidence, in Weeks v. United States 245 U.S. 618 (1918) (exclusion of illegally obtained evidence in federal court criminal trials) and Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion of illegally obtained evidence in state court criminal trials.) When Judges are faced with a choice of either excluding incriminating evidence at criminal trial because it was obtained in violation of the federal Constitution, or simply changing the protection that a particular constitutional provision provides, Appellate Court Judges often change the protections of the Constitutional provision, to let the evidence in. Although this may be just wonderful for convicting the guilty, the consequences of reducing the protections afforded to all persons under a particular Constitutional provision undermines the liberty interests of the rest of us innocent people:
“By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to them. Compare the statement in Weeks v. United States, 232 U.S. 383, 390, 34 S.Ct. 341, 343, that searches and seizures had been made under general warrants in England ‘in support of charges, real or imaginary.’ We have had grim reminders in our day of their experience. Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too well-known in this country. See, Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The progress is too easy from police action unscrutinized by judicial authorization to the police state. The founders wrote into the Constitution their conviction that law enforcement does not require the easy but dangerous way of letting the police determine when search is called for without prior authorization by a magistrate. They have been vindicated in that conviction. It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed.” United States v. Rabinowitz, 339 U.S. 56 (1950.)
FALSE ARREST CASES – DON’T CALL THE COPS UNLESS YOU WANT SOME IN JAIL, OR 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 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 (interferring 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.
III. Police Incompetence: A Frequent Reason For False Arrests By Police Officers
Just like the rest of us, the cops make mistakes all of the time. They are human, and, therefor, false arrests by police officers are almost very 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 unlawful conduct, by arresting and then framing their victim (i.e. false police reports, perjurous court testimony, false convictions) of his federal criminal (18 U.S.C. §242), and otherwise tortious misconduct (i.e. if the police use unreasonable / unlawful force on a civilian, the use of force is almost always followed by a false arrest.)
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 state 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 officer 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 in 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 a person under the Fourth Amendment to the United States Constitution (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 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.)
Thus, the arresting officers belief about what crime a civilian committed is irrelevant. All that matters is that a reasonably well trained officer would have entertained a belief that the person arrested committed a crime; a reasonably well trained officer in the abstract. If the officer arrested a civilian for a crime that the officer did not have probable cause to have believed him guilty of, he may be civilly liable to the arrested person. Maybe.
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.
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