Most families in this situation made the call themselves.

Someone was in crisis, or off their medication, or talking about hurting themselves, and the family did what they were told to do. They called for help. What arrived was armed. Minutes later someone they love was injured, or gone.

If that is your family, the guilt you are carrying is not yours to carry. You asked for help for a person in medical distress. What happened next was a set of choices made by people who are trained, paid, and equipped to make them differently.

This article explains what California law actually allows in these cases. It is general information, not advice about your situation.

Three claims that work together

The federal excessive force claim

Under 42 U.S.C. section 1983, force by an officer is judged against the Fourth Amendment’s objective reasonableness standard from Graham v. Connor (1989). Courts weigh the severity of the offense, whether the person posed an immediate threat, and whether they were actively resisting or fleeing.

An important change arrived recently. In Barnes v. Felix, 145 S. Ct. 1353 (2025), a unanimous Supreme Court rejected the “moment of threat” approach, under which some courts looked only at the final seconds before force was used. The Court held that reasonableness is judged on the totality of the circumstances, which includes what led up to the encounter.

For crisis cases that holding matters enormously, because so much of what goes wrong happens in the minutes before anyone is touched.

The California negligence claim

California law has been ahead of federal law on this point for years. In Hayes v. County of San Diego (2013) 57 Cal.4th 622, the California Supreme Court held that an officer’s pre-shooting tactical conduct and decisions are part of the totality of circumstances a jury may consider in a negligence claim.

Put plainly: under California law a jury can be asked whether it was reasonable to approach the way they did, to shout competing commands, to close distance quickly, to skip a request for a crisis team, or to escalate when time and cover were available. That is often the strongest claim a family has.

The disability discrimination claim

Title II of the Americans with Disabilities Act, 42 U.S.C. section 12132, applies to police arrests in the Ninth Circuit. Two theories are recognized.

The first is wrongful arrest, where officers mistake the effects of a disability for criminal conduct. The second is failure to accommodate, where officers arrest or detain someone lawfully but fail to reasonably accommodate a known disability during the encounter.

Sheehan v. City and County of San Francisco (9th Cir. 2014) established that Title II reaches arrests, and Vos v. City of Newport Beach (9th Cir. 2018) applied it in a case involving a man in psychiatric crisis. Courts have generally treated the reasonableness of an accommodation as a question of fact, which means these claims often survive to a jury rather than being resolved on paper.

What “accommodation” looks like in practice

Families sometimes hear the word accommodation and picture something abstract. In these cases it is concrete and it is usually about time and distance.

• Slowing the encounter down when there is no immediate threat to anyone else.
• Using one officer as the single communicator rather than several people shouting at once.
• Keeping cover and distance rather than closing on a person who is frightened.
• Requesting a crisis intervention trained officer, a mental health clinician, or a mobile crisis team.
• Actually using the information the family gave the dispatcher about the diagnosis, the medication, the triggers, and what has worked before.

That last point is where many of these cases begin. The family told the dispatcher exactly what was happening. Whether that information reached the responding officers, and what they did with it, is one of the first things to investigate.

None of this requires an officer to walk into danger. Courts have consistently recognized that officers may protect themselves and others, and that they often have to decide quickly with incomplete information. The question in these cases is narrower and fairer than it is sometimes made out to be. When there was time, cover, distance, and a trained resource available, were those things used, and if not, why not?

What to do in the days after

These are practical steps, and there is a clock on some of them.

• Send a written preservation demand to the agency for all body worn camera and dash camera video, the 911 audio, the computer aided dispatch logs, and the radio traffic. The dispatch record is often the single most important document.
• Request the critical incident video. If an officer fired a weapon, or force caused death or great bodily injury, Government Code section 7923.625 generally requires release within 45 days, with limited grounds for delay. Our guide on how to obtain body camera footage explains the process.
• Request the officers’ conduct records under Penal Code section 832.7, as amended by SB 1421 and SB 16.
• Get an independent autopsy if a death occurred and the family is able to. Coroner findings can be contested.
• Watch the six month deadline. A claim against a California public entity generally must be presented in writing within six months under Government Code section 911.2. Federal claims have a longer window, but the state claim deadline arrives fast and it is strict.

A note on getting help

If you or someone you love is in crisis right now, the 988 Suicide and Crisis Lifeline is available by call or text, and many California counties operate mobile crisis teams that respond without police. Families sometimes tell us they did not know a non police option existed in their county. It is worth finding out what yours offers before you need it.

Frequently asked questions

About the Author

Jerry L. Steering has represented people injured by law enforcement, and the families of people killed by law enforcement, since 1984. He graduated from the University of Georgia School of Law in 1984 and has been licensed in California since 1986 (State Bar No. 122509). His Newport Beach practice covers police misconduct, civil rights, and criminal defense throughout Orange, Los Angeles, Riverside, San Bernardino, San Diego, Ventura, Santa Barbara, and Kern counties.

This article is general legal information, not legal advice about your situation. Reading it does not create an attorney client relationship.

Sources

• Graham v. Connor, 490 U.S. 386 (1989)
• Barnes v. Felix, 145 S. Ct. 1353 (2025)
• Hayes v. County of San Diego (2013) 57 Cal.4th 622
• Sheehan v. City and County of San Francisco, 743 F.3d 1211 (9th Cir. 2014)
• Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 2018)
• 42 U.S.C. section 12132 (Title II, Americans with Disabilities Act)
• 42 U.S.C. section 1983
• California Government Code sections 911.2 and 7923.625
• California Penal Code section 832.7, as amended by SB 1421 and SB 16
• Advocate Magazine, “Understanding disability rights litigation in police misconduct and jail detention cases,” June 2024
• 988 Suicide and Crisis Lifeline

People are often surprised to learn that suing the officer and suing the department are two different lawsuits with two different sets of rules.

If a deputy broke your arm during an arrest, the claim against that deputy is one thing. The claim against the county that trained him, supervised him, reviewed his prior uses of force, and cleared him each time is something else. Understanding the difference explains why some cases name a single officer and others name a city, a police chief, and a department all at once.

The rule that starts everything

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), the Supreme Court held that municipalities are “persons” who can be sued under section 1983. In the same decision it closed a door. A city cannot be held liable simply because it employs someone who violated your rights.

The legal shorthand is that there is no respondeat superior liability under section 1983. In ordinary employment law, an employer is generally responsible for what an employee does on the job. Section 1983 does not work that way. To reach the entity, you have to show the entity itself did something.

The four routes to entity liability

Courts generally recognize four ways to get there.

An official policy

The most direct route, and the rarest. A written policy, ordinance, or regulation that itself causes the constitutional violation. Departments rarely write down anything this useful, but policies on things like when to deploy a police dog, when to use a carotid restraint, or how long to hold someone before arraignment sometimes do the work.

A longstanding custom or practice

More common, and harder to prove. Here the argument is that a practice is so widespread and settled that it has the force of policy even though nobody wrote it down. This is built from patterns: repeated incidents of the same kind, complaints that were consistently dismissed, uses of force that were consistently found to be within policy.

Failure to train or supervise

Under City of Canton v. Harris, 489 U.S. 378 (1989), a failure to train can be a basis for liability where that failure amounts to deliberate indifference to the rights of people the officers encounter. The Supreme Court set a demanding standard in Connick v. Thompson, 563 U.S. 51 (2011), generally requiring a pattern of similar violations that put the entity on notice, with a narrow exception for situations where the need for training is patently obvious.

Ratification by a final policymaker

Under Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), a single decision by an official with final policymaking authority can bind the entity. In police cases this often takes the shape of a ratification argument: a chief or sheriff reviewed a use of force, knew the facts, and approved both the conduct and the reasoning behind it.

Why this matters when qualified immunity is in the case

Qualified immunity shields an individual officer from damages unless the right violated was clearly established at the time. It is the single most frustrating doctrine in this area of law, and we have written about it at length in our discussion of qualified immunity and SB 2.

Here is the part that gets overlooked. Qualified immunity is a personal defense. Municipalities do not get it. An entity cannot argue that its policy was not clearly established as unconstitutional in the way an individual officer can argue about their own conduct.

That does not make entity claims easy. The causation and deliberate indifference showings are genuinely difficult. But it does mean the entity claim can survive in cases where the individual claim is at its weakest, and that is not a small thing.

The evidence these cases are built from

Monell claims are won with records, and a striking amount of the relevant material is public or obtainable.

• Peace officer conduct records. Penal Code section 832.7, as amended by SB 1421 and SB 16, makes several categories public, including sustained findings of dishonesty and of unreasonable force, and records of uses of force causing death or great bodily injury.
• Critical incident video. Government Code section 7923.625 requires release of video from shootings and serious force incidents within 45 days, subject to limited delays.
• Stop data. Agencies report stop information to the California Department of Justice under the Racial and Identity Profiling Act.
• Training materials, policy manuals, and use of force reviews, obtained in discovery once a case is filed.
• Prior complaints and prior lawsuits against the same agency and the same officers.
• Audits, consent decrees, grand jury reports, and inspector general findings where they exist.

The picture that emerges from those records is either a department that identified a problem and corrected it, or a department that saw the same thing happen repeatedly and did nothing. That contrast is the heart of a Monell case.

California adds a second track

Federal law is not the only option. Under California’s Tom Bane Civil Rights Act, Civil Code section 52.1, public entities can be vicariously liable for their employees’ conduct under state law principles, which is a meaningfully different structure from Monell. Many cases plead both, and our article on qualified immunity versus the Bane Act walks through why.

There is a deadline that comes with the state law track. A claim against a California public entity generally must be presented in writing within six months under Government Code section 911.2. Federal section 1983 claims in California borrow the state’s two year personal injury limitations period, but the six month claim requirement is the one that catches people.

One more development worth knowing

In Barnes v. Felix, 145 S. Ct. 1353 (2025), a unanimous Supreme Court rejected the “moment of threat” approach that some courts had used to evaluate police force by looking only at the final seconds before it was used. Courts must consider the totality of the circumstances, including what led up to the encounter.

That matters for entity claims, because tactics, training, and decisions made minutes earlier are now squarely part of the analysis rather than something a court can wave away.

Frequently asked questions

About the Author

Jerry L. Steering has represented people injured by law enforcement since 1984. He graduated from the University of Georgia School of Law in 1984 and has been licensed in California since 1986 (State Bar No. 122509). His Newport Beach practice covers police misconduct, civil rights, and criminal defense throughout Orange, Los Angeles, Riverside, San Bernardino, San Diego, Ventura, Santa Barbara, and Kern counties.

This article is general legal information, not legal advice about your situation. Reading it does not create an attorney client relationship.

Sources

• Monell v. Department of Social Services, 436 U.S. 658 (1978)
• City of Canton v. Harris, 489 U.S. 378 (1989)
• Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)
• Connick v. Thompson, 563 U.S. 51 (2011)
• Barnes v. Felix, 145 S. Ct. 1353 (2025)
• 42 U.S.C. section 1983
• California Civil Code section 52.1 (Tom Bane Civil Rights Act)
• California Government Code section 911.2
• California Code of Civil Procedure section 335.1
• California Penal Code section 832.7, as amended by SB 1421 and SB 16
• California Government Code sections 7923.625 and 12525.5

Almost everyone who has been pulled over in California has had the same experience. The lights come on, the officer walks up, and the first words out of their mouth are a question. Where are you coming from. Do you know why I stopped you. Is there anything in the car I should know about.

Since the beginning of 2024, that opening is backwards under California law. Here is what the statute actually requires, what it does not do, and why the answer an officer gives at your window can matter a great deal later.

What the law says

AB 2773 took effect on January 1, 2024. It added section 2806.5 to the Vehicle Code and it does two things.

First, an officer making a traffic or pedestrian stop must state the reason for the stop before asking any question related to a criminal investigation or a traffic violation.

Second, the officer must document that stated reason on any citation issued and in any report resulting from the stop.

There is one exception. An officer may withhold the reason if they reasonably believe that withholding it is necessary to protect life or property from an imminent threat, and the statute gives terrorism and kidnapping as the kind of circumstances contemplated. That is a narrow carve out, not a general escape hatch for an officer who would rather ask questions first.

The same legislation also requires agencies to report the stated reason for each stop to the California Department of Justice as part of the data collected under the Racial and Identity Profiling Act, found at Government Code section 12525.5.

What a “pretextual stop” actually means

A pretextual stop is a stop where the officer uses a minor, technically valid reason as the entry point for an investigation into something else entirely. A cracked taillight becomes a conversation about where you are going. A slow roll at a stop sign becomes a request to search the trunk.

Under federal law, the Supreme Court held in Whren v. United States (1996) that an officer’s actual motive does not invalidate a stop that is objectively supported by probable cause of a traffic violation. That remains the constitutional baseline, and it is why “he only pulled me over because of how I look” is difficult to litigate as a Fourth Amendment claim standing alone.

Vehicle Code section 2806.5 does not overrule Whren. What it does is create a paper record. The officer has to say a reason out loud, at the roadside, before hearing anything from you. Then they have to write that same reason down. Then the agency has to report it to the state.

Why the paper record matters

Cases involving traffic stops usually turn on a mismatch, and the mismatch is easier to find now.

• The stated reason and the written reason are different. An officer who says “you were weaving” at the window and writes “expired registration” in the report has a problem, and so does the credibility of everything else in that report.
• The stated reason does not match the video. Body camera and dash camera footage captures the first words spoken. If the officer began with questions instead of a reason, that is on the recording. Our guide on how to get the body camera video of your arrest covers how to request it.
• The stated reason does not appear anywhere. No reason on the citation, no reason in the report, no reason on the video. In a case that later involves a search, an arrest, or a resisting charge, that absence is worth a great deal.
• The pattern is documented. Because agencies now report stated reasons to the Attorney General, one person’s questionable stop can be placed against the department’s own stop data. That is how an individual complaint becomes evidence of a practice.

What the statute does not do

This is where honest expectations matter.

Section 2806.5 does not say that evidence gets suppressed if an officer skips the required statement. It does not create a right to sue for money damages by itself. It does not make a stop unlawful that was otherwise supported by reasonable suspicion or probable cause. And it does not give you the right to refuse to identify yourself or to drive away.

What it does is give you and your lawyer a concrete, statutory expectation that the officer’s own conduct can be measured against. In practice it functions less like a shield at the roadside and more like a lever afterward, in a criminal defense motion, in a civil rights case, or in a complaint to the agency.

What to do at the stop itself

The roadside is not the place to litigate. It is the place to stay safe and preserve the record.

• Pull over promptly, stay in the car, keep your hands visible, and turn on the interior light at night.
• You may ask, calmly and once, “Officer, what is the reason for the stop?” Asking is not resisting.
• You are required to provide your license, registration, and proof of insurance when driving.
• You do not have to answer investigative questions. You can say that you prefer not to answer questions and would like to go on your way.
• You do not have to consent to a search. Saying “I do not consent to a search” clearly and once is not obstruction. Physically interfering would be.
• Do not argue about whether the stop was legal. That argument is won later, in a courtroom, with the footage.

Refusing consent or declining to answer is not, by itself, a lawful basis for an arrest. When an officer responds to a polite refusal by escalating, that escalation frequently produces a charge under Penal Code section 148 or section 69. Our article on passive versus active resistance explains where courts have drawn that line.

When a stop turns into something worse

Many of the cases this firm handles started as a routine stop. Someone asked a question, or did not move fast enough, or reached for a phone to record, and within a minute they were on the pavement facing charges for resisting an officer.

If that happened to you, write down everything you remember while it is fresh, photograph any injuries the same day and again as bruising develops, get medical care, and preserve any video you or your passengers took. Then act quickly, because a claim against a California city, county, or state agency generally requires a written government claim within six months.

Frequently asked questions

About the Author

Jerry L. Steering has represented people injured or falsely arrested by law enforcement since 1984. He graduated from the University of Georgia School of Law in 1984 and has been licensed in California since 1986 (State Bar No. 122509). His Newport Beach practice covers police misconduct, civil rights, and criminal defense throughout Orange, Los Angeles, Riverside, San Bernardino, San Diego, Ventura, Santa Barbara, and Kern counties.

This article is general legal information, not legal advice about your situation. Reading it does not create an attorney client relationship.

Sources

• California Vehicle Code section 2806.5, added by AB 2773 (2021 to 2022 Regular Session), effective January 1, 2024
• California Government Code section 12525.5 (Racial and Identity Profiling Act reporting)
• Liebert Cassidy Whitmore, “AB 2773 Imposes Procedural Requirements For Police Stops”
• Criminal Legal News, “California AB 2773 Requires Police to State Reason for Traffic Stops Before Questioning,” May 2024
• Whren v. United States, 517 U.S. 806 (1996)
• California Penal Code sections 148 and 69
• California Government Code section 911.2

The video exists. That is the part most people get right. What surprises them is how quickly it can stop existing, and how differently the rules treat a routine arrest compared to a shooting.

If you were beaten, tased, bitten by a police dog, or arrested on charges you know are false, the body camera and dash camera recordings are often the difference between your word against an officer’s and a case that resolves itself the moment a judge or a jury watches sixty seconds of footage. Here is how to go after it.

Step one, and do it today: send a preservation letter

Before you request anything, demand that the agency keep it.

Retention schedules vary by department, and video categorized as non evidentiary is frequently purged on a short cycle. A written preservation demand, sent to the agency’s records unit and its city attorney or county counsel, identifies the date, time, location, incident or report number, and the officers involved, and asks that all body worn camera, dash camera, station, and jail video be preserved along with the associated metadata and audit logs.

Two reasons this comes first. It stops the clock on routine deletion. And if a department destroys video after receiving a preservation demand, that destruction itself becomes an issue in the case.

Step two: know which category your incident falls into

California treats two situations very differently.

Critical incidents: the 45 day rule

AB 748 took effect on July 1, 2019 and now appears at Government Code section 7923.625. It covers recordings of critical incidents, meaning an incident in which an officer discharged a firearm, or in which force by an officer caused death or great bodily injury.

For those recordings, the agency must make the video available under the Public Records Act within 45 days of the incident, or within 45 days of when it should reasonably have known about it.

An agency can delay release beyond 45 days only if disclosure would substantially interfere with an active criminal or administrative investigation, for example by endangering a witness or a confidential source. Even then it must notify the requester in writing and reassess every 30 days, and it cannot push past one year unless it can show by clear and convincing evidence that interference would still occur. Where privacy interests outweigh the public interest, the agency is expected to blur or redact rather than withhold, and it must still provide a copy to the people directly involved.

Everything else

Most arrests are not critical incidents. A takedown that leaves you with bruises and a resisting charge, a handcuffing that dislocates a shoulder, a search of your car after a stop, none of that triggers the 45 day clock.

For those recordings the routes are a Public Records Act request, a criminal discovery request if charges were filed, and civil discovery once a lawsuit is on file. Agencies often deny records act requests for ordinary arrest video by citing the investigatory records exemption, and that denial is common enough that you should plan for it rather than be surprised by it.

Step three: file the Public Records Act request properly

A request that gets results is specific and dated. Include the incident date and approximate time, the location, the report or incident number if you have one, the names or badge numbers of the officers if you know them, and the categories you want: body worn camera video, in car video, station and booking area video, computer aided dispatch logs, radio traffic, and the use of force report.

Ask for the records in their native format with metadata intact. Ask separately for the retention policy and the audit log showing who viewed or exported the file. Agencies must respond within ten days as to whether they hold disclosable records, though the actual production commonly takes longer.

Step four: request the personnel and misconduct records too

This is the request people forget, and it is often the more valuable one.

SB 1421, effective in 2019, and SB 16, which expanded it in 2022, opened categories of peace officer records that used to be sealed. Under Penal Code section 832.7 the public may obtain records relating to officer involved shootings, uses of force resulting in death or great bodily injury, sustained findings of dishonesty, sexual assault by an officer, and sustained findings of unreasonable force or unlawful arrests and searches.

That is a separate request from video, sent to the same agency. If the officer who arrested you has a sustained finding for dishonesty or unreasonable force, that record is a public record now, and it changes the shape of a case.

For anyone facing charges, criminal defense counsel has an additional tool in the Pitchess motion, which is a court process for obtaining complaint history from an officer’s confidential personnel file. Our article on Brady lists and Pitchess motions explains how those fit together.

What the video does and does not settle

Body camera footage is evidence, not a verdict. Cameras get switched on late, obstructed by an arm or a vest, or angled away from what matters. Audio often captures what the lens misses. Bystander video, business surveillance, and doorbell cameras frequently show what the officer’s camera does not, and private systems overwrite in days, so those need to be collected fast.

The point is not that video proves everything. The point is that video, the metadata around it, the audit log, and the officer’s own report either line up or they do not. When they do not line up, that is the case.

Our article on body cameras and police accountability goes deeper on how footage actually functions in litigation.

Frequently asked questions

About the Author

Jerry L. Steering has represented people injured by law enforcement since 1984. He graduated from the University of Georgia School of Law in 1984 and has been licensed in California since 1986 (State Bar No. 122509). His Newport Beach practice is devoted to police misconduct, civil rights, and criminal defense throughout Orange, Los Angeles, Riverside, San Bernardino, San Diego, Ventura, Santa Barbara, and Kern counties.

This article is general legal information, not legal advice about your situation. Reading it does not create an attorney client relationship.

Sources

• California Government Code section 7923.625 (formerly Government Code section 6254(f)(4), added by AB 748, effective July 1, 2019)
• Best Best & Krieger, “AB 748: More Public Access to Body Camera Footage Under the Public Records Act”
• California Penal Code section 832.7, as amended by SB 1421 (2018) and SB 16 (2021)
• California Public Records Act, Government Code section 7920.000 and following
• California Evidence Code sections 1043 to 1047 (Pitchess procedure)
• First Amendment Coalition, Police Transparency Handbook

California’s SB 747, known as the No Kings Act, would let people sue federal agents, including ICE and Border Patrol, in state court for violating their constitutional rights. Authored by State Senator Scott Wiener, the bill closes a gap left by Supreme Court decisions that narrowed Bivens claims against individual federal officers, and it would not require the Federal Tort Claims Act’s administrative claims process first. The California Legislature passed SB 747 on August 27, 2026, and it is currently awaiting Governor Gavin Newsom’s signature, with a deadline at the end of September 2026. Until it is signed, most claims against federal agents in California still go through the Federal Tort Claims Act, which requires an administrative claim within two years of the incident. If signed, SB 747 would make California the first state with a direct state-court remedy against federal officers for constitutional violations.

Keypoints

• SB 747, the No Kings Act, would let people sue federal agents in California state court for constitutional violations.
• The bill passed the California Legislature on August 27, 2026, and awaits Governor Newsom’s signature by the end of September 2026.
• Today, most claims against federal agents go through the Federal Tort Claims Act, which requires an administrative claim within two years.
• SB 747 would skip that federal claims process and would not require proof of “threats, intimidation, or coercion” like the Bane Act does.
• Bivens claims against individual federal officers have been sharply narrowed by the Supreme Court, most notably in Egbert v. Boule (2022).
• As of this writing, SB 747 has not been signed and is not yet law.

If you were thrown to the ground during a workplace raid, hit with a projectile at a protest, or handcuffed by agents who never told you why, the first question is usually the same. Can I do anything about this?

You can. The honest answer is that the rules for holding a federal agent accountable are different, and in several ways harder, than the rules for holding a city police officer accountable. Knowing which set of rules applies to your situation matters more than almost anything else, because the deadlines are short and one of them is unforgiving.

Why federal agents are treated differently

When a Los Angeles police officer or an Orange County sheriff’s deputy violates your rights, you generally sue under 42 U.S.C. section 1983, the federal civil rights statute, and often under California’s Tom Bane Civil Rights Act as well. Those tools exist because the officer acts under state law. When city and county officers are involved alongside federal ones in the same incident, a best civil rights attorney in california can pursue both claims together instead of losing time figuring out which track applies. 

A federal agent does not act under state law. Section 1983 does not reach them. That single distinction is why cases involving Immigration and Customs Enforcement, Border Patrol, the FBI, the DEA, or the U.S. Marshals follow a separate track.

The Federal Tort Claims Act is the main road today

The Federal Tort Claims Act, found at 28 U.S.C. sections 1346 and 2671 through 2680, lets you seek money damages from the United States for harm caused by federal employees acting within the scope of their employment. You do not sue the individual agent. You sue the government that sent them.

The claim comes before the lawsuit

Before you can file anything in court, you must present an administrative claim to the agency involved. This is usually done on Standard Form 95. Under 28 U.S.C. section 2401(b) that claim has to be presented within two years of the injury, and it must state a “sum certain,” meaning a specific dollar figure. The agency then has six months to accept, deny, or sit on it. If it denies the claim or lets the six months run, you may file suit in federal district court.

Miss the two-year deadline and the case is over. Courts treat this requirement as jurisdictional, which means a judge has no power to excuse the delay no matter how sympathetic the facts are. Leave out the sum certain and courts have thrown out claims for that alone. This is the single most common way a strong case against federal agents dies before anyone looks at the merits.

The law enforcement proviso is what makes these cases possible

The Federal Tort Claims Act normally bars claims for intentional torts. There is a carve-out. Under 28 U.S.C. section 2680(h), when the conduct involves “investigative or law enforcement officers,” you may bring claims for assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution. Immigration and customs agents fall squarely within that definition, which is why an excessive force case against ICE or Border Patrol is usually pleaded as assault and battery against the United States.

What happened to Bivens claims

For decades the companion remedy was a Bivens claim, named for a 1971 Supreme Court decision allowing a constitutional damages suit directly against an individual federal officer. The Supreme Court has narrowed that remedy repeatedly, most sharply in Egbert v. Boule (2022). What remains is a narrow Fourth Amendment lane and very little else. Courts now routinely decline to extend Bivens into any “new context.”

That is the practical reason the Federal Tort Claims Act carries most of the weight in these cases, and the practical reason California legislators went looking for another answer.

SB 747, the No Kings Act

Senate Bill 747, authored by Senator Scott Wiener and known as the No Kings Act, would create a cause of action in California state court against federal officers who violate constitutional rights, including excessive force and false arrest. If you’re asking what is the no kings act in plain terms: it’s a state-law workaround for a federal accountability gap that Bivens claims can no longer reliably fill. 

Three features matter to someone who has been hurt:

• It would allow the case to be filed in state court rather than requiring federal court.
• It would not require the Federal Tort Claims Act administrative claim process first.
• It would not require proof of “threats, intimidation, or coercion,” which is the additional element the Bane Act demands.

 The bill’s official text and vote history are tracked on the California Legislative Information site, which is the most reliable way to confirm SB 747’s status before relying on anything written about it, including this article.

The Assembly passed SB 747 by a vote of 57 to 19 and the Senate by 30 to 10. It reached the Governor on August 27, 2026, and reporting at the time indicated he must act on it by September 30, 2026, with the law taking effect immediately if signed.

 Advocacy hasn’t stopped at the Legislature. Immigration rights groups and civil rights organizations have publicly pressed Governor Newsom to sign the bill without delay, arguing it’s the first real accountability tool of its kind aimed at federal officers. KRON4’s coverage of that push includes the case of a U.S. citizen and Army veteran who says he was wrongfully detained by ICE and plans to be among the first to file suit if the bill becomes law. 

Two cautions belong in the same breath. First, as of the date of this article the bill has not been signed, so it is not law and nothing here should be read as saying otherwise. Second, legislative staff and law enforcement groups have both said publicly that a state law reaching federal officers is likely to draw a federal court challenge. Nobody can responsibly predict how that turns out.

What to do now, whichever way SB 747 goes

The steps that protect a case do not depend on pending legislation.

• Write down what happened while it is fresh, including agency names, vehicle markings, badge or unit numbers, and the names of everyone present.
• Photograph injuries the same day and again several days later as bruising develops, and get medical treatment even if you feel able to tough it out.
• Save clothing, and do not wash it.
• Collect video. Ask bystanders, nearby businesses, and neighbors for footage right away, because most systems overwrite within days or weeks.
• Watch the calendar. The two-year federal administrative deadline is not the only clock. If any state or local officers took part in a joint operation, a separate six month California government claim deadline may apply to them, and it is much shorter.

Joint task forces are common in Southern California, and it is often unclear in the moment which agency an agent belongs to. That ambiguity is a reason to talk to a lawyer early rather than a reason to wait. As a police misconduct attorney, I’ve represented people harmed by federal, state, and local law enforcement since 1984, and if the same encounter also led to criminal charges against you, a criminal defense lawyer in california residents trust can handle that side of the case while any civil claim moves forward separately. KALW’s reporting on SB 747 confirms Governor Newsom has until the end of September to act, so check the bill’s status before assuming either outcome.

Conclusion

Right now, if a federal agent violates your rights in California, your realistic options run through the Federal Tort Claims Act, a narrow Bivens lane, or a two-year deadline that courts won’t bend for anyone. SB 747, the No Kings Act, is built to change that math by giving people a state-court path that doesn’t require the federal claims process first, but it’s still sitting on the Governor’s desk, not yet the law. Whichever way it goes, the steps that protect a case don’t wait for Sacramento: document everything, get the video before it disappears, and don’t guess at which deadline applies to your situation. Steering Law has spent four decades sorting out exactly that kind of ambiguity for people harmed by law enforcement at every level, federal, state, and local, and that experience doesn’t change based on what happens to a bill in September.

Frequently asked questions

This article is general legal information, not legal advice about your situation. Reading it does not create an attorney client relationship. Deadlines in these cases are short and unforgiving, so speak with a lawyer promptly.

Sources

• 28 U.S.C. sections 1346, 2401(b), 2675(a), 2680(h), Federal Tort Claims Act
• Egbert v. Boule, 596 U.S. 482 (2022)
• Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
• California SB 747 (2025 to 2026 Regular Session), Senator Scott Wiener
• Office of Senator Scott Wiener, “California Passes Senator Wiener’s Bill Allowing People to Sue ICE, Border Patrol For Violating Constitutional Rights,” sd11.senate.ca.gov
• KQED, “California Senate Approves Bill Making It Easier to Sue ICE Agents”
• Advocate Magazine, “The FTCA: Suing the federal government for civil rights violations,” June 2026
• California Civil Code section 52.1 (Tom Bane Civil Rights Act)
• California Government Code section 911.2

I have spent four decades watching the same script play out. An officer roughs someone up, or arrests them for no good reason, and then, to paper over what they did, they swear out a criminal charge. Resisting. Assault on an officer. Delaying. The charge was never about justice. It was about protecting the officer. When that bogus case finally collapses, the question my clients ask me is simple: can I make them answer for it? Often, the answer is yes, through a claim for malicious prosecution.

Can you sue the police for malicious prosecution in California?

Yes. In California you can sue police officers for malicious prosecution when they cause a criminal case to be filed against you without probable cause and for an improper purpose, and that case ends in your favor. You can bring the claim under federal civil rights law and under California state law.

Malicious prosecution is one of the most important tools I use against police misconduct, because it reaches the cover-up, not just the original abuse. When officers manufacture a charge to justify a beating or a false arrest, the criminal case itself becomes a second wrong. A malicious prosecution claim lets the person who was dragged through that case hold the officers accountable for it.

There are two tracks. The federal track runs through 42 U.S.C. § 1983, the Reconstruction-era civil rights statute that lets you sue state and local officials who violate your constitutional rights. The state track runs through California’s own common-law tort of malicious prosecution, and increasingly through the Tom Bane Civil Rights Act. I almost always plead both, because they have different rules, different immunities, and different remedies.

What are the elements of a malicious prosecution claim?

A malicious prosecution claim has three core elements: (1) a criminal proceeding was started or continued against you without probable cause; (2) it was pursued with malice, meaning for a purpose other than bringing you to justice; and (3) the proceeding ended in your favor.

Those three elements come straight from the common law and they have not changed in substance. The United States Supreme Court restated them in Thompson v. Clark in 2022, listing the historical requirements as a proceeding instituted without probable cause, a malicious motive, and a termination in the accused’s favor. California’s civil jury instructions describe the same building blocks for the tort here at home.

No probable cause. Probable cause exists when the known facts would lead a reasonable person to believe a crime was committed and that you committed it. In the cases I handle, the officer often had nothing of the sort, just an injured ego and a need to explain away the force he used. When the supposed factual basis for the charge was something the officer knew was false, there was no probable cause to begin with.

Malice. Malice does not require that the officer hate you. It means the case was pursued for a reason other than genuinely bringing a guilty person to justice, for example, to cover up misconduct, to retaliate, or to gain leverage. Juries are allowed to infer malice from the absence of probable cause.

Favorable termination. The case has to have ended in a way that was not a conviction. For years, some courts demanded that you prove your innocence affirmatively. In Thompson v. Clark, the Supreme Court rejected that for federal claims, holding that you only need to show the prosecution ended without a conviction. The Ninth Circuit, which governs California’s federal courts, had already taken that more sensible view in cases like Roberts v. City of Fairbanks.

What is the difference between a federal and a state malicious prosecution claim?

A federal malicious prosecution claim under Section 1983 treats the wrongful charge as an unreasonable seizure under the Fourth Amendment. A California state claim is a common-law tort. The federal claim must overcome qualified immunity; certain California state-law routes, including the Bane Act, do not allow that defense.

On the federal side, the Supreme Court has located the constitutional home of a malicious prosecution claim in the Fourth Amendment. The theory is that being held to answer a criminal charge built on false information is an unreasonable seizure of your person through legal process. That is the framework the Court used in Thompson v. Clark and earlier in Manuel v. City of Joliet.

The catch on the federal side is qualified immunity. Even when officers manufactured a charge, they can argue they are shielded unless the law was clearly established. I have spent my career fighting that doctrine, and it is exactly why the state-law routes matter so much. Under California’s Tom Bane Civil Rights Act, officers cannot hide behind qualified immunity, and since the 2021 reforms in Senate Bill 2, Bane Act claims can reach malicious prosecution and injuries to people in custody that older immunities used to block.

Penal Code § 148 and § 69: the charges that feed these cases

Most of the malicious prosecution cases I see grow out of what I call Resistance Offenses, charges under California Penal Code § 148(a)(1) (resisting, delaying, or obstructing an officer) and Penal Code § 69 (resisting an executive officer by force or threat). These are the charges officers reach for when they need a reason for the force they used. When those charges are dismissed or end in acquittal, the favorable termination element is satisfied, and the malicious prosecution case can begin.

What can you recover in a malicious prosecution lawsuit?

A successful malicious prosecution plaintiff can recover compensatory damages for emotional distress, harm to reputation, lost income, and attorney’s fees paid to defend the criminal case. Punitive damages are available against individual officers, and under the Bane Act, treble damages and statutory attorney’s fees may apply.

The damages reflect everything the bogus case cost you: the lawyer you had to hire, the work you missed, the months of fear, the damage to your name. Against individual officers who acted maliciously, a jury can award punitive damages to punish and deter. And when the conduct fits the Bane Act, the statute’s enhanced remedies, including treble damages and attorney’s fees, change the math at the settlement table.

Recent Southern California results

These cases are not theoretical. Among the results our firm has obtained is Browder v. County of San Bernardino, a 2026 matter resolved for $499,000 for malicious criminal prosecution. You can review that and other verdicts and settlements on our case results page. If your case arose in the Inland Empire, our San Bernardino County police misconduct page explains how we handle matters in that venue.

How long do you have to file a malicious prosecution claim?

Timing is unforgiving. The clock on a malicious prosecution claim generally does not start until the criminal case ends in your favor. But if you sue a California public entity on state-law theories, you must usually file a government claim within six months of the relevant date, so you should speak with a civil rights attorney immediately.

The interplay between the favorable-termination rule and California’s claim-filing deadlines is where good cases die. The federal Section 1983 claim and the state tort generally accrue when the prosecution terminates in your favor, but California’s government-claim requirement for state-law claims against a public entity is short and rigid. Do not try to time this yourself. The day your criminal case is dismissed is the day to call a lawyer who does both criminal defense and civil rights work.

Talk to a California malicious prosecution attorney

If the police charged you with a crime to cover their own misconduct, and that case fell apart, you may have a malicious prosecution claim. I have been suing police officers and defending bogus Resistance Offense cases throughout California since 1984. To discuss what happened to you, contact Steering Law in Newport Beach. We represent clients across all of Southern California.

About the Author

Jerry L. Steering, Esq. has been suing police officers and defending bogus “resistance offense” criminal cases throughout California since 1984. A graduate of the University of Georgia School of Law (1984), he is admitted to practice in California, Georgia, the Ninth and Eleventh Circuits, and the United States Supreme Court. His police-misconduct cases have produced settlements and verdicts in the millions, and his work has been featured on ABC News, CNN, Good Morning America, Dateline NBC, The Washington Post, and the Los Angeles Times. He practices from Newport Beach and serves clients across Southern California.

Sources

• Thompson v. Clark, 596 U.S. 36 (2022) — Supreme Court
• Manuel v. City of Joliet, 580 U.S. 357 (2017)
• Roberts v. City of Fairbanks, 947 F.3d 1191 (9th Cir. 2020)
• Judicial Council of California Civil Jury Instructions (CACI) No. 1501 — Malicious Prosecution
• 42 U.S.C. § 1983 — Cornell Legal Information Institute
• California Penal Code § 148 — California Legislative Information
• California Penal Code § 69 — California Legislative Information
• California Civil Code § 52.1 (Tom Bane Civil Rights Act)

If the police get a call from your neighbor, do not be surprised to find them banging on your door. And when they stop you on the street or pull you over, the moment that decides everything is usually the first thirty seconds. People panic. They argue. They ask the wrong questions, or worse, they answer them. I have spent forty years watching ordinary, innocent people talk themselves into a Resistance Offense charge because nobody ever told them the difference between a detention and an arrest.

Do California police have to tell you why you’re being detained?

Not necessarily at the moment of a detention. During a brief investigative stop, California officers do not have to immediately explain their suspicion. But on a formal arrest, Penal Code § 841 requires that you be informed of the cause of the arrest, unless you are caught in the act or flee.

This surprises people, and the confusion is exactly where trouble starts. There is a real legal line between a detention (a brief stop to investigate) and an arrest (taking you into custody), and the rules are different on each side of that line. Knowing which one you are in tells you what the officer can do, what they must tell you, and what you should and should not say.

What is the difference between a detention and an arrest in California?

A detention is a brief stop based on reasonable suspicion that you may be involved in a crime; it must be limited in scope and length. An arrest is a full custody seizure that requires probable cause, the higher standard of facts that would make a reasonable person believe you committed a crime.

The two standards sit on a ladder. Reasonable suspicion is the lower rung. To detain you, an officer must be able to point to specific, articulable facts suggesting you are involved in criminal activity, more than a hunch, but less than proof. That authority traces to the Supreme Court’s decision in Terry v. Ohio.

Probable cause is the higher rung. To arrest you, the facts known to the officer must be enough that a reasonable person would believe you committed a crime. If the officer cannot get from suspicion to probable cause, the detention is supposed to end and you are supposed to be released. When officers hold someone far beyond a brief stop, or arrest without probable cause, that is where false arrest and unlawful detention claims are born.

What must police tell you when they actually arrest you?

Once it becomes an arrest, California law changes the officer’s duties. Penal Code § 841 provides that the person making the arrest must inform the person being arrested of the intention to arrest them, the cause of the arrest, and the authority to make it, except when the person is actually committing the offense or is pursued immediately after. So on a true arrest, you generally do have a right to be told why. During a short investigative detention, you do not have that same right to an immediate explanation.

Miranda is separate and widely misunderstood. Officers only have to read Miranda warnings before a custodial interrogation. The absence of a warning does not make an arrest unlawful; it generally just means what you said cannot be used against you. You should not count on a warning, and you should not wait for one before deciding to stay quiet.

How long can the police detain you without arresting you?

A detention must be brief and no longer than necessary to confirm or dispel the officer’s reasonable suspicion. There is no fixed number of minutes, but a stop that drags on, or that expands beyond its original purpose without new justification, can become an unlawful seizure under the Fourth Amendment.

The Supreme Court has been clear that a lawful stop can become unlawful if it is prolonged beyond the time reasonably required to handle the matter the officer stopped you for. In the traffic context, Rodriguez v. United States held that police may not extend an otherwise-completed stop, even for a few minutes, to conduct unrelated investigation such as a dog sniff, without independent reasonable suspicion. The same logic applies on the street: once the basis for the detention is resolved, you should be released.

When officers hold someone far longer than the situation warrants, handcuff them, lock them in a patrol car, and treat the stop as an arrest in all but name, courts may find that the detention ripened into a de facto arrest requiring probable cause. If the officers never had that probable cause, the prolonged detention itself is the constitutional violation, and the foundation of a civil rights claim.

Do you have to identify yourself to the police in California?

California has no general “stop and identify” statute that makes it a crime to refuse to give your name during a mere detention, unlike some other states. In practice, during a lawful traffic stop the driver must provide a license, registration, and proof of insurance. But for a pedestrian stop, your refusal to answer questions is generally not, by itself, a crime, and it is not lawful grounds to escalate to arrest. Officers sometimes treat silence as defiance and reach for a Penal Code § 148(a)(1) charge anyway. That reaction is exactly the kind of “Contempt of Cop” arrest that can support a false arrest claim.

Am I being detained? What to say during a police stop

If you are unsure whether you are free to go, ask plainly: “Am I being detained, or am I free to leave?” If the officer says you are free to leave, you may calmly go. If you are being detained, stay calm, do not physically resist, and say you wish to remain silent and want a lawyer.

1. Ask the magic question. “Am I being detained, or am I free to leave?” The answer tells you which set of rules you are under.
2. Do not resist, even if the stop is unlawful. The place to fight an illegal detention is in court, not on the curb. Resisting hands the officer the Resistance Offense charge they may be looking for.
3. Invoke your rights out loud. “I am going to remain silent, and I want a lawyer.” Then stop talking.
4. Do not consent to searches. You can say, clearly and without hostility, “I do not consent to any searches.”
5. Remember the details. Names, badge numbers, patrol car numbers, witnesses, and the time. If you can record without interfering, do.

Why does the detention-versus-arrest line matter so much?

Because the line decides whether the police violated your rights. An overlong detention without probable cause, or an arrest without it, can be an unlawful seizure under the Fourth Amendment, supporting a civil rights claim. And the confusion in that moment is what officers exploit to justify “resistance” charges.

I have seen the “Contempt of Cop” pattern more times than I can count. A person who has done nothing wrong asks a reasonable question, fails what I call the Attitude Test, and suddenly a routine stop becomes an arrest for Penal Code § 148(a)(1), resisting, delaying, or obstructing. The charge is the cover. When the detention had no legal basis, or stretched far past what reasonable suspicion allows, the unlawful seizure is the foundation of a false arrest claim under 42 U.S.C. § 1983 and California law.

Talk to a California false arrest and civil rights attorney

If you were detained without reason, arrested without probable cause, or charged with resisting after asking a fair question, you may have a claim. I have been suing police officers and defending Resistance Offense cases throughout California since 1984. Contact Steering Law in Newport Beach. If your encounter happened in central Orange County, see our Irvine and Newport Beach pages, and our false arrest practice page.

About the Author

Jerry L. Steering, Esq. has been suing police officers and defending bogus “resistance offense” criminal cases throughout California since 1984. A graduate of the University of Georgia School of Law (1984), he is admitted to practice in California, Georgia, the Ninth and Eleventh Circuits, and the United States Supreme Court. His police-misconduct cases have produced settlements and verdicts in the millions, and his work has been featured on ABC News, CNN, Good Morning America, Dateline NBC, The Washington Post, and the Los Angeles Times. He practices from Newport Beach and serves clients across Southern California.

Sources

• Terry v. Ohio, 392 U.S. 1 (1968)
• Rodriguez v. United States, 575 U.S. 348 (2015)
• California Penal Code § 841 (duty to inform of cause of arrest) — California Legislative Information
• California Penal Code § 148 (resisting, delaying, obstructing)
• California Penal Code § 1538.5 (motion to suppress)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• 42 U.S.C. § 1983 — Cornell Legal Information Institute