Here is what to do if you are falsely arrested or beaten by the police. Police are no longer like Car 54s lovable Constables Gunther Toody and Francis Muldoun. In large part due to the Supreme Court’s willingness to slowly but surely replace the Fourth Amendment‘s “probable cause” requirement with “officer’s safety“, the police now believe that they are entitled to give you “commands”, and that your failure to immediately comply with any such “commands” entitle them to tase you, club you, spray you, arrest you, and, successfully procure your criminal prosecution for some “resistance offense”, such as violation of Cal. Penal Code Section 148(a)(1); “The Boot of the Police State.” This is not some left wing propaganda. This is today’s world in the United States.
Because so many of today’s “peace officers” have actually been in “War Zones” for Uncle Sam (Iraq and Afghanistan Wars), many of them think like they still are still in one. All too often today’s “peace officers” operate under the “rules of engagement” as if they were fighting a war. Police know that they can shoot and kill almost anyone who they want to and get away with it. The problem is, that save the extremely rare exception, there’s no one shooting back.
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Police know that they can shoot and kill almost anyone who they want to and get away with it. In 2017 there were 963 civilians shot to death by the police against 44 police officers shot to death on duty that year. Almost all of those 963 shooting death were justified by local prosecutors.They had to do so, because they didn’t want to prosecute them. The locals District Attorney’s understand that for the most part, they are not going to win criminal prosecutions against peace officers for duty related activity, including the outright execution of others, justified on nothing more than rhetorical phrases about the right of officers to shoot another because they reached for their pocket or jacket.
The Los Angeles County Sheriff’s Department shot 15 unarmed people to death in 2010; all of the slayings being justified as perception shootings; a shooting based on a police claim that they perceived some potential danger, so they terminated the potential threat. The public has been exposed to so many video recorded police shootings, and so many of their peers (i.e. social media) and the Media have either condemned or defended these police outrages, that these days, juries usually ultimately find that if you don’t immediately comply with police orders (and without protest), that the police can use overwhelming force upon you. Juries are deferential to the “plight of the police officer” (a fiction in the sense that their job is really all that dangerous; working construction is much more dangerous than being a police officer). As each case comes to verdict, and after jury after jury excuse what the judges, the lawyers and the police all know is unlawful and outrageous conduct, those outrages now as a practical matter, become the new acceptable standard for police actions.
In other words, as more and more police misconduct lawsuits get litigated, and as more and more juries approval these outrageous actions via their defense verdicts, the police have been given their seal of approval by the public; ergo, the creation of the police state. The police are only here to “protect and serve” you, when it’s in their interest to do so. When a fellow officer physically abuses you and falsely arrests you, don’t look to the police officer who eye witnessed your abuse, and who personally knows that you’re being falsely arrested and maliciously prosecuted. They won’t help you. They won’t truthfully testify about what their brother officer did to you, and they will perjure themselves to protect their fellow officer. Please don’t delude yourself into thinking that state perjury laws are enforced. They aren’t. If they were, the State would have to use it’s entire budget building new prisons.
The creepy cops actively perpetuate the outrage, by either conspiring with the abusing officer to concoct a fabricated story about what happened during the incident that resulted in your being beaten, and then falsely arrested and maliciously prosecuted for being victimized, and claiming that you committed some sort of imaginary crime. You have a big black eye or broken bones, and the police have to justify that somehow. So, they put the blame on you, claiming that: 1) they either believed that some imaginary attack by you upon them was imminent, so they shot or tased or pepper-sprayed or clubbed you, or 2) that you did attack them, so that had to defend themselves. Either way, notwithstanding your having committed no crime and being the victim of one, you’re the one going to jail; probably for violation of Cal. Penal Code § 148(a)(1) (resisting / obstructing / delaying peace officer; the most ambiguous, and, therefore, abused statute in the Penal Code), or, more so these days, violation of Cal. Penal Code § 69 (threatening or using force or violence to prevent / dissuade public officer from performing duty of their office; a “wobbler”.)
The abuse of Section 69 has been going on in San Bernardino County for quite a few years now, but more and more police officials in other counties are realizing the benefit to them of arrested police abuse victim for violation of Section 69; it’s a wobbler offense. A “wobbler” that can be charged as either a misdemeanor or a felony by the District Attorney’s Office, but the police always arrest their victims for felony Section 69 felony, so they can make them post bail to be released from jail. Many of their victims won’t be able to make bail, so they often plead out to get out of jail; either to Section 69, or to misdemeanor Section 148(a)(1). Such guilty or no contest pleas by innocents to such “resistance offenses” not only precludes the victim (you) from suing for you false arrest or malicious criminal prosecution (See, Heck v. Humphrey, 512 U.S. 477 (1994) plea precludes false arrest claims), but also for the use of unreasonable force upon you via the doctrine of res judicata or collateral estoppel.
Understand this; when their interests call for protecting yours, they’ll protect you. When their interests diverge from your’s, they will protect them; not you. This is not a condemnation of any particular individual police officer or public official. This is a simple statement of political reality. So goes the politics, so goes the police. For example, take the case of you being mugged as you left a 7-11 Store. If you called the police and told them that you got mugged, and didn’t sound crazy, they probably will treat you like the victim of a crime, and pay you respect and courtesy accordingly.
Now take the case of a police officer who beats-you-up just like the mugger, but instead of stealing your wallet, the officer who beat-you-up arrests you, takes you to jail, makes a false allegation that you attacked or delayed or somehow obstructed him that results in you having to post bail to get out of jail. Even if the local Deputy District Attorneys know that the cop is a problem officer who they will not file “resistance crimes” for (i.e. resisting / delaying officer, threatening / using force on public officer to prevent performance of duty), the cop nonetheless doesn’t get either criminally prosecuted or disciplined in some manner.
Police Brutality, and it accompanying false arrests and malicious criminal prosecutions, is a common fact of modern American life. If you’re reading this article, chances are that either you, a loved-one, or a friend, have now been subjected to some sort of abuse by the police officers, that you really would not have believed unless you had experienced or seen it yourself. You consider yourself a law-abiding citizen and are proud of your lack of criminal record. That’s all gone now.
Most of you are now a changed person. For many, if not most of you, you now know the reality of modern policing; that you don’t have to either commit a crime or at least look like a criminal, to be beaten, falsely arrested, and maliciously prosecuted. Something that, prior to your particular involvement with the police, you just would not have believed. You have now made that leap from ignorant bliss, to the emotional burden of realizing that you live in a quasi-police state; a place that is becoming more Orwellian by the day.
THE BLAME GAME; IT IS YOUR FAULT THAT THE POLICE HAD TO USE FORCE ON YOU.
When the police abuse you, they almost always at least attempt to procure your malicious criminal prosecution; to make whatever happened, “your fault”. If it’s “your fault”, a jury isn’t going to give you much, if any, money, if you try to sue in court to seek redress for the outrages perpetrated against you. If it’s “your fault”, some young Deputy District Attorney is going to fall into the abyss; to criminally prosecute you for a “resistance crime.” They prosecute you for crimes such as resisting / obstructing / delaying a peace officer; Cal. Penal Code § 148(a)(1); a crime that can be twisted to mean just about everything, as long as you have a creepy enough jury, who worship the police, and condemn those who fail to immediately, and without question or objection, police commands.
These jurors believe that they personally have no reason to worry about them being subjected to police abuse, since they’re not doing anything wrong, and cops just don’t bother people who aren’t doing anything wrong. Unfortunately, these people, the one’s who sit in judgment of you, because of the juror selection process, don’t have a clue as to what police really do, and how they really act. You now do, as you, your loved-one or your friend, have experienced something that would have been previously unimaginable to you, prior to the violation by the police that you or your loved-one has now experienced.
If they beat you badly or outrageously enough, the police often falsely arrest you for a “Turbo 148”; Cal. Penal Code § 69; using or threatening the use of force or violence to prevent or deter a public officer from performing a duty of their office; a “wobbler” crime in California, that can be charged either as a misdemeanor or a felony. So, the police can get many of their victims to plead guilty to some de minimis crime like disturbing the peace, or even misdemeanor resisting / delaying / obstructing a peace officer; otherwise known as “Contempt of Cop“.
These “creepy jurors” are “creepy”, because through the juror selection process, anyone who has seen or experienced a police officer beating-up a civilian and and falsely arresting them will usually be eliminated from the jury pool.
and procure the bogus criminal prosecution of the beating victim for so, has experienced such a life altering experience, that they typically will tell a trial judge that they are biased against the police, and don’t believe that they can be truly impartial to both sides in that case. That prospective juror is then “excused for cause” by the judge “for cause”; on the ground that they cannot be impartial.
This causes a problem for one accused of a crime against a police officer.
When a juror is excused for cause, the side that would have used one of their peremptory jury strikes to reject that juror serving on the jury (either the District Attorney in a criminal case, or a police defense attorney in a civil case), now doesn’t have to use one of their strikes. By the time that jury selection is over, almost always, the people who actually get to sit on a jury, have never seen or experienced, abusive conduct by a police officer. This is the greatest determining factor in what happens at your criminal or civil trial, as a trial is “an exercise in placing blame.”
IF YOU HAVE BEEN ABUSED BY THE POLICE HERE ARE SOME BASIC STEPS THAT YOU NEED TO TAKE TO PROTECT YOURSELF; CRIMINALLY AND CIVILLY.
Police agencies will almost always back the police officer who beat you, clubbed you, tased you, shot you, pepper-sprayed you, falsely arrested you, submitted false police reports to get you criminally prosecuted, or otherwise abused you. As a practical matter, the police really have to lie, cheat and obtain false convictions of their victims; that is, if they like their jobs and want to keep them They will destroy evidence, conceal evidence, fabricate evidence, author false police reports, procure false and malicious criminal prosecutions, and suborn perjury. They will do (almost) anything that will tend to exonerate the officer who victimized you.
Also, because of greater concerns about their civil / administrative liability, police agencies automatically take the “defensive civil position”, and decide to investigate in a manner only acknowledging their justification for their officer’s actions, and not any real effort to seek the truth. They gather evidence, under the bogus claim of a “crime scene” investigations. They unlawfully and knowingly conspire, to suppress evidence favorable to the civilian, and to neither seek nor give credit to, any evidence that implicates them.
WITH THAT IN MIND, PLEASE NOTE THE FOLLOWING:
1) DO NOT SPEAK WITH THE POLICE WITHOUT YOUR LAWYER PRESENT, IF AT ALL.
When the police use excessive force on persons, they almost always arrest them on bogus charges of resisting or obstructing or delaying a peace officer (Cal. Penal Code § 148(a)(1)), assault on a peace officer (Cal. Penal Code § 240/241(c)), or battery on a peace officer (Cal. Penal Code § 242/243(b)); all misdemeanors. If the police really beat-you-up, they probably will charge you with Cal. Penal Code § 69; using or threatening the use of force and violence to interfere with a public officers performance of his/her duties; a felony. Section 69 is the “crime de jour” of the police profession.
Since the police officers who used excessive force on you (or falsely arrested you) already know what happened, the only reason that they would want to question you, is to put words in your mouth; to coerce you or trick you into saying things that they will later attempt to use to justify their unlawful treatment of you. Supervisory officers (i.e. patrol sergeants and the like) will also want to interrogate you for the same reason. They are not interested in whether your side of the story is true. They are only interested in getting you to say your side of the story, with words that they coerce or trick you into saying; to protect their fellow officers and their police agency from you.
If you were arrested for armed robbery and were taken to the police station, the police would read you your Miranda warnings, and, when you declined to speak with them, they would cease interrogating you and put you in your jail cell. You should know, that contrary to popular myth, in America the police are not obligated to “read you your rights.” If they don’t advise you of your right to counsel and right against self-incrimination (i.e. Miranda warnings) then any statement that you make after you’ve been arrested that is the product of police interrogation, cannot be used against you in court in the prosecution’s “case-in-chief.” However, if you take the witness stand at your trial, you can be impeached with those custodial statements that were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966.)
The purpose that the Supreme Court handed-down Miranda v. Arizona in 1966, was to curb the abuse of custodial interrogation to obtain coerced confessions. Custodial interrogation at the police station is inherently coercive. The police have many techniques to get persons who are completely innocent of crimes, to either confess to a crime that they didn’t commit, or at least to get them to admit or state something that tends to incriminate them. When you’re scared, in a police interrogation room and the police bombard you with accusations for hours on end, that you deny for hours on end, people tend to get tired, and just want the questioning to stop.
Sometimes the police place you in a cold room, making you uncomfortable, and you just want to get out of the room, so you admit to at least some of what the police want you to, even though your innocent. So, the Supreme Court created the Miranda rule, that requires the police to advise you of your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel, prior to interrogating you after you’re in police custody, to prevent false confessions.
However, if you were arrested for resisting arrest and battery on a peace officer, the many police agencies, especially the Los Angeles County Sheriff’s Department, ignore giving you your Miranda Warnings, and under the false pretense of an Administrative Force Investigation, proceed to interrogate you while your in police custody. You know that you haven’t done anything wrong, and the police have. You’re hoping that if you act cooperatively enough, that the cops will just let you go, or will at least give you a citation and let you be on your way, rather than require that you post bail; something that you know is going to costs you thousands of dollars; win, lose or draw. So, you say nice things to the police. You tell that you understand why the police officer did what he did to; that you can understand why the police officer did what he did to you, and are no longer complaining. You just want to go home. However, there really is nothing that will benefit you by discussing your incident with the police. Don’t do it.
2) DOCUMENT YOUR INJURIES.
As they say, a picture is worth a thousand words. Take lots of photos of your injuries. Don’t take a photo two
inches away from the injury. Take close-up photos, but also back-up and away from the injury to put it is perspective. Also, take photos of all persons and places and things involved. Make sure also to back away from what you’re taking a photo of, so you have close-up photos as well as photos from farther away. Also, keep everything. Keep the bloody shirt or skirt. Keep your broken glasses. Keep and secure anything that has to do with your incident with the police.
3) GET LEGAL REPRESENTATION QUICKLY.
California Government Code Sections 26202.6 and 34090.6 provide for the retention periods of recordings of police radio and telephone communications (100 days), and for routine video monitoring (one year.) If your lawyer doesn’t make a formal demand that police radio and telephone communications regarding your case are located, maintained and preserved within 100 days of the incident, the police are generally free to destroy them; something that they will be more than happy to do. Many times, they destroy such evidence even if the agency is presented with such a demand for preservation of such evidence, but if they do so after having been served with such a preservation demand, chances are that you will be in a better position than you would have been otherwise. Also, your lawyer will usually make arrangements for a private investigator to locate and interview witnesses, and obtain evidence such as surveillance recordings. Many places that have video surveillance cameras have a 30-60 day retention time. If you don’t get the video evidence that can really show what really happened to you, you may be out of luck.
4) MAKE A CALIFORNIA GOVERNMENT TORT CLAIM FOR DAMAGES.
Under the California Tort Claims Act (Cal. Govt § Code 910 et seq.), you have six months from the date of the “accrual of the cause of action” (i.e. either the incident, or when a person is reasonably put on notice of the actions of the officer(s)) to file a Claim For Damages with the involved Municipal entity (i.e. State of California, City or County, or some other governmental entity, like a School District, a Water District, etc.; the entity that employed the public officer / official who violated your rights.) If you miss the six month deadline, you have up to one year from the date of the incident to file a Petition with a California Superior Court, to be relieved from having to have filed a Claim For Damages with the municipal entity (i.e. state, county, city, school district, water district, etc.) However, before you do that, you must request the permission of the municipal entity to file a Late Claim For Damages, and present the proposed Claim for Damages with the request. If you don’t file a Claim For Damages timely, you will lose your right to sue for claims that arise under California state law.
In California, you have two years from the date of the incident, however, to sue under claims against the officer and his/her employing municipal entity that arise under federal law; 42 U.S.C. 1983; the Ku Klux Act of 1871 (that allows persons to sue persons who violated their federal constitutional rights while acting under the color of state law.) That’s because Congress never enacted a Statute of Limitations for Section 1983 lawsuits. So, in Wilson v. Garcia, 471 U.S. 261 (1985), the U.S. Supreme Court held that the Statute of Limitations for lawsuit brought under 42 U.S.C. 1983, was the period of time to sue under the residual personal injury statute of the state in which the federal claim arose. Therefore, if the police beat you up and/or falsely arrested you in California, as the California residual personal injury statute is two years (See, Cal. Civ. Proc. Code § 335.1), you have two years from the date of the subject incident to sue under Section 1983. However, if you get beat-up and/or falsely arrested in some other state, that other state’s residual personal injury Statute of Limitations will be the Statute of Limitations for your Section 1983 claims.
Moreover, although Cal. Gov’t Code 945.3 tolls (postpones the running of) the statute of limitations for the filing of an actual lawsuit against a peace officer (i.e. police officer, deputy sheriff or other “peace officer” under Cal. Penal Code 830 et seq.) while a criminal case arising out of the same incident is pending against you, Section 945.3 doesn’t toll the requirements to file a Claim For Damages under the California Tort Claims Act
5) MAKE A PERSONNEL COMPLAINT TO THE INVOLVED POLICE AGENCY, WITH YOUR LAWYER PRESENT.
Cal. Penal Code § 832.5 requires police agencies to investigate complaints made to their agency about police officers. That doesn’t mean that they aren’t just going through the motions, and that the investigation is truly an investigation. In virtually all American police agencies, if there is a swearing contest between you and an officer, the officer will not be found culpable or otherwise in the wrong. However, having the police do even a bogus Internal Affairs Investigation, will require the agency to interview the involved officers and at least some of the witnesses. This may be helpful to your case, because liars cant remember all of their lies, and chances are that the statement that the officer gives to Internal Affairs will, in some material way, conflict with his report, the report of another officer, or later testimony by the officer. Moreover, finally, the Internal Affairs statements of the involved police officers are discoverable in California Superior Court criminal cases. See, Rezek v. Superior Court, 206 Cal.App.4th 633 (2012.)
Moreover, the mere process of making such a personnel complaint requires your complaint to be kept in the officers file for five years, and your complaint may just help out the officers next victim, or, if there are enough complaints, get the officer fired, or transferred to an assignment where he/she wont be in a position to goon other civilians.
Please also note that there are cases in which you may have committed a crime, and, in light of the charges and the evidence, you may be better-off not making any statements at all; even a Personnel Complaint. Seek the advice of your attorney on this issue.
6) IF YOU ARE BEING CRIMINALLY PROSECUTED, BE CAREFUL NOT TO PLEAD YOURSELF OUT OF COURT IN YOUR CIVIL CASE.
Only the California Attorney Generals Office and the County District Attorneys Office can file a criminal court case against you for any violation of California state law. In some cities like Los Angeles or Anaheim, the City Attorneys Office files and prosecutes any misdemeanor (state law) criminal charges in court, and the District Attorneys Office files and prosecutes felony criminal cases. Only a City Attorney’s Office can prosecute a violation of a City ordinance, and only the County Counsel’s Office can prosecute violation of a County Ordinance.
There are several reasons that police officers that beat-you-up and/or falsely arrest you, procure your criminal prosecution for crimes that you didn’t commit. First, although the police usually are not familiar with legal jargon such as collateral estoppel or res judicata, they know enough to know that if they can get you convicted of any crime, that, you cannot sue the police for false arrest (Heck v. Humphrey, 512 U.S. 477 (1994).) Moreover, if your conviction is for crimes such as resisting or obstructing or delaying a peace officer (Cal. Penal Code § 148(a)(1)), assault on a peace officer (Cal. Penal Code § 240/241(b)), battery on a peace officer (Cal. Penal Code § 242/243(b)) or Cal. Penal Code § 69 (resisting with violence), you may be precluded from suing the police at all; even for excessive force.
The gimmick in this situation, is that a common element of each of the four crimes mentioned above, is that the alleged victim officer must be engaged in the lawful performance of his duties for a criminal defendant to be found guilty of such crimes. See, People v. Curtis, 70 Cal.2d 347 (1969); See also, the California Criminal case standard Jury Instructions on this issue; CALCRIM 2670. Therefore, if you’re convicted of any of those four crimes, the jury must have necessarily found that the officer was not acting unlawfully; such as by using excessive force, by making an unlawful detention of an arrest, or by otherwise acting unlawfully.
Thus, because you have now been convicted of any of those four crimes, the issue of whether the officer was acting lawfully is res judicata; a thing decided, and you are collaterally estopped (precluded in one case because of an issue being decided against you in another case) from suing. In some cases where a person was convicted of one of those four crimes, it may still be possible to sue for excessive force if the case is of such a nature, that the criminal violation is sufficiently segregated from the use of excessive force. So, for example, one could have, resisted or delayed an officer by not complying with a lawful order him/her, and then the officer proceeds to beat-you-up. However, as a practical matter, most Judges will find against you on this issue.
The police also want to get you criminally prosecuted to beat you down; to mar your case and cut-it-down; piece by piece. The City of Santa Ana, California, used to have an extortion form; a plea agreement (and even a dismissal) form where the City Attorney checked-off the box that says: Stipulates To Probable Cause For Arrest. Entering a plea with that box checked-off will usually be upheld if you try to sue the police later on. If the prosecutor requires that you stipulate that there was probable cause for your arrest in exchange for dismissing one of more criminal charges, the prosecutor is guilty of felony extortion under California law; a violation of Cal. Penal Code § 518 / 519 (MacDonald v. . Such a demand is also a violation of the State Bar of California Rules of Professional Conduct 5-100; illegal to gain advantage in civil case by threatening to accuse another of a crime; guilty or not.
Moreover, notwithstanding Cal. Penal Code § 1016, that provides that a plea of nolo contendre (“no contest”) to a misdemeanor has no effect on a civil case, will not save your civil case from the Heck v. Humphrey bar to suing because of a conviction. See, Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011) (holding that although a plea of nolo contendre / no contest is inadmissible evidence in federal court under Federal Rules of Evidence 410, that the district court may nonetheless take “judicial notice” of the fact of the conviction, sufficient to bar a civil plaintiff’s federal Constitutional claims.) Although Heck v. Humphrey is a federal case, the California Courts have adopted the Heck v. Humphrey bar to California state law claims; now precluding at least a false arrest claim, and also most illegal search and seizure claims, when the civil plaintiff was a criminal defendant over the same incident, and he/she pleaded guilty or nolo contendre to a crime. See, Yount v. County of Sacramento, 43 Cal.4th 885 (2008.)
CALL US FOR ADVISE.
If you’ve been falsely arrested or beaten-up by the police, please call the Law Offices of Jerry L. Steering for a free phone or office consultation, to get some justice. We can live without a lot, but we can’t live without justice.
Jerry L. Steering, Esq.
**In Beverly Hills Office only.
***The State Bar of California does not certify a specialty in police misconduct which is most of Mr. Steering’s law practice.]