Suing The Police In Federal Court, by Wayne Johnson, Attorney at Law, Oakland, California

Suing The Police, by Wayne Johnson (2)Wayne Johnson, Attorney at Law


Maybe you have a close relative who was injured or killed by the police. Maybe you have been the victim of excessive police force. Maybe you, or a family member have been arrested, searched, or merely detained for no apparent reason, and you would like to consider your options.

This book is written by Wayne Johnson, who some consider an expert in excessive force. He is a civil rights attorney in Oakland, California, a city where you may have as much to fear from the police as you may from an extremely violent criminal, particularly if you are a man of color.
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All people of color should consider reading this book, whether you intend to work in law enforcement or just intend to live in a society where you may be targeted with racial profiling. This is true despite the fact that your city may have a Black Police Officer’s Association and may have had more than one Black police chief. An encounter with the police may cost you your reputation… or your life.   ……………

Suing The Police In Federal Court

Too often you may face a rogue police officer or maybe even a gang of them. You may be a victim of improperly trained police who believe an unnecessary punch, kick, wrist lock, baton, pepper spray, bean bag round, canine attack, is a way to control a situation or simply to command respect.

What many people do not realize is that when it is not necessary for the police to use force, any force they use against you can be unreasonable or excessive. The critical question is not to determine when force is necessary, what the appropriate degree of force is, and when you may sue the officers or municipalities for exceeding the appropriate degree.

You may not resist even an unlawful arrest; however, you may use reasonable force to ward off an attack of unreasonable force, but do not count on it. If you run from the police or fight back, you may end up seriously injured or dead, even if you have a right to defend yourself. 


Nothing in this book is designed to assist you in representing any person, or entity, other that yourself. In fact, it is unlawful for a layperson to represent anyone, except himself in court. This means you may not represent family members, estates, businesses in which others own interests or shares, unless you are an attorney licensed in the state where the incident took place. If the incident took place in California you must be a licensed California attorney to assist others in California. Business and Professions Code §6126 prohibits the unauthorized practice of law. The unauthorized practice of law can be a misdemeanor or a felony.

This book is designed to assist you in pursuing your rights against a municipality. That includes a city, a county, a district, or transit authorities.

This book is not designed to assist you in filling claims against any federal or state agencies. Federal claims are pursued under the federal tort claims statue and/or under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

The procedures for suing state police, including the California highway patrol, are similar, but the differences are significant. You should not rely upon this book to assist you.

You should also not rely upon this book for assistance I suing the county or state for injuries received while a pretrial detainee or a convict.

Pre-trial  detainees need to use the Fourteenth Amendment. See Neely v. Feinstein, 50 F.3d 1502, 1508  (9th Cir. 1995)  (“[0]ur Fourteenth Amendment jurisprudence has never required officials to have a subjective awareness of the risk of harm in order to be deemed ‘deliberately indifferent.’”); Redman v. Country of San Diego, 942 F.2d 1435,1443 (9th Cir. 1991) (en banc) (holding that “deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the fourteenth amendment.”).

Convicted persons need to use the Eighth Amendment strict standard. The Eighth Amendment requires a showing that the force was used “maliciously ad sadistically to cause harm” Helling v. Mckinney, 509 U.S. 25 (1993); Whitley v. Albers, 475 U.S. 312 (1986) (deliberate indifference means “malicious, sadistic, or wanton intent to harm” rather than good faith effort to restore order).  To the extent that the plaintiff must prove a due process or cruel and unusual punishment violation, the immunity defense would be inappropriate, Wilson v. Seiter, 501 U.S. 294 ,111 S. Ct. 2321 (1991), Hudson v McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992).

In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 , 1976- 77 (1994) the court discusses prisoner safety from other prisoners. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005).

With regard to medical treatment after  a conviction, the Supreme Court has stated that “deliberate indifference” to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” and amounted to “cruel and unusual punishment,” prohibited by the 8th Amendment. See Estelle v. Gamble, 429 U. S. 97, 104, 97 S.Ct. 285 (1976). Under this standard, the plaintiff must prove both an objective and a subjective component. Hudson v. McMillan, 503 U.S 1 (1992); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).

It is rare; however, negligence is sometimes sufficient to meet the standard. A pattern of “repeated examples of negligent acts” by prison officials may constitute deliberate indifference. Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).

Finally, the law is frequently changed ad reinterpreted by the courts. You should re-read and research all the statutes and cases for accuracy and updates before attempting to apply them.

States claims are sometimes pursued under the state tort claims statue or sometimes completely barred by the Eleventh Amendment to the United States Constitution. The Eleventh Amendment to the United States constitution provides as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” There is a filling fee for filling a state claim, against the State of California. See Form VCGCB- GC- 002 (Rev. 8/04).

It is also possible to sue an individual who is employed by a state; however if you are relying on Title 42 U.S.C  § 1983 , you will have to allege the individual  was working in his individual capacity while he or she violated your United States Constitutional rights.

This book does not emphasize strategies for suing individuals or states. If you are planning to sue a state or the federal government, it is best you consult another treatise.

Filling lawsuits against the police can be confusing because of over lapping state and federal laws.  For certain state law claims you must first lodge a claim pursuant to the Gov’t Code. That is not required for federal claims.

If you would like to purchase this book that includes forms and examples, please contact Wayne Johnson, at  The book price is affordable.  It is only $14.95, plus shipping and handling.

MURDER ON THE YARD by Dr. Steven Nur Ahmed

Four police officers were murdered and one wounded in Oakland in 2009 in broad daylight; a three year old child was gunned down in August 2011; a father was beaten to death in front of his son in broad daylight; in 2007, journalist Chauncey Bailey was murdered in broad daylight; more children were shot in 2012; and the number of shootings and homicide continue to rise in the city of Oakland, 131 for the year 2012.  As of December 2012, the murder rate constituted a 42% percent increase over 2010.  And over 37 years has an average of 109 murders per year.
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In Oakland, the vast majority of homicide victims and perpetrators are African American. Citizens wonder: why?  The answer is not so obvious; but there is an answer. There is a reason. It is not primarily because of guns.  It is because a slow cultural transplantation has taken place in the city of Oakland, California and in other urban areas throughout the nation where African Americans live. One culture has been taken from prison and transplanted onto cities such as Oakland while it is displacing traditional culture in the communities at large.

The African American culture is not the same culture today that emerged from the post civil war slave plantation culture. That culture was driven by freed men and women who envisioned hope in their future.  Rather, this other culture is a culture of parolees who are never set free from their bondage to punishment and who thus never have their hope in a future rekindled.

Their culture is a prison yard culture. It is that prison yard culture they participate in; it is not a vital culture.  Parolees live devitalized and dependent lives because they are prescribed the role of social burden and they know it.  They feel it every day and night.  It is painful to them.

The prison yard culture is a transplanted culture having many collateral effects on many individuals in many communities because of an increasing incarceration rate over the past thirty-seven years.  There are many examples. Oakland, California, is one where for more than 37 years layer upon layer and generation after generation of parolees have been compelled to live impoverished lives concentrated in small pockets of the city without the full enjoyment of the bill of rights.

That thesis is predicated on the fact that the state parolee population of Alameda County was approximately 3,462 on any given day in 2005 add to that the number of Federal, state Youth Authority parolees, and Alameda County jail probationers over the same period of time and we multiply that number by thirty five (years) we arrive at an approximate figure of 121,170. There are approximately 400,000 people who live in Oakland.  In 2005 there were 1,508 on parole.  Do the math.

What we are dealing with is the likelihood that about twenty percent of Oakland’s population has been incarcerated or in jail at some time over the past thirty-five years. In some areas of the city that percent is even higher.  We are also faced with the horrific fact that over 30 percent of the Oakland population has suffered a murdered relative or friend.  Such deep and pervasive sorrow sours the very core of interpersonal relations in the city.  Oakland is made up of thousands of depressed individuals.  For that reason a pall hangs over the city as thick as smog as hundreds of processions carrying the dead flow through its streets every year and there is no indication that it will subside within any reasonable time.

All institutions are feeling the stress of the prison yard culture; poor families cannot carry the burden it puts upon them. Even Congress has been tinkering with a ‘Second Chance Act’ because the widespread discrimination of ex-felons is shoring up the prison yard culture and causing it to burst all social levees such as prisons, jails, parole, and probation departments.  AB 109 signed into law on April 5th 2011 will increase the rate of cultural disintegration in Oakland because the county jail ‘levees’ will not hold for long because over 90% of the persons incarcerated return to society, eventually.

It is causing a facial change in the communities, too, as more armed guards make constitutionally free communities take on the visage of controlled environments like prison. Citizens are more likely than ever before to look up and see armed guards in traditionally safe zones like schools, hospitals, supermarkets, and restaurants.  They too are beginning to feel the paradox of their ‘guarded liberty’. They are beginning to feel occupied.  They are beginning to apply the concept of a ‘dead zone’ to their neighborhoods.

Moreover, such environments incubate the prison yard culture mind-set because it is that environment which submerges their constitutional freedoms to the demands of police necessity.  It has turned police officers into jailers; it has turned their oath of service and protection to community into a visceral obsessive compulsion to control everyone. Their fear of wrongdoers is now greater than the fear wrongdoers have of them. We should not be surprised; such is the guard-convict syndrome. It too has become a characteristic of the transplanted culture. It now is a permanent characteristic of those who live in neighborhoods throughout Oakland.

The police, surrounded by a community of mistrusted parolees, cease to trust ‘the public’ because that public is often predominantly the offspring of the prison yard cultural mindset.  So, they cease to serve the ‘public’ because they do not recognize it as a community of freedmen and women. That community has become indistinguishable from the mass of marginalized parolees.   The police community then becomes an island unto itself as socially marginalized as the parolees and equally mistrusted and dangerous to the citizens they serve.  For example, on August 13, 2011, a homeless man raised a stick in the presence of an Oakland police officer.  That man was shot dead.  It’s happening everywhere; sometimes phrased as ‘stand your ground’; ‘he was wearing a hood’; ‘he was sagging’. All are but a pretext to murder; a justification, usually to murder African American youth who are presumed to be of the more than 25% who have been incarcerated.

Here is exactly where the prison yard culture thrives because it feeds on repressive environments where freedom is sacrificed in the name of punishment.  It is a culture not of disclosure but of criminal conspiracy and solicitation.  It is an environment in which the yard is divided into antagonistic forces. Each submerged in their conspiracies to denigrate the other.  This avalanche cannot be stopped soon.

The tipping point was reached years ago.  As a consequence, traditional cultures such as that in the African American community, already supported by weak infrastructures such as the family most of which have been ripped to shreds, are being displaced by values which originate in the prison yard culture.  The African American culture is no longer a traditional culture.  It is a cultural hybrid of contradictory and contrary value tendencies. It is gangster rap and church choir with a macabre blend of lyrics and rhythm set to high pitch sirens of police cars and ambulances.  Old Icons have fallen.  They do not resonate with youth.

African American culture is no longer traditional because traditional icons no longer inspire hope and because it can no longer effectively regenerate its values through its offspring.  It cannot pass on a vision of the future-its future, because it does not claim a vision of itself.  It cannot see itself in the future.

The prison yard culture is more efficient and effective in transmitting its values to successive generations because its icons are simple and tied to the visceral impulse of its children.  Guns, the snitch principle, baptism in prison as its rite of passage to its form of manhood, and its public vision through mass media give to it a commanding voice. ‘Sagging’ is in, everywhere. The children sign up on visiting day at the prison; they adapt to it. They have a passion for the lifestyle it engenders.

So another culture has taken root. It is denied to the peril of every citizen. It is the product of irrational social forces which have raged in the African American community for over forty years.  In its wake, families, schools, churches, and governments have been laid economically and morally wasted.

Its seed, found in the dark hollows of prison, have found a fertile place to germinate and to grow undisturbed for two generations in historically dysfunctional prison cultures.

The same prison yard culture spreads its germinated seeds far and wide to every city. It has given rise to anti-culture. But what is anti-culture?  It is nihilism.  That means ‘the end’ because it is the negation of all that traditional culture has stood for and now feebly stands for as it is locked in the corner of the ring being beaten to death.  It is not social change but the negation of any social change at all because it allows for no vital social functioning.

It is the inversion of traditional culture.  It is ‘not being culture’ which consist of anti-values, that is, to be neither moral nor immoral but rather ‘not to value’ at all.  It is ‘not to work’ as the value to be exchanged for value; that is to take from others and give nothing in return.  It is ‘not respect for life’ but to drive the devaluation of life to utter nothingness. It is death.

The prison yard culture has its ritual.  Its ritual of human devaluation is murder.  Only the act of murder accomplishes the nothingness at the heart of its own being; its being is passé. That is because nothingness is the mirror image of the dead soul without the possibility for life.

Their dead souls have neither hope in the King dream nor in the democratic vision. They do not foresee a prosperous economic future for themselves either; it is the utter suspension of all anticipation and imaginative free-flow.  It is ‘not being’; it is nothingness which drives them.  This is what an increasing number of socially disabled parolees feel every officially damned day and night. Their epitaph is: ‘I don’t give a fuck’.  And if you ever meet one enraged you had better believe it because they mean just that.  That is why the city is dysfunctional.

Intelligent people in government especially the demographic statisticians could foresee the prospect of our current predicament forty years ago.  They could see it in the numbers as clearly as we can see the glaciers on Greenland melting in real time. Yet, it happened. It happened because those politicians and corporate interests sought short term political and monetary gain rather than heed the long term warnings of social disaster. Now, it is a disaster.

Psychologists have long ago established that there is a correlation between frustration and aggression.  So, we should not be surprised at the thirty year consistency of the murder rate in Oakland and other major cities.  If public policy aims to protect the public health, safety, welfare, and morals, then those in charge of public policy formulation and implementation have been and are at least incompetent in their positions and at most complicit in the furtherance of the prison yard culture and thus acts of murder.  In either case they should be recalled from office and they should be recalled from office by the public right now.


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