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.
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) (“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 firstname.lastname@example.org. The book price is affordable. It is only $14.95, plus shipping and handling.