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· Our Principal Attorney, Mr. Walston, is a widely cited published authority on police misconduct, and teaches the subject to practicing attorneys.

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Attorney Representation in San Francisco, California since 1989

SAN FRANCISCO POLICE MISCONDUCT ATTORNEY

Police Misconduct

Police officers generally have broad powers to carry out their duties. The Constitution and other laws, however, place limits on how far police can go in trying to enforce the law. As several recent cases have illustrated, police officers sometimes are accused of going too far, violating the rights of citizens. When this happens, the victim of the misconduct may have legal recourse.

What is Immunity and How is it Overcome?

Being stopped and questioned by police is often an unsettling experience. As long as the officer is performing his job properly, there is no violation of a suspect's rights, even if emotional distress is suffered. Police are immune from suit for the performance of their jobs unless unreasonable, willful, or unlawful conduct is demonstrated. Mere negligence, the failure to exercise due care, is often insufficient for liability. 42 U.S.C. Section 1983, is the primary civil rights law victims of police misconduct rely upon under federal law. This law was originally passed as part of the Civil Rights Act of 1871, intended to curb oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. Section 1983 makes it unlawful for anyone acting under the authority of state law to deprive another person of his or her rights under the Constitution or federal law.

Claims brought against police Officers

The most common state claims brought against police officers are false arrest, false imprisonment, malicious prosecution, and use of excessive or unreasonable force. Persons bringing false a arrest claim can also assert that police violated their Fourth Amendment civil right against unreasonable seizure. If the officer had probable cause to believe the individual had committed a crime, the arrest may be viewed as reasonable and the Fourth Amendment not violated. In California, police can arrest without a warrant for a felony or misdemeanor committed in their presence. Some states also allow warrantless arrests for misdemeanor domestic assaults not committed in the officer's presence. Even if the information the officer relied on later turns out to be false, the officer is not liable if the officer reasonably believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must show that the arresting officer lacked probable cause, that is, facts sufficient to cause a reasonable person to believe that a crime had been committed.

Winning Your Claim

A malicious prosecution claim asserts that the officer wrongly deprived the victim of the Fourteenth Amendment right to liberty. To win this type of claim, the victim must show four things:

1) the defendant police officer commenced a criminal proceeding;

2) the proceeding ended in the victim's favor (that is, no conviction);

3) there was no probable cause; and

4) the proceeding was brought with malice toward the victim. As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings.

Excessive Force Claims

Excessive force claims receive the most publicity, perhaps because the results of excessive force seem the most outrageous, and may involve serious injury. Whether the officer's use of force was reasonable depends on the surrounding facts and circumstances. The officer's intentions or motivations are not the only factor. If the amount of force was reasonable, it may not matter if the officer's intentions were bad. The reverse may also be true: if the officer may have had good intentions but used unreasonable force, the excessive force claim may be viable.

Qualified Immunity Defense

It can also be argued that officers have a duty to protect individuals from constitutional violations by fellow officers. Therefore, an officer who witnesses a fellow officer violating an individual's constitutional rights may be liable to the victim for failing to intervene. Defense attorneys representing a police officer for any of these claims may raise a defense of qualified immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense may be able to defeat a claim against the officer if the officer's conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim's constitutional rights, and produced some injury or damages to the victim.

Police Misconduct

Pursuing a claim of police misconduct is a complex procedure which must be followed accurately and in a timely manner. For state claims such as a false arrest and false imprisonment, a claim must be filed to preserve the ability to sue. A claim must be filed with the governmental entity involved. Under certain circumstances, a claim may be able to be filed within 12 months, depending on whether individual exceptions to the six month period apply. There exceptions are specific and narrow, however, civil rights claims generally must be filed no later than a year of the incident. There also are a few, very narrow exceptions to this statute of limitations period. If you believe you have been a victim of police misconduct it is important that you promptly contact a qualified attorney who will assist you with preserving your rights. Local Bar Associations, such as the Los Angeles County or Santa Monica Bar Associations, will assist you in determining if your case has merit and can refer you to several attorneys with whom you may want to consult.

Conclusion:

Civil rights claims are an important part of our legal system, providing a balance between the duty of law enforcement to uphold the laws and the right of individuals to be free from police misconduct. Cases against police officers can be difficult. Officers may be immune from suit, even though an individual feels he or she was mistreated. Claims against police departments can also be expensive to bring because a lot of evidence must be secured, including records, statements of police, statements of witnesses, and various other documentation, to prove the misconduct. The evidence supporting the claim is the most important element in a police misconduct suit. If you feel you have been the victim of police misconduct, you should promptly contact an attorney so that valuable evidence does not disappear. You may need to take photographs of injuries or damage and may need to set aside clothing or other objects stained with blood from the incident. An attorney should be contacted so the names, addresses and telephone numbers of witnesses to the incident can be obtained. Also, it is helpful to write down what happened as soon as you can, so you don't forget important details.

Steps You Can Take Now

There are several steps immediate steps you should take immediately:

• writing down as much as you can about the what happened, including who witnessed it, the names of the involved officers, whether you received injuries, and where you got treatment for your injuries
• making notes of conversations that you have with people involved
• preserving any evidence you have
• locating any witnesses to what happened
• GET AN EXPERIENCED SAN FRANCISCO ATTORNEY! When you're injured, you need all the help you can get, and you need it as soon as possible. If you do not assert your rights within the time set by law, you will lose your ability to assert them at all. Your time to assert your rights is even shorter when your claim is against the police. Unfortunately, that means that some injury victims pick the first attorney they find, rather than making an informed choice. It's important to educate yourself and find the right fit for you and your case.

CONTACT US!

THE WALSTON LEGAL GROUP

222 Columbus Avenue, Suite 408

San Francisco, California 94133

Tel: (415) 956-9200

Fax: (415) 956-9205

Email: info@walstonlaw.com

Our law offices are located at

222 Columbus Avenue, Suite 408

San Francisco, California 94133

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Attorney Representation in San Francisco, California since 1989