outline – fighting back: getting justice for clients hurt...
TRANSCRIPT
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Outline – Fighting Back: Getting Justice for Clients Hurt by Police Speakers: Sanjay Schmidt: Sanjay Schmidt has a longstanding commitment to fighting for people whose constitutional rights have been violated or who have been wrongly injured by the careless, reckless, or intentional conduct of others. He started his legal career as a Deputy Public Defender in 2007, where he handled criminal cases ranging from misdemeanors to serious felonies, as well juvenile delinquency matters. In late 2009, he opened his own practice, which began with a focus on criminal defense, but which has been transitioned into one concentrating in the areas of federal civil rights/police misconduct litigation and personal injury, although he will occasionally still handle criminal cases (sometimes pro bono). The majority of his cases involve excessive force, false arrest, unlawful search and seizure, in-custody deaths / in-custody serious injuries, malicious prosecution, and First Amendment claims. He is licensed to practice in both California and New Mexico, and handles cases in state and federal court in both jurisdictions. He primarily handles cases in the Northern and Eastern Districts of California. He was selected as a Rising Star in 2015, 2016, and 2017 by Super Lawyers for the area of Civil Rights law. John Burris: John Burris has practiced law for more than 40 years. He is primarily known for his work in the areas of Civil Rights with an emphasis on police misconduct excessive force cases raising federal questions under Federal Code Section 1983. His other practice areas include employment litigation, criminal defense, personal injury, and toxic torts and mass class actions.
Before founding the Law Offices of John L. Burris, his previous employment included Harris, Alexander, and Burris, 1979 to 1985; Deputy District Attorney with the Alameda County District Attorney’s Office from 1977 to 1979; Assistant State’s State Attorney in Cook County, Illinois from 1975 to 1976; Associate Attorney, Jenner and Block, Associate 1973 to 1975; and Summer Associate, Associate with Jenner and Block, Summer 1972 where he worked on Metcalf Commission investigating police brutality claims in Chicago.
John L. Burris has received many awards for contributions to the legal profession and the community at large. Most recently he was honored by the National Bar Association (NBA) where he was inducted into the Hall of Fame for exemplary work in the area of civil rights, in 2017. Burris was a recipient of the Champions of Justice Award from the National Lawyers Guild-San Francisco, in 2015, the Vince Monroe Townsend, Jr. Legends Award from the National Bar Association, in 2015, and he received the NBA’S highest honor, The C. Francis Stradford Award, in 2009, the Loren Miller Award as an Outstanding Civil Rights Attorney given by the California Association of Black Lawyers, in 1989, and the Clinton W. White Award as an Outstanding Trial Lawyer from the Charles Houston Bar Association in 1986. He has been named as a California Super Lawyer and by the Los Angeles and San Francisco Daily Journal newspapers as one of the Top 100 Most Influential Attorneys in the State, in 2009 and one of the 100 most influential lawyers in the State of California, in 2006. Burris has been recognized with
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community service awards by Congresswoman Barbara Lee, City of Oakland City Council, NAACP Legal Defense Fund, 100 Black Men of the Bay Area, Inc., and the California State Assembly.
Mr. Burris frequently provide legal commentary for local and national print and televised media including KTVU Channel 2, KRON 4, MSNBC and other cable Televiesion and radio. He is a frequent lecturer on the topics of police and criminal justice issues. Burris regularly participates in charitable events for breast cancer, heart cancer such as Bay to Breakers and Susan G. Komen Breast Cancer Walk. He is disciplined about his daily workout routine which includes jogging and weights.
Moderated by Audrey Siegel: Audrey Siegel is a personal injury trial attorney at The Cartwright Law Firm. She specializes in complex motor vehicle accidents, product liability, and premises liability claims for inadequate security. She was named as a Finalist for San Francisco Trial Lawyers Association (“SFTLA”) Trial Attorney of the Year in 2016 (as a member of a trial team), and as Finalist for the SFTLA New Lawyers Division Outstanding New Lawyer Award in 2017. Outline:
1) How to assess and preserve a client’s civil rights claims: a. Criminal - things to look for that might indicate a 1983 claim b. Civil Case selection – evaluating a 1983 claim c. Bringing your claim in State vs. Federal court
2) How criminal defense attorneys and civil rights attorneys can work together to
advance their mutual clients’ interest, and important issues: a. Best practices in working together with criminal defense counsel
i. Stories of success and lesser success b. Utilize the criminal case to investigate the civil case and obtain/preserve
evidence; evidence relevant to a defense of a Penal Code section 148(a)(1), 243(b), or 69(a) charge is frequently relevant to any potential civil claims as well.
c. Be cognizant of impact of client testimony and factual stipulations on a civil case. d. If there is no criminal charge, you can submit a California Public Records Act
(“CPRA”) request under Cal. Gov’t Code § 6250 et seq., but the agency may refuse to provide the police report and other materials, citing Cal. Gov’t Code § 6254(f). Some agencies will provide reports, others will not.
1. Read Haynie v. Superior Court, 26 Cal. 4th 1061 (2001) and its progeny for a discussion of the parameters of what records must be disclosed, and what can be withheld.
2. Certain materials must be provided. Read Cal. Gov’t Code § 6254(f)(2).
e. Preserving Claims
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i. How plea bargains affect a criminal defendant’s ability to bring a civil rights claim:
1. Important to distinguish between claims for false arrest, excessive force, and malicious prosecution; the analysis is different for all.
ii. How guilty verdicts affect a criminal defendant’s ability to bring a civil rights claim
iii. Covenants not to sue in plea bargains or “release-dismissal” agreements: Ethical Propriety and Enforceability
3) Ethical considerations in handling both the criminal and civil case i. Can a single firm/attorney do both the criminal and civil case?
ii. Paid v. Free representation and cost of representation as damages?
4) When to bring the civil claim (generally) * Please note that SOL issues in 1983 claims can be extremely complicated. This CLE is intended to provide a basic understanding only and should not be relied upon in all cases, nor for all claims*
a. Statute of Limitations for Claims: b. When to file the Government Code § 910 claim c. Government claim forms d. Some Tolling provisions (note: this is not an exhaustive list, and only includes the
more common provisions relied on; each case requires its own research)
5) Case studies/examples a. Sanjay example (heroin balloon case; K-9 case; both may have been precluded by
Back the Blue Act, discussed infra) b. Burris example
6) Important issue: Dangerous legislation in Congress: “Back the Blue Act of 2017”;
will be revived next term. a. Severely limits the rights of victims of police violence to sue officers b. Allows federal prosecution of crimes against police frequently charged to cover
for police violence. i. Would make any claimed assault on a police officer a federal offense with
severe mandatory minimums & would allow federal prosecutors to pursue cases that have already been resolved in state court.
c. Most dangerous aspect: would amend 42 U.S.C. § 1983: i. Limit recoverable damages to only out of pocket expenses (such as funeral
expenses for a killing) if victim of unlawful police violence was doing something “related to” or “in the course of” committing a felony or “crime of violence,” which includes many misdemeanors and property crimes.
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ii. Would eliminate attorneys’ fees. d. Would allow police to brutally beat or even summarily execute someone who
possessed drugs, stole a bicycle/car, or painted graffiti, with little if any, exposure. e. Officers would have greater incentive to exaggerate claims of criminal activity to
reduce liability. i. Will encourage police to be creative in claiming “felony” behavior to
protect themselves from liability. f. Fleeing suspects are commonly victims of police violence (punishment for
running) g. Law already gives officers considerable leeway to use force when it is needed. h. It is a tough job, but nobody is above the law. This is BAD policy.
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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Sanjay S. Schmidt SBN 247475 LAW OFFICE OF SANJAY S. SCHMIDT 1388 Sutter Street, Suite 810 San Francisco, CA 94109 T: (415) 563-8583 F: (415) 223-9717 e-mail: [email protected] Attorneys for Plaintiff MISCONDUQT VIKTM
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
MISCONDUQT VIKTM,
Plaintiff,
vs.
CITY OF RAILROADING, a municipal corporation, Railroading Police Department Chief KRISTOF KORRUPT, in his Individual and Official Capacities, Railroading Police Department Detective HOWDEWEY RAILROADEM, Individually, Railroading Police Department Officer FREDDIE FALSEREPORTER, Individually, and DOES 1 THROUGH 50, Jointly and Severally, Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 5:XX-cv-XXXXX-XXX
PLAINTIFF’S INTERROGATORIES TO DEFENDANT CITY OF RAILROADING, SET ONE Action Filed: June 13, 2016 Trial Date: Not Set
[SAMPLE]
PROPOUNDING PARTY: Plaintiff MISCONDUQT VIKTM RESPONDING PARTY: Defendant CITY OF RAILROADING SET NUMBER: ONE
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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PLEASE TAKE NOTICE THAT, pursuant to Rule 33 of the Federal Rules of Civil
Procedure, Plaintiff, MISCONDUQT VIKTM, hereby requests that the above-named
Defendant answer the following interrogatories under oath, separately and fully, within thirty
(30) days of the time of service, in accordance with Rules 26 and 33 of the Federal Rules of
Civil Procedure.
I. DEFINITIONS AND INSTRUCTIONS
“DOCUMENTS” or “DOCUMENTATION” (whether written in upper or lower case)
means handwriting, typewriting, printing, photostating, photocopying, recording, and every
other means of recording upon any tangible thing, any form of communication or
representation, including letters, words, pictures, sounds or symbols, or combinations thereof,
as defined by California Evidence Code § 250 and includes, but is not limited to, audio and
video recordings, letters, drafts, notebooks, diaries, calendars, notes, correspondence of any
kind, records, reports of any kind, quality control reports, investigation reports, inspection
reports, insurance policies, insurance claims forms, forms of any kind, statements, invoices,
bills, bills of lading, bills of sale, permits, licenses, memoranda, minutes of meetings of any
kind, telephone messages, directives, court orders, court documents of any kind, maintenance
records, maintenance reports, inspection forms, inspection reports, inspection data, research
data, studies, analyses, reports of analyses, experiments, cost surveys, tests, test data,
checklists, data sheets, specifications, sales brochures, owners' manuals, operations' manuals,
maintenance manuals, instruction manuals, procedures' manuals, manuals of any kind,
itemizations, agendas, compliance orders, notices to abate, contracts, agreements, bids,
computer printouts, e-mails, computer files, notebooks, diaries, tallies, receipts, photographs,
videos, transcripts, statements, minutes, and information/data summaries, and any and all
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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electronic data, including but not limited to emails, logs, notes, reports, drafts, and Computer
Assisted Dispatch (“CAD”) information.
“DOCUMENTS” or “DOCUMENTATION” also connote the following definitions of
“writing,” “recording,” “photograph,” “original,” and “duplicate,” articulated in Rule 1001 of
the Federal Rules of Evidence:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form. (b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner. (c) A “photograph” means a photographic image or its equivalent stored in any form. (d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout--or other output readable by sight--if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it. (e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. Fed. R. Evid. 1001 (a)-(e).
“INCIDENT” refers to the incident(s) described in the Plaintiff’s Complaint.
“PLAINTIFF” refers to MISCONDUQT VIKTM.
“YOU” or “DEFENDANT” refers to the party in this action to whom this discovery
request is directed, as set forth above, on page 2.
“RPD” refers to the Railroading Police Department.
“INVOLVED OFFICERS” refers to all law enforcement officers involved in, or
present during, the use of force, and/or restraint of, and/or detention of, and/or arrest of
Plaintiff during the incidents described in Plaintiff’s Complaint, including, but not
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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limited to, Defendants __________, __________, _____________, and all others.
PERIOD OF TIME AT ISSUE: where not otherwise indicated, the pertinent
period of time in responding to these interrogatories is from ten years prior to the date
of incident to the present date.
“Relating to” and “relates to” mean, without limitation, relating to, constituting,
concerning, mentioning, referring to, describing, summarizing, evidencing, listing, relevant to,
demonstrating, tending to prove or disprove, or explain.
“And” and “or” shall be construed either disjunctively or conjunctively as necessary to
bring within the scope of the discovery request all responses that might otherwise be construed
to be outside of its scope.
The use of the singular includes the plural, and vice versa.
The use of one gender includes all others, appropriate in the context.
“Identify” means and requires you to state:
(a) With respect to a person, his or her name, address, telephone number, employer and job title. (b) With respect to a document, the name and address of its author or maker, the names and addresses of all persons who were addressees, the date on which it was created or made, the nature of the document and the substance of the information or communication set forth in the document. (c) With respect to a tangible or demonstrative thing, a sufficiently graphic description to distinguish it from other tangible or demonstrative things of the same class or type. (d) With respect to conversations and written or oral communications:
(i) The date on which each conversation or communication occurred. (ii) The persons making such conversation or communication. (iii) The substance of the conversation or communication. (iv) The names and addresses of every person present when the
conversation or communication occurred. (v) The place where the conversation took place.
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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“PERSON” or “Person” includes, without limitation, any natural person,
proprietorship, corporation, partnership, trust, joint venture, association, organization, business
entity or governmental agency.
In answering these interrogatories, you are required to furnish all information that is
available to you, including information in the possession of your attorneys, or other persons
directly or indirectly employed by you, or connected with your attorneys, or your insurance
carrier, or anyone else acting in your behalf or otherwise subject to your control.
In answering these interrogatories, you must make a diligent search of your records and
of other places and materials in your possession, or available to you or your representatives. If
you cannot obtain records or information in time to answer these interrogatories, explain in
your answer the circumstances and what is being done to obtain the information.
If you cannot answer any interrogatory in full, answer it to the extent possible, explain
why you cannot answer the remainder, and state the nature of the information or knowledge
that you cannot furnish.
If an interrogatory calls for a description of a document, photograph, or other writing or
thing, describe it in sufficient detail so that it can be obtained from you by a motion for
production, or by subpoena. Alternatively, instead of describing, attach to your answer a clear
copy of the writing or other such item.
If your answer to any interrogatory is derived from a document or writing, describe the
document or writing, or attach a clear copy of it.
Each interrogatory should be answered by the party to whom it is directed. If more than
one person participates in the formulation of answers on behalf of the party, it should be made
clear which person or persons have formulated each answer. If more than one person
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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participates in answering a question, the identity of the person or persons answering each
interrogatory should be indicated by the placement of each answering person’s initials after
each interrogatory that person has answered, followed by a key specifying whom any initials
identify.
In providing your responses, it is required that, for each activity, physical contact,
incident, or event, you provide the following information: (1) its time, (2) its precise location,
and (3) the identities of all persons present and all persons involved.
When requested to “Identify” one or more “Persons,” it is required that, for each such
Person, you provide that Person’s full name, address – residence and business, and residence
and business telephone numbers.
When requested to identify one or more Documents or Writings, it is required that, for
each such Document or Writing, you identify the Person or Persons having custody or control
thereof.
If you object to furnishing any information requested by these interrogatories on the
grounds of privilege, work product or otherwise, your response should state the existence of the
information, document or communication, identify the specific grounds on which your
objection is based and identify the information objected to by furnishing its date, participants
(e.g., names of speakers, authors, addressees) and a general description of the nature, rather
than the substance, of the purportedly privileged information. If the objected to information
contains relevant non-objectionable matter, you should disclose it.
All interrogatories contemplate and require a full narrative response.
Plaintiff’s Interrogatories to Defendant City of Railroading, Set One; Viktm v. City of Railroading, et al. (Case No. 5:XX-cv-XXXXX-XXX)
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The scope of these interrogatories is intended to be as broad as permitted by law and the
person who answers each interrogatory is required to seek out the information sought therein
from all sources available to him or her, including legal counsel.
II. INTERROGATORIES
1. State the name, address, and telephone number of each PERSON that participated in
the arrest of Plaintiff, on July 30, 2015.
2. Set forth each and every fact upon which YOU base YOUR denial of ¶ 24 of
Plaintiff’s Complaint.
3. Set forth each and every fact upon which YOU base YOUR denial of ¶ 26 of
Plaintiff’s Complaint.
5. If you contend that there existed probable cause to arrest Plaintiff on July 30, 2015,
state all facts that support such contention.
7. Describe in detail any and all employment actions, including, but not limited to,
discipline, warnings, reprimands, censures, suspensions, docked/reduced pay, demotion, and/or
termination, that you took against any of the INVOLVED OFFICERS as a result of their
involvement in the INCIDENT.
8. State the name, address and telephone number of each of YOUR agents or
employees, who knew, prior to Plaintiff’s arrest on July 30, 2015, about the INVOLVED
OFFICERS’ intention to arrest Plaintiff.
Dated: September ____, 2016 LAW OFFICE OF SANJAY S. SCHMIDT /s/ Sanjay S. Schmidt By: SANJAY S. SCHMIDT Attorneys for Plaintiff MISCONDUQT VIKTM
LAW OFFICE OF JOHN L. BURRIS
7677 Oakport Street Suite 1120 Oakland, Ca. 94621 (510)839-5200 www.johnburrislaw.com
ATTACHMENT “A – ASSAULT AND BATTERY CLAIM”
Claimant objects to your Claim Form because it requires information which constitutes an
invasion of the Claimant’s privacy. Moreover, the information is not required to be provided by
the Claimant under California Government Code Section 910. For example, California
Government Code Section 910 does not require that the Claimants provide their home and work
numbers, driver’s license number, date of birth, auto insurance name and policy number, a
diagram of the location of the incident, any statements by the Claimants as to their reasons “for
believing the City is liable for your damages, “or a description” of all damages which you
believe you have incurred as a result of the incident.” For the purposes of this document
“CLAIMANT” means the individual claimant, claimants plural, and all plaintiffs and parties in
interest represented by the LAW OFFICES OF JOHN BURRIS. Therefore, Claimant submits
the following information in support of his/her Claim pursuant to Government Code Section 910:
CLAIMANT’S NAME: Gary XXXXXX
ADDRESS TO WHICH ALL NOTICES ARE TO BE SENT: LAW OFFICES OF JOHN L.
BURRIS, Airport Corporate Centre, 7677 Oakport Street, Suite 1120, Oakland, CA 94621
CLAIMANT TELEPHONE NUMBER: C/O LAW OFFICES OF JOHN L. BURRIS, ESQ.
(510) 839-5200
PLEASE NOTE: COUNSEL REPRESENTS CLAIMANT AND ALL CONTACT SHOULD
BE MADE WITH HIS ATTORNEY ONLY.
DATE AND TIME OF INCIDENT: January 15, 2015 at approximately 8:00 p.m.
LOCATION OF INCIDENT: 5030 Martini Street Oak Olive, CA 94561
THE FOLLOWING PROVIDES A GENERAL DESCRIPTION OF THE INDEBTEDNESS,
OBLIGATION, INJURY, DAMAGES, OR LOSS INCURRED SO FAR AS IT MAY BE
KNOWN AT THE TIME OF PRESENTATION OF THE CLAIM” AND “THE NAME OR
NAMES OF THE PUBLIC EMPLOYEE OR EMPLOYEES CAUSING THE INJURY,
DAMAGES, OR LOSS, IF KNOWN: [Per Government Code Section 910]. For the purposes of
this claim, “AGENCY” is defined by and refers to the municipal, county, or state entity, which
governs Oak Olive Police Department.
DESCRIPTION OF INCIDENT:
Claimant, Gary XXXXXX, was at his home, located at 5030 Martini Street; Oak Olive,
California, trying to figure out why the power and lights had gone out in his home. Present in
the house were claimant’s wife and 2 of claimant’s daughters. Claimant was going in and out of
his home through the garage door, which was open. After several minutes, several yet to be
identified police officers from the Oak Olive Police Department arrived at Claimant’s home.
The yet to be identified Oak Olive police officers knocked on Claimant’s front door. Claimant
opened the front door and began to talk to the yet to be identified officers through the gate
attached to Claimant’s front door. After some conversation, Claimant closed the front door.
Several seconds later, several yet to be identified Oak Olive police officers started trying to
LAW OFFICE OF JOHN L. BURRIS
7677 Oakport Street Suite 1120 Oakland, Ca. 94621 (510)839-5200 www.johnburrislaw.com
knock Claimant’s front door down. This loud pounding on Claimant’s front door lasted 10 to 15
seconds. Claimant’s wife and middle daughter were sitting in the living room/kitchen area and
observed this. Claimant then heard sirens outside. Claimant, his wife, and daughters were all in
fear at this point. Claimant tried to call several other law enforcement agencies, but none of
them responded to the scene. At some point, claimant’s wife was having a telephone
conversation with their oldest daughter, who had arrived on scene, but was not allowed into the
home by several yet to be identified Oak Olive police officers. Claimant was then receiving
messages from yet to be identified Oak Olive police officers via his daughter’s mobile phone.
The gist of the messages was that Claimant should come outside. Claimant complied and went
outside. As Claimant got to the bench near his front door, he saw several yet to be identified
Oak Olive police officers raise their guns as if they were about to fire. Considering all the recent
police shootings of unarmed individuals, this scared Claimant even more. Claimant then
retreated into the safety of his home. Claimant’s wife, who was still in communication with
several yet to be identified Oak Olive police officers via her daughter’s mobile phone,
incredulously asked something to the effect of “why would he go out there now?” At this time,
Claimant could hear a police dog outside barking. After some more conversation, Claimant
again went outside and sat down on the bench near his front door. Claimant’s hands were in the
air. A yet to be identified Oak Olive police officer, without any warning, then unleashed a police
dog which bit Claimant about Claimant’s left arm and body. Claimant was then pounced upon
by several yet to be identified Oak Olive police officers. These yet to be identified Oak Olive
police officers then beat Claimant about the head and body with fists, knees, feet, and bricks
from Claimant’s yard. Claimant’s wife was standing at the front door and observed Claimant
being beaten. At some point, Claimant lost consciousness, but vividly remembers being dragged
down the street and beaten some more about the head and body by several yet to be identified
Oak Olive police officers. Claimant also remembers having his face pinned against a police car
by several yet to be identified Oak Olive police officers.
Claimant sustained extreme pain, physical injuries, and mental suffering as a result of this
unnecessary beating and excessive use of force. Claimant continues to suffer extreme pain and
mental suffering as a result of the incident.
Claimant was then taken to California County Regional Medical Center for treatment of his
physical injuries. From there, Claimant was transferred to the county jail, from which he had to
post bail. While at the county jail, Claimant received substandard treatment for his injuries.
Several yet to be identified Oak Olive police officers also seized several items belonging to
Claimant, including but not limited to, an Apple Iphone 5, a Surefire flashlight and a pair of
handcuffs. Claimant has yet to receive these items back, even though he has requested them.
When Claimant returned home after being released from jail, he saw that the light near his front
door was broken and that the front door had damage as a result of the actions of several yet to be
identified Oak Olive police officers.
DESCRIPTION OF CLAIM:
Claimant alleges that the conduct of individual employees, agents, and/or servants of AGENCY
constitute State statutory violations, which might include but are not limited to assault, battery,
LAW OFFICE OF JOHN L. BURRIS
7677 Oakport Street Suite 1120 Oakland, Ca. 94621 (510)839-5200 www.johnburrislaw.com
false imprisonment, negligence, negligent hiring, and intentional infliction of emotional distress,
and negligent infliction of emotional distress.
Claimant alleges those individual employees, agents and/or servants of AGENCY are
responsible for Claimant’s injuries, and acts and/or omissions committed within the course or
scope of employment under the theory of respondeat superior. Respondeat superior liability
includes but is not limited to, negligent training, supervision, control and/or discipline.
Individual employees, agents, and/or servants of the AGENCY, include but are not limited to,
the chief of police, sheriff, or an individual of comparable title, in charge of law enforcement for
AGENCY, and DOES 1-100, and/or each of them, individually and/or while acting in concert
with one another.
Claimant alleges the appropriate offenses listed below.
Claimant alleges that assault included, but was not limited to, conduct causing claimant to
reasonably fear a harmful offensive touching upon claimant’s person.
Claimant alleges that battery included, but was not limited to, conduct resulting in a harmful
offensive touching upon claimant’s person in a manner foreseeable likely to cause injury.
Claimant alleges that false imprisonment included, but was not limited to, acts or omissions
causing claimant to be confined or restricted to an area without means of escape while claimant
was aware of the confinement.
Claimant alleges that negligence included, but was not limited to, breach of duty upon failing to
exercise due care by placing claimant at risk of serious physical injury.
Claimant alleges that negligent hiring included, but was not limited to, breach of duty upon
failing to exercise due care by hiring individuals likely to cause physical injury to citizens while
acting under color of law in an official capacity.
Claimant alleges that negligent infliction of emotional distress included, but was not limited to,
the failure to use reasonable care to avoid causing emotional distress to another individual. The
negligent conduct resulted in Claimants’ physical injuries.
Claimant alleges that intentional infliction of emotional distress included, but was not limited to,
outrageous acts or omissions with the intent to causing emotional distress to another individual.
The intentional conduct resulted in Claimants’ physical injuries.
Claimant alleges violation of California Civil Code Section 52.1, for actions by law enforcement
personnel, whether or not acting under color of law, which interfere by threats, intimidation, or
coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this state.
LAW OFFICE OF JOHN L. BURRIS
7677 Oakport Street Suite 1120 Oakland, Ca. 94621 (510)839-5200 www.johnburrislaw.com
Claimant intends to pursue civil penalties pursuant to Ca. Civil Code Sections 52(a) & 52 (b).
Claimant will allege other causes of action subject to continuing discovery.
DESCRIBE INJURY OR DAMAGE:
Claimant has, or may have in the future, claims for general damages, including, but not limited
to, claims for pain, suffering and emotional distress in amounts to be determined according to
proof.
Claimant may have and/or may continue to have in the future, claims for special damages,
including, but not limited to, claims for medical and related expenses, lost wages, damage to
career, damage to educational pursuits, damage to property and/or other special damages in
amounts to be determined according to proof.
Claimant may have, and/or may continue to have in the future, damages for permanent mental
injuries, permanent mental scarring, and/or other psychological disabilities in an amount
according to proof.
NAME OF PUBLIC EMPLOYEE(S) BELIEVED TO HAVE CAUSED INJURY OR
DAMAGE:
See description of the incident, above.
DEMAND FOR PRESERVATION OF EVIDENCE:
Claimant does hereby demand that AGENCY including, but not limited to, the appropriate city
or county law enforcement agency, its employees, servants and/or attorneys, maintain and
preserve all evidence, documents and tangible materials which relate in any manner whatsoever
to the subject matter of this Claim, including until the completion of any and all civil and/or
criminal litigation arising from the events which are the subject matter of this Claim. This
demand for preservation of evidence includes, but is not limited to, a demand that all public
safety entities preserve all tapes, logs, and/or other tangible materials of any kind until the
completion of any and all civil and criminal litigation arising from the subject matter of this
claim.
AMOUNT OF CLAIM:
This claim is in excess of $25,000. Jurisdiction is designated as “unlimited” and jurisdiction
would be in the United States District Court and/or Superior Court of the State of California.
DATED: 11/10/2017 12:59 PM
Very truly yours,
Lateef Gray
Attorney at Law
THE LAW OFFICES OF JOHN L. BURRIS
COMPLAINT FOR DAMAGES - 1
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JOHN L. BURRIS Esq., SBN 69888
LATEEF GRAY, Esq., SBN 250055
JAMES COOK Esq., SBN 300212
LAW OFFICES OF JOHN L. BURRIS
Airport Corporate Centre
7677 Oakport Street, Suite 1120
Oakland, California 94621
Telephone: (510) 839-5200
Facsimile: (510) 839-3882
Attorneys for Plaintiff
GARY XXXXXX
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
GARY XXXXXX, an individual,
Plaintiff,
vs.
CITY OF OAK OLIVE, a municipal
corporation; COUNTY OF CALIFORNIA, a
municipal corporation; OFFICER RIANN ,
individually and in his capacity as an officer for
the Oak Olive Police Department; OFFICER
TOPHER , individually and in his capacity as an
officer for the Oak Olive Police Department
“FNU” SCHULTZ, individually and in his
capacity as a sergeant for the Oak Olive Police
Department; OFFICER DAVIS , individually
and in his capacity as an officer for the Oak
Olive Police Department; OFFICER BRYANT,
individually and in his capacity as an officer for
the Oak Olive Police Department and DOES 1-
50, inclusive, individually, jointly and severally,
Defendants.
CASE NO.:
COMPLAINT FOR DAMAGES
(42 U.S.C §§ 1983, 1988; and pendent tort
claims)
JURY TRIAL DEMANDED
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INTRODUCTION
1. This is an action for damages brought pursuant to Title 42 U.S.C. §§ 1983 and 1988,
and the Fourth and Fourteenth Amendments to the United States Constitution, under California Civil
Code Section § 52.1, and under the common law of California. This action is against the CITY OF
OAK OLIVE, OFFICERS RIANN, TOPHER, SCHULTZ, DAVIS, and BRYANT of the Oak Olive
Police Department, and DOES 1-50.
2. It is also alleged that these violations and torts were committed during the course and
scope of the above-mentioned officers’ employment with the City of Oak Olive Police Department.
JURISDICTION
3. This action arises under Title 42 of the United States Code, § 1983. Title 28 of the
United States Code, §§ 1331 and 1343 confers jurisdiction upon this Court. The unlawful acts and
practices alleged herein occurred in Oak Olive California, which is within the judicial district of this
Court. This Court also has supplemental jurisdiction over Plaintiff's state law causes of action under
28 U.S.C. § 1367.
PARTIES
4. Plaintiff GARY XXXXXX (“Plaintiff”) has been and is a resident of California and a
United States Citizen.
5. Defendant City of Oak Olive (“City”) is an incorporated public entity duly authorized and
existing as such in and under the laws of the State of California; and at all times herein mentioned,
Defendant City has possessed the power and authority to adopt policies and prescribe rules,
regulations and practices affecting the operation of the City of Oak Olive Police Department and its
tactics, methods, practices, customs, and usage. At all relevant times, Defendant City was the
employer of Defendant officers, individually and as peace officers.
6. Defendant County of California (“County”) is an incorporated public entity duly
authorized and existing as such in and under the laws of the State of California; and at all times
herein mentioned, Defendant County has possessed the power and authority to adopt policies and
prescribe rules, regulations and practices affecting the operation of the City of Oak Olive Police
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Department and its tactics, methods, practices, customs, and usage. At all relevant times, Defendant
County was the employer of Defendant officers, individually and as peace officers.
7. Defendant, RIANN, (hereinafter “Defendant RIANN”) was a Police Officer for the
Oak Olive Police Department, and is sued in his individual capacity, and in his capacity as an officer
of the Oak Olive Police Department.
8. Defendant, XXXXXXX TOPHER, (hereinafter “Defendant TOPHER”) was a Police
Officer for the Oak Olive Police Department, and is sued in his individual capacity, and in his
capacity as an officer of the Oak Olive Police Department.
9. Defendant, “XXX’ SCHULTZ, (hereinafter “Defendant Schultz”) was a Police Officer
for the Oak Olive Police Department, and is sued in his individual capacity, and in his capacity as an
officer of the Oak Olive Police Department.
10. Defendant, XXXXXX DAVIS, (hereinafter “Defendant DAVIS ”) was a Police
Officer for the Oak Olive Police Department, and is sued in his individual capacity, and in his
capacity as an officer of the Oak Olive Police Department.
11. Defendant, XXXXXX BRYANT, (hereinafter “Defendant BRYANT ”) was a Police
Officer for the Oak Olive Police Department, and is sued in his individual capacity, and in his
capacity as an officer of the Oak Olive Police Department.
12. Plaintiff is ignorant of the true names and capacities of Defendants DOES 1 through
50, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff is informed and
believes and thereon alleges that each defendant so named is responsible in some manner for the
injuries and damages sustained by Plaintiff as set forth herein. Plaintiff will amend this Complaint to
state the names and capacities of DOES 1-50, inclusive, when they have been ascertained.
ADMINISTRATIVE PREREQUISITES
13. Plaintiff is required to comply with an administrative tort claim requirement under
California law. Plaintiff presented a claim on March 19, 2017. The claim was rejected on March 25,
2017.
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Plaintiff has exhausted all administrative remedies pursuant to California Government Code Section
910.
FACTUAL ALLEGATIONS
14. On January 15, 2015, at around 8:00 p.m., Plaintiff was in his family’s home, located
at 5030 Martini Street, in Oak Olive, when Defendant BRYANT of the Oak Olive Police Department
arrived to investigate a “neighborhood dispute.” Defendant BRYANT knocked on Plaintiff’s front
door and asked Plaintiff to step outside, which Plaintiff did. Defendant BRYANT then questioned
Plaintiff near the front door. At some point, Defendant TOPHER arrived and Defendant BRYANT
walked away. Defendant TOPHER then started talking to Plaintiff. After some time, Plaintiff, who
was never informed that he was being detained or arrested, started walking toward his front door, as
he needed to take his medication. Defendant TOPHER followed Plaintiff. Plaintiff closed his front
door and Defendant TOPHER thereafter tried to break down Plaintiff’s door.
15. Plaintiff’s wife and middle daughter were sitting in the living room/kitchen area and
observed this. Plaintiff, his wife and daughter were all in fear at this point. Plaintiff then heard sirens
outside. Plaintiff tried to call several other law enforcement agencies because he felt that the
authorities at the scene were conducting themselves unlawfully.
16. Additional Oak Olive police officers and California County Sheriff’s deputies arrived.
Defendants RIANN, Schultz and DAVIS were present on the scene.
17. At some point, Plaintiff’s wife was having a telephone conversation with their oldest
daughter, who had arrived on scene, but was not allowed into the home by several yet-to-be identified
Oak Olive police officers. Plaintiff was then receiving messages from yet-to-be identified Oak Olive
police officers via his daughter’s mobile phone. The gist of the messages was that Plaintiff should
come outside. Plaintiff complied and went outside.
18. As Plaintiff got to the bench near his front door, he saw several yet-to-be identified
Oak Olive police officers raise their guns as if they were about to fire. In light of all the recent police
shootings of unarmed individuals, this scared Plaintiff even more. Plaintiff then retreated back into
the safety of his home.
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19. Plaintiff’s wife, who was still in communication with several yet-to-be identified Oak
Olive police officers via her daughter’s mobile phone, incredulously asked something to the effect of
“why would he go out there now?” At this time, Plaintiff could hear a police dog outside barking.
After more conversation, Plaintiff again went outside and sat down on the bench near his front door.
Plaintiff’s hands were in the air. A yet-to-be identified Oak Olive police officer, without any
warning, then unleashed a K9 officer, which bit Plaintiff about Plaintiff’s left arm and body.
20. Plaintiff was then pounced upon by several yet-to-be identified Oak Olive police
officers. These yet-to-be identified Oak Olive police officers then beat Plaintiff about the head and
body with fists, knees, feet, and bricks from Plaintiff’s yard. Plaintiff’s wife was standing at the front
door and observed Plaintiff being beaten.
21. At some point, Plaintiff lost consciousness, but vividly remembers being dragged
down the street and beaten some more about the head and body by several yet-to-be identified Oak
Olive police officers. Plaintiff also remembers having his face pinned against a police car by several
yet-to-be identified Oak Olive police officers.
22. Plaintiff sustained injuries related to being hit with blunt objects as well as multiple
K9 bites.
23. Defendant TOPHER never stated that Plaintiff was under arrest or being detained.
Plaintiff believed that he had a right to end the conversation and enter his home. Defendant TOPHER
did not issue any commands to Plaintiff before Plaintiff entered his home.
24. Plaintiff was taken to California County Hospital. As a result of the defendant officers'
wrongful actions, Plaintiff sustained a concussion. Also, Plaintiff suffered lacerations on his left arm
from the K9 officer’s bites. In addition, Plaintiff suffered a broken collarbone and bruising on his
body. Plaintiff still continues to suffer from the injuries sustained that day.
25. Plaintiff alleges that only an unreasonable officer would release a K9 officer and
repeatedly beat a defenseless man under these circumstances in the manner the Defendant officers
did. Plaintiff further alleges that he never presented any threat to anyone that could justify the
amount of force that Defendant officers used, and that Defendant officers unreasonably provoked the
violent confrontation.
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26. Plaintiff suffered severe emotional distress as a direct result of the involved Defendant
officers' misconduct described herein.
27. The actions and omissions of the City and the Defendant Oak Olive Police Department
Officers was objectively unreasonable under the circumstances, without legal justification or other
legal right, done under color of law, within the course and scope of their employment as law
enforcement officers and/or public officials, and pursuant to unconstitutional customs, policies and
procedures of the City and/or other jurisdictions. The City was also responsible for Plaintiff’s
injuries through its own acts and omissions, negligent and otherwise, by failing to properly and
adequately investigate, train, supervise, monitor, instruct, and discipline its law enforcement officers
and/or employees and agents, including the officers and officials described herein.
28. The actions of Defendants’ described herein were brutal, malicious, and done without
just provocation or cause, proximately causing Plaintiff’s injuries and resulting damages.
DAMAGES
29. As a consequence of Defendants’ violations of Plaintiff’s federal civil rights under 42
U.S.C. §1983, the Fourth, Eighth and Fourteenth Amendments, Plaintiff was physically, mentally,
and emotionally injured and damaged as a proximate result of the excessive force used against him.
30. Plaintiff found it necessary to engage the services of private counsel to vindicate his
rights under the law. Plaintiff is therefore entitled to an award of attorneys’ fees and/or costs
pursuant to statute(s) in the event that he is the prevailing parties in this action under 42 U.S.C. §§§§
1983, 1985-86 and 1988. Plaintiff is also entitled to punitive damages under 42 U.S.C. §§§§ 1983,
1985-86 and 1988.
FIRST CAUSE OF ACTION
(Violation of the Fourth Amendment of the United States Constitution- Unlawful Detention)
(42 U.S.C. § 1983)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25)
31. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 30 of this
Complaint.
32. Defendants' above-described conduct violated Plaintiff's right as provided for under
the Fourth Amendment to the United States Constitution to be free from unreasonable searches and
seizures because Defendants lacked the requisite reasonable suspicion to detain Plaintiff.
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WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
SECOND CAUSE OF ACTION
(Violation of the Fourth Amendment of the United States Constitution- Unlawful Seizure)
(42 U.S.C. § 1983)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25)
33. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 32 of this
Complaint.
34. Defendants' above-described conduct violated Plaintiff's right as provided for under
the Fourth Amendment to the United States Constitution to be free from unreasonable searches and
seizures because Defendants lacked the requisite probable cause to arrest Plaintiff.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
THIRD CAUSE OF ACTION
(Violation of the Fourth Amendment of the United States Constitution-Excessive Force)
(42 U.S.C. § 1983)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25)
35. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 34 of this
Complaint.
36. Defendants’ above-described conduct constituted violations of Plaintiff’s rights as
provided for under the Fourth Amendment to the United States Constitution. These rights include but
are not limited to the right to be free from excessive force and/or the arbitrary and/or unreasonable
use of force against him.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
FOURTH CAUSE OF ACTION
(Monell - 42 U.S.C. § 1983)
(Against Defendants City and DOES 26-50)
37. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 36 of this
Complaint.
38. Plaintiff is informed and believes and thereon alleges that high-ranking City officials,
including high-ranking supervisors such as DOES 26 through 50, and/or each of them, knew and/or
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reasonably should have known about systemic, unwarranted uses of force by Defendants RIANN,
TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25, and/or the Oak Olive Police Department.
39. Despite having such notice, Plaintiff is informed and believes and thereon alleges that
Defendant DOES 26-50, and/or each of them, approved, ratified, condoned, encouraged, sought to
cover up, and/or tacitly authorized the continuing pattern and practice of misconduct and/or civil
rights violations by said officers.
40. Plaintiff is further informed and believes and thereon alleges that as a result of the
deliberate indifference, reckless and/or conscious disregard of the misconduct by Defendants
RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25 and/or each of them, the Oak
Olive Police Department encouraged these officers to continue their course of misconduct and
ignored these officers’ lack of training, resulting in the violation of the Plaintiff’s rights as alleged
herein.
41. Plaintiff further alleges that Defendant DOES 26-50, and/or each of them, were on
notice of the Constitutional defects in their training of City police officers, including, but not limited
to their use of excessive force.
42. The aforementioned acts and/or omissions and/or deliberate indifference by high
ranking City officials, including high ranking Oak Olive Police Department supervisors DOES 26-50,
Defendants DOES 1-25, and each of them resulted in the deprivation of Plaintiff’s constitutional
rights including, but not limited to the right to be free from unreasonable searches and seizures, as
guaranteed by the Fourth Amendment to the United States Constitution, the right to not be deprived
of life, liberty or property without due process of the law, as guaranteed by the Fourteenth
Amendment to the United States Constitution and the right to be free from excessive force by law
enforcement officers, as guaranteed by the Fourth Amendment to the United States Constitution.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
FIFTH CAUSE OF ACTION
(Violation of CALIFORNIA CIVIL CODE §52.1)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25)
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43. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 42 of this
Complaint.
44. Defendants’ above-described conduct constituted interference, and attempted
interference, by threats, intimidation and coercion, with the Plaintiff’s peaceable exercise and
enjoyment of rights secured by the Constitution and laws of the United States and the State of
California, in violation of California Civil Code §52.1.
45. As a direct and proximate result of Defendants’ violations of Civil Code § 52.1,
Plaintiff suffered violations of his constitutional rights, and suffered damages as set forth herein.
46. Plaintiff is entitled to injunctive relief and an award of his reasonable attorney’s fees
pursuant to Civil Code § 52.1(h).
47. Plaintiff is entitled to treble damages, but in no case less than $4,000.00 and an award
of his reasonable attorney’s fees pursuant to Civil Code § 52(a).
48. Under the provisions of California Civil Code §52(b), Defendant is liable for punitive
damages for each violation of Civil Code §52.1, reasonable attorney’s fees and an additional
$25,000.00.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
SIXTH CAUSE OF ACTION
(Negligence)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-50
49. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 48 of this
Complaint, except for any and all allegations of intentional, malicious, extreme, outrageous, wanton,
and oppressive conduct by defendants, and any and all allegations requesting punitive damages.
50. The present action is brought pursuant to section 820 and 815.2 of the California
Government Code. Pursuant to section 820 of the California Government Code, as public employees,
Defendants DOES 1-25 are liable for injuries caused by their acts or omissions to the same extent as
a private person. At all times mentioned herein, Defendants DOES 1-25 were acting within the course
and scope of their employment and/or agency with Defendant City. As such Defendant City is liable
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in respondeat superior for the injuries caused by the acts and omissions of Defendants DOES 1-25
pursuant to section 815.2 of the California Government Code.
51. Defendants negligently and without due care violently beat a handcuffed Plaintiff
without legal justification. Plaintiff was seriously injured as a proximate and direct cause of the
Defendants’ negligent conduct.
52. The violent and needless beating of a handcuffed person occurred as a result of the
absence of due care for the safety of others and constituted an unreasonable, unwarranted, and
excessive use of force and manifested an unreasonable risk of injury to Plaintiff.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
SEVENTH CAUSE OF ACTION
(Battery)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25)
53. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 52 of this
Complaint.
54. Defendants intentionally beat Plaintiff without any just provocation or cause.
Defendants' conduct was neither privileged nor justified under state statute or common law.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
EIGHT CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
(Against Defendants RIANN, TOPHER, Schultz, DAVIS, BRYANT, and DOES 1-25)
55. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 54 of this
Complaint.
56. Defendants' above-described conduct was extreme, unreasonable and outrageous.
Defendants unleashed a K9 officer on a non-resisting Plaintiff and then mercilessly beat Plaintiff
while he was handcuffed and defenseless, without legal justification.
57. In engaging in the above-described conduct, Defendants intentionally ignored or
recklessly disregarded the foreseeable risk that Plaintiff would suffer extreme emotional distress as a
result of Defendants' conduct.
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WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
JURY DEMAND
58. Plaintiff hereby demands a jury trial in this action.
PRAYER
WHEREFORE, Plaintiff prays for relief, as follows:
1. For general damages according to proof;
2. For special damages, including but not limited to, past, present, and/or future wage
loss, income, and support, medical expenses, and other special damages in a sum to be
determined according to proof;
3. For punitive damages and exemplary damages in amounts to be determined according
to proof as to defendants DOES 1 through 25 and/or each of them;
4. Any and all permissible statutory damages;
5. For reasonable attorney’s fees pursuant to 42 U.S.C. §1988;
6. For cost of suit herein incurred; and
7. For such other and further relief as the Court deems just and proper.
LAW OFFICES OF JOHN L. BURRIS
Dated: November 12, 2017 __/s/ John L. Burris
John L. Burris Esq.
Attorney for Plaintiff
GARY XXXXXX
BAR ASSOCIATION OF SAN FRANCISO BARRISTERS CLUB
FIGHTING BACK: GETTING JUSTICE FOR
CLIENTS HURT BY POLICE
speakers : John Burris, Law Offices of John L. Burris Sanjay Schmidt, Law Offices of Sanjay Schmidt
Presented by The Criminal Law & Government Investigations and Litigation Sections of the Barristers Club November 14, 2017
November 14, 2017
Law Offices of John L. Burris [email protected]
PROSECUTING POLICE MISCONDUCT CASES
In Light of Pending Criminal Charges
Protecting Civil Rights Claims While Providing Criminal Defense
How to Preserve Your Client’s Civil Rights Claims
Things to Look for:Typical Criminal Charges Brought Against Civil Rights Claimants-California Penal Code § 148
Resisting, delaying, interfering
California Penal Code § 243
Assault on police officer
California Penal Code § 69
Assault on executive officers
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Law Offices of John L. Burris [email protected]
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Civil Case Selection-Evaluating criminal case
and 1983 ClaimClient Interviews■ Who was present?■ Who are the potential witnesses, interested
parties, and the client?■ Investigation; private and/or lawyers■ Photographs, medical records, police videos
and cell phone videos■
Law Offices of John L. Burris [email protected]
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A Checklist For Assessing Search And Seizure Investigations
■■■ Determine what the circumstances were surrounding the
search or seizure■ Was a valid warrant presented?■ If a valid warrant was presented, does the plaintiff have a
copy?■ Do the circumstances present exceptions to the warrant
requirement? (exigent circumstances, plain view)■ Where there witnesses to the search or seizure?
Law Offices of John L. Burris [email protected]
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Obtain and Identify Consultants and Forensic Experts Summary of
the current situation■ Take the time to consider the types of experts/consultants.■ Toxicologist, firearms examiner, reconstructions, medical consultant.■ Police practices expert: weapons, arrest, force■ Identifying Consultants■ Discoverability: It is important to note that consultants are not
discoverable while experts are discoverable.■ Other Investigative Forms: Internal affairs (include state statute 1043
Evidence Code), Pitchess Motion Citizens Review Board.■
■
Law Offices of John L. Burris [email protected]
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Obtaining Public Records■ Police reports, medical, coroners.■ CA Public Records Act (Govt. Code §§ 6250 - 6276.48) is
designed to give the public access to information in possessionof public agencies
■ Freedom of Information Act provides access to all federalagency records except those protected from disclosure by any ofnine exceptions.
■ Freedom of Information Act Exceptions: national securitydocuments, internal agency rules, trade secrets, inter-agency orintra-agency communications
■ Privacy Act provides access to records about a person who isthe subject of the investigation from agencies of the federalgovernment.
Law Offices of John L. Burris [email protected]
6
Factors To Consider In Deciding Whether Or Not To
File the Case■ When Criminal Cases are Pending: They can be filed, but will be
stayed. Better to preserve the claim and file lawsuit after thecriminal case is resolved.
■ Client Credibility: Alcohol, drugs, prior convictions■ Witnesses: Interest, bias, logistics, location, observations,
cooperation for client story, other independent physical evidence■ Officers: Credibility, reasonableness of conduct■ Damages: Proof, economic loss, emotional distress, physical
injuries, medical, photographs, amount■ Emotional Distress Claims: Emotional damages, psychological■ Claim: months from date- include statute, list parties
Federal Civil Rights Claims Available
14th Amendment Violations-Illegal Search and SeizureWrongful Detention, ArrestUse of Excessive ForceFailure to Provide Medical Treatment, etc.
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42 U.S.C. §§ 1983; 1985
State Civil Claims1. Assault and Battery2. False Arrest/Imprisonment3. Intentional Infliction of Emotional Distress/
Negligent Infliction of Emotional Distress
4. Civil rights violations: Bane Act, Civil Code section 52.1 Ralph Act, Civil Code section 51.7
Unruh Act , Civil Code section 51
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Law Offices of John L. Burris [email protected]
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Filing in State Versus Federal Court
■ State Court Advantages: Jury verdict not unanimous, closerrelation between police and court, in county where it occurred,State Disadvantages: Discovery rules stricter, pay jury fees, notas orderly, longer to get to trial.
■ Federal Advantage: Orderly, liberal discovery, knowledgeablejudges, statute of limitations: uses personal injury litigation,except, but must be morphed with state requirements, noJohn Does.
■ Federal Disadvantages: Stricter rules, judges more orderly,unanimous verdict.
How Criminal Defense and Civil Rights Attorneys Can Work
Together to Advance Their Mutual Client’s Interests
Communication of deadlines and outcomesof proceedings. Cooperative exchange of documents
where appropriate.
Resolution of consultation
collaboration. 10
Expansive DiscoveryPitchess MotionsAccess a law enforcement officer’s personnel
information in police misconduct cases.
Section 1043 and 1045 of California Evidence Code
❑ What is privileged in court is not so in federal court.❑ Police personnel records are generally subject to
protective order.
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1538.5 Evidentiary Hearing A 1538.5 Motion to Supress can be made on these grounds:Unreasonable Search Without a WarrantUnreasonable Search With a Warrant-The Warrant is insufficient on its face, The evidence obtained is not that described in the Warrant, No probable cause for the issuance of Warrant, Method of execution of the Warrant violated Federal or State Constitutional Standards, Any other violation of Federal or State Constitutional Standards
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Preserving Claims
■ How plea bargains affect a criminal defendant’sability to bring a civil rights claim.
■ How guilty verdicts affect a criminaldefendant’s ability to bring a civil rights claim.
■ Covenants not to sue in plea bargains, illegalor not?
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Ethical Considerations
■ How much communication betweenattorneys is appropriate?
■ Can a single firm or attorney do both thecriminal and civil case?
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Filing a Claim
A claim must be filed for state causes of action.
Federal Civil Rights Complaints do not require a claim to be filed.
Essentially, the claim must be filed within 6 months. Limited tolling but late claim can be filed
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Statutes of Limitations
A claim must be filed with the State within 6 months of the date of the incident.
In the 9th Circuit, Federal Civil Rights Complaints can be filed up to 2 years after the date of the incident.
6 months after the claim is denied, or 45 days after the claim was sent, the State Complaint can be filed.
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Resolution of Pending Criminal Charges
148 Plea A No Contest Plea for California Penal
Code § 148 does not prevent claims for excessiveforce.
It can prevent a case from goingforward depending on the circumstances.
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Leading Cases■ NO EXHAUSTION REQUIREMENT-Heck v. Humphrey
The Supreme Court held that a state prisoner cannot bring a § 1983 suit for damages
where a judgment in favor of the prisoner would “necessarily imply the invalidity of hisconviction or sentence.”
■ QUALIFIED IMMUNITY- Harlow v. FitzgeraldThe Court Reconsidered this doctrine and announced a fundamental change in its scope and
application. In an attempt to allow for pretrial adjudication of the qualified immunity issue, the Court announced an intent to discard the subjective element of good faith, focusing instead on the state of the law at the time of the alleged constitutional violation…
On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. “Until this threshold immunity question is resolved, discovery should not be allowed.
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Leading Cases■ QUALIFIED IMMUNITY- Anderson v. Creighton
Created a new basis for the qualified immunity defense: A governmental official can now claim immunity, despite binding authority establishing a general constitutional principle that governs the case, if a reasonably well-trained officer would not know that her precise conduct would run afoul of that principle and violate the plaintiff’s rights.■ EXCESSIVE FORCE – Graham vs. Connor
Force used must be “objectively reasonable”
■ Monell v. City of New York Department of Social ServicesMunicipalities can be held liable for the unconstitutional conductof its employees when there are "patterns and practices" and/ordeliberate indifference.
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Law Offices of John L. Burris [email protected]
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Sources
■ CA Public Records Act:http://www.thefirstamendment.org/capra.html
■ Freedom of Information Act:http://www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm#both
■ Police Misconduct: Law and Litigation, Michael Avery,Karen Blum, David Rudovsky, Thompson West group,October 2005
Sample Case Documents
■ Claim■ Complaint■ Special Interrogatories■ Requests For Admissions■
Law Offices of John L. Burris [email protected]
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