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Criminal Defense Attorneys

Convicted Based on Illegal Search? Sue the Police?

The Gist of this Article: If one is eager to sue law enforcement for an illegal search or illegal detention and / or arrest, it is wise to first understand the procedural requirements before filing such a civil case and likely defenses that may arise.  This article discusses such requirements and hurdles.    
We estimate that we receive three calls every month from people who are keen to sue the police for a search that resulted in drugs or stolen property being found and the caller (or a relative of the caller) being convicted of some crime.  The caller is eager to sue the police because he or she believes the search was illegal and “violated my civil rights.”

We are usually puzzled by such a call and ask if the defendant in the case filed a motion to suppress the evidence due to the illegal search.  Sometimes the caller will say this was tried, “but the judge was corrupt” and denied the motion.  The ruling was then never appealed.  Or the caller will say, “well, no, we just realized the search was illegal now.  Can we still sue the police?”  The caller will often also want to sue the police chief, a detective, a particular officer or all of these officers. 

We then answer that yes, one can sue but the claim certainly may be dismissed on a demurrer or may lead to no recovery.  The caller usually seems happy to know a case can be filed nonetheless and often comments “then the police will probably settle with us.” 

The caller may then ask what needs to be done first, asking “How do we get started?”  We first explain that the criminal defendant must file a Government Tort Claim.  Government Code § 945.4 states that no suit for damages or money may be brought against a public entity until a written tort claim is presented to the entity.  Government Code § 911.2 requires that a claim for personal injury or property damage must be brought within six months of the date the claim accrues.  This procedural requirement may be impossible to meet if the search took place more than six months ago, as is often the case.

Second, we explain that a claim for trespass, abuse of process and / or false imprisonment must be filed within the applicable statute of limitations, which is tolled while plaintiff was incarcerated or in jail.  The statute of limitations for abuse of process and false imprisonment are two years.  Trespass has a three year statute of limitations.  Such claims also may be barred by a statute of limitations. 

The client then may ask, “what about my civil rights being violated?”  This would be government by a claim under 42 U.S.C. § 1983.  Unfortunately, such claims (both state and federal) may be barred under Heck v. Humphrey (1994) 512 U.S. 477, which has since been applied by the California Supreme Court to bar state claims. See, Yount v. City of Sacramento (2008) 43 Cal.4th 885, 902). 

Simply put, such claims are barred because they relate to the search and arrest.  These are the events which formed the basis of the charges filed by the District Attorney and for which the client was incarcerated.  Allowing such a civil lawsuit to proceed would imply the invalidity of a conviction arising from the same facts. Beets v. County of Los Angeles (9th Cir. 2012) 669 F.3d 1038, 1046.  The lawfulness and reasonableness of the officers' conduct is implicit in plaintiff's adjudication of guilt. Beets, supra; People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109 n.5.  The client may hang up on us at this point, as we are not encouraging such a lawsuit to proceed.

Lastly, we explain that the officers are presumed to be acting within the course and scope of their employment, so they may enjoy the limited right of governmental immunity.  To overcome such a defense, the client must show that the officers were acting outside the scope of their employment and thus such immunity does not apply.

We present this article not as a defense of police officers, but to let the potential client know what needs to be considered in advance.  The prudent client will understand these hurdles before filing the lawsuit and file a complaint that addresses each to avoid dismissal of the complaint by the judge granting a defense demurrer on any of these issues.  To do this, we strongly recommend the potential client seek out and retain an experienced civil litigation attorney who has successfully litigated such claims against government agencies in the past.

For more information about civil actions arising out of criminal events, please click on the following articles:
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