Police Misconduct in California – How to Bring a Lawsuit

When police officers in California use excessive force, engage in racial profiling, unlawfully detain or arrest you, or otherwise abuse their power, you can fight back through the justice system.

As a victim of police brutality or other civil rights violations, you can file a lawsuit against the officer and department to obtain injunctions forcing change as well as monetary damages.

Here are four key things to know:

1. If the officers who abused you were state or local employees, you could bring a 1983 civil rights claim.
2. If the officers who abused you were federal employees, you may bring a Bivens claim.
3. You can also file an internal affairs complaint with the police department.
4. You may also seek criminal prosecution of the offending officers by filing a police report.

In this article, our California police misconduct attorneys explain:

• 1. What constitutes police misconduct in California?
• 2. What is unlawful detention?
• 3. What is a false arrest?
• 4. What is excessive force?
• 5. How can police commit misconduct by using racial profiling?
• 6. Is it misconduct when police commit perjury?
• 7. What are the remedies for police misconduct in California?
• 8. Can I file a complaint with the police department or town?
• 9. Can evidence found through the misconduct be excluded from court?
• 10. What is a Section 1983 claim?
• 11. What is a Bivens lawsuit?
• 12. Can police misconduct lead to criminal prosecution?
• 13. Can police be decertified by the government following misconduct?

1. What constitutes police misconduct in California?

Police misconduct refers to inappropriate or illegal behavior by officers in their official capacity. Often, this results in a civil rights violation.

Civil rights come from federal law or the U.S. Constitution. Some of the most common rights that are violated in police misconduct are:

• the freedom from unreasonable searches and seizures,
• the prohibition against cruel and unusual punishments,
• the right to due process before being deprived of life, liberty, or property,
• freedom of speech, and
• the right to privacy.

These rights can be violated by state actors, such as:

• police officers,
• sheriffs, and
• officers at law enforcement agencies like the DEA or ICE.

2. What is unlawful detention?

An unlawful detention is a police stop that violates your Fourth Amendment rights.

Some detentions are more intrusive and controlling than others. The more intrusive the detention, the more certain a police officer has to be that you committed a crime. In order of intrusiveness, there are three types of police encounters:

1. Consensual encounters. These are not detentions. Law enforcement officers can initiate these at any time. You are free to leave.
2. Detentions. These are brief encounters that allow police to question you and sometimes search you for a weapon. They often take the form of a stop-and-frisk or a traffic stop. Police need a reasonable suspicion that a crime has occurred.¹
3. Arrests. These are when police take you into custody. Police can make a full search of you during an arrest. They can use handcuffs to control you and bring you to a jail facility. Police need to have probable cause to make an arrest.

Detentions can be unlawful if they violate your rights. This can happen if:

• the detention was unreasonably long in duration,²
• there was no probable cause for an arrest,
• the police officer could not have had a reasonable suspicion of a crime when they detained you,
• excessive force was used during the detention, or
• the arrest warrant was invalid and the officer knew it.

3. What is a false arrest?

An arrest is an intentional deprivation of your freedom of movement. That deprivation compels you to stay or go somewhere against your will.³

An arrest can be a false arrest if the peace officer had no legal authority to make it. False arrests violate your Fourth Amendment rights. They are also known as false imprisonments. They can happen when:

• police make an arrest without a warrant or probable cause, or
• police use an invalid arrest warrant to make an arrest.

You may be arrested without a warrant. In these cases, the police officer has to show they had probable cause.⁴ This requires showing there was reasonable cause to believe you had committed either:

• a felony, or
• any crime in the officer’s presence.⁵

Other arrests happen pursuant to a warrant. These can still be false arrests if the warrant was invalid.

Even if the warrant was invalid, the arrest can be legal if the officer acted in good faith.⁶

4. What is excessive force?

Police commit misconduct when they use excessive force during an arrest. The use of excessive force can make the arrest unreasonable. This can violate your Fourth Amendment rights.

Police are only allowed to use as much force as is reasonably necessary to make the arrest.⁷ Factors include:

• whether you reasonably appeared to pose an immediate threat to the officer or others,
• the seriousness of the crime at issue, and
• whether you were resisting arrest or trying to get away.⁸

In California, courts also note the officer’s decisions leading up to the use of force.⁹

When police use deadly force on someone, they can be charged with a crime. A new law in California makes it easier for this to happen.¹⁰ Previously, police could use deadly force when it was reasonable under the circumstances. Under the new law, it can only be used when necessary. And courts can consider the actions of both

• the police and
• the victim preceding the fatal encounter.

As of 2021, chokeholds are specifically prohibited. As of 2022, any techniques or transport methods that involve a substantial risk of positional asphyxia are forbidden. Also, as of 2022, police may not use tear gas or rubber bullets to disperse crowds except to defend against a threat to life or serious bodily injury or to bring an objectively dangerous and unlawful situation safely and effectively under control.¹¹

When deadly force is used, it can also violate the victim’s due process rights. It would have deprived the victim of their life without due process of law.

5. How can police commit misconduct by using racial profiling?

Police can commit misconduct by using racial profiling to detain you. This practice is most common when police stop and frisk you on suspicion of wrongdoing.¹²

Racial profiling cannot create the reasonable suspicion needed for a detention. That reasonable suspicion has to concern you, not a class of people.¹³ Using your race as a reason for detaining you violates your:

• Fourth Amendment right to be free from searches and seizures that are unreasonable, and
• Fourteenth Amendment right to equal protection under the law.

6. Is it misconduct when police commit perjury?

Police misconduct also includes committing perjury. Police officers perjure themselves when they lie under oath. They can do this:

• during trial,
• in grand jury testimony,
• in police reports, or
• in affidavits supporting probable cause for a search or arrest warrant.

This can make the resulting warrant invalid. Using the warrant can violate your Fourth Amendment rights.

Perjury is also a crime. It can lead to charges of offering false evidence, as well.

7. What are the remedies for police misconduct in California?

There are remedies available for victims of police misconduct. They include:

• filing a complaint with the police department,
• asking the court to exclude any evidence that was found as a result of the misconduct, and
• filing a civil rights lawsuit through Section 1983 or a Bivens claim.

In some cases, pursuing these remedies can lead to a criminal case against the cop.

8. Can I file a complaint with the police department or town?

If you are a victim of police misconduct, you can always file a complaint with the police department. That complaint can detail what happened and demand repercussions. In some cases, the complaint can lead to:

• the officer getting fired,
• a suspension,
• the officer being reassigned to another area in the department, or
• a reprimand against the officer.

9. Can evidence found through the misconduct be excluded from court?

If you are facing criminal charges, evidence may have been obtained by violating your civil rights. Your attorney can bring a suppression motion asking that this evidence be excluded from the trial. The prosecutor may have little else to use without the evidence obtained through the misconduct.

10. What is a Section 1983 claim?

As a misconduct victim, you can also file a civil rights lawsuit under 42 U.S.C. Section 1983. These claims hold actors liable for civil rights violations done under color of law.

1983 lawsuits can produce the following remedies:

• an injunction, or court order designed to keep the misconduct from happening again, and/or
• monetary damages.

The injunctions from successful 1983 claims can lead to significant changes in the police department. It can force the department to:

• retrain officers,
• revise their official way of doing things,
• review internal customs, and
• fire offending police officers.

The monetary damages from a Section 1983 claim can include:

• compensatory damages, to compensate you for your losses,
• punitive damages, to punish the police officer, and
• presumed damages, for the loss of liberty from your violated rights.

However, recovering monetary damages in a Section 1983 claim requires overcoming qualified immunity. Qualified immunity is a defense that the police officer can raise. It protects them from having to pay monetary damages in a lawsuit if:

• they did not violate your constitutional rights, or
• they did, but the right was not clearly established.¹⁴

The lawsuit can be filed against state or local officials and entities, like:

• the officer who committed the misconduct,
• the police department, and/or
• the town, county, or municipality.¹⁵

Note that recent California law, Senate Bill 2, says that a police officer cannot raise a qualified immunity defense in lawsuits filed under the Tom Bane Civil Rights Act. You can file a suit under this Act if a police officer interfered with your constitutional rights by threat, intimidation, or coercion.

11. What is a Bivens lawsuit?

A Bivens lawsuit is a civil rights lawsuit for money damages filed against a federal official. It is very similar to a Section 1983 claim. Unlike 1983 claims, though, Bivens lawsuits can be filed against federal actors like:

• narcotics officers at the federal Drug Enforcement Agency, or DEA,¹⁶ or
• FBI agents.

Also unlike 1983 claims, Bivens claims cannot be filed against entities like:

• Department of Justice (DOJ),
• Immigration and Customs Enforcement (ICE), and
• Federal Deposit Insurance Corporation (FDIC).¹⁷

Like 1983 claims, though, defendants can claim qualified immunity for their actions.

12. Can police misconduct lead to criminal prosecution?

Police agency misconduct can be so egregious that it leads to criminal prosecution. The officer can be charged with a crime.¹⁸

Criminal charges against police for misconduct are rare. They often only come after truly outrageous conduct, such as severe police brutality, sexual assault, police shootings, or planting evidence. They tend only to be filed after you or your family file a lawsuit and begin to uncover damning evidence.

13. Can police be decertified by the government following misconduct?

Currently, California is one of only four states that does not have the power to strip police officers of their licenses. However, now that Senate Bill-2 has become law, the government can kick officers out of the profession following sexual assault, dishonesty, abuse of power, physical abuse, and other serious misconduct.¹⁹

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