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View Full Version : When can you sue a police officer for an illegal arrest?


ghettoshecky
09-20-2007, 8:51 AM
This is something that came up in the "Current Legal Cases" thread. A calgunner asked if Matt can sue for wrongful arrest if dismissed, but a reply said no. According to him, there is something called "mistake of law" protection that would protect the arresting officer and any other affiliates. My question is whether the same "mistake of law" protection can be applied to a possible situation with me. When I go to the range I disassemble my OLL rifle to make sure there is no questionable set up (separate upper and lower, unscrew pistol grip, remove stock)and when I get to the range I just take a few minutes to put it back together. I always thought this is a sure way to prevent any arrests or confiscation by police or at least a sure way to have a lawsuit if any or both of the two occur. After reading the earlier mentioned thread, I wonder if I can even sue if some gung-ho officer decides to arrest me or confiscate my gun. Would this same "mistake of law" protection apply to my situation?

bwiese
09-20-2007, 9:43 AM
Please search for a post of mine awhile back relating the 9th Circuit's ruling this can occur; case was fairly recent and in relation to an SFPD officer. (Use search on name below or Google name and '9th Circuit' for story).

SFPD officer had arrested Rodel Rodis (who I believe is currently on the community college board in SF, or something like that) for passing counterfeit currency at a drugstore. There was only one bill involved, it involved a complaint from a drugstore clerk IIRC - can't remember details, but I think it may even have turned out to be legit currency due to new bill changeover a few years ago! - and instead of just seizing cash for investigation, they arrested him.

SemiAutoSam
09-20-2007, 9:47 AM
It would really be bad if someone that is arrested cannot sue in some capacity but then who or what entity would he pursue the arresting officer ?

The DA in a official capacity or personally ?

There should be some recourse if not to just recoup your expenses of hiring an attorney and or time off work, school, the time it took from your life while you were merely exercising your constitutional rights to bear arms, etc.

Also there is the potential that the officer and or Prosecuting attorney did not have the required (that is if it is required) BOND and or Oath of Office.

I made the information below a bit larger so the old men of this board like myself would read it without straining their eyes.

STATE OF CALIFORNIA
Attorney Oath of Office
and the
Bar Association

Updated Second day of the Sixth month, anno Domini Two thousand three

Section 6067 of the California Business and Professions Code
requires that every Attorney must file an Oath of Office with the
Secretary of State stating that upon admission shall take an oath
to support the Constitution of the United States and the
Constitution of the State of California and to faithfully discharge
the duties of an Attorney at Law to the best of ones knowledge and
ability. A certificate of the oath shall be endorsed upon licensure.
(Added by Stats. 1939, c 34. p. 354, Sec. 1)


There are no attorneys licensed in California. All the attorneys
that were asked could not produce a certificate to verify License.
At best, an attorney can only produce a Bar membership card that is
privately issued by the Bar Association and possibly a letter of
acknowledgement from the State Supreme Court .


The California State Bar Association was incorporated in 1901 (Corp
Number C003312 & C0017482). According to the incorporation papers,
the corporation would exist for a period of 50 years. In 1951 the
corporation ceased to exist. The California State Bar Association
now does not officially exist in the State of California. It now
operates as a chapter of the national organization. The California
Secretary of State does not have any record of the Association
since 1951. Corporations are required to register with the
Secretary of State, even municipal and non-profit corporations.
The Association has not done so since 1951 and is listed as
"inactive" and "term expired" with the Secretary of State of the
STATE OF CALIFORNIA.


However, there are two foundations that are listed as "active" with
the Secretary of State of the STATE OF CALIFORNIA. They are:
THE FOUNDATION OF THE STATE BAR OF CALIFORNIA
(Corp number C1636870) 3/13/1989 Agent for Service Process is JAMES
PFIERFER, 180 HOWARD STREET, SAN FRANCISCO, CA 94105
THE STATE BAR EDUCATION FOUNDATION
(Corp number C1967571) 4/30/1996 Agent for Service Process is PAM
WILSON, 180 HOWARD STREET, SAN FRANCISCO, CA 94105

Also, The UNITED STATES SUPREME COURT stated a long time ago that
"The practice of Law CAN NOT be licensed by any state/State." This
was so stated in a case named Schware v. Board of Examiners and is
located for all to read at the following pages in volume 353 U.S.
pgs.238, 239 of the United States Reports.

Another case which bore this out was Sims v. Aherns, 271 S.W. 720
(1925). In this case the opinion of the court was that "The
practice of Law is an occupation of common right."

A state supreme court may only issue a CERTIFICATE, not a license.
A CERTIFICATE gives no power to anyone to practice Law as an
OCCUPATION, nor to do BUSINESS as a LAW FIRM.

A state bar association, if one exists, is a "PROFESSIONAL
ASSOCIATION." The "STATE BAR" card is NOT a LICENSE. The card is a
"UNION DUES CARD" like the Actors Union, Painters Union,
Electricians union etc. There is no association, not even DOCTORS,
who issue licenses. All licenses are issued by the state or local
municipal corporations.

Also take a look at Part III "What Constitutes Practice of Law;
Unlawful or Unauthorized Practice" Sections 29-42, pages 857-894.
To quote from Section 30, pages 864-865: "The purpose of, and the
justification for, excluding from the practice of law persons not
admitted to the bar is the protection of the public from being
advised and represented in legal matters by incompetent and
unreliable persons over whom the judicial department can exercise
little control."

Also, see Corpus Juris Secundum (CJS), Volume 7, Section 4,
Attorney & client: The attorney's first duty is to the courts and
the public, not to the client, and wherever the duties to his
client conflict with those he owes as an officer of the court in
the administration of justice, the former must yield to the latter.
Clients are also called "wards" of the court in regard to their
relationship with their attorneys. After you have read the
foregoing, ask your attorney to see a copy of "regarding Lawyer
Discipline & other rules" Also Canons 1 through 9.





This is something that came up in the "Current Legal Cases" thread. A calgunner asked if Matt can sue for wrongful arrest if dismissed, but a reply said no. According to him, there is something called "mistake of law" protection that would protect the arresting officer and any other affiliates. My question is whether the same "mistake of law" protection can be applied to a possible situation with me. When I go to the range I disassemble my OLL rifle to make sure there is no questionable set up (separate upper and lower, unscrew pistol grip, remove stock)and when I get to the range I just take a few minutes to put it back together. I always thought this is a sure way to prevent any arrests or confiscation by police or at least a sure way to have a lawsuit if any or both of the two occur. After reading the earlier mentioned thread, I wonder if I can even sue if some gung-ho officer decides to arrest me or confiscate my gun. Would this same "mistake of law" protection apply to my situation?

Rob P.
09-20-2007, 11:16 AM
You can sue the individual officer IF: The officer exceeded his authority while exercising his duties. His immunity only protects him so long as he is within the scope of his job as LEO.

Exessive force, malicious behavior, threats, etc are all outside the scope of his job. Arresting someone for what is believed to be a crime is within his job.

Prosecuting someone while KNOWING that there is no crime is outside the scope of the authority of the DA. Failing to dismiss charges once it has been learned that the charges cannot stand is the same as going forward with a wrongful prosecution. In this case a Mal Pros action could be viable but don't count on it suceeding because the system protects itself and the judge is more likley than not a former prosecutor himself.

For a suit against LEO or DA you'll need lots of blood and permanent injury AND proof postive (going beyond 'beyond a reasonable doubt') before you have a snowballs chance in a hot place. Mere economic damages and stress aren't enough usually (although sometimes....).

Crazed_SS
09-20-2007, 11:33 AM
This is something that came up in the "Current Legal Cases" thread. A calgunner asked if Matt can sue for wrongful arrest if dismissed, but a reply said no. According to him, there is something called "mistake of law" protection that would protect the arresting officer and any other affiliates. My question is whether the same "mistake of law" protection can be applied to a possible situation with me. When I go to the range I disassemble my OLL rifle to make sure there is no questionable set up (separate upper and lower, unscrew pistol grip, remove stock)and when I get to the range I just take a few minutes to put it back together. I always thought this is a sure way to prevent any arrests or confiscation by police or at least a sure way to have a lawsuit if any or both of the two occur. After reading the earlier mentioned thread, I wonder if I can even sue if some gung-ho officer decides to arrest me or confiscate my gun. Would this same "mistake of law" protection apply to my situation?

I dont think dissassembly the rifle offers any more protection from a cop who isnt spun up on AW laws. The issue is the uniformed cop is going to see an AR-15 rifle, receiver, whatever and he's instantly gonna think "ASSAULT WEAPON.. OMG FELONEEY STOP !(*#!!!!11ONE" .. For the cop, it's not the configuration of the rifle that is in question, it's the legality of having it in the first place.

JALLEN
09-20-2007, 11:37 AM
It would really be bad if someone that is arrested cannot sue in some capacity but then who or what entity would he pursue the arresting officer ?

The DA in a official capacity or personally ?

There should be some recourse if not to just recoup your expenses of hiring an attorney and or time off work, school, the time it took from your life while you were merely exercising your constitutional rights to bear arms, etc.

Also there is the potential that the officer and or Prosecuting attorney did not have the required (that is if it is required) BOND and or Oath of Office.

I made the information below a bit larger so the old men of this board like myself would read it without straining their eyes.

STATE OF CALIFORNIA
Attorney Oath of Office
and the
Bar Association

Updated Second day of the Sixth month, anno Domini Two thousand three

Section 6067 of the California Business and Professions Code
requires that every Attorney must file an Oath of Office with the
Secretary of State stating that upon admission shall take an oath
to support the Constitution of the United States and the
Constitution of the State of California and to faithfully discharge
the duties of an Attorney at Law to the best of ones knowledge and
ability. A certificate of the oath shall be endorsed upon licensure.
(Added by Stats. 1939, c 34. p. 354, Sec. 1)


There are no attorneys licensed in California. All the attorneys
that were asked could not produce a certificate to verify License.
At best, an attorney can only produce a Bar membership card that is
privately issued by the Bar Association and possibly a letter of
acknowledgement from the State Supreme Court .


The California State Bar Association was incorporated in 1901 (Corp
Number C003312 & C0017482). According to the incorporation papers,
the corporation would exist for a period of 50 years. In 1951 the
corporation ceased to exist. The California State Bar Association
now does not officially exist in the State of California. It now
operates as a chapter of the national organization. The California
Secretary of State does not have any record of the Association
since 1951. Corporations are required to register with the
Secretary of State, even municipal and non-profit corporations.
The Association has not done so since 1951 and is listed as
"inactive" and "term expired" with the Secretary of State of the
STATE OF CALIFORNIA.


However, there are two foundations that are listed as "active" with
the Secretary of State of the STATE OF CALIFORNIA. They are:
THE FOUNDATION OF THE STATE BAR OF CALIFORNIA
(Corp number C1636870) 3/13/1989 Agent for Service Process is JAMES
PFIERFER, 180 HOWARD STREET, SAN FRANCISCO, CA 94105
THE STATE BAR EDUCATION FOUNDATION
(Corp number C1967571) 4/30/1996 Agent for Service Process is PAM
WILSON, 180 HOWARD STREET, SAN FRANCISCO, CA 94105

Also, The UNITED STATES SUPREME COURT stated a long time ago that
"The practice of Law CAN NOT be licensed by any state/State." This
was so stated in a case named Schware v. Board of Examiners and is
located for all to read at the following pages in volume 353 U.S.
pgs.238, 239 of the United States Reports.

Another case which bore this out was Sims v. Aherns, 271 S.W. 720
(1925). In this case the opinion of the court was that "The
practice of Law is an occupation of common right."

A state supreme court may only issue a CERTIFICATE, not a license.
A CERTIFICATE gives no power to anyone to practice Law as an
OCCUPATION, nor to do BUSINESS as a LAW FIRM.

A state bar association, if one exists, is a "PROFESSIONAL
ASSOCIATION." The "STATE BAR" card is NOT a LICENSE. The card is a
"UNION DUES CARD" like the Actors Union, Painters Union,
Electricians union etc. There is no association, not even DOCTORS,
who issue licenses. All licenses are issued by the state or local
municipal corporations.

Also take a look at Part III "What Constitutes Practice of Law;
Unlawful or Unauthorized Practice" Sections 29-42, pages 857-894.
To quote from Section 30, pages 864-865: "The purpose of, and the
justification for, excluding from the practice of law persons not
admitted to the bar is the protection of the public from being
advised and represented in legal matters by incompetent and
unreliable persons over whom the judicial department can exercise
little control."

Also, see Corpus Juris Secundum (CJS), Volume 7, Section 4,
Attorney & client: The attorney's first duty is to the courts and
the public, not to the client, and wherever the duties to his
client conflict with those he owes as an officer of the court in
the administration of justice, the former must yield to the latter.
Clients are also called "wards" of the court in regard to their
relationship with their attorneys. After you have read the
foregoing, ask your attorney to see a copy of "regarding Lawyer
Discipline & other rules" Also Canons 1 through 9.

Where do you come up with this nonsense?

The State of California doesn't license attorneys. To practice law in California, one must be admitted to practice before the Supreme Court of California. That admission is the license to practice. That's why there is no state agency, like the Department of Real Estate, or DMV, etc. The rules governing admission are in the B&P Code, starting at 6060.

The section you quote, nearly, actually says:

"6067. Every person on his admission shall take an oath to support
the Constitution of the United States and the Constitution of the
State of California, and faithfully to discharge the duties of any
attorney at law to the best of his knowledge and ability. A
certificate of the oath shall be indorsed upon his license."

I looked at mine, and sure enough, it says "... has taken and subscribed the oath required by law..."

Attorneys are required to be members of the State Bar of California. According to the web site,

"Created by the state legislature in 1927, the State Bar is a public corporation within the judicial branch of government, serving as an arm of the California Supreme Court. All State Bar members are officers of the court."

A few moments of research can prevent a lifetime of ignorance.

WolfMansDad
09-20-2007, 2:36 PM
At the risk of hijacking the thread, Crazed has a point. While we all know constructive possession does not apply to AW laws, how many beat cops know it?

VeryCoolCat
09-20-2007, 2:49 PM
BWO can't sue the arresting officer... but can't he sue the department for the rediculous charges levied against him.

bwiese
09-20-2007, 3:05 PM
At the risk of hijacking the thread, Crazed has a point. While we all know constructive possession does not apply to AW laws, how many beat cops know it?

They certainly have an obligation to know Harrott.

FreedomIsNotFree
09-20-2007, 4:42 PM
If you put Law Enforcement on notice, legally, then they have a duty to teach their officers/staff. That was my plan a few months ago, but things didn't really come together...

This case is good example...

U.S. 9th Circuit Court of Appeals
MACKINNEY v NIELSEN


To succeed, a S 1983 plaintiff must show that there is a direct link between the city policy and the constitutional violation. Canton v. Harris, 489 U.S. 378, 385 (1989). The plaintiff can show this link by proving that the policy itself is unconstitutional or that the city made a "deliberate" or "conscious" choice to fail to train its employees adequately. Id. at 389.

Section 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.


For additional info on what I would like to do with the legal notice you can take a look at this thread...
http://www.calguns.net/calgunforum/showthread.php?t=55733&highlight=1983+federal

tyrist
09-20-2007, 6:01 PM
You can always sue but you will not win. You have to remember that laws are so complicated that probable cause to arrest is all you need. Crimminal cases get thrown out all the time...if all officers were held liable for this there literly would not be any police officers.

Giovani X
09-20-2007, 6:07 PM
Is there any law that says as citizens we must show our guns to a LEO if requested, and if so could we also ask to have our lawyer and thier suppervisor preasent. If the "item" is in a legal case locked by the owner. Would it be considered a warented search due to the fact that you didi not give permission to open the case untill representation for both sides is there to witness? Just curious?

metalhead357
09-20-2007, 6:34 PM
tagging for turfin' later;)

formerTexan
09-20-2007, 7:43 PM
Is there any law that says as citizens we must show our guns to a LEO if requested, and if so could we also ask to have our lawyer and thier suppervisor preasent. If the "item" is in a legal case locked by the owner. Would it be considered a warented search due to the fact that you didi not give permission to open the case untill representation for both sides is there to witness? Just curious?

The most talked about situation is during a traffic stop, an officer may ask if you have any firearms in your vehicle. If you answer affirmative, then a California law that gives them authority to "inspect" the firearms. See this post. (http://www.calguns.net/calgunforum/showpost.php?p=699361&postcount=5)

M. Sage
09-20-2007, 7:52 PM
Is there any law that says as citizens we must show our guns to a LEO if requested, and if so could we also ask to have our lawyer and thier suppervisor preasent.

Yes. Supervisor, possibly. Lawyer, good luck.

Refusal is PC to arrest on suspicion of carrying a concealed or loaded weapon. Meh. I don't carry illegally, all my stuff is legal and in order. Meanwhile, despite what's on the books, they really should have a warrant to go beyond a Terry search.

Satex
09-20-2007, 8:31 PM
They certainly have an obligation to know Harrott.

I agree!
I can never understand how if a person is charged with anything, not knowing the law is not a valid reason, yet LE are allowed to arrest and later claim they aren't sure about the law, so they arrested just to be sure. How does that work???

FreedomIsNotFree
09-20-2007, 10:23 PM
I agree!
I can never understand how if a person is charged with anything, not knowing the law is not a valid reason, yet LE are allowed to arrest and later claim they aren't sure about the law, so they arrested just to be sure. How does that work???

It's a matter of intent. Did the officer know, or should he/she have known, that the suspect didn't actually commit the crime....or....there was no actual crime committed. If the answer is YES, then he can be held personally liable for his actions.

If the answer is NO, well then....

formerTexan
09-20-2007, 11:15 PM
IANAL, but it may be easier to go "higher up" the chain if one wants to push it, after acquittal/dismissal of say AW charges with regards to OLLs.

One make the argument that the DOJ/BOF failed in their duties to instruct/direct LE agencies in the state to educate their officers about Harrott, and thus liable for at minimum court costs incurred to defend these bogus charges.

Another is to target the prosecuting attorney for filing charges in the first place, when they should have known about Harrott, and seeing the rifles (evidence), are not AWs.

I sure as heck hope one of these methods could work to help BWO.

MudCamper
09-21-2007, 9:39 AM
What I wonder is, if a LEO believes that your rifle is an AW, and you tell him and show him the laws (http://www.paul.net/guns/CaliforniaRifles.pdf) demonstrating that what you have is not an AW, and then he still arrests you, does that offer any extra legal grounds for suit.