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What do you do when a police officer walks up to you on the street, and orders you to prone yourself on the ground, and you have no idea what’s going on or why he’s asking any such thing?Do you think that you can place your hands up and ask “Why”, prior to proning yourself?If the District Attorney’s Office is a rubber-stamp for the police, the system breaks down; not in the number of prosecutions, but in the sense that justice is much less served.More importantly, the check on abuse of innocents by the Executive (the police and the District Attorney) is the jury. It’s what they accept as “reasonable” police conduct.Thirty years ago, juries would find police officers liable for shooting unarmed civilians.These days, the mere failure to do whatever the police order you to do, immediately, is sufficient justification to at least use substantial force upon you, and in many cases, sufficient justification to shoot you.How about if the police tell you that they are going to search your house, your person or you car and you verbally object; telling them that they need a warrant to do that?
In the State of California, if a police officer arrests you and procures your criminal prosecution based on know material lies contained in the officer’s police report, and you remain in jail for years awaiting trial because you can’t make bail, even if you are totally innocent and even if you prove that at trial so well that the trial Judge makes a “Finding Of Factual Innocence” (stating that you were not just found not guilty, but that in the Judge’s view you are totally innocent), the police officer cannot be sued for one penny under California law. That has been the law of California since it’s inception; first by “common law” doctrine, and in 1963, by statute.In 1963 the California Law Review Commission studied the then existing common law immunities for public employees, including judges, prosecutors and police officers (i.e. Almada, 640 F.3d 931 (2011), his was a clear misstatement of well established law regarding prosecutorial immunity; that of a public prosecutor. The employing public entity should, therefore, be liable for the damages caused by such abuse of public authority; and, in those cases where the responsible public employee acted with actual malice, the public entity should have the right to indemnity from the employee.” Contrary to that recommendation of the California Law Review Commission, that a person who is the victim of an attempted frame-up should have some legal remedy, the California legislature enacted Cal.Gov’t Code § 821.6, that provides for absolute malicious prosecution immunity for any public employee, acting in the course and scope of their employment. It may be the great injustice in our criminal justice system in California.’ Cal. A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This is simply malicious prosecution immunity under California state law for any public employee, including peace officers, acting in the course and scope of their employment.MALICIOUS CRIMINAL PROSECUTIONS BY PEACE OFFICERS ARE COMMON; ESPECIALLY FOR “RESISTANCE OFFENSES”.The law isn’t what is says; it’s what it does; what it “does” to real people in the real world.
However, notwithstanding California’s absolute immunity for a malicious criminal prosecution by a police officer, a federal remedy probably exists; probably.