1 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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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.
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,
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
■ 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
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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.