Witness Intimidation in Civil Cases

Recently I had a situation that involved a party exercising its power to intimidate third party witnesses and prevent them from testifying.  I knew witness intimidation was a crime if done in a criminal case, but Google and Westlaw weren't showing me any instances of cases punishing parties to civil actions who engage in such behavior.

So I did a little digging.  Turns out, Penal Code 136.1 makes it a misdemeanor (or felony, with certain aggravating circumstances) to prevent or dissuade, or attempt to prevent or dissuade, any witness from testifying in a proceeding.  The problem is that a witness is defined as someone who has been subpoenaed or who has already testified or signed a declaration under oath.  This means that if the other side gets to your witnesses before you do, it may not be considered a crime at all.

But even if the witnesses have already been subpoenaed or signed a declaration or testified at deposition, I wanted more than just a Penal Code section.  As many of us who've worked in the criminal justice system know, it's one thing for acts to be against the law - it's another to successfully get justice when those crimes are committed, especially if the police consider it beneath them to bother.

In cases that involve FEHA claims, you're in luck: it's against Sections 12940(h) and 12955(f) for an employer to harass or discriminate against someone for opposing conduct made unlawful by FEHA, or for assisting in any proceeding involving FEHA claims.  Under 12940(i) and 12955(g), it's also unlawful to aid or abet or compel or coerce anyone else to harass or discriminate.  So any witness to your client's claims for discriminatory conduct in housing or employment is protected.

In claims not involving FEHA, you could cite generally to the Penal Code sections and cite language that allows judges "inherent authority" to promote fair process and curb abuses. Peat, Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App. 3d 272, 288 (1988).

If anyone has any additional authority on point, please email me at morgan@rickettsandyang.com.

THE COURT CONSOLIDATION PLAN AND HOW IT WILL AFFECT VIRTUALLY EVERYONE

Closures

As many already know, ten courthouses have already closed or will be closing soon.  It's strange to think that these courthouses that so many of us have worked, volunteered, appeared, argued, or tried cases in will soon be closed indefinitely.  San Pedro courthouse is closing and transferring all cases to Long Beach.  Pasadena is closing and transferring to either Glendale or Burbank. Also in the south, Huntington Park, Avalon (Catalina Island), Whittier and Pomona are also shutting down; in the west, Beverly Hills, West LA and Malibu courthouses will be closed.  I'm planning a trip to Catalina myself to see the courthouse before it shuts its doors, since I not only have never seen it, I didn't even know they had one.  (Am I indirectly approving of this court closure, if I admit I didn't know it existed?)

Hubs

Even plaintiffs who are lucky enough to still have their local courthouse may not be able to file their case there if it involves certain types of disputes.  Collections, evictions, small claims, limited civil cases, and personal injury will all be handled by specialized hubs.  Plaintiffs will need to pay close attention to new filing venues if they have any of these types of cases.

ALL personal injury cases go to Stanley Mosk now - that means medical malpractice, premises or product liability, motor vehicle cases, wrongful death, etc.  It seems that people who are injured in Torrance will have to travel 20 miles to court; people injured in Chatsworth, over 30 miles; people injured in Lancaster, almost 70.

Limited civil collections go to either Chatsworth or Norwalk courthouses now.  Probate cases must be filed in either Stanley Mosk or Lancaster.  Small claims are now either in Stanley Mosk, Alhambra, Lancaster, Downey, Inglewood, and Van Nuys.  Evictions cases go to either Stanley Mosk, Pasadena, Santa Monica, Long Beach, and Lancaster.

Other Cuts

In my opinion, one of the most difficult impacts to deal with for attorneys is the reduction in court reporters.  Private court reporter fees are usually at least in the $350 range, possibly longer if they have to wait around beyond the half-day mark.  But without a court reporter, you run the risk that the judge or opposing counsel will say something important that you may need to cite later.  Agreements or concessions may be made in open court that help your case; judges sometimes give you helpful rulings that the other side may then attempt to walk back or twist; risking being unable to prove later that those statements were actually made is just not good practice.  I've had more than one court ruling where the attorneys could not agree on just what the judge had actually ordered and had to order the transcript to settle the matter.  One of my bigger cases, a theft of trade secrets case, literally turned on the judge having agreed with us by saying "All right - that," at a hearing on a motion to compel production of all the defendant's computers and electronic documents.  We had to highlight the portion of the transcript that opposing counsel (supposedly) didn't recall, and force them to admit it had happened.  If we hadn't had a court reporter, we wouldn't have had a transcript, and we would never have gotten unbelievably damning evidence from the defendant's computers, and that case would probably still be being litigated today.

I've also noticed that fewer clerks are manning the filing windows.  This means more wait time in line for messengers and other persons filing documents with the court.  The rules also don't allow you to file more than three documents at a time, which usually is not a problem for an attorney.  However, it is a big problem for a messenger who's waiting in line to file 10, 15, 20 documents at a time.  Messenger services are already not very profitable for attorney service companies that make their real money serving process.  If a messenger has to wait in an even slower moving line an extra time for every three documents, some companies may exit the court filings business entirely and those that remain could raise their prices, increasing the cost of legal services for clients, who usually pay filing costs.

Until next time, everyone!  

Supreme Court Restricts Police Ability to Come Sniffing Around Your House

March 26, 2013 - With all the excitement surrounding the Supreme Court arguments on Proposition 8, the California constitutional amendment banning same sex marriage, and the upcoming arguments on the Defense of Marriage Act, it's easy to miss an important decision issued the same morning.  That decision is Florida v. Jardines, one of two Supreme Court cases this year that dealt with police dogs.  

In the first case, Florida v. Harris, a unanimous decision, the Court decided drug sniffing dogs are capable of giving probable cause to search a car.  In Florida v. Jardines, the case decided today, the police took a drug sniffing dog up to the doorstep of a house, and used the dog's ability to smell marijuana from under the door as an excuse to obtain a search warrant of the house and arrest the Defendant on drug charges.  The Supreme Court ruled, in a 5-4 decision, that this was a violation of the Defendant's Fourth Amendment rights against unreasonable search and seizure.

The Court's reason is straightforward.  The police have the same right as a private citizen to go by your house on a public street.  They even have the same right to go onto your property, up to the front door, where the protection is usually the same as the inside of the house. to talk to you and ask you for things, like trick-or-treaters.  These rights are based on the common social practice, which is a standing invitation to the public to knock on your door.  There is no standing invitation to bring a police dog onto your property to conduct a search, however.  Hence the police conduct cannot be said to be based on implicit permission from the homeowner.  In that sense they're trespassing, and the search is covered by the Fourth Amendment.

The ruling has bigger implications than just the narrow circumstance of police dog searches on a doorstep.  The Court, in reaching this decision, made a broader point of restricting the behavior of searching just outside a house, in an area that is subject to the same protections as the inside of the house, not just the instrument used.  

It is wise to keep in mind, however, that the police can still search in areas not protected by the Fourth Amendment.  For example, if the police officer was walking down the street, and smelled marijuana all the way on the sidewalk, he can use that information to ask for a search warrant.  It's also important to keep the decision in context of the Court's previous decisions allowed drug-sniffing dogs at the airport, train station, and at a regular traffic stop.

Scalia specifically noted that the decision is not only about dogs - it's about searches.  The Supreme Court's decision provides defendants everywhere with another tool to argue for the exclusion of evidence obtained by instruments, whether that's dogs, binoculars, or cameras, where police bring them into a private or quasi-private environment to enhance their ability to detect criminal activity.

Can an undocumented immigrant sue the police under 42 U.S.C. 1983 for violation of constitutional rights?

Yes.

It may seem confusing, as we often do not guarantee the same constitutional rights to non-citizens as to citizens.  However, in the United States, legal aliens may sue under 42 U.S.C. 1983, which is the statute commonly used to sue police for excessive force or unlawful arrest, unreasonable search and seizure, etc.  Graham v. Richardson, 403 U.S. 365 (1971).  Undocumented immigrants may also invoke the protections of §1983.  Phyler v. Doe, 457 U.S. 202 (1982).

If you look at the text of §1983, it states that anyone acting under color of law who deprives either citizens or any "other person under the jurisdiction" of the United States of constitutional rights are liable to the injured party.  The 14th Amendment, which extended constitutional protections to all states, does something similar in first discussing citizens and then declaring that all "persons" are entitled to due process and equal protection of the laws.

It seems our lawmakers specifically considered whether aliens would have the same rights as citizens and decided that, in at least some circumstances, they should.  I'm not sure why they decided that - and it's nearly impossible to say why Congress does anything, anyway - but there is a very good reason to extend the protection to everyone: there's no practical way to determine ahead of time who is a citizen and who is not before deciding whether to respect their constitutional rights.  Personally, I think there's another great reason to extend constitutional protections to all under our jurisdiction: it's just the right thing to do.  If rights are inalienable, they should apply to aliens.  If it is just to protect certain rights, those rights should be protected for all.

False statements to police are actually protected by the law!

What happens to the person who falsely accused me of a felony or drug offense?

A quick Google search shows that being falsely accused of a crime by a disgruntled lover, family member, business partner, employee, or random other person is not uncommon.  People with a grudge, it seems, are not afraid to lie to the police, even if they know their lies will be discovered as soon as the police follow up on the false report.

People who are suddenly arrested by the police understandably may be alarmed, frightened, angry, even aggressive.  That is true even for people who know they have done nothing wrong - sometimes, innocent people are especially upset at being treated like a criminal.

What's frightening is that today's cops are more sensitive than ever to certain kinds of highly sensational accusations, such as terrorism, kidnapping, and other violent crimes.  The suspect's otherwise normal reaction to being arrested may be interpreted as far more dangerous and requiring the use of far more force than if the police believed they were arresting, for example, a domestic abuser.

Unfortunately, there does not seem to be any way to successfully sue someone for sending the police after you for no reason.  Why?  Because talking to the police, even to lie about someone, is absolutely privileged.  Liars cannot be held accountable for negligently or intentionally giving the police false information.  This protection is supposed to encourage people to speak freely to the police.  However, the protection for giving knowingly false information goes too far in my opinion.

Worse, the police themselves do not usually do much to follow up on someone who has given them false statements.  While such conduct is a misdemeanor, it is very rare for the police to pass along such a file to the prosecuting agencies, and the prosecutors very rarely (if ever) actually file charges.  On top of that, the statute of limitations is only one year.

There IS a possible claim for malicious prosecution if you have actually been arrested and charged but have been found not guilty or the charges were dropped because you were able to prove that you were factually innocent.  Other than that, it looks like the wrongfully accused have very little recourse.