Legal Question in Criminal Law in California

How can I compel a city police department (or county sheriff) to say whether or not they are enforcing a specific section of the penal code or a specific municipal ordinance?

There are penal code sections and city ordinances which have become unconstitutional over time but are still on the books.

I thought simply asking my local police department and city attorney if a specific section of the Penal Code was still being enforced would be sufficient but they refuse to say.

If neither the police or city attorney will say whether or not a penal code section or municipal ordinance is being enforced is that grounds to get a court order preventing them enforcing the penal code section or municipal ordinance?


Asked on 8/02/10, 6:44 pm

3 Answers from Attorneys

Robert Marshall Law Office of Robert L, Marshall

You cannot bring a lawsuit to challenge the Constitutionality of a law unless it is being enforced against you or somehow affects you.

For instance, in Brown v. Board of Education, the case that found segregated schools unconstitutional, civil rights lawyers filed lawsuits on behalf of African-American children who were excluded from white schools and showed they were harmed. In Roe v. Wade, abortion rights lawyers had to find a plaintiff who was affected by laws prohibiting abortion.

Read more
Answered on 8/07/10, 6:59 pm
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

The police, theoretically at least, enforce all the laws. If there is a particular law that you think is unconstitutional, and you are directly aggrieved by the law, you have the option of breaking the law and raising its unconstitutionality as a defense. The obvious risks involved include having to retain defense counsel and also the possibility of having to post bail or even being incarcerated for months or years while your constitutional claims are decided. You could also file a lawsuit for declaratory relief that the law is unconstitutional, either on its face or as applied to your situation. Obviously, a prudent person who wants to mount a legal challenge to a law would retain a lawyer for this purpose.

Read more
Answered on 8/07/10, 8:22 pm
Anthony Roach Law Office of Anthony A. Roach

Mr. Marshall is right. You would have to have standing, and show that you were involved in some actual controversy that affected you. Courts exist to settled actual disputes between litigants, not handle academic disputes with someone who doesn't have anything better to do with their time.

Read more
Answered on 8/08/10, 12:33 pm


Related Questions & Answers

More Criminal Law questions and answers in California