Legal Question in Criminal Law in California

Other than general sympathy, the only thing of value available here is advice to hire him an attorney to defend the criminal charges. Hints and tips from here or elsewhere would only be used if he were going to represent himself, which would be a really poor idea. He faces a DA who has the evidence and testimony of numerous witnesses and officers to support the criminal charge allegations. Him just saying 'nah' to them isn't a defense. He could also file a complaint with the police department about their conduct, but that isn't going so solve his problem in the court. Filing a lawsuit may be premature, and maybe a waste of time and money until after the criminal proceedings are over, and unless and until he gets a court ruling of 'factual innocence' on the criminal charges, which is highly unlikely. However, be aware there are statute of limitation time limits on taking legal action, which run from the incident. Talk to your attorney about it. Feel free to contact me for legal help if you can't find someone local to you.

I would be careful with the advice that Mr. Nelson gives you. You and your grandfather need to speak to an attorney who handles these types of claims. Filing a lawsuit against the police and the city entity that employs the police requires a prefiling claim. This is required under the California Tort Claims Act. If pending criminal charges have been filed, the criminal charges may act as a stay against the civil lawsuit, but do not act as a stay for the claims filing requirement. This is a very tricky area of law, and I have seen decent lawsuits get ruined because the attorney did not comply with the early claims filing requirement against the city.

First, it sounds like your really asking two questions. One dealing with the search issue as it relates to the criminal charges against your grandfather and the other relating to a possible civil suit against the police officers and the department they work for.

I am also a little confused as to the facts you have provided. In the beginning of your question you stated that "recently your house was searched." Then later in your question you stated "after his house was searched" (I assume you were referring to your grandfather). So is the house your house or is it grandfather's? You also did not provide any information regarding the manner in which the police officers gained access into the house. Unless this took place outside of the home, and from the language of your question I do not believe that was what happened. So assuming the officers did indeed have a search warrant and they entered the house based upon the warrant then they were perfectly within their rights to search the interior of the home and the outside of the home and anything else the search warrant provided for. However, if they entered the house by stating they had a search warrant and they did not have a warrant then there is an issue as to their entrance into the home. Now, if they did not have a warrant and gained entry into the home by asking to come in and speak with either the owner, the resident or they were specific and said you or your grandfather? and they believed they indeed were given permission to enter by someone who had the authority to give them permission and they were given an invitation (a legal invitation is a lot different then a real world invitation) to enter then once again they probably gained access to the home through legal means. If this is the situation the officers can conduct a what is called a plain view search and based upon what may have been discovered they may have gained the ability to do a much more extensive search of the home.

Now let's move on to the incident with your grandfather being thrown to the ground and then struck by the officer. This depends of many different things and facts. My first question would be how old is your grandfather? my next question would be is your grandfather in a wheel-chair or does he use a walker? Further I would want to know how long the officers waited for your grandfather to stand up and what transpired or what was said prior to them throwing him on the ground. Depending on what is legally termed as the "totality of the circumstances" regarding what happened a good argument can be made that the officers acted within their authority when "throwing" your grandfather to the ground and striking him, especially if they thought there may have been a weapon. However, if your grandfather is extremely unstable and they observed his unstable condition prior to him being thrown to the ground and he said or indicated to the officer that it takes me a few minutes to get up and there was no indication of a weapon then it sounds like there maybe an issue regarding excessive force, as it relates to a civil lawsuit. In the criminal matter it would probably not relate to the search of the interior of the home. However it could related to the officer's credibility under certain circumstances.

As to the civil lawsuit, anyone can file a lawsuit for any reason against anyone or against some entity such as a company. Generally when it is against any government agency there is a very short window regarding the statue of limitations as to filing a civil law suit. It is generally no longer than six months from the date of occurrence before the suit must be filed. It is a hard deadline and if it is missed the suit is gone forever. I would strongly suggest you immediately talk with an attorney regarding the situation. As to the destruction of property I do not believe the items broken would assist in a civil lawsuit, unless it was part of an excessive force claim. As to the criminal charges they would not assist your grandfather in any tangible way. If you or your grandfather have hired a private attorney regarding the criminal charges these questions should be directed to the attorney. He or she may be able to refer you to an attorney who deals with civil matters such personal injury and/or civil rights or who specializes in cases involving law enforcement and excessive force issues. If you are using a public defender the criminal issues should be discussed with the PD. The civil issues should be directed to a civil attorney as mentioned above. If you do not know any attorneys who might refer you to such an attorney I would strongly suggest you immediately contact your local county bar association and ask for some referrals from their referral list. If you are in northern California feel free to call my office and I can refer you to some attorneys in the area who handle these type of cases.

Good luck

Brian McGinity

This communication between the parties does not create an attorney client relationship and the information exchanged is not covered by the attorney client privilege. Further the information is based upon the general principles of law and is not and should not be considered legal advice. It is impossible to provide accurate information in an public open forum such as this. You should immediately contact an attorney.