42 Usc 1983 Conspiracy Authorities

42 USC 1983 Conspiracy
Distinction between conspiracy under 1983, and under 1985(3)

To establish conspiracy under 1983, the plaintiff must show an agreement or meeting of
minds to violate his or her constitutional rights and an overt act in furtherance of
the conspiracy
To establish conspiracy under under Section 1985(3) plaintiff must show all the elements
of (1) a conspiracy (2) for the purpose of directly or indirectly depriving the
plaintiff or class of plaintiff equal protection of the laws or equal privileges, and
immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) where
the plaintiff is injured in his or her property, or is deprived of any right or
privilege of a United States Citizen…
Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 45 Fed.R.Serv.3d

114, 99 Cal. Daily Op. Serv. 7912, 1999 Daily Journal D.A.R. 10,033 (9th Cir.(Cal.),Sep
24, 1999)
[20] Conspiracy 91 7.5(1)
91 Conspiracy
91I Civil Liability
91I(A) Acts Constituting Conspiracy and Liability Therefor
91k7.5 Conspiracy to Interfere with Civil Rights
91k7.5(1) k. In General. Most Cited Cases
To establish the defendants' liability for a conspiracy to violate civil rights, a
plaintiff must demonstrate the existence of an agreement or meeting of the minds to
violate constitutional rights; the defendants must have, by some concerted action,
intended to accomplish some unlawful objective for the purpose of harming another which
results in damage, but such an agreement need not be overt, and may be inferred on the
basis of circumstantial evidence such as the actions of the defendants.
b. The Conspiracy Claim
[20][21] To establish the defendants' liability for a conspiracy, a plaintiff must

demonstrate the existence of “ **‘an agreement or **‘meeting of the minds' to violate
constitutional rights.’ ” United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d
1539, 1540-41 (9th Cir.1989) (en banc) (quoting Fonda v. Gray, 707 F.2d 435, 438 (9th
Cir.1983)). The defendants must have, “by some concerted action, intend[ed] to
accomplish some unlawful objective for the purpose of harming another which results in
damage.” FN33 Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.1999) (quoting
Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1343 (9th Cir.1990)). Such an
agreement need not be overt, and may be inferred on the basis of circumstantial evidence
such as the actions of the defendants. See id. at 856. **For example, a showing that the
alleged conspirators have committed acts that “are unlikely to have been undertaken
without an agreement” may allow a jury to infer the existence of a conspiracy. Kunik v.
Racine County, 946 F.2d 1574, 1580 (7th Cir.1991). Whether defendants were involved in
an unlawful conspiracy is generally a factual issue and should be resolved by the jury,
“so long as there is a possibility that the jury can ‘infer from the circumstances (that
the alleged conspirators) had a ‘meeting of the minds' and thus reached *1302 a
understanding’ to achieve the conspiracy's objectives.” Hampton v. Hanrahan, 600 F.2d
600, 621 (7th Cir.1979), reversed in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987,
64 L.Ed.2d 670 (1980)) (quoting Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct.
1598, 26 L.Ed.2d 142 (1970)). “To be liable, each participant in the conspiracy need not
know the exact details of the plan, but each participant must at least share the common
objective of the conspiracy.” Phelps Dodge, 865 F.2d at 1541.
FN33. The plaintiffs have alleged that the defendants intended to “ ‘expose,
disrupt, misdirect, discredit or otherwise neutralize’ and otherwise suppress,
punish and chill the protected activities of the plaintiffs, Earth First! and
Redwood Summer,” and defined the object of the conspiracy as follows:
[T]o ‘expose, disrupt, misdirect, discredit or otherwise neutralize’ and

otherwise suppress, punish and chill the protected activities of the plaintiffs,
Earth First! and Redwood Summer.
. . .. .
+ to endeavor to cause Redwood Summer to be seen and branded in the public mind
as likely to involve lawless conflict and violence, so that its meaning and
non-violent premise would be hidden and people would be frightened and
discouraged from coming to participate;
+ to nurture the atmosphere of conflict, danger and division in the communities

of the logging district and among the people there, so as to impede the
organizing work of plaintiffs and their associates directed at the logging
companies and their responsibility for the destruction of the forest and
impoverishment of the forest workers; and,
+ to falsely portray plaintiffs and Earth First!, and cause them to be

portrayed, as dangerous extremists, involved with bombs and guns and tree-
spiking, willing to resort to violence, power-hungry and without conscience in
the pursuit of their ends, etc.
Plaintiffs' Seventh Amended Complaint at 15-16.
2. The District Court's Conclusions
The district court found that the appellees had demonstrated that their First Amendment
“advocacy was disrupted” by the actions of the appellants and the other defendants. It
then held that the appellees had produced sufficient evidence that FBI agents had
intended to inhibit their First Amendment activities, citing the showing that the FBI
had previously investigated Earth First! and had misrepresented the nature of these
prior investigations, had provided false or misleading information about the appellees
to the Oakland police, and continued to investigate them even after the Alameda County
District Attorney declined to pursue charges. However, the court reasoned that, because
the appellees could not establish that the Oakland police had previously investigated
Earth First!, had “engage[d] in any coverup,” or had any animus toward them, they could
not as a matter of law demonstrate that “the unlawful arrests and searches ... [were]
motivated by an intent to chill plaintiffs' speech.”
The district court's reasoning on the appellees' conspiracy allegation paralleled that
relating to their First Amendment claims: it held that the appellees had presented
circumstantial evidence suggesting animus and agreement among the FBI agents, but had
failed to show that the appellants had any animus, intended to chill appellees' speech,
or were part of the agreement to falsely accuse appellees of responsibility for the
explosion.
3. Sufficiency of the Evidence Presented by the Appellees
[22] Direct evidence of improper motive or an agreement among the parties to violate a
plaintiff's constitutional rights will only rarely be available. Instead, it will almost
always be necessary to infer such agreements from circumstantial evidence or the
existence of joint action. See Magana, 107 F.3d at 1447; Kunik, 946 F.2d at 1580;
Hampton, 600 F.2d at 620-21. Moreover, “[q]uestions involving a person's state of
mind ... are generally factual issues inappropriate for resolution by summary judgment.”
Braxton-Secret v. Robins Co., 769 F.2d 528, 531 (9th Cir.1985).
[23] In the instant case, the appellees have presented sufficient circumstantial
evidence that the appellants intended to inhibit their First Amendment activities, and
that they entered a conspiracy to further this goal, to survive a motion for summary
judgment. **First, the fact that the appellants had themselves viewed the crime scene
and the physical evidence raises a question as to whether they would have relied upon
the FBI agents' questionable characterization of the evidence absent an improper motive
or conspiracy. See Phelps Dodge, 865 F.2d at 1541 **(police failure to exercise
independent judgment may help demonstrate involvement in conspiracy). **Second, some of
the misinformation included in, and some of the material omissions from the search
warrant affidavits were directly attributable to the appellants, which permits the
inference of an improper motive for such conduct. Third, the appellants actively
publicized the inaccurate information to the media, an act which is consistent with a
desire to create a negative impression of Earth First! among the public. Fourth, the
Oakland police department had a division that had monitored the activities of Earth
First! and cooperated with the FBI prior to the bombing incident. Fifth, the Oakland
police, in the search warrant affidavit, stated their belief that appellees were
“members of a violent terrorist group.” Such a statement strongly suggests that the
officers *1303 might have wanted to inhibit both the group's operations and the
activities of its members. And finally, given the district court's findings of a factual
dispute on the point, we must assume for purposes of this opinion that a conspiracy
existed among FBI agents Doyle, Reikes, Sena, Buck, Hemje and Conway. The fact that the
appellants acted in close cooperation with these “conspirators” in planning and
conducting their investigation, and that both the FBI agents and the appellants
contributed misinformation to the probable cause showings that allowed the appellants to
obtain the search warrants, is highly probative as to the existence of an agreement,
implicit or explicit, among the appellants and the FBI “conspirators”. See Phelps Dodge,
865 F.2d at 1545, 1547 (characterizing the existence of a conspiracy as a “smoking gun”
with regard to a plaintiff's attempt to prove that a particular defendant was part of
that conspiracy).FN34
FN34. The fact that the Oakland police officers held meetings with and conducted
a joint investigation with the FBI agents renders such evidence even more
probative on the question of the involvement of the Oakland police officers. “The
ability and opportunity to conspire, while insufficient alone, constitute
circumstantial evidence of actual participation in the conspiracy.” Id. at 1547.
[24] The possibility that other inferences could be drawn that would provide an
alternate explanation for the appellants' actions does not entitle them to summary
judgment. See Phelps Dodge, 865 F.2d at 1542 (inference need not be most likely but
merely a “rational” or “reasonable” one); Hampton, 600 F.2d at 621 (“The fact that ‘all
of the evidence ... does not point in one direction and different inferences might
reasonably be drawn from it’ does not justify judicial intrusion into the jury's role in
determining whether a civil conspiracy existed.”) (quoting Continental Ore Co. v. Union
Carbide & Carbon Corp., 370 U.S. 690, 700-01, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962)). In
other cases, we have allowed similar circumstantial showings to withstand summary
judgment motions. See Phelps Dodge, 865 F.2d at 1543, 1547 (company's powerful position
and close relationship with law enforcement, meeting at which company urged police to
treat plaintiffs harshly, inequitable treatment of plaintiffs by police, and active
cooperation between company and police during strike was sufficient evidence of
company's participation in conspiracy to withstand summary judgment).FN35 See also Bell v.
City of Milwaukee, 746 F.2d 1205, 1257-58 (7th Cir.1984) (defendants' adoption of
modified version of events justifying police shooting without noting discrepancies with
earlier story provided sufficient evidence of participation in conspiracy, despite
absence of any evidence that defendants knew new version was false); Myatt v. City of
Chicago, 816 F.Supp. 1259, 1268 (N.D.Ill.1992) (officer's presence during fellow
officer's use of excessive force, warning to others to stay away, and retrieval of
fellow officer's gun after it fell out of ankle holster raised inference of conspiracy
that defeated summary judgment).
FN35. Fonda v. Gray, 707 F.2d 435 (9th Cir.1983), is not to the contrary. In that
case, we held that a bank's acquiescence to the FBI's investigation request was
insufficient to prove its participation in the conspiracy. 707 F.2d at 438.
However, the fact that the appellants in this case are law enforcement officials
who were involved in a joint investigation with conspirator law enforcement
officers clearly distinguishes it from Fonda, in which the defendants whose
participation in the conspiracy was at issue were bank employees who demonstrated
that they knew absolutely nothing about the nature of the FBI investigation. Id.
We therefore hold that the evidence is sufficient to raise a genuine issue of fact as to
whether the appellants intended to interfere with the appellees' political activities
and whether they did so by acting together with the FBI agents to falsely portray Bari
and Cherney as being responsible for the explosion.
IV.
CONCLUSION
The district court's denial of summary judgment to appellants on the issue of *1304
qualified immunity is AFFIRMED; its grant of summary judgment to appellants on the
appellees' claims of First Amendment violations and conspiracy is REVERSED; and the case
is REMANDED for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.

SCHROEDER, Circuit Judge, concurring:
United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 57 USLW 2467,
130 L.R.R.M. (BNA) 2353, 110 Lab.Cas. P 56,017 (9th Cir.(Ariz.), Jan 18, 1989)
[Cited 98 times for this legal issue]

United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539
91 CONSPIRACY
91I Civil Liability
91I(B) Actions
91k19 k. Evidence.
C.A.9.Ariz.,1989
Evidence that police failed to exercise independent judgment will support inference of
conspiracy with private party, for purpose of establishing § 1983 liability. 42 U.S.C.A.
§ 1983 .
Marshall v. Odom, 156 F.Supp.2d 525
D.Md.S.Div.,2001
To establish a civil conspiracy under § 1983, plaintiff must present evidence that
defendants acted jointly in concert and that some overt act was done in furtherance of
the conspiracy, which resulted in deprivation of a constitutional right, by presenting
specific circumstantial evidence that each member of the alleged conspiracy shared same
conspiratorial objective, such as would reasonably lead to the inference that defendants
positively or tacitly came to a mutual understanding to try to accomplish a common and
unlawful plan. 42 U.S.C.A. § 1983 .

Venegas v. Wagner, 831 F.2d 1514
C.A.9.Cal.,1987
Evidence supported jury's conclusions that police officers procured false testimony from
witness and denied plaintiff a fair trial in a murder prosecution and that officers
violated civil rights statutes. 42 U.S.C.A. §§ 1983 , 1985(3) .

Stone v. City of Chicago, 738 F.2d 896
C.A.7.Ill.,1984
Evidence in civil rights action alleging, inter alia, that police officers conspired to
hinder due course of justice by engaging in cover-up of involvement of officers in
accident involving plaintiff or by engaging in cover-up of use of excessive force in
effecting arrest of plaintiff and his wife following the accident, including fact that
officers were huddled together at intersection conversing, that several made racial
slurs against plaintiffs, that official police reports omitted reference to police car
involved in accident, that officers failed to report hit-and-run allegations to
appropriate authority, and that none of the officers took names of witnesses who might
have seen application of excessive force, was sufficient to support verdict for the
plaintiffs. 42 U.S.C.A. § 1985 .

Calcutt v. Gerig, 271 F. 220
C.A.6.Tenn.,1921
In a civil action for conspiracy, plaintiff need not prove preliminary meeting of the
defendants, or a definite plan or agreement by them to injure his person or property;
but it is sufficient if the proof shows a concert of action in the commission of the
unlawful acts, from which the natural inference arises that they were in furtherance of
a common design of the alleged conspirators.

Handeen v. Lemaire, 112 F.3d 1339
C.A.8.Minn.,1997
To establish conspiracy to violate Racketeer Influenced and Corrupt Organizations Act
(RICO), plaintiff need establish only a tacit understanding between parties, and can
rely wholly on circumstantial evidence of each defendant's actions. 18 U.S.C.A. § 1962(c,
d) .

Neibel v. Trans World Assur. Co., 108 F.3d 1123
C.A.9.Cal.,1997
Substantial evidence supported jury's finding that insurance company agreed to have some
part in directing agent's affairs concerning tax avoidance scheme, which thus supported
verdict against insurance company for civil violation of conspiracy provision of
Racketeer Influenced and Corrupt Organizations Act (RICO); president of insurance
company and agent discussed tax scheme involving sales of insurance and how they would
profit from it, insurance company hired agent's agents as independent contractors to
sell policies, president of insurance company appeared at agent's tax seminar and
approved of agent's tax form scheme, and insurance company deviated from standard policy
to destroy microfilm records while litigation was pending. 18 U.S.C.A. § 1962(d) .

Jones v. City of Chicago, 856 F.2d 985
C.A.7.Ill.,1988
Evidence was sufficient to support determination that police officers had acted in
common scheme to “railroad” former murder and rape defendant, now civil plaintiff, in
violation of his rights; basis for arrest of plaintiff on momentary identification of
him by child with head injury during suggestive circumstances, officers' threats to
another officer to prevent exculpatory evidence from being presented to prosecutor,
issuance of fraudulent evidence report to prosecuting attorney, and lab report which
failed to present exculpatory evidence was sufficient. 42 U.S.C.A. § 1983 .

Martinez v. Winner, 548 F.Supp. 278
D.Colo.,1982
Conspiracy may be implied by a course of conduct and other circumstantial evidence, but
the circumstantial facts relied upon must at least point in some minimal way to an
actionable conspiracy, and there must be some indicia of agreement in unlawful means or
end.

Crowe v. Lucas, 595 F.2d 985
C.A.5.Miss.,1979
Finding that defendant city officials had conspired to deprive plaintiff alderman of his
civil rights was supported by evidence, including evidence that defendants had
participated in private meetings at which plaintiff was discussed, as well as evidence
of defendants' course of conduct. 42 U.S.C.A. § 1983 .

City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650
C.A.8.Neb.,1989
Plaintiff alleging civil rights conspiracy must allege with particularity and
specifically demonstrate with material facts that defendants reached an agreement, and
plaintiff can satisfy that burden by pointing to at least some facts which would suggest
that defendants reached understanding to violate the rights. 42 U.S.C.A. § 1985(3) .

In re Managed Care Litigation, 430 F.Supp.2d 1336
S.D.Fla.,2006
To establish conspiratorial agreement element of their civil conspiracy claim against
health maintenance organizations (HMOs) under Racketeer Influenced and Corrupt
Organizations Act (RICO), which was based on alleged scheme to defraud physicians
through use of HMOs' automated claims processing systems to systematically underpay for
services, physicians had to present evidence tending to exclude possibility of
independent conduct and tending to show conspiratorial behavior, notwithstanding
physicians' contention that HMOs' alleged parallel conduct of mail and wire fraud, being
itself unlawful, sufficed to create inference of conspiracy, inasmuch as alleged proof
that HMOs engaged in predicate acts of mail and wire fraud was as consistent with
independent behavior as with industry-wide conspiracy to manipulate claims processing
systems. 18 U.S.C.A. §§ 1341 , 1343 , 1962(d) .

Crowe v. County of San Diego, 608 F.3d 406
C.A.9.Cal.,2010
To establish liability for a conspiracy in a § 1983 case, a plaintiff must demonstrate
the existence of an agreement or meeting of the minds to violate constitutional rights;
such an agreement need not be overt, and may be inferred on the basis of circumstantial
evidence such as the actions of the defendants. 42 U.S.C.A. § 1983 .

Green v. Benden, 281 F.3d 661
C.A.7.Ill.,2002
Agreement among alleged conspirators, for purpose of statute governing action for
conspiracy to interfere with civil rights, may be inferred from circumstantial evidence,
but only if it is sufficient to permit a reasonable jury to conclude that a meeting of
the minds had occurred and that the parties had an understanding to achieve the
conspiracy's objectives. 42 U.S.C.A. § 1985(3) .

Exchange Bank v. Moss, 149 F. 340
C.A.8.Mo.,1906
Where the petition in an action to recover money, alleged to have been obtained from
plaintiff by means of a conspiracy between defendant bank and others, alleged that such
conspiracy covered an extended period of time, both before and after the transaction in
suit, and was organized for the purpose of swindling all strangers who could be induced
to enter into similar transactions, evidence of acts of the cashier of defendant bank in
respect to similar transactions while conducting the business of the bank, or
declarations made by him to other persons similarly defrauded tending to show the bank's
complicity, whether such acts and declarations were before or after the transaction in
issue, are admissible to establish the guilty intent and motive of the bank in the
transaction involved in the case on trial.

Hernandez v. Joliet Police Dept., 197 F.3d 256
C.A.7.Ill.,1999
The agreement upon which a civil rights conspiracy claim is based may be inferred from
circumstantial evidence, but only if there is sufficient evidence that would permit a
reasonable jury to conclude that a meeting of the minds had occurred and that the
parties had an understanding to achieve the conspiracy's objectives. 42 U.S.C.A. §
1985(3) .

Liquidation Com'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339
C.A.11.Fla.,2008
The existence of an agreement to participate in a Racketeer Influenced and Corrupt
Organizations Act (RICO) conspiracy, as well as its objective, may be inferred from
circumstantial evidence demonstrating that each defendant must necessarily have known
that the others were also conspiring to participate in the same enterprise through a
pattern of racketeering activity. 18 U.S.C.A. § 1962(c).

Johnson v. Branch, 242 F.Supp. 721
E.D.N.C.,1965
To prove conspiracy in civil action, plaintiff was not required to prove date and place
of defendants' meeting and summary of their conversation, but was bound to show
something more than facts which would as well justify defendants' conduct as to lead to
inference of conspiracy.

Campbell v. Johnson, 167 F. 102
C.A.9.Wash.,1909
Evidence considered, and held to sustain a verdict and judgment for damages in favor of
a member of a typographical union against other members for a conspiracy to cause his
suspension as a member unlawfully and contrary to the rules of the union.

Cefalu v. Village of Elk Grove, 211 F.3d 416
C.A.7.Ill.,2000
Evidence regarding village's alleged efforts to evade liability in connection with
arrests was not relevant to arrestees' claim that village and officers conspired to
cover up purported violations of arrestees' constitutional rights, even if evidence
would have shown that village was more concerned about damage control than it was about
justice, when such evidence did not show that village or officers suppressed or withheld
information, or took any action, which hampered arrestees in resorting to court to
vindicate their constitutional rights. U.S.C.A. Const.Amends. 1 , 14 ; 42 U.S.C.A. §
1983 .
42_usc_1983_conspiracy_civil_liability_actions_evidence_fed_all_digest_5_27_2014.doc
**S.L. ex rel. Lenderman v. St. Louis Metropolitan Police Dept. Bd. of Police Com'rs,
725 F.3d 843
C.A.8.Mo,2013
Evidence was sufficient to support arrestee's claim that police lieutenant colonel and
sergeant conspired to violate her constitutional rights so as to give rise to § 1983
conspiracy claim; reasonable jury could find that defendants deliberately falsified
arrest records to protect the department's reputation following arresting officers'
abusive misconduct, **that arresting officers, who were also conspiracy members, engaged
in overt acts by submitting the falsified arrest report and misleading the investigators
during the internal affairs investigation, and that arrestee's physical and economic
injuries were linked to arresting officer's overt acts, which were in turn related to
lieutenant colonel's acts of providing officer with information about the internal
affairs investigation so she could protect her own interests. 42 U.S.C.A. § 1983
**In re Cowin, 2013 WL 1786026

Bankr.S.D.Tex.Houston.Div.,2013
Meeting of minds between participants in alleged conspiracy to use tax lien foreclosure
sale process in order to strip deed of trust liens from property and to abscond with
excess foreclosure sale proceeds could be inferred, for purposes of establishing
existence of civil conspiracy and holding alleged conspirator liable for overt, illegal
acts committed, not only by himself, but by other conspirators, **from repeated pattern
of conduct among parties in acquiring real property subject to deed of trust liens,
shortly thereafter borrowing funds from confederate or company that he controlled for
purpose of paying real property taxes assessed against property, and immediately
defaulting on these loans in order to enable confederate to foreclose and to strip off
any junior liens.
Koch v. Royal Wine Merchants, Ltd., 23 Fla. L. Weekly Fed. D 385

S.D.Fla.,2012
In the context of a conspiracy, under Florida law, mere evidence of knowledge of the
crime or association with conspirators is insufficient to establish an agreement, but
**proof that the defendant committed an act which furthered the purpose of the
conspiracy is circumstantial evidence that can prove the existence of an agreement.
Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1195

**S.D.Iowa.C.Div.,2012
Evidence showing that police officers pledged silence to one another for purpose of
wrongfully convicting arrestees was admissible in arrestees' § 1983 action alleging that
their civil rights were violated during murder prosecution, inasmuch as it was relevant
to conspiracy claim and would not be unduly prejudicial. 42 U.S.C.A. § 1983 .
**Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1195

S.D.Iowa.C.Div.,2012
Evidence showing that police officers pledged silence to one another for purpose of
wrongfully convicting arrestees was admissible in arrestees' § 1983 action alleging that
their civil rights were violated during murder prosecution, inasmuch as it was relevant
to conspiracy claim and would not be unduly prejudicial. 42 U.S.C.A. § 1983 .
Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1186

S.D.Iowa.C.Div.,2012
Evidence of how non-disclosure of exculpatory reports occurred during murder prosecution
would not be admissible, in arrestees' subsequent § 1983 action alleging that their
civil rights were violated during murder prosecution, to show that Brady violations
themselves violated any particular constitutional right of arrestees, since defendant
police officers were immune from such claim, but arrestees would be permitted to offer
fact of the violations and evidence as to how violations occurred as support for their
claim that officers conspired with prosecutors to intentionally deprive them of
constitutional rights. 42 U.S.C.A. § 1983 .
**Poel v. Webber, 899 F.Supp.2d 1155

D.N.M.,2012
Absent evidence of an agreement between client's former attorneys and the state-court
judge who had dismissed his state-court action against them, or of any concerted action
between attorneys and judge, other than evidence that they “communicated directly and
continuously through pleadings and motions,” client failed to establish that attorneys
conspired with judge to deprive him of his constitutional rights in violation of § 1983.
42 U.S.C.A. § 1983 .
**Johnson v. Dossey, 878 F.Supp.2d 905
N.D.Ill.E.Div.,2012
Phone calls and meetings involving law enforcement personnel investigating arson case
and personnel associated with investigation conducted by suspect's insurer did not
indicate conspiracy under § 1983; communication between parties investigating same case
seemed to be not only routine, but authorized and encouraged by Illinois law. 42 U.S.C.A.
§ 1983 .
**White v. City of Atlanta, 449 Fed.Appx. 804

C.A.11.Ga.,2011
Plaintiff failed to show that city police officer was aware of alleged conspiracy to coerce
him to conceal illegal search of home that resulted in death of homeowner, so as to support
civil rights conspiracy claim; viewed in light most favorable to plaintiff, record
established that corrupt supervisor dispatched officer to interview plaintiff, that corrupt
officers prepared plaintiff to meet with officer, and that officer questioned plaintiff and
then pursued a material witness to complete his investigation. 42 U.S.C.A. § 1985(2).
**In re USA Commercial Mortg. Co., 802 F.Supp.2d 1147

D.Nev.,2011
Substantial evidence of motivations that drove financer and loan servicer to conspire to
place their interests in the proceeds from the loans in priority to those of the direct
lenders supported defendants' liability under Nevada law for civil conspiracy.
**Hernandez v. City of Napa, 2011 WL 996791 (officers denied qualified immunity)

N.D.Cal.N.Div.,2011
To constitute a civil rights conspiracy, the agreement to violate constitutional rights
need not be overt, and may be inferred on the basis of circumstantial evidence such as
the actions of the defendants.
**SigmaPharm, Inc. v. Mutual Pharmaceutical Co., Inc., 772 F.Supp.2d 660

E.D.Pa.,2011
Parallel conduct that indicates the sort of restricted freedom of action and sense of
obligation that one generally associates with agreement may be sufficient to state a claim of
tacit conspiracy.
In re Enron Corp. Securities, Derivative & Erisa Litigation, 2010 WL 5100809

S.D.Tex.Houston.Div.,2010
**Under Texas law, a changing cast of characters does nothing to lessen the fact of one
conspiracy; once the existence of a common scheme of conspiracy is shown, slight
evidence is all that is required to connect a particular defendant with the conspiracy.
Bergin Financial, Inc. v. First American Title Co., 397 Fed.Appx. 119
C.A.6.Mich.,2010
Mortgage company argued that title company's independent agent had notified title
company that it was under investigation for its involvement in alleged scam as closer of
various “flipping” real estate transactions for which title company was title insurer,
but presented nothing to indicate that agent notified title company that it had actually
participated in such scheme, rather than merely failing to detect and prevent it, thus
precluding mortgage company's claim to hold title company directly liable for civil
conspiracy to defraud mortgage company.
**Green v. Missouri, 734 F.Supp.2d 814
E.D.Mo.E.Div.,2010
To avoid summary judgment on a civil rights conspiracy claim, the plaintiff must allege
with particularity and demonstrate with specific material facts that the defendants
reached an agreement; while those allegations may include circumstantial evidence, the
plaintiff must point to at least some facts that would suggest that defendants reached
an understanding to violate his rights. 42 U.S.C.A. § 1985(3).
Green v. Missouri, 734 F.Supp.2d 814

E.D.Mo.E.Div.,2010
The question of the existence of a conspiracy to deprive a plaintiff of his or her
constitutional rights should not be taken from the jury if there is a possibility the
jury could infer from the circumstances a meeting of the minds or understanding among
the conspirators to achieve the conspiracy's aims; because the elements of a conspiracy
are rarely established through means other than circumstantial evidence, and summary
judgment is only warranted when the evidence is so one-sided as to leave no room for any
reasonable difference of opinion as to how the case should be decided, a court must be
convinced that the evidence presented is insufficient to support any reasonable
inference of a conspiracy. 42 U.S.C.A. § 1985 .
Green v. Missouri, 734 F.Supp.2d 814

E.D.Mo.E.Div.,2010
Speculation and conjecture are not enough to prove that a civil rights conspiracy
existed. 42 U.S.C.A. §§ 1983 , 1985(3).
**Steel v. City of San Diego, 726 F.Supp.2d 1172

S.D.Cal.,2010
For purposes of conspiracy under § 1983, agreement or meeting of minds may be inferred
on basis of circumstantial evidence, such as actions of defendants. 42 U.S.C.A. § 1983 .
**Steel v. City of San Diego, 726 F.Supp.2d 1172

S.D.Cal.,2010
Showing that defendants committed acts that are unlikely to have been undertaken without
an agreement may support inference of conspiracy under § 1983. 42 U.S.C.A. § 1983 .
**Crowe v. County of San Diego, 608 F.3d 406 (officer’s lacked qualified immunity)
C.A.9.Cal.,2010
To establish liability for a conspiracy in a § 1983 case, a plaintiff must demonstrate
the existence of an agreement or meeting of the minds to violate constitutional rights;
such an agreement need not be overt, and may be inferred on the basis of circumstantial
evidence such as the actions of the defendants. 42 U.S.C.A. § 1983 .
**Wackman v. Rubsamen, 602 F.3d 391

C.A.5.Tex.,2010
Evidence of a meeting of the minds was sufficient to support finding, in action under
Texas law, that hospice patient's caretaker conspired to cause her death, even though
there was no direct evidence that the conspirators discussed the details of that death
in advance; conspirators had a longstanding, close relationship, there was evidence they
went to the funeral home to discuss arrangements before death occurred, and it was
reasonable to infer that since caretaker stood to gain control of all of patient's
assets upon her death, coconspirator stood to benefit based on their long-time, close
relationship.
.Betancourt v. Rhodes, 2010 WL 672756 West KeySummary[1] D.Idaho,2010Evidence did not support
a murder defendant's civil rights conspiracy claims against the coroner who investigated the
victim's body. There was no evidence that the coroner conspired to destroy the victim's body
fluids and samples, or that he acted with bad faith when he failed to preserve the evidence
or failed to perform certain tests.1 91k192 100k232021438012001012021438012001
**Mills v. City of Harrisburg, 350 Fed.Appx. 770

C.A.3.Pa.,2009
Police officers who conducted undercover prostitution sting operation did not unlawfully
conspire to deprive arrestee of his equal protection rights, where there was no
indication that officers acted with discriminatory intent or otherwise targeted arrestee
and his co-defendant because of their race. U.S.C.A. Const.Amend. 14 ; 42 U.S.C.A. §
1985(3).
**U.S. v. Santiago-Mendez, 2009 WL 1767666 West KeySummary[1] D.C.P.R.,2009Sufficient

evidence supported police officer's conviction for conspiracy to violate civil rights of
innocent citizens via violation of due process by the fabrication of a narcotics case. Police
officer participated in the fabrication of cases against innocent individuals. U.S.C.A.
Const.Amend 5 , 14F
**Roy v. Board of County Com'rs, 607 F.Supp.2d 1297,

N.D.Fla.,2009
Intentional discrimination, for purposes of a claim under § 1981, § 1982, or § 1985, may be
proven through (1) direct evidence, (2) circumstantial evidence, or (3) statistical proof. 42
U.S.C.A. §§ 1981 , 1982 , 1985 .
Roy v. Board of County Com'rs, 607 F.Supp.2d 1297, 1305, (N.D.Fla., Mar 31, 2009)
[1][2][3] To prevail on a claim under § 1981, § 1982, or § 1985, a plaintiff must prove
intentional discrimination on the basis of race. See Gen. Bldg. Contractors Ass'n v.
Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) (§ 1981);
Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1543 (11th Cir.1994) (§ 1982); Morris v.
Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996) (§§ 1981 and 1982); Griffin v.
Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (§ 1985).
Because intentional discrimination is required, a mere “showing of disparate impact
through a neutral practice is insufficient”; rather, the plaintiff must show “purposeful
discrimination.” Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir.1999). To
establish purposeful discrimination under § 1981 and § 1982 a plaintiff must show that,
under similar circumstances, the defendant treated a white individual differently than
it treated him. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 404 (7th Cir.2007),
aff'd on other grounds, ––– U.S. ––––, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (§ 1981);
Burke–Fowler v. Orange County, Fla., 447 F.3d 1319, 1324–26 (11th Cir.2006) (§ 1981);
Lawrence v. Courtyards at Deerwood Ass'n, Inc., 318 F.Supp.2d 1133, 1148 (S.D.Fla.2004)
(§ 1982). Intentional discrimination may be proven through **(1) direct evidence, **(2)
circumstantial evidence, or **(3) statistical proof. Rioux v. City of Atlanta, 520 F.3d
1269, 1274 (11th Cir.2008).
[4] The court has thoroughly reviewed the record in this case for any evidence of
purposeful racial discrimination on the part of any defendant in this case. There is
none. In fact, the record is crystal clear *1306 that as of July 2005, when the Roys'
plat application was approved, nothing the County or the individual defendants had done
interfered with, hampered, impeded, or delayed the Roys' ability to develop and market
their property to whomever they wished. Furthermore, subsequent to July 2005 the only
thing the Roys were prevented from constructing was the front privacy wall, a
prohibition which did not implicate a civil right, much less the violation of a civil
right. Moreover, there is nothing in the record to suggest that issuance of the May 11,
2005, stop-work order and removal of the plat application from the May 2005 BOA agenda
was racially motivated. The Roys have not shown that, under circumstances similar to
those alleged in this case, the County treated a white developer differently than it
treated them, i.e., the Roys have come forward with nothing that shows a white developer
who built in the scenic corridor setback zone received more favorable treatment by the
County than did the Roys. Here, there is absolutely no credible comparator evidence.FN21
FN21. To satisfy their burden of introducing a comparator, the Roys might have produced
evidence of a white developer who sought and received a variance of the type denied to
them, evidence of a white developer who was permitted to build in the scenic corridor
setback zone despite arguable code violations, or other plausible evidence of disparate
treatment, but they did not. In fact, they have identified no other property owner or
developer for comparison at all.
Even if the plaintiffs were not required to come forward with evidence of a white
comparator on their § 1981 and § 1982 claims, they have failed to rebut the defendants'
articulated non-discriminatory reason for issuing the stop-work orders and removing
their plat from the May 24, 2005, meeting agenda. FN22 More specifically, the Roys'
construction of the front privacy wall violated the specific setback and vegetation
protection requirements of the Land Development Code. Plaintiffs' fanciful arguments
notwithstanding, the front privacy wall construction unquestionably violated these
requirements. FN23 Nonetheless, even if Webb, Goldberg, and the County were incorrect in
their determination that the wall violated the buffer and vegetation requirements their
error does not equate to intentional discrimination. Cf. E & T Realty v. Strickland, 830
F.2d 1107, 1114 (11th Cir.1987) (“[m]ere error or mistake” or “[e]ven arbitrary
administration” of a *1307 statute does not amount to intentional discrimination). There
is simply not one shred of evidence of pretext on the record before the court. Indeed,
the Roys have come forward with absolutely no credible direct or circumstantial evidence,
or statistical proof, of any intentional discrimination whatsoever. Rioux, 520 F.3d at
1274. The Roys' claims pursuant to § 1981 and § 1982 therefore are completely without
merit.
FN22. To show intentional discrimination through circumstantial evidence, the Roys may
use the familiar burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1272–73 (11th Cir.2000) (per curiam ).
Under this framework, a plaintiff must first present sufficient evidence to establish a
prima facie case of intentional discrimination. McDonnell Douglas Corp., 411 U.S. at 802,
93 S.Ct. at 1824. If a prima facie case is established, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. If
the defendant does so, the burden shifts back to the plaintiff to show that the reason
was merely pretextual. Id., 411 U.S. at 804, 93 S.Ct. 1817.
FN23. According to the Roys, there are multiple “prima facie cases” under which
intentional discrimination may be established. Some of the Roys' theories are not
applicable—for example, disparate impact does not prove an intentional discrimination
claim under §§ 1981, 1982, or 1985—and others are puzzling to the court, such as the
Roys' distinction between “denial of benefit” and “imposition of penalty” outcomes or
their complaint that defendants have proven no “violation of rule.”
Additionally, the Roys argue at length about procedural irregularities in the County's
processes. In fact the court initially had concerns about some of these irregularities;
however, on review of the record it is obvious that any such procedural irregularities
operated only to the Roys' benefit.
Likewise, there is no proof of a conspiracy in this case. Section 1985 protects only
“the right to be free from being a victim of independent illegality,” but the Roys
cannot show that defendants are liable under § 1981 or § 1982 and there can be no
conspiracy without an underlying illegal act. See Poirier v. Hodges, 445 F.Supp. 838,
845 (M.D.Fla.1978). Moreover, § 1985 requires proof of a conspiracy, or agreement,
between the defendants. Dickerson v. Alachua County Comm'n, 200 F.3d 761, 767 (11th
Cir.2000). The Roys have presented no credible factual evidence of an agreement, only
allegations which are insufficient to rebut the defendants' denials.FN24 Thus the Roys' §
1985 claim also is without merit. FN25
FN24. The Roys' conspiracy allegations are based on the following. When Goldberg was a
defendant in this case he submitted an affidavit in which he denied representing “any
other party” than Webb. The Roys insist this contradicts a statement contained in a
truncated, 10–second video clip purportedly showing Goldberg at the September 22, 2005,
BOA meeting. In the video, an unidentifiable man is filmed from behind saying, “My name
is Ken Goldberg, I represent several homeowners in Tranquility Shores and Gulf Vista,
which are the neighboring subdivisions to this particular project—.” The Roys insists
Goldberg must have been referring to Nelson and Vogel because they live in Gulf Vista;
thus, at oral argument, Roy's counsel claimed that Goldberg must have been “lying”
either in the affidavit or at the BOA meeting. Second, Roy asserts there is evidence of
a conspiracy because Goldberg and Nelson both attended this meeting, where they sat
together, and they also attended the February 2, 2006, final meeting at the County's
offices.
The court cannot consider the video clip purportedly depicting Goldberg; it is
inadmissible because there is no testimony in the record to authenticate it and it is
not self-authenticating. Fed.R.Evid. 901, 902. Even if the evidence were admissible,
however, the court finds it is utterly insufficient to give rise to an inference that
Goldberg lied, thus casting doubt on his credibility. Goldberg's “several homeowners”
could have been any number of people other than Nelson and Vogel. Moreover, in his
affidavit Goldberg avers that in connection with this matter he represented no party
other than Webb. There is simply no contradiction, as the Roys claim, between Goldberg's
denial that he represented any other party in this lawsuit and any statement that he
represents several other homeowners. Additionally, there is nothing nefarious in Nelson
and Goldberg's appearance at the BOA meeting; Roy himself sent the notice of the meeting
to Nelson and Webb, Goldberg's client, because they were nearby landowners affected by
Roy's variance petition.
**Vodak v. City of Chicago, 624 F.Supp.2d 933

N.D.Ill.E.Div.,2009
Evidence was insufficient to support protestors' claim that police officers conspired to
arrest them during mass demonstration in violation of the First Amendment rights;
evidence that officers discussed making arrests did not support finding that there was a
meeting of the minds between officers to violate protestors' rights. U.S.C.A.
Const.Amend. 1 .

**Venegas v. Wagner, 831 F.2d 1514
C.A.9.Cal.,1987
Evidence supported jury's conclusions that police officers procured false testimony from
witness and denied plaintiff a fair trial in a murder prosecution and that officers
violated civil rights statutes. 42 U.S.C.A. §§ 1983 , 1985(3) .

**Gilbrook v. City of Westminster, 177 F.3d 839
C.A.9.Cal.,1999
Jury's finding that mayor and city council members conspired to retaliate against
firefighters due to firefighters' protected First Amendment activities was supported by
evidence that mayor and council members attended closed-door city council meetings in
which fire chief discussed what disciplinary actions should be taken against
firefighters and that mayor and council members each made hostile statements about
firefighters, including threats of political retribution and accusations of criminal
conduct. U.S.C.A. Const.Amend. 1 .
**Gibbons v. Lambert, 358 F.Supp.2d 1048

D.Utah.C.Div.,2005
Lack of evidence that any police or judicial officers, involved in search of home for
presence of drug activities, knew that owner was prominent banker, or that they had
taken concerted actions, precluded § 1983 claim that officers conspired to “bring down”
homeowner through filing of false charges that homeowner possessed controlled substances
and dealt in harmful material to minor. 42 U.S.C.A. § 1983 .
**Burrell v. Anderson, 353 F.Supp.2d 55

D.Me.,2005
Absent any evidentiary support for allegations that employees of police department and
employees of district attorney's office falsified evidence in assault case involving
child, or suppressed evidence in order to avoid finding probable cause to arrest child's
mother and her boyfriend, employees did not engage in any conspiracy to discriminate
against child's father, on the basis of his gender, although they prosecuted him for
alleged domestic violence against mother. U.S.C.A. Const.Amend. 4 ; 42 U.S.C.A. § 1985 .
**Heartland Academy Community Church v. Waddle, 317 F.Supp.2d 984

E.D.Mo.N.Div.,2004
A conspiracy existed between two juvenile officers to deprive students at a private
school of their Fourth Amendment rights, by illegally seizing them and removing them
from the school; there were various meetings, correspondences, and discussions between
the officers in which they discussed removal of the children and methods to discourage
parents or guardians from returning their children to the school. U.S.C.A. Const.Amend.
4 .
**Drug Mart Pharmacy Corp. v. American Home Products Corp., 288 F.Supp.2d 325
E.D.N.Y.,2003
A defendant must take an affirmative action to disavow or defeat the purpose of the
conspiracy, to make sure that a withdrawal did occur and is not simply being invented ex
post; until affirmative evidence of withdrawal has been produced, a defendant's
participation in the conspiracy is presumed to continue until the last overt act by any
of the conspirators.
**Williams v. County of Santa Barbara, 272 F.Supp.2d 995

C.D.Cal.,2003
Each alleged participant in civil conspiracy need not know the exact details of the plan,
but must at least share the common objective of the conspiracy; plaintiffs need not
provide direct evidence of the agreement between the conspirators, but must show
circumstantial evidence sufficient for a jury to infer from the circumstances that the
alleged conspirators reached an understanding to achieve the conspiracy's objectives.
Young v. Biggers, 938 F.2d 565 (5th Cir.(Miss.), Jul 26, 1991)
Plaintiff brought federal civil rights action alleging that numerous defendants
conspired to frame him for armed robbery. The United States District Court for the
Northern District of Mississippi, L.T. Senter, Jr., Chief Judge, granted summary
judgment in favor of defendants. Plaintiff appealed. On rehearing, the Court of Appeals,
King, Circuit Judge, superseded earlier opinion at 917 F.2d 873, and held that: (1)
prosecuting assistant district attorney was absolutely immune from liability for his
actions in initiating prosecution and could not be held liable for alleged acts outside
scope of prosecutorial duties where such allegations were wholly unsupported and
conclusory; (2) prosecution witness in armed robbery trial and juror were entitled to
absolute immunity; (3) conclusory allegations against attorneys and banker were
insufficient to plead requisite operative facts to tie them to conspiracy with state
actors; and **(4) allegations against police chief and detective stated claim.
Affirmed in part; reversed in part and remanded.

[9] Conspiracy 91 18
91 Conspiracy
91I Civil Liability
91I(B) Actions
91k18 k. Pleading. Most Cited Cases
Federal civil rights plaintiff's conclusory allegations that two attorneys and banker
conspired to rig jury and deprive him of fair trial as part of conspiracy, with state
actors, to convict plaintiff of armed robbery were insufficient to show conspiracy where
operative facts were not pled. 42 U.S.C.A. § 1983.
[10] Civil Rights 78 1398
78 Civil Rights
78III Federal Remedies in General
78k1392 Pleading
78k1398 k. Defenses; immunity and good faith. Most Cited Cases
(Formerly 78k238)
**Plaintiff stated federal civil rights claim against police chief and detective for
their role in alleged conspiracy to frame him for armed robbery where his complaint
alleged specific, operative facts which, if proved, would not permit officers to avoid
liability under their defense of qualified immunity; plaintiff alleged that officers
**harbored animosity against him, **harassed him, and **persuaded his two alleged
accomplices in armed robbery to implicate him, and **that police chief also persuaded
chief prosecution witness to falsely identify him. 42 U.S.C.A. § 1983.
73 ALR Fed 78
When is eviction of tenant by private landlord conducted "under color of state law" for
purposes of 42 U.S.C.A. § 1983
§ 9[a] Private party's conspiracy or joint action with state official as placing
eviction under color of state law—Held under color of state law
[Cumulative Supplement]
The allegations and evidence in the following cases demonstrated or supported a
finding that a private landlord had participated in joint action with a state official
in attempting to obtain a tenant's eviction, and that the eviction was therefore
conducted under color of state law for purposes of 42 U.S.C.A. § 1983
Reasoning that a set of facts might be proven which would demonstrate that a
landlord and a process server had conspired, under color of state law, to evict a tenant
without due process, the court in Carrasco v Klein (1974, ED NY) 381 F Supp 782, refused
to dismiss the tenant's action under 42 U.S.C.A. § 1983 The court found it well
established that private persons come within the ambit of § 1983 when they are willful
participants in joint activity with the state or its agents. However, the court observed
that in this case, the alleged conspiracy was not between a private person and a state
official, such as a policeman, but rather between one private person and another, where
only the process server was initially brought within the scope of the § 1983 state
action requirement under the public function theory. The court acknowledged that a
problem of the remoteness of the state's participation was present under these facts,
but found no logical reason to distinguish between a conspiracy with an official state
actor, such as a policeman, and a conspiracy with a private party clothed with state
authority, such as the process server, when the latter is sufficiently public. The court,
therefore, declined to dismiss the case pending a fuller development of the record.
Where a landlord sought and received the intervention of town police to effectuate
the allegedly illegal eviction of tenants from a rented trailer, the court in Howerton v
Gabica (1983, CA9 Idaho) 708 F2d 380, 73 ALR Fed 70, ruled that the eviction had taken
place under color of state law for purposes of 42 U.S.C.A. § 1983 The landlord initially
told the tenants to move from the trailer after their rent payment was late, and the
tenant threatened to harm the landlord if she returned. An eviction notice was
subsequently served with a police officer present. When the tenants continued to remain
in the trailer, the landlord returned with a police officer, who was in uniform and on
duty, to warn the tenants that utilities would be cut off if they stayed. This police
officer later returned alone, told the tenants that proper eviction procedures were
being used, and advised them to leave. Subsequently, the officer accompanied the
landlord when the utilities were disconnected, but the tenants continued to spend some
nights in the trailer. On one occasion, three police officers visited the trailer in
response to the landlord's call regarding a family disturbance, and one officer asked if
the tenants were still looking for a new rental. The District Court dismissed the
tenants' § 1983 complaint, finding that the police officers had taken no affirmative
action in the eviction, but merely stood by to keep the peace. The tenants argued on
appeal that they were denied Fourteenth Amendment rights when the landlords, with police
aid, used self-help to evict them without proper notice and a prior judicial hearing.
Recounting the various tests employed by the Supreme Court to determine the existence of
state action, and finding a similarity between the present case and cases considering
police involvement in the repossession of personal property, the court stated that at
some point, as police involvement becomes increasingly important, repossession by
private individuals assumes the character of state action. The court observed that the
eviction had involved more than one incident of police consent to "stand by" in case of
trouble. Rather, the police participation had given the tenants the impression that the
landlord acted legally in cutting off the utilities. Furthermore, the court stated that
the police officer had actively intervened in recommending that the tenants leave the
trailer. The court found the record replete with evidence that the landlords
deliberately cloaked themselves with the authority of the state in effecting the
repossession. While a single request for police peace-keeping assistance might not make
a landlord a "joint actor" with the state for § 1983 purposes, the court concluded, the
landlords acted under color of state law where they repeatedly requested the aid of the
police to evict the tenants, and where the police intervened at every step.
CUMULATIVE SUPPLEMENT
Cases:
Certain wrongs affect more than a single right and, accordingly, can implicate more
than one of the Federal Constitution's commands; where such multiple violations are
alleged, the courts will not identify as a preliminary matter the claim's "dominant"
character, but will examine each constitutional provision in turn; thus, in an action
under 42 U.S.C.A. § 1983 by the owner of a trailer home—which action alleges that the
Constitution's Fourth Amendment was violated when the home was forcibly removed from a
private mobile home park by employees of the park owner, while county sheriff's deputies,
aware that the park owner did not have a legal eviction order, watched the removal,
informed the trailer home owner that they were there to see that he did not interfere,
and refused to accept his complaint for criminal trespass—the owner's Fourth Amendment
claim is not properly barred on the theory that the owner's claim is more akin to a
challenge against deprivation of property without due process. Soldal v. Cook County,
Ill., 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992).
In § 1983 action by tenants against their former landlord and county sheriff for
allegedly evicting plaintiffs from their home without lawful process, forcing them to
live on street and suffer loss of their children, sheriff was potentially liable in both
official and personal capacity, and landlord was liable for acting in concert with
sheriff under color of state law. Quinones v Durkis (1986, SD Fla) 638 F Supp 856.
[Top of Section]
[END OF SUPPLEMENT]
73 ALR FED 78; When is eviction of tenant by private landlord conducted "under color of
state law" for purposes of 42 U.S.C.A. § 1983
§ 9[a] Private party's conspiracy or joint action with state official as placing
eviction under color of state law—Held under color of state law
The allegations and evidence in the following cases demonstrated or supported a finding
that a private landlord had participated in joint action with a state official in
attempting to obtain a tenant's eviction, and that the eviction was therefore conducted
under color of state law for purposes of 42 U.S.C.A. § 1983
Reasoning that a set of facts might be proven which would demonstrate that a landlord
and a process server had conspired, under color of state law, to evict a tenant without
due process, the court in Carrasco v Klein (1974, ED NY) 381 F Supp 782, refused to
dismiss the tenant's action under 42 U.S.C.A. § 1983 The court found it well established
that private persons come within the ambit of § 1983 when they are willful participants
in joint activity with the state or its agents. However, the court observed that in this
case, the alleged conspiracy was not between a private person and a state official, such
as a policeman, but rather between one private person and another, where only the
process server was initially brought within the scope of the § 1983 state action
requirement under the public function theory. The court acknowledged that a problem of
the remoteness of the state's participation was present under these facts, but found no
logical reason to distinguish between a conspiracy with an official state actor, such as
a policeman, and a conspiracy with a private party clothed with state authority, such as
the process server, when the latter is sufficiently public. The court, therefore,
declined to dismiss the case pending a fuller development of the record.
**Where a landlord sought and received the intervention of town police to effectuate the
allegedly illegal eviction of tenants from a rented trailer, the court in Howerton v
Gabica (1983, CA9 Idaho) 708 F2d 380, 73 ALR Fed 70, ruled that the eviction had taken
place under color of state law for purposes of 42 U.S.C.A. § 1983 The landlord initially
told the tenants to move from the trailer after their rent payment was late, and the
tenant threatened to harm the landlord if she returned. An eviction notice was
subsequently served with a police officer present. When the tenants continued to remain
in the trailer, the landlord returned with a police officer, who was in uniform and on
duty, to warn the tenants that utilities would be cut off if they stayed. This police
officer later returned alone, told the tenants that proper eviction procedures were
being used, and advised them to leave. Subsequently, the officer accompanied the
landlord when the utilities were disconnected, but the tenants continued to spend some
nights in the trailer. On one occasion, three police officers visited the trailer in
response to the landlord's call regarding a family disturbance, and one officer asked if
the tenants were still looking for a new rental. The District Court dismissed the
tenants' § 1983 complaint, finding that the police officers had taken no affirmative
action in the eviction, but merely stood by to keep the peace. The tenants argued on
appeal that they were denied Fourteenth Amendment rights when the landlords, with police
aid, used self-help to evict them without proper notice and a prior judicial hearing.
Recounting the various tests employed by the Supreme Court to determine the existence of
state action, and finding a similarity between the present case and cases considering
police involvement in the repossession of personal property, the court stated that at
some point, as police involvement becomes increasingly important, repossession by
private individuals assumes the character of state action. The court observed that the
eviction had involved more than one incident of police consent to "stand by" in case of
trouble. Rather, the police participation had given the tenants the impression that the
landlord acted legally in cutting off the utilities. Furthermore, the court stated that
the police officer had actively intervened in recommending that the tenants leave the
trailer. The court found the record replete with evidence that the landlords
deliberately cloaked themselves with the authority of the state in effecting the
repossession. While a single request for police peace-keeping assistance might not make
a landlord a "joint actor" with the state for § 1983 purposes, the court concluded, the
landlords acted under color of state law where they repeatedly requested the aid of the
police to evict the tenants, and where the police intervened at every step.
Cases:
Certain wrongs affect more than a single right and, accordingly, can implicate more than
one of the Federal Constitution's commands; where such multiple violations are alleged,
the courts will not identify as a preliminary matter the claim's "dominant" character,
but will examine each constitutional provision in turn; thus, in an action under 42
U.S.C.A. § 1983 by the owner of a trailer home—which action alleges that the
Constitution's Fourth Amendment was violated when the home was forcibly removed from a
private mobile home park by employees of the park owner, while county sheriff's deputies,
aware that the park owner did not have a legal eviction order, watched the removal,
informed the trailer home owner that they were there to see that he did not interfere,
and refused to accept his complaint for criminal trespass—the owner's Fourth Amendment
claim is not properly barred on the theory that the owner's claim is more akin to a
challenge against deprivation of property without due process. Soldal v. Cook County,
Ill., 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992).
In § 1983 action by tenants against their former landlord and county sheriff for
allegedly evicting plaintiffs from their home without lawful process, forcing them to
live on street and suffer loss of their children, sheriff was potentially liable in both
official and personal capacity, and landlord was liable for acting in concert with
sheriff under color of state law. Quinones v Durkis (1986, SD Fla) 638 F Supp 856.
Real estate broker’s salesperson’s evidence of participation in conspiracy, actively

participated in the fraud, by marketing and selling a property that the purported seller
did not own, by selling a property that the purported seller did not own,
39 amjur pof3d 309 real estate brokers misrepresentation or nondisclosure as to

condition or value of realty.
Evid of conspiracy judge hearing a case despite having stock in bank,
127 Wright & Miller: Federal Prac. & Proc. s 1233, Statement of Particular
Matters-Conspiracy (2014) HN: 4 (F.2d)
** 12 Construction and Application of "Intracorporate Conspiracy Doctrine" as

Applied to Corporation and Its Employees--State Cases, 2 A.L.R.6th 387 (2005)
§ 7. View that intracorporate conspiracy doctrine does not apply to corporate

employees acting outside scope of employment
While the intracorporate conspiracy doctrine by implication does not apply to corporate
employees acting outside the scope of their employment, the courts in the following
cases explicitly stated or recognized this principle.
Cal.
Black v. Bank of America, 30 Cal. App. 4th 1, 35 Cal. Rptr. 2d 725 (1st Dist. 1994)
§ 8. View that intracorporate conspiracy doctrine does not apply to corporate

employees with independent personal stake in achieving object of conspiracy
While the intracorporate conspiracy doctrine by implication does not apply to corporate
employees with a personal stake, independent of that of the corporation, in achieving
the object of the conspiracy, the courts in the following cases explicitly stated or
recognized this principle.
Cal.
Black v. Bank of America, 30 Cal. App. 4th 1, 35 Cal. Rptr. 2d 725 (1st Dist. 1994)
§ 9. View that corporate officers and directors can conspire through direct
participation
The courts in the following cases held or recognized that, unlike subordinate employees,
corporate directors and officers who directly order, authorize or participate in the
corporation's tortious conduct may be held liable as conspirators for violation of their
own duties toward persons injured by the corporate tort. Cal.
Doctors' Co. v. Superior Court, 49 Cal. 3d 39, 260 Cal. Rptr. 183, 775 P.2d 508 (1989)
Wyatt v. Union Mortgage Co., 24 Cal. 3d 773, 157 Cal. Rptr. 392, 598 P.2d 45 (1979)
Yoon v. Stern, 2003 WL 22792325 (Cal. App. 2d Dist. 2003) , unpublished/noncitable

PMC, Inc. v. Kadisha, 78 Cal. App. 4th 1368, 93 Cal. Rptr. 2d 663 (2d Dist. 2000) , as
modified on denial of reh'g, (Apr. 7, 2000)
Golden v. Anderson, 256 Cal. App. 2d 714, 64 Cal. Rptr. 404 (2d Dist. 1967)
Price v. Hibbs, 225 Cal. App. 2d 209, 37 Cal. Rptr. 270 (5th Dist. 1964)
The court in Doctors' Co. v. Superior Court, 49 Cal. 3d 39, 260 Cal. Rptr. 183, 775 P.2d
508 (1989), held that the liability of corporate directors and officers who directly
order, authorize or participate in the corporation's tortious conduct is outside the
intracorporate conspiracy doctrine, and such persons may be held liable, as conspirators
or otherwise, for violation of their own duties toward persons injured by the corporate
tort. The intracorporate conspiracy doctrine, the court explained, precludes only claims
against the principal's subordinate employees and against agents retained by the
principal to act as independent contractors for conspiring to violate a duty peculiar to
the principal.
III. APPLICATION OF INTRACORPORATE CONSPIRACY DOCTRINE TO CORPORATION AND ITS EMPLOYEES

UNDER PARTICULAR FACTS
§ 10. Where there is no claim of employees' acting outside scope of employment or for
personal interest—Conspiracy claim supportable
**Applying the intracorporate conspiracy doctrine in an action against a corporation and
one or more of its employees, or against multiple employees of the same corporation, in
which there was no claim that the corporate employees were acting outside the scope of
their employment, or in furtherance of their own personal interests, the courts in the
following cases held that, under the circumstances, a finding of a conspiracy by the
defendants was supportable where two or more separate corporations were allegedly
involved in the conspiracy.
§ 11. Where there is no claim of employees' acting outside scope of employment or for
personal interest—Conspiracy claim not established
Applying the intracorporate conspiracy doctrine in an action against a corporation and
one or more of its employees, or against multiple employees of the same corporation, in
which there was no claim that the corporate employees were acting outside the scope of
their employment, or in furtherance of their own personal interests, the courts in the
following cases held that, under the circumstances, a finding of a conspiracy by the
defendants was not supportable.
See Wise v. Southern Pac. Co., 223 Cal. App. 2d 50, 35 Cal. Rptr. 652 (1st Dist. 1963)
(disapproved of on other grounds by, Applied Equipment Corp. v. Litton Saudi Arabia Ltd.,
7 Cal. 4th 503, 28 Cal. Rptr. 2d 475, 869 P.2d 454 (1994)), an action by a terminated
railroad employee against the railroad, the railroad workers' union, and employees of
the railroad and the union, in which the court held that, while a conspiracy between the
railroad and the union was supportable, the employees could not take part in any
conspiracy. The court noted that there was no allegation that the employees were acting
in any capacity other than within the course and scope of their employment. Nor was
there any allegation, the court continued, expressly stating or from which it could
reasonably be inferred that the employees were acting for their individual advantage.
Comment
The disapproval of the Wise case by Applied Equipment was not on the matter of
intracorporate conspiracy, but rather on the question whether a party to a contract can
be liable for the tort of interference with a contractual relationship.
See also the following cases, in which there was no claim that the defendant corporate
employees were acting outside the scope of their employment, or in furtherance of their
own personal interests, and in which the courts held that, under the circumstances, the
intracorporate conspiracy doctrine precluded the finding of a conspiracy, where—
—an insurance adjusting firm, its employee, a law firm, and its employee allegedly
conspired with insurance companies to deprive the plaintiff of benefits to which he was
entitled under his fire insurance policies. Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566,
108 Cal. Rptr. 480, 510 P.2d 1032 (1973) .
—the owners of a group of businesses sued a bank and certain of its employees for civil
conspiracy, fraud, and related claims when the bank failed to renew loans or grant new
loans to the companies. Black v. Bank of America, 30 Cal. App. 4th 1, 35 Cal. Rptr. 2d
725 (1st Dist. 1994) .
—a laid-off employee claimed that his former employer, and certain of its officers,
conspired to defraud him regarding his layoff. Kerr v. Rose, 216 Cal. App. 3d 1551, 265
Cal. Rptr. 597, 5 I.E.R. Cas. (BNA) 32, 118 Lab. Cas. (CCH) ¶ 56546 (6th Dist. 1990) .
—a bank and its employees allegedly conspired to require the plaintiff to return funds
he had received when he cashed two checks that were subsequently dishonored. Lawrence v.
Bank of America, 163 Cal. App. 3d 431, 209 Cal. Rptr. 541, 40 U.C.C. Rep. Serv. 201 (1st
Dist. 1985) .
—a university and its faculty members allegedly conspired to deprive the plaintiff, a
student at the university, of her education when the university's faculty went on strike
to protest the Vietnam War. Zumbrun v. University of Southern California, 25 Cal. App.
3d 1, 101 Cal. Rptr. 499, 51 A.L.R.3d 991 (2d Dist. 1972) .
§ 12. Where there is claim of employees' acting outside scope of employment or for
personal interest—Conspiracy claim supportable
Applying the intracorporate conspiracy doctrine in an action against a corporation and
one or more of its employees, or against multiple employees of the same corporation, the
courts in the following cases held supportable, under the circumstances, the plaintiff's
claim that the corporate employees were acting outside the scope of their employment, or
in furtherance of their own personal interests, so as to permit a finding of a
conspiracy by the defendants.
Cases:
State correctional officers were not acting within scope of their employment when they
allegedly forced inmate to fight fellow inmate, and threatened to beat inmate with baton
and engage in joint cover-up if inmate did not finish fight with fellow inmate, and thus
intracorporate conspiracy doctrine did not preclude inmate's § 1983 conspiracy claim
against officers. 42 U.S.C.A. § 1983. Randle v. Alexander, 960 F. Supp. 2d 457 (S.D. N.Y.
2013).
Intra-enterprise doctrine did not bar former city firefighter's claim that her former
co-workers and supervisors conspired to subject her to harassment because of her gender
and her exercise of her First Amendment free speech rights, where firefighter alleged
that she was subjected to verbal abuse, denied opportunity to respond to emergency calls,
and terminated, and that alleged sexual harassment by deputy fire chief and taunting
from co-worker fell outside scope of their employment. U.S.C.A. Const.Amends. 1, 14; 42
U.S.C.A. § 1985(3). Wyatt v. City of Barre, 885 F. Supp. 2d 682 (D. Vt. 2012).
Mortgagors' allegations that two corporate employees used the corporate entity as their
alter ego and as a conduit through which they defrauded the mortgagors, who had been
facing mortgage foreclosure, were sufficient to meet the requirement, for pleading a
claim of civil conspiracy between a corporation and its employees, of alleging that the
employees were acting outside the scope of their authority or other than in the normal
course of their corporate duties. Eicher v. Mid America Financial Inv. Corp., 275 Neb.
462, 748 N.W.2d 1 (2008).
**Developer's civil conspiracy claim against county council members was not precluded by
intracorporate conspiracy doctrine that prevents a conspiracy between persons acting within
the scope of their employment, where developer asserted civil conspiracy claim against
council members in their individual capacities, rather than their official capacities as
council members. Cricket Cove Ventures, LLC v. Gilland, 701 S.E.2d 39 (S.C. Ct. App. 2010).
Black v. Bank of America, 30 Cal.App.4th 1, 6, 35 Cal.Rptr.2d 725 (Cal.App. 1 Dist. Nov 15,
1994)
A corporation is, of course, a legal fiction that cannot act at all except through its
employees and agents. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 25, 276 Cal.Rptr. 303,
801 P.2d 1054.) When a corporate employee acts in the course of his or her employment,
on behalf of the corporation, there is no entity apart from the employee with whom the
employee can conspire. FN3 “ ‘ “[I]t is basic in the law of conspiracy that you must have
two persons or entities to have a conspiracy. A corporation cannot conspire with itself
any more than a private individual can, and it is the general rule that the acts of the
agent are the acts of the corporation....” ’ ” (Kerr v. Rose (1990) 216 Cal.App.3d 1551,
1564, 265 Cal.Rptr. 597, quoting Shasta Douglas Oil Co. v. Work (1963) 212 Cal.App.2d
618, 624, 28 Cal.Rptr. 190; **729Zumbrun v. University of Southern California (1972) 25
Cal.App.3d 1, 12–13, 101 Cal.Rptr. 499.) To hold that a subordinate employee of a
corporation can be liable for conspiring with the corporate principal would destroy what
has heretofore been the settled rule that a corporation cannot conspire with itself.FN4
In the absence of a clear statement from the Supreme Court that this change in the law
is intended, we will not so impair the agent's immunity rule.
FN3. **Appellants cannot rely upon the exception to the rule of agent's immunity
allowing corporate employees to be held liable for conspiracy with their principal when
they act for their own individual advantage and not solely on behalf of the corporation,
or act beyond the scope of their authority. (See, e.g., Doctors' Co. v. Superior Court,
supra, 49 Cal.3d at p. 47, 260 Cal.Rptr. 183, 775 P.2d 508; Wise v. Southern Pacific Co.,
supra, 223 Cal.App.2d at p. 72, 35 Cal.Rptr. 652; Pink Supply Corp. v. Hiebert, Inc.
(8th Cir.1986) 788 F.2d 1313, 1317; Buschi v. Kirven (4th Cir.1985) 775 F.2d 1240, 1252.)
In the verified first amended cross-complaint appellants filed in their previous case
(case no. 857395) they alleged the individual defendants committed the assertedly
wrongful acts “in the course and scope of their respective employment and agency for the
Bank.” They cannot now, in a desperate attempt to state a claim for conspiracy, directly
contradict these allegations and assert that the same officers were acting beyond the
scope of their authority. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857,
877–878, 6 Cal.Rptr.2d 151 [plaintiff may not avoid demurrer by pleading facts that
contradict facts pleaded in earlier actions].)
FN4. The individual defendants in this case were Bank employees who carried out but did
not create Bank policies. Liability therefore cannot attach to these defendants under
the rule that directors and officers of a corporation may become liable for the
corporation's tortious conduct if they “directly ordered, authorized or participated in
the tortious conduct.” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785, 157
Cal.Rptr. 392, 598 P.2d 45.)
Wise v. Southern Pac. Co., 223 Cal.App.2d 50, 72, 35 Cal.Rptr. 652, 49 Lab.Cas. P
51,051 (Cal.App. 1 Dist., Dec 06, 1963)
We hold that a cause of action for conspiracy will lie against the defendant Company.
2. Corporate agents as conspirators.

[24][25] Defendants assert that the defendants Hitke and Smith cannot be joined as
conspirators. We think this point is well taken. Agents and employees of a corporation
cannot conspire with their corporate principal or employer where they act in their
official capacities on behalf of the corporation and not as individuals for their
individual advantage. ( Bliss v. Southern Pacific Company (1958) 212 Or. 634, 321 P.2d
324, 328–329; May v. Santa Fe Trail Transportation Co., supra, 370 P.2d 390, 395.) This
rule derives from the principle that ordinarily corporate agents and employees acting
for and on behalf of the corporation cannot be held liable for inducing a breach of the
corporation's contract*73 since being in a confidential relationship to the corporation
their action in this respect is privileged. The inducement of the breach to be
actionable must be both wrongful and unprivileged. ( Imperial Ice Co. v. rossier (1941)
18 Cal.2d 33, 38, 112 P.2d 631; Lawless v. Brotherhood of Painters (1956) 143 Cal.App.2d
474, 478, 300 P.2d 159; May v. Santa Fe Trail Transportation Co., supra; 30 Am.Jur. 82;
26 A.L.R.2d 1270–1271.)
[26] In the instant case, it is alleged in the second count that at all times mentioned
defendants Hitke and Smith were ‘employees, agents and representatives' of their
respective corporations and ‘were acting within the course and scope of their said
employment * * *.’ **There is no allegation that they were acting in any other capacity.
**There is no allegation expressly stating or from which it can be reasonably inferred
that they were acting for their individual advantage. The allegation that the acts of
these defendants were motivated by malice and were intentional would not impose
liability. (Imperial Ice Co. v. Rossier, supra.)
We hold that the second count fails to set forth facts sufficient to constitute a cause
of action against defendants Hitke and Smith.
**666 3. Causal connection between conspiracy and discharge.

[27] Defendants' contention that plaintiff has failed to allege a causal connection
between the conspiracy and his discharge must succumb to a fair reading of the
allegations of the second count already set forth by us. They allege a conspiracy for
the purpose of securing plaintiff's discharge, the performance of certain acts pursuant
thereto and finally that the defendant Company ‘in furtherance of said agreement did on
March 2, 1960, without cause, wrongfully discharge plaintiff * * *.’ This is a plain and
clear statement that the discharge resulted from the conspiracy.
And the court stated at p. 74,
5. Sufficiency of allegations of second count.

Defendants' contention that the second count by realleging all but two paragraphs of
the first count is ‘subject to all of the insufficiencies' of the first count must fail
in view of the conclusions which we have reached as to the sufficiency of the first
count.
[29][30] We therefore turn to the question of the sufficiency of the conspiracy

allegations themselves. To state such a cause of action, as already pointed out, the
complaint must allege (1) the formation and operation of the conspiracy, (2) the
wrongful act or acts done pursuant thereto and (3) the resulting damage. We have
heretofore set forth and need not here repeat the allegations of the second count to the
effect that prior to January 21, 1960, the defendant Company conspired with its
codefendants to bring false charges against plaintiff and to deprive plaintiff of a fair
hearing on such charges for the purpose of securing his discharge in violation of the
union agreement. This is a sufficient statement of the first element of the cause of
action. (See California Auto Court Ass'n v. Cohn, supra, 98 Cal.App.2d 145, 147, 149,
219 P.2d 511; Greenwood v. Mooradian (1955) 137 Cal.App.2d 532, 537–538, 290 P.2d 955.)
The second count thereafter alleges that the defendant Association (for reasons already
stated we omit reference to defendant Smith and other agents) pursuant to the agreement
induced certain persons to give false statements and to appear and testify falsely about
plaintiff; and that the defendant Company, pursuant to the agreement, made false charges
against plaintiff, knowingly received such false statements and testimony, deprived
plaintiff of a fair hearing and finally discharged him without cause. It is clear that
these are wrongful acts which work an invasion of *75 plaintiff's right to continue in
employment according to the provisions of the collective bargaining agreement. It is
also clear that each participant in such acts is responsible as a joint tort feasor
**667 whether or not it was a direct actor in respect to each of them. (See Mox,
Incorporated v. Woods, supra, 202 Cal. 675, 677–678, 262 P. 302; Greenwood v. Mooradian,
supra.) Thus, there is also a sufficient allegation of the second element of the cause
of action. No question is raised as to the allegation of the third element of damage.
We conclude that the second count states facts sufficient to constitute a cause of
action against defendants Company and Association.
From Collins v. Womancare 878 F.2d 1145
a “prearranged plan, customary procedure, or policy that substituted the judgment of a

private party for that of the police
that there was any prearrangement*1156 between” the citizen and police officer
that state agents failed to use independent judgment or in any way coerced or encouraged
Womancare employees to effect the citizen's arrest
** [Cited 6 times for this legal issue]

Dietrich v. John Ascuaga's Nugget, 548 F.3d 892
C.A.9.Nev.,2008
Neither private business that had obtained special event permit from city to host cook-
off in public area that included sidewalk location where political organization
volunteer was gathering signatures for recall petition and registering voters, nor vice-
president and employee of business, were liable under § 1983 as willful participants in
joint action with the police for the violation of the volunteer's First Amendment right
to free speech that occurred when police officer removed volunteer, under threat of
arrest, from her sidewalk location, since there was no showing that business, vice-
president, or employee did anything more than summon police to the location. U.S.C.A.
Const.Amend. 1 ; 42 U.S.C.A. § 1983 .

Rimac v. Duncan, 319 Fed.Appx. 535
C.A.9.Cal.,2009
Landowner's allegation that neighboring landowner and fire chief agreed or planned to
cut down trees on landowner's property was sufficient to allege joint action between
state and private actors, for purposes of holding neighboring landowner liable under §
1983. 42 U.S.C.A. § 1983 .

Soffer v. City of Costa Mesa, 607 F.Supp. 975
C.D.Cal.,1985
Private towing company, which acted at behest of police officer and pursuant to a
municipal ordinance, acted under color of state law, for purposes of section 1983, in
towing plaintiff's allegedly abandoned vehicle. 42 U.S.C.A. § 1983

Lauter v. Anoufrieva, 642 F.Supp.2d 1060
C.D.Cal.W.Div.,2009
A private individual may be liable under § 1983 if he conspired or entered joint action
with a state actor; such a conspiracy requires the existence of an agreement or a
meeting of minds among the private individual and state agents to violate the
plaintiff's constitutional rights. 42 U.S.C.A. § 1983 .

Vonderplanitz v. City of Los Angeles, 43 Fed.Appx. 60
C.A.9.Cal.,2002
Private citizen who allegedly supplied information upon which police relied to make
arrest could not be held liable to arrestee under § 1983, absent evidence he had acted
in concert with police. 42 U.S.C.A. § 1983 .
Keywords: **Joint action giving rise to § 1983 liability of private entity with regard
to citizen's arrest requires substantial degree of cooperative action between state
officials and private person. 42 U.S.C.A. § 1983.
Liability of private person entity with regard to citizen’s arrest between state public
official police officer and private person entity under 42 u.s.c. 1983
Westnext_search_liab_priv_person_entity_w_regard_to_citizens_arrest_between_state_public
_offical_police_officer_&_priv_person_entity_under_42_usc_1983_ca9_81_results.doc
** 6. Villegas v. Gilroy Garlic Festival Ass’n

United States Court of Appeals, Ninth Circuit. September 03, 2008 541 F.3d 950 2008 WL 4058566 05-15725
CIVIL RIGHTS - Free Speech. Garlic festival association’s expulsion of motorcycle club
members from festival in city park was not state action.
...We have previously considered the circumstances in which a police officer’s involvement in a private
enforcement action constitutes state action such that the private entity is liable in a line of cases
involving police presence at private vehicle repossessions and evictions....
...Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (courts must consider whether there
is a “sufficiently close nexus between the [s]tate and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of the [s]tate itself”); (2) the public or
governmental function test, see id. at 352, 95 S.Ct. 449 (state action is present when a private entity
exercises functions traditionally and exclusively reserved to the state); (3) the state compulsion test,
see Blum v. Yaretsky,...
... Before the 2000 festival, City police officers attended briefings as to the parameters of the dress
code and were instructed to exclude persons wearing “group clothing that could inspire conflict,” as
Gilroy City police officer Brenda Bergman testified....
... As we noted in Harris, “police intervention and aid [in private enforcement actions] does constitute
state action,” and “there may be a deprivation within the meaning of §1983 ․ when [an] officer assists in
effectuating [the private enforcement action] ․ or so intimidates [the plaintiff] as to cause him to
refrain from exercising his legal right[s]․...
** 13. Fraser v. County of Maui

United States District Court, D. Hawai‘i. June 07, 1994 855 F.Supp. 1167 1994 WL 268117 CIV. 92-00635 ACK
Resident of condominium complex sued county, county police officer, resident manager of
condominium complex, and condominium association alleging federal cause of action under §1983
and §1985 and state cause of action for false imprisonment, malicious prosecution,
intentional and negligent infliction of emotional distress...
... In Collins itself, the Ninth Circuit concluded that no state action existed where the impetus for the
arrest came from the private entity and not the police officer, the police officer discouraged the arrest
by warning about potential civil liability for false arrest, the police officer refused to make the arrest
on his own authority after conducting an independent investigation, and the police...
... The Ninth Circuit however recently held in a non-citizen’s arrest case that, for the purposes of
imposing §1983 liability on defendant-private citizens, genuine issues of fact existed regarding state
action where the private citizens filled out the citizen’s complaint that formed a basis of the arrest
upon the advice of police officers...
... In Zimmerman, the Ninth Circuit held that the evidence there created genuine issues of fact regarding
state action because it suggested the private persons making the citizen’s arrest did so upon the advice
of police officers....
... If however a private person, by statutory authority or otherwise, is permitted to make a citizen’s
arrest only when the offense is actually being committed in that person’s presence, cases generally hold
that probable cause is not a defense to a false imprisonment action against the person....
** 17. Sutton v. Providence St. Joseph Medical Center

United States Court of Appeals, Ninth Circuit. September 16, 1999 192 F.3d 826 1999 WL 718466 99-55050
Prospective employee sued hospital, alleging that hospital’s refusal to hire him, after he
failed to provide social security number as required by federal law, violated Title VII,
Religious Freedom Restoration Act (RFRA), First Amendment free speech clause, Privacy Act,
and the Paperwork Reduction Act. The United States District Court for the...
... Typically, the nexus has consisted of participation by the state in an action ostensibly taken by the
private entity, through conspiratorial agreement (Adickes), official cooperation with the private entity
to achieve the private entity’s goal (Lugar), or enforcement and ratification of the private entity’s
chosen action (Moose Lodge)....
...The existence of a conspiracy between the private entity and state officials to pursue a joint and
unconstitutional end distinguishes Adickes from this case; recall, here, that Defendant offered Plaintiff
a position and would have hired him but for the government’s social-security-number requirement....
...Lugar, 457 U.S. at 955–56, 102 S.Ct. 2744 (Powell, J., dissenting) (joined by Justices Rehnquist and
O’Connor) (emphasis in original) (footnote omitted); see also David Lagos, Damned If You Do ․ The Supreme
Court Denies Qualified Immunity to Section 1983 Private Party Defendants in Wyatt v. Cole, 71 N.C. L.Rev.
849, 864 (1993) (“[T]he private party’s culpability in using state power was central to a finding of
liability under Adickes.”)....
... According to the Supreme Court, “a private person who discriminates on the basis of race with the
knowledge of and pursuant to a state-enforced custom requiring such discrimination, is a participant in
joint activity with the State, and is acting under color of that custom for purposes of §1983.” ...
Bailey v. Kenney, 791 F.Supp. 1511 (D.Kan., Apr 16, 1992)
Kenney's reliance on these citizen's arrest cases is misplaced. The actions of Kenney
were not simply those of a private citizen unilaterally taking action or reporting
suspected criminal activity to the police. Rather, the undisputed evidence establishes
that Kenney and the police officers acted in a concerted manner to enter the house and
restrain plaintiff of his liberty. Moreover, there are allegations allowing the
inference that the police officers actually acted under the direction of Kenney, who
informed Haynes and Wiley that they *1523 could enter and search for bond forfeitures
and that this was done all the time. **See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d
1423, 1430 (10th Cir.1984) (jury could find that security guard acted under color of
state law where local police followed custom allowing guard to substitute his judgment
for that of police), cert. denied in part, granted in part as to other party, 474 U.S.
818 & 805, 106 S.Ct. 65 & 40, 88 L.Ed.2d 53 & 33 (1985).
For purposes of this summary judgment motion,FN4 the court finds the second prong of
Lugar to be satisfied. In contrast to Ouzts, no party in this case contends that Kenney
acted ultra vires the law of Kansas, which grants bondsmen the full extent of their
broad common law powers of arrest. Moreover, Kenney's attempts to minimize the
assistance given by the police officers in this case are unpersuasive. Together with
Kenney, Lt. Haynes and Officer Wiley used their show of authority in an attempt to bring
plaintiff to the door; they jointly forced their entry into the house with guns drawn;
they pointed their weapons at plaintiff when he appeared; and they jointly restrained
plaintiff of his freedom while questioning him. The active, concerted action of the
police with Kenney belies Kenney's assertion that the police officers only “stood by” to
assist a private action.
FN4. Plaintiff does not argue as a matter of law that Kenney acted under color of state
law. Accordingly, the court expresses no view at this time whether “material facts exist
without substantial controversy” that would remove this matter from the jury's
consideration. See Fed.R.Civ.P. 56(d).
Accordingly, the court finds sufficient facts from which a jury could find that Kenney
acted under color of state law for § 1983 purposes.
Watson v. Haverford Tp. Police Dept., 2011 WL 2200306, 5, (E.D.Pa. Jun 06, 2011)
*5 In contrast, Ms. Watson has alleged a previous connection between Defendant and local
officials via his employment with the Township, identified a phone conversation during
which Defendant allegedly instructed local police to harass her, and averred that police
engaged in unprompted verbal and physical abuse immediately after the first officer on
the scene stated that he was there as a result of Ms. Watson's problems with Defendant
Pili. Drawing all inferences in favor of Ms. Watson, the Court finds that she has
alleged a sufficient degree of joint action or improper influence on the part of
Defendant Pili to properly plead a conspiracy between himself and local authorities to
violate her constitutional rights. Accordingly, the Court declines to dismiss Ms.
Watson's civil rights claims against Defendant Pili.
Walker v. City of Hayward, 2008 WL 2357249, 3, (N.D.Cal., Jun 06, 2008)
I. 42 U.S.C. § 1983 Claims
First, Defendants again move to dismiss the § 1983 claims against them on grounds that
Plaintiff has failed to allege that they acted under color of law. See 42 U.S.C. § 1983
(applying to conduct by persons acting “under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia”). When the Court
dismissed the § 1983 claims against Defendants in the original complaint, it found that
Plaintiff had failed to allege sufficient facts to support a joint action theory. Under that
theory, a private party may be held liable under § 1983 if he or she “is a willful
participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27-
28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). A “bare allegation” of joint action is insufficient
to survive a motion to dismiss, and a plaintiff must instead allege “facts tending to show
that [the private defendants] acted under color of state law or authority.” Degrassi v. City
of Glendora, 207 F.3d 636, 647 (9th Cir.2000) (citation and internal quotations omitted).
Based on the allegations in the original complaint, the Court concluded that:
Plaintiff here has failed to [allege such facts]. The Ninth Circuit has held that “merely
complaining to the police does not convert a private party into a state actor. Nor is
execution by a private party of a sworn complaint which forms the basis of an arrest enough
to convert the private party's acts into state action.” Collins v. Womancare, 878 F. 2d 1145,
1155 ( 9th Cir. 1989) (citations omitted). Thus, Plaintiff's allegation that Wardak signed a
written statement that he was making a citizen's arrest for trespassing is insufficient to
allege state action on Wardak's behalf. Compl. ¶ 28. Similarly, it is insufficient for
Plaintiff to allege that the police officers “wrongfully arrested Plaintiff on the basis of a
false report” made by Wardak. Id. ¶ 1. Nowhere does the complaint allege that Plaintiff was
ever arrested for or charged with trespassing, nor does it allege that Wardak made any
statements regarding the three charges that were actually brought against Plaintiff.
**Additionally, the complaint does not allege any facts supporting a conspiracy between
Wardak and the Defendant officers in the case; Wardak is only alleged to have signed a
statement prepared by Officer Snell, who is not named as a defendant in this case and is not
alleged to have participated in the alleged unlawful use of force against Plaintiff.
*4 Put simply, Plaintiff has failed to allege the “substantial degree of cooperative action”
required to allege § 1983 liability by a private actor under a joint action theory.
Collins, 878 F. 2d at 1154.
Mar. 4, 2008 Order at 4.
Plaintiff has cured this deficiency in the FAC. Although Defendants correctly observe that
Plaintiff does not allege that he was ultimately charged with trespassing, **Plaintiff does
allege that the officers initially arrested him based solely on Wardak's complaints of
trespassing and without conducting any independent investigation. FAC ¶ 22. Unlike in Collins,
the officers in this case are alleged to have failed to use independent judgment and failed
to maintain a position of neutrality; instead, they are alleged to have followed a customary
policy whereby they arrest individuals based on reports made by Jack in the Box or ADS
employees. Compare FAC ¶¶ 22, 28 with Collins, 878 F. 2d at 1155-56; also compare, e.g.,
Carey v. Continental Airlines, Inc. ., 823 F.2d 1402, 1404 (10th Cir.1987) (dismissing § 1983
claim against private party who made a citizen's arrest where police arrested plaintiff after
questioning him and there were no factual allegations from which the court “might conclude
that his arrest resulted from **any concerted action, whether **conspiracy, **prearranged
plan, **customary procedure, or **policy that substituted the judgment of a private party for
that of the police or allowed a private party to exercise state power”); Sims v. Jefferson
Downs Racing Ass'n, Inc., 778 F.2d 1068, 1078-79 (5th Cir.1985) (rejecting joint action
theory where the plaintiff “has not alleged a preconceived plan between [private party and
the police], nor has he shown that the arresting officer did not make an independent
determination whether there was cause to arrest”). Thus, the FAC's allegations adequately
allege Defendants' § 1983 liability under a joint action theory. See Murray v. Wal-Mart, Inc.,
874 F.2d 555, 559 (8th Cir.1989) (noting that “a store and its employees may be considered to
be acting jointly with police when the police will detain accused shoplifters without making
an independent investigation, or pursuant to a customary plan between the store and the
police department” (citations omitted)). The Court therefore DENIES Defendants' motion to
dismiss Plaintiff's first and third causes of action under § 1983.
Keywords: conspiracy between police public official and private party actor resulted
from any concerted action, whether conspiracy, prearranged plan, customary procedure, or
policy that substituted the judgment of a private party for that of the police or
allowed a private party to exercise state power
**51. Steel v. City of San Diego

United States District Court, S.D. California. June 30, 2010 726 F.Supp.2d 1172 2010 WL 2635759 09CV1743-
MMA
CIVIL RIGHTS - Arrest and Detention. Former spouse alleged §1983 civil rights conspiracy as
to city.
...Based on these factual allegations, Plaintiff asserts the following causes of action against Hasbrouck:
(1) unlawful seizure and imprisonment pursuant to 42 U.S.C. §1983, (2) excessive force pursuant to 42
U.S.C. §1983, (3) civil conspiracy to violate Plaintiff’s constitutional rights pursuant to 42 U.S.C.
§1983, (4) assault, (5) intentional infliction of emotional distress, (6) negligent infliction of
emotional distress, and (7) negligence....
...Former spouse alleged that private investigator hired by ex-wife’s divorce attorney formed agreement
with city officials to have him arrested in order to obtain incriminating child custody evidence, as
required to state civil conspiracy claim under §1983; complaint averred that investigator directed
official to have police arrange “hot stop” of spouse’s vehicle for alleged driving while under influence.
42 U.S.C.A. §1983....
...Holdings: The District Court, Michael M. Anello, J., held that: (1)spouse alleged civil rights
conspiracy as to city; (2)California statute requiring plaintiffs to obtain court orders before asserting
attorney conspiracy was procedural; (3)spouse failed to allege civil rights conspiracy as to ex-wife’s
divorce attorneys; (4)spouse alleged civil rights claims as to private investigator; and (5)spouse failed
to allege civil rights conspiracy and tort claims as to private process server....
...Former spouse alleged that city officials formed agreement to have him arrested in order to obtain
incriminating child custody evidence, as required to state civil conspiracy claim under §1983; complaint
averred telephone conversations between officials at time of events in question, two of whom were
allegedly communicating during pursuit, arrest, and subsequent transport of spouse to police headquarters.
42 U.S.C.A. §1983....
** 55. Arnold v. International Business Machines Corp.

United States Court of Appeals, Ninth Circuit. February 05, 1981 637 F.2d 1350
https://www.westlaw.com/Search/Results.html?query=fi%3A&transitionType=Search&contextDat
a=%28sc.Default%29&VR=3.0&RS=cblt1.0 78-3458
Action was brought against corporation and various of its employees for alleged violations of
plaintiff’s civil rights. The United States District Court for the Central District of
California, Francis C. Whelan, J., entered summary judgment in favor of the corporation and
the employees, and plaintiff appealed. The Court of Appeals, Wallace, Circuit...
...In Smith, the defendant department store and the local police department had a prearranged plan whereby
the police would take shoplifting suspects to the police station and book them solely on the basis of the
store employees’ statements that the suspects had taken something without paying for it....
...The court, analyzing these facts under the rubric of state action, affirmed the section 1983 judgment
for the plaintiffs, holding that the department store was liable for the improper arrests when those
arrests were made pursuant to a preconceived plan....
...It is clear, however, that he was charged in the arrest warrant with receiving stolen property and
conspiracy to receive stolen property, and was subsequently indicted for conspiracy to receive stolen
property....
...The police detained the suspects “without independently establishing that there was probable cause to
do so-they took the (suspects) into custody without a valid complaint having been filed and without
knowing the facts to believe that a crime had been committed.”...
**72. Wright v. City of Reno

United States District Court, D. Nevada. October 28, 1981 533 F.Supp. 58
a=%28sc.Default%29&VR=3.0&RS=cblt1.0 CIV-R-80-277-ECR
In a civil rights action, and on motion to dismiss for failure to state a claim under which
relief could be granted, the District Court, Edward C. Reed, Jr., J., held that: (1) for
purposes of motion to dismiss, amended complaint under 1871 civil rights statute contained
sufficient allegations to demonstrate that defendant towing company, which...
...If municipality has policy or custom of refusing or neglecting to prevent Ku Klux Klan violations by
its agents or employee, municipality can be held liable under provision for liability for neglect to
prevent Ku Klux Klan Act violations, but indispensable prerequisite of such claim is existence of
conspiracy actionable under the Ku Klux Klan Act. 42 U.S.C.A. §§1985, 1985(3), 1986....
...In view of alleged wrongful participation of automobile towing company in joint activity with public
officials, allegations of complaint counts against towing company were sufficient to withstand motion to
dismiss for failure to state claim, despite towing company’s argument that it had no control over police
and had no part in making decision whether vehicle should be towed and that its conduct in threatening to
tow away plaintiff’s automobile, unless it was paid $22, was not cause of any deprivation of plaintiff’s
rights. 42 U.S.C.A. §1983....
...The test of whether a joint participation, or conspiracy, existed is whether the facts alleged
demonstrate that the private party and the public official acted with a common understanding, or meeting
of the minds, to deprive the plaintiff of his federal rights....
...The Arnold court itself, at page 1358, recognized the possibility of liability in the private party
where it and the police acted pursuant to a preconceived plan which violated the plaintiffs’ rights....
**76. Rimac v. Duncan
United States Court of Appeals, Ninth Circuit. March 10, 2009 319 Fed.Appx. 535 2009 WL 631616 07-15962
CIVIL RIGHTS - State Action. Landowner’s allegation that neighboring landowner and fire chief
agreed to cut down landowner’s trees was sufficient to allege state action.
... Rimac’s complaint does not sufficiently allege a municipal custom or policy that would subject the
FDFPD or the County to municipal liability under §1983....
... Rimac’s allegation of inadequate policies and programs regarding training of employees are
insufficiently pled....
... Only if a plaintiff shows that his injury resulted from a ‘permanent and well-settled’ practice may
liability attach for injury resulting from a local government custom.”...
...The judgment of the district court is REVERSED and REMANDED with respect to the §1983 claims against
Crawford and Duncan....
**82. Ennis v. City of Daly City

United States District Court, N.D. California. November 22, 2010 756 F.Supp.2d 1170 2010 WL 4916400 C 09-
05318 MHP
CIVIL RIGHTS - Free Speech. Under California law, allegations were sufficient to plead circus
attempted to prevent protestor from engaging in speech rights.
... Indeed, from plaintiff’s very limited assertion of facts related to any alleged joint action or
alleged conspiracy between Carson and the City and/or the Cow Palace, the court is unable “to draw the
reasonable inference” that joint action was involved in the placement of the barricades and the subsequent
alleged violation of plaintiff’s constitutional right to free speech....
...In Jones, the California Supreme Court provides the following example or facts that could allege a
section 52.1 violation based on a Fourth Amendment violation: “For example, if a burglary victim,
suspecting that his stolen property lay hidden in a nearby house, stood at the door with the police and
threatened to injure the homeowner if she did not change her mind and consent to an official and
warrantless search of her premises, the homeowner might, under section 52.1, be able to sue her neighbor
for interfering with her Fourth Amendment rights, assuming for purposes of this example that the Fourth
Amendment protected her against warrantless searches by the state without her consent under the
circumstances.”...
...“Under the joint action test, courts examine whether state officials and private parties have acted in
concert in effecting a particular deprivation of constitutional rights....
...[4]Paragraph 29 of the Second Amended Complaint states, “The decision to keep the configuration of
barricades which Griggs had advised needed to be changed to protect plaintiff’s first amendment rights was
made by defendants Eric Wollman, acting on behalf of the Daly City police department, Walter Haub and
Diana Colvin, acting on behalf of [the Cow Palace] and Gustav Parra–Bello, acting on behalf of Carson &
Barnes Circus.” ...
**84. Pleasant v. Turner

United States District Court, E.D. California. October 28, 2013 Slip Copy 2013 WL 5798994 1:13-CV-00329
LJO-GS
Plaintiff Terry Pleasant (“Plaintiff”), proceeding pro se and in forma pauperis, filed this
malicious prosecution action based on a prior criminal proceeding against him in Merced
County Superior court. Plaintiff’s instant complaint alleges malicious prosecution claims
against three individual defendants who were connected to the prior...
...Dennis v. Sparks, 449 U.S. 24, 27–28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (under § 1983, a claim may
lie against a private party who “is a willful participant in joint action with the State or its agents”);
Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.2002) (“[a] private individual may be liable under § 1983 if
she conspired or entered joint action with a state actor”); Fonda v. Gray, 707 F.2d 435, 437 (9th Cir.1983)
(“A private party...
...Rather, a private party acts under color of state law where authorities, in accordance with a
preconceived plan, rely on the private party’s judgment in effecting an arrest and obtaining an
indictment....
...In contrast, a private party acts under color of state law where the private party conspires with state
officials to deprive others of constitutional rights....
...Finally, Plaintiff is advised that “merely complaining to the police does not convert a private party
into a state actor.”...
** 85. Doe v. Unocal Corp.
United States District Court, C.D. California. August 31, 2000 110 F.Supp.2d 1294 2000 WL 1239935 CV 96-
6959 RSWL BQRX, CV 96-6112 RSWL BQRX
INTERNATIONAL LAW - Human Rights. Oil company could not be held liable for Myanmar
government’s use of forced labor.
... Id. The Ninth Circuit, citing Arnold, stated that “absent some showing that a private party had some
control over state officials’ decision [to commit the challenged act], the private party did not
proximately cause the injuries stemming from [the act]....
... Under the joint action test, state action is present if a private party is a “willful participant in
joint action with the State or its agents.” ...
...“Courts examine whether state officials and private parties have acted in concert in effecting a
particular deprivation of constitutional rights.” ...
... Under this conspiracy approach, state action may be found if a state actor has participated in or
influenced the challenged decision or action....
**86. Giulio v. BV CenterCal, LLC

United States District Court, D. Oregon. August 10, 2011 Not Reported in F.Supp.2d 2011 WL 3860443 3:09-
CV-482-AC
This action revolves around a physical confrontation which occurred at Bridgeport Village, a
shopping mall located in Tigard, Oregon. The plaintiff, Keri Giulio (“Keri”), alleges that
defendants BV CenterCal, LLC (“BV CenterCal”), the owner of Bridgeport Village, and CenterCal
Properties (“CenterCal”), the...
...On the other hand, the Ninth Circuit has held that where a private party repeatedly seeks police
assistance with a “self-help” eviction in the absence of proper notice or a prior judicial hearing, the
private party could be held liable for constitutional violations resulting from police actions....
...In so holding, the court specifically acknowledged that a single request for police assistance in
peacekeeping functions may not be sufficient to support a 1983 action against the private party....
...Or, as explained by the Ninth Circuit in Phelps Dodge, “[e]vidence that police failed to exercise
independent judgment will support an inference of conspiracy with a private party.”...
...“[A]bsent some showing that a private party had some control over state officials’ decision [to commit
the challenged act], the private party did not proximately cause the injuries stemming from [the act]....
** 87. Price v. State of Hawaii

United States Court of Appeals, Ninth Circuit. July 11, 1991 939 F.2d 702 1991 WL 122418 90-15117, 90-
15863
Section 1983 action was brought against private landowners, State of Hawaii, and state
officials to eject landowners from land that allegedly was no longer used as sailors home as
required by conveyance of provisional Hawaii government and to require State to begin
receiving income from land. The United States District Court for the...
...No party was entitled to attorney fees on appeal in action arising out of landowners’ alleged failure
to use land as sailors home as required by condition of grantor, provisional Hawaii government, and
arising out of alleged reversion of land to State and state officials’ alleged failure to collect income
from land; although state action claim against private landowners was frivolous, landowners and officials
raised arguments on issues which had previously been settled. 42 U.S.C.A. §§1983, 1988; Act March 18, 1959,
§5(f), 73 Stat. 4....
...[8]A person may become a state actor by conspiring with a state official, id., or by engaging in joint
activity with state officials, Sable Communications v. Pacific Tel. & Tel. Co., 890 F.2d 184, 189 (9th
Cir.1989) (defendant sought the aid of law enforcement officials in order to use further procedures that
would violate the plaintiff’s first amendment rights)....
... As pertinent here, section 5(f) reads as follows, and we have emphasized the part most pertinent to
our discussion: The lands ․ together with the proceeds from the sale or other disposition of any such
lands and the income therefrom, shall be held by said State as a public trust for the support of the
public schools and other public educational institutions, for the betterment of the conditions of native
Hawaiians ․, for the development of farm and home ownership on as widespread a basis as possible for the
making of public improvements, and for the provision of lands for public use....
...Section 1983 claim against private owners of land that allegedly was no longer used as sailors home and
allegedly reverted to State of Hawaii pursuant to conveyance by provisional government of Hawaii could be
found to be meritless and frivolous and could be found to justify award of attorney fees under civil
rights statute and Rule 11, even though state action concept can be murky. Fed.Rules Civ.Proc.Rule 11, 28
U.S.C.A.; 42 U.S.C.A. §§1983, 1988; Act March 18, 1959, §5(f), 73 Stat. 4....
**92. Sierzega v. Ashcroft

United States District Court, D. Oregon. July 21, 2006 440 F.Supp.2d 1198 2006 WL 2061362 CV-05-1338-HU
CIVIL RIGHTS - Privacy. Dentist seeking stalking protection was state actor under §1983.
... The Court did note that “merely resorting to the courts and being on the winning side of a lawsuit
does not make a party a co-conspirator or a joint actor with the judge [;]” but, the Court continued, the
allegations brought by the plaintiff in Dennis were that “an official act of the defendant judge was the
product of a corrupt conspiracy involving bribery of the judge.” ...
... The case primarily stands for the proposition that private parties who are alleged to have conspired
with a government official to deprive a person of his or her constitutional rights, may maintain the claim
against the private parties even when the government official’s actions are protected by judicial
immunity....
...It is clear that merely complaining to the police does not convert a private party into a state
actor....
...“Private parties involved in such a conspiracy may be liable under section 1983.” ...
**94. Constable v. California

United States District Court, E.D. California. December 13, 2007 Not Reported in F.Supp.2d 2007 WL 4404435
107-CV-995-OWW-SMS
Plaintiff is proceeding pro se and in forma pauperis with an action for damages and other
relief concerning alleged civil rights violations. The matter has been referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. Pending
before the Court is Plaintiff’s first amended complaint (FAC), filed on December...
...A conspiracy between a private party and a state official to deprive others of constitutional rights
may result in action by a private party under color of state law, but to prove a conspiracy between the
state and private parties under section 1983, the Plaintiff must allege an agreement or meeting of the
minds to violate constitutional rights; each participant in the conspiracy...
...Id. The mere operation of a statutory enforcement scheme that is used or invoked by a private party is
generally not sufficient; rather, there must be something more with respect to the otherwise private
action, either performance of a public function, state compulsion, nexus with the state, **joint action
constituting wilful participation in joint activity the state or its agents, or other facts....
...However, this holding extended only to a claim challenging the constitutionality of the entire
statutory mechanism, and not to a claim concerning private misuse of abuse of the statute; if the
allegation was only that the conduct was unlawful under state law (i .e., that the law was improperly
applied to the Plaintiffs), then it could not be relied upon to demonstrate that the injury resulted from
the exercise of a right or privilege having its source in state authority because it could not be said
that the private parties were acting pursuant to relevant state policy....
...The Civil Rights Act under which this action was filed provides: Every person who, under color of
[state law] ․ subjects, or causes to be subjected, any citizen of the United States ․ to the deprivation
of any rights, privileges, or immunities secured by the Constitution ․ shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983....
Keywords: Police officers procured false testimony from witness
police officers conspired with witnesses in concert agreement participation, joint

action, plan, mutual understanding with principal corporation company through bribery to
procure false testimony and suborn perjury, bribed to falsely testify
People v. Coffey, 161 Cal. 433, 446, 119 P. 901, 39 L.R.A.N.S. 704 (Cal., Dec 01,
1911)
Whenever the co-operation of the parties is a corrupt co-operation, then always those
agents are accomplices,
P.C. § 127. Subornation of perjury; definition; punishment
SUBORNATION OF PERJURY. Every person who willfully procures another person to commit
perjury is guilty of subornation of perjury, and is punishable in the same manner as he
would be if personally guilty of the perjury so procured.
2. Elements of offense
6. Conspiracy
Admission of telephone recording of defendant's conversation with his former legal

secretary, in prosecution for conspiring to commit perjury in two civil suits,
subornation of perjury and offering false evidence, did not constitute a violation of
defendant's constitutional rights as recording was made by secretary before she had been
contacted by any law enforcement agents and was accomplished without assistance of any
public official or employee. People v. Jones (App. 4 Dist. 1967) 62 Cal.Rptr. 304, 254
Cal.App.2d 200, certiorari denied 88 S.Ct. 1101, 390 U.S. 980, 19 L.Ed.2d 1278. Criminal
Law 392.21; Criminal Law 392.36
1. Generally
Subornation of witnesses to swear falsely against a defendant in a criminal
prosecution does not give rise to a cause of action for damages. Taylor v. Bidwell (1884)
65 Cal 489, 4 P 491, 1884 Cal LEXIS 603.
**Conviction of conspiracy to commit subornation of perjury is sustained by evidence

that defendant and codefendant collaborated in securing third person to testify falsely.
People v. Woodard (1956, Cal App 4th Dist) 145 Cal App 2d 529, 302 P2d 834, 1956 Cal App
LEXIS 1372.
**An attorney who attempts to benefit his client through the use of perjured
testimony may be subject to criminal prosecution as well as severe disciplinary action.
In re Branch (1969) 70 Cal 2d 200, 74 Cal Rptr 238, 449 P2d 174, 1969 Cal LEXIS 325.
**The crime of subornation of perjury, described in Pen C § 127, involves moral

turpitude. In re Jones (1971) 5 Cal 3d 390, 96 Cal Rptr 448, 487 P2d 1016, 1971 Cal
LEXIS 261.
**Actual commission of perjury by a person solicited to commit perjury is

unnecessary to constitute solicitation of perjury. People v. Gray (1942, Cal App) 52 Cal
App 2d 620, 127 P2d 72, 1942 Cal App LEXIS 656.
5. Evidence
**The evidence supported a finding that the defendant procured a witness to give
false testimony in a civil action growing out of an automobile collision, where it
appeared that prior to the trial of the civil action the defendant took the witness to
the scene of the accident and they concocted the story to be given, and the witness'
testimony in the criminal prosecution concerning his false testimony and his
transactions with the defendant was supported by corroborating circumstances. People v.
Nickell (1937, Cal App) 22 Cal App 2d 117, 70 P2d 659, 1937 Cal App LEXIS 78.
westnext_search_police_sheriff_deputy_law_enf_investig_detect_w_witness_conspir_partic_j
oint_act_plan_mut_understand_w_princ_corp_company_thru_bribery_to_procure_false_testimon
y_suborn_perjury_ca_fed_all_64_results.doc
** 5. Anilao v. Spota
United States District Court, E.D. New York. March 31, 2011 774 F.Supp.2d 457 2011 WL
1226966 10-CV-00032 JFB WDW
TORTS - Malicious Prosecution. Nurses stated malicious prosecution claim against
operator of skilled nursing facility under New York law.
...The Court notes that, although plaintiffs’ allegations regarding false testimony
before the Grand Jury only mention Philipson and other unidentified Sentosa witnesses,
(Am. Compl. ¶¶82, 84), plaintiffs plainly allege that all of “the Sentosa defendants”
met with defendant Spota and entered into an agreement with the County defendants to
procure the indictment of plaintiffs through false testimony (id. ¶¶64, 113–14), and
that the County defendants were acting “for the sole benefit of the Sentosa
defendants.”...
...”); id. ¶82 (noting that the allegations in the indictment were “based upon the false
testimony of Philipson, and/or other Sentosa employees or principals, before the Grand
Jury”); id. ¶83 (“[T]he presentation of evidence to the Grand Jury was improper, in that
․ the Grand Jury was falsely informed that one or more of the nurses had resigned and
left the facility before completing his or her shift.”); id. ¶¶84–85 (“[T]he indictment
was further based upon knowingly false testimony...
... Instead, plaintiffs have alleged that the Sentosa defendants incited the exercise of
state authority by pressuring the County defendants to take action to satisfy the
Sentosa defendants’ goals and for the Sentosa defendants’ sole benefit, and then joined
and participated in the exercise of that authority by agreeing with the County
defendants to present false testimony and thereafter giving such false testimony30
before the Grand Jury.31...
...Pursuant to this alleged agreement, Philipson, and possibly other Sentosa employees
or principals, allegedly provided false testimony before the Grand Jury, including that
nurses had walked off a shift, that shifts were inadequately covered, or that patients
were endangered, all of which the Sentosa witnesses allegedly knew was not true....
** 7. Limone v. Condon
Officers lack qualified immunity for fabricating charges

United States Court of Appeals, First Circuit. June 10, 2004 372 F.3d 39 2004 WL 1299980
03-2130, 03-2212
CIVIL RIGHTS - Immunity. Officers who allegedly suborned perjury did not have qualified
immunity in subsequent civil action.
...Federal and state law enforcement officers, who allegedly cultivated witnesses in
murder investigation from whom they suborned perjury, resulting in the conviction of
three innocent individuals, did not have qualified immunity from subsequent civil action
brought by those individuals under §1983 and Bivens; officers did not commit perjury
themselves, but engaged in a variety of actions that were directly tied to immunized
trial testimony...
... An examination of the Pyle record disclosed to the Third Circuit’s satisfaction
“that the prosecuting officer was in no wise a party to or cognizant of the perjured
testimony given by certain witnesses of the State of Kansas or of the fact that the law
enforcement officers had taken steps to procure false testimony favorable to the
prosecution.” ...
...For purposes of federal and state law enforcement officers’ defense of qualified
immunity in §1983 and Bivens lawsuit alleging that officers participated in plot to
secure murder convictions of innocent persons by cultivating witnesses from whom they
suborned perjury and by suppressing exculpatory evidence, no reasonable law enforcement
officer would have thought it was permissible to frame somebody for a crime he or she
did not commit. 42 U.S.C.A. §1983....
...On interlocutory appeal of denial of defense of qualified immunity, federal and state
law enforcement officers were not entitled to raise issue of who was a proper plaintiff
in action alleging that officers cultivated witnesses in murder investigation from whom
they suborned perjury; qualified immunity issue focused on officers’ conduct leading up
to plaintiffs’ convictions and issue of who was a proper party entailed an examination
of post-conviction events. 42 U.S.C.A. §1983....
** 24. People v. Griffin

District Court of Appeal, Third District, California. June 10, 1950 98 Cal.App.2d 1 219
P.2d 519 CR. 2144
William Griffin, Wiley H. Caddel and James Mullings were convicted in the Superior
Court, Mendocino County, Lilburn Gibson, J., for conspiracy to give and offer bribes
to executive officers of the state and to ask for and receive bribes as executive
officers and employees of the state, and for conspiracy to operate slot machines, and
for giving...
...At a subsequent time in the trial, and after the court had granted the prosecution’s
request for discharge as to McCarty, so that he might be made a witness for the People,
the court, upon motion of the defendants, struck out of evidence the conversations
between Sheriff Broaddus and McCarty, as follows: ‘Well, the motion will be granted and
all testimony given by the witness Sheriff Broaddus relative to all conversations
between he and Paul McCarty will be stricken, and the jury is instructed to disregard
all the testimony that has by order of the court been stricken or which hereafter may be
stricken.’...
...Any joint action on a material point, or collocation of independent but conspiring
acts, by persons closely associated with each other, is held to be sufficient to enable
the jury to infer concurrence of sentiment; and one competent witness will suffice to
prove co-operation of an individual conspirator.’...
...The Keyes case is authority for the proposition that a set of defendants may conspire
to give a bribe, or a set of defendants may conspire to receive or accept a bribe, but
that bribery requires for its consummation an unlawful concert of one or more persons
acting with one or more persons having a different motive or purpose....
...At the conclusion of the prosecution’s case, counsel for appellant Mulligan moved to
strike the testimony of certain witnesses which had previously been admitted as to
Mulligan, on the ground that the testimony constituted hearsay and did not serve to link
Mulligan with the alleged conspiracy....
** 34. Mejia v. City of New York

United States District Court, E.D. New York. October 05, 2000 119 F.Supp.2d 232 2000 WL
1643859 CIV A 96-CV-3007DGT
CIVIL RIGHTS - Immunity. Qualified immunity is available to private actors enlisted by
law enforcement.
... Moreover, with respect to private actors who would seek qualified immunity in such
circumstances, the necessity for rendering prompt and largely unquestioning assistance
to law enforcement when asked to do so and the statutory duty to provide such
assistance—considerations that figured so prominently in the preceding discussion of
whether qualified immunity is available to private actors who answer law enforcement’s
call for assistance—plays no role at the prosecutorial stage of law enforcement....
... Whether a witness is a complaining witness is a fact-based question that coincides
with the determination of whether the witness played such a role in initiating the
proceedings that it can be said the witness commenced or continued proceedings against
the plaintiff within the meaning of the law of malicious prosecution....
... Because there is sufficient evidence for a reasonable juror to find that Airborne
knowingly participated in the manufacture of evidence on which the prosecutor relied—
viz., defendants’ account that the Mejias readily and willingly claimed the package
without any pretense having been made as to its origin, Airborne, whose employees Bezmen
and Gennarelli met with the prosecutor and testified before the grand jury, must be
considered a complaining witness, or, at the very least, an actor that conspired with a
complaining witness....
...Moreover, because a reasonable juror could find (1) that she was a knowing
participant in the Venezuelan ruse and was, thus, party to the creation of evidence on
which the prosecutor relied in determining whether to commence and continue proceedings
against the Mejias, and (2) that her grand jury testimony against them was false or
contained material omissions, she would still not have probable cause or be entitled to
qualified immunity with respect to the Mejias’ prosecution even if the police defendants’
knowledge of the additional portfolios could be attributed to her at the relevant
time....
** 42. Dory v. Ryan

United States Court of Appeals, Second Circuit. May 19, 1994 25 F.3d 81 1994 WL 201592
92-2790, 1503 AUG. TERM 1992
Correctional facility inmate filed pro se § 1983 complaint against prosecuting
attorney and police officer witness, alleging that they conspired to convict him based
on perjured testimony. The United States District Court for the Eastern District of
New York, Thomas C. Platt, Jr., Chief Judge, dismissed complaint sua sponte, and
inmate appealed....
...Police officer witness was not entitled to absolute immunity in defendant’s §1983
action alleging that witness conspired with prosecutor to convict defendant based on
perjured testimony; witnesses enjoy absolute immunity only for their actions in
testifying, not for extra-judicial conspiracies to give false testimony. 42 U.S.C.A.
§1983....
...Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), the case that
first recognized absolute immunity for witnesses, involved police officers, and we
specifically distinguished Briscoe when creating the extra-judicial conspiracy exception
in San Filippo: Briscoe v. LaHue, supra, was expressly limited to immunity for testimony
given in judicial proceedings, and its rationale-to encourage witnesses to come forward
with all they know-does not justify extending that immunity to cover extra-judicial
conspiracies between witnesses and the prosecutor to give false testimony...
... Dory alleged that Ryan and Anderson had entered into an extra-judicial conspiracy to
convict him based on perjured testimony, and that Ryan had withheld exculpatory material
from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963)....
... With regard to witnesses, the distinction is important because witnesses enjoy
immunity only for their actions in testifying, and are not immune for extra-judicial
actions such as an alleged conspiracy to present false testimony....
** 44. Zahrey v. Coffey
United States Court of Appeals, Second Circuit. July 20, 2000 221 F.3d 342 2000 WL
1006076 99-9119
CIVIL RIGHTS - Due Process. Prosecutor not necessarily entitled to qualified immunity
in fabricating evidence.
... See Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir.1994) (“Buckley IV”) (if
prosecutor tortured witness to obtain statement implicating defendant and put statement
“in a drawer, or framed it and hung it on the wall but took no other step,” no
constitutional right of defendant would be violated) (emphasis added); Landrigan v. City
of Warwick, 628 F.2d 736, 744 (1st Cir.1980) (“[W]e do not see how the existence of a
false police report, sitting in a drawer in a police station, by itself deprives a
person of a right secured by the Constitution and laws.”)....
...); Hand, 838 F.2d at 1428; Smiddy, 665 F.2d at 266-67; Dellums v. Powell, 566 F.2d
167, 192-93 (D.C.Cir.1977); see also Barts, 865 F.2d at 1197 (intervening acts break
chain of causation “in the absence of a showing that the police officers deceived the
court officials or unduly pressured them or that the court officials themselves acted
with malice and the police joined with them”); Lanier v. Sallas, 777 F.2d 321, 325 (5th
Cir.1985) (county court’s order committing plaintiff to mental institution did not break
chain of causation between doctors’ false statements in their certificates of medical
examination and the commitment, because the certificates’...
...[10]However the causation issue is to be resolved in the law enforcement context in
cases where an initial act of misconduct is followed by the act of a third person, our
case involves the unusual circumstance that the same person took both the initial act of
alleged misconduct and the subsequent intervening act....
... Coffey’s contrary argument appears to regard his actions in using the false evidence
at court hearings (grand jury and bail) as intervening acts that break the causal chain
between his initial act of alleged fabrication of evidence and the deprivation of
Zahrey’s liberty that ultimately resulted....
**49. Williams v. City of Boston

United States District Court, D. Massachusetts. March 24, 2011 771 F.Supp.2d 190 2011 WL
1087686 CIV.A. 10-10131-PBS
CIVIL RIGHTS - Wrongful Prosecution. Arrestee stated §1983 claim for malicious
prosecution against city police officers.
...Williams claims, in Count IV of his complaint, that Boyle and Kelley “conspired,
reached a mutual understanding and acted in concert to violate [his] constitutional
rights” in violation of Section 1983, including his right to remain free from “false
arrest, malicious prosecution, unfair trial, wrongful conviction, and unlawful
confinement, loss of free[do]m on parole status, loss of income, and all other grievous
permanent damages and injuries set forth above.” ...
... As detailed above, Williams has alleged facts indicating that the defendant police
officers responded to the 911 calls together, were jointly involved in the investigation,
intentionally pursued false criminal charges and fabricated evidence against him
relating to the alleged assault and stabbing of a woman at 1431 Commonwealth Avenue....
... However, in that case the court ruled that a conviction of the accused by a tribunal
to which the complaint was made, although reversed on appeal, conclusively establishes
the existence of probable cause, unless the conviction was obtained solely by false
testimony of the defendant charged with malicious prosecution or is impeached on the
ground of fraud, conspiracy or subornation in its procurement....
... Specifically, this court recommends for the reasons detailed herein that the
plaintiff’s claims for improper investigation and false arrest asserted against Boyle
and Kelley in Count I, and the false arrest claim asserted against the officers in Count
II be dismissed for failure to state a claim, but that the motion otherwise be
denied.6...
** 56. Kulwicki v. Dawson

United States Court of Appeals, Third Circuit. July 02, 1992 969 F.2d 1454 1992 WL
148149 91-3358, 91-3394
Attorney brought action against county district attorney, city police officer and city
chief of police, alleging that defendants conspired to deprive him of constitutional
rights when they unsuccessfully charged him with criminal conspiracy and attempt to
deal in infant children. The United States District Court for the Western District
of...
...Kulwicki alleges that Detective Loutzenhiser is liable for participating with Dawson
in initiating the prosecution, eliciting false testimony from witnesses, publishing
criminal charges, and testifying falsely in several judicial proceedings....
...In Malley, the Supreme Court noted, in the context of rejecting immunity for a police
officer’s baseless application for an arrest warrant, that complaining witnesses were
not afforded immunity at common law....
...The district court did not address Kulwicki’s allegations that Loutzenhiser gave
false testimony at several points in Kulwicki’s criminal trial....
... Kulwicki alleges that Loutzenhiser proceeded on manufactured or coerced evidence,
that the charges were filed without a proper investigation of the law of adoption, and
without discussion with the natural mother....
** 59. Jones v. City of Chicago

United States Court of Appeals, Seventh Circuit. September 14, 1988 856 F.2d 985 1988 WL
95587 87-2536, 88-1127
Former murder and rape defendant brought civil rights and state law claims against
city police officers and city. A jury before the United States District Court for the
Northern District of Illinois, Harry D. Leinenweber, J., found for plaintiff, awarded
substantial damages, and the court made a attorney fee award. On appeal, the Court of
Appeals,...
... Unaffected by Malley is the teaching of Harlow that an arrest pursuant to a valid
warrant is not actionable in a suit for damages under section 1983 even if the officers
who procured or executed the warrant were acting maliciously, although they may be
liable under state law for the common law tort of malicious prosecution....
... There was, however, enough evidence to enable the jury to infer that Deas, Griffith,
and Palmer had known every false step taken by the subordinate officers, had approved
every false step, and had done their part to make the scheme work-by deep-sixing
Laverty’s report (Deas), by trying to put Laverty off the scent (Griffith), and by
signing a deceitful report for use by the prosecution (Palmer)....
... This principle led the Supreme Court in Malley v. Briggs, 475 U.S. 335, 106 S.Ct.
1092, 89 L.Ed.2d 271 (1986), to hold that the issuance of an arrest warrant will not
shield the police officer who applied for the warrant from liability for false arrest if
“a reasonably well-trained officer in [his] position would have known that his affidavit
failed to establish probable cause and that he should not have applied for the
warrant.” ...
... It brings to mind our warning in Gramenos that “a ‘prudent’ officer may balk if the
person claiming to be an eyewitness strolls into the police station and describes a
crime from long ago, or if the person leveling the accusation is babbling or
inconsistent.” ...
**63. Rezek v. City of Tustin

United States District Court, C.D. California. November 15, 2012 Not Reported in
F.Supp.2d 2012 WL 5829928 SACV 11-01601 DOC
Before the Court are four motions: (1) a Motion to Dismiss filed by Defendants IPC
International Corporation and Jose Reyes (Dkt.23); (2) a Motion to Dismiss filed by
Defendant Vestar Property Management Company (Dkt.24); (3) a Motion to Strike Portions
of Plaintiff’s First Amended Complaint filed by Defendants IPC International
Corporation and...
...Cal.Penal Code § 137 provides in relevant part: “(a) Every person who gives or offers,
or promises to give, to any witness, person about to be called as a witness, or person
about to give material information pertaining to a crime to a law enforcement official,
any bribe, upon any understanding or agreement that the testimony of such witness or
information given by such person shall be thereby influenced is guilty of a felony.”...
...Plaintiff asserts that Private Party Defendants failed to abide by and intentionally
violated non-consensual duties owed to Plaintiff which are set forth in California Penal
Code Sections 148.5 5 (false report of a crime), 134 6 (preparing false evidence), 132 7
(offering false evidence), 127 8 (subornation of perjury), and 137 9 (induce false
testimony)....
...Cal.Penal Code § 148.5 provides in relevant part: “(a) Every person who reports to
any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33,
the Attorney General, or a deputy attorney general, or a district attorney, or a deputy
district attorney that a felony or misdemeanor has been committed, knowing the report to
be false, is guilty of a misdemeanor....
...See Agric. Ins. Co., v. Superior Court, 70 Cal.App.4th 385, 400, 82 Cal.Rptr.2d 594,
602 (1999) (finding that dismissal of plaintiff’s claim under Section 550 of the
California Penal Code was proper because plaintiff did not cite or suggest anything
indicating the Legislature’s “silent” intent, nor why, if the Legislature did so intend
a private right of action, it did not simply say so); Hillblom v. County of Fresno, 539
F.Supp.2d 1192, 1212 (E.D.Cal.2008) (putting the burden on the plaintiffs to “defend
meaningfully their torts in essence cause of action” and dismissing because plaintiffs
“fail to demonstrate how their cited California Penal Code sections create private
rights of action...
dist_prosec_attys__liab_for_official_acts_neglig_misconduct_ca_all_digest.doc_

Robichaud v. Ronan, 351 F.2d 533
C.A.9.Ariz.,1965
Complaint alleging that county attorney and his deputy committed acts or authoritatively
directed commission of acts which were ordinarily related to police activity as opposed
to judicial activity and which assertedly wrongfully deprived plaintiff of her
constitutionally guaranteed rights stated claim on which relief could be granted
notwithstanding officer's claim of immunity. 42 U.S.C.A. § 1983 ; U.S.C.A.Const. Amends.
5 , 6 , 8 , 14 .

Hartman v. Moore, 126 S.Ct. 1695
U.S.,2006
Absolute immunity does not extend to conduct taken by a prosecutor in an investigatory
capacity.

Beltran v. Santa Clara County, 514 F.3d 906
C.A.9.Cal.,2008
A prosecutor does not have absolute immunity if he fabricates evidence during a
preliminary investigation, before he could properly claim to be acting as an advocate,
or makes false statements in a sworn affidavit in support of an application for an
arrest warrant.
** [Cited 19 times for this legal issue] overruled by ashelman v. pope

Beard v. Udall, 648 F.2d 1264
C.A.9.Ariz.,1981
Where prosecutor faces an actual conflict of interest and files charges he or she knows
to be baseless, prosecutor is acting outside scope of his or her authority and thus
lacks immunity.

Gillan v. City of San Marino, 55 Cal.Rptr.3d 158
Cal.App.2.Dist.,2007
Statute granting immunity for institution or prosecution of judicial or administrative
proceeding provides no immunity from liability for false arrest or false imprisonment.
West's Ann.Cal.Gov.Code § 821.6 .

Swift v. California, 384 F.3d 1184
C.A.9.Cal.,2004
State prosecutor is entitled to absolute immunity when engaged in activities intimately
associated with the judicial phase of the criminal process, but is only entitled to
qualified immunity when performing investigatory or administrative functions, or when
essentially functioning as a police officer or detective.

Lacey v. Maricopa County, 693 F.3d 896
C.A.9.Ariz.,2012
Ordering arrests or advising those making the arrests are not prosecutorial functions,
and thus are not protected by absolute prosecutorial immunity.
Keywords: deputy assistant district attorney bribed to falsely, maliciously indict

prosecute another for crime to procure another to be charged for crime.
Westnext_search_deputy_assist_dist_atty_bribed_to_falsely_malicous_indict_prosec_aother_
to_be_charged_for_crime_ca_fed_all_95_results.doc
** 12. Zahrey v. Coffey
United States Court of Appeals, Second Circuit. July 20, 2000 221 F.3d 342 2000 WL
1006076 99-9119
CIVIL RIGHTS - Due Process. Prosecutor not necessarily entitled to qualified immunity
in fabricating evidence.
...Zahrey further alleged that by engaging in the above conduct, the defendants,
including Coffey, deprived Zahrey of his constitutional right “[n]ot to be deprived of
his liberty or property or to be arrested, detained or imprisoned except upon probable
cause to believe him guilty of a crime, under the Fourth, Fifth, and Fourteenth
Amendments,” his constitutional right “[n]ot to be arrested, indicted, prosecuted, or
detained upon the testimony of witnesses who had been illegally bribed...
... We think the right at issue in this case should not be defined at such a level of
particularity as to be limited to a right not to be deprived of liberty as a result of
an investigating prosecutor’s fabrication of evidence....
... Although we ruled that further exploration of the facts was required to determine
whether the alleged fabrication occurred at the investigative or the advocacy stage, see
id. at 663, our decision appears to be premised on the existence of a right not to be
deprived of liberty resulting from a prosecutor’s investigative fabrication of
evidence....
... We agree with Judge Easterbrook (just as we agree with Judge Preska in the pending
case) that the investigatory act of obtaining evidence known to be false is not itself a
violation of a constitutional right....
13. People v. Keyes

District Court of Appeal, Second District, Division 2, California. January 31, 1930 103
Cal.App. 624 284 P. 1096 CR. 1806
Appeal from Superior Court, Los Angeles County; Edward I. Butler, Judge. Asa Keyes and
another were convicted of the crime of conspiracy, and they appeal. Affirmed. Hearing denied
by Supreme Court 284 P. 1105. See, also, 279 P. 833.
...The defense then demanded that the district attorney produce the statement referred to by
the witness, whereupon the district attorney admitted that he had such a statement in
typewriting, but refused to produce it....
...[8] This was the second question: “Now, in the Julian case, did you authorize your attorney,
Mr. Donnelly of New York, to agree with the district attorney that if he would permit you to
plead guilty to the first count of that indictment which charged conspiracy to obtain money by
false pretenses, and dismiss the other counts, that you would testify for the prosecution,
provided they would not object to a term of imprisonment in the penitentiary being made as
short as it could be made or as the authorities could be induced to make it?”...
...The letter was important as laying a basis for a showing of the reaction which appellant
Keyes exhibited to the charge, and it is to be taken in connection with the assertion of the
chief deputy that his superior was being made “a goat of” by the counsel of appellant
Rosenberg....
...The question was answered in the affirmative, and it was followed by another: “The
indictment referred to for the purpose of identification was the indictment charging Mr. Keyes
with the crime of bribery, a substantive offense?”...
** 15. People v. Vollmann

District Court of Appeal, First District, Division 2, California. April 02, 1946 73
Cal.App.2d 769 167 P.2d 545 CR. 2351
Appeal from Superior Court, Alameda County; Edward J. Tyrrell, Judge. Adolph L.
Vollmann was convicted of agreeing to accept a bribe with intent to influence his
official action, and from the judgment of conviction and from an order denying a new
trial, he appeals. Affirmed.
...‘Is there’, they ask, ‘to be put in issue and the defendant compelled to defend
possible mistakes or errors in judgment and the reasonableness of his actions prior to
the time he is charged with asking for the bribe upon an agreement to do something in
the future?’...
...You are hereby further instructed that the opening statement of the district attorney
and statements and arguments of counsel, * * * are not in themselves evidence in this
case; and that any statements, made by counsel either during the trial or argument which
are not supported by the evidence or which are inconsistent with my instructions as to
the law are to be disregarded by you * * *....
...In prosecution for agreeing to accept a bribe from housing contractors with intent to
influence accused’s official action, error in sustaining objection to cross-examination
of contractor who had testified in rebuttal that he handed accused ten $500 bills,
whether contractor had not told district attorney that contractor had never given
accused a bribe was not prejudicial where evidence apart from contractor’s testimony was
sufficient to establish agreement to accept a bribe, and fact of payment could not be
affected by contractor’s admission or denial. West’s Ann.Pen.Code, §68...
...In prosecution for agreeing to accept a bribe from housing contractors with intent to
influence accused’s official action, wherein contractor testified in rebuttal that he
handed accused ten $500 bills, denying cross-examination of contractor whether he had
not told district attorney that contractor had never given accused a bribe was error.
Pen.Code, §68....
** 19. Bertuglia v. City of New York

United States District Court, S.D. New York. March 19, 2012 839 F.Supp.2d 703 2012 WL 906958 11 CIV. 2141 JGK
CIVIL RIGHTS - Arrest and Detention. Arrestee stated §1983 false arrest claim against Port Authority employees.
...County assistant district attorneys (ADA) were not entitled to absolute immunity from arrestee’s §1983 false arrest, malicious abuse of process, and
conspiracy claims arising out of ADAs’ conduct in issuing press release and holding subsequent press conference regarding arrestee’s prosecution. 42
U.S.C.A. §1983....
...County assistant district attorneys (ADA) were entitled to absolute immunity from arrestee’s §1983 false arrest, malicious abuse of process, and
conspiracy claims arising out of ADAs’ conduct in contacting clients of arrestee’s company and telling them about criminal investigation; arrestee had already
been indicted when ADAs contacted clients, and ADAs alerted clients to indictment over course of their contacts with clients. 42 U.S.C.A. §1983....
...Allegations in amended complaint of arrestee, who owned company which contracted with Port Authority (PA) to provide cleaning services at PA bus
terminal, that county assistant district attorneys (ADA) caused subpoenas to be issued, intending to do harm to arrestee and company and to achieve
some collateral, illegitimate purpose, most importantly to make good on one ADA’s promise to “ruin” arrestee and company, stated §1983 claim for
malicious abuse of process against ADAs based on New York law. 42 U.S.C.A. §1983....
...Arrest of owner of company which contracted with Port Authority (PA) to provide cleaning services at PA bus terminal, for grand larceny and falsifying
business records, was pursuant to legal process, i.e. following the return of the grand jury indictment, and thus arrestee’s §1983 claim for false arrest, based
on New York law, against county assistant district attorneys (ADA), if any, was actually for malicious prosecution. 42 U.S.C.A. §1983....
**C 20. Zucchet v. Galardi
Court of Appeal, Fourth District, Division 1, California. September 25, 2014 229 Cal.App.4th 1466 178 Cal.Rptr.3d 363 D064104
TORTS - Malicious Prosecution. Fraud prosecution against city council member was not ”commenced by, or at the direction of”
cooperating codefendant.‐
...American Jurisprudence Second states that “[g]enerally, one who merely testifies as a witness does not, by that act, institute or continue a prosecution for
the purposes of a malicious prosecution claim” (52 Am.Jur.2d (2000) Malicious Prosecution, §27, p. 157), and that “[i]f a citizen presses the police to
apply for a complaint or takes some affirmative action to encourage the prosecution by way of advice or pressure, as opposed to merely providing
information, he or she is liable for malicious prosecution...
... Corpus Juris Secundum states that “[a]lthough an action for malicious prosecution may have as a primary basis statements made by the defendant
under oath, as a general rule, no liability, as for malicious prosecution, attaches merely by reason of testifying as a witness for the prosecution” (54 C.J.S.
(2010) Malicious Prosecution, §20, p. 752, fn. omitted) and that “[m]erely providing false information to law enforcement officials in response to those
officials’ queries during an ongoing investigation does not amount to instigating a prosecution...
...As merely being a witness in a criminal prosecution and giving information in response to a request by law enforcement in an ongoing criminal
proceeding, without more, does not give rise to a claim for malicious prosecution, Zucchet’s malicious prosecution against Galardi lacks merit....
...“It is not enough that [the person] appears as a witness against the accused either under subpoena or voluntarily and thereby aids in the prosecution of
the charges which he knows to be groundless....
** 21. People v. Griffin

District Court of Appeal, Third District, California. June 10, 1950 98 Cal.App.2d 1 219 P.2d 519 CR. 2144
William Griffin, Wiley H. Caddel and James Mullings were convicted in the Superior Court, Mendocino County, Lilburn Gibson, J., for
conspiracy to give and offer bribes to executive officers of the state and to ask for and receive bribes as executive officers and
employees of the state, and for conspiracy to operate slot machines, and for giving...
...The second portion of the indictment charging the receiving of bribes by an executive officer or employee of the state was likewise silent as to the person
or persons from whom the bribes were to be received....
...In prosecution for conspiracy to give and to offer bribes and for conspiracy to ask for and to receive bribes, instruction permitting defendants to be found
guilty of conspiracy to either give and offer bribes or to ask for and to receive bribes was proper, as against contention that defendants could only be found
guilty of both conspiracies. Pen.Code, §§67, 68....
...The defendants were then charged by the indictment with having violated section 67 of the Penal Code, as follows: Count Three charged all six
defendants with having given a bribe to Sheriff B. G. Broaddus on April 30, 1948; Count Four charged all six defendants with having given a bribe to Sheriff
Broaddus on June 3, 1948; and Count Five charged all six defendants with having given a bribe to Sheriff Broaddus’ deputy, William White, on June 3,
1948....
...This is borne out by the following facts: that McCarty and the sheriff kept in touch with each other during the course of the conspiracy, and on one occasion
met in San Francisco to discuss it; that McCarty made no effort to bring any slot machine operators into the scheme as proposed by Grange nor collected
any money from them for pay-off; that he refused to pay the $100 given to him by Grange to be paid to the sheriff as a bribe, stating to Grange, ‘If you want
to pay the sheriff, pay him yourself’; that it was his intention at the request of the sheriff to find out whether or not Grange was trying to use a pay-off to him and
start some organized vice of some kind at Lane’s Flat, and whether or not the attorney...
C**25. People v. Gliksman

Court of Appeal, Fourth District, Division 2, California. March 07, 1978 78 Cal.App.3d 343 144 Cal.Rptr. 451 CR. 9303
The Superior Court, Orange County, H. Walter Steiner, J., convicted defendant of two counts of receiving or offering to receive a bribe
by a witness, and defendant appealed. The Court of Appeal, Morris, J., held that: (1) use of word “would” rather than “shall” in jury
instruction defining agreement to receive bribe did not...
...The effect of defendant’s interpretation would be to punish only witnesses who intend to be influenced to give false testimony, but not those who intend to
be influenced with regard to their testimony in other ways, e. g., to withhold true testimony....
...In State v. Emmanuel (1953) 42 Wash.2d 1, 253 P.2d 386, the Supreme Court ofWashington, relying partially on the pattern it perceived in the California
decisions, distinguished between the crime of giving or offering a bribe and the crime of asking or receiving a bribe, requiring an actual agreement or
understanding to be shown for the former but not for the latter....
...If the Legislature had intended that a mutual understanding is essential, it could have reasonably provided that the essence of the crime be “entering into an
agreement” or “agreeing” with another to be bribed....
...It would mean that the Legislature intended to place a witness of probity in a position that he must either forthrightly reject the proposal, and thereby absolve
the wrongdoer, or deal with him insincerely in order for the crime to be complete....
**H29. Del Col v. Rice

United States District Court, E.D. New York. December 18, 2012 Not Reported in F.Supp.2d 2012 WL 6589839 11 CV 5138 MKB
Plaintiffs Robert J. Del Col, Esq. and Leftheris “Ted” Doukas filed the above-captioned action against Defendants on October 21,
2011. Plaintiffs allege that they were arrested and indicted as part of a “pay to prosecute” conspiracy. They filed the Complaint
against five categories of defendants; (1) Kathleen Rice, the...
...See, e.g., Anilao, 774 F.Supp.2d at 506 (“[A]t the motion to dismiss stage, the ․ defendants cannot hide behind the decision of the DA to prosecute and the
subsequent indictment of plaintiffs when it was the ․ defendants who allegedly spurred the County defendants to act and fed them with false testimony in
pursuit of that endeavour.”); see also Newton v. City of New York, 566 F.Supp.2d 256, 273 (S.D.N.Y.2008) (“The issue of probable cause is a question of
law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to...
...WhileRehbergv. Paulkholds thatgrandjury testimonycannotbe the solebasisfor a § 1983claim,courtshave allowed maliciousprosecution claims to
proceed, where malicious prosecution claims are based on more than false grand jury testimony....
...See, e.g., Soc’y for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1253, 1254 (2d Cir.1984) (per curiam ) (finding attorneys’ fees premature in a
case where “plaintiffs [would] be entitled to some relief, [but] it [was] impossible to be certain how much—if any—[would] eventually be granted”); Davis v. City
of New York, No. 00–CV–4309, 2000 WL 1877045, at *2 n. 7 (S.D.N.Y. Dec.27, 2000) (finding “[a]ny award of attorneys’ fees [to be] premature” where the
court granted in part and denied in part a motion to dismiss); see also Tancredi v. Metro....
...Plaintiffs allege that the only reason the indictment was brought was because the Nassau County Defendants were bribed and that the indictment was
partly secured through false testimony to the grand jury.19...
** 34. Manganiello v. City of New York

United States Court of Appeals, Second Circuit. July23, 2010 612 F.3d 149 2010 WL 2884967 09-0462
TORTS - Malicious Prosecution. Issue of whether detective engaged in misconduct in securing grand jury murder indictment was
for the jury.
...In a malicious prosecution claim under New York law, to initiate a prosecution, a defendant must do more than report the crime or give testimony; he
must play an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act and a jury may permissibly find
that a defendant initiated a prosecution where he filed the charges or prepared an alleged false confession and forwarded it to prosecutors....
...With respect to Alston, Agostini testified that he did not note in any of his DD5s his belief that Alston was playing games or that Alston wanted to be present
when witnesses Alston produced were interviewed; nor did he mention to the district attorney’s office Alston’s insistence on being present at such
interviews....
...For purposes of detective’s claim of qualified immunity from §1983 claim of malicious prosecution brought by arrestee, who was acquitted of murder
charges, it was clearly established at time of arrest and prosecution that it was unlawful for an officer to misrepresent evidence to prosecutors, fail to pass on
material information to prosecutors, or make false statements. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. §1983....
...Issue of whether detective engaged in misconduct in securing grand jury murder indictment, which would rebut the presumption of probable cause from
the indictment under New York law, by providing misrepresentations in police reports, failing to investigate certain information, and coercing false
statements from witnesses was for the jury in arrestee’s §1983 claim for malicious prosecution against detective. U.S.C.A. Const.Amend. 4; 42 U.S.C.A.
§1983....
** 46. Hill v. City of New York

United States Court of Appeals, Second Circuit. January17, 1995 45 F.3d 653 1995 WL 24313 93-9343
Mother who had previously been charged with criminal child abuse filed §1983 action against assistant district attorney, video
technicians and another employee, who assisted assistant district attorney in his videotaped interviews of her child, for allegedly
conspiring to manufacture evidence of child abuse. The District Court...
... The Court of Appeals, Cardamone, Circuit Judge, held that: (1) assistant district attorney was protected only by qualified, and not by absolute, immunity
for his conduct in investigating charges of child abuse and in advising police that there was probable cause to arrest plaintiff; (2) absolute immunity existed for
assistant district attorney’s decision to initiate prosecution and to withhold alleged Brady material; but (3) whether assistant...
...No appeal would lie from district court order denying assistant district attorney’s motion to dismiss parent’s §1983 claim, based on assistant district
attorney’s alleged prearrest misconduct in fabricating evidence later used to support criminal child sexual abuse indictment against parent, as Court of
Appeals could not determine, from pleadings alone, what function assistant district attorney was performing when he allegedly manufactured this
evidence, and whether assistant...
...Richard Adago, individually and as Assistant District Attorneyof New York County; Awilda Rialano, individually and as employee of the Child Abuse
Bureau, District Attorney, New York County; Michael Mannion, individually and as supervisor of the Video Unit, District Attorney, New York County;
Clayton Frazier, individually and as video technician, District Attorney, New York County, Defendants–Appellants....
...Video technicians and Child Abuse Bureau employee who assisted assistant district attorneyin his videotaped interviews of alleged child sexual abuse
victim were plainly acting in their capacity as employees and at assistant district attorney’s direction and could not be held liable, on conspiracy theory, for
allegedly joining with assistant district attorneyin his alleged attempt to manufacture evidence of sexual abuse by parent; parent could not recover from
video technicians and Child Abuse Bureau employee under §1983...
** 51. Coakley v. Jaffe

United States District Court, S.D. New York. April 23, 1999 49 F.Supp.2d 615 1999 WL 239426 98 CIV. 2473
Plaintiffs sued private individuals and county assistant district attorney under §1983, conspiracy to deny equal protection, false
arrest, malicious prosecution, abuse of process, breach of contract, state constitution, and negligence, for indictment of plaintiffs for
fraud and grand larceny that was allegedly result of conspiracy by...
...Plaintiffs sued private individuals and county assistant district attorneyunder §1983, conspiracy to deny equal protection, false arrest, malicious
prosecution, abuse of process, breach of contract, state constitution, and negligence, for indictment of plaintiffs for fraud and grand larceny that was
allegedly result of conspiracy by defendants to obtain advantage in civil case concerning lease of property....
...Allegation that individual private defendants wilfully caused assistant district attorneyto violate plaintiffs’ rights by manipulating the evidence presented to
Grand Jury was sufficient to survive motion to dismiss §1983 claim for false arrest, even though district attorneywas immune from personal liability. 42
U.S.C.A. §1983....
... To this end, Jaffe, Heller, and Neveloff disseminated misleading information to the Suffolk County District Attorney’s Office, and eventually obtained the
connivance of defendant Daniel Driscoll, an Assistant District Attorney, who was assigned to investigate the case....
...County assistant district attorneyaccused of abuse of process under state law was entitled to immunity; actions on which abuse of process claim was
premised, including procuring indictment, issuing Grand Jury subpoenas and obtaining an arrest warrant, were quasi-judicial and entitled to immunity....
**58. Newton v. City of New York

United States District Court, S.D. New York. July16, 2008 566 F.Supp.2d 256 2008 WL 2775646 07 CIV. 6211 (SAS)
TORTS - Malicious Prosecution. Allegations created inference of bad faith, as could negate probable cause presumption, in
malicious prosecution claim
...b.Malice...
...Plaintiff asserts that the rights infringed are his rights “not to be significantly detained pretrial except pursuant to a fair and reliable determination of probable
cause, his right to be free from a bad-faith prosecution, his right to a fair trial, his right to freedom from the deprivation of liberty without due process of law,
and his right to be free from cruel and unusual punishment.” 173...
...“‘[T]he issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to
be drawn from such facts.’...
... Plaintiff alleges that the Officer Defendants and the Bronx County District Attorney’s Office maliciouslyfalsified evidence that caused him to spend
twenty-two years in prison for a crime he did not commit....
** 60. Ricciuti v. N.Y.C. Transit Authority

United States Court of Appeals, Second Circuit. August 21, 1997 124 F.3d 123 1997 WL 473124 341, 96-7194
Arrestees brought civil rights action against city, city transit authority, transit officers, and corrections officers, alleging, among other
things, that arrests were made without probable cause and that officers conspired maliciously to prosecute arrestees on false
charges. The United States District Court for the Southern District of New...
... Taking all of plaintiffs’ evidence as true, a jury could find that Lopez knowingly took part withWheeler in the distribution of a confession he knew to be false,
and that he, together with Wheeler, lied about the circumstances surrounding Daniel Ricciuti’s arrest....
... In the case at hand the Bronx district attorney’s office reduced the charges to misdemeanor assault on June 7, 1989, and all charges were dismissed
by the court prior to trial on July 13, 1989....
...Id. Because a jury could find in plaintiffs’ favor with regard to each of the four required elements, we agree with the plaintiffs that the district court erred in
dismissing the malicious prosecution claim against Lt.Wheeler....
... Plaintiffs contend both the reduction of the felony charges by the prosecutor and the ultimate dismissal of all charges by the court came about because of
a lack of reasonable grounds for prosecution....
**62. Deskovic v. City of Peekskill

United States District Court, S.D. New York. September 25, 2012 894 F.Supp.2d 443 2012 WL 4435316 07-CV-8150 KMK, 07-CV-9488 KMK
CIVIL RIGHTS - Immunity. A county sheriff’s department investigator was entitled to qualified immunity on a §1983 familial association
claim.
...Plaintiffs allege that Stephens conspired with the Peekskill officers to deprive Deskovic of his “First, Fourth, Fifth, and Fourteenth Amendment rights not to
be compelled to be a witness against himself, to be free from unreasonable searches and seizures, not to be deprived of his liberty without due process of
law, to a fair criminal trial, and to access to the courts and executive clemency.” ...
... See McClellan v. Smith, 439 F.3d 137, 145–46 (2d Cir.2006) (vacating grant of summary judgment to defendant with respect to malicious prosecution
claim where the factual issues surrounding the plaintiff’s indictment were “sharply disputed,” and where there was an evidentiary basis to conclude that the
grand jury indictment could have been procured by fraud, perjury, or the testifying officer’s personal animus toward the plaintiff); Boyd, 336 F.3d at 77
(finding that inconsistencies between officers’ testimony, booking sheet, and plaintiff’s testimony “move[d] beyond a simple conflict of stories or mistaken
memories, and into the possibility that the police ․...
... See Ricciuti, 124 F.3d at 131 (denying summary judgment because, “[t]aking all of plaintiffs’ evidence as true, a jury could find that Lopez knowingly took
part withWheeler in the distribution of a confession he knew to be false, and that he, together with Wheeler, lied about the circumstances surrounding
[plaintiff’s] arrest,” and “[a] jury which so found might rationally infer thatWheeler and Lopez were jointly involved in a common scheme—a conspiracy to
ensure that plaintiffs were detained on false charges”); Blake, 487 F.Supp.2d at 218 (denying summary judgment to defendant on conspiracy claim,
because plaintiff...
...(Pls.’ Opp’n Ex. 53, at 1.) And, as noted above, an internal District Attorney’s office memo states that Deskovic was convicted despite DNA evidence that
the semen at the crime scene was not his, based on Deskovic’s supposed statement that he had not ejaculated during the crime....
** 63. Cook v. Sheldon
United States Court of Appeals, Second Circuit. December 02, 1994 41 F.3d 73 1994 WL 681982 302, 94-7282
An arrestee sued state troopers for violations of §1983 based on false arrest, malicious prosecution, and malicious abuse of
process. The United States District Court for the Southern District of New York, Louis L. Stanton, J., denied troopers motion for
summary judgment based on qualified immunity grounds, and troopers...
...[13]Taking Cook’s allegations to be true, it is unquestionable that these acts violated Cook’s clearly established procedural due process rights: No
reasonable law enforcement officer could think it lawful to charge a person with a crime without probable cause and for the sole purpose of retaliation....
... Cf. Easton, 947 F.2d at 1018 (while malicious criminal prosecution implicates constitutional right not to be deprived of liberty, same is not automatically
true for malicious civil prosecution)....
... This arraignment caused Cook to be held in custody....
... The Spear court was not called upon to consider whether a section 1983 claim of malicious abuse of criminal process, where the complaint alleges a
deprivation of a constitutional right, states a cognizable claim....
** 67. Jennings v. Patton

United States District Court, S.D. Mississippi, Jackson Division. February 23, 2010 718 F.Supp.2d 757 2010 WL 706497 3:08CV686TSL-JCS
CIVIL RIGHTS - Immunity. Judge was not entitled to summary judgment on suit alleging he falsely initiated criminal prosecution.
... However, Jennings has presented evidence which, if credited, suggests that Patton misrepresented manifestly material facts to the district attorney’s
office, and to the investigating officer who testified before the grand jury, and that he intentionally withheld exculpatory information, all of which would likely have
directly affected, first, the decision of the District Attorney’s office to seek an indictment, and second, the grand jury’s decision to return an indictment....
... Jennings charges that in addition to falselyrepresenting and characterizing the settlement offer and its terms to law enforcement officials as a bribe and/or
extortion, Patton withheld exculpatory evidence from the District Attorney’s office, namely the initial draft settlement agreement which Shelton had prepared
reflecting the actual terms of the settlement proposed by Shelton, i.e., $25,000 to settle Jennings’ wrongful imprisonment claim....
... See also Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (explaining that “acts undertaken by a prosecutor in
preparing for the initiation of judicial proceedings or for trial and which occur in the course of his role as an advocate for the State, are entitled to the protections
of absolute immunity”); Quinn v. Roach, 326 Fed.Appx. 280, 291–92 (5th Cir.2009) (observing that prosecutorial immunity extends to a prosecutor’s actions
in initiating, investigating and pursuing a criminal prosecution and holding that district attorneyenjoyed prosecutorial immunity for decision to seek
indictment...
...[10]Jennings’ theory of liability as to Peters is that Peters, as District Attorney, had implemented a policy and practice in his office of indicting individuals
“on a dare,” that is, he had implemented a practice of seeking an indictment notwithstanding the manifest absence of probable cause, for the sole purpose
of coercing a guilty plea....
** 71. Lehman v. Kornblau

United States District Court, E.D. New York. March 08, 2001 134 F.Supp.2d 281 2001 WL 256360 CV 99-6517 (ADS)
CIVIL RIGHTS - Wrongful Prosecution. County prosecutors were not absolutely immune from liability for malicious prosecution.
... For the sake of clarity, the Court notes that the malicious prosecution and the Section 1983 malicious prosecution claims remain as to Kornblau,
Dillon, Quigley, Emmons, Barrio, Molinelli, Flynn, the County of Nassau, and the Postal Service....
...[15]In his third cause of action, the plaintiff alleges that he “was subjected to malicious intention to find probable cause to indict, legal advise to commit
perjury in sworn affidavit and Grand Jury testimony and malicious prosecution in violation of 42 U.S.C. §1983” (complaint ¶ 75)....
... Here, the Court finds that neither the plaintiff nor the defendants Quigley, Dillon and Kornblau have provided the Court with sufficient detail regarding the
defendants’ alleged conduct for the Court to properly decide “whether ‘a reasonable officer could have believed’ his action ‘to be lawful, in light of clearly
established law and the information [he] possessed.’...
... The elements of a cause of action for malicious prosecution are “ ‘(1) the commencement or continuation of a criminal proceeding by the defendant
against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual
malice.’...
** 75. Myers v. County of Orange

United States Court of Appeals, Second Circuit. September 01, 1998 157 F.3d 66 1998 WL 672049 97-9093, 97-9055
Arrestee brought §1983 action against, inter alia, district attorney, city, and county, asserting claims for implementation of allegedly
unconstitutional policy of refusing to accept cross-complaints in criminal cases and failure to train in connection with such cases. The
United States District Court for the Southern District of New...
... Noting that Baez was “confined ․ to challenges to specific decision [s] of the District Attorneyto prosecute,” we held that “[w]here a district attorneyacts
as the manager of the district attorney’s office, the district attorneyacts as a county policymaker.” ...
... There was evidence (credited by the jury) that, from that moment on, the police department and district attorney’s office presumed Mills to be the
complainant/victim and Myers to be the perpetrator/potential defendant....
...New York courts recognize a narrow exception to general rule that district attorneys and assistant district attorneys are local county officers when a
prosecutor makes individual determinations about whether to prosecute violations of state penal laws. N.Y.McKinney’s Public Officers Law §2;
N.Y.McKinney’s County Law §53, subd. 1....
...Although, under New York law, a county cannot be held liable for an assistant district attorney’s improper filing of an indictment, a county can be liable
based upon its long history of negligent disciplinary practices regarding law enforcement personnel that give rise to the individual defendants’ conduct in
promoting the malicious prosecution of plaintiffs....
**79. Dale v. Kelley

United States District Court, W.D. New York. December 06, 1995 908 F.Supp. 125 1995 WL 728388 94-CV-6444L
Arrestee commenced civil rights action against county, county’s assistant district attorney, village, and village’s police chief, alleging
false arrest and malicious prosecution. On cross-motions for summary judgment, the District Court, Larimer, J., held that: (1)
assistant district attorney was not entitled to absolute immunity on...
... Thus, “an allegation of deficiencies in the ‘management of the [district attorney’s] office’ would appear to be necessary ․ in order for any claim of
malicious prosecution against the County ․ to stand.” ...
...[47][48]Taken together, then, Baez and Gentile stand for the proposition that “[w]here a district attorneyacts as the manager of the district attorney’s
office, the district attorneyacts as a county policymaker.” ...
...“Consequently, as long as a plaintiff’s ‘claims center[] not on decisions whether or not, and on what charges, to prosecute but rather on the administration
of the district attorney’s office,’ there can be liability against a New York county for an alleged malicious prosecution.” ...
...In Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir.1991), the court limited Baez somewhat by holding that a municipality could be held liable in a §1983
malicious prosecution case if the district attorneyhad a “long history of negligent disciplinary practices regarding law enforcement personnel, which gave
rise to the individual defendants’ conduct in promoting the malicious prosecution of plaintiffs.” ...
** 82. Spurlock v. Whitley

United States District Court, M.D. Tennessee, Nashville Division. July17, 1997 971 F.Supp. 1166 1997 WL 431162 3:96-0927, 3:96-0926
Plaintiffs, whose convictions on reprosecution for murder were subsequently vacated, sued for wrongful investigation, prosecution,
conviction, incarceration and reprosecution based on alleged fabricated evidence and perjured testimony by city and county officers
and attorneys, and brought claims under §§1981, 1983, and state law...
...On May 9, 1990, District AttorneyWhitley and Assistant District Attorney Kitchen allegedly presented Apple’s false accusations to a Sumner County
Grand Jury, which indicted Spurlock and Marshall for the crime of first degree murder in the killing of Lonnie Malone....
...Rule 56(f) provides that the court may “refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as is just.”...
...During Plaintiff Spurlock’s trial, DeputySatterfield, as part of an agreement with District AttorneyWhitley and Assistant District AttorneyKitchen,
allegedly testified falselyin an effort to bolster Apple’s credibility, which had been called into question during cross examination....
...During the proceedings against Plaintiffs Spurlock and Marshall, District AttorneyWhitley and Assistant District AttorneyKitchen allegedly falsely
represented to counsel for Spurlock and Marshall and the state court that Apple had made no statements before the April 30, 1990 statement, and withheld
other information they were required by law to provide to defense counsel....
** 86. Doe v. Phillips
United States Court of Appeals, Second Circuit. April 22, 1996 81 F.3d 1204 1996 WL 191594 95-7659, 870
Plaintiff brought §1983 action against prosecutor for violation of her First Amendment rights. The United States District Court for the
Southern District of New York, Charles L. Brieant, J., denied prosecutor’s motion for summary judgment based on absolute and
qualified immunity, and prosecutor appealed. The Court of...
... In Dory, a prosecutor who allegedly participated in a conspiracy to present false evidence at trial was held to be absolutely immune, 25 F.3d at 83,
because the “professional evaluation of the evidence ․ and appropriate preparation for its presentation at trial” are prosecutorial acts....
...The district court also rejected D’Amelia’s theory that he was entitled to qualified immunity on the basis of his consultation with several other assistant
district attorneys in his office, none of whom saw the proposed ceremony as an inappropriate condition....
... That inquiry, however, conflates a generic function of a prosecutor (taking a statement under oath) with the aspect of that conduct which is alleged to be
unconstitutional (taking that statement in a church, on a Bible, etc.)....
...[7]Within this framework, a prosecutor has absolute immunity from a claim for damages for commencing a prosecution, see, e.g., Imbler v. Pachtman,
424 U.S. at 431, 96 S.Ct. at 995 (prosecutor absolutely immune from damages for “initiating a prosecution”); Barr v. Abrams, 810 F.2d 358, 362 (2d
Cir.1987) (absolute immunity extends to filing criminal information and procuring arrest warrant), as well as for his performance of tasks as an advocate in
the conduct of the prosecution, see, e.g., Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994) (prosecutor absolutely immune from liability on damages claim that he
conspired to present false...
** 94. Watson v. Grady
United States District Court, S.D. New York. September 30, 2010 Not Reported in F.Supp.2d 2010 WL 3835047 09-CV-3055 KMK
Plaintiff Robert C. Watson, Sr. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983 (“ § 1983”) against District Attorney William
Grady (“Grady”), Deputy District Attorney Edward Whitesell (“Whitesell”), Comptroller Thomas DiNapoli (“DiNapoli”), Beth Sims,
Esq....
...However, the Second Circuit has explained that “the investigatory act of obtaining evidence known to be false is not itself a violation of a constitutional right,”
but that a plaintiff may state a claim against a prosecutor “where a deprivation of liberty results from the initial act of obtaining evidence known to be false, at
least ․ where the same person who fabricated the evidence forseeably used it.”...
...See Rohman, 215 F.3d at 217 (noting that a defendant must play an “active role in the prosecution” to be liable for malicious prosecution, and finding
that this standard was not met when the defendant was responsible for an investigation into the plaintiff at work, but did not give the fruits of that investigation to
the police or further the prosecution); Mitchell v. Home, 377 F.Supp.2d 361, 377 (S.D.N.Y.2005) (granting motion to dismiss because the defendant’s
sending a statutorily required report to a state agency, which led to an investigation, did not initiate the prosecution...
...To be clear, it remains to be seen, with the benefit of discovery, whether any individual Board member, or even a group of Board members, can fairly be
said to have final policymaking authority for the Defendant Board....
...See Young v. Suffolk County, 705 F.Supp.2d 183, 198–99 (E.D.N.Y.2010) (finding that the plaintiff had sufficiently alleged concerted action by asserting
that private defendants, including an attorney, “provided the police with a false premise for the search ․ and accompanied the police on the alleged unlawful
search”); Friedman v. N.Y.C. Admin. for Children’s Servs., No. 04–CV–3077, 2005 WL 2436219, at *8–9 (E.D.N.Y. Sept. 30, 2005) (denying private
defendant’s motion to dismiss when the plaintiff alleged that he had purposefully “provided [the government agency] with false and malicious information”);
Coakley v. Jaffe, 49 F.Supp.2d 615, 624 (S.D.N.Y.1999)...
P.C. § 68. Bribes; executive or ministerial officers, employees, or appointees; asking

or receiving; punishment
(a) Every executive or ministerial officer, employee, or appointee of the State of

California, a county or city therein, or a political subdivision thereof, who asks,
receives, or agrees to receive, any bribe, upon any agreement or understanding that his
or her vote, opinion, or action upon any matter then pending, or that may be brought
before him or her in his or her official capacity, shall be influenced thereby, is
punishable by imprisonment in the state prison for two, three, or four years and, in
cases in which no bribe has been actually received, by a restitution fine of not less
than two thousand dollars ($2,000) or not more than ten thousand dollars ($10,000) or,
in cases in which a bribe was actually received, by a restitution fine of at least the
actual amount of the bribe received or two thousand dollars ($2,000), whichever is
greater, or any larger amount of not more than double the amount of any bribe received
or ten thousand dollars ($10,000), whichever is greater, and, in addition thereto,
forfeits his or her office, employment, or appointment, and is forever disqualified from
holding any office, employment, or appointment, in this state.
(b) In imposing a restitution fine pursuant to this section, the court shall consider
the defendant's ability to pay the fine.
2. Elements
**Bribery does not require that a specific official action was pending when the bribe
was given, or proof that the bribe was intended to influence any particular such act;
rather, it is sufficient that the evidence reflect that there existed subjects of
potential action by the recipient, and that the bribe was given or received with the
intent that some such action be influenced. People v. Gaio (App. 2 Dist. 2000) 97
Cal.Rptr.2d 392, 81 Cal.App.4th 919, review denied. Bribery 1(1)
**Bribery involves a payment designed to alter the outcome of any matter that could
conceivably come before the official, and a large number of such matters may provide
alternative predicates for the offense. People v. Gaio (App. 2 Dist. 2000) 97
5. Agreement or understanding
**Reference in bribery statute to the recipient's “agreement or understanding” to be

influenced does not connote an extrinsic agreement with the giver, but rather, the
recipient's own intent; the corrupt intent of the recipient (or of the giver, in the
case of giving a bribe) need not be reciprocated. People v. Gaio (App. 2 Dist. 2000) 97
**In a bribery prosecution, it is the payment, or the agreement to provide payment, that
constitutes the criminal act, and it is that payment or agreement, not the possible
object of influence, that must be found unanimously. People v. Gaio (App. 2 Dist. 2000)
97 Cal.Rptr.2d 392, 81 Cal.App.4th 919, review denied. Bribery 1(1)
**A meeting of the minds is not required to establish agreement to take a bribe. People
v. Vollmann (App. 1946) 73 Cal.App.2d 769, 167 P.2d 545. Bribery 1(1)
**Agreement between executive officer seeking bribe and person unlawfully approached was
unnecessary to constitute offense under this section, providing for punishment of
executive officer who asks bribe upon understanding that his official action should be
influenced thereby, where there is understanding on part of such bribe seeker that his
official action shall be influenced. People v. Kerns (App. 2 Dist. 1935) 9 Cal.App.2d 72,
48 P.2d 750. Bribery 1(2)
** 25. People v. Davis

Supreme Court of California October 27, 1930 210 Cal. 540 293 P. 32 CR 3352
In Bank. Harold L. Davis was convicted of crime of asking, agreeing to receive, and
receiving a bribe, and he appeals. Reversed. For opinion of District Court of Appeal,
herewith adopted, see 288 P. 95.
...It is likewise true that since 1915, under the amendment of that year to section 1111
of the Penal Code providing that an accomplice is one who is liable to the prosecution
for the identical offense charged against the defendant on trial, the giver and receiver
of a bribe are no longer accomplices one to the other (although that was formerly the
law of this state, People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A. (N. S.) 704),
inasmuch as the asking or receiving a bribe is made a separate offense from offering or
giving a bribe, under section 68...
...There is no evidence whatever of the asking for a bribe to be given by Getzoff, or
the agreeing to receive or the receiving of a bribe from Getzoff....
...In prosecution for bribery whether go-between or intermediary asking or receiving
bribe was acting as agent or accomplice of both bribe giver and bribe receiver presented
questions for the jury....
...[9][10] And even if it be assumed that the so-called corroborative testimony is
technically sufficient to prove the asking, agreeing to receive, and receiving a bribe
from Ed Rosenberg, nevertheless it leaves the case in that weak and unsatisfactory
condition in which errors become important, because in such case they much more easily
lead to a miscarriage of justice than in those cases where there is abundance of
reliable evidence of the defendant’s guilt....
** 66. People v. Vincilione

District Court of Appeal, First District, California November 21, 1911 17 Cal.App. 513
120 P. 438 339
Appeal from Superior Court, Marin County; Edgar T. Zook, Judge. Paul A. Vincilione was
convicted of bribery, and he appeals from the judgment of conviction and from an order
denying a new trial. Affirmed.
...The phrase “anything of value or advantage, present or prospective,” implies a future
existence and probable value of the thing offered, based upon present indications; and
it is not necessary to a completion of the crime of offering to give a bribe that the
thing offered as a bribe should have a present existence or a definite and ascertained
value....
...To offer a thing in the future which, at the time agreed upon for future delivery,
will have being and value is to offer a valuable thing, within the meaning of the
statute; and, as the gravamen of the offense is the tendency which the thing offered as
a bribe may have to pervert justice or corrupt official action, the crime is complete
the moment an offer is made to give something to a public officer with a corrupt intent
to unlawfully influence him in his official conduct, which may have a future existence
and a prospective value....
...[3] The indictment was presented and filed on January 25, 1911, and the offer of the
bribe is alleged therein to have been made on the 2d day of August, 1909....
...[4] There is no merit in the contention that the evidence is insufficient to support
the verdict, because it was not shown that the offer to give a bribe was made in the
precise language and upon the express condition set out in the indictment....
1 alr 4th 959 Validity, construction, and effect of state laws requiring public officials to
protect confidentiality of income tax returns or information
**It was held in Samish v Superior Court of Sacramento County (1938) 28 Cal App 2d 685, 83
P2d 305, that a grand jury investigating bribery and lobbying of state legislators was
authorized to force the petitioner to disclose the facts and figures contained in the copies
of his income tax reports, the originals of which were filed with the federal and state
governments for taxation purposes, the court concluding that copies of income tax reports
remaining in the hands of the maker thereof were not privileged by the terms of a state
statute providing that except in accordance with proper judicial order or as otherwise
provided by law, it shall be unlawful for certain tax officials to divulge or make known in
any manner the amount of income or any particulars set forth or disclosed in any report or
return required under the state personal income tax law. The court pointed out that the
statute in question was silent with respect to copies of tax reports in the hands of any
persons other than tax officials and their agents, and that the statute specifically limited
the application of the privilege to tax officials having custody of the original documents.
**After finding that corporate officer breached her fiduciary duties and committed fraud
and malice against real estate developers, trial court properly ordered officer to disclose,
for purposes of punitive damages phase of trial, her personal income tax returns pursuant to
narrow exception to privilege against disclosure that existed when a public policy greater
than that of the confidentiality of tax returns was involved; officer engaged in conduct
precluding developers from obtaining relevant nonprivileged financial information, and there
was no less intrusive alternative to obtain that information. Weingarten v. Superior Court,
125 Cal. Rptr. 2d 371 (App. 4th Dist. 2002).
70 alr 2d 240 discov inspec income tax returns action between priv individuals.doc
**Courts generally apply a two-pronged test to assure a balance between the liberal scope of
discovery and the policy favoring the confidentiality of tax returns: first, the court must
find that the returns are relevant to the subject matter of the action; and second, the court
must find that there is a compelling need for the returns because the information contained
therein is not otherwise readily obtainable. A. Farber and Partners, Inc. v. Garber, 234
F.R.D. 186 (C.D. Cal. 2006).
**A court may only order the production of a plaintiff’s tax returns if they are relevant and
when there is a compelling need for them because the information sought is not otherwise
available. Aliotti v. Vessel SENORA, 217 F.R.D. 496 (N.D. Cal. 2003).
§ 13. Materiality of returns to proof of claim or defense
**In securities fraud class action, plaintiff’s objections to discovery of his income tax
return would be overruled, despite policy favoring confidentiality of tax returns, where
court was also required to consider policy favoring liberal discovery, and where certain tax
information contained in returns was specifically relevant or could be specifically relevant
to case. Sharp v. Coopers & Lybrand, 83 F.R.D. 343, Fed. Sec. L. Rep. (CCH) ¶96952 (E.D. Pa.
1979) and (criticized by In re Atlantic Financial Management, Inc., 784 F.2d 29, Fed. Sec. L.
Rep. (CCH) ¶92482 (1st Cir. 1986)) and (criticized on other grounds by Kersh v. General
Council of Assemblies of God, 804 F.2d 546, Fed. Sec. L. Rep. (CCH) ¶93000 (9th Cir. 1986))
and (overruled on other grounds as stated in McCarter v. Mitcham, 883 F.2d 196, Blue Sky L.
Rep. (CCH) ¶73023, Fed. Sec. L. Rep. (CCH) ¶94547, R.I.C.O. Bus. Disp. Guide (CCH) ¶7281 (3d
Cir. 1989)).
Priv_commun_confid_public_officers_records_tax_returns_or_info_ca_all_digest.doc
Heathman v. U.S. Dist. Court for Central Dist. of California, 503 F.2d 1032
C.A.9.Cal.,1974
Federal income tax statute concerning information obtained by inspection of income tax
returns by state bodies, commissions or officials only restricts dissemination of tax returns
by government, and does not otherwise make copies of tax returns privileged. 26 U.S.C.A.
(I.R.C.1954) § 6103(a)(2).

Heathman v. U.S. Dist. Court for Central Dist. of California, 503 F.2d 1032
C.A.9.Cal.,1974
Discovery of copies of income tax returns does not violate right of privacy and right to be
free from unreasonable searches and seizures. 26 U.S.C.A. (I.R.C.1954) § 6103(a)(2).

A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186
C.D.Cal.,2006
Defendant in action involving civil claims under the Racketeer Influenced and Corrupt
Organizations Act (RICO) would be required to produce tax records to plaintiff over privacy
objection, as information sought was relevant, especially to plaintiff's civil RICO claims,
and defendant did not show that information sought was available from other sources; moreover,
privacy impact of disclosure could be mitigated by protective order.

Weingarten v. Superior Court, 125 Cal.Rptr.2d 371
Narrow exception to privilege against disclosing income tax returns exists when a public
policy greater than that of the confidentiality of tax returns is involved, and exception
applies only when warranted by a legislatively declared public policy.

Young v. U.S., 149 F.R.D. 199
S.D.Cal.,1993
Under federal law, tax returns are generally discoverable where necessary in private civil
litigation.

Weingarten v. Superior Court, 125 Cal.Rptr.2d 371
After finding that corporate officer breached her fiduciary duties and committed fraud and
malice against real estate developers, trial court properly ordered officer to disclose, for
purposes of punitive damages phase of trial, her personal income tax returns pursuant to
narrow exception to privilege against disclosure that existed when a public policy greater
than that of the confidentiality of tax returns was involved; officer engaged in conduct
precluding developers from obtaining relevant nonprivileged financial information, and there
was no less intrusive alternative to obtain that information.

Weststeyn Dairy 2 v. Eades Commodities Co., 280 F.Supp.2d 1044
E.D.Cal.,2003
Any tax return privilege is avoided when nature of underlying transactions is in dispute and
there is no alternative source for the information.
keywords: Bank deposits method of proving income

operation greylord prosecution method of proving unexplained income bribery tax evasion
prosecution proof of bribery of public official by showing expenses lifestyle beyond the
means of the stated income financial disclosure
prosecutor proof of bribery tax evasion by bank deposits method of proving income to
show lifestyle expenses beyond exceeding means stated income
Financial Investigation. One of the most successful ways to produce evidence against
corrupt public officials is to conduct financial investigations to prove that they spend
or possess assets beyond the means of their income (see Financial Investigations and
Monitoring of Assets). This will help to produce a preponderance of evidence of
corruption, and can identify those illegal assets that might later be confiscated.
However, suspects are unlikely to place the bounty from a bribe into their daily bank
accounts and instead may transform the proceeds into other forms of property. Therefore,
financial investigations should also concentrate on the lifestyles, expenditures and
property of the suspected persons. In this respect, it might be extremely helpful
to look not only at what has actually been spent, but also to compare the amounts of
money deposited into the bank accounts of suspects with deposits from previous years.
Efforts should also be focused on identifying whether the suspected corrupt person
maintains foreign accounts. The existence of such an account can be suspicious alone and
indicate that funds are being hidden. In order to be effective, financial
investigations should be extended to the suspected persons’ family members and those
living in the same household: experience shows that they are often used as conduits for
corruption proceeds.
Income control system public officials for public officials for republic of Latvia.pdf
With an indirect method of proof, the amount of income a defendant

allegedly received is shown circumstantially by adding the amounts of
money deposited by the defendant over a period of time ("bank deposits"
method); calculating the increase in a defendant's visible wealth, such as
new homes, investments, automobiles, boats, etc. ("net worth" method); or
simply documenting cash expenditures by a defendant ("cash expenditure"
method). When these indirect methods of proof reveal an amount of income
in excess of the defendant's income as reported to the IRS, a presumption
arises that the defendant has not reported all income. The defendant bears
the burden of rebutting this presumption. Government agents have a duty to
investigate leads provided by a taxpayer regarding nontaxable sources of
income. In indirect method cases, the government is not required to disprove
every possible source of nontaxable income, or document the defendant's
finances “to a mathematical certainty.” (A complete explanation of indirect
methods prepared by ARD, USAID/Nepal Publication, Anti Corruption Investigation and
Trial Guide, is attached as Exhibit A. Also see
http://www.usdoj.gov/tax/readingroom/2001ctm/31ctax.htm for a complete
step-by-step analysis of the United States Criminal Tax Manual on the
computation of net worth).
4.1.2 Lifestyle Checks and Complaints

Lifestyle checks are inquiries into whether the lifestyle of a public offi cial is manifestly
out of proportion to his or her known income. Th ey are undertaken by examining
the assets, activities, and expenditures of a public offi cial. Th ese may include a
valuation of immovable property and vehicles, verifi cation of income, stocks, nature
of schools attended by children, loan and tax payments, travel, extravagant parties,
and other expenditures. Lifestyle checks may also include reputational and family
background checks, which are a useful starting point and subject to corroboration.
To avoid abuse, standard operating procedures may be developed on how to run
lifestyle checks.
4.2.2 Building a Financial Profile

Building a solid case demonstrating a discrepancy in assets requires investigators to
construct a financial profi le of the public offi cial from a starting point in time up to the
point where the alleged illicit enrichment is identifi ed. Th e fi nancial profi le will demonstrate
what the offi cial owns, owes, earns from legitimate sources of income, and spends
over a period of time. Forensic accountants have developed various techniques for constructing
and presenting fi nancial profi les, the net worth analysis80 being one of the
most commonly used and long recognized by courts.81 Other techniques focus on elements
of the fi nancial profi le, such as expenditures relative to known income or bank
deposits, to identify unknown sources of funds.
Selecting the appropriate starting point or baseline for the fi nancial profi le is critical.
Th is starting point may be the offi cial’s entry in offi ce or employment. If the offi cial has
been employed for a long time, a more recent date may be chosen. In either case, the
profi le requires documentation and other evidence regarding the offi cial’s assets and
liabilities. Without a reliable baseline, it will be impossible to determine whether subsequent
receipts and payments are legitimate or not. Caution should be exercised to avoid
unduly narrow investigations, which might disregard key assets. Conducting checks for
overly lengthy periods may present similar challenges. For example, countries where
stability of currency is a concern may have diffi culty assessing the value of properties
acquired over a lengthy period.
As demonstrated by the approach in some states, it may be helpful for an illicit enrichment
provision to extend for a reasonable period beyond a public offi cial’s term of
offi ce, so that any corrupt benefi ts received during this period can be included in the
prosecution (see chapter 2). Such a provision can be supplemented by administrative
instructions that give guidance to the prosecution on how to exercise discretion in
prosecuting illicit enrichment.
A declaration of assets, a loan application, or tax information will usually provide basic
information for a baseline fi nancial profi le. Th is information will have to be verifi ed.
Assets may include accounts in various banks, securities or options in public and private
corporations, insurance policies and other fi nancial instruments, movable property
(boat, plane) and real estate, and high-value items such as antiques, art, and jewelry. Th e
acquisition of assets has to be valued at the purchase price (the cost at the time they were
acquired); the disposal of assets has to be at the sale price. Liabilities may include loans
and mortgages, some of which may not be through formal fi nancial institutions. Th e
investigator also has to identify all legitimate sources of income and track expenditures.
Because illicit enrichment criminalizes merely the existence of a signifi cant increase in
a public offi cial’s assets without a viable explanation, the prosecution therefore does not
have to demonstrate or link the assets to any underlying criminal act. Th is is the major
advantage of the criminalization of illicit enrichment from a prosecutorial perspective.
4.2.3 Tools and Skills to Facilitate Investigations

Most of these requirements are not specifi c to investigations related to illicit enrichment.
Th ey are obviously a prerequisite for any eff ective investigation on fi nancial
crimes. However, they are of special interest when investigating or prosecuting illicit
enrichment due to the complexity of the investigations. Showing an increase in assets
during a period of time is not such an easy task, and many challenges will occur during
the course of the investigation.
In order to compile all relevant information, investigators will need to have access to a
wide range of data sources and registries. Th ese will include public property and vehicle
registries, bank account records, and records of fi nancial institutions. Additional information
may have to be collected through interviews with third parties familiar with the
offi cial’s fi nancial aff airs, including accountants and lawyers. On-site inspections may
be needed to identify assets that are not documented.
Since it is oft en impossible to track all income and expenditures, the investigator will
have to make some assumptions and draw inferences. Th ere are particular challenges
in determining the amount of cash on hand—money not deposited with fi nancial
institutions—and expenditures. Th e amount of cash on hand may have to be inferred
from other fi nancial records, and expenditures will oft en have to be estimated on the
basis of assumptions regarding a reasonable cost of living. Where businesses are
involved, a forensic accountant may have to construct a profi le and compare key characteristics
of the business activities with those of comparable enterprises. Th e courts
will subsequently have to determine whether these inferences and assumptions are
convincing.
Beyond the fi nancial profi le and the evidence of disproportion between legitimate
income and growth in net worth, expenditures, or bank deposits, the prosecutor or
investigative magistrate may be able to draw other inferences from the circumstances of
the case. For instance, the prosecution may be able to point to measures taken by the
offi cial to conceal the funds. Th e prosecution or magistrate may also be able to point to
leads and theories regarding the corrupt conduct that generated the alleged illicit
enrichment, even if these cannot be proven to the requisite standard.
48 I On the Take
It is also important to investigate discreetly and to verify the suspect’s personal and
familial particulars. It may be useful in this respect to draw up a list of close family and
associates in whose names key assets may be held or who may be in a position to lend
assistance in the concealment of assets.
Provisions will need to be put in place for the preservation of assets pending disposal of
the illicit enrichment case. Th is may include powers to obtain orders at any time to
freeze and seize the property in possession of an accused, any relative, any associate, or
any person on his behalf. Another alternative is to prohibit by statute the transfer of
property subject to prosecution once an investigation has been initiated, as in Pakistan.82
In order to strengthen the effi ciency and eff ectiveness of investigations, the investigating
team may use the services of document experts and notaries to prove forgeries or
antedated documentation of false inheritance. Cyber forensics experts may also be useful
in a variety of ways, including analyzing hard disks, cracking passwords to unearth
proof of benefi cial ownership, and tracking foreign remittances and dematerialized
accounts. In addition, forensic accountants on the team may help to disprove false
claims of income by the associates as well as detect the use of corporate vehicles. From
an early stage, it will be helpful to have valuators on hand who can immediately assist
with the valuation of any assets subject to an illicit enrichment investigation.
4.3 Process and Interaction with the Public Offi cial

during the Investigation
4.3.1 Stages of the Procedure
An illicit enrichment case is initiated by an investigation and is followed by prosecution
through the diff erent stages outlined in chapter 2 and in fi gure 2.1.
Once suffi cient evidence has been gathered through investigation, diff erent jurisdictions
take diff erent approaches. On the one hand, evidence may be presented to allow
the public offi cial to provide a reasonable explanation; on the other hand, a case may be
instituted immediately to allow the offi cial to provide an explanation in court.
Regarding the sequence of events, once the investigation has revealed the existence of
disproportionate assets and the public servant has failed to account or explain such
excess, the off ense becomes complete. Th is does not mean that a charge cannot be
framed until the public servant fails to explain the excess or surplus, as this exercise can
be completed only in the trial.83 In other words, a public servant may be charged with
illicit enrichment before failing to provide a reasonable explanation at trial.
In India, aft er all evidence has been collected, the investigating offi cer is not legally
bound to ask a suspect to account for the excess of the assets over the known sources of
income, as to do so would elevate him to the position of an enquiry offi cer or a judge. 84
Th e investigating offi cer is only required to collect material to fi nd out whether the
alleged off ense appears to have been committed and may, in the course of the investigation,
examine the accused. Indeed, fair investigation requires that the accused should
not be kept in the dark, especially if he is willing to cooperate.
In Pakistan, a standard operating procedure established in 2006 established that, upon
receipt of a complaint and before initiating an inquiry, the accused would be given an
opportunity to explain his assets to save him the embarrassment of a formal inquiry if
he is able to justify them.
In rebutting the prosecution’s case, the accused may demonstrate that the increase in
net worth, expenditures, or bank deposits originated from legitimate sources. Substantiated
explanations may include inheritance of assets, lottery or gambling winnings,
employment outside the public sector, as well as proceeds from investments, business
interests, or income-generating activities. Occasionally, an illicit enrichment case has
turned on the legitimacy of the source of income. In the Alsogaray case in Argentina,
for example, the accused sought to justify a portion of the increase in her fortune by
demonstrating that she regularly received informal allowances from the Argentine
Intelligence Agency that were paid to her as “salary bonus.” While the court accepted
the fact that the allowances were paid regularly and ordered the opening of a formal
criminal investigation over such facts, it ultimately held that these payments were not
legitimate.
In many cases, even if the public offi cial’s enrichment is legally explained, he or she may
still remain liable for other off enses (box 4.1).
Hoist on Their Own Petard — How Forensic Accountants Catch Small-Time

Scammers
Tuesday, August 11th, 2009
No law today. Let’s have a police procedural for a change. We’re in the mood for some white-
collar stuff, so here goes.
Forget about the Madoff case. Most financial crimes are nowhere near as headline-worthy, nor
do they involve such massive amounts of other people’s money. But smaller scams are just as
likely to get prosecuted, and they’re just as much a felony as the big ones. And though the news
may not report it, people get caught and convicted all the time.
And like Al Capone, the smaller scammers aren’t caught by the gun-toting detectives so much as
by the green visor-wearing accountants.
It’s usually a case of self-incrimination. Defendants usually create the very evidence that puts
them behind bars, in their financial books and records. Of course, most of them aren’t doing it on
purpose. They’re not creating blatant records that flatly proclaim “here there be crimes.” Most
take pains to avoid creating records of improper doings, and to conceal or camouflage the rest.
But it is often those very attempts to hide their activities that wind up calling attention to them.
-=-=-=-
Every law enforcement agent knows that, to catch the “bad guys,” you need to follow the money.
Who wound up with the cash or the assets? How did the money get from person A to person B,
and so on to Mr. X?
One easy way to start is to look at public documents. Lots of records get publicly filed, for
anybody to look at, and they can be good leads. Does Mr. X own a house? Pull the deed from the
county clerk’s office. There’s going to be information that leads to the mortgage itself, and then
Mr. X’s bank records are just a subpoena away. Probate records lead to the estate, which leads to
more bank records and real estate records. Does someone have a rap sheet already? Maybe they
had to post bond in an earlier case. That’s going to show the source of the lien, and lead to more
assets. Dun & Bradstreet and similar records can tell whether someone has a lien against Mr. X
— such people are often more than willing to give more information to law enforcement. Heck,
even newspapers can be a source of leads to get an investigation started.
Paper begets paper. Or computer data. It is nigh impossible to have dealings of any significance
without some record being kept somewhere, in some form.
When following leads, the investigator ought to have an idea of what he’s looking at. What kind
of business is this company in? Where are they located? What do they spend money on? The
investigator can’t tell whether something is unusual unless he knows what the usual looks like.
Maybe this is a kickback scheme. If I am demanding kickbacks from you, or bribes, or extortion
payments so I allow you to keep doing business with me, then maybe I don’t want that money
coming directly to me. And maybe you don’t want it coming directly from you. So perhaps I set
up a “consulting” company to receive payments from you. Or maybe you set up a “customer”
company to make payments to me. Or perhaps we do both. Maybe we have lots of shell
companies, or only one. If the investigator figures it out, though, our cautions might turn around
to condemn us.
Maybe you pay me with a no-show job. If so, you’d better be careful about who is holding back
my payroll checks or delivering them to me. And is my pay typical of my job? A steady, constant
paycheck is more typical of an office worker than a blue-collar worker, after all. These are
possible tipoffs to an investigator. And paper begets paper.
-=-=-=-
So how else do they get the paper, apart from going to public records?
Subpoenas are the main stock-in-trade of the white-collar investigation team. Smart teams won’t
subpoena the world, of course, because that just makes for far more work than necessary, while
increasing the odds of tipping off Mr. X to the existence of the investigation. Instead, they’ll just
limit their subpoenas to what they really need. Narrow requests also make more subpoenas
necessary down the road, which keeps open a line of communication.
A shotgun subpoena followed by a narrower one just tips off defense attorneys like us. We see
something like that, we have a chat with the client, and figure out what the investigators are
probably looking for. We get all that extra time to prepare our defense.
When in doubt, utility bills are a common lead-generator, to figure out how someone is paying
for their phone, cable, electricity, etc.
One thing they’ll probably want to see are old tax returns, especially for a business. Tax returns
can be a mine of useful information, such as who formed the business, who the officers are, how
much they get paid, who their accountant is (always a good person to interrog… ah, interview).
And if the tax returns don’t match reality, well that’s another charge for the grand jury to hear,
isn’t it?
The company’s accountant often did the tax returns for the owners and officers, too.
Investigators can request the accountant’s retained copies of those returns, and find out all kinds
of information about assets, mortgages, sources of income, etc.
Canceled checks are a high-want item. They’re one way of seeing who’s paying money to
whom.
Bright investigators don’t settle for photocopies, but insist on originals. Critical information
could have been whited out before copying. Photocopies are often illegible, and may not include
the all-important information on the back of checks showing who deposited it and to what
account.
In general, subpoenas are going to be issued to non-targets. There’s little point in asking the
suspect to provide the evidence that will hang him. All it does is raise him up. And a savvy
defense attorney is going to bring that client in to present the documents to the grand jury —
because here in New York, for example, it is far too easy for the prosecutor to slip up and confer
total transactional immunity on the client right there in the grand jury. (That’s a topic for a whole
nother post.)
No, suspects aren’t usually the ones who get subpoenaed. They get searched.
-=-=-=-
Search warrants are a unique chance for the investigators to get all that stuff they never would
have gotten from a subpoena. The “second set of books,” rather than the official set they keep for
the IRS and other outside eyes. The secret records. (Although these can sometimes be viewed by
an undercover posing as a legitimate potential buyer of the business.)
That’s what the investigators are hoping for: a “smoking gun” document of some kind. Original
documents with all the info that got whited out in the subpoena response. Records of illicit
payments made, cash skimmed, investors gypped. Evidence that customers were told one thing,
but reality was something else entirely. It may be buried somewhere in all those boxes of docs
and all those hard drives, but they can’t wait to find it.
These records may be as simple as a notebook or a wad of scratch paper. They could be as
detailed as anything. Maybe there’s evidence of a cash payroll — which leads to questions of
where that cash came from (the bank? really?) on top of issues of tax and benefits evasion.
Maybe there’s a little black book recording paid bribes, or extortion payments received.
Search warrants are often a fine way to gain evidence of embezzlement. Maybe those personal
expenses were paid for with the business’s money, or with investors’ deposits. A good search
warrant team will have agents who know what they’re looking for, others speaking to the
subject. Others will be busy talking to witnesses, family members, employees and others at the
location, letting them think the cops know exactly what’s going on, so they’d better come clean.
In a suspect’s home, the search team might see pictures of that really nice boat, or expensive
collections, or the like. Investigators love to see things like that, especially when the checkbook
doesn’t show those expenses. A lifestyle and possessions beyond one’s official means is going to
make them poke around for illegitimate sources of cash.
Obviously, the execution of a search warrant means the investigation ain’t a secret any more. So
these usually come at the end of an investigation.
-=-=-=-=-
So how about some examples. Let’s say I have ABC company. Law enforcement subpoenaed or
seized a bunch of payroll checks. Every week, my company is cutting a few dozen checks to
employees. They all look totally legit, until one of the forensic accountants notices that Joe Blow
tends to deposit four or five checks at a time, all on the same day. That means he’s probably not
getting them each week like a normal employee, but is receiving a bunch of them once a month.
That is typical of a no-show job. Joe Blow and I are now just that much closer to getting caught.
Thanks, Joe.
Meanwhile, my manufacturing company DEF sends out invoices every month or so to Jack
Nimble, charging tens or hundreds of thousands of dollars for all kinds of different products
being delivered. Payment is due on receipt, send the check to my headquarters at 1405 Blank
Lane, Suite 120. Unfortunately, the forensic accountant noticed that each month’s invoice
number is one more than the previous month’s. Do I only have one customer, for all these things
I’m selling? And Suite 120 turns out to be a mail drop box number. Suspicious. They’re going to
watch that box and I.D. who uses it, and maybe figure out who’s paying for it. And due on
receipt? Someone’s standing on the loading dock with a check for a couple hundred grand? No
way. And anyway, how come there are no bills of lading, shipping records, or anything else
indicating this really happened? This looks like Jack Nimble is paying me some kickbacks
through a shell company.
Original checks are a treasure trove. I’m cutting tons of them to small suppliers, nothing more
than $9500 or so. Oddly enough, however, they all tend to get cashed at the same check-cashing
joint. They’re not deposited to anyone’s accounts. Looks like I’m laundering some money.
Investigators are going to check up on these companies to see if they’re legit, maybe subpoena
invoices, bills of lading and purchase order forms to see what’s going on.
Tags:bribery, extortion, forensic accounting, fraud, investigation, kickbacks, money laundering,
search warrants, subpoenas, white collar crime
Posted in Computer Crime, Investigations, White Collar | 3 Comments »
**84. Payroll records of individual government employees as subject to disclosure to

public
American Law Reports ALR3d The ALR databases are made current by the weekly addition of relevant new cases.
100 A.L.R.3d 699 (Originally published in 1980) Donald M. Zupanec, M.A.,J.D.
This annotation collects and discusses the cases in which the courts have considered whether
and under what circumstances the payroll or salary records of individual government employees
are subject to disclosure to the public. Included herein are cases in which disclosure was
sought under the authority of the Federal Freedom of Information Act,...
...In suit by former editor of college newspaper who sought to compel release of personally identifiable
gross salary information for all employees of state system of higher education, Nondisclosure Act, which
prohibited disclosure of such information, was held constitutional where limited restrictions on public
access to information prescribed in publication of Higher Education Salary Data Act were shown to be
justified by compelling state interest in confidentiality of such information and where interest could not
be implemented by less restrictive means....
...Thus, it said, the records were not excepted from disclosure, even assuming that the county could
establish by competent proof that disclosure would result in personal or economic hardship to the former
employees....
...Municipality’s disclosure of names and salaries of municipal employees did not violate provision of
municipal code prohibiting disclosure of information in personnel file if information revealed financial
status of specific individual, the release of which would constitute an unwarranted invasion of privacy;
public employment salary information was not information of personal nature, and its disclosure was
justified by public interest....
...What constitutes preliminary drafts or notes provided by or for state or local governmental agency, or
intra-agency memorandums, exempt from disclosure or inspection under state freedom of information acts, 26
A.L.R.4th 639...
**141 ALR 1037, Presumption that Public Officers Have Properly Performed Their Duty, as
Evidence.
california public records act custodian of records duty to authenticate certify as true
and correct copies of disclosed records
32 1 Witkin, California Evidence 5th Hearsay s 246, What Constitutes Official Record.
HN: 1 (Cal.Rptr.2d)
33 Cal. Jur. 3d Evidence s 315, Records by public employee-Examples of specific
records (2014) HN: 1 (Cal.Rptr.2d)
International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v.

Superior Court, 42 Cal.4th 319, 165 P.3d 488, 64 Cal.Rptr.3d 693, 26 IER Cases 940, 35
Media L. Rep. 2590, 07 Cal. Daily Op. Serv. 10,097, 2007 Daily Journal D.A.R. 13,105
(Cal., Aug 27, 2007)
[2] Records 326 58
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k58 k. Personal privacy considerations in general; personnel
matters. Most Cited Cases
Disclosure of gross salaries of all city employees who earned at least $100,000 to
newspaper that sought information did not constitute “unwarranted invasion of privacy”
within meaning of exemption from disclosure in California Public Records Act (CPRA);
disclosure of salary information had been longstanding practice of federal, state, and
local governments including this city until it had recently passed ordinance to contrary,
and disclosing such information furthered strong public interest in knowing how
government money was spent. West's Ann.Cal.Gov.Code §§ 6254(c), 6255(a).
See 2 Witkin, Cal. Evidence (4th ed. 2000) Witnesses, §§ 283, 288; Cal. Jur. 3d, Public
Officers and Employees, § 218; Cal. Jur. 3d, Records and Recording Laws, §§ 11, 17;
Annot., Payroll Records of Individual Government Employees as Subject to Disclosure to
Public (1980) 100 A.L.R.3d 699.
People v. Dunlap, 18 Cal.App.4th 1468, 1476, 23 Cal.Rptr.2d 204 (Cal.App. 5 Dist.,

Sep 22, 1993)
B. Evidence Code section 1280

Respondent claims the trial court properly admitted the CLETS rap sheet under the
official records exception to the hearsay rule embodied in Evidence Code section 1280.
The statute provides:
“Evidence of a writing made as a record of an act, condition, or event is not made

inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
“(a) The writing was made by and within the scope of duty of a public employee;
“(b) The writing was made at or near the time of the act, condition, or event; and
“(c) The sources of information and method and time of preparation were such as to
indicate its trustworthiness.”
Appellant contends that the foundational requirements of the statute were not met.
*1477 Although similar to the business records exception (Evid.Code, § 1271), the
official records exception differs in one important respect. Evidence Code section 1271
**209 “requires a witness to testify as to the identity of the record and its mode of
preparation in every instance. In contrast, [Evidence Code] [s]ection 1280 ... permits
the court to admit an official record or report without necessarily requiring a witness
to testify as to its identity and mode of preparation **if the court takes judicial
notice or if sufficient independent evidence shows that the record or report was
prepared in such a manner as to assure its trustworthiness.” (Cal. Law Revision Com.
com., 29B West's Ann.Evid.Code (1966 ed.) § 1280, p. 316, emphasis added; see People v.
Parker (1992) 8 Cal.App.4th 110, 116–117, 10 Cal.Rptr.2d 38; People v. Flaxman (1977) 74
Cal.App.3d Supp. 16, 20–23, 141 Cal.Rptr. 799.)
[2] In addition to taking judicial notice, a court may rely on the rebuttable
presumption that official duty has been regularly performed (Evid.Code, § 664) as a
basis for finding that the foundational requirements of Evidence Code section 1280 are
met. (See Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 143, 7
Cal.Rptr.2d 818; Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 759, 269
Cal.Rptr. 617.)
[3] In the proceedings below, the prosecution did not present any evidence,
independent of the CLETS rap sheet itself, bearing on the foundational requirements. In
arguing for admissibility of the printout, the prosecutor expressly relied on Evidence
Code section 1280 and the presumption of regularity in Evidence Code section 664. The
court did not make any express findings that the foundational requirements were met,FN6
but the findings may be inferred from the court's ruling admitting the printout. (Cf.
Levy–Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 784, 142
Cal.Rptr. 1 [dealing with foundational requirements of business records exception].) The
question, then, is whether the implied findings are supported by matters outside the
record but properly subject to judicial notice and/or the presumption that official duty
was regularly performed.
FN6. The court did make a finding of reliability and trustworthiness, but the
finding appears to relate only to the question of the printout being an accurate
reflection of information stored in the CLETS computer's database. The finding
was probably unnecessary in view of Evidence Code section 1500.5 which, in effect,
treats computer printouts as original documents for purposes of the best evidence
rule. Appellant correctly points out that “[t]he issue is not whether the
computer can be trusted to reliably duplicate the rap sheet, but, whether the
content of the rap sheet is reliable and trustworthy.”
The Legislature has enacted statutes dealing with the recording and reporting of a
person's criminal history. Section 11105 requires the Department of Justice to maintain
a master record of information “pertaining to the *1478 identification and criminal
history of any person,” including information commonly found in rap sheets, and to
furnish the information to various public agencies or officers, including district
attorneys, “when needed in the course of their duties.” (§ 11105, subds. (a), (b).)
Effective July 1, 1978, the Legislature added chapter 2 to title 3 of part 4 of the
Penal Code (commencing with § 13100) providing a comprehensive scheme for the recording,
reporting, storage, analysis, and dissemination of criminal offender record information
within this state. (Stats.1973, ch. 992, §§ 1–2, pp. 1909–1915.) As part of that scheme,
local criminal justice agencies are required to report to the Department of Justice
information concerning arrests and dispositions in certain criminal cases (§§ 13150–
13151.1), and detention agencies must report admissions or releases from detention
facilities (§ 13152). Upon request of a criminal justice agency, the Department of
Justice must provide the criminal history of a person identified by the agency. (§
13176.)
The trial court was required to take judicial notice of those statutes. (Evid.Code,
§ 451, subd. (a).) Such notice is sufficient support for the court's implied finding
that the first foundational requirement of Evidence Code section 1280 (“The writing was
made by and within the scope of duty of a public employee”) was satisfied. Appellant
does not seriously contend otherwise. Instead,**210 appellant focuses on the second and
third foundational requirements.
The second of the three foundational legs for admission of an official record is
that the “writing was made at or near the time of the act, condition, or event.”
(Evid.Code, § 1280, subd. (b).) Nothing on the face of the CLETS printout indicates when
the relevant information was recorded (i.e., entered into the computer), and no other
evidence bearing on this question was presented.
The relevant information in the rap sheet admitted in evidence was: (1) appellant,
under the name Randle Eugene Dunlap, was convicted of a felony in Kern County and
sentenced to prison on April 19, 1985; (2) he was received by the Department of
Corrections on April 25, 1985, and remained in custody until paroled on April 21, 1986;
(3) he was returned to prison on a violation of parole on May 25, 1990; (4) he was
convicted of a felony in Riverside County, again under the name Randle Eugene Dunlap,
and sentenced to prison on September 5, 1990; and (5) he was paroled from prison on June
30, 1991. The information for each of those entries was required to be reported within
30 days of the event. (§§ 13151, 13152.) The presumption that official duty was
regularly performed (Evid.Code, § 664) is sufficient basis for concluding that the
Department of Justice had the necessary information within the 30–day period.
*1479 Nothing in the statutory provisions expressly directs the Department of

Justice to record information received from reporting agencies within any particular
time period. However, a duty to record the information within a short period after its
receipt can be reasonably inferred. The entire statutory scheme for recording and
reporting criminal offender record information was enacted in light of legislative
findings and declarations, including “[t]hat policing agencies and courts require speedy
access to information concerning all felony and selected misdemeanor arrests and final
dispositions of such cases.” (§ 13100, subd. (c), emphasis added.) Sections 13175 and
13176 require the Department of Justice to furnish information within 72 hours of a
request therefor. Unless the Department of Justice records information from reporting
agencies promptly, it will not be in position to furnish complete information within the
72–hour period.
In light of the statutory purpose and objective, and the 72–hour provisions in
sections 13175 and 13176, we conclude that the Department of Justice had a duty to
record information as to each event shown on appellant's rap sheet within a short period
of its receipt from the reporting agency. The presumption that duty was regularly
performed supports the trial court's implied finding that the Department of Justice
recorded the information at or near the time of the recorded event.
The final foundational requirement is that the “sources of information and method
and time of preparation were such as to indicate its trustworthiness.” (Evid.Code, §
1280, subd. (c).) **“The trustworthiness requirement ... is established by a showing
that the written report is based upon the observations of public employees who have a
duty to observe the facts and report and record them correctly.” (People v. Baeske (1976)
58 Cal.App.3d 775, 780, 130 Cal.Rptr. 35.) “Whether the trustworthiness requirement has
been met is a matter within the trial court's discretion.” ( People v. Parker, supra, 8
Cal.App.4th at p. 116, 10 Cal.Rptr.2d 38.)
The sources of information regarding the data shown in the CLETS printout were the
Superior Courts of Kern and Riverside Counties as to the two prior convictions (§ 13151),
and the Department of Justice as to the admissions and releases from state prison (§
13152). **None of the information reflects the opinions or conclusions of the reporting
employees. **Neither is this a case in which the official record merely reports
information from a source who is not a public employee. (Cf. People v. Baeske, supra, 58
Cal.App.3d at pp. 780–781, 130 Cal.Rptr. 35.)
While there is no direct evidence as to the method and time of preparation, we again
believe the trial court could properly **211 rely on judicial notice of the *1480
pertinent statutes and consider the presumption that official duty was regularly
performed to satisfy itself that the record was sufficiently trustworthy. The
Legislature's findings and declarations in 1973, leading to the comprehensive scheme for
recording and reporting criminal offender record information, included the following:
“(a) That the criminal justice agencies in this state require, for the performance
of their official duties, accurate and reasonably complete criminal offender record
information.
“.
“(e) That, in order to achieve the above improvements, the recording, reporting,
storage, analysis, and dissemination of criminal offender record information in this
state must be made more uniform and efficient, and better controlled and coordinated.”
(§ 13100, emphasis added.)
We have no difficulty inferring from the statutes that the public employees involved
in the recording or reporting of criminal offender record information in the CLETS
system have a duty to employ methods ensuring a reasonable level of accuracy and
reliability. Otherwise, the legislative objectives could not be met. The mere fact that
all criminal justice agencies in California depend upon the system is an indication of
its trustworthiness.
In addition, the printout contains information, the accuracy of which is established

by other evidence. The rap sheet correctly reports data concerning the Kern County and
Riverside County convictions which are shown on the court documents received in evidence,
thereby reinforcing the sense of trustworthiness.
Appellant again relies on People v. Matthews, supra, 229 Cal.App.3d 930, 280
Cal.Rptr. 134, as authority that a computer-generated rap sheet is not admissible as an
official record without direct proof of the foundational requirements.
The body of the Matthews opinion does not indicate that the People relied on the
official records exception. Instead, the People contended the rap sheet qualified under
the business records exception to the hearsay rule, codified in Evidence Code section
1271. (229 Cal.App.3d at p. 939, 280 Cal.Rptr. 134.) After concluding that the
foundation for that exception was not established, the appellate court referred to the
official records exception in a footnote:
“We observe that the rap sheets are inadmissible as official records for the same
reasons they are inadmissible as business records. Besides the absence of proper
certification, the evidence fails to show the method of preparation or sources *1481
of the information contained in the rap sheets. (In re Shannon C. (1986) 179
Cal.App.3d 334, 343[ ] [, 224 Cal.Rptr. 516].) Merely placing the information in the
rap sheets does not overcome the hearsay rule without proper foundation for the
records. (Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 706[ ] [, 342 P.2d
987].) No other basis for admission of the hearsay evidence has been presented.” (229
Cal.App.3d at p. 940, fn. 6, 280 Cal.Rptr. 134.)
We do not find this statement persuasive authority for several reasons. First, it
apparently overlooks the critical distinction between the business records and official
records exceptions. **The former requires testimony by the custodian or other qualified
witness as to the “identity and the mode of [ ] preparation” of the record (Evid.Code, §
1271, subd. (c)), but** the latter does not.
Second, the “state rap sheet” admitted in Matthews was not certified, and, according
to the appellate court, was “an unlabeled computer printout.” (229 Cal.App.3d at p. 934,
280 Cal.Rptr. 134.) There is no indication the printout was generated by the CLETS
system or any other statutorily authorized program. Here, the rap sheet is clearly
identified as a “CLETS DATA BASE RESPONSE” and bears a certification from the Kern
County District Attorney's Office that it was received from CLETS.
Also, the Matthews court did not discuss, and apparently did not consider, either
judicial**212 notice or the presumption that official duty was regularly performed, as
those concepts might bear on the foundational issue.
We further note that the two cases cited in Matthews are clearly distinguishable.
The court in In re Shannon C. (1986) 179 Cal.App.3d 334, 224 Cal.Rptr. 516, while
acknowledging that judicial notice may be taken of the foundational facts in some cases,
refused to do so with respect to United States Navy records which revealed no
information required by Evidence Code section 1280 and which only showed where a
particular ship was scheduled to go, not where it actually went. (179 Cal.App.3d at p.
343, 224 Cal.Rptr. 516.) Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 342
P.2d 987 held that the trial court properly refused to admit the official report of a
fire ranger which was based primarily on statements made to him by other persons. (Id.
at p. 704, 342 P.2d 987.)
We find no error in the court's admission of the CLETS rap sheet. In view of this
conclusion we need not consider appellant's final claim that, absent the rap sheet,
there was insufficient evidence to show he served prison terms for his prior convictions
within the meaning of section 667.5, subdivision (b).
*1482 DISPOSITION
Judgment affirmed.
**80 ALR 3rd 414, Admissibility, Under Public Records Exception to Hearsay Rule, of
Record Kept by Public Official Without Express Statutory Direction or Authorization.
**Am. Jur. 2d Evidence § 1297, Generally; Public Records Exception Under Federal Rules
of Evidence.
29A Am. Jur. 2d Evidence § 1300
American Jurisprudence, Second Edition

Database updated November 2014
Evidence
George Blum, J.D., John Bourdeau, J.D., Romualdo P. Eclavea, J.D., Janice Holben, J.D.,
Alan J. Jacobs, J.D., Fern Kletter, J.D., Jack K. Levin, J.D., Lucas Martin, J.D., Eric
C. Surette, J.D.Barbara J. Van Arsdale, J.D., and Anne E. Melley, J.D., of the staff of
the National Legal Research Group, Inc.
VI. Particular Types of Evidence
G. Documentary Evidence
7. Admissibility, Authentication, or Use of Particular Documents
l. Public Records, Reports, or Other Public Documents
(4) Exception to Hearsay Rule for Public Records
(b) Provisions of Federal and Uniform Rules of Evidence
(i) In General
Topic Summary Correlation Table References
§ 1300. Authentication requirements
West’s Key Number Digest

West’s Key Number Digest, Evidence
366(1), 366(2), 366(5) to 366(12), 370(1), 373(1)
**The custodian of a public record is an appropriate authenticating witness for purposes
of the rule1 permitting admissibility of public records over a hearsay objection.2 Such a
witness must be able to identify the documents as authentic and as made pursuant to a
duty required by law. Where the witness testifies that he or she was the custodian of
the documents, properly identifies the documents, and testifies that they were prepared
pursuant to federal regulations, the requirement of the rule is satisfied.3 However,
**the authenticating witness need not be the custodian of the record in question as long
as he or she can attest to familiarity with the record system.4
1
Fed. R. Evid. 803(8); Uniform Rules of Evidence 803(8).
U.S. v. Central Gulf Lines, Inc., 747 F.2d 315, 17 Fed. R. Evid. Serv. 568 (5th Cir. 1984).
U.S. v. Central Gulf Lines, Inc., 747 F.2d 315, 17 Fed. R. Evid. Serv. 568 (5th Cir. 1984).
U.S. v. Ray, 930 F.2d 1368 (9th Cir. 1990), as amended on denial of reh’g, (Apr. 23, 1991).
Admissibility in State Court Proceedings of Police Reports Under Official Record

Exception to Hearsay Rule, 112 A.L.R.5th 621
**See the following additional cases in which a police report included or apparently
included statements of persons other than the reporting officer, where the courts held
that such statements would not be admissible under the official records exception to the
hearsay rule, where—
—affirming a conviction of robbery, the court held inadmissible as hearsay a police

report of a telephone call received by the police from a neighbor of the robbery victim
shortly after the crime, in which the neighbor was purported to have given a license
number of the robbers' motor vehicle different from the license number reported by the
victim, which was the license number of the defendant's automobile, the court stating
that the report was offered for the truth of the matter stated and did not come within
the official record hearsay exception; the court reasoned that the source of the
information was not a public employee with any duty either to observe facts correctly or
to report her observation accurately to the police department, and thus a requirement of
trustworthiness necessary for the official record hearsay exception had not been
established. People v. Baeske, 58 Cal. App. 3d 775, 130 Cal. Rptr. 35 (2d Dist. 1976)
FRE Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the
Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
…
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;

(ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings
from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances
indicate a lack of trustworthiness.
473. Business records, public records and reports generally
Business records exception to hearsay rule cannot be used as back door to introduce
evidence that is not admissible under provision of public records exception excluding
matters observed by law enforcement personnel. U.S. v. Brown, C.A.11 (Fla.) 1993, 9 F.3d
907, certiorari denied 115 S.Ct. 152, 513 U.S. 852, 130 L.Ed.2d 91. Criminal Law
436(2)
474. Duty imposed by law, public records and reports generally—Generally
**Records of primary fact made by public officer in performance of official duty as to

existence of certain facts are admissible, but records of investigations and inquiries
**conducted either voluntarily or pursuant to requirements of law by public officers
concerning causes or effects and involving exercise of judgment and discretion,
expressions of opinion and making conclusions, are not admissible as public records.
Moran v. Pittsburgh-Des Moines Steel Co., E.D.Pa.1949, 86 F.Supp. 255, reversed on other
grounds 183 F.2d 467. Evidence 333(1)
475. ---- Police and law enforcement personnel, duty imposed by law, public records and
reports generally
Since reports prepared by law enforcement officers are specifically excluded from the
public records exception to the hearsay rule if used against a criminal defendant, such
records cannot be admitted under the business records exception. U.S. v. Horned Eagle,
D.S.D.2002, 214 F.Supp.2d 1040. Criminal Law 436(3)
**Statement in police report indicating that arena security guard participated in
alleged assault of unauthorized concert attendee did not fall within hearsay exception
for public records and reports, where officer who prepared report did not observe guard
at scene of alleged assault, but obtained his information from another officer, who
obtained information from other arena employees. Jones v. Marcum, S.D.Ohio 2002, 197
F.Supp.2d 991. Evidence 333(1)
476. Investigative reports, public records and reports generally--Generally
**In suit brought by parents of victim killed by terrorists against U.S.-based

organization for knowingly and intentionally providing material support to terrorist
organization, memorandum, insofar as it embodied the results of the government's
investigation into defendant's ties to terrorist organization, was admissible as a
public report setting forth matters observed pursuant to duty imposed by law as to which
matters there was a duty to report; however, statements in memorandum from informants
and other individuals who were under no official duty to report the matters addressed in
their statements were inadmissible. Boim v. Holy Land Foundation for Relief and
Development, C.A.7 (Ill.) 2007, 511 F.3d 707, rehearing granted , vacated, on rehearing
en banc 549 F.3d 685, certiorari denied 130 S.Ct. 458, 175 L.Ed.2d 324. Evidence
333(7)
**Even if state assistant attorney general's memorandum on investigation of nursing home

operators for Medicaid fraud fell within public-records hearsay exception, memorandum
was inadmissible in its unredacted form in operators' action alleging state health
officials revoked home's operating certificate in violation of First and Fourteenth
Amendments, where memorandum contained hearsay statements from third parties that did
not fall within any hearsay exceptions. Beechwood Restorative Care Center v. Leeds,
W.D.N.Y.2012, 856 F.Supp.2d 580. Evidence 333(1)
**Portion of investigatory report of United States Mine Safety and Health Administration
(MSHA) finding that most likely cause for malfunction of remote control unit that led to
miner's being crushed by continuous miner machine was debris in unit was entirely
speculative and thus inadmissible under the public record exception to the hearsay rule.
Kennedy v. Joy Technologies, Inc., W.D.Va.2006, 455 F.Supp.2d 522, affirmed in part ,
vacated in part and reversed in part 269 Fed.Appx. 302, 2008 WL 686406, on remand 2008
WL 1985231. Evidence 333(1)
**Report presenting results of captain's investigation of prison incident, which

incorporated statements from correction officers involved in violence, described force
used throughout by those officers, deemed that force justified, and recommended
punishing inmate for causing episode, was not admissible in inmate's civil rights action
against officers under hearsay exception for factual findings resulting from
investigation made pursuant to authority granted by law. Lewis v. Velez, S.D.N.Y.1993,
149 F.R.D. 474. Evidence 333(1)
477. ---- Authority granted by law, investigative reports, public records and reports
generally
**Summaries of information compiled by California Department of Transportation

concerning racial and economic background of persons due to be displaced by freeway were
admissible in action challenging city's actions concerning replacement housing, under
public records exception to hearsay rule, notwithstanding contention that additional
information put into summaries was inadmissible because it was not obtained “from an
investigation made pursuant to authority granted by law,” but was gathered as a result
of court's order, considering that additional information was the same type of
information that Department routinely gathered in regular course of business, pursuant
to authority granted by law. Keith v. Volpe, C.D.Cal.1985, 618 F.Supp. 1132. Evidence
333(1)
478. ---- Criminal cases, investigative reports, public records and reports generally
Factual findings resulting from an investigation made pursuant to authority granted by

law are not shielded from the exclusionary effect of rule 801 of these rules, by the
“public records exception” if the government seeks to have those factual findings
admitted against the accused in a criminal case. U.S. v. Oates, C.A.2 (N.Y.) 1977, 560
F.2d 45, on remand 445 F.Supp. 351. Criminal Law 429(1)
**Information concerning the medical treatment of officers involved in altercation with

plaintiff which resulted in plaintiff's being shot, which was contained in district
attorney's report concerning whether to bring charges against officers, did not come
within hearsay exception for public records, since this information came from the
officers themselves. Bates v. Kender, D.Mass.2008, 537 F.Supp.2d 281. Evidence 333(1)
U.S. v. Wilmer, 799 F.2d 495, 500, 21 Fed. R. Evid. Serv. 761 (9th Cir.(Wash.) Sep 05,
1986)
[3] Wilmer argues that the calibration report was not admissible as a public record under
Rule 803(8)(B) because reports of a breathalyzer maintenance operator are excluded from this
exception to the hearsay rule. He relies on United States v. Oates, 560 F. 2d 45 ( 2d Cir.
1977) for this proposition. We expressly rejected adoption of the reasoning set forth in
Oates in United States v. Hernandez-Rojas, 617 F.2d 533, 534-35 (9th Cir.), cert. denied, 449
U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980). In United States v. Orozco, 590 F.2d 789 (9th
Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 288 (1979), we held that the
exclusionary provisions of *501 Rule 803(8)(B) were intended to apply to observations made by
law enforcement officials at the scene of a crime or the apprehension of the accused and not
“records of routine, nonadversarial matters” made in a nonadversarial setting. Id. at 793.
More recently, in United States v. Gilbert, 774 F.2d 962, 965 (9th Cir.1985), we held that a
criminologist's notations on a fingerprint card were admissible under Rule 803(8)(B). We
observed that the report of an examination of a latent fingerprint was routine and
“ministerial, objective, and nonevaluative.” Id. at 965. Similarly, the calibration report of
a breathalyzer maintenance operator is a routine act far removed from the adversarial nature
of the on-the-scene investigative report of a crime by a police officer whose perceptions
might be clouded and untrustworthy. See United States v. Hernandez-Rojas, 617 F.2d at 535.
(The law enforcement exception is inapplicable to an immigration officer's notation in a
warrant of deportation.)
The trial court did not abuse its discretion in admitting the calibration certificate. The
court's error in relying on Washington law in overruling Wilmer's objection was harmless
because the evidence was admissible under Rule 803(8)(B).
Wilmer also claims that his sixth amendment right to confrontation was violated by the
failure of the government to call the breathalyzer maintenance operator. Wilmer correctly
notes that the prosecution failed to show that the witness was unavailable.
[4] We have determined that the calibration certificate was admissible under Rule 803(8)(B).
A hearsay statement admissible under a firmly rooted exception to the hearsay rule may
nevertheless violate the confrontation clause. Dutton v. Evans, 400 U.S. 74, 82, 91 S.Ct. 210,
216, 27 L.Ed.2d 213 (1970); United States v. Huber, 772 F.2d 585, 588 (9th Cir.1985); United
States v. Bernard S., 795 F.2d 749, 754 (9th Cir.1986). In Ohio v. Roberts, 448 U.S. 56, 66,
100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), the Supreme Court stated: “[W]hen a hearsay
declarant is not present for cross-examination at trial, the Confrontation Clause normally
requires a showing that he is unavailable.”
In United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), the Supreme
Court instructed that the unavailability requirement discussed in Roberts was applicable to
the admission of former trial testimony. The Court stated: “Roberts must be read consistently
with the question it answered, the authority it cited, and its own facts.” Id. 106 S.Ct. at
1126.
In Inadi, the Supreme Court held that the unavailability rule did not apply to co-
conspirators' out-of-court statements. Id. The Supreme Court instructed that “Roberts cannot
fairly be read to stand for the radical proposition that no out-of-court statement can be
introduced by the government without a showing that the declarant is unavailable.” Id.
Inadi teaches us that the question whether a showing of unavailability is mandated by the
sixth amendment will depend on the nature of the hearsay exception.
[5] We need not decide whether unavailability must be shown before evidence is admissible
under the public records exception to the hearsay rule because confrontation clause
violations are subject to harmless error analysis. United States v. Bernard S., 795 F.2d 749
(9th Cir.1986). The admission of the public records in this case does not require reversal if
the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 106
S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); United States v. Bernard S., 795 F.2d 749 (9th
Cir.1986).
Whether a violation of the confrontation clause is harmless depends on a variety of factors

including: (1) the importance of the evidence to the prosecution's case; (2) whether the
evidence was cumulative; (3) the presence of corroborating evidence; (4) the overall strength
of the prosecution's case.
United States v. Bernard S., 795 F.2d at 756.
*502 In the matter before us, overwhelming evidence of Wilmer's intoxication was presented to
the court through the testimony of the Air Force officers who observed the field sobriety
tests. He was described as being belligerent, confused and unable to stand or walk without
staggering and swaying. The Air Force officers testified that they formed the opinion that
Wilmer was intoxicated before the breathalyzer test was administered. Thus, the breathalyzer
test results were cumulative and corroborative. The prosecution's case was convincing and
uncontradicted. During oral argument, Wilmer's attorney conceded “all the elements of [the
government's] case as far as intoxication.” This judicial admission amply demonstrates the
strength of the evidence of intoxication. See 4 J. Wigmore, Wigmore on Evidence, § 1063
(Chadbourn rev.1972).
We are convinced that any error in admission of the maintenance operator's certificate was
harmless beyond a reasonable doubt.
480. ---- Factual findings, investigative reports, public records and reports generally
**Entire internal affairs investigation report of arrest was not admissible in action
brought against arresting officer by arrestee and his wife for false arrest and false
imprisonment, rather, only factual parts of report were admissible under public records
exception to hearsay rule. McQuaig v. McCoy, C.A.5 (La.) 1987, 806 F.2d 1298. Evidence
318(4); Evidence 333(1)
**Restriction of Federal Rule of Evidence 803(8)(C) preventing government from using

factual findings resulting from an investigation made pursuant to authority granted by
law is inapplicable to Federal Rule of Evidence 803(10), relating to admissibility of
fact of absence of public record or injury as an exception to hearsay rule. U.S. v.
Metzger, C.A.6 (Ky.) 1985, 778 F.2d 1195, certiorari denied 106 S.Ct. 3279, 477 U.S. 906,
91 L.Ed.2d 568. Criminal Law 387; Criminal Law 551
**Under hearsay exception for public reports setting forth factual “findings,” the term
“findings” does not include legal conclusions that may have been reached by an
investigator, is necessarily something more than a mere recitation of evidence, but is
broad enough to encompass any statement of fact that represents a conclusion on the part
of an investigator; such factual statements need not be formally termed “findings” in
order to come in under this rule. Zenith Radio Corp. v. Matsushita Elec. Indus. Co.,
Ltd., E.D.Pa.1980, 505 F.Supp. 1125, affirmed in part, reversed in part on other grounds
723 F.2d 238, certiorari granted in part 105 S.Ct. 1863, 471 U.S. 1002, 85 L.Ed.2d 157,
reversed on other grounds 106 S.Ct. 1348, 475 U.S. 574, 89 L.Ed.2d 538, on remand 807
F.2d 44. Evidence 333(1)
**Conclusion in warden's report that force used by correction officers was justified did
not come within hearsay exception for factual findings resulting from investigation made
pursuant to authority granted by law, where that conclusion was the only finding that
remained from report once hearsay statements of correction officers were excluded. Lewis
v. Velez, S.D.N.Y.1993, 149 F.R.D. 474. Evidence 333(1)
482. Criminal proceedings, public records and reports generally
Order dismissing criminal complaint on grounds of informant's death was a public record
of the court's reason for dismissing the complaint, rather than a record of observations
by law enforcement officers, and thus order was admissible under the public records
exception to the hearsay rule in subsequent prosecution of defendant for distributing a
controlled substance, the use of which resulted in the informant's death, even though
the order gave the prosecutor's reason for asking the court to dismiss the complaint.
U.S. v. Hatfield, C.A.7 (Ill.) 2010, 591 F.3d 945. Criminal Law 429(2)
487. Personal knowledge of declarant, public records and reports generally
**Document purporting to list four convictions suffered by defendant in Israel between

1955 and 1964 did not fit within public records exception to this rule because there was
no indication that person who signed conviction report and identification form had first
hand knowledge of convictions and because of probability of multiple levels of hearsay
in this situation, and there was no evidence of any duty on part of person who signed
report or anyone else to record this information. U.S. v. Perlmuter, C.A.9 (Cal.) 1982,
693 F.2d 1290. Criminal Law 419(12)
**For a document to be admissible as an official record, the facts stated in the

document must have been within the personal knowledge and observation of the recording
official or his subordinates, and reports based on general investigations and on
information gleaned secondhand from random sources must be excluded. Colvin v. U.S.,
C.A.9 (Ariz.) 1973, 479 F.2d 998. Evidence 333(1)
488. Personal knowledge of witness, public records and reports generally
**For purposes of the official records exception to the hearsay rule, it is not
essential that the offering witness himself be the recorder or even that the witness be
certain of who it was that recorded the item in question; rather, it is sufficient that
the offering witness be able to identify the record as authentic and as made in the
ordinary course of business. U.S. v. Newman, C.A.5 (Fla.) 1972, 468 F.2d 791, certiorari
denied 93 S.Ct. 1527, 411 U.S. 905, 36 L.Ed.2d 194. Criminal Law 436(2)
lexis
(8) Public Records. A record or statement of a public office if:

(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of
trustworthiness.
U.S. v. Central Gulf Lines, Inc., 747 F.2d 315, 319, 17 Fed. R. Evid. Serv. 568 (5th
Cir.(La.), Nov 26, 1984)
[7] The public records exception to the hearsay rule allows the following to be put in
evidence:
Records, reports, statements, or data compilations, in any form, of public offices or

agencies, setting forth ... matters observed pursuant to duty imposed by law as to which
matters there was a duty to report ... unless the sources of information or other
circumstances indicate lack of trustworthiness.
Fed.R.Evid. 803(8). In other words, this exception applies if: **first, the person making the
record observed the matters contained in the record firsthand pursuant to a duty imposed by
law; **second, the record is prepared pursuant to a duty imposed by law; and **third, the
documents and surrounding circumstances indicate trustworthiness.
To satisfy the first element of Rule 803(8), the record sought to be admitted must be made
from matters within the personal knowledge of the public official making the record or his
agent or someone with a duty to report the matter to a public official. Rule 803(8) does not
require a public official to make the record.
Here, federal regulations state, “[c]ooperating sponsors [e.g., CLUSA] shall arrange for an
independent cargo surveyor [here, Boda] to attend the discharge of the cargo and to count or
weigh the cargo and examine its condition.” 22 C.F.R. § 211.9(c)(1)(i) (1984). Also, the
cargo survey reports and shortlanding certificate were prepared by Boda surveyors who
personally observed the matters stated therein. Therefore, the cargo surveys and shortlanding
certificate were within the personal observation of those with a duty to report the matter to
a public official, and the evidence satisfied the first element of Rule 803(8).
The second element of Rule 803(8), that the record be prepared pursuant to a duty imposed by
law, is also satisfied in this case. As stated above, 22 C.F.R. § 211.9(c)(1)(i) (1984)
requires that the surveys and shortlanding certificates be prepared by an independent
surveyor such as Boda.
Finally, the third element of Rule 803(8), indicia of trustworthiness, is also met in this
action. Central Gulf has not provided any evidence or reason to believe that the documents
are not trustworthy. To the contrary, the documents are originals and Boda had nothing to
gain, and its reputation as a surveyor to lose, by falsifying the documents.
Central Gulf argues that the surveys and shortlanding certificate did not fall within the
Rule 803(8) exception to the hearsay rule, because the documents were not authenticated.
Central Gulf admits that the cargo certificates and shortlanding certificates are authentic
under Rule 901(a) in that they are what their proponents claim. Central Gulf argues, however,
that the documents are not authenticated under the Government Record Statute, 28 U.S.C. §
1733 (1982). Subsection (c) of the Statute provides that “[t]his section does not apply to
cases, actions, and proceedings to which the Federal Rules of Evidence apply.” 28 U.S.C. §
1733(c) (1982). Because the documents are admissible under Rule 803(8), the authentication
requirements of the Government Records Statute do not apply.
[8] Central Gulf next argues that Bell was not the proper party to introduce the challenged
documents. For purposes of Rule 803(8), the offering witness must be *320 able to identify
the documents as authentic and as made pursuant to a duty required by law. See United States
v. Newman, 468 F.2d 791, 795–96 (5th Cir.1972), cert. denied, 411 U.S. 905, 93 S.Ct. 1527, 36
L.Ed.2d 194 (1973). At trial, Bell satisfied the requirements by testifying that he was the
custodian of the documents, by properly identifying the documents, and by testifying that
they were prepared pursuant to federal regulations.
U.S. v. Newman, 468 F.2d 791, 795, (5th Cir.(Fla.), Oct 26, 1972)
[7][8][9][10] Defendant next challenges the use of the prison admission summary to prove his
lack of assets when admitted to prison in 1965. He argues that the item should have been
excluded as hearsay because the witness who identified and offered the document into evidence
had not personally recorded all of the information. **This contention must be rejected. The
prison admission summary, compiled by prison officials in the regular course of business,
fits within the well recognized official records exception to the hearsay rule. See Tomlin v.
Beto, 5 Cir. 1967, 377 F.2d 276. It is not essential that the offering witness himself be the
recorder or even that the witness be certain of who it was that recorded the item. It is
sufficient that the offering witness be able *796 to identify the record as authentic and as
made in the ordinary course of business. See United States v. Martin, 5 Cir. 1970, 434 F.2d
275, 279. We have held in the past that the trial court has wide discretion when determining
the admissibility of business records and we cannot say that the trial judge abused that
discretion here. Cf. United States v. Middlebrooks, 5 Cir. 1970, 431 F.2d 299, 302, cert.
denied, 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622. Defendant further points out that prison
admission summaries are occasionally recorded by other inmates rather than by prison
officials and should therefore be excluded as too unreliable to be considered as taken in the
regular course of business. This contention, while possibly affecting the credibility of the
evidence, does not diminish its status as a regularly kept official record. Defendant's
complaint can go only to the weight of the evidence and not to its admissibility. See United
States v. Ellenbogen, 2 Cir. 1966, 365 F.2d 982, cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17
L.Ed.2d 795. We find no error in the admission of these records.
Evidence Code Section 1280. Record by public employee
Evidence of a writing made as a record of an act, condition, or event is not made

inadmissible by the hearsay rule when offered in any civil or criminal proceeding to
prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
**(c) The sources of information and method and time of preparation were such as to
indicate its trustworthiness.
19. ---- Laboratory reports, law enforcement records
**In contested hearing for review of suspension of driver's license for driving with
blood-alcohol concentration of .08% or higher, forensic laboratory report was admissible
under exception to hearsay rule for public employee records; report indicated that it
was prepared by and within scope of duty of public employee, and sources of information
and method and time of preparation were such as to indicate its trustworthiness. Lake v.
Reed (1997) 65 Cal.Rptr.2d 860, 16 Cal.4th 448, 940 P.2d 311, rehearing denied.
Automobiles 144.2(9.7); Automobiles 422.1
26. Naval records
Judicial notice could not be taken of Naval records concerning purported movements of
father's ship during terms of plan for family reunification where neither the records
nor their accompanying certificate of attestation established who was the preparer, when
they were prepared or method of preparation and records were described on their face as
“employment schedules” and by certificate of authenticity as “planned employment
schedules,” i.e., schedules showing where ship was supposed to go, not where it actually
went. In re Shannon C. (App. 3 Dist. 1986) 224 Cal.Rptr. 516, 179 Cal.App.3d 334.
Evidence 48
44. Foundation
**In contrast to business records exception to hearsay rule, official records exception
permits court to admit official record or report without necessarily requiring witness
to testify as to its identity and mode of preparation if court takes judicial notice or
if sufficient independent evidence shows that record or report was prepared in such
manner as to assure its trustworthiness. People v. George (App. 4 Dist. 1994) 35
Cal.Rptr.2d 750, 30 Cal.App.4th 262. Criminal Law 444.12
Evid_doc_evid_prod_authen_effect_public_records_exemplif_official_copies_proof_genuinene
ss_in_gen_ca_all_digest.doc

People v. Nelson, 147 Cal.Rptr.3d 183
The public records exception to hearsay rule requires a witness to testify as to the
identity of the record and its mode of preparation in every instance; in contrast, the
business records exception permits the court to admit an official record or report
without necessarily requiring a witness to testify as to its identity and mode of
preparation if the court takes judicial notice or if sufficient independent evidence
shows that the record or report was prepared in such a manner as to assure its
trustworthiness. West's Ann.Cal.Evid.Code §§ 1271 , 1280 .
2. Constitutionality
In a prosecution for selling heroin, identifying notations made by a deceased police
officer on envelopes in which the contraband was kept by the police department were
properly admitted in evidence as business records pursuant to Ev C, §§ 1270, 1271, 1280,
and defendant's Sixth Amendment right to confrontation was not violated thereby, where
the deceased officer made the notations in the course of established police procedure in
connection with the obtaining of evidence of contraband through under cover agents,
where the notations were made as a part of the governmental activity, within the scope
of duty of the public employee, in the regular course of business, at or near the time
of the act, and the sources of information and method and time of preparation were such
as to indicate trustworthiness, and where a police officer identified the writing and
initials of the deceased officer and testified to the procedure for handling narcotics
seized as evidence. People v. Aguilar (1971, Cal App 5th Dist) 16 Cal App 3d 1001, 94
Cal Rptr 492, 1971 Cal App LEXIS 1658.
7. Police Officers Report

In a proceeding to review a decision of the Department of Motor Vehicles upholding
the suspension of a motorist's driver's license for failure to submit to any of the
chemical tests specified in Veh C § 13353 (the implied consent statute), following his
arrest for driving while intoxicated, the trial court erred in determining that the
arresting officer's contemporaneous written "sworn statement" as to the motorist's
erratic driving, apparently intoxicated condition, and subsequent refusal to take a
chemical test constituted inadmissible hearsay. Although the officer had no independent
recollection of the incident at the time of the hearing, his report was admissible under
the official records exception to the hearsay rule (Ev C § 1280), since his testimony
indicated the report was timely made and prepared firsthand in the scope of his duties,
and since his duty under Veh C § 13353, to submit such statement sufficiently indicated
the requisite trustworthy method of preparation. Moreover, the presumption of Ev C § 664,
that official duty has been regularly performed, applies to police officers. Fisk v.
Department of Motor Vehicles (1981, Cal App 2d Dist) 127 Cal App 3d 72, 179 Cal Rptr 379,
1981 Cal App LEXIS 2511, 31 ALR4th 905, overruled on other grounds, McNary v. Department
of Motor Vehicles (1996, Cal App 4th Dist) 45 Cal App 4th 688, 53 Cal Rptr 2d 55, 1996
Cal App LEXIS 452.
10. City Speed Survey
**In a speeding prosecution in which it was stipulated that radar was used in
determining defendant's speed, the trial court properly admitted in evidence a copy of
the city speed survey as an official record within the meaning of Ev C § 1280, where the
survey appeared to have been made by public employees within their duties, where it bore
the dates of all the work done on the survey from the speed studies to adoption of the
results and thus appeared to have been made contemporaneously with the survey, where the
survey appeared to be comprehensive in the factors considered, the description of the
road and adjoining properties, the speeds of cars traveling the road, and accident
history, and where the sources of information, mainly from the field, and the method and
time of preparation appeared trustworthy. People v. Abelson (1980, Cal App Dep't Super
Ct) 104 Cal App 3d Supp 16, 164 Cal Rptr 369, 1980 Cal App LEXIS 1748.
fed. rules of evid rule 803 public records public payroll salary compensation records
**State freedom of information act requests: right to receive information in

particular medium or format. 86 ALR4th 786.
Government Code 6250 legislative findings & declarations westlaw
In enacting this chapter, the Legislature, mindful of the right of individuals to

privacy, finds and declares that access to information concerning the conduct of the
people's business is a fundamental and necessary right of every person in this state.
3. Construction with other laws
**The open meeting requirements of the Ralph M. Brown Act, and the records disclosure
requirements of the Public Records Act apply to private, nonprofit corporations and the
meetings of the governing board of such corporations formed for the purpose of providing
programming for a cable television channel set aside for educational use by a cable
operator pursuant to its franchise agreement with a city and subsequently designated by
the city to provide the programming services. Op.Atty.Gen. No. 01-401 (March 14, 2002),
2002 WL 406716.
Gov 6250 lexis
6. Construction With Other Law

Neither the California Public Records Act (CPRA) (Gov C §§ 6250 et seq.) nor a
county's sunshine ordinance compelled disclosure of a district attorney's closed
criminal investigation files. Gov C § 25303, prevents a county board of supervisors from
obstructing the investigatory and prosecutorial functions of a district attorney, and
the compelled disclosure would obstruct the investigatory function, thus contravening
section Gov C § 25303. Very few activities performed by public officials are more
important to the public and to the individuals most directly involved than the full and
proper investigation of criminal complaints. Every effort must be made to ensure that
investigators can gather all evidence that is available and legally obtainable. Without
the assurance of continuing confidentiality, potential witnesses could easily be
dissuaded from coming forward. Even if they knew that sensitive information would not
automatically be turned over, publicity-shy witnesses would still have reason to be wary.
Although the county was autonomous with respect to all municipal affairs, the
investigation and prosecution of state criminal law are statewide concerns, not
municipal affairs, and conflicting local ordinances must yield. Gov C § 6253.1, which
allows local agencies to permit greater access to records than offered by the CPRA, did
not compel a different conclusion; it does not authorize a local board of supervisors to
violate Gov C § 25303. Similarly, the fact that the district attorney could voluntarily
disclose records of his investigations did not mean that the board of supervisors could
compel him to do so. Rivero v. Superior Court (1997, Cal App 1st Dist) 54 Cal App 4th
1048, 63 Cal Rptr 2d 213, 1997 Cal App LEXIS 338, review denied, Rivero v. San Francisco
County Superior Court (1997, Cal) 1997 Cal LEXIS 4546.
Keywords: california public records act capra government code 6250 public's right to
receive authenticated certified as true and correct copies affidavit
Sacramento County Employees' Retirement System v. Superior Court, 195 Cal.App.4th 440,
125 Cal.Rptr.3d 655, 39 Media L. Rep. 2112, 11 Cal. Daily Op. Serv. 5657, 2011 Daily
Journal D.A.R. 6805 (Cal.App. 3 Dist., May 11, 2011)
[9] Records 326 54
326 Records
326II Public Access
326II(B) General Statutory Disclosure Requirements
326k53 Matters Subject to Disclosure; Exemptions
326k54 k. In general. Most Cited Cases
**Records of county employees' individual pensions were “public records,” within meaning
of Public Records Act provision placing the burden on the agency to show that an
exemption from the general rule of disclosure applies. West's Ann.Cal.Gov.Code §§ 6251
et seq., 6252(e).
[18] Records 326 31
326 Records
326II Public Access
326II(A) In General
326k31 k. Regulations limiting access; offenses. Most Cited Cases
**Under the privacy provision of the County Employees Retirement Law, the confidential
“individual record” of a member does not include the name, date of retirement,
department retired from, last position held, years of service, base allowance, cost of
living adjustment, total health allowance, and monthly pension benefit of each retiree.
West's Ann.Cal.Gov.Code §§ 6252(e), 6275, 6276.12, 31532.
** 41. Rosenthal v. Hansen

Court of Appeal, Third District, California. October 23, 1973 34 Cal.App.3d 754 110
Cal.Rptr. 257 CIV. 13925
County legal aid society director filed petition for writ of mandate directing the
Department of Human Resources Development to furnish him with copies of certain
documents maintained by the Department. The Superior Court, Sacramento County, William A.
White, J., denied the petition, and plaintiff appealed. The Court of Appeal, Vasey, J.,
held that...
...Thus where a general request for copies of public records is made, the California
Public Records Act requires that the person making the request be provided with the
public records so that he may reproduce the public records himself at his own cost....
...Thus the sole issue before us for determination is whether the Public Records Act
mandates any public official or department to prepare and provide copies of all public
records regardless of their nature and regardless of their bulk....
...‘4. The California Public Records Act requires that state agencies provide persons
making a request for specific public records related to a specific subject matter at a
reasonable cost.’...
...Although it may be desirable for state agencies to have available for public purchase
such documents as herein sought, the California Inspection of Public Records Act is not
the vehicle by which such purchase can be obtained....
**55. San Diego County Employees Retirement Assn. v. Superior Court
Court of Appeal, Fourth District, Division 1, California. June 28, 2011 196 Cal.App.4th 1228 127
Cal.Rptr.3d 479 D058962
GOVERNMENT - Records. Public employee pensions were subject to disclosure to researchers.
...San Diego County Employees Retirement Association (SDCERA) seeks a writ of mandate to overturn the
trial court’s order granting the petition of California Foundation for Fiscal Responsibility (CFFR) and
Marcia Fritz1 under the California Public Records Act (the Act) (Gov.Code, §6250 et seq.)2 to compel the
disclosure of the names of retirees who in any month in 2010 received $8,333 or more in pension benefits,
the pension amounts, and how they were calculated....
...The opinion also states the “Newspapers’ evidence also establishes that it is a policy of the State
Controller to consider the name and salary of every public employee a matter of public record and to
disclose this information to any member of the public upon request.” ...
... An out-of-state opinion observes: “It is a fact of modern life in this age of technology that names
can be used to obtain other personal information from various sources, but we conclude that is not
sufficient [under a state public records act] to prevent the disclosure of [public employee] names.” ...
...Researchers who successfully sought disclosure of retirees’ names and pension amounts from county
employees’ retirement system under Public Records Act were bound by trial court’s order prohibiting
researchers’ publication of retiree names, even though retirement system was required as a matter of law
to disclose the names to any other member of the public who might seek them, where researchers did not
challenge the order, and researchers invited any arguable error in that component of the order by urging
the court to adopt it. West’s Ann.Cal.Gov.Code §6250 et seq....
** 73. County of Los Angeles v. Superior Court

Court of Appeal, Second District, Division 3, California. August 31, 1993 18 Cal.App.4th 588 22
Cal.Rptr.2d 409 BO71970
Records. Disclosure of arrest information under Public Records Act is limited to current
information.
...’” (Roberts, supra, at p. 372, 20 Cal.Rptr.2d 330, 853 P.2d 496, quoting from Note, The California
Public Records Act: The Public’s Right of Access to Governmental Information (1976) 7 Pacific L.J. 105,
131.) ...
...The record before us reflects that to generate, copy and disclose the requested information would
impose a substantial financial burden on the sheriff which he does not have the budget authority to
incur....
...The County argues that the federal courts have construed 5 United States Code section 552(b)(7) (which
exempts from the federal Freedom of Information Act police files which would invade personal privacy) to
foreclose discovery of historical arrest data on grounds that it would violate the privacy of the
arrestees....
...(Williams v. Superior Court, supra, 5 Cal.4th at pp. 348, 360–361, 19 Cal.Rptr.2d 882, 852 P.2d
377.) ...
5. Fees
In an action by a nonprofit organization against the California Department of
Education, arising out of the department's charging the organization 25 cents per page
for furnishing copies of requested documents, the trial court properly determined **that
the department had the power to waive fees under Gov C § 6253.1, which gives an agency
power to "adopt requirements for itself which allow greater access to records than
prescribed by the minimum standards set forth in this chapter." However, the trial court
erred in finding no obligation on the part of the department to reduce the fee, since
the trial court's ruling ignored the fact that the department declined to exercise
discretion, contending that it had none. Had the department been aware that it was
vested with discretion to reduce the fee, it might have done so. North County Parents
Organization v. Department of Education (1994, Cal App 4th Dist) 23 Cal App 4th 144, 28
Cal Rptr 2d 359, 1994 Cal App LEXIS 212, review denied, North County Parents Org. for
Children v. California Dep't of Educ. (1994, Cal) 1994 Cal LEXIS 2781.
**If there is ambiguity in the meaning or intent of the statutory language of the
California Public Records Act (CPRA), the California Constitution requires courts to
broadly construe the CPRA to the extent it furthers the people's right of access and to
narrowly construe the PRA to the extent it limits the right of access. City of San Jose
v. Superior Court (App. 6 Dist. 2014) 169 Cal.Rptr.3d 840, 225 Cal.App.4th 75, as
modified, modified on denial of rehearing , review granted and opinion superseded 173
Cal.Rptr.3d 46, 326 P.3d 976. Records 54
**The intent of the Public Records Act is to safeguard the accountability of government
to the public; to verify accountability, individuals must have access to government
files to check for the arbitrary exercise of official power and secrecy in the political
process. Coronado Police Officers Ass'n v. Carroll (App. 4 Dist. 2003) 131 Cal.Rptr.2d
553, 106 Cal.App.4th 1001, review denied. Records 50
**California Public Records Act, Gov C § 6250 et seq., should apply in the same way
to comparable records maintained by comparable governmental entities. Whether or not a
particular type of record is exempt should not depend upon the peculiar practice of the
government entity at issue -- otherwise, an agency could transform public records into
private ones simply by refusing to disclose them over a period of time. International
Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court
(2007, Cal) 42 Cal 4th 319, 64 Cal Rptr 3d 693, 165 P 3d 488, 2007 Cal LEXIS 8918.
10. Particular Determinations

**In a case in which a prisoner sought various records from the district attorney
under the California Public Records Act (CPRA) to assist in investigating whether the
district attorney impermissibly sought the death penalty based on the race of the
defendant, the victim, or both, the requested documents were not exempt from disclosure.
Because they were publicly filed, the charging documents the prisoner sought were not
investigatory files exempt from disclosure under the CPRA. Weaver v. Superior Court
(2014, 4th Dist) 2014 Cal App LEXIS 233.
**Admissibility, over hearsay objection, of police observations and investigative

findings offered by government in criminal prosecution, excluded from public records
exception to hearsay rule under Rule 803(8)(B) or (C), Federal Rules of Evidence, 56
A.L.R. Fed. 168
**Construction and application of provision of Rule 803(8)(B), Federal Rules of Evidence,

excluding from exception to hearsay rule in criminal cases matters observed by law
enforcement officers, 37 A.L.R. Fed. 831
U.S. v. Sawyer, 607 F.2d 1190, 1193, 4 Fed. R. Evid. Serv. 1142 (7th Cir.(Ill.), Aug
16, 1979) (NO. 78-2098)
[4] Criminal Law 110 435
110 Criminal Law

110XVII Evidence
110XVII(P) Documentary Evidence
110k431 Private Writings and Publications
110k435 k. Memoranda; past recollection recorded. Most Cited Cases
**Rule 803(8) concerning public records does not disqualify the recorded recollections
of a testifying law enforcement officer when such recollections would otherwise be
admissible as a recorded recollection under Rule 803(5), and thus, in prosecution for
failure to timely file income tax returns, an agent's memorandum report was admissible
as a recorded recollection, inasmuch as agent was available for cross-examination.
Fed.Rules Evid. Rule 803(5, 8) 28 U.S.C.A.
[4] The admissibility of the agent's report, however, raises a more difficult issue. It
would seem, as the government argues, that the report satisfies the criteria for
admissibility as a recorded recollection under Fed.R.Evid. 803(5). The agent testified
that he no longer had a recollection of the conversation and that the history sheet was
prepared immediately after the conversation. In addition, the agent's testimony tended
to show that both the original notation and its later transcription to the referral
report were accurate.
Nevertheless, Sawyer claims that the referral report should have been excluded because
it represents the report of a law enforcement officer. Relying heavily on United States
v. Oates, 560 F.2d 45 (2d Cir. 1977), Sawyer argues that law enforcement reports that
are barred under the “public records” exception of Fed.R.Evid. 803(8) are also
inadmissible under any other exception to the hearsay rule. In Oates, the Second Circuit
found “(a) clear congressional intent that reports not qualifying under FRE 803(8)(B) or
(C) should, and would, be inadmissible against defendants in criminal cases.” 560 F.2d
at 72.
We are not persuaded, however, that the restrictions of Rule 803(8) were intended to
apply to recorded recollections of a Testifying law enforcement officer that would
otherwise be admissible under Rule 803(5). In our view, the legislative history of Rules
803(8)(B) and (C) indicates that Congress intended to bar the use of law enforcement
reports as a substitute for the testimony of the officer. Thus, Representative Dennis,
in offering the amendment which excluded law enforcement reports from admission at
criminal trials, stated:
What I am saying here is that in a criminal case, . . . we should not be able to put in
the police report to prove your case without calling policeman. I think in a criminal
case you ought to have to call the policeman on the beat and give the defendant the
chance to cross examine him, rather than just reading the report into evidence. That is
the purpose of this amendment.
120 Cong.Rec. H 564 (Feb. 6, 1974). And the Oates court itself identified the loss of
confrontation rights as the underlying rationale for Rule 803(8):
(The) pervasive fear of the draftsmen and of Congress that interference with an
accused's right to confrontation would occur was the reason why in criminal cases
evaluative reports of government agencies and law enforcement reports were expressly
denied the benefit to which they might otherwise be entitled under FRE 803(8).
560 F.2d at 78. We therefore decline to hold that Rule 803(8) disqualifies the recorded
recollections of a testifying law enforcement officer, when such recollections would
otherwise be admissible under Rule 803(5). Accordingly, since the hearsay declarant in
this case was available for cross-examination, and since the referral report would
otherwise qualify as a recorded recollection, we find no reversible error in the
admission of the report.
In warrantless arrests testimony / statement from unreliable informant / victim who in

the past has established that himself / herself as lying uncredible biased prejudiced
witness does not constitute probable cause or reasonable suspicion for an officer to
accept a citizen’s arrest, or to make an arrest.
In warrantless arrests testimony statement from unreliable informant victim who in the
past has established that himself herself as lying uncredible biased prejudiced witness
does not constitute probable cause or reasonable suspicion for an officer to make an
arrest
Westnext_search_in_warrentless_arrest_stmt_from_unreliab_inform
past_lying_uncredible_biased_prejudiced_witness_does_not_const_prob_cause_reason_susp_fo
r_officer_to_make_citizens_arrest
r_officer_to_make_arrest
** 54. Michigan v. DeFillippo

Supreme Court of the United States June 25, 1979 443 U.S. 31 99 S.Ct. 2627 77-1680
Defendant, charged with possession of a controlled substance, moved to suppress evidence
obtained in a search of his person. The Recorder’s Court, Wayne County, denied the motion,
and interlocutory appeal was granted. The Court of Appeals, 80 Mich.App. 197, 262 N.W.2d 921,
reversed, holding that since defendant had...
... The United States Supreme Court, Mr. Chief Justice Burger, held that: (1) where the officer who
arrested defendants had abundant probable cause to believe that defendant’s conduct violated a
presumptively valid city ordinance, the arrest of defendant was lawful even though the city ordinance was
later declared unconstitutional, and (2) since the arrest of defendant was valid, the search of
defendant’s person incident to the arrest was proper and evidence discovered in the search should not...
...Fact that city ordinance was subsequently found so vague as to be unconstitutional did not undermine
lawfulness of arrest that was made in good faith reliance on the ordinance and that was clearly based on
probable cause to believe the arrestee had violated the ordinance and, therefore, drugs discovered in a
search of the arrestee incident to the arrest should not have been suppressed. U.S.C.A.Const. Amends. 5,
14....
...Where presumptively valid city ordinance declared it a misdemeanor for one stopped for investigation to
“refuse to identify himself” and suspect who was lawfully stopped for investigation did refuse to identify
himself, officer had probable cause to believe that the suspect was committing an offense in his presence
and the Michigan general arrest statute authorized the arrest of the suspect, independent of the ordinance.
M.C.L.A. § 764.15....
... Mr. Chief Justice Warren speaking for the Court, in holding that police action based on a
presumptively valid law was subject to a valid defense of good faith, observed: “A policeman’s lot is not
so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when
he has probable cause, and being mulcted in damages if he does.” ...
** 95. U.S. v. Harris

Supreme Court of the United States June 28, 1971 403 U.S. 573 91 S.Ct. 2075 30
Defendant was convicted in the United States District Court for the Eastern District of
Kentucky, at London, of possession non-tax-paid liquor, and he appealed. The Court of Appeals,
412 F.2d 796, reversed and certiorari was granted. Mr. Chief Justice Burger announced the
Supreme Court’s judgment and delivered an opinion that affidavit which...
...Where, as in this case, the affiant states under oath that he has been informed of the existence of
certain criminal activity, but has not observed that activity himself, a magistrate in discharging his
duty to make an independent assessment of probable cause can properly issue a search warrant only if he
concludes that: (a) the knowledge attributed to the informant, if true, would be sufficient to establish
probable cause; (b) the affiant is likely relating truthfully what the informer...
...This reading of Nathanson is confirmed by Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93
L.Ed. 1879 (1949), in which the Court, in sustaining a finding of probable cause for a warrantless arrest,
held proper the assertion of the searching officer that he had previously arrested the defendant for a
similar offense and that the defendant had a reputation for hauling liquor....
...More immediately relevant here, our cases have established that where the affiant relies upon the
assertions of confidants to establish probable cause, the affidavit must set forth facts which enable the
magistrate to judge for himself both the probable credibility of the informant and the reliability of his
information, for only if this condition is met can a reviewing court be satisfied that the magistrate has
fulfilled his constitutional duty to render an independent determination that probable cause exists....
...A person who has not been shown to possess any of the common attributes of credibility, whose name
cannot be disclosed to a magistrate, and whose information has not been corroborated is precisely the sort
of informant whose tip should not be the sole basis for the issuance of a warrant, if the constitutional
command that ‘no Warrants shall issue, but upon probable cause ’ is to be respected....
Keywords:
...**Arresting officer advised of crime by person who claims to be victim, and who has
signed complaint or information charging someone with crime, has probable cause to
effect arrest, as would preclude § 1983 false arrest claim, absent circumstances that
raise doubts as to victim’s veracity....
situation in which ... doubts arise” as to the veracity of the complaining witness
42 u.s.c. 1983 false arrest situation circumstances in which doubts arise as to the
veracity of the complaining witness
westnext_search_42_usc_1983_false_arrest_situaton_circum_in_which_doubts_arise_to_veraci
ty_of_complain_witness victim
42 u.s.c. 1983 violation of civil rights by racially motivated campaign or harassment

and intimidation
42 u.s.c. 1983 violation of civil rights by officer attempting to falsely charge a

citizen as harassment
Westnext_search_42_usc_1983_viol_of_civ_rights_by_offic_attempt_to falsely charge a

citizen as harassment_results
Drummond v. Castro, 522 F.Supp.2d 667, 675 (2007)
a prior relationship between the witness and Plaintiff that would tend to suggest a
hidden motive on the part of the witness or cast doubt on the witness’s veracity.
42 u.s.c. 1983 false arrest officer advised of crime by person witness victim informant
complainant does not have lacks probable cause when circumstances raise establish doubts
as to victim’s veracity
westnext_search_42_usc_1983_false_arrest_office_advis_crime_by_pers_witn_victim_informan
t_complainant_does_not_have_lacks_prob_cause_when_circum_raise_establ_doubts_to_victim_
veracity_fed_all_results
**6. McGee v. Doe

United States Court of Appeals, Second Circuit. June 03, 2014 568 Fed.Appx. 32 2014 WL
2459704 12-1206-CV
CIVIL RIGHTS - Arrest and Detention. Arrestee sufficiently pled conspiracy to bring
about false arrest and malicious prosecution, thus stating §1983 claim.
... “An arresting officer advised of a crime by a person who claims to be the victim,
and who has signed a complaint or information charging someone with the crime, has
probable cause to effect an arrest absent circumstances that raise doubts as to the
victim’s...
... In the face of a § 1983 claim for false arrest, a police officer need only
demonstrate “arguable probable cause,” see Martinez v. Simonetti, 202 F.3d 625, 634 (2d
Cir.2000), which applies “where (1) it was objectively reasonable for the officer to
believe there was probable cause to make the arrest, or (2) reasonably competent police
officers could disagree as...
...Reasonably competent police officers should have known that contractor’s employee was
unreliable victim- informant whose statement could not form sole basis of individual’s
arrest for purported witness tampering, and thus officers lacked probable cause, where
employee had obvious connection with contractor with whom individual was involved in
contract dispute and his statement to police was offered at contractor’s direction,
employee spoke little English and no interpreter was present when employee wrote and
swore out complaint...
... Id.; see also Lee, 136 F.3d at 104 (finding arguable probable cause where officer
arrested plaintiff husband for domestic abuse of his wife based upon the wife’s
statement, but only after conferring with a physician who examined the wife and advised
that although she seemed disoriented, intoxicated, or mentally impaired, she could
accurately relate the facts about her alleged assault at the hands of her husband);
Singer, 63 F.3d at 119 (holding that officer had qualified immunity from § 1983 action
brought by arrestee, because officer...
Preliminary Evidence presented of Soon Chey to the case LG 08644. to be followed with
further evidence and complaint for arrest and or citizen’s arrest against Mr. Dan
Vincent and 230 Forest Avenue Restaurant for violation of Penal Code Section 148.5.
False Report Of Criminal Offense; Misdemeanor, And Penal Code Section 182. Definition;
punishment; venue; evidence necessary to support conviction,(a) If two or more persons
conspire:, (2) Falsely And Maliciously To Indict Another For Any Crime, Or To Procure
Another To Be Charged Or Arrested For Any Crime.
In warrantless arrests testimony / statement from unreliable informant / victim

who in the past has established that himself / herself as lying uncredible biased
prejudiced witness does not constitute probable cause or reasonable suspicion for an
officer to accept a citizen’s arrest, or to make an arrest.
Soon Chey states that alleged victim / witness / informant Mr. Dan Vincent, is an
established by public statements among others, and in the past a lying, uncredible,
biased and prejudiced witness
McGee v. Doe, 568 Fed.Appx. 32, 38, (2014)
If the complaint is taken at face value, then the police defendants observed Dunn
directing Galindo in offering his statement. Additionally, some of the police defendants
had longstanding relationships with Dunn and Galindo, and some of them may have known of
Dunn’s ongoing dispute with McGee. See **Hebron v. Touhy, 18 F.3d 421, 423 (7th Cir.1994)
(noting that defendant police officers “knew that the [victim-informant] tenants were
being evicted, and the significant chance that they bore a grudge against their
landlords would have made it unreasonable—and therefore unconstitutional—to arrest the
landlords on the tenants’ mere say-so. Having received a report of questionable
reliability, the police needed to investigate” before relying on that statement for an
arrest)
Selvaggio v. Patterson, 93 F.Supp.3d 54, 68, (2015)

[13] [14]
However, the officers also knew of an ongoing conflict between Plaintiff and
Mansour,16 which should have *69 called into question the veracity of Mansour’s
allegations. When an officer receives his information from a putative victim or
eyewitness, probable cause is established “ ‘unless the circumstances raise doubt as to
the person’s veracity.’ ” Fabrikant v. French, 691 F.3d 193, 216 (2d Cir.2012) (quoting
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006)). “ **‘The most common situation in
which doubts arise is when there exists a prior relationship between the victim and the
accused that gives rise to a motive for a false accusation.’ ” DiStefano v. Sedita, No.
11–CV–1125 (MKB), 2014 WL 349251, at *4 (E.D.N.Y. Jan. 31, 2014) (quoting Mistretta v.
Prokesch, 5 F.Supp.2d 128, 133 (E.D.N.Y.1998)); see also Hart v. City of New York, No.
11–CV–4678 (RA), 2013 WL 6139648, at *5 (S.D.N.Y. Oct. 28, 2013)
I refer to and incorporate, the following Youtube Videos created by the informant
/ victim Mr. Dan Vincent repeatedly falsely asserting as truth that David Chey and Soon
Chey are Elder Abuse Criminals and Fraud Criminals.
1. https://www.youtube.com/watch?v=RYnrMAInjoY
2. https://www.youtube.com/watch?v=qMlrkfSLz1A
Sankar v. City of New York, 867 F.Supp.2d 297, 306 (2012)
at least Officer Ostrowski was aware of the contentious relationship that existed
between White and plaintiff. Prior relationships, such as this, which “give[ ] rise to a
motive for a false accusation” are “[t]he most common situation in which ... doubts
arise” as to the veracity of the complaining witness.10 Mistretta v. Prokesch, 5
F.Supp.2d 128, 133 (E.D.N.Y.1998) (Gleeson, J.); see also Drummond v. Castro, 522
F.Supp.2d 667, 675 (S.D.N.Y.2007) (McKeena, J.) (“Police do not cite any evidence of a
prior relationship between the witness and Plaintiff that would tend to suggest a hidden
motive on the part of the witness or cast doubt on the witness’s veracity.”) (emphasis
added). Thus, although ordinarily, an arresting officer “is not required to explore and
eliminate every theoretically plausible claim of innocence before making an arrest,”
Ricciuti, 124 F.3d at 128, where, as here, a bitter prior relationship exists “and is
known to the arresting officer before the arrest is made, the complaint alone may not
constitute probable cause; the officer may need to investigate further.” Mistretta, 5
F.Supp.2d at 133 (emphasis added).
[2]
The August Arresting Officers should have investigated further but did not. **Counter
to what defendants argue, Ostrowski and Galli were “not absolutely privileged to arrest
upon a charge by any *307 private individual who claims to be a victim,” especially
White, an individual that at least Ostrowski should have known may very well have had an
“axe[ ] to grind” with plaintiff. Id.
Hebron v. Touhy, 18 F.3d 421, 423 (1994)
**Parks and Touhy knew that the tenants were being evicted, and the significant chance
that they bore a grudge against their landlords would have made it unreasonable—and
therefore unconstitutional—to arrest the landlords on the tenants’ mere say-so.
81 A.L.R.4th 1031 (Originally published in 1990)

American Law Reports
ALR4th
The ALR databases are made current by the weekly addition of relevant new cases.
Thomas M. Fleming, J.D.
Liability of police or peace officers for false arrest, imprisonment, or malicious
prosecution as affected by claim of suppression, failure to disclose, or failure to
investigate exculpatory evidence
§ 8. Unreliability of witness
**In the following cases, the courts held proper juries’ verdicts finding police
officers or their employers liable for false imprisonment or malicious prosecution,
where the officers failed to disclose to prosecutors information suggesting that a
principal witness against the accused was unreliable.
In Bender v Seattle (1983) 99 Wash 2d 582, 664 P2d 492, 9 Media L R 2101, the court held
the proof sufficient to support a jury’s verdict finding a city liable for the conduct
of its detective in causing the false arrest, imprisonment, and malicious prosecution of
the plaintiff jeweler on charges of possessing stolen property, which were dismissed
when the key prosecution witness refused to testify, where an admitted thief told police
that the plaintiff bought two rings from him which the plaintiff knew were stolen, but
the detective knowingly failed to disclose to prosecutors, before charges were filed and
an arrest warrant was procured, that he had been unable to substantiate the informant’s
claims to have sold the plaintiff stolen property on other occasions, or that the
plaintiff had complied with reporting and documentation requirements when the rings were
found in his possession and had paid a price for them that was not unusual in the local
secondhand jewelry market. The court observed that since the plaintiff admitted
possession of the rings but denied knowledge that they were stolen, as the informant
claimed, the latter’s credibility was critical to establishing probable cause. The court
found that the information not revealed by the detective was material to a probable
cause determination, since it tended to undermine the informant’s credibility and
bolster the plaintiff’s.
**Keywords: 42 u.s.c. 1983 false arrest, imprisonment, malicious prosecution officer is

liable failing to disclose to prosecutors information suggesting that a principal
witness against the accused was unreliable
Westnext_search_42_usc_1983_false_arrest_imprison_malic_prosec_offic_liab_fail_discl_to_
prosec_info_suggest_princip_witness_against_accused_was_unreliable_results
Bsnk, financial institution bribing police officer by donation to IRS 501(c)(3)

corporation giving credit cards on terms unavailable to the public
Bank
Dec. 28, 2016
Visited Larry Bammer at around 7;20 P.M. to follow up on the previous day of the
violation PC 415(2) use of fighting words by Dan Vincent,
During communication I stated that Rosalie Gelston had a singer come to her store then
the singer carried a loud radio and then instructed the singer to sit next to Soon Chey
and then to turn the volume loud. And then it was at a high amplitude and then Gelston
told the singer to turn it to the point that it would cause pain distress from listening
to it.
That many were people who had protested the Vietnam War in the 1960s and many of the
residents were artists and entrepreneurs and that thought favorably that like me,
supported me
And that many people who would say the statements don’t give her (my mother Soon) money,
that she lives in a house on the hills and drives a Mercedes benz, And state Wells Fargo
wants you dead. Wells Fargo paid me
[and that many of these individuals were Wells Fargo paid private actors by stating that
Wells Fargo wants you dead or that Wells Fargo paid me, and attempting to violate civil
rights by falsely and maliciously attempting to indict another for a crime.
I stated that I had the pleasure to speak to several residents that I know Blair Mcmanus,
Gene and … that most of the resident
I described how assault from transient then he stated that he was doing recon on behalf
of Scandia Bakery
Then Bammer stated that I am aware that all the merchants hate you and that the
residents like you.
r_officer_to_make_citizens_arrest_fed_all_72_results
U.S. v. Cortez, (1981) 449 U.S. 411, 416
The court also recognized that “the ultimate question on appeal is whether the trial
judge’s finding that founded suspicion was present here was clearly erroneous.” 595 F.2d,
at 507. Here, because, in the view of the facts of the two judges constituting the
majority, “[t]he officers did not have a valid basis for singling out the Cortez
vehicle,” id., at 508, and because the *417 circumstances admitted “far too many
innocent inferences to make the officers’ suspicions reasonably warranted,”
**35. U.S. v. Torres-Castro

United States District Court, D. New Mexico. April 04, 2005 374 F.Supp.2d 994 2005 WL
1554701 CR 04-2537JB/MCA
CRIMINAL JUSTICE - Confessions. Statements were voluntary despite prior illegal
protective sweep.
...A relevant consideration regarding probable cause to arrest is whether officers have
made a reasonable effort to interview witnesses readily available at the scene,
investigate basic evidence, or otherwise inquire if a crime has been committed at all
before invoking the power of a warrantless arrest and detention. U.S.C.A. Const.Amend.
4....
... Further, it does not matter whether the officers had probable cause to arrest
Torres–Castro for the crime for which the federal grand jury eventually indicted him, so
long as they had probable cause to believe he had committed some crime for which a
warrantless arrest is justified....
...Officer’s unconstitutional conduct of conducting protective sweep of defendant’s
residence at time remote from his arrest did not taint any incriminating statements he
made regarding location of shotgun, or any consent he gave to search residence for
weapons, inasmuch as arrest occurred after sweep, and officers already had probable
cause to arrest based on evidence from independent sources, as well as his consent to
enter residence, without relying on information, such as presence of shotgun shells in
open closet, gained from sweep. U.S.C.A. Const.Amend. 4...
...[37] With respect to the spatial proximity to the place of arrest, officers may, “as
a precautionary matter and without probable cause or reasonable suspicion, look in
closets and other spaces immediately adjoining the place of arrest from which an attack
could be immediately launched.” ...
Larry Bammer sells Wells Fargo stolen houses than afterwards then tries to conspire with
Wells Fargo to falsely maliciously indict the owner of the stolen house of a crime.
Sells Wells Fargo stolen houses as the quid and then tries to falsely
conflict of police officer to have second job that serves as a bribery for official
action
§ 70. Executive or ministerial officers, employees or appointees who ask, receive or

agree to receive emolument, gratuity or reward, or promise thereof; prohibition;
exceptions
Effective: January 1, 2004
Currentness
(a) Every executive or ministerial officer, employee, or appointee of the State of

California, or any county or city therein, or any political subdivision thereof, who
knowingly asks, receives, or agrees to receive any emolument, gratuity, or reward, or
any promise thereof excepting such as may be authorized by law for doing an official act,
is guilty of a misdemeanor.
(b) This section does not prohibit deputy registrars of voters from receiving
compensation when authorized by local ordinance from any candidate, political committee,
or statewide political organization for securing the registration of voters.
(c)(1) Nothing in this section precludes a peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, from engaging in, or being employed
in, casual or part-time employment as a private security guard or patrolman for a public
entity while off duty from his or her principal employment and outside his or her
regular employment as a peace officer of a state or local agency, and exercising the
powers of a peace officer concurrently with that employment, provided that the peace
officer is in a police uniform and is subject to reasonable rules and regulations of the
agency for which he or she is a peace officer. Notwithstanding the above provisions, any
and all civil and criminal liability arising out of the secondary employment of any
peace officer pursuant to this subdivision shall be borne by the officer’s secondary
employer.
(2) It is the intent of the Legislature by this subdivision to abrogate the holdings in
People v. Corey, 21 Cal. 3d 738, and Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, to
reinstate prior judicial interpretations of this section as they relate to criminal
sanctions for battery on peace officers who are employed, on a part-time or casual basis,
by a public entity, while wearing a police uniform as private security guards or
patrolmen, and to allow the exercise of peace officer powers concurrently with that
employment.
(d)(1) Nothing in this section precludes a peace officer, as defined in Chapter 4.5
in, casual or part-time employment as a private security guard or patrolman by a private
employer while off duty from his or her principal employment and outside his or her
regular employment as a peace officer, and exercising the powers of a peace officer
concurrently with that employment, provided that all of the following are true:
(A) The peace officer is in his or her police uniform.
(B) The casual or part-time employment as a private security guard or patrolman is

approved by the county board of supervisors with jurisdiction over the principal
employer or by the board’s designee or by the city council with jurisdiction over the
principal employer or by the council’s designee.
(C) The wearing of uniforms and equipment is approved by the principal employer.
(D) The peace officer is subject to reasonable rules and regulations of the agency for
which he or she is a peace officer.
(2) Notwithstanding the above provisions, a peace officer while off duty from his or her
principal employment and outside his or her regular employment as a peace officer of a
state or local agency shall not exercise the powers of a police officer if employed by a
private employer as a security guard during a strike, lockout, picketing, or other
physical demonstration of a labor dispute at the site of the strike, lockout, picketing,
or other physical demonstration of a labor dispute. The issue of whether or not casual
or part-time employment as a private security guard or patrolman pursuant to this
subdivision is to be approved shall not be a subject for collective bargaining. Any and
all civil and criminal liability arising out of the secondary employment of any peace
officer pursuant to this subdivision shall be borne by the officer’s principal employer.
The principal employer shall require the secondary employer to enter into an indemnity
agreement as a condition of approving casual or part-time employment pursuant to this
subdivision.
(3) It is the intent of the Legislature by this subdivision to abrogate the holdings in
People v. Corey, 21 Cal. 3d 738, and Cervantez v. J. C. Penney Co., 24 Cal. 3d 579, to
reinstate prior judicial interpretations of this section as they relate to criminal
sanctions for battery on peace officers who are employed, on a part-time or casual basis,
while wearing a police uniform approved by the principal employer, as private security
guards or patrolmen, and to allow the exercise of peace officer powers concurrently with
that employment.
**(e)(1) Nothing in this section precludes a peace officer, as defined in Chapter 4.5
in, other employment while off duty from his or her principal employment and outside his
or her regular employment as a peace officer of a state or local agency.
(2) Subject to subdivisions (c) and (d), and except as provided by written regulations
or policies adopted by the employing state or local agency, or pursuant to an agreement
between the employing state or local agency and a recognized employee organization
representing the peace officer, no peace officer shall be prohibited from engaging in,
or being employed in, other employment while off duty from his or her principal
employment and outside his or her regular employment as a peace officer of a state or
local agency.
(3) If an employer withholds consent to allow a peace officer to engage in or be
employed in other employment while off duty, the employer shall, at the time of denial,
provide the reasons for denial in writing to the peace officer.
Keywords: California laws which prohibit police peace officer from engaging in, or being
employed in, other employment while off duty from his or her principal employment and
outside his or her regular employment as a police peace officer of a state or local
agency
westnext_search_ca_law_prohib_police_peace_offic_engag_in_being_employ_other_employ_whil
e_off_duty_from_princip_employm_outside_reg_employm_as_police_peace_offic_of_state_local
_agency_results
violation of California government code 19990 1126 by police peace officer public
employee receiving bribe through secondary employment to falsely arrest maliciously
prosecute
violation of California government code 19990 1126 bribery of public official employee
receiving bribe through secondary employment in return for official action on part of
public official while working under primary employment
or
violation of California government code 19990 1126 bribery a public official in

secondary employment in return for official action of public official employee when
working in primary employment
bank company corporation store bribing police officer to falsely arrest maliciously
prosecute citizen
westnext_search_co_corp_store_brib_polic_offic_to_falsely_arrest_malicous_prosec_citizen
_fed_all_results
** 7. Kesmodel v. Rand
Court of Appeal, Second District, Division 7, California. June 28, 2004 119 Cal.App.4th 1128 15
Cal.Rptr.3d 118 B165072
TORTS - False Imprisonment. Citizens’ arrest based on false report was not conduct that was
protected by statutory immunity.
... Kinney v. County of Contra Costa (1970) 8 Cal.App.3d 761, 769, 87 Cal.Rptr. 638 ( “It is noted that a
person falsely arrested by a citizen has his remedy, as successfully pursued here, against the offending
citizen.”)....
...Therefore, while a person falsely arrested by a citizen ordinarily has no remedy against the peace
officer who took him into custody as a result of the arrest, he has a tort remedy against the offending
citizen....
...Citizen’s arrest was conduct, not communication, and thus apartment building tenants’ conduct in
falsely claiming that neighbor was a “peeping Tom” and placing him under citizen’s arrest was not
protected by absolute statutory privilege afforded to citizen reports of suspected criminal activity to
law enforcement personnel, and tenants were properly held liable to neighbor for tort of false
imprisonment, where evidence showed that tenants made citizens’ arrest themselves after police officer
stated that she would not arrest neighbor, and there was no evidence that officer directed tenants to make
such arrest. West’s Ann.Cal.Civ.Code §47...
...Of significance to this case, the Hagberg court also distinguished the situation in which the citizen
merely provided information and left it to the officer to act or not as the situation warranted, from the
situation in which a citizen intentionally and actively assists in making a false arrest. 9...
** 18. Noga v. Potenza

United States District Court, N.D. New York. September 04, 2002 221 F.Supp.2d 345 2002 WL 2012549 99-CV-
941 (DRH)
CIVIL RIGHTS - Wrongful Prosecution. Evidence supported landlord’s malicious prosecution
claim under § 1983 against police officer.
...The District Court, Homer, United States Magistrate Judge, held that: (1) issue of whether police
officer was personally involved in landlord’s false arrest and malicious prosecution was for jury; (2)
issue of whether police officer’s actions contributed to causing the deprivation of landlord’s
constitutional rights was for jury; (3) issue of whether police officer induced tenant to file a criminal
complaint against landlord was for jury; (4) police...
... There, plaintiff prevailed on claims against police officers for false arrest, malicious prosecution,
battery and intentional infliction of emotional distress and was awarded an aggregate total of $300,700....
...Trial court’s jury instruction on proximate cause, stating that an injury or damage is proximately
caused by an act, whenever it appears from the evidence in the case that the act played a substantial part
in bringing about, or actually causing, the injury or damage, and the injury or damage was either a direct
result or a reasonably probable consequence of the act, was sufficient to guide jury on issue of
superseding and intervening negligence raised by defendant police officers in landlord’s malicious
prosecution and false arrest claims brought under § 1983...
** 25. Bodzin v. City of Dallas

United States Court of Appeals, Fifth Circuit. August 19, 1985 768 F.2d 722
a=%28sc.Default%29&VR=3.0&RS=cblt1.0 84-1695
Civil rights, false imprisonment, and malicious prosecution action was brought against city,
store owner, and two city police officers arising from an assertedly illegal arrest for
trespass. The United States District Court for the Northern District of Texas, A. Joe Fish,
J., entered orders dismissing all claims against city, all claims against...
...Civil rights, false imprisonment, and malicious prosecution action was brought against city, store
owner, and two city police officers arising from an assertedly illegal arrest for trespass....
...Bodzin sued the two officers, the City of Dallas, and Skaggs Companies, Inc., asserting §1983 claims
for unconstitutional arrest, use of excessive force, infringement of First Amendment rights, and
conspiracy to violate his constitutional rights, as well as pendent state-law claims for false arrest,
malicious prosecution, and libel and slander....
... The United States District Court for the Northern District of Texas, A. Joe Fish, J., entered orders
dismissing all claims against city, all claims against store owner except common-law false arrest, and all
claims against officers except unconstitutional arrest, use of excessive force, and common-law false
arrest, and granting judgment notwithstanding the verdict against one of officers....
... The district court granted a directed verdict for the City of Dallas on all counts, for Skaggs on all
claims except common-law false arrest, and for the officers on all claims except unconstitutional arrest,
use of excessive force, and common-law false arrest....
...Issue of whether police officer was personally involved in landlord’s false arrest and malicious
prosecution, as required for liability to attach under § 1983, was for jury; officer intimidated landlord,
contacted detectives on tenant’s behalf, sent a police officer to tenant’s place of business to facilitate
taking a complaint, provided detective with information about the case, and contacted the Assistant
District Attorney assigned to prosecute landlord to protest reduction of the charge against landlord. 42
U.S.C.A. §1983...
** 38. Lusby v. T.G. & Y. Stores, Inc.

United States Court of Appeals, Tenth Circuit. November 23, 1984 749 F.2d 1423
a=%28sc.Default%29&VR=3.0&RS=cblt1.0 82-1779, 82-1721
Customer and his brothers against whom charges, inter alia, of petty larceny and assault and
battery were dropped, asserted civil rights and pendent state tort claims against city, two
police officers, retail store, and store’s security guard. The United States District Court
for the Western District of Oklahoma, Lee R. West, J., entered...
...The jury found T.G. & Y. liable to Vaughn Lusby on the §1983 claim and on the pendent claims of false
arrest and malicious prosecution....
...In Oklahoma, jury may award punitive damages for false arrest or malicious prosecution on finding that
wrongdoer acted willfully, wantonly, or in reckless disregard of rights of another, resulting in injury....
...Customer and his brothers against whom charges, inter alia, of petty larceny and assault and battery
were dropped, asserted civil rights and pendent state tort claims against city, two police officers,
retail store, and store’s security guard....
...These appeals arise out of judgments in favor of plaintiffs Solomon Lusby, Vaughn Lusby, and Alvin
Lusby—three brothers—who asserted civil rights and pendent state tort claims against the City of Lawton,
Oklahoma, two of its police officers, Kent Dunegan and Steve Wertz, T.G. & Y. Stores, Inc., and Charles
Gent, another Lawton police officer who was serving while off-duty as a security guard at a T.G. & Y.
store in Lawton at the time of the disputed incidents....
18 u.s.c. 1962 1346 1341 bank company corporation store bribing police officer to
falsely arrest maliciously prosecute citizen
westnext_search_18_usc_1962_1346_1341_bank_co_corp_store_brib_pol_office_to_falsely_arre
st_malicous_prosec_citizen_ca9_results
westnext_search_viol_ca_gov_code_19990_1126_brib_pub_offic_employe_receiv_brib_thru_seco
nd_employm_in_ret_offic_act_on_part_pub_offic_while_work_prim_employm_results_
westnext_search_viol_ca_gov_code_19990_1126_brib_pub_offic_employe_in_second_employm_ret
_for_offic_act_pub_offic_employe_when_work_prim_employm_results
**1. People v. Wong

Court of Appeal, Second District, Division 2, California. July 28, 2010 186 Cal.App.4th 1433 113
Cal.Rptr.3d 384 B212580
CRIMINAL JUSTICE - Bribery. Sufficient evidence supported former city official’s bribery
conviction.
...There was sufficient evidence that defendant’s intent in working as a consultant for third party during
his employment as a city commissioner was corrupt, as required to support finding of bribery; intent could
be inferred from third party’s agreement to pay money to defendant, third party’s knowledge that while it
was paying defendant, defendant would use his public office to influence actions of officials to obtain
amendment of lease agreement between city and third party, clandestine payment of funds into defendant’s
offshore account, defendant’s failure to disclose his third party relationship to city officials...
...A contract is made by a public official for purposes of state conflict of interest statute if he had
the opportunity to, and did, influence execution of the contract directly or indirectly to promote his
personal interests; thus, a public official can violate the statute even though he did not participate in
the contract’s execution. West’s Ann.Cal.Gov.Code §1090....
...There was sufficient evidence that defendant, a city official, “made” a contract in his official
capacity, as required to support finding that he violated criminal statute’s proscription from having a
financial interest in any contract made by him in his official capacity; official pushed the city to
negotiate with third party while he was a municipal airport commissioner and commissioner for department
of water and power, and only four months before city’s air lease with third party was amended, official
wrote an e-mail update of his lobbying activities to person who had put him in touch with the third party.
West’s Ann.Cal.Gov.Code §1090...
...) “The evil to be thwarted [by Government Code] section 1090 is easily identified: If a public official
is pulled in one direction by his financial interest and in another direction by his official duties, his
judgment cannot and should not be trusted, even if he attempts impartiality.” ...
** 24. Riverside Sheriffs’ Association v. County of Riverside

Court of Appeal, Fourth District, Division 2, California. June 29, 2016 Not Reported in Cal.Rptr.3d 2016
WL 3637504 E062836
The Riverside County Sheriff’s Department (the Department) had a policy regulating its
employees’ outside employment activities (the policy), i.e., additional employment outside of
the Department. In November 2010, the Department revised the policy. Those revisions caused
the policy to be “changed significantly.” In...
...It also reflected approval may be denied or withdrawn if (a) the employee’s performance evaluation
reflects they are less than competent, or if the outside job might impair the employee’s efficiency when
working at the Department; (b) the outside employment would cause the employee to work in excess of six
hours when the employee is already scheduled for an eight-hour shift at the Department; or (c) the outside
employment requires the employee...
...An employee’s outside employment, activity, or enterprise may be prohibited if it: (1) involves the use
for private gain or advantage of his or her local agency time, facilities, equipment and supplies; or the
badge, uniform, prestige, or influence of his or her local agency office or employment or, **(2) involves
receipt or acceptance by the officer or employee of any money or other consideration from anyone other
than his or her local agency for the performance of an act which the officer or employee, if not
performing such act, would be required or expected to render in the regular course or hours of his or her
local agency employment...
...Additionally, (1) employees were now required to obtain “annual approval for continuing outside
employment,” and (2) employees approved for outside employment were considered to have agreed “that their
personal financial records may be requested and reviewed/audited for [a] potential conflict of interest
pursuant to Government Code Section 3308.”...
...Courts have construed the phrase ‘wages, hours, and other terms and conditions of employment ’ to
include the transfer of bargaining-unit work to nonunit employees, mandatory drug testing of employees,
work shift changes, and the adoption of a disciplinary rule prohibiting use of public facilities for
personal use.” ...
** 25. U.S. v. Sun-Diamond Growers of California

Supreme Court of the United States April 27, 1999 526 U.S. 398 119 S.Ct. 1402 98-131
CRIMINAL JUSTICE - Bribery. Gratuity statute requires link between thing of value conferred
upon public official and specific “official act” for or because of which it was given.
... That statute provides, in relevant part, that anyone who “otherwise than as provided by law for the
proper discharge of official duty ․ directly or indirectly gives, offers, or promises anything of value to
any public official, former public official, or person selected to be a public official, for or because of
any official act performed or to be performed by such public official, former public...
... Why go through the trouble of requiring that the gift be made “for or because of any official act
performed or to be performed by such public official,” and then defining “ official act” (in §201(a)(3))
to mean “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may
at any time be pending, or which may by law be brought before any public official, in such official’s
official...
... The answer to this objection is that those actions-while they are assuredly “ official acts” in some
sense-are not “ official acts” within the meaning of the statute, which, as we have noted, defines
“ official act” to mean “any decision or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by law be brought before any public official,
in such official’s official...
... The second crime, defined in §201(c)(1)(A) as to the giver, and in §201(c)(1)(B) as to the recipient,
is illegal gratuity, which requires a showing that something of value was given, offered, or promised to a
public official (as to the giver), or demanded, sought, received, accepted, or agreed to be received or
accepted by a public official (as to the recipient), “for or because of any official act performed or to
be performed by such public official.”...
** 53. Mazzola v. City and County of San Francisco

Court of Appeal, First District, Division 2, California. November 17, 1980 112
Cal.App.3d 141 169 Cal.Rptr. 127 CIV. 45054
Appeal was taken by plaintiff from a judgment of the Superior Court, San Francisco
County, John E. Benson, J., denying petition for peremptory writ of administrative
mandamus to set aside a removal decision of the board of supervisors and to restore to
plaintiff all the rights of an airports commissioner. The Court of Appeal, Miller, J.,
held that:...
...An employee’s outside employment, activity or enterprise may be prohibited if it: (1)
involves the use for private gain or advantage of his local agency time, facilities,
equipment and supplies; or the badge, uniform, prestige or influence of his local agency
office or employment or, (2) involves receipt or acceptance by the officer or employee
of any money or other consideration from anyone other than his local agency for the
performance of an act which the officer or employee, if not performing such act, would
be required or expected to render in the regular course or hours of his local agency
employment...
...Section 1126 of the Government Code provides: “(a) A local agency officer or employee
shall not engage in any employment, activity, or enterprise for compensation which is
inconsistent, incompatible, in conflict with, or inimical to his duties as a local
agency officer or employee or with the duties, functions or responsibilities of his
appointing power or the agency by which he is employed....
...The Court of Appeal, Miller, J., held that: (1) term “official misconduct,”128 within
San Francisco Charter that any elective officer and any member of Civil Service
Commission or Public Utilities Commission or school board may be suspended by mayor and
removed by board of supervisors for official misconduct, is sufficiently specific to
provide fair warning of conduct which is prohibited and,...
...Plaintiff could not be legally guilty of “ official misconduct” under San Francisco
Charter so as to authorize defendant board of supervisors to remove him from office as
an airports commissioner where, aside from fact that official misconduct required a
direct relationship of alleged wrongdoing to office held, a specified statutory
violation was normally the basis for charging an official with misconduct in office, but
charges against plaintiff had nothing to do with his official capacity as airports
commissioner nor to performance of his duties as such, and plaintiff did not violate...
** 25. U.S. v. Jefferson

United States Court of Appeals, Fourth Circuit. March 26, 2012 674 F.3d 332 2012 WL 990234 09-5130
CRIMINAL JUSTICE - Bribery. Jury instructions correctly defined “official act” within meaning
of bribery statute.
... Finally, in the 18 U.S.C. § 1962(c) RICO charge of Count 16, eleven of the twelve racketeering acts
specified in the indictment fell under two alternative theories: bribery and honest services wire fraud....
...In a mail or wire fraud prosecution, the mailing or wire transmission itself is the actus reus that is
punishable by federal law; in such prosecutions, each mailing or wire transmission in furtherance of the
fraud scheme constitutes a separate offense, and it may be separately punished. 18 U.S.C.A. §§1343,
1346....
...By way of example, see J.A. 258 ( “[Jefferson] concealed [his] bribe payments from public view by
funneling those payments, shares of stock, and other beneficial interests through bogus companies
nominally owned and operated by his family members through companies that were set up for the sole purpose
of receiving the bribe payments.”); id....
...The Supreme Court determined in Skilling that 18 U.S.C. § 1346, which prohibits “a scheme or artifice
to deprive another of the intangible right of honest services,” criminalizes only those wire fraud schemes
involving bribery and kickbacks, and not a defendant’s failure to disclose self-dealing conflicts of
interest....
**57. Turner v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division. November 25, 2015 Not Reported in F.Supp.3d
2015 WL 7568373 12 CV 9994
James Garner and Tina Turner (husband and wife) filed suit against the City of Chicago,
Chicago police officers L.H. Saldana and T.M. Norris, and MB Financial Bank in December 2012,
alleging that MB Financial Bank colluded with the officers and the City of Chicago to have
plaintiffs falsely arrested and maliciously prosecuted in retaliation for...
...James Garner and Tina Turner (husband and wife) filed suit against the City of Chicago, Chicago police
officers L.H. Saldana and T.M. Norris, and MB Financial Bank in December 2012, alleging that MB Financial
Bank colluded with the officers and the City of Chicago to have plaintiffs falsely arrested and
maliciously prosecuted in retaliation for plaintiffs’ refusal to sell their house to MB Financial....
...“The existence of probable cause to arrest is an absolute defense to any § 1983 claim against a police
officer for false arrest or false imprisonment.”...
...Bank employees became familiar with Turner and Garner, and since 2007, bank employees observed
plaintiffs repeatedly discarding debris onto bank property, damaging bank property, and harassing bank
employees and contractors....
...See, e.g., Bailey, 779 F.3d at 696 (federal false arrest claim based on same facts as state-law claim
for malicious prosecution)....
** 60. Hardy v. Town of Hayneville

United States District Court, M.D. Alabama, Northern Division. April 01, 1999 50
F.Supp.2d 1176 1999 WL 183763 CIV.A. 99-A-86-N
Arrestee brought Alabama state tort law claims and §1983 claims against arresting
officer, chief of police, mayor, and town. On defendants’ motions to dismiss, the
District Court, Albritton, J., held that: (1) allegations were sufficient to state Sixth
Amendment claim of right to notice of nature and cause of accusations; (2)...
...Apparently recognizing that certain state police officers are entitled to absolute
immunity as constitutional officers and that other state police officers are entitled to
discretionary function immunity, but that county and municipal police officers arguably
had no immunity, the Alabama Legislature adopted §6–5–338(a), Code of Alabama 1975....
...Arrestee could not pursue action against mayor for negligence in hiring and retaining
police officer who allegedly committed bad faith false arrest, since hiring and
retaining officer were discretionary functions....
... A malicious prosecution action cannot lie against a municipality, because a
municipality cannot be deemed to act with malice....
...Under Alabama law, malicious prosecution action cannot lie against municipality,
since municipality cannot be deemed to act with malice. Ala.Code 1975, §11–47–190....

42 Usc 1983 Conspiracy Authorities

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

42 Usc 1983 Conspiracy Authorities

Uploaded by

Copyright:

Available Formats

42 USC 1983 Conspiracy

Distinction between conspiracy under 1983, and under 1985(3)

Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 45 Fed.R.Serv.3d

b. The Conspiracy Claim

[20][21] To establish the defendants' liability for a conspiracy, a plaintiff must

[T]o ‘expose, disrupt, misdirect, discredit or otherwise neutralize’ and

+ to nurture the atmosphere of conflict, danger and division in the communities

+ to falsely portray plaintiffs and Earth First!, and cause them to be

Plaintiffs' Seventh Amended Complaint at 15-16.

2. The District Court's Conclusions

3. Sufficiency of the Evidence Presented by the Appellees

AFFIRMED in part, REVERSED in part, and REMANDED.

[Cited 98 times for this legal issue]

[Cited 7 times for this legal issue]

[Cited 7 times for this legal issue]

[Cited 6 times for this legal issue]

[Cited 5 times for this legal issue]

[Cited 5 times for this legal issue]

[Cited 5 times for this legal issue]

[Cited 5 times for this legal issue]

[Cited 5 times for this legal issue]

[Cited 33 times for this legal issue]

[Cited 3 times for this legal issue]

[Cited 21 times for this legal issue]

[Cited 21 times for this legal issue]

[Cited 21 times for this legal issue]

[Cited 20 times for this legal issue]

[Cited 2 times for this legal issue]

[Cited 2 times for this legal issue]

[Cited 2 times for this legal issue]

[Cited 18 times for this legal issue]

**In re Cowin, 2013 WL 1786026

Koch v. Royal Wine Merchants, Ltd., 23 Fla. L. Weekly Fed. D 385

Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1195

**Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1195

Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1186

**Poel v. Webber, 899 F.Supp.2d 1155

**White v. City of Atlanta, 449 Fed.Appx. 804

**In re USA Commercial Mortg. Co., 802 F.Supp.2d 1147

**Hernandez v. City of Napa, 2011 WL 996791 (officers denied qualified immunity)

**SigmaPharm, Inc. v. Mutual Pharmaceutical Co., Inc., 772 F.Supp.2d 660

In re Enron Corp. Securities, Derivative & Erisa Litigation, 2010 WL 5100809

Green v. Missouri, 734 F.Supp.2d 814

Green v. Missouri, 734 F.Supp.2d 814

**Steel v. City of San Diego, 726 F.Supp.2d 1172

**Steel v. City of San Diego, 726 F.Supp.2d 1172

**Wackman v. Rubsamen, 602 F.3d 391

**Mills v. City of Harrisburg, 350 Fed.Appx. 770

**U.S. v. Santiago-Mendez, 2009 WL 1767666 West KeySummary[1] D.C.P.R.,2009Sufficient

**Roy v. Board of County Com'rs, 607 F.Supp.2d 1297,

**Vodak v. City of Chicago, 624 F.Supp.2d 933

[Cited 8 times for this legal issue]

[Cited 3 times for this legal issue]

**Gibbons v. Lambert, 358 F.Supp.2d 1048

**Burrell v. Anderson, 353 F.Supp.2d 55

**Heartland Academy Community Church v. Waddle, 317 F.Supp.2d 984

**Williams v. County of Santa Barbara, 272 F.Supp.2d 995

Affirmed in part; reversed in part and remanded.

[10] Civil Rights 78 1398

Real estate broker’s salesperson’s evidence of participation in conspiracy, actively

39 amjur pof3d 309 real estate brokers misrepresentation or nondisclosure as to

Evid of conspiracy judge hearing a case despite having stock in bank,

** 12 Construction and Application of "Intracorporate Conspiracy Doctrine" as

§ 7. View that intracorporate conspiracy doctrine does not apply to corporate