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When apprehending or subduing a suspect, law enforcement is allowed to use reasonable physical force. Typically, such use of force would include bracing a suspect against a wall or the ground as he/she handcuffs the suspect.
If a suspect resists, then law enforcement is authorized to counter the resistance with additional degrees of force, including lethal. In most cases, the use of force by a law enforcement officer is justified.
However, when the degree of force trips the reasonable line into excessive, and, in some cases, fatal, the services of an experienced criminal defense attorney may be needed. The California Legislature is currently considering legislation that would restrict the use of lethal force by law enforcement to those situations in which it is necessary to prevent imminent and serious bodily injury or death.
A discussion of the excessive use of force by law enforcement, as well as the proposed law, will follow below.
Current Use of Force Law
The use of force generally means the amount of effort required by law enforcement to compel compliance by an unwilling individual. Use of force doctrines are employed by law enforcement in an effort to balance the needs of security with ethical concerns for the rights and well-being of individuals.
In other words, law enforcement is permitted to use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.
Excessive force refers to situations where law enforcement, otherwise legally entitled to use force, exceed the minimum amount necessary to diffuse an incident or to protect themselves or others from harm.Constitutionally speaking, an individual’s right to be free from the excessive force is found in the reasonable search and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual punishment in the Eighth Amendment.
Existing California law authorizes law enforcement to arrest individuals pursuant to a warrant or based upon probable cause. Under this law, an arrest may be made by the actual restraint of the individual or by submission to the custody of the arresting law enforcement officer. Further, this law authorizes a law enforcement officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance.
Additionally, current law does not require a law enforcement officer to retreat or desist from an attempt to make an arrest because of resistance or threatened resistance of the individual being arrested.
If an arrestee dies due to excessive force, the homicide would most likely be justifiable if committed when the individual has committed a felony and is either fleeing or resisting the arrest.
California’s New Regulation on Excessive Force
AB 392, if passed, would redefine the situations in which a homicide by law enforcement is justifiable. Specifically, homicide would be justifiable if in self-defense or the defense of another, or when necessary to prevent the escape of a felon whose immediate apprehension is necessary to prevent death or serious injury.
Further, the bill would deem a homicide unjustifiable if law enforcement acted in a criminally negligent manner, including if the criminally negligent actions created the necessity for the use of deadly force.
How Much Force Can Police Use During an Arrest?
The U.S. Supreme Court has held that the right of law enforcement to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat. However, the degree of force used by law enforcement must be proportional to the threat and only escalate in response to the threat.
Excessive force refers to situations where law enforcement uses force that exceeds the amount necessary to diffuse an incident or to protect themselves or others from harm. The Constitutional right to be free from the excessive force is found in both the reasonable search and seizure requirement of the Fourth Amendment and the prohibition against cruel and unusual punishment of the Eighth Amendment.
Again, turning to the Supreme Court, the Court has set the floor by noting that lethal force can only be used during an arrest if:
Such force is necessary to prevent the escape of the suspect; or
Law enforcement has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
In California, the law notes that, when law enforcement has reasonable cause to believe a suspect has committed a crime, he/she “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.”
If the suspect flees or forcibly resists, law enforcement “may use all necessary means to effect the arrest.” Finally, it should be noted that, if a suspect is aware or should be aware that he/she is being arrested, they are required “to refrain from using force or any weapon to resist such arrest.”
Additionally, the U.S. Supreme Court has held that law enforcement, only with probable cause to believe a suspect poses a threat of serious harm to the officer or others, may use deadly force to prevent escape. However, law enforcement is instructed to warn a suspect before using deadly force.
Actions that Can Be Considered Excessive Force by Police
As mentioned above, the California Assembly is debating a bill that would raise the floor set by the U.S. Supreme Court, and permit law enforcement to use lethal force only when necessary to prevent imminent and serious bodily injury or death to law enforcement or a third party.
Accordingly, the lethal force would only be justified in the following situations, given the totality of the circumstances:
There are no reasonable alternatives available, including warnings or other non-lethal means; or
Where law enforcement has probable cause to believe that the person has committed or intends to commit, a felony involving serious bodily injury or death, and there is an imminent risk of serious bodily injury or death to the officer or to another person if the subject is not immediately apprehended.
Additionally, the bill would make a homicide committed by law enforcement justifiable only if, as stated above, the use of lethal force was necessary given the totality of the circumstances, but, importantly, would exclude those situations in which the gross negligence of law enforcement contributed to the necessity.
Can I Sue the Police for Excessive Force?
If you are the subject of the excessive use of force by law enforcement, engage the services of an experienced criminal defense attorney as soon as possible. The Los Angeles attorneys at the Manshoory Law Group, APC handle a wide variety of criminal offenses and know how to use evidence of the excessive force to convince judges and prosecutors to dismiss, drop or reduce criminal charges.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Typically, criminal trials occur in two phases – a first phase to determine guilt, and, if the determination is positive, a second phase to determine the sentence. While most people assume, due to the prevalence of trials in television dramas where the verdict ends the show, that the trial ends at this point, in reality, the trial of the now-convicted defendant moves to asentencing phase. In the sentencing phase, new and additional evidence may be presented to the court that could result in a reduced sentence.
However, there is also the possibility that the prosecution will present evidence that may have the opposite effect – increasing, or enhancing, the sentence. California has many statutes relating to sentence enhancements; its Habitual Offender Laws (also known as Three Strikes Laws) is one of the more well-known. As a result, over 80 percent of those incarcerated in California prisons are serving an extended period of time, due to at least one enhanced sentence provision.
However, the California Legislature is considering a bill to reform two of the more commonly used enhancements. A discussion of how sentence enhancements work, as well as what the bill is intended to reform, will follow below.
Sentencing Enhancements
Generally, an enhanced sentence is a sentence that is increased from one classification of offense to another, with higher classification, as a result of a prior conviction or the nature of the circumstances involved. Enhanced sentence laws are present in both federal and state laws, and, as such, vary by jurisdiction.
Looking at California, its Habitual Offender Law requires a defendant convicted of a felony, and who was previously convicted of a serious felony, to be sentenced to twice the prison term required by the newer felony. And, further, if a defendant is convicted of a serious or violent felony, with two or more prior convictions, the law mandated a prison term of at least 25 years to life, though, amendments passed in recent years allow for a sentence reduction if the third conviction was for a non-violent offense.
The intent of this law is to deter a convicted offender from committing new crimes upon release. However, and the primary reason the Legislature is considering these reform bills, there seems to be little evidence that the deterrence factor of sentence enhancing laws actually works (on the other side, proponents of sentence enhancement assert that they are necessary to allow sentences to accurately reflect one’s criminal history).
Specifically, research, including that by the National Institute of Justice, maintains that long sentences do not serve to deter people from committing further crimes, and, in fact, contribute, instead, to overcrowded prisons and cost taxpayers money.
Senate Bills 1392-1393
If enacted, the two bills, currently in the Appropriations Committee, would eliminate a one-year sentence enhancement for defendants with prior jail or prison terms, as well as allow a judge to ignore a defendant’s prior felony conviction for purposes of imposing additional sentence terms for serious felonies. According to the California Department of Corrections and Rehabilitation, these two enhancements affect 16,177 and 19,677 sentences, respectively, through Dec. 1, 2017.
It is to be noted, regarding the last aspect stated above, it is not as if the prior felony conviction will have no effect. Rather, it will be up to the judge’s discretion whether to include it when he/she is considering sentence enhancements. In this case, having an experienced criminal defense attorney on the side of a defendant is critical to convincing the judge to disregard the defendant’s prior criminal history.
Hire a Criminal Defense Attorney
If you have been charged with a crime, and have a previous criminal history, seek representation by an experienced criminal defense attorney as soon as possible. The attorneys at Manshoory Law Group have a breadth of knowledge regarding criminal law in California and will know what arguments and evidence will put you in the best possible situation. Attorneys are available 24/7 to take your calls. Contact our Los Angeles office today for an initial consultation.
So begins one of the more well-known speeches in American criminal jurisprudence. Whenever an individual is about to be interrogated, law enforcement officers must repeat this statement – known as one’s Miranda rights.
Further, after this statement has been read, the individual is given a choice – remain silent or waive his/her rights and speak. Unfortunately, criminal cases are full of stories about suspects who have been deemed to have waived these rights unknowingly or unwittingly.
To protect minors, who do not understand the gravity of such a waiver, the California Legislature enacted a law, which went into effect this year, prohibiting those under 16 from waiving these rights without consulting with legal counsel. A discussion of the Miranda Rights, generally, the need for this new law, and what to do if a minor is taken into police custody and interrogated, will follow below.
How Do Miranda Rights work?
The Miranda Rights have their modern incarnation in the U.S. Supreme Court’s decision of Miranda v. Arizona. Generally speaking, before any law enforcement agency may question an individual whom they suspect has broken a law, that agency must inform the individual of some of his/her basic rights, guaranteed by the Constitution, as well as other information that the individual should know prior to speaking to that law enforcement agency.
Specifically, the Miranda Rights include:
the right to remain silent;
the knowledge that anything the individual says or does, going forward, will be used against him/her in a court of law;
the right to have an attorney present before answering any questions; and
the right to have one appointed on his/her behalf if an individual cannot afford one.
How are Miranda Rights Different for Juveniles?
It is a common belief that those under 16 are not mature enough to fully comprehend their legal rights. Concerningly, law enforcement officers are trained to obtain admissions and confessions from individuals they believe have committed crimes. Part of this training includes offering false assurances (that the individuals will not be imprisoned if they speak), tricking individuals into confessing to crimes they did not commit, and questioning individuals for hours in an attempt to wear them down.
These strategies have been successful, resulting in many closed cases without great expenditure of time and money by law enforcement agencies. Their success is based, partially, on the fact that humans will generally wilt under the pressure of law enforcement interrogation, are looking for a way out of their failures, and/or will just become exhausted.
Unfortunately, while adults are able to freely make the decision whether to waive one’s rights of silence and legal counsel and fully comprehend the consequences of doing so, as mentioned above, minors under 16 typically do not possess this ability. Additionally, these children may more easily succumb to law enforcement tactics and may say something that, when used against them, and even if untrue, will have lifetime ramifications.
Accordingly, anew law was enacted and become effective this year that is intended to compensate for this lack of understanding by children under 16, through conditioning a valid waiver of Miranda Rights on prior consultation with legal counsel. This measure ensures the minors are fully aware of the consequences of any waiver of their Miranda Rights before negative effects attach, an act that calls for skilled legal representation by someone on their behalf.
Juvenile Legal Support with Miranda Rights
If a minor you know has been brought in for questioning by a law enforcement agency, contact the experienced criminal defense attorneys at Manshoory Law Group as soon as possible.
They will ensure that the child is treated properly, and maintains all rights afforded to him/her by the Constitution. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
An unfortunate reality of the American justice system is that not everyone convicted of a crime is actually guilty. Being accused of a crime is one of the worst things that can happen to a person, but if that false accusation turns into a conviction, the consequences are even direr and life-changing. Repercussions from losing one’s job to ostracization from society can truly catapult one into what seems like a never-ending downward spiral. Although our criminal justice system works in most cases and is held up as a standard to many other countries, not all juries get things right.
Unfortunately, in such cases, the consequences to the accused can be horrific, such as what happened to a Vallejo couple in 2015, where an abducted woman and her boyfriend were accused of staging a hoax similar to that presented in the movie, Gone Girl. While this example did have a happy ending, and no innocent people were incarcerated, this doesn’t happen in all cases, and innocent people do go to jail.
A man was recently released from prison after serving 20 years for an attempted murder and robbery conviction related to a shooting at a Compton gas station in 1996 after prosecutors were forced to admit the facts pointed to his innocence. His conviction largely rested on a witness misidentification, a known source of false accusations and wrongful convictions.
The 20 years this man lost in prison can never be recovered and highlights how an aggressive approach to challenging false accusations is essential to mitigating the potential consequences.
The best way to avoid such a situation is to do your best to ensure the proper outcome, which means immediately securing representation from experienced criminal defense attorneys. Anytime a person is a suspect in connection with or facing charges for a crime, a criminal defense attorney should be contacted to protect the accused’s rights and to limit the potential fallout.
Skilled criminal defense attorneys know and can navigate through the complex idiosyncrasies of the criminal justice system to ensure the fairest possible conclusion. An overview of what someone falsely accused of a crime should do in the immediate aftermath, and the options criminal defense counsel has to combat such claims, follows.
How to Respond to False Accusations
First and foremost, anyone accused of a crime should always assert his/her right to remain silent when arrested or questioned by police. Since the person accused is unlikely to know exactly what the accuser told police, offering information may inadvertently support the accusation. In addition, prosecutors usually have to decide whether or not to charge someone with a crime within a relatively short period of time, so the less information they have to work with, the better for the accused. The only information the accused should offer is his / her name, and a request to speak with an attorney.
Being falsely accused of a crime, unfortunately, does not alter the way the matter progresses through the criminal justice system. This is because the prosecution typically does not believe the defendant’s assertion. Consequently, one who is falsely accused should never think that, because he/she is innocent and has nothing to hide, there is no need to seek the counsel of an attorney. In fact, as a result of the false accusation, there is perhaps an even greater need for legal advocacy.
One tactic that should never occur without the presence of counsel is for the defendant to negotiate a plea agreement on his/her own. In other words, a defendant should also never agree to plead guilty to a lesser offense without the advice of counsel.
While, in some cases, agreeing to a lesser offense may be the best option, even for innocent defendants, an experienced criminal defense attorney will be in the best position to not only negotiate the best possible plea deal but to explain all the ramifications of an agreement to that plea deal to his/her client.
An attorney should be requested at the outset of any type of investigation, including arrest or questioning. In addition, the accused should make sure to restrict discussions about the case to communications with his/her attorney. Friends, relatives, and acquaintances can all be called to testify in court, but only if they have relevant information to share.
How Do You Defend Yourself Against False Accusations?
First, it is important to understand that cases involving false accusations should be not handled differently because the person is certain he/she is innocent. Competent criminal defense is just as necessary, and making plea bargains directly with prosecutors should be avoided. It may be tempting to accept a plea deal to avoid a trial and jail time, but there are still consequences to accepting responsibility for a criminal offense.
While it is true that it is difficult to prove one’s innocence against false accusations, it is not impossible. In cases, for example, where both parties are present at trial, unlike homicide, cases focus on the testimony of both parties involved. An experienced criminal trial attorney on your side will best be able to persuade the jury to believe your assertions. Specifically, your attorney should examine not only the evidence but the credibility of the witnesses, in their preparation for your defense.
Additionally, in all criminal trials, the prosecution must prove that the defendant committed the crime beyond a reasonable doubt. A skilled attorney will use all means at his/her disposal to combat this significant burden. In addition to that listed above, this would also involve a thorough discovery of all facts in an effort to dispute all the elements of the charged crime.
Another approach a criminal defense attorney can take to combat false allegations is to attack the legality of the underlying arrest. Police cannot arrest a person without probable cause, which requires police have a reasonable basis for believing a certain person committed a crime.
Being arrested for any of the following, on the other hand, would not satisfy the requirements of probable cause:
arrest based on age or race
arrest due to personal bias or dislike of a police officer
arrest due to high crime rates in the area
Hire a Lawyer to Defend Against Wrongful Accusations
Criminal accusations should not be tackled alone. And, when it comes to defending against false accusations, your best strategy is to hire an experienced criminal defense attorney who knows how to aggressively prove your innocence and protect your rights.
The Los Angeles Manshoory Law Group, APC will work to keep you involved in the legal proceedings and strive to find the best possible solution to your case. Attorneys are available 24/7. Contact us to schedule a consultation.
Watch any show on television about the criminal process, and it will quickly become apparent that the focus of any investigation and subsequent trial is the collection of evidence. In order to convict a person of a crime, the prosecution must produce evidence that demonstrates the accused committed the alleged act.
Evidence can take many forms, from a DNA test to a shoeprint to eyewitness testimony, but one thing that does not change is the State’s obligation to turn over its evidence to the defendant, so an adequate defense may be mounted. All criminal defendants have the right to know about the evidence that will be used against them, and the defense has a reciprocal obligation to provide the prosecution with its evidence as well.
This procedure is a central component of the discovery process and is a key element of the American legal system. One of the underlying purposes of this process is to ensure the criminal case is fair, and particularly, that a criminal defendant receives exculpatory evidence, i.e.evidence that proves one’s innocence. In fact, California prosecutors are bound by ethics rules that directly govern how they handle evidence.
A discussion of types of information the defense often receives during discovery, and the prosecutor’s specific duties regarding the disclosure of evidence will follow below.
What is the Criminal Discovery Process?
Generally, the discovery process is the gathering of information that a party will use to present their case at trial. There are two phases to this process – an informal and a formal phase, each of which occurs at different times during a criminal investigation and prosecution. Informal discovery occurs before charges are filed, and consists of the defense independently collecting information from the following sources:
witness interviews;
documents from government agencies, police, doctor, or other relevant entities; and
photos from the crime scene.
Once charges are filed and criminal prosecution initiated, the formal discovery process is triggered and entitles the defense to disclosures from the prosecution.
Examples of the types of information the defense receives include:
witness names, reports, and statements;
physical evidence, i.e., not what a witness or other person said, such as lab reports, audio/video recordings, and crime scene photos;
exculpatory evidence or information favorable to the defense;
felony convictions for potential witnesses that could be used to impeach (discredit) them at trial; and
relevant recorded or written statements.
California follows an open-file discovery model that obligates the State to give criminal defendants access to the prosecutor’s entire file, as well as a continuing duty to disclose new relevant evidence as it is discovered.
These rules are designed to make the process fair, but in practice, prosecutors are not always forthcoming, and a dedicated criminal defense attorney is essential in these situations to force the State to comply with the rules.
What Evidence Does the Prosecutor Have to Share With the Defense?
The failure to always turnover relevant evidence is illustrated in the special ethics rules issued to govern how prosecutors must conduct criminal cases, particularly when a prosecutor must provide evidence to the defense.
The rules specifically state prosecutors must:
timely disclose evidence the prosecutor knew or should have known would negate the defendant’s guilt, mitigate the sentence, or mitigate the offense;
promptly disclose new, credible, and material evidence that indicates the defendant did not commit the offense of which he/she was convicted to the court; additionally, the evidence must be provided to the defendant and an investigation initiated into the possibility of a wrongful conviction; and
seek to remedy a conviction the prosecutor has clear and convincing evidence a convicted defendant did not commit.
How Does the Discovery Process Help the Criminal Justice System?
Putting together a strong defense hinges on conducting discovery in an effective manner, and only experience will create this level of knowledge. Los Angeles’ Manshoory Law Group, APC knows how to assess and build a strong case that fights to fully protects your rights. Attorneys are available 24/7 to take your call. Contact us for a consultation.
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