False Police Report

[bray6]

What is the name of your state? CA

Last August, my wife's ex-husband tried to fight me at a football game. He threw a 30 oz. soda with a lid on it and it struck my 18 month old daughter on the face. He then continued to attack my family. I defended my family physically and an off duty Deputy who is the suspects brother swung several times at the back of my head. My stepson, 19 yrs old, tried to stop the Deputy, who is his uncle, and the Deputy grabbed my stepson by the throat, trying to choke him. My daughter was taken to the ER via ambulance where she was treated for a contusion and concusion.

The local police arrived and the off duty Deputy tried to have me and my stepson arrested for assault, while he made no mention of arresting his own brother for assualting my daughter. The local police arrested my wife's ex and told the Deputy that if he arrested us, they would arrest him because he did infact assualt me and my stepson.

The following day, the Deputy filed an official police report with his department concerning the incident. The report he filed was not factual. He stated that we did not attempt to diffuse the situation when the local witnesses stated that my wife, my stepson and I all tried to get the suspect to go away. He also stated that my stepson tried to strike him for no reason. He stated that we made no attempt to walk away or call for help. Our cell phone records show that both my wife and I called 911 for assistance.

The incident occured because we left my 13 yr old stepson home from a football game because he wasn't behaving. The Deputy's report states that we inflicted unnecessary emotional abuse and mental torment on my stepson. While he states that his brother, the suspect "allegedly and inadvertently" assaulted our daughter. The Deputy stated that we are currently under investigation by Child Protective Services. We contacted CPS and they stated that there is NO investigation pending. He stated that there have been reports of child abuse and neglect. The Deputy stated that I kicked the cup from the suspects hand and that's how our daughter was injured.

The report states that NO victim statements, NO witness statements, NO evidence and NO additional information was obtained.

My question: Should we file a false police report against the Deputy and his department since he states that he was acting in an "official law enforcement capacity"? Also, should we hire an attorney and file a law suit against the Deputy and the department?

[moburkes]

The department didn't do anything to do. The ex did not represent the department when he assaulted your daughter. You can simply make a response to the police report.

[seniorjudge]

Originally Posted by bray6

...

My question: Should we file a false police report against the Deputy and his department since he states that he was acting in an "official law enforcement capacity"? Also, should we hire an attorney and file a law suit against the Deputy and the department?

....

Since your post did not indicate any damages, you have no case.

[bray6]

Thank you for the reply. To add to the story, my wife and I are Correctional Officers with the same department as the Deputy. The Deputy initiated an Interal Affairs investigation which he accused my wife and I of several different violations. We went through the investigation with documention to prove the Deputy wrong. My case was "not sustained" while my wife's was "unfounded." The Deputy states that he was acting in a law enforcement capacity, but never called for medical help, never informed the local police of his relationship to the suspect or my stepson, tried to assualt me and did assualt my stepson.

I would think that there is some recourse against a Deputy that acts in this manner as a representative of his department.

[Bretagne]

Your recourse would be through your own IA department, and by filing a complaint against the off-duty deputy through his department head.

You would have a 1983 claim against the deputy, even though you have no damages, except it would be your burden to prove that the police department had a custom or practice of violating the civil rights of others. That means that the deputy, although claiming to be acting under the authority of his position, must have also been following department policies or procedures, and that those policies or procedures must have been intended to violate the civil rights of civilians.

Also, you definately have grounds to pursue criminal charges against the deputy on your own behalf as well as on your daughter's behalf. Just be prepared, because with these familial fights often everyone involved will get charged under the theory that it will sort itself out at trial or through plea bargain. However, if he's found guilty you will be entitled to restitution for your daughter's medical bills and time you take off to attend court hearings.

Also, if this went down last August, why have you waited so long to try to take action? Since 9 months has passed, the prosecuting authority will doubt your motives if you file a complaint and ask that he be charged now.

[CdwJava]

Originally Posted by bray6

The following day, the Deputy filed an official police report with his department concerning the incident.

His "official report" (whatever that is) has no bearing on the matter. His agency did not apparently have jurisdiction at the football game since it was the local police that arrived to handle it. What he MIGHT have written was a supplemental report to be attached to the police department's report.

The report he filed was not factual. He stated that we did not attempt to diffuse the situation when the local witnesses stated that my wife, my stepson and I all tried to get the suspect to go away. He also stated that my stepson tried to strike him for no reason. He stated that we made no attempt to walk away or call for help. Our cell phone records show that both my wife and I called 911 for assistance.

His mis-perceptions are a far cry from making a false report. Because he was wrong does not prove anything else. A false report in CA would require that the state prove the deputy KNOWINGLY and intentionally made a false report to the police.

The Deputy stated that we are currently under investigation by Child Protective Services. We contacted CPS and they stated that there is NO investigation pending. He stated that there have been reports of child abuse and neglect.

Interesting ... in every other county in the state they aren't likely to give you that information. In any event, the deputy's mistake of fact is not a false report.

The report states that NO victim statements, NO witness statements, NO evidence and NO additional information was obtained.

Since the deputy was not the investigating officer nor part of that agency, that makes sense.

My question: Should we file a false police report against the Deputy and his department since he states that he was acting in an "official law enforcement capacity"? Also, should we hire an attorney and file a law suit against the Deputy and the department?

First, YOU can't file a criminal charge of making a false report against anyone - that is up to the DA. You can ask that the local police look at the incident and consider forwarding it to the DA, or you can contact the DA and ask that he or she review the matter. Ultimately, however, based solely on what you wrote it is unlikely that the elements of the crime can be proven beyond a reasonable doubt.

Second, you can't ask for a criminal charge against the agency as that is not an individual, and the agency was not involved. Had someone at the agency ordered him to make a false report, there might be a number of criminal charges for the individuals involved, and perhaps a civil suit against the lying parties as well as the agency - aka your employer.

Third, no one can advise you of what you should do. Personally, I don't see a case. But, there may be facts that we are not privy to that might be more persuasive than what you wrote here. So, you and your wife might consider consulting an attorney to see if you have a cause of action. Consider this, though - if the attorney asks for money up front, your case is likely a dog, has little money in the end, or will be a bear to prove. if they agree to take it on a contingency basis, then they are confident of a good payout.

- Carl

[bray6]

Thank you for your replies. I appreciate the advice. The Deputy did in fact write the report, I have a copy. He accused me of attempted assault on a peace officer and he attempted to have me arrested. The local agency stated that he would be arrested also, so he backed off. He generated an incident report and attempted to forward it to the DA’s office in an attempt to file charges against me and my stepson for assault on a peace officer. He attempted to assault me and he did assault my stepson and he omitted that from the report. Being that he did not state that he attempted to strike me and that he did assault my stepson is an omission which is a false statement. I am aware that we cannot file charges against someone, we are contemplating contacting the agency to file a criminal report to be forwarded to the DA. A patrol Sergeant was called to the incident from our department and I informed him of the Deputy trying to assault me and assaulting my stepson and the Sergeant did not ask anyone if that was true. The supervisor’s incident does not mention anything about it. The Sergeant did not even interview my stepson.

Reply to one of the posts about timing. We are taking action now because our IA ordered us not to talk about this situation with anyone and they just finished their investigation.

[CdwJava]

Originally Posted by bray6

The Deputy did in fact write the report, I have a copy.

Unless he wrote it as a supplemental report to be attached to the report generated by the investigating agency, he has little standing to pursue the matter with the DA. Unless he had the approval of his supervisors I can't imagine it was even forwarded to the DA for evaluation for charges.

He generated an incident report and attempted to forward it to the DA’s office in an attempt to file charges against me and my stepson for assault on a peace officer.

You say he "attempted" to forward it. Apparently he was unable to get it approved or forwarded. Since it was not the area of his primary jurisdiction, he has a close personal involvement with the participants, and another agency was handling the matter, I doubt the DA would even accept it. His agency should certainly not have approved the report for transmission to the DA.

Being that he did not state that he attempted to strike me and that he did assault my stepson is an omission which is a false statement.

An omission is not generally a false statement. I have been at this for a very long time and I have yet to see this kind of a case successfully prosecuted. I would be stunned and shocked if the DA even filed ... I'd be downright stricken if it made it past a preliminary hearing!

The supervisor’s incident does not mention anything about it. The Sergeant did not even interview my stepson.

It's not his case. The investigating officer is responsible for handling the incident. And, this is an incident that would appear to be a misdemeanor battery (PC 242) case. Thus, the police are not likely to be involved very much when it goes to court as it will be the involved parties and their respective witnesses who will be called to testify as to the events of that night ... provided the DA even files on the matter. In my county, they regularly do not go very far with mutual battery claims. Plus, given the many months that have passed, it is even more unlikely that the DA will consider charges now. He will want to know WHAT suddenly changed your mind to pursue the issue so vehemently.

Reply to one of the posts about timing. We are taking action now because our IA ordered us not to talk about this situation with anyone and they just finished their investigation.

Your IA people might need to go back to IA school. The IA can be delayed while a criminal matter is investigated ... a criminal matter cannot be delayed - i.e. the statue of limitations suspended - because the IA is going on. Fortunately, this would appear to be a misdemeanor with a one year SOL, so you still have some time.

Additionally, the police already HAD the information. If they felt there was a case, I suspect it would have gone over to the DA long ago.

- Carl

[bray6]

Your right, our IA people need to go back to school. They have dropped the ball a couple of times. Either way the Deputy has dug himself into a mess. Since the incident he has gotten into one bar fight and another physical altercation with his brother-in-law. We have also turned over evidence that he has been signing off fix it tickets for profit, threatened me and my wife, threatened others with physcial violence and he has had his weapons removed from his home when he threatened his father-in-law. The problem is our IA states that we cannot know of any outcomes, so we are left in the dark. Thanks for the info.

[bray6]

One other question. My wife's ex has a prelim soon, what happens if the defense tries to introduce the Deputy's (his brother) report? Either during the prelim or the trial.

[CdwJava]

Originally Posted by bray6

Your right, our IA people need to go back to school. They have dropped the ball a couple of times. Either way the Deputy has dug himself into a mess. Since the incident he has gotten into one bar fight and another physical altercation with his brother-in-law.

Sounds like he is on a trip to the unemployment line. I'd consider a "fitness for duty" evaluation to include a psych evaluation if it could be justified. Lucky for him I'm not his boss.

We have also turned over evidence that he has been signing off fix it tickets for profit,

Potentially criminal ... IF it can be proven. Without admissions or proof of money transfers, that would be tough.

threatened me and my wife, threatened others with physcial violence

No charges filed, I suppose? Any proof of the allegations, or is it still in the finger-pointing and cross accusation phase?

and he has had his weapons removed from his home when he threatened his father-in-law.

Huh? Why? Has he been subject to a restraining order? If so, then his ability work as a peace officer should be reconsidered as he may well NOT be permitted to carry a firearm!

The problem is our IA states that we cannot know of any outcomes, so we are left in the dark. Thanks for the info.

That is correct. You are only permitted to know the general results - Sustained, Not Sustained, Unfounded, or Exonerated (or whatever the categories are in your neck of the woods). The specific punishment or discipline is protected info.

- Carl

[bray6]

IA states that they cannot even give us the outcomes, non sustained, etc....go figure. What do you think if the defense tries to enter the Deputy's report or has the Deputy testify about his report?

[CdwJava]

Originally Posted by bray6

One other question. My wife's ex has a prelim soon, what happens if the defense tries to introduce the Deputy's (his brother) report? Either during the prelim or the trial.

Let them try. The state will object as the report is NOT evidence. The defense will likely call his brother as a defense witness so that version of events will certainly get into testimony.

However, here is a good place to jam him up if he is foolhardy to say something that is a glaring contradiction to what is in his report. His "report" can be used to impeach him on the stand by the state ... "Deputy, you just told this court that ABC happened, but, in this report you wrote dated [date] you stated that XYZ happened ... so, which is it?" This sort of thing can also give fodder to the IA people if they are so inclined and there is still an active investigation or they can find some new offense to initiate a new investigation (the old one is likely done with).

Note that being in error, or forgetting something is NOT an intentional act, so I would be careful about castigating him for something he says that was slightly off or not quite in synch with the report. If he is smart, he'll keep his mouth almost shut and answer as few questions as possible when/if called for the defense.

- Carl

[CdwJava]

Originally Posted by bray6

IA states that they cannot even give us the outcomes, non sustained, etc....go figure.

That doesn't sound right.

I would suggest you take a look at your agency policy and see what rights a member of the public has pursuant to a personnel complaint. If ANYONE has a right to the findings of their complaint, then you do as well ... provided you are the complainant.

- Carl

[bray6]

We received a phone call from Admin assuring us that it was being delt with. That's all I need to know. Thanks again for your input.