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How to go about pressing 5th Amendment violation?

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Thatsnotfunny

Junior Member
What is the name of your state (only U.S. law)? California

I'm going to be a bit more detailed since a lack of it is a problem with many questions. I was arrested at my work in front of co-workers and customers. The detective said rather loudly that it was for armed robbery, murder, and attempted murder. Apparently a liquor store robbery went wrong and somebody was killed and another put in a coma. I immediately invoke my right to silence and counsel. They take me to the station and put me in an interrogation room for about an hour. No lawyer. The arresting detective and another came in and said they had questions. I repeated my right to silence and counsel. The detectives said they knew a neighbor and I did it so I should confess. What they didn't know was that I was in Vegas playing in a poker tournament at the time of the robbery as well as the day before and after. Then they started using every interrogation cliche in the book. The only thing I did was periodically repeat my right to silence and counsel and tried not to laugh.

"Lawyers just complicate things and keep justice from being served"

"Only guilty people and cowards hide behind those rights. Which are you?"

"If you confess and tell us where your buddy is, we'll tell the prosecutor you cooperated"

"You're only making things worse for yourself. We can't protect you if you don't help us"

"The jury will think you are guilty when the prosecutor points out you didn't testify. Only guilty people have things to hide"

I felt compelled to speak at this point and be a dick. I said I knew my rights. I also opined that I hope our fine district attorneys didn't regularly commit Griffin error and risk reversals. I also said the detectives not only ignored my demand for counsel at interrogation, but failed to even "scrupulously honor" my right to silence under Mosley. [I have been fascinated with law since I was young and spent many hours in the county law library. It didn't make me the most popular kid around. I still hope to be a lawyer if I don't get thrown in jail, tased, or shot first.] Anyway, one detective called me a prick and they both left the room. A different detective came back over an hour later and said I was free to go, they would be watching me, and called me an *******.

Unfortunately I was fired. My employer cited the arrest and accusation. I don't want to let this go. I don't think internal affairs will really give a ****. This may also hurt my chances at getting into law school.

What kind of remedy can I get?

Should I get a lawyer that deals in both criminal and civil, or a different lawyer for each problem?

I don't have much money, would a contingency be an option?

Also, would this be a 1983 suit or something else?

How ugly can a case like this get and how long do they usually take, assuming we go to trial?

Thanks to anyone who answers.
 
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OHRoadwarrior

Senior Member
Your remedy is to file for UI. It sound like you are the one who escalated the situation at work trying to show your superiority and be obstructive to their investigation, I won't buy you were a perfect gentlemen until you sat on the hot seat for a while. So you jerked them around, they jerked you around. You lost your job, because you wanted to prove you were smarter than them.
 

CdwJava

Senior Member
They arrested you and then released you (presumably pursuant to PC 849(b)). Assuming you truly were in custody at the time of the interview or interrogation, they should have ceased the interview when you invoked your right to remain silent and asked for legal counsel. If they continued interrogation after a proper invocation of your rights, the agency and the officer(s) could be liable for civil damages ((Butts (9th Cir. 1999) 195 F.3d 1039; see also Henry (9th Cir. 1999) 197 F.3d 1021). If you wish to determine if you have a case, you would need to engage an attorney with knowledge in this area who could look into the matter. However, without substantial harm as a result of the continued interrogation, it may be difficult to pursue this matter as an award could be minimal if given at all.
 

Thatsnotfunny

Junior Member
Your remedy is to file for UI. It sound like you are the one who escalated the situation at work trying to show your superiority and be obstructive to their investigation, I won't buy you were a perfect gentlemen until you sat on the hot seat for a while. So you jerked them around, they jerked you around. You lost your job, because you wanted to prove you were smarter than them.
Would you be so kind to point out what led you to find I "escalated the situation at work"? I have read my post several times and see nothing to suggest that. If anyone escalated, it was the detective perp walking me. Also, invoking constitutional rights afforded to anyone undergoing a custodial interrogation is not obstructing an investigation. If you honestly think that, I beg you to reconsider your position. I wanted a lawyer since I have seen too many cases of innocent people going to the station on their own to "clear things up" and going to prison for their efforts. I wanted to ask an attorney the proper way to show them I was in Vegas and couldn't possibly be in two places 400 miles apart at the same time so to dismiss suspicions. If the detective had merely asked me at work my whereabouts on that night, I would have told him. But he went Hollywood cop from the get-go and continuously defecated on the Constitution. I decided to invoke my rights as so many fail to do.

If you have any constructive comments to add, I genuinely welcome them.
 

CdwJava

Senior Member
Of course, if you had informed them of your whereabouts during the time of the offense and had been able to demonstrate that, you may well have prevented much of your inconvenience.
 

PaulMass

Member
This is an interesting question.

Generally, the recourse for a 5th amendment violation is suppression of any confession. In this case, there is nothing to suppress.

Were your fifth amendment rights actually violated? I don't know.

Does the violation occur when the police ask the question, or does the violation occur when the suspect answers the question? If the former, then your rights were violated. If the later, then your rights were not violated.

Next up is the issue of damages. There's some SCOTUS case that says any civil rights violation constitutes damages, but in the real world, you need to show that you were actually harmed by the violation.

I don't see any relationship between the continued questioning and your loss of employment. Announcing in a loud voice the reason for your arrest is not a violation of your rights, unless the arrest itself was unlawful.

You were clearly harmed by your loss of liberty during your detention. The big question is was this detention extended because your rights were violated? If they didn't continue asking questions and allowed you a lawyer, would your detention have been shorter?

As to applying to law school, this matter likely exists nowhere outside the police department incident report. From what you wrote, you were never charged, only questioned.

The most dramatic outcome I can see from this would be a successful 1983 claim where you are awarded some nominal damages due to your deminimus loss of liberty and your lawyer gets paid reasonable attorney fees (under 1988? - don't have that handy).

If "they" pass a law that infringes your right to free speech, and you continue to exercise your free speech with impunity, does that law actually infringe?

If "they" tell you to answer questions, and you refuse, were your rights violated?
 
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Thatsnotfunny

Junior Member
Of course, if you had informed them of your whereabouts during the time of the offense and had been able to demonstrate that, you may well have prevented much of your inconvenience.
I knew, and the detectives undoubtedly knew, the second they began the interrogation after I invoked they were breaking the law. I would not reward their atrocious behavior for personal convenience. If they did it to me so casually, they may have done this before to others. Furthermore, I can think of no reason why exercising constitutional rights, especially in the face of objectively unconstitutional and repugnant state action, should be seen as a negative.
 

Thatsnotfunny

Junior Member
I don't see any relationship between the continued questioning and your loss of employment. Announcing in a loud voice the reason for your arrest is not a violation of your rights, unless the arrest itself was unlawful.
There may civil damages against the police if there was gross negligence in deciding to make the arrest. The officer makes a judgment call when arresting anyone. They are generally immune for simple negligence. I would need to find out how they determined they had probable cause to arrest me. Weak investigation and not corroborating evidence is probably the key. A big hurdle to be sure.

You were clearly harmed by your loss of liberty during your detention. The big question is was this detention extended because your rights were violated? If they didn't continue asking questions and allowed you a lawyer, would your detention have been shorter?
Yes, my detention was extended because my rights were violated. I wanted to remain silent and asked for a lawyer multiple times. Each time they essentially said "No, go f yourself and your rights." They should have not questioned me at all and brought in a lawyer. It could have been done much quicker.

If "they" pass a law that infringes your right to free speech, and you continue to exercise your free speech with impunity, does that law actually infringe?

If "they" tell you to answer questions, and you refuse, were your rights violated?
As to the former, if there is attempted enforcement despite exemption from punishment, there is an infringement. I would posit "an act of the legislature, repugnant to the constitution, is void." Marbury v. Madison (1803) 5 U.S. 137, 177. But that would only kick in once the law is challenged since all legislative acts are presumed constitutional. Also, there would be an infringement if the law had a cooling effect on speech. It may not for you or me, but others may not exercise their right out of fear of punishment. As to the latter, it depends on when "they" told you to answer questions. If you are interrogated during a custodial arrests and have not invoked, there is no violation. But SCOTUS has said all questioning must stop once the right to silence is invoked. I am not entirely sure, but a demand to answer thereafter is probably a violation if the question seeks an incriminating response.

I would like to thank Mr. Witkin and CJS for existing for me to read and know some of this stuff.
 

CdwJava

Senior Member
This is an interesting question.

Generally, the recourse for a 5th amendment violation is suppression of any confession. In this case, there is nothing to suppress.

Were your fifth amendment rights actually violated? I don't know.

Does the violation occur when the police ask the question, or does the violation occur when the suspect answers the question? If the former, then your rights were violated. If the later, then your rights were not violated.
Pursuant to the 9th Circuit (controlling for CA), the violation occurs if the officer continue questioning after a lawful invocation of one's rights.

Next up is the issue of damages. There's some SCOTUS case that says any civil rights violation constitutes damages, but in the real world, you need to show that you were actually harmed by the violation.
Yep! And there's the rub. As he was ultimately released without charges or a lengthy detention it would seem the harm done is minimal.

I don't see any relationship between the continued questioning and your loss of employment. Announcing in a loud voice the reason for your arrest is not a violation of your rights, unless the arrest itself was unlawful.
Ditto.

As to applying to law school, this matter likely exists nowhere outside the police department incident report. From what you wrote, you were never charged, only questioned.
Yep. And absent a background that includes contact with the agency concerning any and all law enforcement contacts, it is in no statewide database and likely exists nowhere outside of the particular case file and agency master name database.

The most dramatic outcome I can see from this would be a successful 1983 claim where you are awarded some nominal damages due to your deminimus loss of liberty and your lawyer gets paid reasonable attorney fees (under 1988? - don't have that handy).
That might mean his attorney gets paid, but he may not get even coffee money.
 

CdwJava

Senior Member
I knew, and the detectives undoubtedly knew, the second they began the interrogation after I invoked they were breaking the law. I would not reward their atrocious behavior for personal convenience. If they did it to me so casually, they may have done this before to others. Furthermore, I can think of no reason why exercising constitutional rights, especially in the face of objectively unconstitutional and repugnant state action, should be seen as a negative.
All because one CAN does mean that one SHOULD. You had every right to refuse to answer. But, if the inconvenience would have been minimal to nonexistent had you explained where you were, it would seem to have been more comfortable and prudent to have simply informed them of this little fact. It saves everyone a lot of trouble.
 

CdwJava

Senior Member
There may civil damages against the police if there was gross negligence in deciding to make the arrest. The officer makes a judgment call when arresting anyone. They are generally immune for simple negligence. I would need to find out how they determined they had probable cause to arrest me. Weak investigation and not corroborating evidence is probably the key. A big hurdle to be sure.
As mentioned, while it is unlawful in CA, the fact that there is no practical harm will limit your ability to successfully sue. Absent the likelihood of a significant award, an attorney would likely seek a large retainer before even beginning.

Yes, my detention was extended because my rights were violated. I wanted to remain silent and asked for a lawyer multiple times. Each time they essentially said "No, go f yourself and your rights." They should have not questioned me at all and brought in a lawyer. It could have been done much quicker.
They would not bring you an attorney. If they had continued to believe you were the right guy, they would have simply booked you and let YOU get an attorney. Apparently they did not feel too comfortable with their probable cause.
 

TigerD

Senior Member
While CDW's information is largely correct, the OP must disclose the arrest on his character and fitness application required before acceptance to the Bar. It will cause the Bar examiners of whichever state to which he eventually applies to take a closer look at his information and potential fitness. Most law schools will require disclosure as well.

TD
 

RRevak

Senior Member
All because one CAN does mean that one SHOULD. You had every right to refuse to answer. But, if the inconvenience would have been minimal to nonexistent had you explained where you were, it would seem to have been more comfortable and prudent to have simply informed them of this little fact. It saves everyone a lot of trouble.
I am utterly speechless at the bolded. Why in the WORLD would anyone NOT want to invoke the rights given to them by our laws and constitution so as to make the job of someone who is NOT out for their favor easier? Cops are NOT our friends. Detectives are NOT our friends. Interrogations are NOT going to be "oh well you were in Vegas so have a nice day". If you truly believe OP should have just waived any rights in order for THEM to do THEIR jobs then you are part of what is sorely wrong with our judicial system. I apologize if that offends but the bolded coming from a law enforcement officer scares the heck outta me.
 

Zigner

Senior Member, Non-Attorney
I am utterly speechless at the bolded. Why in the WORLD would anyone NOT want to invoke the rights given to them by our laws and constitution so as to make the job of someone who is NOT out for their favor easier? Cops are NOT our friends. Detectives are NOT our friends. Interrogations are NOT going to be "oh well you were in Vegas so have a nice day". If you truly believe OP should have just waived any rights in order for THEM to do THEIR jobs then you are part of what is sorely wrong with our judicial system. I apologize if that offends but the bolded coming from a law enforcement officer scares the heck outta me.
SMH

Cop: I think you killed that guy last night.
Suspect: No - I was in Vegas and have hundreds of people who can verify that.
Cop: I don't believe you.
Suspect: Then I'd like to speak to an attorney.
 

LeeHarveyBlotto

Senior Member
I am utterly speechless at the bolded. Why in the WORLD would anyone NOT want to invoke the rights given to them by our laws and constitution so as to make the job of someone who is NOT out for their favor easier? Cops are NOT our friends. Detectives are NOT our friends. Interrogations are NOT going to be "oh well you were in Vegas so have a nice day". .
While not our friends, nor are they the enemy. There is no way on Earth that the OP telling the police that he was in Vegas and can prove it can harm the OP, unless of course it isn't true.

Choosing to speak is not a failure to assert one's rights. Inherent in the right to remain silent is the right not to.

Your goal appears to be in and of itself not to cooperate with the police. Mine would be to get out of the police station no longer a suspect by the quickest means possible.
 
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