IILLEGAL ARREST for TRESSPASSING

Done with the post thank you.

A.) Did the off duty police officer have authority to arrest me for the trespassing charge so as to afford him qualified immunity, or some other immunity from civil suit under 42 U.S.C. 1983 simply because I turned to be located in a car on what turned out to be private land?

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if he believed you were in violation of the statute, sure. It is what his justification is that you have broken the law that makes the difference.

B.) Was the officer required to determine whether or not I had knowledge that the land I was located on was not open to the general public as depicted within the penal code 602 , before he attempted to effectuate a forceful arrest?

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no. If he has justification for believing you did know or should have known, he can act on that. Of course, he will, or would, have to be able to support that claim.

callmeconfused said:

I have subsequently filed claims against the county board of directors for failure to train, and a civil suit against the officer an the county. etc. For false arrest, fabrication of false charges, and malicious prosecution & excessive force.

The Officer's attorney have answered saying the officer had every right to effectuate an arrest using reasonable force because I resisted arrest and that the officer had every right to effectuate the arrest because I was objectively guilty of the trespassing charge of P.C. 602 and they allege that I was negligent because I was breaking the law and therefore I am responsible for my injuries received.

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Your claim seems to hinge on whether he identified himself as an officer first. If he did not, you were under no legal obligation to comply with an order to exit.

Did he admit or deny after the fact which in fact he did?

A.) Did the off duty police officer have authority to arrest me for the trespassing charge so as to afford him qualified immunity, or some other immunity from civil suit under 42 U.S.C. 1983 simply because I turned to be located in a car on what turned out to be private land?

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Any act under color of law, or purported to be, is afforded qualified immunity, if they did NOT violate "clearly established law". This applies to a 1983 action or any comparable state civil rights complaint.

He claims he knew the owner. Although this may strengthen his probable cause to believe you were trespassing and had no permission to be there, it is not a cure by any means.

B.) Was the officer required to determine whether or not I had knowledge that the land I was located on was not open to the general public as depicted within the penal code 602 , before he attempted to effectuate a forceful arrest? Whereas, P.C. 602 forbids driving a vehicle on land "known to not be open to the general public".

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An arrest only requires probable cause. It is generally accepted by the courts an investigation of specific facts is not necessary to charge, even if such facts would come to light if done that would then clear a person.

However, if you intend to pursue a 1983 action or comparable Tort, consult an attorney.

I disagree that the officer had a proper position to act as he did. If what you said is true, the off duty officer used excessive force to make the arrest after he informed him to leave the premises. It sounds like the off duty cop made this guy aware of the fact that he was on private property. Therefore, when the suspect drove onto the the apparent unincorporated land, it was not known to him at the time that he was not allowed to be there. The off duty cop then told the guy to drive off the property while on the property. Once the driver became aware of this fact, and began to comply, the cop became berserk and proceeded to take out all of his aggressions on this guy and then attempted to accost the driver while he was driving on private land that he then could be said to have known was private. The man apparently never informed the individual that he was a cop, so when the driver attempted to flee away from the assaulting man, (or possible car-jacker) he was not unreasonably attempting to resist and flee. Something doesn't sound right here.
You're telling me that every time someone driving in a residential area pulls into a driveway of a house in order to simply make a U-turn, they can be ordered out of their car at gun point when the home belongs to an off duty policeman and he sees the vehicle pull into his drive way, then beaten when the car refuses to stop when an irrate plain cloths individual begins telling them to get out their car trying to open the door, then charged with a trespass and resisting arrest? comeon now. (And the driver in the above theoretical situation clearly would have known that the driveway he was using to make the U-turn was not his own. Even in light of this, I don't think it would be reasonable. In this case, the driver cannot be said to have known the land his vehicle was on was off limits. Especially when there were no signs posted.) It sounds like the cop attempted to pull the man from a moving vehicle. I believe the government should be liable for failure to provide proper training on how to safely conduct traffic stop situations. I also would allege reckless endangerment and have a criminal charge brought against the off duty policeman if he told you to drive, then suddenly attempted to remove you from a moving vehicle. You should make this suggestion sometime during the civil litigation, even if the DA never picks it up, it still highlights the unreasonableness of his actions. Did it happen this way? Is this described in the police report?

cunundrum69;2707402]I disagree that the officer had a proper position to act as he did.

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who said he did? If addressing my answer, take note that my answer was very specific to a very specific question asked. It does not address the possibility of failing to comply with a lawful command of an officer which resulted in the resisting arrest charge (which even I recognize was not likely a legitimate claim given what has been presented). I addressed the simple question of the cop being able to arrest for the trespass, which, as long as the officer believed he had justifiable support, would be yes.


as to the rest of your post;

read between the lines a bit. While not impossible, it makes little sense. Why would the guy demand the OP leave and then after quiet agreement, make a full 180 and demand the guy exit the car and beat him up. It really doesn't make any sense at all.

as with all situations presented here, we are getting one side of the story.

If the OP's story is 100% accurate, it would appear the officer likely acted improperly. Obviously this would have to be hashed out with those with full access to all of the pertinent facts.

callmeconfused said:

I was parked in in my vehicle located in a field. There were no fences, and there was not any "no trespassing" signs posted anywhere. I was merely enjoying the view of the town of Sacramento from the EL Dorado county foothills. I was not giving any indication of illegality or dangerous behavior. I thought I was located on unincorporated public lands. No homes were in view of the property.

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Uh ... sure ... You really think the local government owned a lot of vacant land that people could just wander onto at will? Really?

I was arrested for P.C. 602 trespassing on private property, and resisting arrest. Both misdemeanors.

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Sounds like you need an attorney.

I beat the criminal case because of a speedy trial violation.

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Lucky you.

I have subsequently filed claims against the county board of directors for failure to train, and a civil suit against the officer an the county. etc. For false arrest, fabrication of false charges, and malicious prosecution & excessive force.

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How is that going? My guess is that it's not zipping along.

Do you have an attorney doing this on contingency? or are you doing this on your own? If no attorney is doing it on contingency then it is a pretty good sign that your case is a dog.

They might settle out of court to save themselves the legal fees ... or, they might decide that your suit is without merit and fight it.

The Officer's attorney have answered saying the officer had every right to effectuate an arrest using reasonable force because I resisted arrest and that the officer had every right to effectuate the arrest because I was objectively guilty of the trespassing charge of P.C. 602 and they allege that I was negligent because I was breaking the law and therefore I am responsible for my injuries received.

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Sounds reasonable. Provided the force is seen as "reasonable" then he should be in the clear.

It also should be pointed out, that the officer was off duty.

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But acting in his official capacity when he tried to detain or arrest you.

A.) Did the off duty police officer have authority to arrest me for the trespassing charge so as to afford him qualified immunity, or some other immunity from civil suit under 42 U.S.C. 1983 simply because I turned out to be located in a car on what turned out to be private land?

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Yes, he had the authority to arrest you if he had probable cause to believe you were committing a public offense in his presence. In fact, ANYONE would have the same legal authority under CA law.

B.) Was the officer required to determine whether or not I had knowledge that the land I was located on was not open to the general public as depicted within the penal code 602 , before he attempted to effectuate a forceful arrest? Whereas, P.C. 602 forbids driving a vehicle on land "known to not be open to the general public".

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Chances are he already knew the land was private property.

Probable cause is a lesser burden of proof that that which would be needed to convict at trial. He does not need to evaluate all the details only articulate the probable cause necessary for the arrest.

Yes. The cop says that he told me to leave the property and that I was complying when he thought that I should be investigated by the police as to why I was there, that dumpers come onto the land. But my car was clean, and no trash was around? He never asked me my purpose of being there. then he said I refused to stop. He then described how he placed me under arrest and that I refused to stop and resisted and attempted to drive away after refusing to comply with his orders to stop driving.

Unless the off duty police man is psychic, it would be unreasonable to presume that this guy automatically can be said to have "known" that the land was not open to the general public. There were no signs posted, and no home located anywhere near. The officer clearly was not acting reasonably. He cannot be said to have "known" what the driver of the parked vehicle knew regarding the lawfulness of his actions. The officer clearly failed to employ proper investigative procedures in order to determine whether the specific crime you were charged with was occurring.
Callmeconfused, probable cause must be reasonable, and the officer must be able to point to reasonable justifications. The principle function of proper investigative procedures is to resolve ambiguous situations and establish whether particular activity is in fact legal or illegal, and to "enable the police to quickly determine whether they should allow the individual to go about his business or hold him to answer charges". People v. Manis, 268 Cal. App. 2d 653, 665 (1969). This cop apparently did nothing to establish what was really occurring, who you were, why you were there? Or the most important factor concerning your particular criminal charge being whether or not you actually "knew" that you were committing a crime and being somewhere that you were not supposed to be. This cop clearly was acting as an unreasonable rogue, and wanted to take his aggressions out before he even attempted to determine what really was happening. I don't think citizens should have to tolerate gun toting off duty police men like this who think they can tell somebody to drive, then almost kill him when he complies, and say he was attempting to flee and resisting his order. His actions placed not only your life in danger, but also his own. A criminal or civil jury could clearly find in your favor. Good luck.

CdwJava when police are off duty they can enforce misdemeanors and felonies? Does dept policy dictate the rules on this or state law?

For the above question, I couldn't imagine how it would be department policy? I would assume that it is state law. The question of whether there was a violation however, is definitely a question of federal constitutional law with respect to the false arrest and malicious prosecution claims & excessive force. I must say that I agree with cunundrum after carefully considering what is being said occurred under the circumstances. I don't think the officer here can be said to have been acting in good faith without having properly investigated the matter. Also it does seem a little scary how someone can simply make a U-turn in someone's drive way and be ordered out of their car by an enraged off duty cop who happened to see the vehicle enter onto the private driveway to make a U-turn and be arrested, after all this technically appears to be what the PC 602 n would encompass. And because I agree with cunundrums position regarding how in this situation, it is even less reasonable for the cop to assume this person knowingly entered on land forbidden, without attempting to make these preliminary determinations, it seems like there was less justification to act as the officer acted in this case, than in the above theoretical situation of the driveway U-turn.

aldaron said:

CdwJava when police are off duty they can enforce misdemeanors and felonies? Does dept policy dictate the rules on this or state law?

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Yes they can. Department policy might give guidance on the issue, but state law allows even private citizens (non-cops) to make an arrest on probable cause for a misdemeanor committed in their presence.

OHYEAHRIGHT said:

For the above question, I couldn't imagine how it would be department policy? I would assume that it is state law. The question of whether there was a violation however, is definitely a question of federal constitutional law with respect to the false arrest and malicious prosecution claims & excessive force. I must say that I agree with cunundrum after carefully considering what is being said occurred under the circumstances. I don't think the officer here can be said to have been acting in good faith without having properly investigated the matter. Also it does seem a little scary how someone can simply make a U-turn in someone's drive way and be ordered out of their car by an enraged off duty cop who happened to see the vehicle enter onto the private driveway to make a U-turn and be arrested, after all this technically appears to be what the PC 602 n would encompass. And because I agree with cunundrums position regarding how in this situation, it is even less reasonable for the cop to assume this person knowingly entered on land forbidden, without attempting to make these preliminary determinations, it seems like there was less justification to act as the officer acted in this case, than in the above theoretical situation of the driveway U-turn.

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Chances are the deputy was familiar with the area and knows the owner. That should be sufficient to satisfy his knowledge of ownership of the property.

*IF* the OP can get this before a civil court, that court will make a judgement as to whether the officer's actions were reasonable or not. Until then ALL of us are merely guessing. Remember, there are two sides to all stories ... I suspect something is missing from the R/P's account, and I am certain that the officer's interpretation will be much different.

As I said, if there are attorneys lining up to take this on contingency, then the case may be worth a few dollars and an out of court settlement is likely (at least the attorney will get paid). If he can't find an attorney to touch it, then that should say something about the case. Almost all such matters settle out of court if they go at all. Those that go to trial overwhelmingly go to the agency/defendant.

Maybe the OP will decide to post back with the outcome of his claim and lawsuit ... if he makes one.