"Can They Do That?" Police Behaviors that Make You Wonder About Their Legality

By Lorgio Coimbra 

Have you ever been driving or been a passenger in a car and, while looking out of your window, seen police scurrying through the trunk of a car on the shoulder? Or rummaging through the pockets of a suspect? Have you witnessed or read about excessive force and wondered, “are those cops breaking the law?” In many situations, yes: they are. Fortunately, in many cases, there are remedies at law to address law enforcement overreaching. 

Searching your car without a warrant

You are entitled to be free from unreasonable searches and seizures.  The general rule is that police are required to have a warrant before they can execute a search of your home, your person, your effects.  Unfortunately, there are a myriad of “exceptions” to this rule which, the more cynical among us believe, render the Fourth Amendment the functional equivalent of "swiss cheese.”

This is due to what is called your “expectation of privacy.”  For example, you are deemed to have a reasonable expectation of privacy of inside your home.  

However, the more the public arena in which you are situated, for example, walking down the street or driving your car, the less you are deemed to have this expectation of privacy or, at best, the expectation is reduced.  This means that the police can legally search you or your vehicle in the following situations.

“Search incident to arrest.” The police can search your vehicle if they have arrested you.  Granted, they must have probable cause you actually committed a crime for the arrest, and, therefore, the search to be lawful. If the original arrest was unlawful, so is the search. 

“Automobile exception.” Again, given the reduced expectation of privacy in your vehicle, the police can lawfully search your vehicle provided they have probable cause that you have contraband or weapons in the car. In retrospect, if you suffered an arrest and are challenging the evidence (found in a vehicle) brought up against you, your lawyer can argue that the officer did not have probable cause (if the circumstances warrant that argument) and try to have the evidence (gathered from your vehicle) against you thrown out.

“Exigent circumstances.” In the event of a pursuit or other emergency, the police can search your vehicle if there is a risk that certain evidence of a crime will be lost if it is not recovered.

“Consent.” If you consented to a search of your vehicle and your consent was not the result of law enforcement intimidation or coercion, the police can search your car.

"Stop-and-frisk" to search your person (your pockets, clothes) for weapons in a police encounter. This is considered a minimal intrusion and necessary to ensure police officer safety. 

In spite of these exceptions, the bottom line is that police cannot arbitrarily search your vehicle. There must be some justifiable reason (“probable cause”) to initiate a search. Probable cause must be grounded in the facts and not simply made up.  If someone calls in your vehicle because he or she thinks you may be a suspect in a recent crime (for example, a burglary minutes before), or something that otherwise ties you to a crime, the government can advance the probable cause argument. If not, and the police searched your car on some bogus grounds, the evidence yielded from that search can probably be successfully thrown out.

Conduct strip or cavity search 

While jail or prison officials can perform suspicionless searches of inmates in most circumstances, the prisoner still has a privacy right to be free of “arbitrary, capricious or harassing” searches.  

One of the most disturbing and humiliating invasions of your privacy can be a cavity search. These kinds of searches are ripe for abuse and, in the hands of unscrupulous or abusive jail personnel, can get out of control. 

The Ninth Circuit Court of Appeals has created two requirements which must be satisfied for a digital body cavity search to be constitutional under the Fourth Amendment:

(1) There must have been a valid prison management need for the search, and

(2) The search must be “conducted in a reasonable manner.” To satisfy this element, the court will look at whether trained staff conducted the search in private and under hygienic (that is, clean) conditions.

In Texas, a female police officer was indicted on sexual assault charges after conducting roadside anal and vaginal body cavity searches on a woman and her niece (using the same glove) in full view of passersby. 

Male Officer Searching Female Inmate

In California, all prisoners must be searched “in a professional manner.” As far as male prisoners are concerned, prison officials of either sex can perform routine clothed searches. However, searches of clothed female prisoners can only be performed by female prison officers. The only exception is an emergency situation.  California law forbids opposite-sex guards (except for qualified medical personnel) from performing unclothed body inspections “except under emergency conditions with life or death consequences.”

Look through your phone

Unfortunately, for privacy advocates and civil libertarians, the case law is not looking good for cell phone privacy.  A 2011 California Supreme Court ruling held that police can search the cell phones of arrested individuals without a warrant.  It’s rationale was that arrestees lose their right to privacy for any items they are carrying when taken into custody.   Granted, generally, the police cannot force you to reveal your password if your cell phone is password-protected.  If you are pressured into revealing your password, and the police access your phone content, your attorney can try to have the evidence thrown out on Fifth Amendment grounds.  (This argument should work unless you would not have incriminated yourself by revealing your password).  Another argument could be that police coercion or pressure resulted in a due process violation.   

Use of excessive force

The most common civilian complaint about police is the use of excessive force. Whether it’s tasering, physical brutality, unjustifiable shootings, deprivation of medication of an inmate in custody, or any other number of situations, police can be held civilly liable for deprivation of your civil rights under Section 1983 of the United States Code.  Plaintiffs generally encounter legal obstacles with “governmental immunity,” but, in certain situations, claims of immunity can be overcome.  For example, you can sue the city or county in which the police misconduct occurred. For the municipality to be liable, you must demonstrate that the injury you suffered was the result of a custom or policy of the offending municipality. 

Going undercover in high schools 

In Riverside, California, a 17-year-old student with Asberger's syndrome was brought up on marijuana charges under bizarre circumstances. An undercover police officer, whom the school allowed to pose as a pupil, "befriended" the student and asked him to buy marijuana for him. The 17-year-old refuses but the undercover cop insisted and gave him $20 to purchase it. Feeling pressured, the student made the purchase and was subsequently arrested. 

This is your classic sign of "entrapment," which occurs when police apply pressure, on an otherwise law-abiding person, to commit a crime. The pressure can come in the form of excessive cajoling or flattery, or more strong-arm tactics, like out-and-out insistence or intimidation. This is an "affirmative defense" to a criminal charge which can lead to an acquittal or dismissal of your charge.

The Riverside case exemplifies to what absurd lengths law enforcement will go to fight its "war on drugs," even at the expense of a special-needs student. Killing animals or pets

There has been a recent spate of news stories about police shootings of pets.  In Texas, police officer is facing an administrative review after having shot a family’s trained therapy dog while trying to serve a traffic-related warrant.  James Simmons, the homeowner, said the cop had the wrong house. In Ohio, a police officer shot a litter of kittens. In Hawthorne, California, police shot and killed a Rotweiler of a man who had been filming on the street.   

Many of us are deeply sensitive to the intentional human infliction of suffering and cruelty on animals.  The harming of animals strikes us at the very core of our emotional being as inherently repugnant, immoral and evil.  As recent news stories have shown, police are increasingly involved in the killing of animals and pets. 

Unfortunately, the legal system remains largely byzantine, medieval and regressive in the way it views animals as mere chattel or property.  This results in the lack of adequate compensation for grieving pet owners, generally limiting damages to reimbursement for the pet’s market value and veterinary bills. However, if the offending party’s conduct was willful and malicious, you may be able to recover punitive damages in a civil suit.     

If police have shot or mistreated your pets, they may be held civilly liable under Section 1983 of the United States Code and there is case law to back this up (San Jose Hells Angels v. San Jose (9th 2005), 402 F.3d 963). 

What can be done?

If you have encountered these issues in a criminal setting, in other words, you have a pending criminal matter, the best thing to do is contact an experienced criminal defense attorney who can marshal a powerful defense.  This includes the filing of motion(s) to suppress evidence against you (if the evidence the police gathered against you was extracted by violations of your Fourth Amendment right against unreasonable searches and seizures).  This can also include what is known as a “Pitchess” motion, whereby, on a successful written motion, the court can order the police department to release any record(s) of the offending officer’s background to verify whether he or she has sustained any complaints of misconduct in the past.  This can be invaluable in a trial setting because your attorney can more effectively cross-examine and impeach the credibility of the police officer.  

If your criminal matter has concluded, you can contact a police misconduct lawyer or civil rights lawyer to pursue a civil action to vindicate your rights.  Generally, however, unless your charges were dropped, you will needed to have obtained a jury acquittal of your charges to be able to pursue a successful civil rights claim.

Disclaimer: Nothing in this article or anywhere on this blog should ever be considered to be legal advice or counsel.  This is general information only. No attorney-client relationship is created by exchange of comments related to this article or any article on this blog or any links related to this article or this blog.  These are delicate matters best handled by an experienced criminal defense and/or civil rights attorney. 

Lorgio Coimbra is a highly-skilled, highly-experienced and extremely knowledgeable criminal defense attorney and DUI defense attorney.  The Coimbra Law Office also represents persons who have suffered abuse or brutality by law enforcement.  Mr. Coimbra is licensed in California. If you or a loved one are in need of legal representation, contact this office at 1-855-325-5245 for an evaluation of your case. Or email at CoimbraLaw@Yahoo.com.  Free consultations available.

Do You Know if You Have a Warrant for Your Arrest? What Would You Do If You Found Out? Would You Panic?

By Lorgio Coimbra, Esq.

Discovering you have a warrant for your arrest can be chilling.  The prospect of going to jail, especially for a reason about which you are unsure, can be terrifying. Oftentimes, people go unaware of this possibility until it’s too late. Imagine that you are pulled over while driving or are going about your business and, before you know it, your are taken into custody.  However, there’s hope. A good criminal defense attorney may be able to verify whether you have a warrant and may be able to have the warrant “quashed” (terminated) altogether so that you don’t have to worry about going to jail. Here’s how warrants work and what can be done about them if you are facing one. 

Imagine driving down the freeway. You neglect to watch the speedometer and drive a little too fast. Or maybe you are driving through a neighborhood with little to no traffic and you forget to stop all the way at a stop sign.  You hear the “whoop” sound of an approaching motorcycle cop or patrol car. You think to yourself, “okay, no big deal. I’ll stop, he’ll write up a ticket and I’ll be on my way.”  The police officer approaches, you hand him your license and registration.  You peer nervously at your rearview mirror as he processes your information. The minutes go by. And by. You are wondering what could be the hold-up.  You hear some activity on the officer’s radio.  You don’t think much of it. Then you see another patrol car stop.  Then another.  Before you know it, there is a small armada of police vehicles around your car.

Suddenly, the officer returns to your window and asks you to step out of your car.  The officer tells you that you are under arrest.  You feel the cold, hard steel of the handcuffs close in on your wrists.  The arresting officer places you in the back of one of the patrol cars.  A tow truck shows up to impound your car.

You ask yourself:

“What the hell’s going on?”

Unfortunately, this is an all-too common occurrence.  Unsuspecting motorists who get pulled over for something innocuous. They are initially stopped for an illegal traffic maneuver.  But instead of driving off after the encounter, albeit a frustrating one (who enjoys getting a ticket, right?), these motorists are cuffed, arrested and taken into custody.

The reason? An active “warrant.”

Bench warrants versus arrest warrants

A “bench warrant” typically results from a court-related issue, like an outstanding, unaddressed obligation stemming from an earlier court case.  For example, you may have had an arraignment to show up to court for an infraction or a criminal matter and you neglected to show up.  Or maybe you or your attorney made all the necessary court appearances and you were convicted, served no jail time but you were told by the judge you had to do fulfill certain obligations as part of your probation (or conditional release).  You became too engrossed in your personal or business affairs to do something that the court asked you to do, like perform community service, pay a fine, attend an alcohol program, attend a batterer’s program (in a domestic violence case)...whatever.

Many times, at a conviction for a traffic or criminal matter, you are asked to return to show proof of payment or complete a class. If the judge called your name and you did not show up, he or she would have issued a “bench” warrant.  It is so called because it is issued from the court officer’s “bench.”

If this is the case, and you actually completed your class, paid your fine or fulfilled whatever obligation you were asked to do, and simply failed to appear, the judge will generally grant you or your attorney the opportunity to be heard to explain your reason for neglecting to appear. In this type of case, it is crucial to (1) show the judge you honored the court’s order to do something and (2) demonstrate some crucial, overriding reason for failing to appear. It should be noted that the judge is not required to withdraw the warrant and may end up taking you into custody regardless of showing these things. But, generally speaking, many judges will quash or terminate the warrant upon a satisfactory showing of proof and explanation.

Most of the times, you are required to personally appear, even if you are represented by counsel.  Less frequently (though it does happen) a judge will be satisfied with the attorney’s appearance and representations even without your presence.  Again, this is rare.

The judge has the discretion to ask the bailiff to take you into custody.  But a good faith attempt by you or your attorney (if you can hire one) may be able to appeal to the judge’s sense of compassion and fairness and allow you to walk free.

Arrest warrants are a different animal.  These generally stem from some police investigation in which you are a suspect.  If, for example, you are being accused of a crime, the police have shown a judge probable cause to arrest you for a crime, they can come to your home or place of business and take you into custody pending an arraignment in court.  There may be an open arrest warrant and the police find it in their computer database after pulling you over in a routine traffic stop. The officer may have turned in his police report to the prosecutor, who, in turn, has officially filed  charges, such that there would be an open file in court. In such a case, an investigating officer may call you and ask you to turn yourself in.

If you hire a good, experienced criminal defense attorney, he or she may be able to convince the investigating officer to allow you to appear in court before the judge, at which time the attorney can enter a “not guilty” plea on your behalf and ask the judge to allow you to remain free on your own recognizance.  If the judge refuses, as often happens in more serious cases, such as felony matters, but sets a bail amount that is affordable to you, you can have a bail bondsman on “stand-by” to post bond so that you are released as soon as possible.  If the bail is too high for you to do this, your attorney can have a bail hearing set within 5 days of the date the judge set your bail amount.  At this point, your criminal defense attorney can motion the court to have you released on your own recognizance or, at minimum, to reduce the amount of bail.

If the judge is unwilling to release you “O.R” (own recognizance), perhaps your attorney can convince the judge to allow you to remain out of custody with concomitant conditions, such as an ankle bracelet or house arrest.  In DUI cases, perhaps the judge will allow you to stay out of custody provided you wear a “SCRAM” (Secured Continuous Remote Alcohol Monitoring) device or allow you to check in to an inpatient treatment facility.

Why it’s so important to keep you out of custody

Aside from the displeasure and inconvenience of having your freedom taken away, even for a short period of time, being in custody can have a ripple effect in your personal life.  You may have a job to return to that may now be compromised if you are in custody and cannot return in time.  You may have other crucial obligations that require your presence but will have to wait until you get out.

If you are a non-US citizen and go into custody, there is always the danger that Immigration and Customs Enforcement (ICE) will place a “deportation hold” on your custody.  In other words, even if you are entitled to get out of custody (because, for example, you posted bond), you would be prevented from being released and you would likely be deported from the United States.

How do find out if you have a warrant

Depending on the county you are in, there may be online resources to find out if there is an outstanding criminal case in which a warrant may have issued. For example, in Los Angeles, the L.A. Superior Court website has an online index of criminal defendants and an adequately-done search will yield whether or not there has been a criminal filing against you.  If you believe you are being investigated for a crime, it would be wise to hire an attorney to monitor your case with the appropriate prosecuting agency.  This way, your attorney can (a) find out if there is a warrant that needs to be addressed in court (i.e., “motion to recall and quash the warrant,” generally done by verbal argument in court) and (b) if there is an upcoming felony or misdemeanor arraignment in which you, your attorney or both (in a felony case) need to appear.  Hiring an experienced criminal defense attorney very early on in the proceedings or before any proceedings occur can help avoid the issuance of a bench warrant or can allow you the opportunity to have the warrant addressed as soon as possible.

(DISCLAIMER: Nothing in the foregoing article or anywhere in this blog should be construed or interpreted as legal advice.  The author is not responsible for the reader's interpretation of the contents herein in any way, shape or form. Addressing a bench warrant or an arrest warrant can be an extremely delicate affair best handled by a well-trained, experienced and legally-knowledgeable criminal defense attorney.  Persons appearing in propia persona (i.e., representing themselves) or without an attorney to ask the court to recall and quash the warrant do so at their own risk.)   

San Gabriel Valley Criminal Defense Lawyer Lorgio Coimbra is an extremely seasoned, experienced, knowledgeable and skilled criminal defense attorney.  Mr. Coimbra has vast experience and success having warrants recalled and quashed.  In addition to representing individuals facing active felony or misdemeanor charges, the Coimbra Law Office represents persons with post-conviction issues and post-conviction relief.  Because of his vast immigration law background, Mr. Coimbra is highly-skilled at identifying, addressing and helping to minimize the adverse effects of criminal charges or convictions on the immigration status of non-citizens. 

Contact the Coimbra Law Office today if you or your loved one need the services of an experienced and skilled criminal defense attorney.  Our toll-free number is 1-855-325-5245. Or you can send an e-mail to Esquire@CoimbraLaw.com.  Visit us at www.CoimbraLaw.com. Free consultations available.   

Should Big Polluters Be Held Civilly Liable for Destroying Our Planet?

By Lorgio Coimbra, Esq.

In the wake of the extreme heat wave in the West Coast, bringing triple-digit temperatures in it’s wake, is it time for lawyers to “bring it” to the giant polluters and prosecute them with civil actions? There may be legal hurdles but “where there is a will, there’s a way.”

 It has been a heat wave of “Biblical proportions.” A record-breaking temperature climb has befallen the nation’s west coast.  In Arizona, nineteen firefighters were killed combating a fast-paced conflagration (i.e., wildfire) near the small town of Yarnell, just 80 miles northwest of Phoenix.  The fire charred up 1,000 acres of grasslands since it broke out Friday in the midst of heat wave conditions that have been cooking up the Southwest.  In Death Valley, the thermostat ascended to 129.9 degrees in Death Valley National Park, tying the record for the hottest day in June anywhere in the United States.  In Pasadena, paramedics treated 15 people for heat-related injuries at the Fifth Annual Pasadena Marathon. Regardless of the questionable wisdom of holding a marathon on a scorching-hot day about which we have all been forewarned, the injuries underscore a larger reality: the extreme heat.

Climatologists have been warning us all for decades about the perils of global warming and the effects it would have on our daily lives. Yet, giant polluters, in collusion with big media interests, have tried to convince the American public that it is a “make-believe” phenomenon, that the “jury is still out” on the “question” of climate change (as if any question existed).  This, of course, runs contrary to the scientifically-undisputed consensus that anthropogenic (i.e., "man-made") climate-change is a reality and it is responsible for more severe weather patterns and phenomena. But because polluting companies wield such enormous influence in Washington, the federal government has been anemic in prosecuting oil companies and other companies responsible for horrendously environmentally destructive practices.

That leaves the judicial recourse.

Suing Polluters for “Public Nuisance”

A nuisances can be public or private in nature.  A private nuisance happens when someone uses his or her property in a way that inflicts harm on the property interest of other persons.  For example, if your neighbor frequently plays the radio too loud, uses his backyard in a way that emits chemicals or pernicious substances onto your property, or otherwise engages in some activity that detrimentally affects your use and enjoyment of your own land, your neighbor can be liable for private nuisance.

Now, let’s transpose that same concept to the public sphere. For example, a factory some relatively short distance from your property and your neighborhood emits toxic chemicals that result in the degradation of your land and your ability to enjoy your it. Your children develop a respiratory illness as a result.  Your soil becomes contaminated and you are unable to garden it any longer. Other neighbors suffer similar damages. Again, the breadth and scope of the nuisance is now public. Climate change could fit the definition of public nuisance.

For a defendant to be liable for public nuisance, the defendant must engage in activities that create an “unreasonable interference with a right common to the general public.”  Public nuisance law establishes duties to the “public” at large by holding it’s perpetrators accountable for “unreasonable interference with public rights.”

What is a “right common to the public?” If a polluting factory releases chemicals from it’s smokestacks that are pernicious to the air of the adjacent and surrounding township, city or neighborhoods, and people develop asthma or other lung disorder, the factory’s behavior would create a public nuisance because it is infringing a public right to be free of such toxicity and illness.  The people’s right to enjoy their natural environment makes up this public right. Obviously, climate change involve public rights.

There are issues of "proximate cause" to be fleshed out in litigating a climate change lawsuit.  To this end, it should be noted that fossil fuel burning has produced approximately three-quarters of the increase in carbon dioxide from human activity over the last two decades.  The burning of coal and petroleum is the leading cause of increased man-made carbon emissions, with deforestation ranking as the second major contributing factor.  A panel of expert witnesses enlisted to testify in a (hypothetical) class action against "Big Oil" could help prove up "causation," that is, that the defendant oil companies' activity makes up a "substantial factor" for the destruction of the environment.

Then there is the second element of whether the defendant’s interference with that public right was unreasonable.  One of the factors that can help us get to that conclusion is that the offending conduct is on-going, continuing and has produced a permanent effect.  Indeed, fossil fuel carbon emissions have produced a long-lasting impact given increased temperatures and other cataclysmic environmental effects that will reverberate into the coming milennia.

A third element that is often considered is whether the defendants have failed to take reasonable actions to minimize the harm they created. Not only have oil companies not taken meaningful ameliorative action to remedy the problem they created; they seem to be actively engaged in the dissemination of propaganda and disinformation about climate change through various think tanks to which they contribute and which wield enormous public influence.

California Public Nuisance Law

In California, a public nuisance is defined in California Civil Code Section 3479 as follows:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Is this the next wave of litigation in the courts?

It is hard to tell how frequent and effective this area of environmental law will become. There are issues that plaintiffs will have to contend with, including standing and proving causation.  But these are not insurmountable obstacles.  Enlisting the help of knowledgeable experts in the field of climatology and proving that causal link between carbon emissions and specific harm done to plaintiffs can help environmental law attorneys achieve justice for their clients.

More importantly, it can help them achieve justice for the planet.

Nothing in this article or anywhere on this blog is intended to constitute legal advice or counsel and no content on this website should be construed as such.

The Coimbra Law Office represents plaintiffs in civil litigation matters, including, but not limited to, personal injury, employment law, mass torts litigation, product liability, catastrophic injury and toxic torts cases. Lorgio Coimbra is an aggressive and highly-skilled lawyer who provides compassionate and skillful representation of his clients. If you or a loved one has suffered personal harm or injury due to the conduct of an individual or an organization, such as a corporation, you can contact the Coimbra Law Office at CoimbraLaw@Yahoo.com or call: 1-855-325-5245.   

Is Your Criminal Record Stopping You from Getting a Job? How California’s Expungement Law Can Help You Remove the Burden of a Conviction and Help You Keep Or Find Employment.

By Lorgio Coimbra, Esq.

We’ve all heard the good news about the recent (albeit, slight) economic bounce.  The housing market has rebounded, even bringing the return of residential property “bidding wars,” a seemingly-bygone phenomenon relegated to the housing market’s glorious past (i.e., pre-subprime mortgage / housing crisis, pre-Great Recession). Consumer spending has risen in areas other than real estate, as well.  Many economists believe this resurgence in economic growth is the result of the President’s 2009 Stimulus Package, which funneled money back into the private sector by way of tax incentives for individuals and companies, aid to low-income workers, and infrastructure investment, among other things.  Whatever the reason, the US economy is experiencing a resurgence, bringing with it new opportunities.

Among those opportunities is an increase in the availability of jobs.  Throughout various sectors of the economy, people are now able to find work far more easily than during the barren, jobless days of the Great Recession.  However, some people, even with these opportunities, are unable or they will be unable to secure work.  No matter how qualified.  Why is this?

We’ve all seen articles from obnoxious “self-help” or “rèsumé” gurus who think they have the foolproof solution or recipe for being the perfect job candidate.  While some of them do offer helpful advice, oftentimes it’s not anything you’re doing or not doing keeping you from securing you a job; it’s something you’ve done in your past.

I’m speaking, of course, of criminal convictions.  No matter how qualified you are as a job applicant, a misdemeanor or felony conviction on your record will keep you uncompetitive because there are just as many qualified people without any criminal background at all. 

Understandably, a major concern among employers is hiring the wrong person. If the job applicant was convicted of a theft crime, the employer may be afraid he or she will be hiring a dishonest person.  If the job applicant was convicted of DUI, the employer may fear hiring someone who may have a drug or alcohol problem.  Or the employer may find it difficult to insure the applicant if the job primarily involves driving. If the job applicant was convicted of a violent crime, the employer may fear hiring someone who is emotionally unhinged or unpredictable, liable to “snap” at a customer or fellow worker.

Also, beyond harboring personal qualms, the employer may fear a “negligent hiring” lawsuit if he or she hires the wrong person.  For example, if (1) an employer hires an employee with a “checkered” or criminal past, (2) the employer is aware or should have been aware of the employee’s past, and (3) the employee goes on to inflict some harm on a client or customer, the employer may be civilly liable and sought after in court for monetary damages.  Even if the employer never personally inflicted damage on the plaintiff, the employer is said to be “vicariously” liable through a doctrine known as “respondeat superior.”  So, suffice it to say, hiring an employee with a criminal conviction can come with it’s practical and legal entanglements and liabilities.


“I Understand. But I Still Need to Find Work. What do I do?”

The employer’s concerns are comprehensible.  However, a person’s criminal background does not always a render a fair assessment of how he or she will behave in the future.  It is not necessarily a harbinger of recidivism but rather the result of an unfortunate but isolated incident.

There are any number of situations where this is the case. For example, in our era of ubiquitous drug laws, where possession of even a small amount of drugs can trigger an arrest, charge and conviction, even trustworthy and honest employment-worthy job applicants can find the job market inhospitable if they are anchored down to a drug conviction. Or, given how the DUI laws are written, even a slight amount of alcohol consumption can incur a DUI arrest if your blood alcohol concentration was 0.08 percent or higher when you were pulled over (and, now, there is talk of reducing the amount it takes to be legally intoxicated at 0.05!).  The bottom line is that it is unfair to judge a person’s character by what he or she did in a “moment of weakness.”

If you have been convicted of a crime in California, with some limitations, you may qualify for what is called an “Expungement” of your criminal record.

What is an Expungement?

Under California Penal Code Section 1203.4 PC, you can have your record of conviction updated to show that your guilty plea has been withdrawn.  In other words, the expungement shows that you entered a plea of “not guilty” in it’s place.  It also shows that your case has been dismissed.  This can exponentially help your chances of getting employed.

How Do I Know I Qualify for This?

As a general rule, you are entitled to an expungement of your California criminal record if you have successfully completed probation and you are not currently charged with a crime or currently on probation or serving out a sentence for a criminal offense.

However, even if you are on probation, you can motion the court to terminate probation early.  This way you do not have to wait until probation is over.  Also, it is in your best interest to seek to be off probation.  Probation can come with very burdensome terms, for example, “search and seizure” conditions where the police can search you without probable cause.  If you are on probation, even a minor brush-up with the law can result in a criminal charge that could subject you to mandatory jail time (“probation violation”).  Even a routine traffic stop can be a great hassle if the police conduct an extended interaction with you on the basis of your being on probation.  If you are on probation for DUI (under California Vehicle Code Section 23152(a) and/or California Vehicle Code, for example, one of the terms is that you refrain from having any measurable amount of alcohol in your blood. In other words, if you are pulled over with so much as 0.01 percent blood alcohol, you could be in violation of your probation and face mandatory jail time.  Why would anyone on probation want that hassle?

I Was Arrested But Never Charged or Convicted with a Crime. Can I Be Helped?

Yes. You may qualify to have the record of your arrest sealed under California Penal Code Section 851.8 PC.  If you were not charged with a crime, your criminal defense attorney can petition the court to seal and destroy your arrest record.

A good California criminal defense attorney will know how to convince the court to terminate your probation early so that you qualify for an expungement.

This will open up new opportunities for you that you may not have had prior to getting your case expunged.  And then you, too, may be able to secure or keep employment without the fear of the “skeleton in the closet” preventing you from landing a good job.

If you have any specific questions about these forms of relief and you feel you may benefit, you may contact my office directly at 1-855-FUK-JAIL or 1-855-385-5245.  Free consultations are available.

(Disclaimer: Nothing in this article or anywhere on this blog constitutes legal advice or counsel. This article constitutes the attorney's opinions, only.  This article is merely an overview of the law concerning expungements and there are many nuances, variables and qualifiers to it's applicability and scope. Expungements do not "remove" or "erase" a person's record, per se).  

The Coimbra Law Office has been successful at expunging criminal backgrounds and petitioning the court to terminate probation early.  We offer other forms of post-conviction relief, as well, such as seeking the court to vacate your conviction in it’s entirety if there was a defect in your plea.  Lorgio Coimbra is an extremely well-versed, highly-experienced, highly-skilled criminal defense attorney with a virtual encyclopedic knowledge of California criminal law.  If you have a criminal conviction that you would like expunged, call my office at 1-855-385-5245 or contact me by e-mail at CoimbraLaw@Yahoo.com.

How the Supreme Court’s Gay Marriage Rulings Impacts Immigrants in Same-Sex Couples

By Lorgio Coimbra, Esq.

There are an estimated 28,500 binational same-sex couples and nearly 11,500 same-sex couples in which neither partner is a U.S. citizen. The immigration repercussions of the Supreme Court’s gay marriage rulings could be huge for same-sex couples in which one partner seeks permanent residence.

In two separate landmark U.S. Supreme Court decisions handed down on June 26th, 2013, the Defense Against Marriage Act (DOMA) was found to be unconstitutional and the (anti-gay marriage) plaintiffs challenging California’s infamous Proposition 8 were found to have lacked standing.  

In plain speak, the federal government no longer has legal grounds to ban gay marriage under DOMA and gay marriage is now legal in California. 


How The Supreme Court’s Decision Will Positively Impact Immigrants in Same-Sex Couples 

The implications for bi-national same-sex couples (that is, where one spouse is an American citizen and the other spouse is a foreign-born individual) are huge. DOMA defined marriage as a union between “one man and one woman.”  DOMA also defined “spouse” as a "person of the opposite sex." This unconstitutional law constituted a bar (or legal obstacle) to a US Citizen successfully petitioning his or her same-sex foreign-born spouse for lawful permanent resident (LPR) status.  In fact, the US Citizenship and Immigration Services (USCIS) has previously stated that “no legal authority permits recognition of homosexual relationship as ‘marriages’ for purposes of immigration and nationality laws, regardless of whether the relationship may be recognized as a ‘marriage’ under the law where the relationship came into existence.”1 However, the Supreme Court decision now gives the USCIS legal authority to permit recognition of same-sex marriages. 

Department of Homeland Security (DHS) On Board With Ruling

The USCIS falls under the purview of the Department of Homeland Security (DHS).  DHS Secretary Janet Napolitano heaped praised the Supreme Court’s ruling, which effectively overturns the Defense of Marriage Act (DOMA).  Napolitano said she would work toward extending immigration benefits to lawfully-married couples.

“Working with our federal partners, including the Department of Justice, we will implement [the Supreme Court’s] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” Napolitano said. 

Understanding Immigration Marriage Visa Law

The Immigration and Nationality Act provides that a US citizen spouse can petition his or her foreign-born spouse to resident lawfully in the United States.  The Immigration Marriage Fraud Amendments Act of 1986, however, provides that a marriage immigrant visa (that is, where the US Citizen spouse petitions his or her foreign-born spouse) only results in conditional residence status. Conditional residence means that the foreign-born spouse may lawfully reside in the United States BUT within ninety (90) days of the second anniversary of the grant of conditional residence, the couple must file a joint petition.  If this joint petition is granted, the conditional residence becomes permanent residence. The exception to this 2-year condition is if the marriage is more than two (2) years old at the time that immigrant status is granted. 

A binational same-sex couple will still have to abide by all the requirements of the Immigration and Nationality Act and Immigration Marriage Fraud Amendments Act.  And the marriage would have to occur in a state in which same-sex marriage is valid.  In California, with deservedly-despised Proposition 8 buried in the proverbial cemetery of unconstitutional laws, gay marriage is once-again legal. 

Here’s the Bottom Line

As soon as the Ninth Circuit Court of Appeals lifts its hold on an injunction against Proposition 8, same-sex couples in California will again be able lawfully wed.  If one of the spouses is foreign-born and entered the country lawfully, the US citizen spouse will be able to petition his or her same-sex spouse. If the visa requirements are met, the foreign-born spouse can gain lawful permanent residence.

1  Memo, Yates, Assoc. Dir. Of Operations, USCIS, HQOPRD 70/6 ¶III (Apr. 16, 2004).

Nothing in this article or anywhere on this blog constitutes legal advice of any way, shape or form. The foregoing is a statement of opinion only.  

Having been involved nearly one decade in the immigration law field, initially as a law clerk and then as an Attorney, Lorgio Coimbra is a vastly-experienced, highly-skilled, extremely well-versed, extremely knowledgeable and results-oriented Immigration Attorney in Los Angeles.  Lorgio Coimbra is a native and fluent-Spanish speaker, who is, himself the son of immigrants. If you are married to a foreign-born spouse who is seeking lawful permanent residence in the United States, please contact my office at 1-800-290-5055 and / or you may contact me by e-mail at CoimbraLaw@Yahoo.com

Is It Murder to Kill a Zombie? Using Horror Lore to Explain California Murder Law

By #CoimbraLaw

Criminal defense attorney Lorgio Coimbra uses a slightly far-fetched example to explain California murder law. But how "far-fetched" is it, really?

We’ve all seen or heard of the dystopic, zombie-apocalypse cable series and movies.  The zombie horror genre has been with us for quite some time. For example, AMC's The Walking Dead, now going into Season 4 and resuming February 9, 2014, shows a level of verisimilitude that makes a virus-fueled zombie apocalypse a bit less far-fetched than previously thought.  Who knows? In our volatile era, with the ever-present threat of terrorism and biological warfare, who knows what entities are capable of what evil? Will a giant corporation in the defense industry concoct a lethal virus that will get out of control and lead to symptoms like those featured in movies and cable shows?  

But, really, that is all tangential to the theme of this article and ripe for a separate discussion.  I’m here to discuss what would happen, in the imaginative and vivid world of “hypothetical scenarios” if, against a zombie outbreak backdrop, an “uninfected” person would be charged with the murder of a zombie.  For example, imagine this situation. A zombie virus outbreak occurs, turning any number of people into zombies (e.g., tens or hundreds of thousands, millions). You kill the zombies in self-defense, or so you think.  You swing your axe or use your handy shotgun to pick off the offending flesh-seekers.  You succeed in fending off the virus because you were an effective zombie-killer.  The outbreak is contained and civilization returns to it’s previous order.  In the aftermath of the plague, you think you can return to your normal life and routine because you and your family survived the cataclysm.  

Then you get a knock on the door. It’s the police.  You are arrested for murder.  

You come to my office. I, too, have managed to survive the zombie apocalypse and my office is back in business. Your murder charge is set for trial and I start to prepare your defense.

First of all, what is Murder in the State of California?

Murder is defined (under California Penal Code Section 187(a)) PC as follows:

“(The) unlawful killing of a human being or a fetus with malice aforethought.” 

You may be wondering what on Earth “malice aforethought” means.  That’s perfectly understandable given the various legal complexities surrounding the elements of murder. “Malice aforethought” simply means that you acted in a manner that was highly probable to result in the victim’s death.  It does not mean the layman’s definition, that is, that you harbored ill will or malicious intent.  Rather, it is an objective test of whether your actions resulted in the victim’s death.  

Let’s go through some of the applicable elements and then the defenses.

Killing of a Human Being

In the middle of our consultation, you say, “Wait a minute, counselor. I couldn’t have ‘killed’ any zombies because they were already dead.” Indeed, that is a quandary to ponder. Could you have killed something that was already dead?  In horror fiction, zombies are also referred to as the “undead” because their infection has already resulted in their death and they are only operating in a state of suspended animation.  Thus, I would argue that the zombie(s) you killed were already dead from a virus transmitted by the bite of other zombies.  So you could not have actually killed a being that was already dead. 

I would anticipate the prosecutor would probably have the coroner or other expert testify that the zombie was not dead because, even though he may not have been in control of his mental faculties, the zombie's internal organs or autonomic functions were in order. 

I would probably enlist the help of a private coroner to conduct an independent autopsy, if at all possible.  My defense expert would probably testify that the zombie lacked brain function and/or other indicia of human life (e.g., cognition, consciousness, etc.).  The trial could end up being a battle of the experts as to whether the zombie was physically “alive” at the time he was “cut down” by my client.  But this, alone, could help establish reasonable doubt as to my client’s guilt and help get him an acquittal. 

Is a Zombie a Human Being?

The prosecutor would argue that, in spite of the victim’s zombified state, he was still a human being.  I think our stronger argument, of course, would rest on the issue of whether the victim was “alive versus dead” or “dead versus undead.”  


Defenses

First, there are the “affirmative defenses,” These include self-defense and defense of others.  In other words, it’s a way of telling the jury, “Yes, I did it. But here’s why.”  Then, there are the defenses in mitigation, such as having acted “in the heat of passion,” which serve to bring down the seriousness of the offense from murder to voluntary manslaughter.  

Self-Defense and Defense of Others

As you are sitting in my office, you ask me, “but counselor, how can I be guilty of murder? I killed those zombies in self-defense!”  Then I ask you to tell me more about the facts surrounding the killings.

You take me back to the night in question.  

You are hunkered down in your house with the shades drawn, or, for dramatic effect, with your windows boarded up with wooden planks.  The power has gone out in your house, as it has everywhere, and you are operating by flashlight and candlelight.  Your family is huddled around the kitchen table in fear.  You are standing guard by a window with your rifle.  Imagine the famous image of Malcolm X with his AK-47, peering out the window. You are in a similar position. You are peering out through one of the gaps in the wooden planks, scanning for zombies.  You hear glass break elsewhere in the house. The eyes of your wife and children are upon you, expecting you to act with all deliberate speed in defense of their lives.  You see the pale, venous arm of a zombie break through one of the boarded-up windows.  The growl of the creature grows louder and your children are screaming. The zombie is lurking inside with his arms extended.  You take aim.  You blast him with a clean shot to the head and he falls dead...or more dead than he was before you shot him.  Your family is safe.

In this scenario, the prosecutor would argue that your use of lethal force was unnecessary, excessive and not commensurate with the threat you faced.   Of course, he would probably lose.  If you reasonably believe that you or a third person were in imminent danger of getting killed, sustaining great bodily, or being maimed, robbed, raped or made to suffer some other heinous crime, you can use deadly force.  A zombie, even a slow one, presents the threat of maiming, disemboweling and ultimately killing it’s victim. Under these circumstances, a reasonable jury would decide in my client’s favor and acquit him.

On the other hand, if my client had been out for blood, seeking out zombies to kill, it may be harder to invoke such a defense.  Even then, however, the argument could be made for defense of others.  In the midst of a zombie apocalypse, when humanity is beset by the ubiquitous menace of death, killing zombies before they could hurt others would constitute defense of others.  It is unclear how a jury would react to this affirmative defense in this kind of scenario but the argument could certainly be made.  

This entire scenario may sound ridiculous but it is discussed to illustrate the law and defenses surrounding the charge of murder. 

Nothing in this article or any other article in this blog is intended to be legal advice or counsel of any way, shape or form.  

The Coimbra Law Firm represents persons accused of felony and misdemeanor crimes, including violent and non-violent offenses, DUI offenses, theft, domestic violence and other violations of the Califoria Penal Code, California Vehicle Code and California Health and Safety Code.  Attorney Lorgio Coimbra is an experienced and highly-skilled criminal defense attorney.  He is also an immigration and deportation defense lawyer, which helps his non-citizen clients avoid deportation even when facing deportable criminal charges. The Coimbra Law Firm is dedicated to obtaining the best results for it's clients. Call us with your questions or to schedule your free consultation at our TOLL FREE Number: 1-855-385-5245

What Do I Do If I'm Pulled Over By the Cops? Smart Tips for an Incident-Free Police Stop

By #CoimbraLaw Criminal Defense Attorneys in Glendora

We've all seen the headlines of fatalities during routine traffic stops.  A vehicle stop turning into a tragedy because of an altercation or misunderstanding between the police officer and the driver.  Fortunately, there are simple, common-sense tips that can help you avoid being one of these sanguinary statistics. 

              

  






                                                                                               






                  
Unless they are impeccable drivers, most motorists have had some encounter or experience with law enforcement. Usually it is the mundane, uneventful traffic stop. You ran a red light, did not stop all the way at a stop sign or made some other illegal traffic maneuver that caught a police officer’s vigilant eye.

It is understandable to feel frustration and annoyance at being stopped.  It is usually in the midst of a commute and you are simply trying to get to your destination.  However, it’s also important to recognize that without some semblance of order and law enforcement, the roadways would descend into chaos. The law is there to curb some of our more selfish impulses so that we can all have a safer and less contentious driving experience.

Motorists who are unable or unwilling to rein in their frustration do so at their own peril.  They may run the risk of provoking the officer to be inordinately meticulous in finding and citing the motorist for all possible offenses (even where the officer would otherwise have only cited the driver for a minimal offense).  Obnoxious, boisterous or verbally abusive motorists may even incite the officer to arrest them or, worse, use excessive force.

Here are some helpful tips to make any future encounter you have with a police officer as safe and hassle-free as possible. Pay close attention.  Given the high incidence of police shootings of motorists during routine traffic stops, your life may depend on it.

Don’t Make the Cop Feel Nervous

Police officers are aware of the potential hazards of stopping a vehicle.  The response of the motorist may be difficult for the officer to predict until the exchange between both the driver and the cop has begun, or, in more volatile situations, until after a dialogue has escalated into an altercation.  Just as there have been a score of abusive police officers who cannot control their emotions, there have been rogue motorists who have harmed, injured or even killed the police officer(s) pulling them over.  Therefore, given their awareness of the potential risk that may arise from a vehicle stop, police officers may already be nervous and on high alert.  Their adrenal glands is already poised to unleash the“fight or flight” response.

Accordingly, it behooves you, the motorist, to be polite and disarming to the police officer.  A simple smile and a courteous, respectful tone will take you a long way.  Displaying a negative attitude or an “entitlement mentality” will probably anger or exasperate the police officer.  Even if he or she does not respond with excessive force or “police brutality,” the officer will probably make it his or her business to show up at your traffic trial to ensure that you are convicted of the traffic offense for which you have been stopped.  But if you allow the officer to do his job, he may be more lenient.  In some cases, he may send you off with a warning.

It is in your best interest to comply with the officer’s requests rather than to try to argue and contest your ticket with the officer.  A police officer is part of the local government’s executive branch, not the judiciary.  He is not the judge.  He is not there to adjudicate the law, simply to execute it.  If there are grounds to challenge the ticket, you will have the opportunity to do so later, in court.  And because traffic court is a “quasi-criminal” proceeding, you are entitled to bring your own attorney, who can engage the police officer at trial, cross-examine him, present and refute evidence and beat your ticket. Think of the big picture and do not get defensive about being pulled over.

Keep Both Hands on the Wheel

Given how apprehensive many police officers are when approaching a motorist’s vehicle, especially at night, it behooves you, the driver, to maintain your hands where they are visible at all times.  Fidgeting your hands or concealing them make give the police officer reason to believe that you are concealing something, including a firearm or other weapon.  In this situation, it would not be unreasonable to foresee that the police officer may respond with excessive force, overreact and draw his gun on the driver.  Therefore, keep both hands on the steering wheel unless you need them to reach for your documents, i.e., license, registration and proof of insurance, when asked to do so by the officer. Which brings me to....

Avoiding Brusque Movements 

Many or most drivers keep their driver’s documents in their glove box.  When the police officer asks you for your license, registration and/or proof of insurance, it would be wise and prudent of you to ask the cop, in turn, “My documents are in my glove compartment. May I reach for them?” This is particularly important at night, when visibility is compromised by poor lighting conditions. When reaching for your documents, do so gently and at a reasonable pace. Do not make any jerked or brusque hand movements or other gestures that would make the cop believe you are about to reach for a gun or other weapon. The key is for the police officer to see where your hands are and that you are not behaving in a menacing fashion.

Never Argue With the Cop: It’s Pointless and Can Even Be Dangerous

Many motorists believe they can talk their way out of a ticket. But any intelligent person knows better than to think he can craft his words so skillfully and convincingly that he can persuade the officer out of writing up a citation. That is largely an illusion. You will have plenty of opportunity to dazzle the court with your brilliance (although this, too, can be delusional thinking).  But this will come later.  Your sole objective during a traffic stop should be to avoid an altercation with the cop, avoid doing anything stupid or arrest-worthy and allow the process to take it’s course. There are attorneys available who concentrate on traffic ticket defense or offer this service as part of their criminal defense practice. You may decide to hire an attorney to litigate your matter and legal defenses may be available in your case that can defeat the ticket. Whether you decide to hire a lawyer or to represent yourself, be mindful that court is the arena to marshal your legal defense, not the side of the road.

If you decide to ignore this tip and try to dissuade the officer from writing up a ticket, the minimum you should do is avoid using a provocative, acerbic or combative tone. The cop is usually a total stranger to you and you have no clue whether he has been previously disciplined for using excessive force, has a history of police brutality or otherwise a penchant for violence.  Taking a less-than-polite tone may incite an emotionally-unstable cop, sending you straight to the hospital.  Why take your chances?  It is in your best interest to remain cool, calm and collected in addressing and talking to the cop.

Sticking Out Like a Sore Thumb May Not Be the Best Idea

Beyond the traffic encounter itself, there are consumer choices you can make to reduce undue and unwanted visibility on the roadway. If you have a tendency to speed or be less-than-fully-compliant with the traffic laws, you may want to reconsider the flashy red sports car or the souped-up wannabe race car. You are not competing in a NASCAR race. You are a driver commuting from one point to another.  Although you should comply with traffic laws regardless of your choice of chariot, you may also want to exercise caution with your level of conspicuousness.

Don’t Play the Odds. Better to Spend a Few Hundred Dollars on a Taxi or Car Service Than Several Thousand on a DUI

In addition to being extremely perilous to your life and the lives of other drivers on the road, it is also not in your best legal interest to drive after having drunk alcohol, even a slight amount.  Most DUI defendants were not intoxicated beyond recognition at the time of their traffic stop.  They are “tipsy,” “buzzed” or otherwise have their sobriety sufficiently compromised that they made some traffic maneuvers that may be indicative of driving while impaired.  A good DUI defense lawyer will probably not charge you any less than a several thousand dollars to defend your case.  And that’s how much it will cost you to hire a good attorney, not to mention the court costs and fees you will end up incurring.  If you are going to party and drink, better to exercise caution and spend some money on a taxicab and avoid the long-term expense of a DUI case and conviction.

It is you, as the motorist, who has everything to lose from reacting inappropriately to a police stop.  You want to get through your day with as few concerns or obstacles as possible.  If you sustain a police encounter, you will have ample opportunity effectively vindicate yourself in court, beat your citation (and maybe even pursue legal action against the cop if he or she broke the law by violating your civil rights). Following these tips should help make your driving experience free of volatile situations with police officers.

Nothing in this article or anywhere on this blog constitutes legal advice of any kind.  This is an expression of non-legal opinion only and should never be construed to constitute legal counsel. 

The #CoimbraLaw Firm represents persons accused of misdemeanor or felony cases, including, DUI.  Attorney Lorgio Coimbra has successfully represented thousands of California criminal defendants throughout all Southern California Courts. If you or a friend or family member is facing criminal, traffic or DUI charges, or has been the victim of excessive force by law enforcement, please contact us at 1-855-385-5245 for a free evaluation of your case.