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This is an unusual situation, probably not what you are expecting.

A few years ago, my addicted son would demand money from his mother (my wife) while I was at work. She would say no, but he wouldn't take no for an answer. He always had a excuse for needing the money, such as a car repair or whatever. After saying no twenty times, she would finally give in and just give him money just to get rid of him, often $50 to $100 per day! This went on for months.

Finally, one day my wife decided to stand firm and refuse to hand over the money. But he needed it so badly that he just took it from her, pushing her around a bit but not causing any serious injury. So she decided to call the police and file a report.

We heard nothing about it for several months, and my son got into treatment and was making progress in the meantime. Then one day we got a letter informing us that that our son was going to be charged with a FELONY! We told the DA that we wanted him to learn a lesson, but we absolutely did not want him charged with a felony. They didn't care what we wanted -- even though we were the victims!

We hired a private lawyer, but he didn't do much, claiming that taking it to trial would be very risky. Our son ended up spending 45 days in jail and now has a felony. He has a chance to have it expunged, but he relapsed and does not appear to be on track to do that.

I am amazed that the DA insisted on charging our son with a felony when we, the victims, did not want that. As far as I am concerned the DA did more harm to us than our son did to start with. With a felony on his record, he will have a much harder time finding employment and is much more likely to be dependent on us for the rest of his life.

Is it possible for us to sue the DA in Santa Clara County California for charging our son with a felony against our wishes when we were the victims?

6 Answers6

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In the United States, a crime is not prosecuted on behalf of the victim. Crimes are offenses against a sovereign, and are prosecuted on behalf of that sovereign. Prosecutions in California are brought on behalf of "the People of the State of California:" you have violated their laws, and you are being punished for that. The state constitution gives crime victims the right "[t]o reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case." What it does not give is the right to decide on any of those issues. That decision is made by public prosecutors on behalf of the state and the public writ large.

cpast
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That is prosecutorial discretion in action: The DA is not bound by anybody in who to prosecute or not prosecute unless there is an Attorney General, who really is unbound as the superior of the DA. The DA/AG needs nobody's permission or ok or even backup. Not even the Gouvernor or the POTUS could stop a DA/AG determined to not bring a lawsuit and they could only stop them from doing so by issuing a pardon. The DA/AG is the one person that can decide that, nobody else. If they decide it happens, it happens. They decide not because you as the victim want something or not, but because they decide where they deem to best allocate the resources of their office for maximum effect.

The Prosecutor also enjoys absolute (prosecutorial) immunity for deciding who to charge and who not if they have probable cause (but not if they try themselves at investigating crime, see Buckley v. Fitzsimmons, 509 U.S. 259 (1993)). That means it is not possible to even bring such a lawsuit as the victim against a DA if they have acted properly and it is not malicious prosecution, and if brought it has to be thrown out the moment it is filed. Prosecutorial immunity is better protection against charges than the police get. Police gets qualified immunity, which can be in theory defeated if one can prove they violated some rights, but that is a very high bar still. Now Absolute Immunity has an even higher bar, that can't be reached at all unless the prosecutor engages in really extreme misconduct - like the subject matter of Buckley. There literally is (almost) no remedy against a DA/AG - or judges for the matter - that misuses his office without outright breaking his capacity but to catch them in a criminal act that is separate from the office. Like the judge that ordered a lawyer beaten up from the bench: He was immune from being sued for that.

Well, there is one way to get at a DA that improperly prosecutes: malicious prosecution which is the actual subject matter of Buckley, but also Thompson v. Clark, 142 S. Ct. 1332, 1342-43 (2022). In both cases, only the alleged criminal had standing. So no, the victim can't sue, making both cases not applicable to the question OP asked ('can the victim [of a crime] sue the DA?'). In either case, under both Buckley and Thompson, it needs to be shown that it is malicious prosecution, which requires that the prosecuted person either prevailed in the trial or the trial otherwise ended with the prosecuted person not being convicted. So, we need a non-convicted person. Only then we even can start to analyze the other two prongs: On one hand, the case needs to lack probable cause and it couldn't have succeeded for the prosecution in the first place. On the other hand, intent of the prosecution needs to be proven. Thompson only modifies the "old" standard before in that the case also can be just dropped by the prosecution and does not need to be dismissed. Taking the factors, not even the prosecuted and convicted person can sue, as two prongs are missing: The person was convicted (after a plea deal) and the report to the police, even if retracted, did give probable cause to prosecute.

Trish
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I am amazed that the DA insisted on charging our son with a felony when we, the victims, did not want that

Crimes are public concern by definition. They are prosecuted not because the victims want so, but to deter the criminal (and all potential criminals) from committing crimes in the future — potentially making more people victims.

Thus, what victims want is actually irrelevant. The state decides whether or not to prosecute entirely at its own discretion.

Is it possible for us to sue the DA in Santa Clara County California for charging our son with a felony against our wishes when we were the victims?

Most certainly no.

Greendrake
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This is an unfortunate situation. But the facts are: The prosecutor doesn’t need permission of you and your wife. Your son could easily have pushed your neighbour around a bit, and likely harder than his mother, so there was a reason to act. Your son stole from your wife using violence, that’s quite serious.

You will not be able to sue the prosecutor successfully. What he or she did was correct. It may have been possible for the prosecutor to decide to prosecute your son or not, that still won’t let you win the case. If the prosecutor acted in a way that no reasonable prosecutor should have acted (which isn’t the case here), you might have a chance - but not in this situation.

And remember it’s not just the prosecutor prosecuting, there was also a jury which decided beyond reasonable doubt that your son was guilty. That wouldn’t happen if the prosecutor had made a bad mistake.

gnasher729
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There is no way to even bring such a suit. It is somewhat unusual for a prosecutor to act as described in the question, but a prosecutor has wide discretion in when to bring charges under the law, and has immunity from suit for such official acts.

There is no law requiring a prosecutor to obtain the permission or approval of a crime victim before bringing charges. Your son's lawyer could have used his rehab progress to argue for more lenient treatment, and perhaps s/he did, and the outcome was the best available in the circumstances. I have no way to know.

Such a suit as the question suggests would, I believe, be tossed out at once. If you want to be sure, consult an actual lawyer. I would be very surprised if you got any other answer.

I do not assert that the prosecutor's actions were wise or good policy; only that they were within his or her legal authority.

David Siegel
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Prosecutors can be sued——Malicious prosecution

Despite knowing and reckless false statements or conclusory assertions of law in some of the answers above, and possible public misconceptions: There are grounds for one to sue prosecutors for prosecutorial misconduct, it is called malicious prosecution, which is rooted in part in the U.S. Constitutions Fourth Amendment's which, as relevant herein, provides that

"The right of the people to be secure in their persons […] against unreasonable […] seizures, shall not be violated[.]"

It is well-settled, that it is not merely a prohibition on the government, but, in fact, “the Fourth Amendment gives "each person ... the right to be secure against unreasonable […] seizures in his own person[.]" Minnesota v. Carter, 525 U.S. 83, 92, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Scalia, J., concurring)”". Byrd v. United States, 138 S. Ct. 1518, 1531 (2018)

In fact, the cause of action for malicious prosecution also existed based on the common law. Thompson v. Clark, 142 S. Ct. 1332, 1342-43 (2022) ("Thompson")

"American courts described the elements of the malicious prosecution tort as follows: (i) the suit or proceeding was "instituted without any probable cause"; (ii) the "motive in instituting" the suit "was malicious," which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice;" and (iii) the prosecution "terminated in the acquittal or discharge of the accused." Thompson, supra, 1338 (2022)

“In accord with the elements of the malicious prosecution tort, a Fourth Amendment claim under § 1983 for malicious prosecution requires […] the plaintiff need only show that the criminal prosecution ended without a conviction.” Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022)

However, "[a] comparison of the elements of the malicious-prosecution tort with the elements of a Fourth Amendment unreasonable-seizure claim shows that there is no overlap. That is, a plaintiff suing for unreasonable seizure need not prove any of the elements of common-law malicious prosecution, and a plaintiff suing for common-law malicious prosecution need not prove any of the elements required to establish an unreasonable seizure." (Thompson, supra, at p. 1342)" (bold type added)

Lack of sanity defense—the legal capacity of a substance addict

As common sense dictates: A person that loses control under the mounting psychological (or even physiological) pressure of drug addiction may lack ability to be deemed to have legal capacity for his actions to be rendered moral value absent which such actions are amoral, and their criminal condemnation are immoral, and potentially criminal.

"Is the problem materially different if the failure of the judge properly to exercise his judgment stems from the influence of illegal drugs rather than the influence of illegal money? We think not. In both cases, the litigant is deprived of the untainted judgment to which he is entitled by our Constitution. In this respect, we agree with our dissenting colleague that "corruption (a species of bias) and incapacity are cut from the same cloth . . .," but we do note an important difference: a corrupt judge has a choice; by definition, an addict driven by compulsion does not. An addict is an addict 24 hours a day, seven days a week." Summerlin v. Stewart, 267 F.3d 926, 956 (9th Cir. 2001) (bold type added)

As said above, common sense of an ordinary, reasonable person would lack the requisite belief that it was more likely than not that a person under the psychological (and/or physiological effects) of substance addiction is acting in their own free agency as a sane person.

And that is a problem. Because "in dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id., at 175. Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981)” Illinois v. Gates (1983) 462 U.S. 213, 231) (bold type added)

Even a reasonable and prudent man would not believe it was more likely than not that the son's judgement was clear of irresistible influence to permit him to act freely which would not permit such ordinary person to believe a crime, with the underlying moral value of a sinful mind, existed let alone a "legal technician" like a prosecutor.

Although, the primary duty to identify a potential defense of insanity is imposed on counsel, since counsel is obligated to act any time there are "sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency[;]" (Stanley, 633 F.3d at 862 (9th Cir. 2011) (italics added) and "[s]ince an objection to the [presumption or conclusory assertion that the son was sane at the time of the commission of prosecuted act or acts] would have been adjudicated outside the presence of the jury, there could be no satisfactory tactical reason for not making a potentially meritorious objection" (People v. Pope, 23 Cal.3d 412 (1979)) not only before the never-happened jury trial, but even before "taking" the "deal", a prosecutor must also cease prosecution (see above, malicious prosecution and false imprisonment torts) and throw the towel in no matter how much it hurts their little ego, and concerns their mom's and pop's dream to see their one and only become a state congressman/congresswoman etc.

Further, the judges themselves must also raise the question of sanity should they notice it, and once again, no half-prudent and half-reasonable person would deem a substance user with a lengthy history of such facts as outlined above (continuously, and repeatedly demanding money for drugs) and admittedly (by the "victim") that the amoral acts to the mother's detriment occurred during the time when "[the accused] needed [the money for the substance] so badly that he just took it from [the mother "victim"], pushing her around a bit but not causing any serious injury" not have been in possession of legal capacity at the time of the amoral acts.

Conclusion

In a half-decent society the dire violation of the Due Process of the law ((U.S. Const. Amndt. V. and XIV.), to the effective assistance of counsel (U.S. Const. Amndt. VI.) and to be free of unreasonable seizure to be ordered before the court and imprisoned (U.S. Const. Amndt. IV.) would be mercilessly retaliated on in the legal process, the son acquitted, sent to aversion and treatment, and be ordered to be paid damages to under § 1983 for malicious prosecution and false imprisonment without the due process of law.

You can; however, rest assured you will not find a lawyer that you don't pay out of pocket to even take the case——just look at some of the answers even the most benign, and well-intended——unless it is close family including mothers, fathers, children, siblings or spouses. Even when you will manage to get a lawyer at your own cost, the case will be preempted because should a lawyer stir up the pot too hard, you can rest assured the otherwise doing-nothing-but-covering-up State Bar of California (see "State Bar doesn’t police attorneys or itself closely enough, state audit finds", SF Chronicle) will step out of its shadows to reprimand, disbar or otherwise discipline the lawyer to step back in line, and keep it light and fun which will almost certainly never escalate to such a point as attorneys know this very well before hand so they will not even get to it.

Lesson to be learned?

If you have a problem with your family member maybe don't try to use the most dire measures to call in the police state because they will act as a police state does. Civil action would have been more than sufficient to get a restraining order and allow the child back in the house on your terms, and maybe thereby compel them to seek or accept help to treat the addiction after you screwed up parenting to the point they became a substance abuser and addict. (Don't forget: The only reason they are on this planet was doing at your own hands only and that sort of moral responsibility is infinite.) Now, if this is a middle class or well-off Saxon family in California you may also take this as my moral judgement. I hope the child will get the help they need, and will recover from all these scars.


Answers to comments:

@Jen: The whole point of Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022) was to consolidate the requisites under the statutory cause of action with the common law one for malicious prosecution. The facts presented allow for both to be applicable; the common-law and statutory cause of action for malicious prosecution are substantially the same especially for purposes of this question and so are they treated.

@John Bollinger: “prosecutors' absolute immunity isn't exactly with that term might be taken to imply,that's not responsive to the question posed.” Incorrect. The facts provided by the parents to the police and indirectly to prosecutors provide for no reasonable person to believe probable cause existed since lack of mental competency was established clearly and convincingly hence more-likely-than-not basis indisputably did not exist for the commission of any crime charged. The due process of law would have first required that the prosecution presents evidence to rebut the established fact that the child did not, in fact, lack legal capacity. The prosecution was initiated without probable cause for a crime was committed absent a requisite mens rea, and was maintained without it. That’s how Thompson relates to these facts.

kisspuska
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