What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
My question involves civil rights in the State of Ohio.
I can't seem to find a definitive answer on what the SOL is to bring suit in federal court against a police department and other liable officials for selective prosecution. Also, similarly but unrelated to the former, I'm seeking information on the SOL and venue for a wrongful arrest suit (no warrant was issued prior to the arrest, no probable cause existed when the person/defendant was arrested after a vague complaint was filed; meanwhile, the same complainant committed a violation of a protection order, where the former arrestee filed a complaint/report, with evidence/proof, yet that person was never arrested or charged). Also, the charges were later dismissed by the trial court as to the defendant via Rule 29 in the original arrest and jail time spent--i.e., the complainant lied and was disproven.
Please, no responses from posters with an agenda--I'm merely looking for objective input and I won't entertain responses from offended or defensive judges or attorneys who can't simply be objective. This stuff happens everywhere, all the time, and very few citizens are able to properly challenge the state on its b/s and see to it that officials are held responsible.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
You don't get to "bring a suit" for selective prosecution. Selective prosecution is a defense raised in your criminal trial. Further, I don't see anything in your case that even begins to look like selective prosecution.
As for wrongful arrest, you'd best speak to an attorney. Just because you were innocent doesn't make it wrongful. Just because the complainant lied, doesn't make it wrongful. You only have one year from when the action accrues to bring such a suit.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
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Mr.Inquisitive
I can't seem to find a definitive answer on what the SOL is to bring suit in federal court against a police department and other liable officials for selective prosecution.
It's going to depend on what sort of cause of action you allege as a result of the supposedly selective prosecution. Is your claim, for example, based upon a claim of racial discrimination -- e.g., although many people are investigated for similar conduct, the decision to charge shows a clear pattern of racial discrimination? Is your claim that you were selectively targeted prosecuted for your prior exercise of your First Amendment rights? You need to identify the actual cause of action before you can identify its associated limitations period.
If you prevailed after a Rule 29 motion, then the case got all the way through at least the close of the prosecution's proofs at trial before you obtained a dismissal.
For a wrongful-arrest claim to succeed under 42 USC Sec. 1983, it is not only necessary that the officers lacked probable cause to make an arrest, but also that there was no basis for the officers to reasonably but mistakenly conclude that probable cause was present". It's all-but-impossible to show a lack of probable cause for arrest when a prosecutor independently finds probable cause based upon the police investigation, and where the case gets all the way to trial without your succeeding in convincing the court that there is no basis to proceed.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
Thank you Mr. Knowitall, that gives me a little more insight. And I found this, flyingron:
To support a claim of selective prosecution, a defendant bears the burden of establishing unconstitutional discrimination in the administration of a penal statute. United States v. Gutierrez, 990 F.2d 472, 476 (9th Cir. 1993). In order to establish a prima facie case of selective prosecution, a defendant must show both "(1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e. discriminatory purpose or intent." Id. at 475 (emphasis added). See also United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992).
You're saying I have no cause of action to sue??
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
So far you haven't identified any impermissible motive or unlawful discrimination.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
I would say it's difficult to pinpoint the reason for their selectiveness, but my best guess is the person has a prior violent record is why they disregarded his complaint/report with evidence--which is still no less discriminatory or wrong. More specifically as to what did occur, he first went to the police department directly after being assaulted by his ex-girlfriend, bearing scratches and obvious marks from her hitting him, and the officer there refused to allow him to submit a report and told him to go to domestic relations court the following Monday (true story). He has an actual audio recording of the assault taking place (via a smartphone recording app, converted to audio disc), and took photographs.
About 2 weeks later, she swung her fist at him when he dropped their daughter off to the mother (the ex), and he then went home and contacted police and filed a report after an officer was dispatched, giving a statement as to both occurrences. No warrant was issued nor arrest was made, and he contacted the detective who was assigned with the complaint; he stated he submitted a warrant request and forwarded it to the warrant officer. So, he then went to the courthouse to speak to the warrant officer after calling to find out what the status was a few days later, also presenting his audio and photographic evidence (beyond dispute he was assaulted by her, noting also that she never made a report alleging he assaulted her). The magistrate had initially denied issuing a warrant. The file was supposedly submitted to the magistrate who issues warrants afterward, for a second review, and he called a week later and spoke to the warrant officer yet again, who told him the magistrate is not issuing a warrant or pursuing criminal action.
That was separate from the protection order violation dismissal, and there was no protection order in place at the time of the assault. Clearly he was wronged, for had she been prosecuted, the latter events (which have not been discussed) would have taken a drastic turn. So, what is his best recourse?
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
Considering somebody's prior criminal record when making a charging decision is not an unlawful form of discrimination. If that's all you have, you have nothing.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
That's unfortunate, but I appreciate your input and I'll pass on the information. Doesn't the state have a duty to prosecute someone when sufficient evidence is presented up front, or at least probable cause though? There's a ton of misleading and ambiguous information on the Web, but I've seen quite a few pages that seem to suggest that one would have a cause of action under these circumstances. Would it make a difference or be a requirement if the recipient of the original domestic violence (which was ignored) was later prosecuted for a domestic violence himself by the ex who initially attacked him? That would seem to be a blatant display of selectiveness, going after one but not the other.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
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Mr.Inquisitive
Doesn't the state have a duty to prosecute someone when sufficient evidence is presented up front
Nope.
Re: What is the Statute of Limitations on Bringing a Selective Prosecution Lawsuit
Again that whole section is talking about (did you bother to even read the cases cited) people who are charged for a crime arguing that even if they did actually violate the statute that the law wasn't enforced other than to discriminate against them. As I told you, it's a defense you make to exculpate yourself at a criminal trial. It is not something you can start a civil suit over.