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Timothy D. Smith, Esq.
Timothy D. Smith, Esq., Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Patent Bar Certified
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I was found guilty of resisting arrest in a simple traffic

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I was found guilty of resisting arrest in a simple traffic stop in California. However, the police officer broke my elbow in an excessive use of force. Do I have a police brutality civil case?
Submitted: 7 months ago.
Category: Intellectual Property Law
Expert:  Timothy D. Smith, Esq. replied 7 months ago.
I hope this message finds you well, present circumstances excluded. I am an attorney with over 10 years experience dealing with criminal matters and litigation, among other things. It is an honor to assist you with this problem.

Generally speaking, obviously without having seen the video of the incident, if a person receives a broken bone during an arrest, there is a good chance that the police have overstepped their bounds and committed what could be termed police brutality unless they can argue this was necessary to protect themselves in upholding the law.

Before you file suit, you need to first file a complaint in formal fashion with the police department. In a civil suit, the court will look to see if you followed this step. If you did not, the defense will attempt to use your lack of filing a complaint against you.

Since you received a severe injury and since it was caused through interaction with the police, you may also want to contact your local FBI Office (normally in your nearest federal courthouse) and file a complaint against the police department and officers involved. The FBI will request any and all evidence, including video. I have recently seen an officer for a state police agency indicted and convicted of brutality. He is also currently being sued and his agency is being sued as well.

In summary, file a complaint with the police department, file a complaint with the FBI relative to the officer and department and then look at filing a civil suit within a year of the event taking place so as to not be precluded from filing suit by any statute of limitations.

Let me know if you have any other questions or comments.

Best wishes going forward and get well soon.
Customer: replied 7 months ago.

Followup question: My lawyer had filed a civil suit initially in California Superior Court. However, he dismissed it without prejudice because the criminal case of resisting arrest was pending. Now that I was convicted in less than 30 days ago, and have served 7 days in jail, I want to know if I can file the civil case again. I know that the statute of limitations in the civil suit has not expired. Can I file it?

Expert:  Timothy D. Smith, Esq. replied 7 months ago.
You can still file suit based on the offense against you, no matter that you were convicted. The statute of limitations is 6 months in California from the incident in accordance with California Governmental Rule 910. You have to file faster in California than most states relative to suing the government.
Timothy D. Smith, Esq., Patent Prosecutor
Satisfied Customers: 1892
Experience: Patent Bar Certified
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