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Attorney Wayne
Attorney Wayne, Attorney
Category: Legal
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Experience:  Practicing law since 2000.
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What are the state code in Pennsylvania for dereliction of

Customer Question

What are the state code in Pennsylvania for dereliction of duty? I cannot locate them. My police won't enforce statute 172.052, or the national noise law of 1972, or EPA law CFR40-205. I attended the supervisor's meeting a few days ago and they are all apathetic.
Submitted: 1 year ago.
Category: Legal
Expert:  Attorney Wayne replied 1 year ago.
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Hello. Thanks for contacting us. I am sorry to hear that you have been brushed off by the local authorities.

The problem with dereliction of duty, as a cause of action, is that outside of the military, it is not a crime. It could be grounds for workplace discipline, but police departments are given wide leeway to decide how to deploy their limited resources. Unless ordered to do so by the political leaders elected to office to supervise (for instance, a mayor, or a county executive or the governor or attorney general), then the police commanders themselves have discretion when to crackdown on a particular unlawful act.

However, there is a legal remedy. It requires going to court to seek a "Writ of Mandamus." This is just lawyer's Latin for a court order that compels a government agency to do something that it is supposed to do, but is not doing.

You can read the PA law on this at this link:

http://www.pacode.com/secure/data/231/chapter1000/subchapFtoc.html

There's an informative section in the Pennsylvania Legislature's lawmaker handbook that deals with Actions in Mandamus, that you can read at this link:
http://www.lgc.state.pa.us/deskbook06/Issues_Governance_10_Discretionary_Ministerial_Acts.pdf

As you'll see in this item, the key to winning a Writ from the court to force enforcement of a law is to overcome any argument that the police or local authorities are not using their legal discretion to decide how to prioritize or deploy limited resources. Winning requires showing that the public official has no discretion and must take the action one seeks.

It does happen that when someone files, public officials take notice and may actually do something simply to make the distraction of a court case go away. But this is not always true.

If the issue turns out to be in the public officials' discretion, then the best solution may be political. Citizens, particularly with local governments, can have a lot of power to force changes in the way laws are enforced. This can be done by organizing others who want the same level of enforcement, or even running for office (or finding someone who is willing to run for office and, if victorious, can change the choices made by local enforcement officials).

Please let me know if anything requires clarification.

I wish you every success in your efforts.
Customer: replied 1 year ago.


Okay, thanks so much. I have a few more questions.


 


I go to the prothonatary to file this complant?


 


Also, two cases State V Lara and Everett V O'Brien both were upheld by the superior court because the state statute cannot be adjusted and must be upheld. The judges refused to accept that argument that the statute was unconstitutional.


 


So, do you think I have a chance since they are adding to pollution by noise and air and are refusing to uphold the state statute and the environmental law?


 


Thanks,


Mary

Customer: replied 1 year ago.


I forgot one more thing?


 


Can the supervisor who is the liason for police department be cited for malfeasance since he is not insisting the police chief enforce the law?

Customer: replied 1 year ago.


Can also file a suit against them with an attorney because the higher courts have always ruled in favor of the state statute being upheld in similar cases. I am also going to videotape a bike ride this weekend because friends I know have said that you can tell a motorcycle is illegal just by looking at it so do you think it will help if I have this evidence? I hope there is one of our police officers there so I can also film doing nothing about it too.

Expert:  Attorney Wayne replied 1 year ago.
Hello again, Mary.

In response ot your series of follow-ups:

(1) I go to the prothonatary to file this complant?
The statute instructs:

An action may be commenced by filing with the prothonotary

(1) a complaint, or

(2) an agreement for an amicable action.

 

(2) So, do you think I have a chance since they are adding to pollution by noise and air and are refusing to uphold the state statute and the environmental law?

 

As I mentioned (and as discussed in the second document I linked), it will be neccessary to show that there is no discretion; the law requires that the public officials do the thing requested. That will take a good tight reading of the statute - not with an outcome in mind, but to find language that makes action by the public official mandatory. These often say things like: "the ..... official shall ...." If there's a choice, then there is discretion and it will be harder to win a Mandamus Action. You'd have to read the entire case you site (that mentioned constitutional issues) to determine exactly what the public official did not do -- to see if it was discretionary or mandatory. If a statute requires an unconstitutional act be done without any discretion, the way to avoid doing it if one is to get a court ruling that it is unconstitutional so it can't be enforced -- not simply to refuse to do it.

 

An extreme case of such an unconstitutional act would be if a state passed a law requiring police to interrogate anyone they find speaking Spanish to see if the person is legally present in the U.S. The mere act of speaking Spanish is protected by the First Amendment -- but the police officer or a citizen would need not just to refuse, but mount a constitutional case challenging the application of the law or its entire presence in the local code.

 

This means facts matter when raising any case -- facts and laws together lead to legal decisions. So to answer this, one must read the cases and see if there are analogies.

 

(3) If there is a strong case, it is certainly worth having an attorney take it up. It may even be possible to find someone who will take it without charge. That lawyer would have to look at all the facts and circumstances (and, in a Mandamus case, the case law) to advise best.

 

(4) Malfeasance -- that's the same thing as dereliction of duty. Its just a synonym. If the law is mandatory, and he or she does not enforce it, then it would be an act contrarty to the law, not a general thing like malfeasance or dereliction of duty. If the local officials won't force the issue, or won't take disciplinary action, then state or federal environmental officials may. You might wish to bring this to their attention (for instance, the EPA in Washington, or the State Attorney General's office in Harrisburg).

 

I wish you speedy resolution in this matter.

Attorney Wayne, Attorney
Category: Legal
Satisfied Customers: 1506
Experience: Practicing law since 2000.
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Customer: replied 1 year ago.

Hello Atty. Wayne,


 


I have a question for you. Another attorney in here, legal guru, when I asked her another question, said that I could not file a mandamus and I was given incorrect information. She said that any attorney would have known this information. Can you please tell me who is right and who is wrong? I need to know so I know if I should bother pursuing it or just go to the small claims court and file under the neighbor law.


 


Thanks,


Mary Anne

Expert:  Attorney Wayne replied 1 year ago.

Hi Mary Anne.

 

Sorry if there was a seeming conflict. I'd have to see the exact wording of your question and the other expert's response before getting into any conflict over who is right.

 

The law can be technical and,often, not subject to yes or no answers (that's why there are lawyers who make arguments). How you put the question can then frame the answer. You began with me by asking about the law of dereliction of duty. I responded that there was nothing specific in civilian law that would be a crime, but told you that courts can sometimes order a public official to do something that he or she is not doing that should be done. I then gave you the Pennsylvania Law on mandamus, in full. I also told you that these are hard cases to pursue because a court will not issue a Writ of Mandamus unless the public official does not have discretion (that means the ability to choose) whether to do something.

 

I also explained how it is hard to make a Mandamus case because public officials that police things (like environmental laws) have wide discretion and can choose how to deploy limited assets (enforcement manpower, money etc).

 

I really understand that people would like simple yes and no answers -- but not everything is amenable to simple answers, especially in the law.

 

I think if you re-read what I actually posted (it is all available above), I gave you information about how mandamus works and how it could function as one possible tool (although it is, as I said, not an easy case because one must first prove that the public official had no legal discretion and had to act in a certain way.)

 

I hope this, in combination with the information and tools provided above, will allow you to make an informed decision about how to proceed.

 

I again wish you all the best in your efforts!

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