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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 32364
Experience:  Began practicing law in 1992
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Who is in charge of enforcing State civil and criminal codes. My local police (Oakland, CA

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Who is in charge of enforcing State civil and criminal codes. My local police (Oakland, CA) say it isn't them. Then who is it?

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

JD 1992 :

There isn't one particular agency in charge of all codes.

JD 1992 :

Is there a specific code you are asking about?

Customer:

CA Civil Code Section 1946.5 and CA Penal Code Section 602.3

JD 1992 :

The landlord and the local police and the District Attorney's office for that county would all be capable of enforcing those statutes and laws.

JD 1992 :

In addition, the State Police and the Sheriff's Department would also have jurisdiction to enforce the Penal Code section.

Customer:

I am the landlord. The county (sheriff, not specifically DA) said it is not their jurisdiction. The police say they are not trained on state laws and don't have to enforce them.

Customer:

I can give you the gory details of my case, but what I really need is a general but definitive answer.

JD 1992 :

The local police aren't telling the truth. Every criminal offense above a minimum misdemeanor is a state law so if they arrest anybody for burglary, theft, murder, or anything else above a local ordinance they are enforcing state laws.

JD 1992 :

Even speeding tickets are generally governed by state laws although there can also be municipal ordinances involved.

JD 1992 :

That is an absolute answer, no question about it.

JD 1992 :

However, their enforcement of the law isn't mandatory, they can choose not to enforce it.

Customer:

whaaaaat? what on earth does that mean?

JD 1992 :

What part?

Customer:

what is a law if it doesn't have to be enforced?

JD 1992 :

The US Supreme Court said a number of years ago that if a police department doesn't enforce a law they can't be sued for it.

JD 1992 :

Police officers choose not to enforce laws every day.

JD 1992 :

For instance, anyone who is spotted doing a mile over the speed limit could be stopped and given a ticket but they aren't.

Customer:

my case is much substantive than that. can i give you the details? i have a short 2100 character story prepared. :-)

JD 1992 :

Sure.

Customer:

My specific question/situation is this:

I own my home in North Oakland. For many years I have rented out a bedroom to help pay the mortgage. I have RELIED upon the California laws regarding LODGERS (as opposed to tenants), ie, CA Civil Code Section 1946.5 and CA Penal Code Section 602.3. I believed these laws were passed to PROTECT people like me, by making it easy to remove someone from my home if necessary.

In January 2013 I had to ask a lodger to leave, when I found him dealing drugs out of my home. I gave him notice as required by these laws. But he refused to leave after his rent ran out, saying he had nowhere to go. Since my grandchild and a new lodger were expected, I offered to pay for a hotel room -- but he declined. So, I called the Oakland Police and asked them to remove him as a trespasser, BECAUSE THEY ARE REQUIRED TO DO SO by these laws.

However, OPD REFUSED TO ENFORCE THE LAWS, saying they had not been trained on them, even though I gave them printed copies. DESPITE THE LAWS EXPLICITLY SAYING OTHERWISE, they told me they considered this drug dealer to be a TENANT who could stay essentially as long as he wanted to. Then OPD left.

So, I used reasonable force to remove the trespasser myself, WHICH IS CLEARLY ALLOWED BY THESE LAWS. HE then called OPD, and OPD ARRESTED *ME* FOR ASSAULT. I spent the night in Santa Rita Jail, although the DA refused to press charges.

I made a claim against the City of Oakland for the $500 bail etc, which they denied. Thus I need to bring a court case against Oakland in order to recover this money. HOWEVER I HAVE BEEN UNABLE TO FIND AN ATTORNEY willing to represent me. They say “You don’t have a case, because the police can do whatever they want”.

So, my questions to you are:

When the California Legislature goes to all the trouble of passing State laws, what mechanism is in place for the ENFORCEMENT of these laws? Aren’t local police required to enforce State laws? Or is it true we live in a police state, where the police can do whatever they want? Thank you.

JD 1992 :

Unfortunately, there is no mechanism in place to force the police to enforce laws.

Customer:

I am dumfounded. What's the point of passing laws, then?

JD 1992 :

The police can enforce them when in their judgment they choose to do so.

JD 1992 :

I'm not saying I agree with the interpretation by the courts, but that is what they have said.

JD 1992 :

In essence SCOTUS said that police can be sued for affirmative actions but not for refusing to perform actions.

Customer:

Arresting me for doing something perfectly allowed by law, was an affirmative action.

JD 1992 :

That's correct and if you can prove it is a violation of your civil rights then you can sue.

Customer:

Is that hard to do?

JD 1992 :

Pretty hard. Civil rights law is extremely specialized and most lawyers don't do any of it. You can find one in CA who does it by going to www.lawyers.com and looking under that specialty in CA

Customer:

So anyone in California could take the case, ie, not just in my city/county?

JD 1992 :

Yes, any lawyer in CA can sue anywhere in CA.

Customer:

ok. sheesh you know i talked to a couple of lawyers who specialize in suing the oakland police for civil rights violations. they said they can't take my case because they are too busy with cases where the person DIED or was disabled in custody. :-(

JD 1992 :

That is one issue you are going to face, the fact that the damages are minimal in your particular case.

JD 1992 :

You may want to contact the ACLU and see if they are interested.

Customer:

this is all mind-blowing. anyway thanks for your help. hey can you give me the scotus decision that police can't be sued for non- action?

JD 1992 :

Hold on just a second and I'll see if I can find it for you.

Customer:

thanks

JD 1992 :

There are a couple. One is DeShaney v. Winnebago County and another is Castle Rock v. Gonzales, No. 04-278

JD 1992 :

Then those two cases will cite some others.

JD 1992 :

Those are dealing with the issue in the context of no "duty to protect" but the concept is the same.

Customer:

wow. well thanks. what state are YOU in? :-)

JD 1992 :

I am from Texas but I'm in Lousiana and Ive handled cases all over the US.

Customer:

you interested in this one?

JD 1992 :

No, I'm mostly retired now and just do a little trial consulting.

JD 1992 :

I didn't do civil rights cases anyway.

Customer:

ok well good for you. thanks for being so helpful... altho this sure isn't what i wanted to hear... have a good night.

JD 1992 :

To you as well.

JD 1992 :

Best wishes to you. Please don't forget to leave a Positive Rating (of course I'd suggest Excellent) so I get credit for my work.

Dwayne B. and 3 other Legal Specialists are ready to help you
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR JD 1992” in the subject line or as the first words of your question and I will pick up as soon as I see it.
Customer: replied 3 years ago.

I am still recovering from the shock of your helpful but depressing answer. Someone should make a documentary called "No Duty To Protect" or etc. Anyway if I come up with any more questions, I will certainly contact you as you describe. Thank you again.

You're very welcome. Hopefully I'll have a more positive answer on a different question.