criminal-law california
Can a crime victim sue the prosecutor that prosecuted the crime?
<p>This is an unusual situation, probably not what you are expecting.</p>
<p>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.</p>
<p>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.</p>
<p>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!</p>
<p>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.</p>
<p>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.</p>
<p>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?</p>

<p>In the United States, a crime is not prosecuted on behalf of the victim. Crimes are offenses against a <em>sovereign</em>, and are prosecuted on behalf of that sovereign. Prosecutions in California are brought on behalf of &quot;the People of the State of California:&quot; you have violated their laws, and you are being punished for that. The state constitution gives crime victims the right &quot;[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.&quot; What it does not give is the right to <em>decide</em> on any of those issues. That decision is made by public prosecutors on behalf of the state and the public writ large.</p>

<p>That is <strong>prosecutorial discretion</strong> 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.</p>
<p>The Prosecutor <em>also</em> enjoys <a href="https://en.wikipedia.org/wiki/Absolute_immunity" rel="noreferrer"><strong>absolute (prosecutorial) immunity</strong></a> for <em>deciding who to charge and who not</em> 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 <strong>higher</strong> bar, that can't be reached at all unless the prosecutor engages in really extreme misconduct - like the subject matter of <em>Buckley</em>. 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.</p>
<p>Well, there is one way to get at a DA that <em>improperly</em> prosecutes: <strong><a href="https://en.wikipedia.org/wiki/Malicious_prosecution" rel="noreferrer">malicious prosecution</a></strong> which is the actual subject matter of <em>Buckley</em>, but also Thompson v. Clark, 142 S. Ct. 1332, 1342-43 (2022). In both cases, <em>only the alleged criminal</em> 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 <em>Buckley</em> and <em>Thompson</em>, it needs to be shown that it is <em>malicious prosecution</em>, which requires that the prosecuted person either prevailed in the trial or the trial otherwise ended with <strong>the prosecuted person not being convicted</strong>. So, we need a non-convicted person. Only then we even can start to analyze the other two prongs: On one hand, <strong>the case needs to lack probable cause</strong> and it couldn't have succeeded for the prosecution in the first place. On the other hand, <strong>intent of the prosecution</strong> needs to be proven. <em>Thompson</em> only modifies the &quot;old&quot; 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) <em>and</em> the report to the police, even if retracted, did give probable cause to prosecute.</p>

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<p>I am amazed that the DA insisted on charging our son with a felony when we, the victims, did not want that</p>
</blockquote>
<p>Crimes are <em>public</em> 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.</p>
<p>Thus, what victims want is actually irrelevant. The state decides whether or not to prosecute entirely at its own discretion.</p>
<blockquote>
<p>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?</p>
</blockquote>
<p>Most certainly no.</p>

<p>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.</p>
<p>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.</p>
<p>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.</p>

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