An example of a tough change in government policy is challenging Pennsylvania’s expungement statute. The statute is:

18 Pa.C.S.A. § 9122
- (a) Specific proceedings.–Criminal history record information shall be expunged in a specific criminal proceeding when:

(1) no disposition has been received or, upon request for criminal history record information, no disposition has been recorded in the repository within 18 months after the date of arrest and the court of proper jurisdiction certifies to the director of the repository that no disposition is available and no action is pending. Expungement shall not occur until the certification from the court is received and the director of the repository authorizes such expungement;

(2) a court order requires that such nonconviction data be expunged; or

(3) a person 21 years of age or older who has been convicted of a violation of section 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) petitions the court of common pleas in the county where the conviction occurred seeking expungement and the person has satisfied all terms and conditions of the sentence imposed for the violation, including any suspension of operating privileges imposed pursuant to section 6310.4 (relating to restriction of operating privileges). Upon review of the petition, the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation relating to said conviction.

(b) Generally.–Criminal history record information may be expunged when:

(1) An individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision; or

(2) An individual who is the subject of the information has been dead for three years.

(b.1) Prohibition.–A court shall not have the authority to order expungement of the defendant’s arrest record where the defendant was placed on Accelerated Rehabilitative Disposition for a violation of any offense set forth in any of the following where the victim is under 18 years of age:

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 3126 (relating to indecent assault).

Section 5902(b) (relating to prostitution and related offenses).

Section 5903 (relating to obscene and other sexual materials and performances).

(c) Maintenance of certain information required or authorized.–Notwithstanding any other provision of this chapter, the prosecuting attorney and the central repository shall, and the court may, maintain a list of the names and other criminal history record information of persons whose records are required by law or court rule to be expunged where the individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program. Such information shall be used solely for the purpose of determining subsequent eligibility for such programs and for identifying persons in criminal investigations. Criminal history record information may be expunged as provided in subsection (b)(1) and (2). Such information shall be made available to any court or law enforcement agency upon request.

(d) Notice of expungement.–Notice of expungement shall promptly be submitted to the central repository which shall notify all criminal justice agencies which have received the criminal history record information to be expunged.

(e) Public records.–Public records listed in section 9104(a) (relating to scope) shall not be expunged.

(f) District attorney’s notice.–The court shall give ten days prior notice to the district attorney of the county where the original charge was filed of any applications for expungement under the provisions of subsection (a)(2).

Part C allows the prosecuting district attorney’s office, the central repository, and the court to maintain a record of the arrest even though the purpose of the expungement is to obliterate the record. The record can only be maintained for purposes of determining whether people are eligible for future diversion programs like future consideration for a second ARD (accelerated rehabilitative diversion) application. Also, to maintain the police arrest photo for future identification issues in future crimes.

Is Part C legal? What happens if the district attorney or the state police use the information for another purpose? Should citizens have some guarantee the information is only used as it states under Part C?

If you have a situation where the government is enforcing its power against you by an action not authorized by statute, you may have a civil rights action against the government to change policy.

This is the hardest question to answer. Everyone thinks their case is worth a million bucks, but most cases aren’t worth close to that amount. Also, in some cases, people may want declaratory relief, which I will save for a later post (meaning the courts force the government to change a policy).

When I look at a police brutality case for financial damages I ask many questions in my assessment:

• What were the extent of the physical injuries? Was there a hospital visit? How much is the hospital bill? What happened at the hospital? What were you treated for: gun shot wound, concussion, broken bones, stitches, etc? Is there any continuing treatment: are you in physical therapy as a result of the injury? If you were incarcerated, did the prison give you medical treatment? When you were released from custody, did you take yourself to the hospital? Is there a diagnosis that had you been given treatment in custody, you would not have the same injury, or would the injury have been not as bad?
• What was the true outcome of the criminal case? How did the criminal case resolve? How much did you pay a criminal lawyer to represent you in the criminal case?
• Were you incarcerated for any period of time as a result of the false arrest? What was the length of time? Was the length of time related only to this instant case, or was the length of your incarcerated due to other issues plus this case?
• Did you miss any time at work? Did you lose your job?
• Has the police officer every done this before?
• Is what happened to you something that happens to people all the time and the city or county should have changed a policy that would have prevented this incident?
• Compared to other instances of police misconduct, how outrageous is your case? Are the actions of the police officer unique in the instant case?

There are many other factors that we look at when trying to assess damages in civil rights cases, but this should be enough to give you an idea of basics.

We have prosecuted very small cases where police are simply confiscating cell phones and destroying them because people are video taping police conduct. We have also prosecuted some very big cases where people have been shot by the police. All of these civil rights cases have value, but analyzing a case’s value is dependent on all of the factors listed above.

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