Who determines probable cause when a private criminal complaint is submitted?

[MDJschool]

Two weeks ago, at MDJ school, we went over the Rule 400 series of the PA Rules of Criminal Procedure, as well as part of the 500 series. These are the primary rules of criminal procedure that govern the process for summary cases and pre-trail phases of court cases. As we reviewed the rules on criminal complaints and the demands of MDJs once they receive them, be the complaints police or private, oddly absent was the explicit requirement that probable cause be found for process to issue. Although we will find that Article I, Section 8 of the PA Constitution will require probable cause for (both) arrest (and search) warrant(s), and the rules of criminal procedure appear to provide for such in court cases, and inevitably every case for a non-compliant defendant ends in a warrant, this leaves murky the area of summons. I swore I found the words probable cause in the particular rules I speak of, during past readings, yet they were absent just two weeks ago (PENNSYLVANIA RULES OF COURT, 2009 REVISED EDITION, WEST, 2009).

Here are the latest applicable rules from PaCode.com:

Rule 420. Filing of Complaint.
http://www.pacode.com/secure/data/23...ter4/s420.html
Rule 421. Procedure Following Filing of Complaint—Issuance of Summons.
http://www.pacode.com/secure/data/23...ter4/s421.html
Rule 502. Instituting Proceedings in Court Cases.
http://www.pacode.com/secure/data/23...ter5/s502.html
Rule 503. Complaint Procedure Generally.
http://www.pacode.com/secure/data/23...ter5/s503.html
Rule 506. Approval of Private Complaints.
http://www.pacode.com/secure/data/23...ter5/s506.html
Rule 508. Procedure Following Submission of Complaint to Issuing Authority.
http://www.pacode.com/secure/data/23...ter5/s508.html
Rule 509. Use of Summons or Warrant of Arrest in Court Cases.
http://www.pacode.com/secure/data/23...ter5/s509.html
Rule 513. Requirements for Issuance.
http://www.pacode.com/secure/data/23...ter5/s513.html

Perhaps I have just internalized the ideal that an implicit requirement of issuing process, or deciding to do so, naturally requires a finding of probable cause. Perhaps, however, the constitutions do not in fact provide for that, nor do the rules of criminal procedure.

There are cases on the matter, but I've only so far reviewed Com. v. Jury, which held, regarding a previous Rule 506 (under a different number), that the DA must determine whether a private criminal complaint affidavit contains probable cause (ETA: there seems to be a consider number of pre-2001 cases, when the rule was renumbered to 506, that reinforce the divide and levels of review for legal assessments vs policy decisions.) It was further held that a DA must accept a private criminal complaint that contains probable cause unless, as a matter of policy, the DA chooses not to prosecute such cases. As private criminal complaint denials are appealable as a matter of right to the court of common pleas, probably within 30 days of denial, the scope of review is de novo review as to whether probable cause actually exists on the private complaint, unless the DA has raised the issue of policy concerns, where there is a deference to the decision of the DA's, to only be overturned on a gross abuse of discretion, given the office's wide latitude in making such decision. Note that 'lack of prosecutorial merit' means that probable cause may or does exist but, that because a complainant is not required to prove beyond a reasonable doubt within the affidavit, the cause may not adequately be served by current resources or may simply be futile or otherwise unprovable (i.e. this is a policy decision.)

The state of law can be summed up by several citations. (Please note this was a search only of annotations; on occasion, West makes a bad annotation that indicates exactly the opposite of what the decision says. I haven't read any of the cases yet but Jury.)

[MDJschool]

Who has standing to file a private criminal complaint?
Only those individuals who are able to show that the crime at issue visited upon them a substantial, direct, and immediate injury have standing to seek judicial review of district attorney's disapproval of private criminal complaint; standing is not limited to the victim or the victim's family, because other individuals who are not related to the victim may be able to show the requisite injury. In re Hickson, 821 A.2d 1238, 573 Pa. 127, Sup.2003.
If complainant meets the common law standing requirements to initiate a private criminal complaint, then he also has standing to seek review of the District Attorney's disapproval in the Court of Common Pleas. In re Wilson, 879 A.2d 199, Super.2005.
To have standing, it is not sufficient for the person claiming to be “aggrieved” to assert the common interest of all citizens in procuring obedience to the law. In re Hickson, 821 A.2d 1238, 573 Pa. 127, Sup.2003.

Does a DA have an obligation to perform any investigation when in receipt of a private criminal complaint?
Even if the facts recited in the private criminal complaint make out a prima facie case, District Attorney cannot blindly bring charges, particularly where an investigation may cause him to question their validity; public prosecutor is duty-bound to bring only those cases that are appropriate for prosecution, and this duty continues throughout a criminal proceeding and obligates the District Attorney to withdraw charges when he concludes, after investigation, that the prosecution lacks a legal basis. In re Wilson, 879 A.2d 199, Super.2005.
While a private criminal complaint must at the outset set forth a prima facie case of criminal conduct, a well-crafted private criminal complaint cannot be the end of the inquiry for the prosecutor; District Attorney must investigate the allegations of a properly drafted complaint to enable the exercise of his discretion concerning whether to approve or disapprove the complaint. In re Wilson, 879 A.2d 199, Super.2005.
Some investigation into allegations of properly drafted private complaint may be necessary in order to enable district attorney to properly exercise discretion concerning whether to approve it, but such investigation is not necessary when allegations are unsupported by factual averments; both district attorney and trial court have responsibility to prevent misuse of judicial and prosecutorial resources. Com. v. Muroski, 506 A.2d 1312, 352 Pa.Super. 15, Super.1986.

What is a decision by a DA issued, pursuant to Rule 506(A), without unreasonable delay'?
Under version of rule in effect until July 1, 1996, trial court did not err when it reviewed whether district attorney was taking unreasonable length of time to consider criminal complaint petitioner filed with office, given that petitioner, who sought to file private criminal complaint with court on same matter, alleged that 15 weeks had passed since acts were committed and that petitioner filed petition with district attorney and had not yet received response. Com. v. Campbell, 686 A.2d 1318, 455 Pa.Super. 6, Super.1996.

Pursuant to Rule 506(B)(2), what is required as notice when a DA disapproves a complaint?
Where prosecutor seeks to rest decision not to prosecute private criminal complaint on policy grounds, prosecutor must prepare to come forward with clear statement as to particular policy that dictates withholding prosecution, as well as how that policy relates to particular facts being advanced by private prosecutor. Com. v. Brown, 669 A.2d 984, 447 Pa.Super. 454, Super.1995, appeal granted 678 A.2d 367, 544 Pa. 677, affirmed 708 A.2d 81, 550 Pa. 580.
When prosecutor disapproves of private criminal complaint based upon policy determination that it would not be in best interests of Commonwealth to prosecute, it is expected that prosecutor should be prepared to advance evidence that confirms establishment of policy, as well as corroborates its application to matters of similar, or like, import. Com. v. Brown, 669 A.2d 984, 447 Pa.Super. 454, Super.1995, appeal granted 678 A.2d 367, 544 Pa. 677, affirmed 708 A.2d 81, 550 Pa. 580.

What is the level of sufficiency required for reporting disapproval of a private criminal complaint?
Trial court did not abuse its discretion when it found that Attorney General failed to advance sufficient policy reasons in support of disapproval of private criminal complaint charging defendant with perjury; reasons advanced by prosecutor, obviousness of defendant's falsehoods and fact that defendant was already incarcerated on unrelated charges could not serve as policy for disapproval of complaint, and prosecutor offered no evidence that complaint was within policy of avoiding costly criminal prosecutions. Com. v. Brown, 669 A.2d 984, 447 Pa.Super. 454, Super.1995, appeal granted 678 A.2d 367, 544 Pa. 677, affirmed 708 A.2d 81, 550 Pa. 580.
Where the prosecutor believes the private affiant is attempting to utilize the justice system to redress grievances for which there are adequate civil remedies and conveys this rationale with the single phrase “affiant should file civil action,” the prosecutor sufficiently sets forth a clear statement as to the particular policy that dictates withholding prosecution of private criminal complaint. Com. v. Cooper, 710 A.2d 76, Super.1998.
District attorney expressed sufficient policy reason for disapproving private criminal complaint, to effect that individuals cannot dictate to Commonwealth who and when to prosecute, where complaint was filed after complainant declined several months earlier to press charges for burglary because he was intimately involved with one of the three suspects, and sought to prosecute some but not all parties allegedly responsible. Hearn v. Myers, 699 A.2d 1265, Super.1997.

For what categories of reasons may or may not a DA disapprove a complaint?
Once private criminal complaint establishes prima facie case, prosecutor cannot rest disapproval of complaint on legal assessment of the complaint. Com. v. Metzker, 658 A.2d 800, 442 Pa.Super. 94, Super.1995.
District attorney had discretion to disapprove private criminal complaint based on determination that case lacked prosecutorial merit. Com. v. Metzker, 658 A.2d 800, 442 Pa.Super. 94, Super.1995.
In determining whether to approve or disapprove private criminal complaint, district attorney may rely on either legal assessment of complaint, or wholly discretionary matters of policy. Com. v. Jury, 636 A.2d 164, 431 Pa.Super. 129, Super.1993, appeal denied 644 A.2d 733, 537 Pa. 647.

To what latitude might a DA enjoy discretion on matters of policy?
District attorney enjoys prosecutorial discretion as to whether to approve or disapprove private criminal complaint, and courts should not interfere with that discretion unless there has been gross abuse thereof. Com. v. Eisemann, 453 A.2d 1045, 308 Pa.Super. 16, Super.1982.
When a district attorney disapproves a private criminal complaint on wholly policy considerations or on a hybrid of legal and policy considerations, a trial court's standard of review of the district attorney's decision is abuse of discretion; thereafter, an appellate court will review the trial court's decision for an abuse of discretion. Com. v. Michaliga, 947 A.2d 786, Super.2008.
Special deference extended to district attorney's policy decision not to prosecute a private criminal complaint arises from deference accorded discretionary use of executive powers conferred in district attorney. Com. v. Jury, 636 A.2d 164, 431 Pa.Super. 129, Super.1993, appeal denied 644 A.2d 733, 537 Pa. 647.
A district attorney's decision not to prosecute a private criminal complaint for reasons including policy matters carries a presumption of good faith and soundness. Com. v. Michaliga, 947 A.2d 786, Super.2008.

What kinds of disapprovals are or are not gross abuses of discretion?
In the absence of evidence that the district attorney's decision to deny a private criminal complaint was patently discriminatory, arbitrary or pretextual, and therefore, not in the public interest, the trial court cannot presume to supervise the district attorney's exercise of prosecutorial discretion, and should leave the district attorney's decision undisturbed. In re Private Criminal Complaints of Rafferty, 2009 PA Super 53, 2009 WL 782992, Super.2009.
District attorney did not commit gross abuse of discretion by refusing to prosecute driver who allegedly tailgated another driver and pointed gun at him as he approached with arms flailing and asked armed driver, “What the hell is the problem”; strong possibility of finding justification of self-defense could have suggested that prosecution would have been waste, even though prima facie case of simple assault and terroristic threat existed. In re Maloney, 636 A.2d 671, 431 Pa.Super. 321, Super.1994.
Trial court abused its discretion in ordering district attorney's office to prosecute private criminal complaint that office had disapproved for policy-based reason that complainant, who was a contractor who alleged that business owner stole money due to him for repair work, had a civil remedy, even though office had initially approved complaint before reconsidering its decision; complainant's petition for review of office's decision contained no allegations of bad faith, fraud, or unconstitutionality, office would be presumed to have acted in good faith, and office's reasoning that complainant had a civil remedy was sound thinking given state of law. Com. v. Michaliga, 947 A.2d 786, Super.2008.
In determining whether gross abuse of discretion has occurred when prosecutor disapproves private criminal complaint based on policy determination that it would not be in best interests of Commonwealth to prosecute, common pleas court must consider whether policy advanced by prosecuting authority comports with both law and justice; policy must embrace general principles by which prosecutor is guided in management of its public responsibilities and connotes definite course or method of action selected in light of given conditions to guide and determine both present and future decisions. Com. v. Brown, 669 A.2d 984, 447 Pa.Super. 454, Super.1995, appeal granted 678 A.2d 367, 544 Pa. 677, affirmed 708 A.2d 81, 550 Pa. 580.
Determination that case brought on private criminal complaint lacks prosecutorial merit and should, therefore, be disapproved, is policy determination which will not be disturbed by court unless there is gross abuse of discretion. Com. v. Metzker, 658 A.2d 800, 442 Pa.Super. 94, Super.1995.
The Commonwealth abuses its discretion under former Pa.R.Crim.P. 133 (see, new, Pa.R.Crim.P. 106, 42 Pa.C.S.A.) when it fails to prosecute an individual who admittedly committed perjury at the trial of another for murder and related offenses. Com. ex rel. Buckley v. Brown, 21 Pa. D. & C.4th 193, 1993 WL 769022, Unreported (1993).

May a DA disapprove a complaint because it appears a defendant is using the system for 'private purposes? (I'm not sure how state actors who probably regularly violate the public trust could provide a justification for a DA, but...)
District attorney had discretion to disapprove private criminal complaint, where district attorney found that civil remedies were available to complainant with respect to alleged burglary by persons known to him. Hearn v. Myers, 699 A.2d 1265, Super.1997.
Prisoner's attempt to utilize the justice system for private purposes was a valid policy reason for the district attorney's decision denying private criminal complaint. Com. v. Cooper, 710 A.2d 76, Super.1998.
District attorney's disapproval of private criminal complaints charging police officer with official oppression, criminal trespass, assault, and criminal conspiracy and charging mayor with official oppression, criminal trespass, and criminal conspiracy, based upon their alleged conduct during arrest of complainant for refusing to move truck that was illegally parked during snow storm, was not gross abuse of discretion, where it appeared that adequate civil remedies were available to redress complainant's grievances. Com. v. McGinley, 673 A.2d 343, 449 Pa.Super. 130, Super.1996.

When a disapproval is sent to the Court of Common Pleas under a petition for review under Rule 506(B)(2), what is the scope and standard of review?
Where a district attorney's denial of a private criminal complaint is based on a legal evaluation of the evidence, the trial court undertakes a de novo review of the matter. In re Private Complaint of Owens Against Coker, 810 A.2d 172, Super.2002, appeal denied 821 A.2d 587, 573 Pa. 672.
In the event a district attorney offers a hybrid of legal and policy reasons for disapproval of private criminal complaint, deference to the district attorney's decision, rather than de novo review, is the appropriate standard to be employed. In re Private Complaint of Owens Against Coker, 810 A.2d 172, Super.2002, appeal denied 821 A.2d 587, 573 Pa. 672.
Determination that case brought on private criminal complaint lacks prosecutorial merit and should, therefore, be disapproved, is policy determination which will not be disturbed by court unless there is gross abuse of discretion. Com. v. Metzker, 658 A.2d 800, 442 Pa.Super. 94, Super.1995.
Trial court's determination of whether District Attorney abused discretion upon consideration of private criminal complaint is dependent on particular facts of case and District Attorney's articulated reasons for acting, or failing to act, in particular circumstances. In re Wilson, 879 A.2d 199, Super.2005.
Private complainant does not have right to evidentiary hearing in connection with private criminal complaint. Michaels v. Barrasse, 681 A.2d 1362, 452 Pa.Super. 325, Super.1996.
Disapproval of private criminal complaint had to be remanded to court of common pleas for preparation of opinion in support of order, as order did not contain sufficient information to permit review by superior court, but simply affirmed district attorney's disapproval without explanation. Michaels v. Barrasse, 681 A.2d 1362, 452 Pa.Super. 325, Super.1996.
The private criminal complainant has the heavy burden to prove the district attorney abused his discretion in denying the complaint; complainant must demonstrate the district attorney's decision amounted to bad faith, fraud or unconstitutionality, must do more than merely assert the district attorney's decision is flawed in these regards, and must show the facts of the case lead only to the conclusion that the district attorney's decision was patently discriminatory, arbitrary or pretextual, and therefore, not in the public interest. In re Private Criminal Complaints of Rafferty, 2009 PA Super 53, 2009 WL 782992, Super.2009.
Trial court's directive to prosecute private criminal complaint, despite Attorney General's policy based discretionary decision to contrary, did not violate separation of powers doctrine. Com. v. Brown, 669 A.2d 984, 447 Pa.Super. 454, Super.1995, appeal granted 678 A.2d 367, 544 Pa. 677, affirmed 708 A.2d 81, 550 Pa. 580.

Is it a federal or Pennsylvania due process right to have a private criminal complaint prosecuted over a DA's lawful discretion?
Plaintiff had no federal or state protected right entitling him to due process in bringing a private criminal complaint and overriding a district attorney's exercise of discretion. Pokrandt v. Shields, E.D.Pa.1991, 773 F.Supp. 758.
Complainant was not denied due process by district attorney's denial of private criminal complaint; rule allowing appeal of district attorney's refusal to the trial court constituted sufficient checks and balances on district attorney's authority. In re Private Complaint of Owens Against Coker, 810 A.2d 172, Super.2002, appeal denied 821 A.2d 587, 573 Pa. 672.

May the CCP decision be appealed, to whom, and what must be done as a prerequisite?
Superior Court had jurisdiction to hear appeal from decision of court of common pleas to disapprove of private criminal complaint after district attorney made legal determination of insufficiency of evidence to establish prima facie case. Com. v. Benz, 565 A.2d 764, 523 Pa. 203, Sup.1989.
Superior court, as reviewing court, must examine court of common pleas' reasons for denial of private criminal complaint, even though court of common pleas was not required to conduct hearing on record. Michaels v. Barrasse, 681 A.2d 1362, 452 Pa.Super. 325, Super.1996.
When appeal is brought from common pleas court's decision regarding prosecutor's approval or disapproval of private criminal complaint, appellate court is limited to ascertaining propriety of trial court's actions; thus, Superior Court's review is limited to determining whether trial court abused its discretion or committed error of law. Com. v. Brown, 669 A.2d 984, 447 Pa.Super. 454, Super.1995, appeal granted 678 A.2d 367, 544 Pa. 677, affirmed 708 A.2d 81, 550 Pa. 580.

What is the Superior Court's standard of review for appeal of CCP findings?
Superior court's review of disapproval of private criminal complaint is limited to determining whether trial court abused its discretion or committed error of law; it is limited to ascertaining propriety of trial court's actions. Michaels v. Barrasse, 681 A.2d 1362, 452 Pa.Super. 325, Super.1996.
When district attorney bases dismissal of private criminal complaint solely on lack of evidence, Superior Court will apply de novo standard of review because such a decision is not entitled to same deference afforded a policy decision not to prosecute, even where prima facie case exists. Com. v. Jury, 636 A.2d 164, 431 Pa.Super. 129, Super.1993, appeal denied 644 A.2d 733, 537 Pa. 647.
The appropriate scope of review in policy-declination of a private criminal complaint case is limited to whether the trial court misapprehended or misinterpreted the district attorney's decision and/or, without a legitimate basis in the record, substituted its judgment for that of the district attorney; the Superior Court will not disturb the trial court's decision unless the record contains no reasonable grounds for the court's decision, or the court relied on rules of law that were palpably wrong or inapplicable. In re Private Criminal Complaints of Rafferty, 2009 PA Super 53, 2009 WL 782992, Super.2009.
Superior Court's review of trial court order sustaining District Attorney's disapproval of private criminal complaint does not violate separation of powers doctrine. In re Wilson, 879 A.2d 199, Super.2005.
Remand is required to court of common pleas for approval or disapproval of private complaint after superior court determined that charges in complaint did not constitute clear and present danger obviating need for approval of district attorney before issuance of process. Com. v. Pritchard, 596 A.2d 827, 408 Pa.Super. 221, Super.1991.

Is one barred from 'refiling' a complaint?
Private complainant whose criminal complaint is disapproved by district attorney and court of common pleas for failure to set forth sufficient facts is not precluded from filing subsequent, amended complaint alleging sufficient facts. Com. v. Muroski, 506 A.2d 1312, 352 Pa.Super. 15, Super.1986.

[MDJschool]

When does standing end for a private prosecutor/affiant?
Employee who filed private criminal complaint against employer alleging violation of Polygraph Act did not have standing to appeal grant of writ of habeas corpus finding that there was not sufficient evidence to make out prima facie case against employer; common pleas court had approved private criminal complaint prior to petition for writ and, thereafter, only Commonwealth controlled prosecution of case and had standing to appeal. Kroen v. Bedway Sec. Agency, Inc., 633 A.2d 628, 430 Pa.Super. 83, Super.1993.

[MDJschool]

<reserved for more QA on this subject>

[MDJschool]

We had apparently learned in MDJ school that the acceptance, filing, and summons based on a complaint all may not actually require a finding of probable cause. I asked again if this was the case as to the entirety of law, and it appears so. I then asked if, at a preliminary arraignment, one might motion to quash a criminal complaint due to lack of probable cause, as to not have to wait for a preliminary hearing to find a prima facie case. It was suggested that for situations like a law having already been struck down as unconstitutional might make such an early motion appropriate.

Here is a smattering of annotations I will just throw in until I have time to read through the cases, regarding not just the review by an MDJ narrowly, but the process in general.

-------

Where proceeding, in which defendant was found guilty of driving while under influence of alcohol, had been initiated by arrest of defendant without a warrant, rather than by complaint, there had been no need for compliance with requirements of this rule providing that in any proceeding initiated by complaint the issuing authority was to ascertain that there was probable cause for issuance of process, in the form of an affidavit. Com. v. Secott, 457 A.2d 976, 311 Pa.Super. 456, Super.1983.

Even if criminal complaint filed before magistrate who issued arrest warrant did not satisfy Fourth Amendment requirement of showing probable cause, where issuing authority had conducted preliminary hearing, heard Commonwealth's witnesses and determined in a neutral and independent manner that a prima facie case was made out, defendant could not show that his custody or his release on bail was not based on a finding of probable cause made by a judicial officer. Com. v. Krall, 304 A.2d 488, 452 Pa. 215, Sup.1973.

Issuance of process is a condition antecedent to completion of filing of a complaint. Com. v. Bowser, 465 A.2d 1001, 318 Pa.Super. 571, Super.1983.

Finding by judge at preliminary hearing that prima facie case had been established with respect to defendant being held on murder charges rendered moot any issue concerning alleged defect in affidavit for issuance of arrest warrant. Com. v. Abdul-Salaam, 678 A.2d 342, 544 Pa. 514, Sup.1996, stay granted 684 A.2d 539, 546 Pa. 240, certiorari denied 117 S.Ct. 1337, 520 U.S. 1157, 137 L.Ed.2d 496, denial of post-conviction relief affirmed 808 A.2d 558, 570 Pa. 79, reconsideration denied, stay denied 812 A.2d 497, 571 Pa. 219.

Unlike search warrant, arrest warrant is not constitutional prerequisite to arrest. Com. v. Westerfer, 440 A.2d 556, 294 Pa.Super. 459, Super.1982.

To extent that practice may have developed that police complaints to support an arrest warrant are couched in language to make it appear that complaint is, in fact, that of another person not appearing before the issuing authority, practice is condemned. Com. v. Edney, 439 A.2d 752, 294 Pa.Super. 67, Super.1982.

Purpose of requiring that accused be brought before magistrate is to assure independent review of facts alleged to provide probable cause for arrest. Com. v. Eaddy, 372 A.2d 759, 472 Pa. 409, Sup.1977.

Rule requiring complaint to be filed against defendant and defendant to be afforded preliminary arraignment by proper issuing authority without unnecessary delay did not apply to defendant who was arrested pursuant to warrant. Com. v. Gray, 608 A.2d 534, 415 Pa.Super. 77, Super.1992.

If there is unnecessary delay between time of arrest and time of preliminary arraignment, a court must suppress any evidence obtained as a result of delay, but is not required to quash the arrest. Com. v. Johnson, 436 A.2d 645, 291 Pa.Super. 566, Super.1981.

[MDJschool]

Sometimes I think about notions of law that I really wish a judge would rule on, so that I may cite it elsewhere, and I have just found one of those things. I have in the past wished that a court would make explicit that even though probable cause is established, it can dissipate by new information. Its effect on this thread is that I have read in some cases that when dealing with affidavits of probable cause, all the info that is needed is the least amount to obtain probable cause, but the following would be to suggest that just as it is for an officer to see PC dissipate on new facts, a magistrate (or anyone else making such a determination) would have to receive and consider all available facts which might at some point maintain PC and then at a later point (i.e. reading further down the paper) dissipate.

Unfortunately I don't know how to cite these PDF opinions both our state and fedgov throw around, so I'll call it WARREN DAVIS v. DARBY BOROUGH, et al., 09-1778 CA 8 (E.D.Pa., 2009) until I can fix it:

"“A person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated.” United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005). See also Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988) (“[T]he police . . . may not disregard facts tending to dissipate probable cause.”); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (“The continuation of even a lawful arrest violates the Fourth Amendment when the police discover additional facts dissipating their earlier probable cause.”)."

[Statkowski]

So, what does all of this mean when a Borough Council enacts an ordinance in violation of Section 6120 of the Uniform Firearms Act by regulating possession of firearms (i.e., lost or stolen). Would a private criminal complaint of official oppression against each of the council members voting for it fly?

[MDJschool]

Well, a borough councilman is a person, where using the office to create legislation is certainly an official capacity, and that because legislating is fixing rights, that must be an infringement, denial, or impediment. The first serious issue in determining whether it applies is probably whether the person acts 'knowing that his conduct is illegal'. I have to believe that any oathtaker should know, and I presume that borough councilmen take oaths, but perhaps if they take the oath and then claim they didn't know what they were doing was illegal, they are not guilty of official impression but certainly some other statute for violating their oath, probably under penalty of perjury. I think it has to be one or the other, if any applies.

The next issue is whether introduction of an unconstitutional law itself is unlawful, or if moving it to vote is, or if voting for it is, or only if it voted upon and passed is it. I think that voting for an unconstitutional bill having not yet passed wouldn't appear different from criminal attempt at official oppression, if you believe such inchoate crimes are valid.

Also you might need to consider implication of weird immunities. I think I have certainly read cases either regarding congress or the assembly that Speech and Debate somehow let the legislature pass unconstitutional law without liability because to say otherwise would severely impede their power to do their jobs. I will look for those cases again.

After you decide whether official oppression or perjury applies, you need to content with the DA garbage. I tell people to try to work with the DA to form the complaint, if they are willing, to make sure the DA gets what they need to best move forward. Although I've outlined the rough legal procedure above, I do submit another possibility to avoid initial DA reaction.

There are hundreds (thousands?) of vacant constable offices in PA. There is approximately 1 constable per township, ward, or precinct, whose jurisdiction (I believe) is actually statewide. Further, there is no explicit residential requirement, although courts have come back mixed on whether there is a real requirement to reside in the twp or ward to which one is appointed or elected. Being appointed to a constable's office takes 10 signatures, a posting, and a court certifying it, a particularly easy process if no one comes to the hearing to object. I suspect that a constable gets to use a police criminal complaint rather than a private criminal complaint, and therefore skips the DA review requirement except in counties with local rules that a DA must also review police complaints. Often DAs make informal agreements with police agencies, and obviously the constable is in no way obliged there although the DA can trash your charges later by withdrawl. In any case, I believe this would mean that the complaint would be transmitted straight to the MDJ, who will then issue process (and I imagine a finding of probable cause will have to exist somewhere in there, but most certainly must exist to issue an arrest warrant.) I am not familiar entirely with the costs to become a constable, but petitions for any party will be around 10 signatures I imagine to make it all the way to general election, with no or less than 50 dollar filing fee. Assuming office will require a surety of either your homestead or 1000-4000 dollars, by choosing of a judge, as required by law. You would need professional liability insurance, I think, to get Act whatever certified (44?), but I think that the PCCD provides the training for free. Constables pretty much make the rules for their own office, although their pay comes solely from specific duties and fee schedules listed in statute, so assuming this position will not be fiscally beneficial for the sole purpose outlined here. (Other perks of being a constable are probably being able to arrest police officers who are viewed committing official oppression as a breach of the peace, which I think would be one the strongest arguments for keeping a directly elected peace officer force like the constabulary, and perhaps LEOSA protection.) [Also, this blather about constables is allusory; I will have to find all my cites to back up my expectations for this avenue later.]

I don't know that you can really do anything to force the DA to move on a charge past a preliminary hearing. Here are some annotations regarding the breadth of the official oppression statute:

Term “mistreatment” in official oppression statute was not unconstitutionally vague as applied to judge charged with official oppression based on alleged solicitation of woman who appeared before him on driving under the influence charges, despite defendant judge's allegations that victim consented, since defendant's treatment of victim was no less of an abuse of his office because she may have consented in order to assure dismissal of charges against her. Com. v. Checca, 491 A.2d 1358, 341 Pa.Super. 480, Super.1985, appeal denied.

Anyone acting in an official capacity in Pennsylvania, including a policeman, commits a misdemeanor if, knowing his conduct is illegal, he subjects another to arrest, detention, search, seizure, mistreatment or other infringement of personal or property rights or denies or impedes another in exercise of any of his rights, privileges, power or immunities. Com. of Pa. v. Porter, C.A.3 (Pa.)1981, 659 F.2d 306, certiorari denied 102 S.Ct. 3509, 458 U.S. 1121, 73 L.Ed.2d 1383.

For purposes of offense of “Official Oppression,” word “knowing” as used in connection with knowingly and illegally denying or impeding another in exercise of some right, power or immunity, means that accused must have been acting in “bad faith” when he subjected the other to the proscribed activities. Com. v. Eisemann, 453 A.2d 1045, 308 Pa.Super. 16, Super.1982.

Bail bondsman, who apprehended his bail jumping principal, transported him to destination in trunk of car, and drove through city with bail jumper tied to roof of car as an example to others tempted to flee justice to bail bondsman's financial detriment, had authority to take bail jumper into custody, and violated official oppression statute, 18 Pa.C.S.A. § 5301, when he abused that authority, notwithstanding fact that bail bondsman was not public official. Com. v. Russ, 503 A.2d 450, 349 Pa.Super. 445, Super.1986, appeal denied 531 A.2d 429, 515 Pa. 621.

Governmental entity may be victim of crime under state restitution law, and, thus, Commonwealth could be awarded restitution for salary paid to judge from date of his suspension from judicial office; Commonwealth was entitled to restitution for payment made for work not done. Com. v. O'Kicki, 597 A.2d 152, 408 Pa.Super. 518, Super.1991, appeal denied 626 A.2d 1156, 534 Pa. 637, reconsideration denied.