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By PORAC | April 1, 2019 | Posted in PORAC LDF News

A Law Enforcement Officer’s Guide To Restitution

Rains Lucia Stern St. Phalle & Silver, PC

An unfortunate reality of police work is that many law enforcement officers will find themselves the victims of a crime at some point in their careers. I have represented officers who have been critically injured by intoxicated drivers, who have been run over by fleeing vehicles or who have been assaulted by a suspect during apprehension. If you find yourself in such a situation, it is important that you know your rights. Broadly speaking, they include: (1) representation by counsel for any interviews you may be requested to participate in after a critical incident; (2) representation for any civil suit that could arise out of the incident; and (3) representation for any restitution hearing that arises out of criminal charges against the defendant who assaulted you. This article will focus on the right you may have to restitution if you are the victim of a crime.

Who Can Get Restitution?

The direct victim of a crime who has suffered economic loss as a result of that crime may receive restitution (Penal Code § 1202.4[a]). However, the indirect victims of a crime, such as a spouse, may also be eligible to receive restitution (Santos v. Brown [2015] 238 CA4th 398, 404).

Can I Still File a Civil Suit If I am Awarded Restitution?

A common question is whether receiving a criminal restitution award will prevent you from filing a civil lawsuit against the person who harmed you. It does not. A victim of a crime can receive an award of criminal restitution and still file a successful lawsuit in some circumstances. Vice versa, the settlement of a civil lawsuit does not waive a victim’s right to restitution (People v. Clifton [1985] 172 CA3d 1165, 1168).  In other words, a crime victim may have multiple avenues to seek recovery for their damage

When Can You Receive Restitution? Restitution is a monetary award to the victim of a crime. In order to receive restitution, the defendant who harmed you must either enter a plea to the charges against them or be convicted of the crime at trial. Once the defendant has pled or been convicted, the court should set a hearing for criminal restitution. It is important that you inform the prosecutor or victim advocate who is assigned to your case that you will be seeking restitution. If you hire an attorney to help you through this process, it is important that you find someone who is knowledgeable in restitution, as this is a niche area of the law.

What Can You Be Awarded?

Restitution covers a wide swath of economic damages under Penal Code § 1202.4(f). This could include reimbursement for past and future wage loss, counseling and property damage (such as a ruined uniform or a totaled car), along with past and future medical bills. For immediate family members of a victim, such as a spouse or a child, restitution could include the loss of future economic support (People v. Giordano [2007] 42 CA4th 644, 657). Additionally, the court may also award 10% interest on the amount of restitution (from the date of loss or date of sentencing) owed to the victim under Penal Code § 1202.4(f)(3)(G).
However, restitution has its limits. Most significantly, it does not cover pain and suffering except under narrow exceptions such as for the victims of child molestation (Penal Code § 1202.4[f][3][F]). If you have been involved in an incident where you have experienced pain and suffering and desire monetary compensation for those noneconomic damages, you will want to consult with a personal injury attorney to explore pursuing a civil lawsuit.

What Evidence Do You Need?

Sometimes, law enforcement officers may not have documents to support every loss that has been incurred. For example, you may not have a receipt for the uniform or holster you bought years ago. Under the law, a victim can provide estimates for their damages (People v. Goulart [1990] 224 Cal.App.3d 71, 82-83). However, a court will be more likely to award damages where the victim can provide receipts or bills evidencing the claimed loss.

What Happens If You Are Awarded Restitution?

If you are awarded restitution by court order, it will be unlikely that you will receive a lump sum from the defendant. However, the court may order the defendant to make payments to you during the term of their probation. After the defendant’s probation expires, the defendant may still owe you money for your loss. The benefit of receiving a judgment from the court awarding you restitution is that you can record the judgment against the defendant. Additionally, the judgment is not dischargeable in bankruptcy per Chapter 7 of the Bankruptcy Code.
In the event that a defendant owes you money, there are a few ways you can collect, such as enforcing it as a civil judgment, seeking wage garnishment and filing a lien on the personal property of the person who failed to pay restitution.
In conclusion, officers should do their best to maintain records of the damages that they incur when they have been the victim of a crime. Officers in these sorts of difficult situations should also reach out to attorneys who can aid them through the process. It is important that officers be advocates for themselves when they are the victims of crime, in the same way, they are advocates for the public they assist.

About the Author

Nicole R. Castronovo is an associate in the Injury Resource and Litigation Group and Legal Defense Practice Group. She primarily works on auto, pedestrian and construction site cases, assisting on complicated medical issues. Nicole also collaborates on medical malpractice cases. Prior to joining Rains Lucia Stern St. Phalle & Silver, PC, Nicole clerked at the Orange County District Attorney’s Office and spent several years working at a criminal defense firm in the Los Angeles area.