Homophobia in Mendocino County, California
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Excerpts from

Complaint for Damages for Violation of Civil Rights Under 14 U.S.C. Section 1983

STATEMENT OF FACTS

6. On September 16, 1998, Plaintiff MARC TOSCA, a disabled man, (hereafter "Plaintiff"), was contacted by Defendant DEPUTY DE MARCO from the MENDOCINO COUNTY SHERIFF'S DEPARTMENT, (hereafter, "Defendant DEMARCO"), pursuant to a complaint filed with the MENDOCINO COUNTY SHERIFF'S DEPARTMENT, (hereafter Defendant "Sheriff's Department"), alleging the Plaintiff had been involved in a non-consensual sex act.

7. Defendant DE MARCO advised Plaintiff TOSCA that a complaint had been filed against him by a former worker, James Mallo, and that the matter was under investigation by the Sheriff's Department. Plaintiff TOSCA advised Defendant DEMARCO that he needed to confirm the call was in fact, coming from the Sheriff's Department and that he would call him back. Plaintiff TOSCA called the Sheriff's Department and was put through to Defendant DEMARCO. Defendant DE MARCO asked Plaintiff TOSCA several questions, then requested that he come into the Sheriff's Department for an interview. Plaintiff TOSCA advised Defendant DE MARCO that he would contact his Attorney, who subsequently informed TOSCA not to go to the Sheriff's Department.

8. On September 23, 1998, Defendant KURT SMALLCOMB (hereafter "Defendant SMALLCOMB") met and conferred with, and sought a Search Warrant from, the Honorable Judge Conrad Cox of the Mendocino County Superior Court. The Search Warrant was granted by Judge Cox based upon SMALLCOMB'S submission of a falsified Affidavit which alleged throughout, that MARC TOSCA had committed the offense of 288(a)(f) PC; (lewd and lacsivious act on a minor child), and further, based upon evidence Defendant SMALLCOMB and Defendant Deputies collected pursuant to their investigation. This evidence included interviews with former workers of Plaintiff TOSCA, JACINTO and KELLEY, none of which were minors, none of which alleged any sex acts by Plaintiff TOSCA with minor children, and none alleged ever having sex with Plaintiff.

9. On September 24, 1998, Defendants SMALLCOMB, CASH, DEMARCO, STEFANI, KIELY and POMA, pursuant to the Search Warrant issued by Judge Cox, with Deputy ANDREW CASH (hereafter "Defendant CASH"), operating undercover in plainclothes, acting as a potential employee for a ranch hand position at plaintiff TOSCA's property, lured Plaintiff TOSCA from his home into the town of Ukiah to pick up Defendant CASH.

10. Upon return to the property, Plaintiff got out of his vehicle at the gate and immediately heard a voice command "Sheriff's Department, hold it right there, hold it right there, hold it right there, put your hands in the air. Right now!" and "Get down on the ground, right now, on your knees, on your knees! Let's go! Don't fuck around! Don't you reach in your pocket!" Defendants' guns were drawn, and Plaintiff TOSCA immediately complied with Defendants' demands, to kneel in the dirt, hands in the air. Defendants STEFANI and KIELY were aiming their guns directly at Plaintiff TOSCA's forehead, at a range not less than three inches from him. Inspector KIELY informed TOSCA he was under arrest for "oral copulation." Defendants then handcuffed TOSCA, hands behind his back, placed him under arrest and detained him in the back of their vehicle for a period of approximately three hours. When Defendant SMALLCOMB arrived, he showed Plaintiff TOSCA a Search Warrant. Defendants never at any time, read Plaintiff TOSCA Miranda rights.

11. In executing the Search Warrant, Defendants SMALLCOMB, CASH, DEMARCO, STEFANI, KIELY, AND POMA, searched Plaintiff's home, removing items of personal property, including but not limited to, personal papers, microcassette tape recorder, and audio tapes.

12. Plaintiff's residence was photographed. These photographs as well as the property seized were taken into custody of the Mendocino County Sheriff's Department to aid in the prosecution of the Plaintiff.

13. Plaintiff was subsequently charged under California Penal Code Sections relating to the unlawful recording of telephone calls, "cover" charges; as the materials Defendants were hoping to find on Plaintiff's property, the alleged basis of the falsified Affidavit for Search Warrant, did not exist.

14. In June, 2000, TOSCA was found not guilty of the charges filed against him in Mendocino County Superior Court. Following the dismissal, Plaintiff filed a Motion under CCP Section 1538.5, for the recovery of all property, including but not limited to, the original tapes seized by the Defendant Sheriff's Department pursuant to the Search Warrant.

15. Plaintiff herein alleges that none of the above is hearsay, rather facts based in evidence, that will be presented to the Court.

It is based upon the foregoing events, that the Plaintiff now pleads the following Causes of Action:

I. FIRST CAUSE OF ACTION

(As to Defendants SMALLCOMB, DE MARCO, CASH, STEFANI, KIELY, MITCHELL, POMA, and THE COUNTY OF MENDOCINO)
Violation of Constitutional Rights
(42 U.S.C. Section 1983)

16. The Plaintiff in this matter believes and thereupon alleges as follows: Defendants SMALLCOMB, DE MARCO, CASH, STEFANI, KIELY, MITCHELL, and POMA, acted under the Color and Authority of Law, conspiring together to violate Plaintiff's Constitutionally protected Civil Rights. The law with regard to Plaintiff's Constitutional rights was clear at the time of Defendants' actions and was, or should have been, known to Defendants. Defendants and each of them named in the Cause of Action, acted in the following manner in order to deprive Plaintiff of his Constitutional Rights under 42 U.S.C Section 1983:

i) Defendant SMALLCOMB knowingly and intentionally provided false, misleading, and manufactured information to the Honorable Judge Conrad Cox in order to obtain a Search Warrant, upon which Judge Cox relied to find probable cause in its issuance. In reality, no probable cause existed for the issuance of the Search Warrant.

ii) Defendants SMALLCOMB, KIELY and STEFANI used unnecessary and execessive force in the service and execution of the Search Warrant.

iii) Defendants MENDOCINO COUNTY knowingly and intentionally, falsified evidence which came into their possession through the execution of the Search Warrant, to wit: deliberately failing to transcribe tape recordings accurately, omitting pertinent portions thereof in their transcription of the tapes, which would tend to have immediately exonerated Plaintiff TOSCA from any wrongdoing. Defendants then submitted altered transcripts to a Court of Law for the purpose of using said transcripts as false and misleading "Evidence" at Plaintiff's trial.

iv) Defendants SMALLCOMB, DEMARCO and MITCHELL had knowledge of, ignored and intentionally concealed the fact both in their reports and in a Court of law, that their alleged complaining "victim" James Mallo, was a registered sex offender and convicted felon with numerous convictions for statutory rape, sexual assault, burglary, and other serious felonies.

v) Defendants SMALLCOMB, DEMARCO and MITCHELL, knowingly and intentionally falsified arrest reports creating a criminal background for Plaintiff TOSCA, when in fact, he has none, whatsoever.

vi) Defendants SMALLCOMB, DEMARCO, MITCHELL, KIELY, POMA, CASH, and STEFANI, intentionally and knowingly ignored and concealed all exculpatory evidence which existed that would tend to prove that Plaintiff TOSCA, was in fact, not guilty of any criminal violations.

vii) Defendants SMALLCOMB, DEMARCO, MITCHELL, KIELY, POMA, and STEFANI, through the District Attorney's Office of Mendocino County, refused to return Plaintiff's property to him for fear their manipulation, manufacturing, falsification of evidence and cover up charges, would come to light, as indeed, has come to pass.

viii) Defendants SMALLCOMB, DEMARCO, MITCHELL, KIELY, POMA, CASH, and STEFANI, were party to each and every act set forth within this Cause of Action in that they were members of an ongoing conspiracy on the part of Defendant MENDOCINO COUNTY SHERIFF'S DEPARTMENT to deprive Plaintiff TOSCA of his Constitutional Rights.

17. In alleging this conspiracy, Plaintiff herein believes and thereupon alleges that each and every Defendant Officer named in this Cause of Action, having full knowledge of his lifestyle and his disablility, came together and agreed, to use illegal tactics in an attempt to see that he was prosectued for crimes he did not commit. The actions of Defendants and each of them named in this Cause of Action, are unlawful and a violation of Plaintiff TOSCA's Constitutional Rights as follows.

a) Plaintiff was subjected to a Search and Seizure without probable cause;

b) Plaintiff was subjected to malicious prosecution;

c) Plaintiff was denied the quiet enjoyment of his property;

d) Plaintiff was denied due process of law through the utilization of manipulated, manufactured and falsified evidence presented by Defendants.

18. For the above-stated acts, Defendants and each of them cannot be found entitled to absolute immunity while acting under the Color and Authority of law for the above stated acts and cannot prevail under Evidentiary Rule 12(b)(6); as substantial evidence exists and is Plaintiff's Counsel's possession to substantiate his allegations herein.

THIRD CAUSE OF ACTION

(As to Defendants SMALLCOMB, DE MARCO, CASH, STEFANI, KIELY, MITCHELL, POMA, and COUNTY OF MENDOCINO)
False Arrest and False Imprisonment
(42 U.S.C. Section 1983)

25. Plaintiff TOSCA believes and therefore alleges, that Defendants SMALLCOMB, DE MARCO, CASH, STEFANI, KIELY, MITCHELL, POMA, and COUNTY OF MENDOCINO, obtained a Search Warrant without probable cause, falsified, manufactured and ignored exculpatory evidence, to wit:

i) Defendants never interviewed primary witness, TOSCA employee, Carl Marsh, although provided with all pertinent information to do so by several sources. This would have immediately exonerated Plaintiff of any wrongdoing; evidence is in the possession of Plaintiff's Counsel at this time.

ii) Ignored the tape recordings in Defendants' possession of both alleged "victim" James Mallo and witness Carl Marsh, which would have immediately exonerated Plaintiff; said tapes and transcripts are in the possession of Plaintiff's Counsel.

iii) Defendants failed to divulge in reports or in a Court of law that their alleged "victim" was a registered sex offender, convicted of multiple sex offenses, in addition to burglaries, drug possession and other felonies. Evidence is in possession of Plaintiff's Counsel.

iv) Defendants knowingly and intentionally falsified transcripts of tape recordings of the arrest proceedings and telephone calls, introducing into evidence in a Court of law at trial, their falsified transcripts, which omitted crucial evidence. Said evidence, both tapes and transcripts are in possession of Plaintiff's Counsel, together with true and correct transcripts of the tapes.

v) Defendants provided perjured testimony and falsified evidence at trial, together with other misconduct consisting of violations of policy and statute. Defendants and each of them named in this Cause of Action, falsely arrested and imprisoned Plaintiff, while acting under the Color and Authority of Law, pursuant to violations of 42 U.S.C. Section 1983.

26. Defendants SMALLCOMB, DE MARCO, CASH, STEFANI, KIELY, MITCHELL, POMA and COUNTY OF MENDOCINO, misrepresented that Plaintiff TOSCA had a criminal background when he had none, (Evidence which is in possession of Plaintiff's Counsel), misrepresented that Plaintiff had committed sex acts on a minor child, when no such act ever occurred, (Evidence which is in possession of Plaintiff's Counsel), misrepresented information that they had received from alleged informants, all in order to obtain a Search Warrant, where they knew no probable cause existed. Defendants then arrested Plaintiff TOSCA pursuant to the service of that Search Warrant. The Search Warrant, in and of itself, was not justified based upon the evidence levied against Plaintiff TOSCA for the following reasons:

i) As to the charge of non-consensual sex, no physical evidence related to whether the sex was or was not consensual could have been acquired by the Search Warrant. There was no denial by the Plaintiff in this matter that he had sexual contact with his accuser. Hence, the single issue subject to police investigation was whether there was or was not, consent for the sex act to take place. Nothing that could be obtained via Search Warrant could have determined the state of mind of the parties involved at the time the sex act took place, as to whether or not it was consensual. Therefore, as to ALL elements of the Search Warrant related to the charge of non-consensual sex, the Warrant was in fact, useless as a prosecutorial tool.

ii) As to allegations that Plaintiff taped his telephone conversations, the SHERIFF'S DEPARTMENT was well aware from their interviews with Plaintiff's former workers, that TOSCA tape records ALL of his telephone calls and informs each Caller of same. Having knowledge the phone calls existed and that TOSCA would in fact, record ANY incoming phone call to his home, no Search Warrant was required to substantiate this fact. Indeed, if Defendants had simply asked Plaintiff directly, whether he recorded his telephone calls, he asserts he would have answered "Yes", as he has on literally dozens of occasions when the issue has been presented to him.

iii) Defendant Officers, in executing the arrest on Plaintiff, must have and certainly should have known, that NO discoverable evidence pursuant to the Warrant COULD have been recovered from Plaintiff TOSCA's property.
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