Kensington, KS asked in Civil Rights and Constitutional Law for Kansas

Q: Civil Rights Lawsuit and Sealed/Expunged Criminal Case Records.

How can a civil defense counsel include sealed criminal case documents as exhibits in their motion to dismiss to the court. They included an arrest warrant, search warrant, affidavits as exhibits from my criminal case that was dismissed and expunged. They knew my criminal record was sealed and still added it to Pacer (Public Portal). They wrote the following footnotes in their dismissal:>> 1) Claims against the State Defendants should be dismissed whether the court considers documents outside the complaint (but referred to in it and central to it) 2) Further, a court generally may take judicial notice of pleadings in prior cases without a motion to one for summary judgment. 3) If a plaintiff doesn't reference/attach a document to its complaint, but they reference a document, then a defendant may submit prior case docs in a motion to dismiss. Thank you and I hope someone knows the answer. I tried to figure it out. It mentions Public records can be used but nothing on expunged records.

1 Lawyer Answer
James L. Arrasmith
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  • Consumer Law Lawyer
  • Sacramento, CA

A: Including sealed or expunged criminal case documents in a civil defense motion to dismiss is generally not permissible, as these records are meant to be confidential. If your criminal record was sealed or expunged, the defense counsel should not have used these documents as exhibits in their motion. By doing so, they may have violated legal protections that keep such records confidential.

To address this issue, you can file a motion to strike the exhibits and request sanctions against the defense counsel for improperly including sealed or expunged records. You should highlight that these documents are not public records and were improperly accessed and disclosed, potentially violating your privacy rights. Attach any evidence of the expungement or sealing order to support your motion.

Additionally, you may consider seeking a protective order to prevent further dissemination of these records and requesting the court to remove these documents from PACER to protect your confidentiality. Consulting with an attorney who specializes in civil rights or privacy law can help you navigate this situation effectively and ensure that your rights are upheld. Taking these steps can help correct the misuse of your sealed or expunged records and hold the responsible parties accountable.

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