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Unlawful Arrests & Related Civil Claims

Police officers in this country have broad powers to carry out their duties. The Constitution and other laws place limits on how far police can go in trying to enforce the law. As past experiences in New York involving Abner Louima and Patrick Dorismond have illustrated, police officers sometimes violate the rights of citizens. When this happens, the victim of the police misconduct may be able to bring a claim through federal and state laws. Various civil rights laws provide protection to citizens from abuses by government, including police misconduct. To read about WylieLaw's success with these kinds of cases, go to Decisions and Press.

Unlawful or False Arrests
The Concept of Probable Cause
Establishing Probable Cause
Unlawful Imprisonment
Police Brutality
Malicious Prosecution
Plea Bargains
Suing For False Arrests & Malicious Prosecution: §1983 Claims


Unlawful or False Arrests

An unlawful or false arrest:

  • Is not based on probable cause.
  • Consists of unlawful restraint of a person's liberty without proper legal authority. The key words here are "without proper legal authority."
  • Occurs when there is a failure to properly conduct an investigation before effectuating an arrest.
  • Occurs when a police officer allows their emotions to overcome their responsibilities and arrests someone who has been argumentative and has failed to show respect for the officer.

The Concept of Probable Cause

Probable Cause is the reasonable belief that a person has committed, is in the process of committing, or is about to commit a crime.

The concept of Probable Cause and its requirements:

  • Help protect citizens against unlawful searches and seizure,
  • Provide the Constitutional right of liberty,
  • Should prevent the random roundup of "undesirables."

Establishing Probable Cause

  • Police officers must have objective factual circumstances to rely upon in believing that a specific individual committed a crime.
  • A police officer cannot rely upon hunches or profiling to establish probable cause.
  • Probable cause will initially be determined by a police officer at the time of arrest. However, if the arrest is challenged, the probable cause factor will be reviewed by a Judge. The Judge will not examine the police officer's intent, but will examine the facts surrounding the arrest to determine if probable cause existed.
  • An innocent person does not always have a claim for false arrest or unlawful imprisonment. The U.S. criminal system is not a perfect one and if a person has all charges dropped or is found not guilty, but probable cause did exist to make the arrest, no remedy may be available to redress the wrong suffered by that innocent individual.

Unlawful Imprisonment

Defined as the unlawful confinement of a person without valid consent. An individual is unlawfully imprisoned when he/she has been:

  • unlawfully arrested and
  • incarcerated for any amount of time.

Police Brutality

Police in our society have a very difficult job. Most officers do their duty with regard to the law and the rights of individuals. However, there are times, in the line of duty, when officers commit egregious and illegal acts. Police brutality is defined as the use of excessive force in the line of duty. If you feel you have been a victim of police brutality, speak with an attorney immediately.

Malicious Prosecution

Malicious prosecution is a criminal prosecution that would never have been brought but for the failure of a government agent, a district attorney or police officer to properly conduct an investigation. A malicious prosecution claim asserts that the government agent wrongly deprived the victim of protections guaranteed by the 14th Amendment right to liberty.

A malicious prosecution claim has four elements.

  • The defendant in the civil claim had commenced a criminal proceeding against the victim;
  • The criminal proceeding ended in the victim's favor (no conviction);
  • There was no probable cause to make the arrest; and
  • The proceeding was brought with malice toward the victim.

As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings.

Effects of a Plea Bargain on Unlawful Arrest, Unlawful Imprisonment or Malicious Prosecution Claims

Other than an outright dismissal, any guilty plea, or even an ACD (adjournment in contemplation of dismissal) , will effectively forfeit all claims of unlawful arrest, unlawful imprisonment and malicious prosecution.

Suing For False Arrests & Malicious Prosecution: §1983 Claim

Being stopped and questioned by police—especially if you believe there is no probable cause—is often an unsettling experience and may give you reason to think you are being treated unlawfully. Allegations of negligence or the failure to exercise reasonable and due care are insufficient to find liability against a police officer. However, 42 U.S.C. §1983, provides an avenue of redress into Federal Court. Historically, the law was originally part of the Civil Rights Act of 1871, intended to curb harmful, offensive and oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. But today, §1983 is used to sue for false arrests and malicious prosecution as it makes it unlawful for anyone acting under the authority of state law to deprive another person of his/her Constitutionally guaranteed rights.