False Arrest / Malicious Prosecution

false arrest and malicious prosecution claims


What are false arrest and malicious prosecution claims, and when are they justified?

A false arrest claim arises when someone is arrested without legal authority. The victim is entitled to compensation for the wrongful arrest. For example, where the victim is arrested pursuant to a warrant that is fraudulent. In short, false arrest is the constraint of the person without legal justification.

A lawsuit for malicious prosecution comes about when a criminal proceeding was instituted without probable cause. It requires proof that (1) a criminal case was instituted by the person being sued against the person suing; (2) the case was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the case was not successful.

false arrest and malicious prosecution claims

Underpinning the claims of false arrest and malicious prosecution is whether probable cause legitimizes the conduct taken by the party being sued. A lack of probable cause for initiating a criminal proceeding is an essential element of malicious prosecution. The existence of probable cause will also defeat a false arrest lawsuit.

The Fourth Amendment of the United States Constitution and the New Jersey Constitution guarantee protection from arbitrary arrest. A person cannot be arrested unless there is probable cause to believe that he has committed an offense. An arrest without probable cause is an unreasonable seizure in violation of both the Federal and State Constitutions.

Probable cause has been defined by courts as a well-grounded suspicion that a crime has been committed. And as a reasonable ground for belief of guilt. It is more than a mere suspicion of guilt but less than the evidence necessary to convict someone of a crime. It is a fluid concept turning on the assessment of probabilities in particular factual contexts. It addresses the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, from the standpoint of an objectively reasonable police officer.

To sum up, probable cause is a flexible concept, which involves a balancing of the need for law enforcement against the citizens’ right of privacy.

If you have suffered a false arrest or a malicious prosecution, you should contact an experienced personal injury attorney immediately. There are deadlines to take legal action. Sometimes, the deadline is as short as 90 days. If you fail to act on time, you may lose what otherwise would be a valid case for false arrest or malicious prosecution.

An April 2015 court decision in a false arrest / malicious prosecution case can be reviewed here.


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