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What to Do After a Wrongful Arrest?

By George Khoury, Esq. | Last updated on

While the phrase 'wrongful arrest' gets used frequently to describe when law enforcement arrests the wrong person, that isn't exactly how the legal remedy of wrongful arrest or false arrest works.

If you think you've been wrongfully arrested, you may need to file a government tort claim or some other form within 60 days with your state, city, or county in order to be able to file a lawsuit under state law. Suing a police department is the same as suing the state, county, or city. While the primary remedy for wrongful arrest is based on federal law, which does not require an administrative tort claim be filed first, if there is state law remedy, filing an administrative claim with the state or responsible agency will be a mandatory prerequisite.

What Is a Wrongful Arrest?

Under the Federal anti-discrimination law, 42 USC 1983, when a person is arrested without probable cause, they can sue for a violation of their constitutional rights under the Fourth Amendment. The Fourth Amendment guarantees all persons the right to be free from unreasonable search and seizure, which includes arrest.

The anti-discrimination law 42 USC 1983 provides that any person, acting under color of law, which basically means with government authority, that deprives an individual of their rights under the constitution, is liable for damages. The most important element is establishing the lack of Probable Cause, which is not easy.

What Is Probable Cause?

Probable cause has been defined and redefined by the courts since the term started seeing use. Generally though, an officer can have probable cause if they have more than a reasonable suspicion that a crime has occurred or is about to occur.

For instance, an officer seeing a cloud of smoke coming out of a car window wouldn't have probable cause to stop the car, but if the officer smelled the smoke and it smelled like marijuana, or the car was parked illegally on a grass median, then they would have probable cause to investigate whether a crime has occurred. Establishing probable cause is usually rather simple for officers as it only requires the officer's subjective reasonable belief that a crime has been, is being, or will be committed.

Who Do You Sue?

If you are seeking monetary damages only, generally you sue the individual officer, or officers, twice, each, in the same lawsuit. First, you name the involved officer(s) in their individual capacity, and then you name them again in their official capacity.

States and state agencies are generally immune from liability for monetary damages under 42 USC 1983. However, if you are seeking injunctive relief, such as requiring a police department to stop repeatedly wrongfully arresting you, or for the department to retrain all officers, you can pursue a claim against the state or state agency.

When Do You Sue?

While 42 USC 1983 is a federal law, the law does not define a statute of limitations, but rather uses each state's statute of limitations for injury cases. This means that the statute of limitations in your state for a wrongful arrest will be the same as an injury case. Typically, the statute of limitations will begin to run as soon as you are released from custody.

Suing for wrongful arrest is a complicated, complex and confusing process. Understanding whether you even have a claim is often the first step. Seeking out the assistance of an attorney as soon as possible is highly advisable.

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