October 29, 2021 by Tom Roberts, Esq.
Live to See Another Day!
- Be careful not to escalate the encounter with the police that could cost you your life! Control the “fight or flight” impulse even when the police are unreasonably escalating the situation!!
- Exercise your 5th Amendment right to Silence!
- Exercise your 6th Amendment right to legal counsel!
- Document Everything Possible.
- And if you are going to video tape or record the encounter – make sure you are NOT the ass when the jury views the tape!!
- Hire a criminal defense lawyer!!
- Contact a law firm that handles malicious prosecution and false arrest cases.
- Expect that the civil attorneys will want you to collect and preserve evidence — but will want to make sure the criminal charges are dismissed or dropped.
- Make sure that your criminal defense attorney obtains all bodycam or dashcam records.
- Seek prompt psychological counseling to document and treat emotional injuries.
- Obtain a quote from an attorney to expunge the criminal charge(s).
- Don’t expunge them until you’ve gotten the green light from the civil attorneys, as it might make their job more difficult.
What is Malicious Prosecution?
The elements of Malicious Prosecution are that the prosecution (1) must be instituted by or with the cooperation of the defendant, (2) terminating in a manner not unfavorable to the Plaintiff, (3) instituted without probable cause, and (4) with malice.
So what is Malice? Malice in this context is any controlling motive for instituting the criminal proceedings is anything other than a genuine desire to see justice done, to enforce the law, or to punish the guilty. A jury may infer malice from probable cause.
What is False Arrest?
The elements of False Arrest or False Imprisonment are (1) intentionally restricting the plaintiff’s freedom of movement, (2) without legal right, (3) using words, acts, or force of which the plaintiff is afraid to ignore, and (4) that the Plaintiff is aware of the restriction of movement. A lawful arrest is one supported by probable cause or pursuant to a valid warrant. There is no good faith defense to false imprisonment.
An arrest warrant does not absolve a police officer or person who instigated the prosecution, who has and fails to come forward with evidence of actual innocence.
Assuming arguendo that the arrest was pursuant to a valid warrant, this is not always dispositive; The police officer may still be liable. An officer who initially has probable cause but later uncovers evidence of the accused’s innocence and allows the prosecution or imprisonment to proceed by failing to come forward with that information is liable for malicious prosecution and false imprisonment.
A warrant issued by a magistrate on intentionally withheld information or false statements of the police officer or criminal complainant will not absolve the instigator of the charges.
When a magistrate issues a warrant to an officer under circumstances where a reasonable officer would have known no probable cause existed, or by virtue of false statements of fact or omissions material to probable cause, warrants offer no protection.
Just because the charges are dropped or you are acquitted does not mean you have a claim for malicious prosecution or false arrest!
Practical Considerations for False Arrest in Virginia
Not every case of malicious prosecution or false arrest has significant value.
- Live the life of a good citizen —- the malicious prosecution or false arrest of an upstanding citizen has more value than a case involving a person who has failed to build a good reputation in the community, with multiple prior arrests, incarcerations and illegal activities. (And if you fit the latter category don’t complain to others that the violation of your rights may be worth less when it’s your own damn fault.)
- REMEMBER – the essence of the malicious prosecution is showing the jury malice not simply mistake. You may only have a claim for false arrest if you cannot prove malice.
- Whether to pursue the claim involves a number of factors, including an opinion whether the cost is likely to exceed the benefit — we do NOT take every case!!
- Remember you are not entitled to legal representation in a civil case!!!
- Hire a law firm with experience!!!
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
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