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Malicious Prosecution - Elements Of Proof, Damages, Other Considerations, Further Readings

action false civil arrest

An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without PROBABLE CAUSE and for a purpose other than that of bringing the alleged offender to justice.

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case.

A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case.

The public policy that supports the action for malicious prosecution is the discouragement of VEXATIOUS LITIGATION. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice.

In most jurisdictions an action for malicious prosecution is governed by the COMMON LAW. This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature. Most legislatures maintain some statutes that give certain persons IMMUNITY from malicious prosecution for certain acts. In Colorado, for example, a merchant, a merchant's employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, FALSE IMPRISONMENT, unlawful detention, or malicious prosecution (Colo. Rev. Stat. Ann. § 18-4-407 [West 1996]).

An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false arrest. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.

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over 7 years ago

After having filed a 42 uSXC 1983 alleging thqat the Pam Beach Court system enganes in raceteering. I named certain judges and moved that one of the judges who was involved in a pending case recuse hinself. Instead he proceeded to sentencing and sentenced me to an illegal sentence of 15 years in Florida State Prison. He summarily denied all of my pending motions and I was denied any further access to the courts for redress of the illegal sentence. I ended up having to serve the 15 year sentence and as a result I am now forced to register as a sex offender for the rest of my life. I have lost everything and everyone as a resukt of that judges malicious prosecution and sentencing and am still facing more prison time for refusing to register.

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almost 9 years ago

Don't prosecutors have immunity? This is probably relevant, if maliciously prosecuted, and acquitted. A suit from a convicted "criminal" will only bring sanctions and misery from the higher "being," the prosecutor or now judge. This is really only a ground for appeal in a criminal action, right?

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over 6 years ago

I was serving my country as a Marine when I was charged with a felony for Breaking and entering. I was found not guilty by jury trial in 43 minutes, the eyewitness told them it was not me five alibi witnesses testifed where I was at, but for some reason I was charged. and now I am discharged from the Marines for a crime I did not commit. The price of being innocent is very high.

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almost 7 years ago

I was arrested 6 times, 20 charges or political retaliation to filing suits against the county over the past 10 years. After "lossing" some evidence in one charge they got me to plea to one versis take 720 days in jail, since they already kept me there 329 days. Is there someone to help. In jail they did not give me medications for 10 days causing 15 seizures and brain damage and much more documentable. tlcmin2002 @yahoo.com

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almost 8 years ago

Interesting article on probable cause. In jurisdictions in Canada this legal safeguard seems to be a thing of the past, as searches, arrest, and commitment to stand trial are made all the time without proper probable cause..it even goes further that even though the complainant has shown to be lying regarding the complaint, and witness testimony proves all kinds of "reasonable doubt" these cases are still pushed through to trial and cause situations where the defendant is forces to prove his innocence..this is bad very bad trend away from our English common law heritage, and the Charter of rights and freedoms and should not be allow to continue.

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about 8 years ago

It is better to pass a separate law or an amendment to the Revised Penal Code imposing graver penalty for malicious prosecution since criminal action is faster to prosecute the guilty party and that it carries with it the civil aspect of damages to be awarded to the harassed litigant who becomes the receiving end for numerous and baseless cases without any other purpose except to harass him. I also suggest that lawyers who encourage filing of baseless numerous suits against a litigant be included in the criminal complaint aside from disbarment.

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almost 7 years ago