The police do not have a right to arrest you unless they have a warrant for your arrest or they have probable cause to believe you have committed a crime. This does not mean that the police must believe beyond a reasonable doubt that you committed a crime; only that it is reasonable to believe that you did. If the police issue a false accusatory instrument against you — usually a criminal complaint — then, in addition to falsely arresting you, they have maliciously prosecuted you. Each time an officer testifies falsely against you, such as in the Grand Jury, you may have a separate malicious prosecution cause of action.
An arrest occurs when the police stop you and detain you. The police need probable cause even for temporary detentions where you are released before you are taken to the precinct. Usually, however, an arrest involves being taken to the precinct, "booked" and then being taken to Central Booking to appear before a judge.
In order to have a claim for false arrest and malicious prosecution, you must have a "favorable disposition" of your criminal case - that is, a dismissal. However, we strongly advise you to take the advice of your criminal defense attorney very seriously before deciding not to plead guilty. Your first concern in criminal court must be your criminal case, not preserving a potential future civil case.
The court may offer you an Adjournment in Contemplation of Dismissal ("ACD"). If you accept it, you are free to go and if you stay out of trouble for 6 months, your case is dismissed and sealed. You will still have a false arrest case under federal law if you accept an ACD.
Sometimes, suspects are taken to Central Booking and they are released before ever seeing a judge. This means that the District Attorney's office has "declined to prosecute". Clearly, this is a favorable disposition preserving your right to sue for false arrest.
Once you are arrested and taken to the precinct, the police may decide not to take you to Central Booking. They may give you a desk appearance ticket instead, which requires you to go to court to answer the charges at a later date. Make sure you appear on the appointed date, as failing to appear will mean the issuance of a warrant. Beyond that, the ticket must be dismissed or you must be found not guilty in order to preserve your false arrest and malicious prosecution claims. Similarly, if the officer decides to write you a summons without taking you to the precinct, make sure you follow up on the court date.
If you believe you were falsely arrested by police officers and all charges against you have been resolved, you should contact the Civilian Complaint Review Board in New York City or your local independent agency that accepts complaints about police officers. You also may have a valid legal claim against the officers. Stoll, Glickman & Bellina, LLP are not afraid to take on NYPD aggressively because we do it every day. Please contact us for a free consultation if you think your rights have been violated.
Know your rights - enforce your rights!
