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.

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.

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.

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.

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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  • 5 Computer Crimes That Can Get You Arrested (FindLaw Blotter)

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