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Notice of Claim - Chapter 6 - False Arrest and Police Misconduct

 
Price:
$40.00
Author: C. Elliot Kessler
Page Count: 8
Published: 2002
Media Desc: PDF from "False Arrest and Police Misconduct"
File Size: 106KB
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Originally from: 
False Arrest and Police Misconduct - PDF


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Notice of Claim

C. Elliot Kessler

A. Overview
      Many states, municipalities, and public and quasipublic
authorities require a Notice of Claim be served as a
condition to bringing a tort lawsuit. Forms for drafting a
Notice of Claim are in provided in Chapter 15 of this book.
      The time limit for filing the Notice of Claim is usually
quite short and consequently a source of difficulty for the
practicing attorney who is not familiar with this area of the
law or whose client retained him late.
      New York City’s General Municipal Law § 50(e) is
typical of the statutes requiring such a Notice of Claim:

“In any case founded upon tort where Notice of
Claim is required by law as a condition precedent to
the commencement of an action or special
proceeding against a public corporation as defined
in the general construction law or any officer,
appointee or employee thereof the Notice of Claim
shall comply with and be served in accordance with
the provision of this section for the 90 days after the
claim arises except in a wrongful death action ... the
90 days shall run to the appointment of a
representative to the decedent’s estate.”
Table of Contents
PART ONE
PRELIMINARY CONSIDERATIONS
 
 
1. False Arrest
 
2. Excessive Force
 
3. Assault and Battery
 
4. Negligence
 
5. Malicious Prosecution
 
6. Indifference to Medical Needs
 
7. Conspiracy to Violate Civil Right
 
8. Invasion of Privacy
 
9. Verbal Abuse and Harassment
 
 
A. Common Law Tort Action
 
B. Federal Rights Action
 
1. Background
 
2. Advantage to Bringing a Civil Rights Action
 
3. Special Requirements for Bringing a Federal Civil Rights Action
 
a. Violation of a Constitutional Right or Federal Law
 
b. Conduct Under Color of State Law
 
 
A. Legal Considerations
 
1. No Jurisdiction in Federal Court
 
2. Government Immunity
 
B. Practical Considerations
 
1. The Judge
 
2. The Jury
 
3. Jury Selection
 
4. Unanimous Verdicts
 
5. Special Courts
 
6. Discovery
 
7. Time to Get to Trial
 
 
A. Individual Officers
 
B. Supervisors
 
C. Municipalities
 
D. States
 
E. Federal Government
 
 
A. Overview
 
B. Tips on Drafting the Notice of Claim
 
1. In General
 
2. Special Consideration in False Arrest Cases
 
C. Late Notice of Claims
 
 
A. In General
 
B. When Does the Statute Begins to Run?
 
C. Tolling of the Statute of Limitations
 
 
PART TWO
BEGINING THE CASE
 
A. Getting Medical Assistance
 
B. Recreating the Events
 
C. Available Reports
 
D. Witnesses
 
E. Client Interview
 
F. Should I Take the Case? Client Interview Form
 
 
A. In General
 
B. Setting Forth the Facts
 
C. Special Allegations in False Imprisonment Cases
 
D. Special Allegations in Malicious Prosecution Cases
 
E. Pleading Damages
 
1. Compensatory Damages
 
2. Punitive Damages
 
 
A. General Principles of Discovery
 
B. Interrogatories versus Examination Before Trial
 
C. Discovery Request Checklist Preparing the client for Deposition
 
 
PART THREE
CAUSES OF ACTION
 
A. Elements of a False Arrest Claim
 
1. Intent to Confine
 
2. Consciousness of Confinement
 
3. Lack of consent to the Confinement
 
4. No Privilege to Confine
 
a. In General
 
b. Arrests Pursuant to An Arrest Warrant
 
c. Arrests Without a Warrant
 
d. Other Types of Confinement
 
 
 
1. Duty to Use Reasonable Care
 
2. Breach of Duty
 
3. Proximate Cause
 
 
A. Elements
 
B. Commencement or Continuation of a Proceeding
 
C. Favorable Termination of the Proceedings
 
D. Lack of Probable Cause Malice
 
 
PART FOUR
FORMS 
 
FORM 1: Notice of Claim for False Arrest
 
FORM 2: Notice of Claim for Malicious Prosecution
 
FORM 3: Notice of Claim for False Arrest and Malicious Prosecution Case
 
FORM 4: Leave to File Late Notice of Claim for Malicious Prosecution After Serving Timely Notice of Claim for False Arrest
 
FORM 5: Petition for Leave to File Late Notice of Claim for False Arrest and Malicious Prosecution After Favorable Termination of Criminal Charges
 
 
FORM 6: Discovery Demand
 
FORM 7: Examination Before Trial of Police Officer or Store Detective Checklist
 
 
FORM 8: Action in State Court for False Arrest, Assault and Battery, Negligence in Training, Supervising and Performance of Duties, Malicious Prosecution and Violation of Civil Rights Pursuant to 42 U.S.C. § 1983
 
FORM 9: Claim in Federal Court for False Arrest, Assault and Battery, Negligence in Hiring, Training and Performance of Duties, Malicious Prosecution and Violation of Civil Rights Pursuant to 42 U.S.C. § 1983
 
FORM 10: Complaint for False Arrest, Assault and Battery, Deprivation of Civil Rights and Punitive Damages Against Municipality and Police Officers for Arresting Plaintiff Without a Warrant or Other Legal Process
 
FORM 11: Complaint in Action Against Store Owner and Employee for False Imprisonment and Assault and Battery of Customer Accused of Shoplifting
 
FORM 12: Complaint in Action for False Arrest Against Corporation and Employee Who Caused a Police Officer to Arrest Plaintiff Without Warrant for Theft of a Vehicle
 
FORM 13: Malicious Prosecution Action Against Municipality
 
FORM 14: Malicious Prosecution Action Where Arrest Made Pursuant to a Valid Warrant
Author Detail

About the Author: 

C. Elliot Kessler
 has practiced in the area of criminal law for 12 years and worked as a research attorney for both the California Supreme Court and California Court of Appeals.

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