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Drafting the Complaint - Chapter 9 - False Arrest and Police Misconduct

Author: C. Elliot Kessler
Page Count: 6
Published: 2002
Media Desc: PDF from "False Arrest and Police Misconduct"
File Size: 103KB

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False Arrest and Police Misconduct - PDF

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Drafting the Complaint

C. Elliot Kessler

A. In General

      While the complaint may not be the first formal
document served by a claimant in a police misconduct case
against a state, municipality, public or quasi-public
corporation, it is the most important. The complaint
provides the grid upon which the case will proceed. It
outlines the issues that are the meat of the action, and an illdrafted
complaint can unduly restrict the plaintiff’s
presentation and be subject to a motion to dismiss for
insufficiency. Consequently, great care should be taken in
constructing this document. The admonishment in Chapter
6 concerning drafting of the notices of claim and
distinguishing between the separate causes of action (see
also Chapter 2 for listing of possible causes of action)
applies with equal force to the drafting of the complaint.
      While it is the practice in both the state and federal
courts to liberally construe pleadings, there seems to be, at
times, a different standard for actions for false
imprisonment, malicious prosecution and police
misconduct. No other explanation can be offered for this
deviation except the unfavorable light in which these types
of civil rights cases have, in the past, been held in the eyes
of some members of the judiciary.
Table of Contents
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
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
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
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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