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June 21, 2012

Whether to File A Malicious Prosecution Action In State Or Federal Court

By Michael H. Joseph

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Our New York police misconduct attorneys routinely handle malicious prosecution cases. The decision whether to file a malicious prosecution case in the New York State Courts or in the Federal Courts is often a judgment call which forces the civil rights attorney to choose among various risks.

Both New York law and Federal law under 42 USC 1983 recognize causes of action for malicious prosecution. One of the first issues is whether a notice of claim was filed. Under New York State law a notice of claim must be filed within 90 days of the termination of the prosecution. If the notice of claim is not timely filed, then special permission from the Court called leave must be obtained from the Court. However, in Federal Court there is notice of claim requirement. Also under New York State Law, there is a one year and ninety day statute of limitations period. However, a federal cause of action under the 3 year statute of limitations can be brought in state court, but the risk is that some Judges may still apply the one year and ninety day limitation or enforce the notice of claim requirement because most state Judges are not familiar with Federal Law.

However, there are many benefits to bringing a malicious prosecution action in State Court. First, the State Courts allow the attorneys to directly question witness, whereas in Federal Court, the Judges ask the question and often you end up with better juries in State Court because jurors open up more to lawyers than they do to Judges. Also the jury pools in places like Brooklyn, Queens, Manhattan and the Bronx, are better than the overall Federal Districts which include more conservative jurisdictions like Westchester, Sullivan Count and Suffolk.

Also a string of decisions in the Federal Courts makes the law more favorable to Plaintiffs in State Court. For example, if a case was dismissed in the interest of justice the Federal Courts have held that is not a favorable determination, so there is a malicious prosecution case cannot be brought where the case was dismissed in the interest of justice. However, the New York State Courts have held that a dismissal in the interest of justice can qualify as a favorable termination. Likewise, the federal cause of action has a deprivation of liberty requirement, which must have occurred after the arraignment, so often the deprivation of liberty which occurred between the false arrest and the arraignment cannot be bootstrapped to support the malicious prosecution case because malicious prosecution starts at indictment. In general, this means that to succeed on a malicious prosecution case in Federal Court, the Plaintiff must have been incarcerated for some period after the arraignment or had some other liberty restraint, such as being prohibited from leaving the State or being required to surrender their passport.

One of the main benefits of the Federal Court is more generous discovery and the Plaintiff’s attorney has the right under Federal Rule of Civil Procedure 45 to issue subpeonas to the prosecutor and other governmental agencies. In State Court you need a Court order to get these records. Also in Federal Court you generally get more access to the officer’s disciplinary records.

Our police misconduct lawyers have successfully handled malicious prosecution cases in both the Federal Courts of New York and in the State Supreme Courts including the Bronx, Manhattan, Brooklyn and Queens.

 
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