If a person is unlawfully arrested what options do they have to file a case against the state?
Question Details:
My girlfriend is on bond for a DWI. She has not violated the terms of her bond. She had not been through revocation hearing and her license was still good. The arresting officer pulled her over for a bad headlight as she was driving home from work, then he took her to jail because he thought her license was suspended (DPS showed it was still valid). The next day the judge released her because there was no reason for the arrest. Can she have a valid case against the officer, DA, State for being imprisoned unlawfully? What are the steps that need to take place in order for her to file a case?
Personal Injury Law Answers
Typically, a case like this will get filed as a violation of the arrested person's civil rights, under 42 U.S.C. sec. 1983; specifically, the complaint would allege a warrantless arrest without probable cause, in violation of her rights under the Fourth and Fourteenth Amendment to be free from unreasonable seizures of her person.
That suit can be brought in the U.S. District Court, and any state law requirements, for advance notice of a suit or other special conditions for suing the polilce, don't apply to the case. She can sue for damages and, if she wins, for her attorneys' fees, under 42 U.S.C. sec. 1988.
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