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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1804
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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Can a police dept. and state atty. be sued for Malicious prosecution

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Can a police dept. and state atty. be sued for Malicious prosecution if they dropped a case for lack of evidence and then after the person contacts a civil atty, the police call the State Atty and push to have the charges refilled?
The short answer is no. In Florida, you can sue for malicious prosecution only if

(1) The pary to be sued commenced or continued an original criminal or civil judicial proceeding;

(2) The party to be sued was the legal cause of the original proceeding;

(3) The original proceeding was terminated in favor of the Plaintiff;

(4) There was an absence of probable cause in the original proceeding;

(5) The party to be sued acted with malice; and

(6) The Plaintiff suffered damages.

So, the criminal proceeding would have to actually be filed against you, there would have to be an absence of probable cause to bring the case and malice in doing, you would have to win and you would have to suffer damages ... then you could conceivably file a malicious prosecution case. Meeting the burden of proof in this kind of case is very difficult.

Furthermore, public agencies, such as the police department and the state's attorney's office have "sovereign immunity" from such suits. So, even if you could otherwise prove all of the elements of a malicious prosecution, you can't even sue governemental agencies for it.
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