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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27747
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was falsely arrested and have been informed that this was

Resolved Question:

I was falsely arrested and have been informed that this was a "Malicious Prosecution" and I want to know if Dept of Social Services can be sued. We were investigated at the hospital when the baby was taken in and the SW from the county where the hospital is located and was told after talking with our kids that they see no signs of "Intentional Child Abuse" and closed the case. We were then told by this SW that the county that we live in is going to open it back up. He said" they offered me a job but I don't like thier practices. Our bail was set at $200,000 each and this was the first time either of us had ever been in the presence of being arrested which we didn't know until we were in a cage answering questions and after we had been questioned on 4 or 5 different occassions at the last interview we were told "you know you didn't have to talk to us" Well no we did not know that because this was our first encounter with the law. We had no Criminal record.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.

Malicious prosecution is an intentional tort. Basically you would need a civil tort litigator. If you don't know where to start looking for one, you can contact the NC bar association's Lawyer Referral Service and just tell them you are looking for a lawyer to help you sue the Department of Social Services. They prescreen their lawyers and would guarantee to steer you to an active member of the state bar in good professional standing. They charge around $50 for the referral but it includes a free half hour consultation with the lawyer.

As to your original question, it's possible but not easy to sue an agency. Government agencies and employees are immune from suit or prosecution when acting during the normal scope of their employment. To get passed that "immunity" barrier, you would need to demonstrate negligence or misconduct on the part of the agency.

Thereafter, in order to win a case for false arrest/malicious prosecution you would basically have to prove four separate elements:

(1) that you were arrested because of the defendant's actions,
(2) that the original case was terminated in your favor
(3) that there was no probable cause for your arrest
(4) that the defendant initiated and/or continued the case for some other purpose than bringing you to justice.

The first and second elements are always easy to prove in cases like this. The third and fourth element are very difficult to prove. Probable cause is just a reasonable belief that you may have been involved in criminal activity. It doesn't take much evidence to make an arrest.

But you really should quickly seek out a lawyer and let him tell you whether or not he thinks you have a viable suit. Even if he doesn't particularly feel that he can make all 4 points convincingly you might be able to get some kind of a settlement.

The shelf life for this type of a case is short. And generally, and in many jurisdictions you must also put the county on notice that a suit will be forthcoming to protect your right to sue. So you will want to start talking to lawyers soon, as it may take you a while to find one. Many local lawyers don't like going head to head against local government agencies.

Good luck
Customer: replied 5 years ago.
This case went on for 14 months, I was offered from a Felony to a no contest plead of which neither I took. The case was dismissed,everytime we went to court they just kept postponing. The DSS has made the statement to the agency that we were fostering parents that they "REFUSE TO PLACE CHILDREN IN THIS HOME" so to me this was their chance to make a move. My husband was arrested for the same case and they told me that if I wanted my son to move back home I would have to move out of which I did for 21 and they told my husband "we can release your son to your custody because your wife "has a criminal case pending", WE HAD THE SAME CHARGES, COURT DATE AND DISMISSAL ON THE SAME DAY. I know there has got to be something that can be done the little girl that was placed in our home for adoption has been moved we no longer have contact with her. My husband has lost a 63,000 a year job because IBM has a no tolerance policy so he had to take early retirement to keep from losing his retirement. He had to drain his 401K to get us out of jail. My son no longer sleeps in his room because he says we are going to leave him. Do I have to have a lawyer from the county in which we live to file this suit?
Expert:  Zoey_ JD replied 5 years ago.

Well it certainly seems that you were put through an ordeal on many different levels and that you had damages as a result of the arrest and its consequenes. And like I say, sometimes the county just proposes a settlement rather than go through the mess of a trial. So even if the lawyer hears all of your evidence and doesn't think it's the world's best trial case, if he thinks he can get you something he can take it on.

A local lawyer is easier for you and will have a "home court advantage" because he will know all of the court personnel, which can be helpful sometimes. But as long as the lawyer you hire has a license to practice in your state, he can come from anywhere.

Good luck!!
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