Many of our clients claim that they have been falsely arrested. False arrest allegations are difficult to prove because law enforcement has the affirmative defense of "arguable probable cause". So while law enforcement can arrest you if probable cause exists to believe that a crime was committed and that the person arrested committed the crime, they must have a mere argument that the person they arrested meets those criteria to overcome a civil lawsuit.
Nonetheless, some, but not many, agencies are willing to accept responsibility for the wrongs they cause people they falsely arrest. Agencies should encourage law enforcement officials not to make spontaneous arrest decisions where there is not a risk of imminent danger. Thus, in cases involving claims of theft, embezzlement, or other fraud based crimes, the most prudent action is often to delay an arrest decision until a prosecutor can review the allegations, evidence and investigative materials to make a decision about whether probable cause exists for an arrest.
Prosecutors themselves are charged with the duty of determining whether the evidence suggests that they have a substantial likelihood of success on the merits and can succeed through the appellate process if an appeal of any conviction is taken. Unfortunately, often law enforcement makes an arrest decision in these fraud based cases without adequate evidence and without investigating potential exculpatory evidence. While the duty to investigate exculpatory defenses is not great, where the access to the information is readily available and is not unduly burdensome to law enforcement to obtain it and review it, a prudent law enforcement officer will look into potential exculpatory evidence to avoid making a false arrest.
Recently, Florida law was amended to allow, pursuant to Florida Statutes §943.0581, for an administrative expunction. Thus, an arrested person(s) can apply to the Florida Department of Law Enforcement for the administrative expunction of any non-judicial record of an arrest of a minor or adult where the agency determines in its discretion or a Court determines via a final Order that the arrest was contrary to law or by mistake. The fact that an administrative expunction is pursued does not mean it is an admission of liability connected with the arrest. In order to be granted by FDLE, this expunction process requires that the application be "supported by the endorsement of the head of the arresting agency or his/her designee or the state attorney of the judicial circuit in which the arrest occurred or his/her designee." Florida Statutes §943.0581(3).
This remedy needs to be invoked as part of the healing process when false arrest charges are levied against law enforcement agencies. Often, in addition to the financial burdens that a false arrest imposes on someone for potential job loss, the impact to reputation can be devastating. This administrative expunction is one form of relief our office will pursue if we represent a client. Many of my clients ask when they can get their mug shot off the local sheriff’s database. Unfortunately, many people spend their idle time checking these databases which only require a couple of clicks and can provide condemning, conclusory and unsupported inferences about one’s character. Our office is working to combat these problems for our clients and welcomes the opportunity to review your case.
