Malicious Prosecution

What is malicious prosecution?

In Florida, a person has a right to protection from unjustifiable litigation or unwarranted criminal prosecution. Malicious prosecution occurs when someone misuses the legal machinery of Florida for an improper purpose by wrongfully commencing a judicial proceeding. A legal claim of malicious prosecution arises when one person (the plaintiff) brings a criminal or civil action against another person (the defendant) with malice and without probable cause. “Malice” in this context means that a person sued or charged someone with the intent to cause harm or injury to the person rather than to seek justice.

Suppose Person A falsely accuses Person B of committing theft and initiates criminal action against Person B. Person A does this with malice, hoping to cause harm or injury to Person B, and has no probable cause to believe Person B committed the theft. The criminal action goes to trial, and Person B is ultimately acquitted of the charges. Person B may then sue Person A for malicious prosecution.

It’s important to note that the fact Person A lost the case does not necessarily mean malicious prosecution occurred. Many people may be mistaken when accusing someone of a crime despite genuinely believing the suspect is guilty. Person B must still prove that Person A acted with malice and without probable cause and that the case caused them actionable harm.

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What legal issues typically arise related to malicious prosecution?

The following disputes are among the most common to malicious prosecution:

• Probable cause: To prove malicious prosecution, the plaintiff must show that the defendant acted without probable cause. Accordingly, parties may dispute whether the defendant had a reasonable belief that the plaintiff was guilty of the crime or liable for the civil claim when the action was brought.
• Statute of limitations: In Florida, there is a four-year statute of limitations for malicious prosecution claims, beginning when the court dismisses the underlying action.
• Immunity: Government officials, prosecutors, and law enforcement officers have a certain level of immunity for malicious prosecution claims, and the plaintiff will have to prove that the official acted outside of their official capacity.
• Damages: The plaintiff must show that they suffered damages due to the malicious prosecution, such as emotional distress, lost wages, and damage to reputation.
• Standard of proof: The threshold to prove malicious prosecution is high, and the plaintiff must show that the prosecutor initiated the action knowing that the claim is false.

What are relevant laws related to malicious prosecution in Florida?

Florida Statutes applicable to malicious prosecution include the following:

• Section 95.11 provides a four-year statute of limitations for malicious prosecution claims; and
• Section 768.28 provides immunity for law enforcement officers and others for actions taken in the course of their official duties, although there are exceptions to this immunity

Common law principles (the judicial decisions of Florida courts) also apply and often interpret Florida statutes. For instance, Florida courts have held that malicious prosecution claims against the state of Florida and its subdivisions are barred by Florida Statute 768.28(9)(a). Johnson v. State Dep’t of Health & Rehab. Servs., 695 So. 2d 927, 930 (Fla. 2d DCA 1997).

What is required to prove a case of malicious prosecution in Florida?

To prove a case of malicious prosecution in Florida, the plaintiff must typically establish the following elements:

• Institution or continuance of a legal action: The plaintiff must show that a legal action against the plaintiff, such as a criminal or civil lawsuit, was instituted or continued;
• Defendant caused it: The plaintiff must show that the defendant was the legal cause of the original proceeding against the plaintiff;
• Termination in favor of the plaintiff: The plaintiff must show that the court terminated the legal action was terminated in their favor, such as an acquittal in a criminal case or a dismissal in a civil case;
• Absence of probable cause: The plaintiff must show that the defendant’s actions were taken without probable cause, meaning that the defendant did not have a reasonable belief that the plaintiff was guilty of the crime or liable for the civil claim at the time the action was brought;
• Malice: The plaintiff must show that the defendant acted with malice, which means that the defendant acted with the intent to cause harm or injury to the plaintiff; and
• Damage: The plaintiff must show that they suffered damages due to the malicious prosecution, such as emotional distress, lost wages, and damage to reputation.

Malicious prosecution can be challenging to prove, partly because the plaintiff must provide evidence that the prosecution initiated the underlying case knowing that the claim or charge was false.

When a set of facts is appropriate to meet the requirements of malicious prosecution, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path forward to seek appropriate remedies, such as:

• Compensatory damages arising from actual financial loss, expenses, mental suffering, and bodily pain and suffering.
• Punitive or exemplary damages arising from a showing the defendant acted with malice and willfully in a wanton disregard for the rights of others.

To see what actions may be available for your unique situation, please contact our office to set up your initial consultation.

What are common defenses to malicious prosecution in Florida?

The primary defenses to malicious prosecution in Florida include:

• Probable cause: The defendant may argue that there was probable cause for the legal action, meaning that the defendant had a reasonable belief that the plaintiff was guilty of the crime or liable for the civil claim when the action was brought.
• Lack of malice: The defendant may argue that they did not act with malice and brought the underlying legal action intending to seek justice.
• Statute of limitations: The defendant may argue that the statute of limitations, generally four years from when a court dismisses the underlying case, bars the claim.
• Immunity: Government officials, prosecutors, and law enforcement officers have a certain level of immunity in malicious prosecution claims, and the defendant may argue that the plaintiff has not met the burden of proof to overcome this immunity.
• Lack of injury: The defendant may argue that the plaintiff has not suffered any damages due to the malicious prosecution.

One core strategy for defending against malicious prosecution claims is to pick apart the plaintiff’s case by showing that they lack the elements necessary to bring the claim. For malicious prosecution claims in particular, which require proof of multiple elements under Florida law, this can be an effective way to shut down the case for the defense.

To see what defenses may be available for your unique situation, please contact our office to set up your initial consultation.

Have more questions about a malicious prosecution-related situation?

Crucially, this overview of malicious prosecution does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain a tireless advocate every step of the way. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to set up a consultation.