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    Colorado Sex Crime Charges Dismissed – Now Can I Sue The District Attorney? – Malicious Prosecution Suits

    By H. Michael Steinberg Colorado Sex Crimes  Criminal Defense Lawyer – Attorney

    Colorado Sex Crime Charges Dismissed – Now Can I Sue The District Attorney? – Malicious Prosecution Suits – The question often arises when an allegation which turns into a charge of a sex crime crumbles in the light ot day under the strict scrutiny of a criminal defense lawyer whether the now formerly accused can bring suit against a District Attorney for a “malicious prosecution.”

    The answer is yes but it’s complicated.

    Before embarking down the road to a civil lawsuit for what everyone would agree are the clear damage a sex crime investigation, arrest, charge and prosecution – taken together impact a person’s life, you need to understand the nature of the roadblocks that will rise in your path.

    Also, note this, I am not a personal injury lawyer. The information I provide is to make you aware of the right to bring a malicious prosecution lawsuit but the nuts, bolts and reality of success in these cases must be left to the many great civil law suit firms in this state.

    A Colorado Malicious Prosecution Lawsuit Following The Dismissal Of A Criminal Case

    First lets distinguish another similar form of civil abuse lawsuit the “Abuse of Process” case. Under Colorado law a valid Abuse of Process claim must allege:

    (1) an ulterior purpose for the use of a judicial proceeding;

    (2) willful action in the use of that process which is not proper in the regular course of the proceedings, (i.e., use of a legal proceeding in an improper manner); and

    (3) resulting damages.

    As you can see an abuse of process claim does not require proof of malice. This tort is specifically designed to address misuse of and access to courts, not malicious intent. The required motive in an abuse of process claim is to put pressure on the person who is wrongfully sued such as in a frivolous civil case – to perform or to refrain from performing an action unrelated to the process. And the tort is not actionable unless an ulterior purpose is combined with an improper use of a legal proceeding or process that is unrelated to, or outside the scope of, the action filed.

    Compare False Arrest, False Imprisonment

    If a person is arrested by a police officer who lacks legal authority for the arrest, there lies a civil action for false arrest.

    If a person is confined against her or his will have grounds to file a suit for false imprisonment.

    A suit for Malicious Prosecution lies in the unique abuse of the authority of a government official such as the District Attorney who is using the criminal justice system – and abusing the legal process – for malicious, wrong and wholly unconstitutional reasons.

    A Closer Look At A Case Of Malicious Prosecution

    A case for Malicious Prosecution might have the following circumstances -A criminal case is filed,

    • Without probable cause – and with no adequate legal basis, and
    • For an improper purpose, (harassment of the accused, destruction of a reputation, the shifting of blame, or gaining a business or other financial advantage).

    After such a case is filed – the criminal case is dismissed. It is only then that a possible foundation will exist for a civil suit for malicious prosecution which seeks primarily financial damages.

    This article addresses the possibility of suing a Colorado District Attorney.

    The FIVE ELEMENTS Of A Colorado Malicious Prosecution Lawsuit

    As noted above, a Colorado Malicious Prosecution claim is distinct from an Abuse of Process claims in that malicious prosecution claims require the Plaintiff to prove actual malice and must also prove that the underlying proceeding was resolved in the plaintiff’s favor.

    Here are the elements that must be proven under Colorado law to make out a Colorado Malicious Prosecution case:

    Under Colorado law the Tort of Malicious Prosecution requires the Plaintiff to show:

    (1) the Defendant was a party to or assisted in a prior action against the Plaintiff;

    (2) the prior action was resolved in the Plaintiff’s favor (criminal case was dismissed);

    (3) there was no probable cause for the prior action, or the Defendant lacked reasonable belief that the prior action would be successful;

    (4) the prior action was brought by the Defendant with malice or other improper motive; and

    (5) the Plaintiff suffered damages as a result.

    While all of these “elements” are crucial to success, the one most difficult hurdle to this lawsuit is the requirement to prove that the underlying criminal charges resulted in lack of probable cause. The quantum of evidence known as “probable cause” is a very low standard of proof in the Colorado criminal justice system and is the standard required to legal make an arrest.

    If a not guilty verdict was the reason for the dismissal but a Judge found probable case – the case becomes much more difficult, if not impossible to make.

    Colorado Malicious Prosecution Cases Are Usually Filed In Federal Court

    Called Section 1983 Actions – these Federal Lawsuits underlay your constitutional right to be free from a “malicious prosecution” by a government official.  You are protected under Section 42 United States Code Section 1983.

    42 U.S.C. § 1983, is a federal law that allows lawsuits for violations of constitutional rights:

    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

    Section 1983 Malicious Prosecution lawsuits are governed by both the Fourth and Fourteenth Amendments. The initial seizure is governed by the Fourth Amendment, but at some point after arrest, if the case reaches the trial stage, the constitutional analysis shifts to the Due Process Clause.

    Analysis of a § 1983 Malicious Prosecution claim begins with a review of the evidence to determine if the common law elements of the tort of malicious prosecution have been established.

    Only then, if the five elements of the tort have been established, (see above) will the analysis shift to the ultimate question of whether the Plaintiff has proven the deprivation of a constitutional right to enter in 1983 territory.

    The Most Important Roadblock To A Successful Malicious Prosecution Claim – Probable Cause

    In every state in the nation and at the Federal level – the law requires probable cause befor a citizen can be arrested. The DA must have enough evidence to establish probable cause to believe the defendant committed a crime.

    Probable cause, as noted, is a low standard. If there is enough evidence to support a finding that the defendant more likely than not committed a crime…that constitutes probable cause. This level of evidence is enough to defeat a malicious prosecution case in that the higher standard of “proof beyond a reasonable doubt –  is NOT necessary to arrest and file charges.

    Evidence establishing that a crime has been committed beyond a reasonable doubt, is necessary to establish guilt at trial.

    Almost the first question posed to me after the hugs following a not guilty verdict is “Now can I sue the DA?”

    The Involvement Of The District Attorney Must Be Direct – Not Peripheral

    The second most difficult element to prove is the direct involvement of the DA. It must be clear and direct control over the case and the prosecution of the case for an improper and malicious purpose. This kind of intent must be more than the mere negligence such as relying on an insufficient investigation. The Plaintiff in a Colorado Malicious Prosecution case must prove that the DA instigated the case with malicious intent or an improper motive.

    Was the DA the person who filed charges? Was he or she actively involved in the criminal case? The DA’s involvement cannot be a peripheral kind of participation such as signing off on the work of another District Attorney. The DA must directly manage and pursue the case – essentially serving as the “lead prosecutor” for the involvement to be “active.”

    Financial Damages – Never A Problem To Prove

    Proving damages is almost never an issue. The impact of an arrest and prosecution for a false sex Colorado sex crimes case would include damages for:

    • emotional distress,
    • humiliation and degradation,
    • injury to reputation,
    • loss of time, employment and or business, and
    • attorneys’ fees incurred in defending the prior proceeding.

    In especially egregious cases, the law also provides for punitive damages.

    Malicious Prosecution – Understanding Why The Tort Civil Action Exists

    Malicious Prosecution suits are not limited to prosecutors. In filing a lawsuit many other Defendants who knowingly aided and abetted the District Attorney can be sued. These individuals run the gamut from lying alleged victim’s and other witnesses who make the false complaints; law enforcement agencies who are aware of the nature of the case and refuse to investigate (see Trinidad Case below); and every lawyer who touches the case knowing the true nature of the reasons – the malicious reasons and improper motives  – for prosecuting the case.

    Colorado Prosecutor Immunity

    Colorado prosecutors do not have “absolute immunity” from malicious prosecution lawsuits. They have something called “qualified” or limited immunity. Absolute immunity is strictly limited to those officials whose “special functions or constitutional status requires complete protection from suit, it is the exception rather than the norm.”

    Qualified immunity, in contrast, represents the norm, especially for executive officials such as Colorado District Attorneys.

    Qualified immunity provides a governmental official performing a discretionary function with an entitlement to immunity from liability upon a showing that the challenged conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

    While it is not the purpose of this article to delve deeply into the nature of a Colorado District Attorney’s qualified immunity – it is important to add some thoughts here.

    Prosecutors perform different functions in the performance of their jobs. They perform “advocatory” functions, which are closely related to the judicial process and thus are considered absolutely immune from liability. However DA’s also perform “investigative” or “administrative” functions, which have a more attenuated connection with the judicial process and are, therefore, for these functions prosecutors have only qualified immunity.

    The key here is to determine whether the acts of the District Attorney were “advocatory” or “investigative.” This inquiry focuses on how closely the act is associated with the initiation or conduct of a formal criminal prosecution.

    This is a complex analysis and would require too much space in this memo to make sense. It is enough to know that it is true that a prosecutor’s immunity is well grounded in public policy. It is intended to protect prosecutors and other members of law enforcement to perform their function which the fear of constant civil law suits.

    On the other hand if a person has been unfairly “targeted” by the DA and it can be established that the prosecutor acted outside his authority in the process of illegally instigating or pursuing a criminal case, that DA’s immunity will not extend to those actions.

    Two Recent Well Publicized Cases For Malicious Prosecution

    The 2006 Duke Lacrosse Players Case

    In 2006, players of the Duke lacrosse team were falsely accused of sexually assaulting a local women. In this famous case several student athletes were arrested and charged destroying their lives. The District Attorney who was in a tight primary race for his job made every effort to make the case as publicly humiliating to the students as possible.

    Months and months later after these young men’s lives had been destroyed by the DA the defense uncovered that the rape claim had been all lies and was baseless. More importantly to this article, it was learned that the prosecutor KNEW the claim of sexual assault was baseless long before the case was dismissed.

    The case was finally dismissed on grounds of malicious prosecution.

    The 2015 – Trinidad Colorado’s Confidential Informant Debacle

    In 2015, the City of Trinidad Colorado agreed to pay $375,000 to settle a lawsuit brought by the ACLU of Colorado on behalf of two innocent women who were wrongly arrested and prosecuted for crimes they did not commit.

    In 2013 in a reckless the police, using a “drug sting” procedure where the police recklessly, perhaps even intentionally, relied on the false accusations of an untrustworthy confidential

    To obtain arrest warrants in the case Trinidad Detectives deliberately concealed facts that it was later established they knew would destroy their informant’s (snitch’s) credibility. They hid the evidence that their informant:

    • had convictions for fraud and drug crimes,
    • was a known drug user,
    • had known biases against the people she claimed to have sold drugs to,
    • was a documented liar to law enforcement officers.

    Forty people were targeted, arrested and charged in the 2013 “drug sting,” on what was false, deficient, and misleading arrest affidavits. None of the cases resulted in a drug-related conviction.

    Trinidad police violated the constitutional rights of those targeted by using deficient procedures which gave untrustworthy informants an open invitation to:

    • lie outright in their statements,
    • to divert buy money that was supposed to be used to conduct “buy busts,”
    • skim drugs for their own use, and
    • by using their position as informants to settle personal scores against their enemies.

    In addition, the ACLU charges that the detectives laced the arrest affidavits with false and misleading assertions designed to manufacture probable cause for arrest.

    When the police turn a blind eye to obvious red flags that indicate that a snitch is not trustworthy, and worse, there will lie a civil suit for Maicious Prosecution.

    Summary And Conclusion – Colorado Sex Crime Charges Dismissed – Now Can I Sue The District Attorney? – Malicious Prosecution Suits

    The general rule is this, District Attorneys enjoy near absolute immunity from civil liability in connection with their pursuit of a criminal case. No one wishes to expose prosecutors to endless civil liability which lawsuits would clearly undermine the functioning of the criminal justice system.

    However, as in the Duke Lacrosse case, a prosecutor who pursues a case in the face of a complete lack of credible evidence, forensic or other forms of objective evidence, or clear evidence that an alleged victim is clearly lying for reasons of mental health or improper motive, … and then refuses to end that prosecution … becomes a collaborator in that false accusation.

    Not every failed criminal prosecution results in a malicious prosecution. You should locate and consult with a Colorado civil rights law firm who will evaluate your case and determine if you were maliciously prosecuted. That law firm will vigorously fight for you and, importanlty, may be able to use the Civil Rights Attorney’s Fees Awards Act of 1976 attorney’s fees to fund your case if the Malicious Prosecution violated one of your Constitutional Rights and was the result of he actions of a governmental agency – such as the District Attorney

    Colorado Sex Crime Charges Dismissed – Now Can I Sue The District Attorney? – Malicious Prosecution Suits

    If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.

    The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2017) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (18 years).

    The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

    If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

    Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

    Over 40 Years Specializing in Colorado Criminal LawABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

    [email protected]

    A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

    “A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

    You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 36 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

    Putting more than 36 years of Colorado criminal defense experience to work for you.

    H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Sex Crime Charges Dismissed – Now Can I Sue The District Attorney? – Malicious Prosecution Suits.

    Colorado Sex Crime Charges Dismissed - Now Can I Sue The District Attorney? - Malicious Prosecution Suits
    Article Name
    Colorado Sex Crime Charges Dismissed - Now Can I Sue The District Attorney? - Malicious Prosecution Suits
    The question often arises when an allegation which turns into a charge of a sex crime crumbles in the light ot day under the strict scrutiny of a criminal defense lawyer whether the now formerly accused can bring suit against a District Attorney for a "malicious prosecution."

    Other Articles of Interest:

    If you found the information provided on this webpage to be helpful, please click my Plus+1 button so that others may also find it.

    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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