Arrested without probable cause, or prosecuted on a baseless charge? These are different claims with different clocks
I am Mitchell Bisson, a Grand Rapids civil rights lawyer. I have litigated for over 15 years. This page covers civil claims against police and other officials for a wrongful arrest, false imprisonment, malicious prosecution and fabricated evidence in Michigan: what each claim requires, how the deadlines run, and what the criminal case does to the civil claim. I represent the person who was arrested or prosecuted. When I take one of these cases, I start with the arrest report, the warrant papers and the docket of the criminal case, and I tell you where a claim is weak. I do not promise outcomes.
The short answer. A federal false arrest claim requires proof that the arresting officer lacked probable cause. Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005). A Fourth Amendment malicious prosecution claim requires, among other things, that the prosecution ended in the plaintiff’s favor, and the Supreme Court has held that a plaintiff need only show that the prosecution ended without a conviction. Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010); Thompson v. Clark, 596 U.S. 36 (2022). The deadlines differ. The Sixth Circuit has held that the period borrowed for a section 1983 claim arising in Michigan is the state’s three-year personal injury period, Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005), a false arrest claim followed by criminal proceedings begins to run when the person is detained pursuant to legal process, Wallace v. Kato, 549 U.S. 384, 397 (2007), and a fabricated evidence claim does not begin to run until the criminal proceedings end in the person’s favor. McDonough v. Smith, 588 U.S. 109 (2019). State-law false imprisonment and malicious prosecution claims have 2 years. MCL 600.5805(3), (7). Nothing here predicts how your claim will end.
People often describe all of this as one thing: the police got it wrong and I got charged. The law treats it as at least three. An arrest without probable cause is one claim. A prosecution started or kept going without probable cause is another. Fabricated evidence that carries a case forward is a third. Each has its own elements, its own starting date for the deadline, and its own defenses. A person who was arrested, held, charged and later had the charge dismissed may have all three, and the dates are not the same.
The usual federal vehicle is section 1983, which makes liable to the injured party every person who, under color of state law, subjects a person to the deprivation of rights secured by the Constitution and laws. 42 U.S.C. 1983. Michigan also recognizes its own tort claims for false imprisonment and malicious prosecution. A case can include both. They are not interchangeable, and a state-law claim carries a shorter deadline.
Michigan wrongful arrest and malicious prosecution claims at a glance
These are the elements and time limits in the cases and statutes. Which of them fits your facts depends on what happened at the arrest, what the officers told the prosecutor, and how the criminal case ended.
| Claim | What must be shown | Time limit or start date | Authority |
|---|---|---|---|
| Federal false arrest (section 1983) | The arresting officer lacked probable cause | The Michigan borrowed period is 3 years; where the arrest is followed by criminal proceedings, it begins to run when the person is detained pursuant to legal process | Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005); Wallace v. Kato, 549 U.S. 384, 397 (2007); Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005); MCL 600.5805(2) |
| Michigan false imprisonment | An act intended to confine, that results in confinement, of which the person is conscious, and without probable cause | 2 years | Walsh v. Taylor, 263 Mich. App. 618, 627 (2004); MCL 600.5805(3) |
| Federal malicious prosecution (Fourth Amendment) | A prosecution was started and the defendant made, influenced or participated in the decision to prosecute; no probable cause; a deprivation of liberty apart from the initial seizure; the proceeding ended in the plaintiff’s favor (ended without a conviction) | The Michigan borrowed 3-year period; the Supreme Court has described a malicious prosecution claim as one that accrues only once the criminal proceedings have resolved in the plaintiff’s favor | Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010); Thompson v. Clark, 596 U.S. 36 (2022); Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005); McDonough v. Smith, 588 U.S. 109 (2019) |
| Michigan malicious prosecution | A criminal prosecution was initiated; it ended in the plaintiff’s favor; no probable cause; malice or a purpose other than bringing an offender to justice | 2 years | Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 378 (1998); MCL 600.5805(7) |
| Fabricated evidence (section 1983) | The defendant knowingly fabricated evidence, and there is a reasonable likelihood the false evidence could have affected the judgment of the jury | The Michigan borrowed 3-year period, which does not begin until the criminal proceedings end in the person’s favor | Mills v. Barnard, 869 F.3d 473, 484 (6th Cir. 2017); McDonough v. Smith, 588 U.S. 109 (2019); Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) |
| Claim by a person who was convicted | The conviction or sentence has been reversed, expunged, declared invalid or called into question by a federal habeas writ, if the claim would necessarily imply the invalidity of the conviction | Depends on the claim; do not wait to ask | Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) |
What makes an arrest unlawful
A federal false arrest claim requires proof that the arresting officer lacked probable cause. Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005). Probable cause is the question that decides most false arrest cases, so it is where I start: what the officer knew, what the officer wrote down, and when the officer knew it.
Michigan’s warrantless arrest statute lists the situations in which a peace officer may arrest without a warrant. They include a felony, misdemeanor or ordinance violation committed in the officer’s presence, and a case where the officer has reasonable cause to believe that a misdemeanor punishable by imprisonment for more than 92 days or a felony has been committed and reasonable cause to believe the person committed it. MCL 764.15(1)(a), (d). The statute also covers arrests on information that another officer or a court holds a warrant. MCL 764.15(1)(e). The statute lists other situations as well. A violation of a state arrest statute does not by itself decide the federal claim: the Supreme Court has held that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. Virginia v. Moore, 553 U.S. 164, 176 (2008). So I treat the statute as the starting point for the state-law claim and the Fourth Amendment as the question for the federal one.
A person who was held after an arrest may also have a state-law claim for false imprisonment. In Michigan its elements are an act committed with the intention of confining another, an act that directly or indirectly results in the confinement, and a person who is conscious of the confinement, and the restraint must have occurred without probable cause to support it. Walsh v. Taylor, 263 Mich. App. 618, 627 (2004). The state-law period is 2 years for an action charging false imprisonment, and 2 years for an action against a sheriff charging misconduct or neglect of office by the sheriff or the sheriff’s deputies. MCL 600.5805(3), (9).
Arrests on a warrant
An arrest on a warrant is a hard fact for a false arrest claim. The Sixth Circuit has stated that an arrest pursuant to a facially valid warrant is normally a complete defense to a federal constitutional claim for false arrest or false imprisonment made under section 1983. Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005). The exception is a warrant that was obtained by dishonest means. The Supreme Court held in Franks v. Delaware, 438 U.S. 154, 155-56 (1978) that, where a defendant makes a substantial preliminary showing that a false statement, made knowingly and intentionally or with reckless disregard for the truth, was included in the warrant affidavit, and the false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.
The Sixth Circuit has applied that principle in a civil case. In a section 1983 case an officer cannot rely on a judicial determination of probable cause if the officer knowingly makes false statements and omissions to the judge such that, but for those falsities, the judge would not have issued the warrant. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010). So when a client was arrested on a warrant, I read the affidavit against the investigative file, line by line. If the affidavit leaves out facts that cut against probable cause, or states facts the file does not support, the warrant may not protect the officer.
When the clock starts on a false arrest claim
The Supreme Court held that the statute of limitations on a section 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Wallace v. Kato, 549 U.S. 384, 397 (2007). In Michigan the borrowed period is 3 years, Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005), so the clock for a false arrest claim does not wait for the criminal case to end.
That creates a practical problem when a criminal case is still pending. The Court addressed it in the same case: if a plaintiff files a false arrest claim before he has been convicted, it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended. Wallace v. Kato, 549 U.S. 384, 393-94 (2007). I look at the dates in both cases together so that a civil claim is not lost while a criminal case runs, and so that nothing filed in the civil case hurts the defense of the criminal one.
Malicious prosecution under federal law
To succeed on a malicious prosecution claim under section 1983 premised on the Fourth Amendment, the Sixth Circuit requires four things. First, a criminal prosecution was initiated against the plaintiff and the defendant made, influenced or participated in the decision to prosecute. Second, there was no probable cause for the prosecution. Third, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure. Fourth, the criminal proceeding was resolved in the plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). The court in that case also concluded that malice is not an element of a section 1983 suit for malicious prosecution. Sykes v. Anderson, 625 F.3d 294, 310 (6th Cir. 2010).
Two Supreme Court decisions shape the last element and the second. On favorable termination, the Court held in Thompson v. Clark, 596 U.S. 36 (2022) that a plaintiff need not show that the criminal prosecution ended with some affirmative indication of innocence, and need only show that the prosecution ended without a conviction. A dismissal without explanation can satisfy the element. On probable cause, the Court held in Chiaverini v. City of Napoleon, 602 U.S. 556 (2024) that the presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious prosecution claim relating to another, baseless charge. The Court explained that, under the Fourth Amendment, a pretrial detention counts as an unreasonable seizure unless it is based on probable cause.
The Sixth Circuit had held that so long as probable cause supports at least one charge, a malicious prosecution claim based on other charges fails, and the Supreme Court vacated that decision. Chiaverini v. City of Napoleon, 602 U.S. 556 (2024). The question is now asked charge by charge. I list every charge in a client’s case, what each one required, and which one kept the client in custody or on bond conditions.
Malicious prosecution under Michigan law
The Michigan Supreme Court states the elements of a malicious prosecution claim this way: the plaintiff must prove that the defendant initiated a criminal prosecution, that the proceedings terminated in the plaintiff’s favor, that the defendant lacked probable cause, and that the action was undertaken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice. Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 378 (1998). Unlike the federal claim, the state-law claim has a malice element. The period of limitations is 2 years for an action charging malicious prosecution. MCL 600.5805(7).
The state claim has its own defense that I look at early. The Michigan Supreme Court has held that a prosecutor’s exercise of independent discretion in initiating and maintaining a prosecution is a complete defense to an action for malicious prosecution. Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 384 (1998). Whether that defense fits a given case depends on who the defendant is and on what information reached the prosecutor, so I look at what the officer put in the report and told the prosecutor before the charge was filed.
Fabricated evidence
A claim that an officer made up evidence is different from a claim that an officer made a mistake. The Sixth Circuit describes the basis of a fabrication of evidence claim under section 1983 as an allegation that a defendant knowingly fabricated evidence against the plaintiff and that there is a reasonable likelihood that the false evidence could have affected the judgment of the jury. Mills v. Barnard, 869 F.3d 473, 484 (6th Cir. 2017). Examples are a report that records a statement nobody made, a lab result that was altered or a witness account that the officer wrote and the witness never gave.
The deadline for this claim has its own rule. The Supreme Court held in McDonough v. Smith, 588 U.S. 109 (2019) that the statute of limitations for a fabricated evidence claim like the one in that case does not begin to run until the criminal proceedings against the defendant have terminated in his favor. In Michigan the length of the period is the 3 years borrowed for section 1983 claims. Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005). A person who sits through a trial on fabricated evidence and is acquitted has a different start date from a person who was arrested on a false report, and the difference can be years.
If you were convicted
A conviction changes the civil case. The Supreme Court held in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by the issuance of a federal writ of habeas corpus. The Court added that the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of the conviction or sentence, and that if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994).
Whether a particular claim would necessarily imply the invalidity of a conviction depends on what the claim alleges and what the conviction required. A claim about the way an arrest was carried out may sit differently from a claim that the evidence supporting the conviction was fabricated. If the criminal case ended in a dismissal or an acquittal, there is no conviction for the claim to contradict, and the question becomes the favorable termination element discussed above. I sort this out in the first meeting, because it controls the order of the work. If a conviction is the obstacle, the next step may be the criminal appeal or a post-conviction motion before the civil case is filed.
Defenses to expect
The defendants in these cases rarely just deny the facts. The defenses I expect include probable cause, which the officer will argue from the report; the warrant, which the officer will argue protects the arrest; the independent decision of the prosecutor; qualified immunity for the individual officers on the federal claims; governmental immunity on the state-law claims; the deadlines in the table; and a pending or completed criminal case. I read the case against each of those before I tell you whether I think a claim is worth pursuing. Not every arrest that ended badly is a claim, and I tell you that.
How I handle a wrongful arrest or malicious prosecution case
- Get the criminal file. I collect the arrest report, any warrant and affidavit, the charging document, the docket and the disposition, and I note every date.
- Separate the claims. I sort the facts into false arrest, false imprisonment, malicious prosecution and fabricated evidence, and I fix a deadline for each under MCL 600.5805 and the federal rules above.
- Test probable cause. I compare what the officer knew with what the report says, and I compare each charge with the facts that supported it.
- Check the conviction question. If there is a conviction, I decide whether the claim would necessarily imply its invalidity before anything is filed.
- Preserve evidence. I write to the agency and the county about video, dispatch audio, body camera footage and jail records, and I ask you to keep your own photographs, messages and medical records.
- File in the right place, on time. A claim is filed before the earliest deadline, under federal law, state law or both, against the officers and the government bodies that may be responsible.
- Discovery, motions and resolution. Defendants often raise immunity and probable cause early. Claims settle, are decided on motion or go to trial, and I keep you informed at each stage.
What I need from you
Bring every paper from the criminal case: the citation or complaint, the bond papers, the charging document, any order of dismissal or judgment, and the name of the lawyer who handled it. Write down the date and time of the arrest, who arrested you, what you were told, where you were held and for how long, and who was there. Note any video, including phone video, store cameras and doorbell cameras, and who has it. Keep photographs, text messages and medical records. Tell me what you said to the police and whether you were read your rights. If your criminal case is still open, tell me before you speak with anyone about the civil claim, and do not post about the case. Do not sign anything from the county, an insurer or a prosecutor without talking to me first.
Where your Kent County case will be heard
I represent clients in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. In Kent County the circuit court is the Kent County Circuit Court, the 17th Judicial Circuit. A misdemeanor arrest in Kent County may be handled in the 61st District Court in Grand Rapids, the 59th in Walker and Grandville, the 62A in Wyoming, the 62B in Kentwood or the 63rd for Rockford, Lowell, Cedar Springs, East Grand Rapids and the surrounding townships. A felony is bound over to the Kent County Circuit Court. The court that holds the criminal case matters to the civil claim because its docket is the record of how the case ended. I confirm at the consultation where the criminal case stands and where the civil claim should be filed.
Why people hire me for a wrongful arrest or malicious prosecution claim
You work directly with me, the lawyer handling your case. I give you the strengths and weaknesses straight, including the deadline, what the criminal record shows, and the defenses the other side will raise. I read the file before I advise you, and then we decide together how to proceed.
Fees depend on the claim, its complexity and whether the case is likely to go to trial. I explain my fee arrangement at the consultation, before you decide whether to hire me.
Questions I hear from people arrested or prosecuted in Michigan
What makes an arrest unlawful under federal and Michigan law?
A federal false arrest claim requires proof that the arresting officer lacked probable cause. Michigan’s warrantless arrest statute, MCL 764.15, allows arrest in several situations, including when an officer has reasonable cause to believe a felony, or a misdemeanor punishable by more than 92 days, was committed and that you committed it, or when an offense occurs in the officer’s presence.
Can I sue if I was arrested on a warrant?
Usually not for false arrest. An arrest on a facially valid warrant is normally a complete defense to a federal false arrest claim. But the Supreme Court has recognized in Franks v Delaware that a warrant affidavit containing a knowing or reckless falsehood necessary to probable cause can be challenged, so a claim may remain where officers lied to get the warrant.
When does the clock start on a Section 1983 false arrest claim if I was charged afterward?
Under Wallace v Kato, the limitations period for a Section 1983 false arrest claim, where the arrest is followed by criminal proceedings, begins when you become detained pursuant to legal process. In Michigan the borrowed period is 3 years. The clock does not wait for the criminal case to end.
What do I have to prove for a federal malicious prosecution claim?
In the Sixth Circuit, a Fourth Amendment malicious prosecution claim requires that the defendant made, influenced, or participated in the decision to prosecute, that there was no probable cause for the prosecution, that you suffered a deprivation of liberty apart from the initial seizure, and that the case was resolved in your favor. The Sixth Circuit does not require malice.
Do I have to prove I was innocent to sue for malicious prosecution?
Not for the federal Fourth Amendment claim. In Thompson v Clark, the Supreme Court held that a plaintiff need only show that the criminal prosecution ended without a conviction, not that it ended with some affirmative indication of innocence. Michigan’s state-law version asks whether the proceeding terminated in your favor.
How is a Michigan state-law malicious prosecution claim different, and what is the deadline?
Michigan malicious prosecution requires that a criminal prosecution was initiated, that it terminated in your favor, that the defendant lacked probable cause, and that the action was undertaken with malice or a purpose other than bringing an offender to justice. The limitation period is 2 years under MCL 600.5805(7).
Can I sue if a Michigan officer made up or falsified evidence against me?
Possibly. A fabrication-of-evidence claim under Section 1983 alleges the defendant knowingly fabricated evidence and there is a reasonable likelihood the false evidence could have affected the outcome. The Sixth Circuit has also held that fabricating evidence is a pretrial, nontestimonial act that does not receive absolute immunity.
Does Heck v Humphrey block my civil rights suit if the charges against me were dismissed?
Generally no. Heck concerns convictions and sentences that have not been invalidated. If your case ended in a dismissal or acquittal, there is no conviction for the claim to contradict, which is the situation Thompson v Clark addresses for malicious prosecution. Other defenses, including probable cause, qualified immunity, and deadlines, can still apply.
Related Michigan pages
- Michigan civil rights attorney
- Excessive force
- Qualified immunity and governmental immunity
- Civil rights deadlines and notice requirements
- What happens after an arrest
I handle civil rights claims for people arrested without probable cause or prosecuted on baseless charges in Michigan. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.