Strauss-Kahn: From Defendant to Plaintiff?

After spending six weeks as a defendant in a criminal sexual assault case that now appears to be falling apart, Dominique Strauss-Kahn may have a seat waiting for him at the plaintiffs’ table, but taking it comes with risks and small chances for success.

Strauss-Kahn, 62, was the leading contender for the French presidency when he was arrested in May and forced out as chief of the International Monetary Fund over the charges he assaulted a 32-year-old housekeeper at his upscale hotel in midtown Manhattan.

Manhattan District Attorney Cyrus Vance said Friday his office had not dropped the charges against him but the case is in jeopardy after prosecutors called into question the accuser’s credibility on several fronts.

If charges are eventually dropped, Strauss-Kahn, 62, may be motivated to bring a civil suit against New York City police officers or prosecutors in the District Attorney’s office.

“He lost his position at the IMF,” said Michael Joseph, an attorney who specializes in malicious prosecutions. “His economic damages are potentially huge.”

His arrest also appeared to have dashed any aspirations he had to lead France’s Socialists to victory in the 2012 presidential race. He was leading the polls when he was arrested although he had not yet declared his candidacy.

Individuals who believe they were falsely accused typically bring false-arrest or malicious-prosecution claims, seeking economic damages.

In the case of Strauss-Kahn, the damages may include lost wages, pain and suffering, attorneys’ fees and money spent to adhere to his bail conditions, which have been costing him an estimated $250,000 a month.

Winning such cases is considered extremely difficult, and bringing a civil suit could open Strauss-Kahn’s past to more scrutiny.

“Most of these people walk away with nothing except their freedom,” said Stephen Bergstein, an attorney at Bergstein & Ullrich who specializes in civil-rights cases.

To bring a false-arrest claim, a plaintiff has to show that a police officer had no probable cause for the arrest. In arresting Strauss-Kahn, police relied on statements made by the accuser, which would very likely be found to have established probable cause.

“So long as they think the witness is credible, they can rely on the victim’s account in making the arrest,” Bergstein said.

It does not matter that prosecutors have now found inconsistencies in her story, Bergstein added. What matters is what the police officers relied on when making the arrest.

“Most false-arrest cases fail,” said Bergstein. “I find that there’s always some way for the government to win these cases.”

Police officers are also buffeted by the fact that a grand jury voted to indict Strauss-Kahn.

“Once the grand jury indicts, there’s a presumed probable cause,” said Joseph Bavaro of Salenger, Sack, Kimmel & Bavaro, who has experience in false-arrest cases.

If winning a false-arrest case is difficult, winning a malicious-prosecution case is nearly impossible. For public policy reasons, prosecutors are immune from civil liability for acts they take while working in their official capacity, regardless of motive.

In 2005, the U.S. Court of Appeals for the Second Circuit ruled for New York prosecutors, who were accused of targeting a defendant based on personal reasons.

The appellate court ruled that even if the allegations were true, the prosecutors would be immune because they took the actions in their official capacity.

To succeed in bringing a claim, a plaintiff would have to show that a prosecutor took actions outside his authority, such as manipulating evidence in the investigative stage of a case.

In Strauss-Kahn’s case, no such allegations of improper motive have emerged. In fact, it was prosecutors who disclosed to Strauss-Kahn’s lawyers in a letter that the accuser’s credibility had been called into question.

Beyond prosecutors and the police, Strauss-Kahn may have a claim against his accuser for malicious prosecution. But that may subject him to more questions about the hotel-room incident, which he may want to avoid.

Slander and libel cases against the media have been brought by falsely accused in the past, but it would be hard for Strauss-Kahn to bring such a case since he is a public figure, said Joseph.

It’s possible that Strauss-Kahn will not pursue any case at all, of course.

“I would imagine he would be happy to go back to France and get on with his life,” said Bergstein.