False arrest
Encyclopedia
False arrest is a common law
tort
, where a plaintiff
alleges they were held in custody without probable cause
, or without an order issued by a court of competent jurisdiction. Although it is possible to sue law enforcement officials for false arrest, the usual defendants in such cases are private security firms.
and police agents are in excess of those afforded to ordinary citizens (see citizen's arrest
). However, the powers of police officers to arrest are not unlimited. Generally speaking:
, and are brought against security guards and retail stores. A guard cannot arrest someone merely on the suspicion that person is going to commit a theft. In most jurisdictions, there must be some proof that a criminal act has actually been committed. For example, a guard does not have reasonable and probable cause if a shopper has not yet paid for merchandise they are carrying in the belief that the person intends to leave without making payment. Instead, there must be an actual act committed the person must make an actual attempt to leave the store without paying for the merchandise.
Note though that some states have enacted "merchandise concealment" laws as a way around this limitation. Under these laws it is a criminal offense to merely conceal merchandise that has not been paid for, giving stores grounds to make an arrest even if the person has made no attempt to leave the store with the merchandise.
. This doctrine protects such officials from liability when engaged in discretionary actions such as arrests of suspects. However, the officer's actions must still not violate "clearly established law," or this protection is void. This includes executing an arrest warrant against the wrong person.
An example of this doctrine being tested is Sorrell v. McGuigan (4th Cir. 2002). A police officer (McGuigan) detained a man named Crispin Sorrell based on the description of a suspect who had committed a robbery nearby, and proceeded to do a simple search for weapons. The witness who reported the robbery arrived at the scene and stated Sorrell was definitely not the person who robbed him. However, the officer still arrested Sorrell for possession of a concealed weapon, because he was carrying a folding knife with a 3 inch long blade in his pocket. In Maryland, non-automatic folding knives are not considered weapons under state law regardless of their length, and the lack of length limit had been upheld multiple times in the state supreme court
. However, the officer erroneously believed the knife to be a weapon. Sorrell was released immediately after booking and was never prosecuted as there was technically no crime, and sued the police officer for false arrest. The officer's qualified immunity was denied by the court, and this decision was upheld in the US Court of Appeals.
s have been subject to suits for false arrest after attempting to execute bench warrants
outside of the United States
- where they have no extra powers beyond those of ordinary citizens and
only police officers may execute warrants. In at least two prominent cases, bounty hunters were charged
with kidnapping
after taking custody of a bail jumper outside of the United States and bringing them
back to the court that issued the warrant. One of them - Daniel Kear - was extradited from the US and
convicted.
There have been some cases where police officers or bounty hunters have executed valid arrest warrants against the wrong person. Although many false arrest suits result in only nominal damages, such mistakes usually result in large awards against the arresting officers.
for such resistance where it would otherwise be a crime (i.e. resisting arrest
, flight to avoid prosecution, assault
, or even murder
). Justification for such action is often hard to prove in court, and only justified in certain circumstances. Simple mistake of fact situations would generally not warrant attempting to elude law enforcement. However, there are some that would, such as:
Many courts generally will not tolerate violence used in resisting an unlawful arrest, and even more rarely "deadly force," unless the police
began to use violence before the defendant began to do so.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, where a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
alleges they were held in custody without probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
, or without an order issued by a court of competent jurisdiction. Although it is possible to sue law enforcement officials for false arrest, the usual defendants in such cases are private security firms.
Overview
In most jurisdictions, the arrest powers of policePolice
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
and police agents are in excess of those afforded to ordinary citizens (see citizen's arrest
Citizen's arrest
A citizen's arrest is an arrest made by a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval Britain and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.Despite the...
). However, the powers of police officers to arrest are not unlimited. Generally speaking:
- Anyone may arrest a person if in possession of an arrest warrantArrest warrantAn arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
issued by an appropriate court. In the United States, this includes bounty hunters (agents of bail bondsmenBail bondsmanA bail bond agent, or bondsman, is any person or corporation that will act as a surety and pledge money or property as bail for the appearance of persons accused in court...
) acting under the authority of a bench warrant to bring a criminal defendant who has skipped bail to court for trial. - A police officer, or a person authorized by a jurisdiction's police powers act, may arrest anyone whom the officer has reasonable and probable causeProbable causeIn United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
to believe has committed any criminalCrimeCrime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
offence. However, in the case of a misdemeanour, summary conviction offence, or non-criminal offence (such as a municipal by-law offence) the officer may arrest the suspect only long enough to identify the suspect and give the suspect a summonsSummonsLegally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
to appear in court, unless there is reason to believe they will not appear in answer to the summons. - Any person may arrest someone suspected of committing a felonyFelonyA felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
or indictable offenceIndictable offenceIn many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
, as long as the arresting person believes the suspect is attempting to flee the scene of the felony. A person cannot be arrested on suspicion of committing a felony well after the fact unless the arresting officer possesses an arrest warrant.
Citizens and businesses
Most cases of false arrest involve accusations of shopliftingShoplifting
Shoplifting is theft of goods from a retail establishment. It is one of the most common property crimes dealt with by police and courts....
, and are brought against security guards and retail stores. A guard cannot arrest someone merely on the suspicion that person is going to commit a theft. In most jurisdictions, there must be some proof that a criminal act has actually been committed. For example, a guard does not have reasonable and probable cause if a shopper has not yet paid for merchandise they are carrying in the belief that the person intends to leave without making payment. Instead, there must be an actual act committed the person must make an actual attempt to leave the store without paying for the merchandise.
Note though that some states have enacted "merchandise concealment" laws as a way around this limitation. Under these laws it is a criminal offense to merely conceal merchandise that has not been paid for, giving stores grounds to make an arrest even if the person has made no attempt to leave the store with the merchandise.
Police officers
In the United States and other jurisdictions, police officers and other government officials are shielded from false arrest lawsuits through a process known as qualified immunityQualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
. This doctrine protects such officials from liability when engaged in discretionary actions such as arrests of suspects. However, the officer's actions must still not violate "clearly established law," or this protection is void. This includes executing an arrest warrant against the wrong person.
An example of this doctrine being tested is Sorrell v. McGuigan (4th Cir. 2002). A police officer (McGuigan) detained a man named Crispin Sorrell based on the description of a suspect who had committed a robbery nearby, and proceeded to do a simple search for weapons. The witness who reported the robbery arrived at the scene and stated Sorrell was definitely not the person who robbed him. However, the officer still arrested Sorrell for possession of a concealed weapon, because he was carrying a folding knife with a 3 inch long blade in his pocket. In Maryland, non-automatic folding knives are not considered weapons under state law regardless of their length, and the lack of length limit had been upheld multiple times in the state supreme court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
. However, the officer erroneously believed the knife to be a weapon. Sorrell was released immediately after booking and was never prosecuted as there was technically no crime, and sued the police officer for false arrest. The officer's qualified immunity was denied by the court, and this decision was upheld in the US Court of Appeals.
Bounty Hunters
Bounty hunterBounty hunter
A bounty hunter captures fugitives for a monetary reward . Other names, mainly used in the United States, include bail enforcement agent and fugitive recovery agent.-Laws in the U.S.:...
s have been subject to suits for false arrest after attempting to execute bench warrants
outside of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
- where they have no extra powers beyond those of ordinary citizens and
only police officers may execute warrants. In at least two prominent cases, bounty hunters were charged
with kidnapping
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
after taking custody of a bail jumper outside of the United States and bringing them
back to the court that issued the warrant. One of them - Daniel Kear - was extradited from the US and
convicted.
There have been some cases where police officers or bounty hunters have executed valid arrest warrants against the wrong person. Although many false arrest suits result in only nominal damages, such mistakes usually result in large awards against the arresting officers.
Resisting unlawful arrest
In some instances, an individual may realize they are the target of false arrest and attempt to resist or flee. This is known as resisting unlawful arrest, and is a possible justificationJustification (jurisprudence)
Justification in jurisprudence is an exception to the prohibition of committing certain offenses. Justification can be a defense in a prosecution for a criminal offense. When an act is justified, a person is not criminally liable even though his act would otherwise constitute an offense. For...
for such resistance where it would otherwise be a crime (i.e. resisting arrest
Resisting arrest
Resisting arrest is a term used to describe a criminal charge against an individual who has committed, depending on the jurisdiction, at least one of the following acts:* threatening a police officer with physical violence while being arrested...
, flight to avoid prosecution, assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, or even murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
). Justification for such action is often hard to prove in court, and only justified in certain circumstances. Simple mistake of fact situations would generally not warrant attempting to elude law enforcement. However, there are some that would, such as:
- the person making the arrest never identifying themselves, causing the defendant to believe they are the target of kidnappingKidnappingIn criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
or robberyRobberyRobbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
. - the reasonable belief that the person making the arrest is an impersonatorImpersonatorAn impersonator is someone who imitates or copies the behavior or actions of another. There are many reasons for someone to be an impersonator, some common ones being as follows:...
with the intent of victimizing the defendant. - the reasonable belief that the defendant would be the victim of police brutalityPolice brutalityPolice brutality is the intentional use of excessive force, usually physical, but potentially also in the form of verbal attacks and psychological intimidation, by a police officer....
if taken into custody by that individual.
Many courts generally will not tolerate violence used in resisting an unlawful arrest, and even more rarely "deadly force," unless the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
began to use violence before the defendant began to do so.