False arrest, Unlawful arrest or Wrongful arrest is a
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
, where a
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
alleges they were held in
custody without
probable cause
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...
, 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
A private security company (PSC) is a business entity which provides armed or unarmed security services and expertise to clients in the private or public sectors.
Overview
Private security companies are defined by the U.S. Bureau of Labor Stat ...
firms.
United Kingdom
In the United Kingdom, a police officer may arrest a person if they are executing a warrant, if they have a "reasonable belief" that someone is involved in a criminal offence, or if they have a reasonable belief that someone is about to be involved in a criminal offence ''and'' it is necessary to arrest that person. Proof of wrongful arrest depends on proving that an officer did not have a reasonable belief and that it was not necessary to arrest someone.
Most cases where unlawful arrest was determined emerge from a claim that an arrest was unnecessary.
The specific legislation governing, in England and Wales, the reasons for which a police officer may arrest a person are in section 24 of the
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...
.
Damages for unlawful arrest depend primarily on the time in custody and can be aggravated if the police acted maliciously.
United States
After an arrest, if the charges are dropped, a person will sometimes file legal action or a complaint against the appropriate arresting agency.
In most jurisdictions, the arrest powers of
police
The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest and t ...
and police agents are in excess of those afforded to ordinary citizens (see
citizen's arrest
A citizen's arrest is an arrest made by a private citizen – that is, a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which ...
). However, the powers of police officers to arrest are not unlimited. Generally speaking:
#Anyone may arrest a person if in possession of an
arrest warrant
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
Canada
Arrest warrants are issued by a j ...
issued by an appropriate court. In the United States, this includes
bounty hunters
A bounty hunter is a private agent working for bail bonds who captures fugitives or criminals for a commission or bounty. The occupation, officially known as bail enforcement agent, or fugitive recovery agent, has traditionally operated outsid ...
(agents of
bail bondsmen
Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countries, ...
) acting under the authority of a
bench warrant
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
Canada
Arrest warrants are issued by a ju ...
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
probable cause
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...
to believe has committed any
criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
offence. However, in the case of a
misdemeanour
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
,
summary conviction
A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
Canada
In Canada, summary offenc ...
offence, or non-criminal offence (such as a municipal
by-law
A by-law (bye-law, by(e)law, by(e) law), or as it is most commonly known in the United States bylaws, is a set of rules or law established by an organization or community so as to regulate itself, as allowed or provided for by some higher authorit ...
offence) the officer may arrest the suspect only long enough to
identify the suspect and give the suspect a
summons
A summons (also known in England and Wales as a claim form and in the Australian state of New South Wales as a court attendance notice (CAN)) is a legal document issued by a court (a ''judicial summons'') or by an administrative agency of governme ...
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
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
or
indictable offence
In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...
, as long as the arresting person believes the suspect is attempting to flee the scene of the felony scene. 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
shoplifting
Shoplifting is the theft of goods from an open retail establishment, typically by concealing a store item on one's person, in pockets, under clothes or in a bag, and leaving the store without paying. With clothing, shoplifters may put on items ...
, and are brought against
security guards
A security guard (also known as a security inspector, security officer, or protective agent) is a person employed by a government or private party to protect the employing party's assets (property, people, equipment, money, etc.) from a variety ...
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 committedthe person ''must'' make an actual attempt to leave the store without paying for the merchandise.
Police officers
In the United States and other jurisdictions, police officers and other government officials are liable for clear deprivation of rights, but are partially shielded from false arrest lawsuits through the doctrine of
qualified immunity
In the United States, qualified immunity is a legal principle that grants government officials performing discretionary (optional) functions immunity from civil suits unless the plaintiff shows that the official violated "clearly established statu ...
, when such a violation qualifies as "not obvious," by a
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
test. This doctrine can protect officials from liability when engaged in legal grey areas including qualifying discretionary actions in the 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. False statements by public servants to justify or cover up an illegal arrest are another violation of federal law.
An example of this doctrine being tested is ''Sorrell v. McGuigan'' (
4th Cir.
The United States Court of Appeals for the Fourth Circuit (in case citations, 4th Cir.) is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:
* District of Maryla ...
2002). A police officer (McGuigan) detained a man shopping at a mall (Sorrell) based on the description of a suspect who had committed a theft at a store nearby, and proceeded to
search him for weapons. The store owner who reported the theft arrived at the scene and stated Sorrell and his friends were not the ones who had stolen from 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's
highest court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
. 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 hunter
A bounty hunter is a private agent working for bail bonds who captures fugitives or criminals for a commission or bounty. The occupation, officially known as bail enforcement agent, or fugitive recovery agent, has traditionally operated outsid ...
s have been subject to suits for false arrest after attempting to execute
bench warrant
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
Canada
Arrest warrants are issued by a ju ...
s outside of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, 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
In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the p ...
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
Sidney Leonard Jaffe (December 22, 1924 – July 16, 2005) was an American-born Canadian businessman who was kidnapped from outside his Toronto home in 1981 by American bounty hunters Timm Johnsen and Daniel Kear and transported to Florida after ...
, 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
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
, such mistakes usually result in large awards against the arresting officers.
Resisting unlawful arrest
Individuals who realize that they are the target of false arrest might attempt to resist or flee. Fourteen U.S. states recognize the target's
right of self-defense
The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable or defensive force, for the purpose of defending one' ...
so as to resist unlawful arrest. Typically, this ''only'' applies when:
* the arresting officer used more force than necessary to effect the arrest, ''and''
* the resistance is ''only'' to such an extent as necessary to protect oneself from great bodily harm or death.
In such jurisdictions – and under the narrowly-defined circumstances described above – resisting unlawful arrest may be used as a
justification for such resistance where it would otherwise be a crime (i.e.
resisting arrest
Resisting arrest, or simply resisting, is an illegal act of a suspected criminal either fleeing, threatening, assaulting, or providing a fake ID to a police officer during arrest. In most cases, the person responsible for resisting arrest is crimi ...
, flight to avoid prosecution,
assault
An assault is the act of committing physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in crim ...
, etc). There are rare cases in which a murder charge had been reduced to
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
for this reason.
Justification for such action is often hard to prove in court, and only justified in certain circumstances. Simple
mistake of fact
A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the mental element. This is unlike a mistake of law, which is not ...
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
kidnapping
In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the p ...
or
robbery
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the perso ...
.
*the reasonable belief that the person making the arrest is an
impersonator
An impersonator is someone who imitates or copies the behavior or actions of another. There are many reasons for impersonating someone:
*Entertainment: An entertainer impersonates a celebrity, generally for entertainment, and makes fun of ...
with the intent of victimizing the defendant.
See also
*
Arrest quota
Ticket quotas are commonly defined as any establishment of a predetermined or specified number of traffic citations an officer must issue in a specified time. Some police departments may set "productivity goals" but deny specific quotas. In many ...
*
Arbitrary arrest and detention
Arbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law ...
*
False imprisonment
False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is ...
References
{{DEFAULTSORT:False Arrest
Tort law
Law enforcement terminology
Criminal law
Abuse of the legal system
Police misconduct