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False arrest is a common law tort, where a plaintiff alleges he or she was 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.
In most jurisdictions, the arrest powers of police 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:
- Anyone may arrest a person if in possession of an arrest warrant issued by an appropriate court. In the United States, this includes bounty hunters (agents of bail bondsmen) 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 cause to believe has committed any criminal 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 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 felony or indictable offence, 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 shoplifting, 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.
In the United States and other jurisdictions, police officers and other government officials are shielded from false arrest lawsuits through the doctrine of qualified immunity. 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.
Bounty hunters 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.
Resisting unlawful arrest
In many cases, individuals will realize that they are the target of false arrest and attempt to resist or flee. This is known as resisting unlawful arrest, and is a justification 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:
- the person making the arrest never identifying themselves, causing the defendant to believe they are the target of kidnapping or robbery.
- the reasonable belief that the person making the arrest is an impersonator with the intent of victimizing the defendant.
- the reasonable belief that the defendant would be the victim of police brutality if taken into custody by that individual.
- "Sorrell v. McGuigan" (PDF). United States Court of Appeals for the Fourth Circuit. Retrieved 2008-07-22.
- "The Perils of Bounty Hunting: Duane Lee "Dog" Chapman's Possible Extradition Fight". Retrieved 2010-08-29.