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.
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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:
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 a process known as 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 detained the plaintiff 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 the plaintiff was the wrong person. However, the officer still arrested the plaintiff for possession of a concealed weapon, a 3" folding knife. 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. The plaintiff 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.[1]
Bounty hunters have been subject to suits for false arrest when they attempt to execute a bench warrant outside of the United States. In Canada and Mexico, only police officers are permitted to execute bench warrants, even though American bench warrants issued by any court are valid in any U.S. state. 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.
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.
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 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:
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.
In the United States, several cases in the US Supreme Court have found that an illegal arrest is tantamount to a violent crime itself as though it were being committed by any other civilian, thereby making the right to self-defense applicable in such situations. [2]
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