What Is False Arrest?

Learn about the elements of a false arrest case, the damages you can collect, and how to bring a false arrest case to court.

By , Attorney · University of Maryland School of Law
Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

You believe you were wrongfully arrested by a police officer, a security guard, or maybe a store manager. How do you know if you've got a false arrest case? And if you do have a case, how do you file a lawsuit in court? We'll walk you through the elements of a false arrest claim, outline the damages you might collect, and explain how to file your lawsuit in court.

Proving Your False Arrest Claim

False arrest (sometimes called "wrongful arrest" or "unlawful arrest") is the unlawful restraint of a person's freedom of movement. It happens when one person holds another person (the "arrestee") without the arrestee's consent and without legal justification.

Most times the person making the arrest will be a police officer. Sometimes, though, false arrest claims involve private security guards or store employees.

Here are the elements a plaintiff (the arrestee who's filing a lawsuit) typically must prove in a false arrest claim:

  • the person being sued for wrongful arrest (the defendant) intended to and did detain or confine the plaintiff
  • the plaintiff was aware of the detention or confinement
  • the plaintiff didn't consent to being detained or confined, and
  • the detention or confinement wasn't legally justified.

Let's look at each of these elements in more detail.

Intent to Detain or Confine

False arrest is an intentional tort. It isn't enough that the defendant was negligent or careless. To be liable for unlawful arrest, the defendant must have acted purposely to detain or confine the plaintiff.

States use different terms (typically "detain," "confine," or "restrain") to describe the required action. Regardless of the language, the idea is the same: The arrestee is being held and isn't free to leave.

As we review the examples to come, keep in mind that even if there's no false arrest claim, the person being detained might be able to sue for something else like assault and battery or negligence.

Awareness of Detention or Confinement

The arrestee must have been aware, at the time it happened, of being detained or confined. Becoming aware of detention or confinement after the fact isn't enough.

Awareness can be an issue when an arrestee is under the influence of drugs or alcohol and slips in and out of consciousness or is incoherent. Otherwise, it's rarely disputed.

No Consent to Be Detained or Confined

There's no false arrest if an arrestee agrees to be detained or confined. But the person giving consent must freely give it. If consent is coerced or given under duress, it's invalid. Most arrestees loudly protest their innocence and resist detention, so consent usually isn't an issue.

Detention or Confinement Not Legally Justified

Most of the argument in a false arrest case is over whether the arrest was legally justified. An arrest is legally justified—or "privileged," as lawyers sometimes say—if:

  • there's probable cause to arrest, or
  • a state law "shopkeeper's privilege" allows the arrest.

Probable Cause to Arrest. There is probable cause to arrest when a reasonable person could look at all the circumstances and believe the arrestee might have committed a crime. Probable cause isn't a difficult standard to meet.

When a judge signs an arrest warrant, it means the judge found probable cause to arrest. Similarly, if an officer sees someone committing what looks like a crime, the officer likely has probable cause to arrest.

Shopkeeper's Privilege. In some states, a shopkeeper's privilege allows store employees to arrest a person they reasonably suspect of shoplifting. While the laws vary from state to state, in most places these limits apply:

  1. Must personally witness the theft. The store employee must personally witness the suspected shoplifting, either in real-time or on a security camera recording.
  2. Brief detention. The arrest can only last for a brief time—long enough to allow for reasonable investigation and for the police to arrive.
  3. Limited use of force. The person making the arrest can use force only as needed to hold the arrestee until the police arrive.

Is False Arrest a Crime?

In many states, false arrest or false imprisonment are crimes. But it's extremely unlikely that a police officer will be criminally charged with false arrest simply for detaining someone without a proper legal basis.

In nearly all cases where criminal charges result from an illegal arrest, a private person like a security guard or a store employee gets charged. There are, however, plenty of instances that don't involve arrest where everyday people are charged with false imprisonment. An example is one person locking another in a room and refusing to let them leave.

Damages and Other Remedies in a False Arrest Case

An unlawful arrest case is a civil lawsuit that usually asks for the "remedy" of damages. In rare cases, a court might award an injunction.

In most false arrest cases, a successful plaintiff can collect two kinds of damages: Special damages and general damages.

Special and General Damages

Special damages (sometimes called "economic damages") are intended to compensate for things like medical costs, lost wages, property damage, and similar out-of-pocket expenses.

You'll need proof of these losses. Get a letter from your employer documenting the wages you lost. Make sure to keep receipts for any other expenses like bail bond fees or costs to repair or replace property lost, damaged, or destroyed during your arrest.

General damages are designed to make you whole for injuries like pain and suffering and emotional distress. These "intangible" losses are much more difficult to value than lost wages or damages to your property. How do you put a dollar value on general damages? Lawyers and insurance adjusters often use a couple of different approaches: The multiplier method and the per diem method.

The multiplier method won't work well in most cases where false arrest is the only claim, because it uses the plaintiff's medical expenses to compute the value of general damages. If false arrest is the only claim, there probably won't be much in the way of medical expenses. You'll need to use the per diem method to get a sense of your general damages.


An injunction is a court order that requires a party to do or not do something. In a wrongful arrest case, a court won't issue an injunction ordering the police not to arrest the plaintiff in the future.

In rare cases, though, a court might order a police department, a city, a county, or a private defendant to provide additional training or guidance to individual officers or employees. More often the parties will agree that additional training is needed as part of a settlement, and the court will order it in a consent judgment.

Criminal Charges

If you think you've been wrongly arrested, you might want to see the person who arrested you brought to justice. As mentioned above, criminal charges for false arrest are possible but unlikely. Also, a private person can't actually file charges—the government must decide whether to prosecute.

How to File a False Arrest Lawsuit

A false arrest claim typically isn't brought by itself. Chances are there will be other intentional tort claims, negligence claims, and possibly claims under the United States Constitution. The basics of filing a false arrest lawsuit will depend, in large part, on whom you're suing and what legal claims you're bringing.

Let's divide the cases into two categories:

  • a false arrest claim against only private parties, and
  • a false arrest claim against the police and the government, with or without claims against private parties.

In both these categories, for reasons we've covered, we're assuming that false arrest is just one of several claims involved in the lawsuit.

False Arrest Lawsuit Against Private Parties

Here's a brief overview of where you should sue, whom you should sue, and the claims you should include. Keep in mind, though, that you should hire an attorney to handle the case for you.

Where to Sue

In nearly all cases against one or more private parties, you should file the lawsuit in state court, usually in the court nearest to where the arrest happened.

Whom to Sue

Odds are the arrest took place at a retail store or somewhere like a restaurant, bar, or nightclub. You—or better yet, your attorney or their private investigator—will need to do some digging to find out whom to sue. The defendants could include:

  • each private security officer, bouncer, or other employee who made or was involved in making the arrest
  • the company that employs the people who made the arrest, and
  • the company that owns and operates the business where the arrest happened, if different from the employer of the people who made the arrest.

You might also need to sue other people or companies, depending on the facts and the claims you bring.

What to Sue For

When you file a lawsuit, the general rule is that you must include all claims that arise from the events of the case. Stated a bit differently, you can't divide up a lawsuit into different claims and then file separate cases. That's called "claim splitting," and it's against the rules.

The odds are that you'll have more than just a false arrest claim. For example, you'll probably want to bring claims for other intentional torts like assault and battery and intentional infliction of emotional distress. If you want to include claims for failure to properly train or supervise the people who made the arrest, you should sue for negligence.

False Arrest Lawsuit Against Police and Government

Here's a brief overview of the filing basics when the defendants are public entities like the police, a city, or a county.

Where to Sue

As before, you must file suit in the state where the arrest happened. In this case, though, you'll almost certainly want to include claims under federal law and the United States Constitution. For this reason, you should typically file the case in the nearest federal district court, even if the case also involves private parties (like someone who wrongly held you before the police unlawfully arrested you).

Whom to Sue

Here, too, there are several defendants you might sue:

  • Each law enforcement officer who was involved in the arrest, plus any officers involved in transporting, processing, or charging you, or in caring for or monitoring you while you were being held.
  • Each law enforcement agency that employs any involved officer. (In some states, law enforcement agencies aren't legal entities that can be sued. If so, the judge will dismiss them.)
  • Each city or county served by any law enforcement officer or agency involved in the arrest.
  • Any private parties who were involved.

What to Sue For

You'll probably want to bring claims for violations of the United States Constitution against the police, the cities, and the counties you sue. For instance, because you're claiming you were falsely arrested, you should bring a claim for an unreasonable seizure in violation of the Fourth Amendment.

You'll want to bring other constitutional claims too. The police probably searched you as part of the arrest, meaning you should bring a Fourth Amendment claim for an unlawful search. If the police used excessive force to make the arrest, that's another Fourth Amendment claim. You might have other constitutional claims as well.

Think about adding state constitutional claims to your case. For example, your state constitution offers protections against unlawful searches and seizures much like those of the Fourth Amendment.

In addition to your constitutional claims, you should bring intentional tort claims against the arresting officers. False arrest, assault, battery, malicious prosecution, and intentional infliction of emotional distress are among the usual claims.

Finally, if private parties are also defendants, you'll bring the kinds of claims discussed above against them, too.

Why You Need an Experienced Lawyer

For many reasons—some of which we covered above—false arrest cases are exceptionally complicated. Here are a couple more reasons why you really need to hire a lawyer to handle your case.

Complexity. Civil rights cases are particularly complex when you're suing the police and the government. These defendants normally will fight you every step of the way. While most personal injury cases settle, cases involving these defendants are an exception to that rule. Most are dismissed by the court for various reasons, or they go to trial and end in a verdict for the defendants.

The other side's costs. To make matters worse, in a federal civil rights case against the police, cities, and counties, the winning party can collect attorneys' fees and the costs of the suit from the losing party. Fees and costs can easily run into tens of thousands of dollars, and sometimes more. In a worst-case scenario, you might end up losing the case and owing lots of money to the defendants.

Because the stakes are so high, most lawyers who don't specialize in these kinds of cases won't touch them. Long story short: You don't want to take on a case like this by yourself.

Get Help With Your False Arrest Case

Because they're so complicated and risky, you likely won't find a lawyer who will take your false arrest case on a pro bono basis. Look for an attorney who will take your case on a contingency fee. When there's a contingency fee, the lawyer won't charge you by the hour but will take a percentage (usually 33% to 40%) of any settlement or jury verdict you're awarded.

If you think you've got a false arrest case, spend the time to find an experienced lawyer.

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