What is False Arrest?

The elements of false arrest, the defense of "probable cause," and more.

If you've been arrested, detained, or held against your will -- whether by a police officer, a security guard, or someone else -- you might be wondering whether the action was lawful, and whether there may be a criminal or civil case to pursue.

This kind of incident is typically referred to as a "false arrest" if a civil lawsuit is brought, seeking  damages  from those responsible. Courts look at specific criteria to determine whether a false arrest occurred. In this article we'll look at the legal definition of false arrest, offer some examples of when it can occur, and look at some possible defenses that could be raised in response to a false arrest claim.

The Legal Definition of False Arrest

False arrest is the unlawful restraint of a person’s freedom of movement. It can occur any time one person:

  • holds another individual against his or her will or
  • takes another individual into custody without consent or without legal justification to do so.

It's important to note that any person can be liable for false arrest -- not just police officers.

What you have to prove can vary depending on the applicable law. Typically, however, the person bringing the lawsuit (the plaintiff) must show that:

  • the person they're suing for false arrest (the defendant)  intended  to confine the plaintiff
  • the plaintiff was  conscious  of the confinement
  • the plaintiff did not  consent  to the confinement, and
  • the confinement was not otherwise  privileged.

Let’s examine what each of these elements mean.

Intent.  False arrest is an  intentional tort. That means the person who committed it has to have done so purposefully.

Police officers, security officers and store owners and managers are usually associated with false arrest lawsuits. In those cases, their intent is usually clear. However, there are times that the intent of the defendant is disputed. Imagine, for example, a department store manager locks the main door to a dressing room a few minutes before closing. Unbeknownst to the manager, a person is still in the dressing room. The manager clearly did not intend to confine the person in the dressing room. In this situation, therefore, there is no false arrest.

"Conscious" of the confinement  means that the person was aware of the arrest. Imagine a police officer brings an individual who is found drunk and unconscious on the street to the police station and locks the person in a cell for an hour. The officer then unlocks the door shortly before the person awakes. If the individual was never aware of the confinement, there can be no false arrest.

“Consent”  isn't typically an issue in a false arrest case. If a suspect turns himself into the police for a crime and consents to being arrested, he cannot later claim false arrest.

It is usually the fourth element -- whether the arrest was  “privileged”  -- that is the most hotly disputed in court. An arrest is privileged if it is legally justified. A warrant or a court order clearly justifies an arrest. Another defense to a false arrest claim is probable cause, which is more vague and harder to prove.

Probable Cause and False Arrest

Probable cause exists if there are sufficient facts to believe that the person arrested has committed or was committing an offense. If this legal definition seems ambiguous, it’s because it is. The main question here is whether the facts  at the time of the arrest  would have led a reasonable person (typically a police officer) to believe the person had committed a crime.

It does not matter whether the officer (or store manager) personally believed the person had committed a crime. Nor does it matter whether the person was actually  guilty  of an offense. (Guilt is a question for criminal court, and requires proof beyond a reasonable doubt.)

Note that the officer also does not have to personally observe the crime. Information from a victim or an eyewitness can provide probable cause to arrest -- so long as it was reasonable to believe that person. Before an arrest can be supported by probable cause based on secondhand information, however, there usually must be some other corroborating evidence linking the person to the alleged crime.

Probable cause is a complete defense to false arrest.

False Arrest, False Imprisonment and Unlawful Stops

False arrest is very similar to false imprisonment. False imprisonment, however, covers more kinds of conduct. It includes any unlawful “confinement” of a person, as opposed to an arrest that must be legally justified. The two terms -- false arrest and false imprisonment -- are often used interchangeably. In some jurisdictions, there is no legal difference between false arrest and false imprisonment claims. (Learn more about  False Imprisonment.)

False arrest can also be confused with an unlawful stop or seizure. An officer who unlawfully stops an individual on the street and asks for identification cannot be committing a false “arrest” even if the person stopped feels unlawfully restrained. If a person is merely stopped, then the legal question is whether the officer had  reasonable suspicion  to stop the individual -- as opposed to  probable cause  to make an arrest. Sometimes, however, circumstances such as the length of time of the stop, can turn a stop into an “arrest” for legal purposes.

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