False Arrest: How to Know Whether You Have a Case

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UPDATED: Jul 16, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 16, 2021Fact Checked

False arrest is an arrest made without a warrant or probable cause. False arrest is a form of false imprisonment conducted by a party who claims to have authority to make the arrest. It can be had against law enforcement, but false arrest is more commonly prosecuted against private security firms.

What Constitutes a False Arrest?
State and federal statutes specify what is considered a false arrest. In general, you are a victim of false arrest when someone claiming to have the authority to arrest you places you under arrest against your will without “probable cause”. Probable cause is the legal term used to describe a state of facts that lead a reasonable person to assume a crime has been committed. If you were placed under arrest and had not committed a crime, then you most likely have a case.

What Laws Protect the Public from False Arrest?
Laws are in place to protect citizens from false arrest. Most states consider false arrest a form of false imprisonment. Typical false imprisonment laws require that you are imprisoned against your will in a way that restricts your liberty to move about freely. Some states do require injury as a result of the imprisonment, but the injury can be physical, emotional or financial.

Federal law takes false arrest a step further than state law. Under federal law, a false arrest is considered a direct violation of your 4th Amendment right. The 4th Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The 4th Amendment exists to protect citizens from false arrest.

When your 4th Amendment right is violated, you can collect damages for the violation under Title 42 section 1983 of the U.S. Code. This law states that when anyone holding a government position deprives a civilian of one of their Constitutional or statutory rights, then that state representative is liable for their actions.

How Serious Does the False Arrest Have to be?
Police officers are people too, and can make mistakes regarding who they arrest. The court realized this, and placed three requirements in the law for determining if the false arrest warrants a violation of the 4th Amendment.

The first requirement is that the officer used force or show of authority to restrain the citizen. This means that the person who arrests you must claim to be an officer or to have the authority to arrest you. An example of meeting this first requirement would be a deputized police officer arresting a shoplifter.

The second requirement is that the you must believe that you are not free to leave. This means that you must feel you have no choice except to do what the officer asks. For example, if the officer places you in handcuffs or locks you in a room then you obviously are not free to leave. But if the officer asks you to come voluntarily or mentions that you are not under arrest, then you may have a difficult time proving false arrest.

The third requirement is that the officer intentionally restricted your freedom of movement without probable cause. In other words, the officer meant to arrest you knowing that there was no legitimate reason to arrest you.

What if the person arresting me was not a police officer?
Under the federal law, you may still collect damages from non-deputized security officers as long as they were in some way associated with a state agency. For example, a security guard contracted to protect the courthouse building or a private citizen’s group that is trained by the police force to perform local surveillance. Typically this information is obtained by your attorney.

How soon should I find a lawyer?
Contact a civil rights lawyer as soon as possible after the false arrest. Most states have a specific time limitation on how much time can lapse after a false arrest has taken place and if you miss that time window, then you cannot bring your action.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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