False arrest is a common law action 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.
In most jurisdictions, the arrest powers of police and police agents are in excess of those afforded to ordinary citizens. 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. In the United States, this includes bounty hunters 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 a criminal offence. In the cases of misdemeanours, summary conviction offences, or non-criminal offences an officer may arrest a suspect only long enough to identify the suspect and issue a summons to appear in court.
Any person may arrest someone suspected of committing a felony, 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
- A high percentage of cases of false arrest involve accusations of shoplifting, and are brought against security guards and retail stores. A guard cannot arrest a person on the suspicion that the person is going to commit a theft. Instead, there must be an actual act committed – the person must make an actual attempt to leave the store without paying for the merchandise.
- Police Officers
- 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. For example, executing an arrest warrant against the wrong person can bring significantly large settlements.
- Bounty Hunters
- 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. There have been some cases where police officers or bounty hunters have executed valid arrest warrants against the wrong person. Such mistakes usually result in large awards against the arresting officers.
- Resisting unlawful arrest
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An individual could realize they are the target of a false arrest and try 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. 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.