False arrest is a type of false imprisonment and shares all the same elements (learn more in our article What is False Imprisonment?). Any time a false arrest has been committed, so has false imprisonment, and so a person who has suffered harm as a result can file an intentional tort personal injury claim against those who are responsible.
The only real difference between false arrest and false imprisonment, from a legal perspective, is that an arrest might start out legal, but then lead to false imprisonment if the person arrested is held longer than allowed by law. The focus of this article is just what makes an arrest proper or legal and what makes an arrest false or illegal.
General Rules for a Lawful Arrest
Although the law may be a bit different in each jurisdiction, the same general rules apply everywhere when it comes to a lawful arrest.
First, the person being arrested must be informed that he or she is being arrested. If a private citizen is making the arrest, he or she must tell the other person they are being arrested unless doing so is dangerous or will lead to an escape. If a law enforcement officer is making the arrest, a visible badge or uniform is sufficient to inform the person that he or she is being arrested.
For an arrest to be lawful, a private citizen or law enforcement officer must also tell the person arrestedwhat they are being arrested for. Only if telling the person what they are being arrested for is too dangerous -- or will lead to an escape -- can the person making the arrest skip this requirement.
If the arrest is made by a law enforcement officer pursuant to a warrant, the person arrested must be informed of the warrant and/or shown the warrant only if they ask the arresting officer. A private citizen making an arrest pursuant to a warrant generally must inform the person being arrested of that fact regardless of whether they ask.
Arrest Pursuant to a Warrant
A warrant is any “legal process” embodied in an official document that has been issued -- by a court or other official body -- for the arrest of a person. While an arrest warrant is typically for criminal charges, it might also be related to mental health or guardianship issues. If the warrant is “valid,” the person making the arrest cannot be sued in civil court for false arrest.
Generally, a valid warrant will include:
- the name of the court or other official body that issued it
- the name or description of the person to be arrested, and
- the offense or other reason for the arrest.
Depending on the jurisdiction, there might also be additional criminal procedure requirements to make a warrant valid.
Finally, the court or official body must have jurisdiction and the authority to arrest the person targeted by the warrant. The arresting officer is required to know these elements for a valid warrant -- if the warrant does not fulfill any of them, the officer can be liable for false arrest despite the fact that he or she did not prepare the warrant.
Additionally, there will be no protection from false arrest if the arresting officer intentionally or recklessly leaves out information, or knowingly provides false information, to procure the warrant. However, if the officer only negligently leaves out or provides inaccurate information, the warrant is still valid (that is, the officer cannot be sued for false arrest).
A law enforcement officer can make an arrest without a warrant if all of the known facts at the time of the arrest would lead a “reasonably prudent” person to believe that the person arrested had committed a felony.
If a criminal trial later proves the person innocent, this does not necessarily mean the officer lacked probable cause. An officer can also make warrantless arrests of anyone in his or her presence who is potentially guilty of breach of the peace. Such an arrest is lawful whether the breach of the peace is a felony or misdemeanor and regardless of whether all of the people arrested were actually breaching the peace.
Additionally, many jurisdictions have a variety of statutes that permit non-felony warrantless arrests when the officer reasonably believes the arrested person violated the statute.
Citizen's arrest without a warrant. The rules regarding a private citizen’s right to make an arrest without a warrant are typically controlled by local statutes. However, some general rules are common to all jurisdictions.
First, the arrest can only be for a felony, not a misdemeanor.
Second, for the arrest to be lawful, the felony must have actually been committed. It is not enough that the private citizen reasonably believed a felony was committed, as is the case for law enforcement officers. If no felony was committed and an arrest was made, the private citizen will be civilly liable for false arrest regardless of what he or she believed at the time.
Third, the private citizen must have grounds to reasonably believe that the person arrested committed the felony. Note the difference here, the felony must have been committed, but the private citizen can mistakenly arrest the wrong person without incurring liability for false arrest as long as the mistake was reasonable.
Finally, misdemeanor arrests without a warrant may be permitted, depending on the jurisdiction, for breaches of the peace, protection from the mentally-ill and prevention of serious harm to property.