A false arrest is the act of unlawfully restraining or detaining a person against his or her will by someone (usually a law enforcement officer, but also sometimes a private citizen) who lacks the legal authority or justification to do so. A false arrest can be a civil rights violation resulting in legal consequences for the person or entity that acted unlawfully.
Here are five key things to know:
- Probable cause is necessary to make a lawful arrest.
- Following a false citizen’s arrest, you can sue the arrestor for battery or false imprisonment.
- If the false arrest was by law enforcement, you can also bring a civil rights lawsuit against the police.
- Even if police have an arrest warrant, making an arrest can be illegal if the warrant is invalid.
- If you are charged with a crime following a false arrest, you can ask the court to exclude any evidence discovered through the arrest.
1. What is an arrest?
An arrest requires three things:
- an intentional deprivation of your freedom of movement,
- that deprivation compels you to go somewhere or to stay somewhere for an appreciable time, and
- the deprivation was not consensual.1
Most of the time, arrests are conducted by police officers. However, there are times when private citizens initiate arrests (citizen’s arrest), such as security guards.
Example: A retail store clerk detains a suspect for shoplifting.
The use of force is not necessary to initiate an arrest. Arrests can involve anything that compels your movement. This includes:
- fraud, or
If the arrest involves confinement or physical restraint, it does not have to be complete restraint. You do not have to be locked in a room with no possibility of escape.3 You do not even need to be aware of your lack of liberty at the time of the confinement.4
2. What is a false arrest?
Similar to unlawful detention, falsely arresting you is restraining you without legal justification. Arresting can be unlawful if the arrestor had no legal authority to do so.
Law enforcement officers do not have the legal right to make arrests on a whim. They must have
- probable cause or
- a warrant to arrest you lawfully.
Arresting can be lawful when it begins, but becomes unlawful as it progresses.
Example: A police officer pulls a car over for a broken taillight. After writing the ticket, the officer tells the driver that they are not allowed to leave until a drug-sniffing dog arrives. This is a false arrest case because there is unlawful restraint on the driver’s freedom.
The term false arrest is often used interchangeably with false imprisonment. One is just one way of committing the other. Some false arrests occur with police brutality, and some do not.5
3. Can there be a false arrest if there is a warrant?
An arrest made by a police officer can be unlawful, even if there was a warrant. Arresting can be unlawful if the warrant was invalid.
An arrest warrant can be invalid if:
- it does not name or adequately identify you,
- it does not specify the crime for which you are being arrested,
- it does not say what court issued the warrant, or
- police lied to a judge to prove they had probable cause for the arrest.
False statements by police have to be integral to the finding of probable cause to invalidate a warrant. If the judge could have found there was probable cause without the false statements, the warrant is still valid.6
Not all invalid warrants lead to wrongful arresting, however. The arresting officer can defend against a false arrest claim by arguing that they were acting in good faith. An officer can prove a good faith defense by showing that:
- the warrant appeared to be valid,
- the officer believed the warrant was valid, and
- the officer had a reasonable belief that the warrant was for you.7
4. What are unlawful and warrantless arrests?
Police are allowed to make warrantless arrests. Though these arrests must be supported by probable cause. If a police officer did not have sufficient probable cause, the arrest was unlawful. Once you show that you were arrested without a warrant, the officer has to prove that there was probable cause.8
Police can prove that they had probable cause if:
- you commit a crime in the officer’s presence, or
- the officer had reasonable cause to believe that you had committed a felony.9
The officer’s belief is informed by what the officer knew, at the time of the arrest.10
5. What is my remedy if I was wrongly arrested?
If you are the victim of a false arrest, you have 4 legal options that you can pursue:
- a complaint against the arresting officer with the police department,
- a motion to suppress whatever evidence was obtained from the false arrest,
- a lawsuit against the officer and department, demanding an injunction, and
- a lawsuit against the officer and department, demanding monetary damages.
Filing a Complaint
By filing a complaint with the police department, you can demand the officer face repercussions for their false arrest. In the most egregious cases, the officer could get fired. They could also be suspended or retrained. In California, an officer could face criminal charges under Penal Code 118.1 PC or other statutes.
Getting Evidence Thrown Out of Court
If you were charged with a crime, you can file a motion to exclude evidence obtained from the false arrest. This motion is filed with the court in your criminal case. Any criminal evidence found because of the arrest can get thrown out.
Bringing a Lawsuit
You can also file a false arrest lawsuit against the officer and the police department for civil rights violations. That lawsuit can be filed in state or federal court in the United States. If it is filed in federal court, it would likely be a 1983 civil rights lawsuit pursuant to 42 U.S.C. § 1983.
Civil lawsuits face the challenge that officers may be protected by qualified immunity.
Getting an Injunction
The false arrest lawsuit can demand an injunction, which is a court order. If successful, the court can require the police department to:
- retrain officers,
- change their official policies for arresting, or
- fire the offending officer.
Getting Financial Compensation
The lawsuit can also demand monetary damages. Those damages would aim to compensate you for false imprisonment. A personal injury attorney can help win compensation to cover:
- medical bills,
- wages lost,
- pain and suffering (mental distress), and
- the violation of your civil rights, also known as presumed damages.
However, recovering monetary damages – particularly punitive damages – is difficult. You have to overcome the qualified immunity defense. This defense shields government officials, including police officers, from lawsuits filed over conduct done while on duty.
6. What is California law as to false arrest?
In California, to prevail on a claim or lawsuit for false arrest, you would need to prove the following elements:
- The defendant (police officer) arrested you without a warrant or with an invalid warrant;
- You were actually harmed; and
- The defendant’s conduct was a substantial factor causing your harm.11
Burden of Proof
Once you allege that the defendant arrested you without legal process, the burden rests on the defendant to justify the lawfulness of the arrest.12 Common defenses that the defendants raise are
- that they had probable cause to make an arrest, or
- that they had a good faith belief that the arrest warrant was valid – even if the arrest was technically unlawful.
(If you and the defendant do not dispute the facts, then the judge determines “as an issue of law” whether probable cause existed for the arrest. If the facts are in dispute, then the judge will instruct the jury about which provable factual findings comprise probable cause.)13
Qualified Immunity in California
Defendants will likely claim that qualified immunity protects them from false arrest lawsuits, though the statute is unclear whether qualified immunity applies to false arrests.14 As long as you can show that defendants violated a clear constitutional right, qualified immunity does not apply – and the defendants can be sued.15
If you bring a false arrest lawsuit in California, you can sue for
- monetary damages to cover the costs of any medical bills,
- lost wages,
- pain and suffering,
- emotional distress, and
- any other out-of-pocket costs.
In most cases involving police officers, your police department pays any civil damages.16
Arrest Laws in California
Note that in general, California police can only make a lawful custodial arrest without a warrant if either:
- they have probable cause that you committed a felony or misdemeanor in their presence;
- you committed a felony not in their presence; or
- they have probable cause to believe you committed a felony, whether or not a felony has in fact been committed.
Also note that in general, California police may not arrest you for infractions and certain misdemeanors unless you fail to:
- provide your ID or driver’s license;
- provide a fingerprint or thumbprint; or
- sign the ticket’s written “Notice to Appear.”
California vs Federal Law
In this sense, California law is more restrictive than federal law under the Fourth Amendment because it restricts a police officer’s discretion over when to carry out a custodial arrest and to book you in jail.
Though there are some misdemeanors police may arrest you for, even if it occurred outside of the police’s presence. Common examples are:
Officers also may not arrest you for “stale misdemeanors,” which means an unreasonable amount of time has passed since the misdemeanor allegedly occurred. It does not matter whether or not you allegedly committed the misdemeanor in the police’s presence. (However, police can detain you in order to gather information for the purpose of getting an arrest warrant.)17
In California, police must allow you as the arrested person to make three completed phone calls within three hours of your arrest and booking. (Juveniles who have been booked must be advised within an hour of the arrest that they can make two phone calls.)18
It is a misdemeanor for police to deprive you of your right to a phone call. They also face civil liability under 42 USC section 1983.19
Within 48 hours of your arrest without a warrant, a judge must make a probable cause determination on your case (unless you bail out first).20
- California Civil Jury Instructions (CACI) 1400.
- Same. See also California Penal Code 835 PC.
- People v. Bamba, (1997) 58 Cal.App.4th 1113 (“Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment [under state law]”).
- Scofield v. Critical Air Medicine, (1996) Inc., 45 Cal.App.4th 990.
- Collins v. City and County of San Francisco, (1975) 50 Cal.App.3d 671. Carcamo v. Los Angeles County Sheriff’s Dept. (Court of Appeal of California, Second Appellate District, Division Three, 2021) 68 Cal. App. 5th 608.
- Franks v. Delaware, (1978) 438 U.S. 154.
- California Civil Jury Instructions (CACI) 1406. Cornell v. City and County of San Francisco (Court of Appeal of California, First Appellate District, Division Four, 2017) 17 Cal. App. 5th 766.
- Cervantez v. J.C. Penney Co. (California Supreme Court, 1979) 595 P.2d 975. See also California Civil Jury Instructions (CACI) 1401.
- California Civil Jury Instructions (CACI) 1402.
- Hamilton v. City of San Diego (Cal. App. 1990) 217 Cal.App.3d 838.
- California Civil Jury Instructions (CACI) 1401 & 1403.
- Kaufman v. Brown, (1949) 93 Cal. App. 2d 508, 209 P.2d 156.
- California Civil Jury Instructions (CACI) 1402 & 1406. Levin v. United Airlines, Inc. (2008) 158 Cal. App. 4th 1002. George v. City of Long Beach (9th Cir., 1992) 973 F.2d 706, 710 (“The existence of probable cause is necessary but not by itself sufficient to establish an arrest’s lawfulness.”).
- Scheuer v. Rhodes, 416 U.S. 232 (1974).
- Harlow v. Fitzgerald, (1982) 457 U.S. 800. Also see our article on malicious prosecution tort claims.
- California Government Code § 825(a).
- California Penal Code 836 PC. California Penal Code 853.5 PC (“Only if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody.”). See, for example, People v. Henderson (Court of Appeal of California, Second Appellate District, Division Four, 2022) B306771 (unpublished).
- California Welfare & Institution Code § 627(b) WIC. California Courts Self-Help Guide.
- California Penal Code 851.5(f) PC.
- Cty. of Riverside v. McLaughlin (1991) 500 U.S. 44.