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  1. #1
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    Default Is an Unlawful Arrest Kidnapping

    I have always wondered this question. If somebody is arrested, but is acquitted, do they have the right to file kidnapping charges on the arresting officer? It makes sense to me that they would.

  2. #2
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    Default Re: Is an unlawful arrest kidnapping?

    Quote Quoting blueeagle
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    I have always wondered this question. If somebody is arrested, but is acquitted, do they have the right to file kidnapping charges on the arresting officer? It makes sense to me that they would.

    ONLY if it can be proven later the charges were made up and filed with malice.

    Criminally, a Prosecutor won't touch it with a 30 foot pole unless the evidence comes to light that there is NO question this is the case.

    Civily, I have never heard of such a case! Police enjoy qualified immunity from lawsuits, so this burden must be overcome in a court of law. Mere aquittal is by NO means enough.

    Interesting topic though BE.

  3. #3
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    Default Re: Is an unlawful arrest kidnapping?

    Quote Quoting BOR
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    ONLY if it can be proven later the charges were made up and filed with malice.

    Criminally, a Prosecutor won't touch it with a 30 foot pole unless the evidence comes to light that there is NO question this is the case.

    Civily, I have never heard of such a case! Police enjoy qualified immunity from lawsuits, so this burden must be overcome in a court of law. Mere aquittal is by NO means enough.

    Interesting topic though BE.
    Let me try to think of an example...

    Ok, let say a innocent man is arrested for robbery. The man insist he's innocent, but the police refuse to listen. When he goes to trial the jury learns he had a alibi for that night, which results in the jury voting to acquit. Does he have the right to file kidnapping charges on the arresting officer?

    If he don't, why not? If he was innocent he should have the right to file charges for being locked against his will, right?

  4. #4
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    Default Re: Is an unlawful arrest kidnapping?

    Because, quite obviously, the officer has no unlawful intent, and is privileged by law to perform the arrest.

  5. #5
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    Default Re: Is an unlawful arrest kidnapping?

    Quote Quoting blueeagle
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    Let me try to think of an example...

    Ok, let say a innocent man is arrested for robbery. The man insist he's innocent, but the police refuse to listen. When he goes to trial the jury learns he had a alibi for that night, which results in the jury voting to acquit. Does he have the right to file kidnapping charges on the arresting officer?

    If he don't, why not? If he was innocent he should have the right to file charges for being locked against his will, right?

    There was NO false arrest here. I do know in the US 6th circuit court of appeals jurisdiction, unless the law has changed (and if I remember correctly), IF an officer about to effect an arrest knows in all probability the actor has a valid "affirmitive defense" to the charge and still arrests them, it may constitute false arrest. The AD need not be plead in court first.

    In such a case, it is defacto kidnapping, IMO, but Prosecutorial discretion comes into play here also.

  6. #6
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    Default Re: Is an Unlawful Arrest Kidnapping

    An arrest is made based upon probable cause - NOT upon absolute certainty. People are occasionally arrested and then later acquitted or even released without charges. That does NOT in any way infer that the arrest was unlawful or that kidnapping occurred. There are legal remedies for an unlawful arrest if made intentionally and with malice.

    - Carl

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    Default Re: Is an unlawful arrest kidnapping?

    Quote Quoting BOR
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    There was NO false arrest here. I do know in the US 6th circuit court of appeals jurisdiction, unless the law has changed (and if I remember correctly), IF an officer about to effect an arrest knows in all probability the actor has a valid "affirmitive defense" to the charge and still arrests them, it may constitute false arrest. The AD need not be plead in court first.

    In such a case, it is defacto kidnapping, IMO, but Prosecutorial discretion comes into play here also.
    The officer in the field is in no position evaluate the status of someone's "affirmative defense". Suspects say things like, "I was with my mother!" all the time. It may be incumbent upon the officer to look into that, but it does NOT mean that he has to let the guy go until he has had a chance to check out the alibi. He can hook the suspect then later look into the alibi. if the alibi is solid, he can then have the suspect released.

    And, of course, alibi witnesses can lie or be unreliable.

    An "affirmative defense" can be anything. And the police are not going to be strapped to avoid arresting someone simply because he claims he didn't do it and might be able to prove it. If there is sufficient probable cause to make the arrest, they can.

    - Carl

  8. #8
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    Default Re: Is an Unlawful Arrest Kidnapping

    But, lets say the officer checks into the accused story and several witnesses state the accused statements are correct and accurate. But, the officer firmly believes the accused is the guilty party and refuses to release the accused and does not put the witness statements in file.
    Later, in court, it is learned that there is no way the accused could have committed the crime and, thus, acquitted.
    Is the officer justified for the detainment or was this an act of kidnapping or false imprisonment?

  9. #9
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    Default Re: Is an Unlawful Arrest Kidnapping

    Quote Quoting zedex
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    But, lets say the officer checks into the accused story and several witnesses state the accused statements are correct and accurate. But, the officer firmly believes the accused is the guilty party and refuses to release the accused and does not put the witness statements in file.
    Later, in court, it is learned that there is no way the accused could have committed the crime and, thus, acquitted.
    Is the officer justified for the detainment or was this an act of kidnapping or false imprisonment?
    Once more, an arrest is based upon establishing "probable cause". This means that there is good cause to believe that a crime has been committed and that the person arrested has committed the offense. If an officer makes an arrest knowing that there is no probable cause, then he might be (maybe) liable for kidnapping or some related offense ... however, since kidnapping generally requires a specific intent, I doubt that it would apply in the vast majority of cases - even when a false arrest has been determined.

    Here is the definition of P.C. in CA combines with CA and US case law:

    "Probable cause" to arrest (1) requires more than the "reasonable suspicion" necessary for a detention and (2)is essentially the same as the "probable cause" required to obtain an arrest warrant or a search warrant. (Campa (1984) 36 Cal.3d 870, 879; Gorrostieta (1993) 19 Cal.App.4th 71, 84.)

    Whether "probable cause" exists depends upon the reasonable conclusions that can be "drawn from the facts known to the arresting officer at the time of the arrest." (Devenpeck v. Alford (2004) 543 U.S. 146, 152; Pringle (2003) 540 U.S. 366, 371.) "Probable cause" exists when the totality of the circumstances would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime. (Price (1991) 1 Cal.4th 324, 410; Kraft (2000) 23 Cal.4th 978, 1037; Charles C. (1999) 76 Cal.App.4th 420, 423.) "[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment." (Garrison (1987) 480 U.S. 79, 87.)

    Your training and experience are relevant to a determination of probable cause. (Guajardo (1994) 23 Cal.App.4th 1738, 1742; Gonzales (1989) 216 Cal.App.3d 1185; Rosales (1987) 192 Cal.App.3d 759; Hayes (9th Cir. 2001) 236 F.3d 891, 894.) However, "an arresting officer's state of mind (except for the facts he knows) is irrelevant to the existence of probable cause." (Devenpeck v. Alford (2004) 543 U.S. 146, 153, added emphasis.)

    The place to argue guilt or innocence is in court - not the street. If we had to cut everyone loose who claimed to be innocent or claimed to have an alibi, we'd never be able to arrest anyone. It just does not work that way.

    - Carl

  10. #10
    panther10758 Guest

    Default Re: Is an Unlawful Arrest Kidnapping

    In the reverse if Police only arrested guilty people there would be no need for courts

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