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People V. Mcgrew, 20 Pac. 92 (1888) Knight V. Baker, 133

An arrest is presumed to be false unless the officer can prove it was lawful. The plaintiff only needs to show they were arrested or imprisoned to establish a false arrest claim. The burden is on the officer to prove the arrest was authorized. Any warrantless arrest is presumptively invalid and the state has the burden to justify it. The officer must show a valid warrant if requested and the warrant must state sufficient facts to constitute a crime and be based on probable cause. An unlawful arrest is considered assault and battery, and a person can resist an unlawful arrest using reasonable force.

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157 views6 pages

People V. Mcgrew, 20 Pac. 92 (1888) Knight V. Baker, 133

An arrest is presumed to be false unless the officer can prove it was lawful. The plaintiff only needs to show they were arrested or imprisoned to establish a false arrest claim. The burden is on the officer to prove the arrest was authorized. Any warrantless arrest is presumptively invalid and the state has the burden to justify it. The officer must show a valid warrant if requested and the warrant must state sufficient facts to constitute a crime and be based on probable cause. An unlawful arrest is considered assault and battery, and a person can resist an unlawful arrest using reasonable force.

Uploaded by

Alex Lagunes
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Arrest is presumed to be false if …

MEMORANDUM OF POINTS AND AUTHORITIES

1. Arrest is presumed to be false; officer has the


burden of proof

The only thing the plaintiff needs to plead and to


prove if alleging false arrest, is either (1) that the
defendant made an arrest or imprisonment, or (2)
that the defendant affirmatively instigated,
encouraged, incited, or caused the arrest or
imprisonment. Burlington v. Josephson, 153 Fed.2d
372,276 (1946).

”When the plaintiff has shown that he was arrested,


imprisoned or restrained of his liberty by the
defendant, "the law presumes it to be unlawful."
People v. McGrew, 20 Pac. 92 (1888); Knight v. Baker, 133
P. 544(1926).

"The burden is upon the defendant to show that the


arrest was by authority of law." McAleer v. Good, 65 Atl.
934, 935 (1907); Mackie v. Ambassador, 11 P.2d 6 (1932).

"Any arrest made without a warrant, if challenged by


the defendant, is presumptively invalid...the burden is
upon the state" to justify it as authorized by statute, and as
not violative of constitutional provisions. State v. Mastrian,
171 N.W.2d 695 (1969); Butler v. State, 212 So.2d 577
(Miss 1968)

"As in the case of illegal arrests, the officer ... must


keep within the law at his peril." Thiede v. Scandia, 217
Minn. 231, 14 N.W.2d 400 (1944).

2. Must show warrant upon request


"He must show it to the accused, if requested to do
so." Smith v. State, 208 S.2d 747 (Miss., 1968).

"If demanded, he must produce the warrant and read


it to the accused, that he may know by what authority
and for what cause he is deprived of his liberty." State
v. Shaw, 89 S.E. 322 (1916).

"An accused person, if he demands it, is entitled to


have the warrant for his arrest shown to him at the
time of arrest." 42 L.R.A. 682, 51 L.R.A. 211, Crosswhite
v. Barnes, 124 S.E. 242, 245 (1924).

"A special deputy is bound to show his warrant if


requested to do so, and if he omit, the party against
whom the warrant issues may resist an arrest, and
the warrant under such circumstances is no protection
against an action for an assault, battery and false
imprisonment." Frost v. Thomas, 24 Wendell's Rep. (N.Y.)
418, 419 (1840).

“It is doubtless the duty of an officer who executes a


warrant of arrest to state the nature and substance of
the process which gives him the authority he
professes to exercise, and, if it is demanded, to
exhibit his warrant, that the party arrested may have
no excuse for resistance.” Shovlon v. Com., 106 Pa. 369,
5 Am. Crim. Rep. 41 (1884)

“It was the duty of an officer who attempts to make


an arrest to exhibit the warrant if he has one.” Jones
v. State, 114 Ga. 79, 39 S.E. 861 (1901)

3. Warrant must be valid

A constable justifying an imprisonment under a


warrant must show that the warrant on its face is
legal, and that the magistrate had jurisdiction of the
subject-matter. 51 L.R.A. 197, Poulk v. Slocum, 3
Blackfords (Ind). 421. (Meaning, you should also
demand a copy of the affidavit giving the judge
probable cause to issue the warrant. All warrants
must issue upon submission of an affidavit of probable
cause.)

“A warrant is regarded as insufficient and thus void if,


on its face, it fails to state facts sufficient to constitute
a crime.” Wharton’s Crim. Proc., 12th Ed., vol. 1, p. 152
(1974).

4. No rubber-stamp “signature”

“The United States Supreme Court ... stressed the


need for ‘individualized review’ to avoid the issuance
of ‘rubber stamp’ warrants.” State v. Paulick, 277 Minn.
140, 151 N.W.2d 596 (1967).

5. False arrest is assault and battery

"An illegal arrest is an assault and battery. The


person so attempted to be restrained of his liberty has
the same right, and only the same right, to use force
in defending himself as he would have in repelling any
other assault and battery.” State v. Robinson, 72 Atl.2d
262 (1950).

"An arrest without warrant is a trespass, an unlawful


assault upon the person ... where one is about to be
unlawfully deprived of his liberty he may resist the
aggressions of the offender, whether of a private
citizen or a public officer, to the extent of taking the
life of the assailant, if that be necessary to preserve
his own life, or prevent infliction upon him of some
great bodily harm.” State v. Gum, 69 S.E. 464 (1910).
“Every person has the right to resist an unlawful
arrest ... and, in preventing such illegal restraint of his
liberty, he may use such force as may be necessary.”
Columbus v. Holmes, 152 N.E.2d 306 (1958).

6. No handcuffs (sorry, OSHA)

“But a constable cannot justify handcuffing a prisoner


unless he has attempted to escape, or unless it be
necessary in order to prevent his doing so.” 51 L.R.A.
216.

“The handcuffing was utterly unlawful.” Osborn v.


Veitch 1 Foster & Fin Eng Rep 317.

7. Go immediately to a magistrate (no photographs,


no fingerprinting)

“The one arresting has “a duty to immediately seek a


magistrate,” and failure to do so “makes a case of
false imprisonment.” Heath v. Boyd, 175 S.W.2d. 217
(1943); Brock v. Stimson, 108 Mass. 520 (1871).

"To detain the person arrested in custody for any


purpose other than that of taking him before a
magistrate is illegal.” Kominsky v. Durand, 12 Atl.2d. 654
(1940).

"Any undue delay is unlawful and wrongful, and


renders the officer himself and all persons aiding and
abetting therein wrongdoers from the beginning.”
Ulvestad v. Dolphin, 278 Pac. 684 (1929).

"The taking of the plaintiff’s picture before conviction


was an illegal act.” Hawkins v. Kuhne, 137 NY Supp 1090,
153 App Div 216 (1912).

"The power to arrest does not confer upon the


arresting officer the power to detain a prisoner for
other purposes.” Geldon v. Finnegan, 252 N.W. 372
(1934).

"Compulsory fingerprinting before conviction is an


unlawful encroachment...[and] involves prohibited
compulsory self-incrimination.” People v. Helvern, 215
N.Y. Supp. 417 (1926)

Summary

A warrant must be issued and be signed (no rubber stamp)


by a judge who has jurisdiction;
must state the facts showing jurisdiction;
must be based upon probable cause;
must name the offense committed;
must contain an affidavit (under oath) by the accuser,
stating FIRST HAND facts constituting a crime;
must name the party to be arrested, or describe him
sufficiently to identify him;
must offer the warrant and the affidavit for inspection upon
request;
No handcuffs;
must take me immediately before a magistrate, and hold me
for no other purpose (no photographs, no fingerprinting);
You are responsible for everything that happens to me even
if you relinquish custody to an assign;
Unlawful arrest is assault, battery & trespass;
There is no immunity in a false arrest case;
Good faith is not a defense to sustain false arrest.

Lastly . . . If the warrant states as cause to issue, a mere


civil/statutory infraction not rising to the level of a capital
crime . . . the officer must produce title to your biological
property/body, before said officer can make the arrest and
take possession of the biological property. You do not by
accommodation, accept the offer of arrest for any statutory
infraction unless the statute defines a capital crime and
probable cause exists.
NOTE:

The arresting officer that this information has been


presented to, has both a civil and legal duty to become
informed with the material incorporated herein before an
arrest is determined to have cause to be made.

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