# Arrested for a Non-Existent Crime? **URL:** \ **Category:** Factual Questions\ **Created:** [February 22, 2008, 5:30pm UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738 "2008-02-22T17:30:27Z")\ **Posts on this page:** 6\ **Page:** 2
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 23, 2008, 6:13pm UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738/21 "2008-02-23T18:13:28Z")
[QUOTE=Loach] I agree, it’s not. [/QUOTE] [Brief Hijack]As a law enforcement officer, do you think those cases (especially the one in the second link) are wrongly decided?[/Brief Hijack] [QUOTE=Gary T] Could charges of false arrest and/or false imprisonment be levied in some cases of this? If so, any real chance of the officer(s) involved being found guilty? [/QUOTE] I doubt the officer could or would be charged criminally if the only evidence was that he thought the person had committed a crime, but was mistaken about the law. Civil liability will depend on the jurisdiction. Here’s an example from the Virign Islands. In this case the defendant was arrested for purchasing Pueror Rican lottery tickets, which does not violate Virgin Islands Law, the Territorial Court of the Virgin Islands found the arresting officer liable despite his good faith mistake defense: > [@](#): > > The sole question in a false imprisonment case is whether the police officer acted with color of legal authority. 2 Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982). The validity of a warrantless arrest depends on whether, at the time of the arrest, the facts and circumstances of which the officer had knowledge were sufficient to justify a prudent person that the subject was committing or had committed an offense. United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987). A warrantless arrest is presumptively unlawful and the burden shifts to the defendant officer to show that the arrest was justified by “reasonable cause.” Wilcox v. United States, 509 F. Supp. 381 (D.D.C. 1981); Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 106 S. Ct. 1227 (1986). The standard for showing reasonable cause is less stringent than that for probable cause. Government of the Virgin Islands v. Hernandez, 508 F.2d 712 (3d Cir. 1975), cert. denied, 422 U.S. 1043, 95 S. Ct. 2659 (1975); Deary v. Evans, 570 F. Supp. 189 (D.V.I. 1983), reversed on other grounds sub nom. Deary v. Three Un-Named Police Officers, 746 F.2d 185 (3d Cir. 1984); Brubaker v. King, 505 F.2d 534 (7th Cir. 1974). A peace officer who arrests upon probable cause is not liable for false arrest simply because the suspect’s innocence is subsequently proved. Pierson v. Ray, 386 U.S. 547, 555, 87 S. Ct. 1213, 1218 (1967). > > 2 False arrest is a subspecies of false imprisonment. Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969), cert. denied, 396 U.S. 901, 90 S. Ct. 210 (1969). > > Pursuant to 5 V.I.C. § 3562(1), a peace officer may arrest a person without warrant, inter alia, “for a public offense committed or attempted in his presence.” See also Restatement (Second) of Torts § 121. Although the arresting officer must make the fundamentally factual decision whether probable cause exists for a warrantless arrest, the court must determine whether “the objective facts available to the officer at the time of the arrest were sufficient to justify a reasonable belief that an offense was being committed.” United States v. Glasser, 750 F.2d 1197 (3d Cir. 1984), cert. denied sub nom., Erdlen v. United States, 471 U.S. 1018, 105 S. Ct. 2025 (1985). It need hardly be added that the alleged conduct precipitating the arrest must constitute an offense, i.e., it must actually be illegal. > > Even assuming that Thomas was buying Puerto Rico lottery tickets, he was not committing any crime. Tit. 14 V.I.C. § 1223 prohibits only the selling, giving or furnishing of other than official Virgin Islands lottery tickets; the statute does not proscribe the purchasing, accepting or receiving of unauthorized tickets. Likewise, Thomas did not violate § 1224, which prohibits gambling. Smith v. Williams, 698 F.2d 611 (3d Cir. 1983). > > The defendants contend that a police officer enjoys qualified immunity from liability for false imprisonment. 3 Just as surely as the doctrine exists, it manifestly does not apply in this case. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2738 (1982), the Supreme Court held: > > [G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. > > The defense of qualified immunity thus is defeated if the official " ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff]…’ " Id. at 2737, quoting from Wood v. Strickland, 420 U.S. 308, 321-22, 95 S. Ct. 992, 1000–1001 (1975), rehog denied, 421 U.S. 921, 95 S. Ct. 1589 (1975) (emphasis added in Harlow). While Harlow involved the actions of high government officials, the Virgin Islands District Court has applied the doctrine of qualified immunity to police officers in a federal civil rights action under 42 U.S.C. § 1983. Deary v. Three Un-Named Police Officers, supra. The authority is persuasive also in the case at bar. > > 3 Qualified immunity is synonymous with good faith immunity. Deary v. Evans, 570 F. Supp. 189 (D.V.I. 1983). > Although Parrilla’s arrest was without probable cause, he may still avoid liability if he acted in good faith. Id. at 192. The question of good faith is not entirely subjective, however, because it requires more than merely determining the officer’s actual belief. That belief must also have been reasonable. Id., citing Black v. Stephens, 662 F.2d 181, 193 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 102 S. Ct. 1646, rehog denied, 456 U.S. 950, 102 S. Ct. 2022 (1982). > > By definition, reasonable cause cannot exist where the subject’s conduct is not prohibited. > > A peace officer making an arrest without a warrant is protected in every case where he acts under a reasonable mistake as to the existence of facts which… justify an arrest without a warrant. On the other hand, no protection is given to a peace officer who, however reasonably, acts under a mistake of law other than a mistake as to the validity of a statute or ordinance. > > Restatement, supra § 121, comment i; Cambist Films, Inc. v. Duggan, 475 F.2d 887 (3d Cir. 1973). “A police officer cannot prove his reasonable belief in the validity of an arrest by asserting his ignorance of the law pursuant to which the arrest was effected.” Hartnett v. Schmit, 501 F. Supp. 1024 (D. Ill. 1980). Restraint without color of legal authority constitutes false imprisonment. McLaughlin v. Bradlee, 599 F. Supp. 839 (D.D.C. 1984), aff’d on other grounds, 803 F.2d 1197 (D.C. Cir. 1986). Since there was no probable cause to arrest him, detaining the plaintiff prior to his advice of rights also was unlawful and as such constituted a false imprisonment. Id. at 175; Dent v. May Dept. Stores Co., 459 A.2d 1042, 1044 (D.C. 1982). Absent legal justification or probable cause for the plaintiff’s arrest and detention, Parrilla’s liability for false imprisonment is established. _Thomas v. Gov’t of the Virgin Islands_, 24 V.I. 254; 1989 V.I. LEXIS 55 (1989) State laws vary. See, \*e.g., \* [http://www.grsmb.com/CM/Resources/Police-Liability.asp](http://www.grsmb.com/CM/Resources/Police-Liability.asp) (Georgia law requires proof of malice); [False Arrest/Imprisonment: Unlawful Detention](http://www.aele.org/law/Digests/civil88.html) (survey of recent cases); ---
**Author:** ![GreasyJack](https://avatars.discourse-cdn.com/v4/letter/g/df705f/32.png) [@GreasyJack](https://boards.straightdope.com/u/GreasyJack)\ **Post date:** [February 23, 2008, 6:40pm UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738/22 "2008-02-23T18:40:53Z")
[QUOTE=KneadToKnow] Nitpick: 1976 was the Ford administration. [/QUOTE] Well, yes, but my 1976 plates with no tabs would have been good until august 1977. ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [February 23, 2008, 6:53pm UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738/23 "2008-02-23T18:53:44Z")
My mistake. Tags here show the date they expire, not the date of issue. ---
**Author:** ![The\_Them](https://avatars.discourse-cdn.com/v4/letter/t/898d66/32.png) [@The\_Them](https://boards.straightdope.com/u/The_Them)\ **Post date:** [February 25, 2008, 5:39am UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738/24 "2008-02-25T05:39:04Z")
Someone needs to point this out: cops can be flatout _malevolent._ If I hadn’t had the resources to bail myself out, I would have spent at _least_ several months, and possibly longer, behind bars. And my car would have been confiscated, with everything in it. They tried charging me with drug smuggling, drunk driving…eventually, they were down to “transportation of deadly weapons.” Seems I had a machete in my trunk. Remember, if I hadn’t been able to pay the bail bondsman, that could have been forever. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 25, 2008, 9:07pm UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738/25 "2008-02-25T21:07:54Z")
I’d say offhand that an arrest for a non-existent crime will only proceed as far as the preparation of the arrest report (which is generally written up when the arrestee is brought into a police station). That’s going to be the point where the arresting officer will have to determine and write down an actual charge. If no actual charge exists, this will be where it becomes known. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [February 25, 2008, 11:26pm UTC](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738/26 "2008-02-25T23:26:36Z")
Not an arrest, but at my old department we had an officer write some citations for an offense that didn’t exist. When he couldn’t find the violation/statute in the bond book he explained to people that it was a new ordinance and that the statute numbers were not available yet, which is why that section on the ticket was blank. It was not a new ordinance, as the proposed ordinance did not even pass. All dozen or so people that he wrote tickets too got letters indicating they had been dismissed. And that officer got his ass chewed out something firece! [Previous page](https://boards.straightdope.com/t/arrested-for-a-non-existent-crime/438738.md?page=1)