An illegal arrest is an arrest made in a situation where it would not be authorized by law. This usually becomes an issue when people are detained illegally after being arrested. There are a number of settings where illegal arrests can occur and the legal penalties vary. Most commonly, private security companies are charged with illegal arrest, but law enforcement officers can also potentially violate the law when conducting an arrest, detaining a suspect, or searching a suspect under arrest.
Laws about making arrests vary worldwide. Some nations place a very high priority on personal freedom and bodily autonomy for their citizens, and they spell out clear rules for situations when arrests are warranted and how those arrests may be conducted. Other nations believe national security and public safety to be more important than individual liberties in certain situations, and may have more lenience in the laws surrounding arrests.
As a general rule, an arrest is illegal if the person making the arrest cannot show probable cause. Anyone can potentially make an arrest, but private security firms and overzealous civilians are the most likely to make an illegal arrest due to an imperfect understanding of the law, as they do not have the training available to police officers. In a simple example, a police officer cannot arrest a man walking down the street because he happens to be of a certain race or ethnic background. However, a police officer could arrest the man if he resembles a suspect in a crime that has just been reported in the area.
An arrest can also be illegal if someone is detained beyond the limit permitted by law. For many traffic infractions, for example, people can be arrested for a citation, but they must be released immediately afterward unless there is a legitimate concern that they will not appear in court to respond to the citation. If people are held beyond the period needed for a citation for minor infractions, it can be considered an illegal arrest.
People can choose to resist illegal arrest, although they cannot use excessive force in doing so. Some gray areas can be entered when people resist what they believe to be illegal arrests. Cases where police officers have failed to identify before making an arrest or where the situation was not clearly communicated to the suspect have been deemed illegal arrests in some cases, justifying evasion of arrest on the part of the subject.
