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People have the right under California law to be protected from bodily restraint. A false-imprisonment claim requires proof of:
A false arrest is one way of committing false imprisonment. To prove false arrest, a person must prove three elements:
Once the person makes this showing, the burden shifts to the officer to prove that probable cause existed for the arrest. To avoid liability, the officer must prove that, more likely than not, a reasonable officer would have had probable cause to arrest the person. If the facts giving rise to the arrest are undisputed, then the issue of whether probable cause existed is an issue of law for the trial judge. But if the officer and the arrestee dispute the facts of the arrest, then the trial judge must instruct the jury about what facts, if proven, would constitute probable cause. “The jury then decides whether the evidence supports the necessary factual findings.” Levin v. United Airlines, Inc., 158 Cal. App. 4th 1002, 1018–19 (2008).
Generally, under California law, as under the Fourth Amendment, if the officer had probable cause to believe that the arrest was lawful—even if the arrest was later determined to be unlawful—the officer is not liable for false arrest. Cal. Penal Code § 847(b). “The existence of probable cause is necessary but not by itself sufficient to establish an arrest’s lawfulness.” George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992). An arrest for some crimes may violate the California penal code, which restricts when officers can arrest people.
In California, an arrest supported by probable cause may be lawful under the Fourth Amendment but illegal under California law, which limits an officer’s discretion in when to make a custodial arrest and whether to book the person into jail. Generally, under California law, an officer may not make a custodial arrest for some misdemeanors and some infractions—lesser crimes than a misdemeanor—unless a person fails to present a driver’s license or other identity document and sign a written promise to appear contained in a notice to appear (a “ticket”). If a person does not have a driver’s license or other identity document, then the officer may require the person to put a thumbprint on the notice to appear. “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.” Cal. Penal Code § 853.5(a).
Generally, a law-enforcement officer cannot arrest someone for a misdemeanor not committed in the officer’s presence—but there are exceptions. For example, an officer may make a warrantless misdemeanor custodial arrest of someone for driving under the influence, or for committing an assault or battery on a family member.
An officer cannot make a warrantless arrest of a person for a stale misdemeanor, which occurs when an adult commits a misdemeanor in the officer’s presence, but the officer fails to arrest the adult within a reasonable time afterwards. Later on, if the officer sees the person, the officer may not arrest her—but the officer may detain her to get information (such as name, date of birth, etc.) to get an arrest warrant.
In general, a law-enforcement officer in California may only make a lawful custodial, warrantless arrest of a person in three situations:
After being booked, and within three hours of being arrested, an officer must allow an arrested adult to make at least 3 completed phone calls. Cal. Penal Code § 851.5. After being booked, and no later than 1 hour after being taken into custody, an officer must advise an arrested juvenile of the right to make at least 2 phone calls. Cal. Welf. & Instit. Code § 627(b).
An officer who deprives an arrested person of the right to make a phone call is guilty of a misdemeanor. Cal. Penal Code § 851.5(f). Such an officer may also be civilly liable under section 1983.
People arrested and taken into custody on a warrantless arrest have the right to a judge’s determination of probable cause within 48 hours. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 55–58 (1991).