Linda Overall v. State of Oklahoma, ex rel Department of Public Safety

Lawton, Oklahoma personal injury lawyer represented the Plaintiff who sued on a false arrest theory.

¶18 Our analysis of this case begins with an examination of the tort of false arrest.

¶19 Title 22 O.S. 1991 § 196 , states:

A peace officer may, without a warrant, arrest a person:

1. For a public offense, committed or attempted in his presence. . . .

¶20 Title 22 O.S. 1991 § 199 , dictates:

When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense. . . . (Emphasis added.)

¶21 Title 76 O.S. 1991 § 6 , reads:

Besides the personal rights mentioned or recognized under law, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm. . . ."

¶22 False arrest is defined by Black's Law Dictionary 540 (5th ed. 1979) as:

unlawful restraint of an individual's personal liberty or freedom of locomotion. . . . An arrest without proper legal authority is a false arrest and because an arrest restrains the liberty of a person it is also false imprisonment. The gist of the tort is protection of the personal interest in freedom from restraint of movement. Neither ill will nor malice are elements of the tort, but if these elements are shown, punitive damages may be awarded in addition to compensatory or nominal damages. (Emphasis added.)

¶23 Title 21 O.S. 1991 § 535 , reads:

[Any] public officer or person pretending to be a public officer, who under the pretense or color of any process or other legal authority, arrests any person, or detains him against his will, or seizes or levies upon any property, or dispossesses anyone of any lands or tenements without due and legal process, is guilty of a misdemeanor. (Emphasis added.)

¶24 "Due and legal process" is another term for probable cause. An arrest, with or without a warrant, cannot be valid unless the officer has reason to believe a crime has been or is being committed, which is the probable cause required to effect a valid arrest. "Due and legal process" or probable cause to effect an arrest is not the same as the vested authority of the officer to make arrests. An officer may be duly authorized to make an arrest, but the arrest he makes is invalid if unsupported by probable cause. The authority vested in an officer to make an arrest does not automatically flow to the arrest itself and rehabilitate a tainted arrest. An officer acting as a duly authorized peace officer can carry out his duty in good faith by making a warrantless arrest, but unless there is probable cause to make that arrest, the arrest is invalid.4

¶25 Thus, when the definitions set out above are read in connection with each other, we find that a good faith, warrantless arrest by an officer without due and legal process, i.e., probable cause, is a false arrest. As such the arrest is tortious. The mental intent of the officer in making the arrest is irrelevant. There is no inference of bad faith, ill will, or malice to be drawn from the actions of the officer making the arrest. The simple fact the arrest was made without due and legal process, i.e., probable cause, constitutes the tort of false arrest.

Affirmed