Proving Probable Cause: Allocating the Burden of Proof in False Arrest Claims under § 1983

• Published in: The University of Chicago law review Vol. 73; no. 1; pp. 347 - 376
• Main Author: Sarah Hughes Newman
• Format: Journal Article
• Language: English
• Published: Chicago University of Chicago Law School 01.12.2006; University of Chicago, acting on behalf of the University of Chicago Law Review
• Subjects: Arrests; Burden of proof; Comments; Common law; Constitutional amendments; Constitutional law; Criminal arrests; Defendants; Disorderly conduct; Excessive force; False arrests; False arrests & convictions; Federal circuit courts; Federal court decisions; Immunity from prosecution; Plaintiffs; Police; Privileges & immunities; Probable cause; State law; State laws; Trials; United States > US
• ISSN: 0041-9494; 1939-859X

Police officers have the power to arrest citizens without a warrant if they have probable cause. A citizen who is arrested without probable cause can bring a civil action against the officer under 42 USC § 1983 for false arrest. A critical issue in a Sec. 1983 false arrest case is the presence or absence of probable cause. The debate is complicated by the federal system, in which a preliminary issue is whether federal or state law should be applied to determine the burden of proof. Although the burden of proof is critical in false arrest cases, as a procedural issue it is rarely the subject of focused analysis by the courts. More commonly, the circuits simply state which burden of proof applies and move on without further discussion. This comment synthesizes the policy justifications for each position after studying cryptic or fragmentary arguments in a number of cases. Further, the comment provides a rationale for placing the burden of proof on the defendant police officer.