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Effect of Subsequent Misconduct upon a Lawful Arrest (with Francis H. Bolden), 28 Columbia Law Review 841 (1928)


Assuming that the actor has made a proper and valid arrest, what effect has a subsequent dereliction of duty or misconduct on the part of the actor towards the prisoner ? The question may arise in several ways.

1. If the arrest is made under process, the actor may fail to return the process, or may make a defective return.

2. Following an arrest either with or without process, the actor may fail to use reasonable diligence to bring his prisoner promptly before a proper court or magistrate.

3. Or the actor may release, or permit the release of, the prisoner without presentment before a proper court or magistrate.

4. Or the actor may misuse his official power over the prisoner in order to coerce him to comply with some demand which has no relation to the purpose of presentment before a proper court in the due course of administration of the criminal law, as for example, to compel the prisoner to restore property, or to pay money, or, perhaps, to disclose evidence against himself or others.

5. Or the actor may use unnecessary or unreasonable force against the prisoner in maintaining his custody, or he may take advantage of his power in order to inflict bodily harm on the prisoner or to commit some other independent and recognized tort.

It will be shown later that there is abundant authority for holding the actor liable civilly to the prisoner for any invasion of a legally protected interest of the prisoner, resulting from any of the above acts or omissions on the part of the actor. But a great number of cases go much further. There are many cases holding that the first, second and third types of misconduct dislodge the actor's privilege in making the arrest and make him liable for the entire imprisonment in the same manner as if the original arrest were unprivileged. There are a few decisions which give a similar effect to misconduct of the fourth type. But there is no direct decision as to the effect of misconduct of the fifth type, although there are a few dicta which will be discussed later.

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