Wrongful Arrest in Chicago: What Makes an Arrest Illegal and What to Do Next

An arrest in Chicago is illegal when police lack probable cause: facts known to the officer at the time that would lead a reasonable person to believe you committed a crime. If that happened to you, stay silent, ask for a lawyer, preserve the evidence and watch the deadlines. A federal claim generally must be filed within two years.

Key takeaways

• A full arrest requires probable cause. A brief investigative stop requires less.
• Whether an arrest was lawful depends on what the officer knew at the time of the arrest, not on evidence found later.
• Invoke your right to remain silent and ask for an attorney. Do not argue the arrest on the street.
• Complaints about Chicago police go to the Civilian Office of Police Accountability (COPA). A complaint is separate from a lawsuit.
• In Illinois, a Section 1983 false arrest claim has a two-year deadline, and state-law claims against a city or its officers have a one-year deadline.

This article is general information about Illinois and federal law, not legal advice. Every arrest turns on its own facts, so talk to a lawyer about yours.

What makes an arrest illegal?

The Fourth Amendment prohibits unreasonable seizures, and an arrest is a seizure. For an arrest to be lawful, the officer needs probable cause. The U.S. Supreme Court put the test this way in Devenpeck v. Alford: whether probable cause exists depends on the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.

Three points follow from that test:

• Later evidence does not fix a bad arrest. The question is what the officer knew when the arrest happened.
• The officer's personal motive is not the test. The same decision holds that an officer's subjective intent is no basis for invalidating an arrest. Courts ask whether the known facts gave probable cause, not what the officer was thinking.
• A stop is not an arrest. According to the federal courts' overview of the Fourth Amendment, an officer who reasonably concludes that criminal activity may be afoot may briefly stop a person and make reasonable inquiries. Being handcuffed, transported to a station and booked is an arrest, and it requires probable cause.

Situations that often raise a probable cause question include an arrest based only on a vague description, an arrest for refusing to answer questions, and being held on a warrant meant for someone else. Whether any one of these was illegal depends on everything the officer knew at the time.

There is also a time limit on holding you without a judge's review. In County of Riverside v. McLaughlin, the Supreme Court said a judicial determination of probable cause within 48 hours of a warrantless arrest will generally be prompt enough. Past 48 hours, the government has to show an emergency or other extraordinary circumstance.

What to do right after an arrest you believe was illegal

1. Stay silent and ask for a lawyer. You have the right to remain silent and the right to speak to an attorney. Say clearly that you are using both rights, then stop talking. Do not explain, argue or resist. The place to challenge the arrest is court.
2. Photograph injuries as soon as you are released. Bruises, marks and torn clothing should be photographed before they change.
3. Get medical attention, even if you feel fine. A record made soon after the arrest ties your condition to that event.
4. Write down witnesses. Get names and contact details for anyone who saw the arrest: bystanders, passengers, neighbors.
5. Preserve the recordings. Body-camera video, dashcam video, 911 audio and nearby surveillance footage can be lost. Our firm sends spoliation letters demanding preservation of this evidence as soon as we take a case.
6. Find out where the person is. Our related post on what happens after an arrest in Chicago explains that a person may move from the place of arrest to the local stationhouse, to a county jail facility and then to court, sometimes over several days.

Filing a complaint against a Chicago police officer

A complaint and a lawsuit are different things. A complaint asks an oversight body to investigate the officer. A lawsuit asks a court for damages.

For Chicago police, complaints go to COPA. COPA's jurisdiction covers allegations that include excessive force, coercion, improper search and seizure, bias-based verbal abuse and unlawful denial of access to counsel. The Chicago Police Department's Bureau of Internal Affairs investigates other complaints of misconduct.

You can file a COPA complaint by phone on its 24-hour complaint line, online, by mail or in person. COPA says it mails a letter within five business days stating whether COPA or the Bureau of Internal Affairs will investigate, and sends letters with its findings when the investigation ends.

If the arrest was made by a suburban department or a sheriff's office, the complaint goes to that agency instead. You can also report a civil rights violation to the U.S. Department of Justice Civil Rights Division.

You do not have to finish a complaint process before suing. In Patsy v. Board of Regents, the Supreme Court held that exhausting state administrative remedies is not a prerequisite to a Section 1983 action. Do not count on a pending complaint to protect a lawsuit deadline.

Deadlines for a wrongful arrest lawsuit in Illinois

• Section 1983 false arrest claim: two years. The Supreme Court decided this in a Chicago case, Wallace v. Kato. Federal courts use the state's deadline for personal injury claims, which in Illinois is two years.
• When the clock starts. Under the same decision, when an arrest is followed by criminal proceedings, the two years begin when the person becomes held under legal process, for example when a judge binds them over or they are arraigned. The clock does not wait for the charges to be dropped.
• State-law claims: one year. Section 8-101 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act requires a civil action against a local entity or its employees to be started within one year, as quoted in this Illinois Appellate Court opinion on section 8-101.

Can you sue while criminal charges are still pending?

Yes, and because of the deadline rule above, waiting can be risky. Wallace v. Kato says that when a false arrest claim is filed before the criminal case ends, the federal court can stay the civil case until the criminal case is over.

A different rule applies if you were convicted. Under Heck v. Humphrey, a damages claim that would necessarily imply the invalidity of a conviction cannot go forward under Section 1983 unless that conviction has already been invalidated.

Anything you say in a civil case can matter in the criminal case, and the reverse. That is a reason to have counsel who looks at both before anything is filed.

How a wrongful arrest lawsuit works

Most wrongful arrest cases are brought under 42 U.S.C. § 1983, the federal statute that lets you sue a person who, acting under color of state law, deprives you of a constitutional right. Our short explainer covers what Section 1983 is. State-law claims can be filed in the same case, and our guide on how to file a civil rights lawsuit in Illinois walks through the court process.

Expect two defenses:

• Probable cause. The defense will argue that the facts known to the officer supported an arrest. The answer is evidence of what the officer actually knew: radio traffic, body-camera video and written reports.
• Qualified immunity. Officers are shielded from damages unless the unlawfulness of their conduct was clearly established at the time. In District of Columbia v. Wesby, a false arrest case, the Supreme Court said this requires a high degree of specificity and that courts must not define clearly established law at a high level of generality.

To hold the city itself liable under Section 1983, you must show that its own policy or custom caused the violation. Under Monell v. Department of Social Services, a local government is not liable simply because it employs the officer.

What a court can award

• Compensatory damages for what the arrest cost you. Keep pay stubs, bond receipts, legal bills and medical records.
• Punitive damages against an individual officer when the conduct involves reckless or callous indifference to federally protected rights, under Smith v. Wade. A municipality is immune from punitive damages under Section 1983, under City of Newport v. Fact Concerts.
• Attorney's fees. Under 42 U.S.C. § 1988, the court may, in its discretion, allow the prevailing party a reasonable attorney's fee.

No lawyer can tell you in advance what a case will recover or how long it will take.

Clearing the arrest from your record

An arrest record does not disappear on its own when charges are dropped. Asking a court to expunge or seal it is a separate process from a civil rights claim. The Illinois Courts publish approved statewide expungement and sealing forms, which all Illinois courts must accept, along with instructions on how to clear a criminal record.

How The Law Offices of Haytham Faraj handles wrongful arrest cases

We prepare every civil rights case for jury trial from day one, and we take on police departments, county sheriffs and politically sensitive defendants. Haytham Faraj is a retired Marine Corps Major and former JAG Senior Defense Counsel with more than 80 trial verdicts, and he personally tries every case we accept. He took a wrongful arrest case against a Granite City police officer to trial in the U.S. District Court for the Southern District of Illinois.

We handle civil rights cases on a contingency fee basis: you pay nothing unless we win. Haytham Faraj believes that those who can, must fight to protect those who cannot protect themselves.

Call our Chicago office at (312) 635-0800 or request a free consultation.

Frequently asked questions

What is the difference between reasonable suspicion and probable cause?

Reasonable suspicion allows an officer to briefly stop you and ask questions. A full arrest, where you are handcuffed, transported and booked, requires probable cause based on the facts the officer knew at the time.

Does evidence found later make an arrest legal?

No. Probable cause is judged on the facts known to the arresting officer at the time of the arrest, not on what an investigation turns up afterward.

If my charges were dropped, was my arrest illegal?

Not automatically. Dropped charges or an acquittal do not by themselves prove there was no probable cause at the time of the arrest. The question is still what the officer knew then.

How long do I have to sue for wrongful arrest in Chicago?

A Section 1983 false arrest claim in Illinois has a two-year deadline, and the clock can start as early as your first appearance before a judge. State-law claims against a city or its officers must be started within one year.

Is a COPA complaint the same as a lawsuit?

No. COPA investigates misconduct allegations against Chicago police and issues findings. A lawsuit is filed in court and is the way to seek damages. You do not need to file with COPA before suing.

What should I do if I am arrested on a warrant meant for someone else?

Say that you are not the person named, invoke your right to remain silent and ask for an attorney. A lawyer can press for your identity to be verified and assess whether the detention was lawful.