A false arrest claim is an intentional tort and requires a showing of (1) an arrest under process of law, (2) without probable cause, and (3) made maliciously.  A lack of probable cause exists when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.  In any action for false arrest or malicious prosecution, it is essential that the plaintiff demonstrate that the prosecution terminated in his favor.

Claims for false arrest, false imprisonment and malicious prosecution under federal law are generally pursued under 42 U.S.C. '1983. Although private individuals can act in concert with public officials to satisfy the Acolor of state law requirement in section 1983, that is the rare exception and virtually all claims against private individuals and private corporations for false arrest, false imprisonment and malicious prosecution proceed solely under state law. Police officers, when performing their duties, act directly under color of state law and, therefore, a majority of such claims against police officer and their employees included federal claims brought under section 1983.

Section 1983 provides a civil remedy for persons whose federal constitutional or other federally-established rights are violated under color of state law. Section 1983 does not create a new cause of action but rather provides a means by which violations of a federally-protected rights can be converted into civil actions for damages. Butts v. Volusia, 222 F.3d 891 (11th Cir. 2000). Section 1983 is particularly attractive to plaintiffs' attorneys in light of 42 U.S.C. '1988 which provides for payment of the plaintiffs' attorneys fees in the event of a successful recovery.

The federal rights which are implicated in false arrest, false imprisonment and malicious prosecution cases are (1) the Fourth Amendment's prohibition against unreasonable searches and seizures and admonition that Ano warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be served, and the person and thing to be seized and the Fourteenth Amendment's prohibition against state action which deprive(s) any persons of life, liberty and property without due process. Before addressing the underlying constitutional issues arising from a federal claim alleging false arrest, false imprisonment or malicious prosecution it is necessary to address the concept of qualified immunity.

Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct Adoes not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). "The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). To receive qualified immunity, "the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee v. Ferraro, supra. "Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Id.

The U.S. Supreme Court has established a two-part test for the application of qualified immunity. "The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508 (2002) (citing 878 Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. However, "[i]f a constitutional right would have been violated under the plaintiff's version of the facts, 'the next, sequential step is to ask whether the right was clearly established.' " Vinyard, 311 F.3d at 1346 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151).

To receive qualified immunity protection in a false arrest claim pursued under federal law, "an officer need not have actual probable cause but only 'arguable probable cause.' " Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.1997). Because only arguable probable cause is needed, "the inquiry is not whether probable cause actually existed, but instead whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed." Id. "Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534 (1991).

Although the governmental entities which employ law enforcement officials cannot assert a qualified immunity defense to such claims, there is no respondeat superior liability under section 1983. Gold v. City of Miami, 151 F.3d 1346 (11^th Cir. 1998). To hold the governmental employer liable for such claims it must be established that the actions of the governmental entity, either through an express or implied policy or custom, or through failure to properly train its officers, must be viewed as the Amoving force of the constitutional violation. Monell v. Dept. of Soc. Serv. 436 U.S. 658, 98 S.Ct. 2018 (1978). Where there is no underlying constitutional violation (ie, there was probable cause for an arrest), there is no liability on the part of the governmental employer. City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571 (1986).