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False imprisonment is the detention of a person without any justification, consent, or authorization by law.  It is the total restraint of liberty.  False imprisonment is a common-law felony and a tort.  To recover damages for false imprisonment, an individual must establish that[i]:

  • the defendant intended to confine the plaintiff;
  • the plaintiff was conscious of the confinement;
  • the plaintiff did not consent to the confinement; and
  • the confinement was not otherwise privileged.

A person defending an allegation of false imprisonment must challenge the above elements constituting the offense.  Common defenses pleaded in an action against false imprisonment are as follows:

  • Arrest under a legal authority: It is a complete defense to a claim of false imprisonment, when the restraint or arrest is under legal authority or justification.  When the defendant was exercising his/her legal rights and duties, the restraint or imprisonment is justified.
  • Voluntarily Consent to Confinement: Confinement constituting false imprisonment must be against plaintiff’s will.  When a person voluntarily consents to the confinement, there can be no false imprisonment.  Voluntary consent to confinement nullifies a claim of false imprisonment[ii].
  • Probable Cause to Effectuate the Arrest: A determination that the confinement is privileged can be made based upon the existence of probable cause[iii].  Existence of probable cause is an absolute bar to claims for false imprisonment.  Probable cause is defined as a state of facts which leads a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person accused is guilty of the offense charged[iv].  Moreover, where an arrest is affected without a warrant, the existence of probable cause for the arrest is a legal defense to false arrest[v].
  • Waiver of right to complain: When a party is under arrest, any agreement or arrangement waiving any further proceedings, release and any claim for damages can be a defense for false imprisonment.  The arrangement must be made fairly and intelligently.  The waiver must not be procured by false representations, or by coercion[vi]
  • Res judicata: In an action for false imprisonment, an issue determined in a prior proceeding can be taken as res judicata.  An issue once decided will prevent a second judicial determination.
  • Action under the instruction of a superior officer: It is no defense to an action for false imprisonment that the defendant who made the arrest was acting under the directions of a superior officer. However, the fact that an officer made an arrest under the direction of a superior officer is competent to be shown as affecting punitive or exemplary damages[vii].

Most of the states provide an affirmative defense to merchants accused of false imprisonment.  Any merchant who has reasonable ground to believe that a person has committed retail theft may detain such person for the following purposes:

  • To request identification;
  • To verify such identification;
  • To make reasonable inquiry as to whether such person has in his possession unpurchased merchandise.  Moreover, the arrest is to make reasonable investigation of the ownership of such merchandise; and
  • To inform a peace officer of the detention of the person and surrender that person to the custody of a peace officer.

Moreover, a person does not commit false imprisonment when the person restrained is a child under the age of seventeen and the following conditions are satisfied.  The conditions are:

  • A parent, guardian or other person responsible for the general supervision of the child’s welfare has consented to the restraint; or
  • The actor is a relative of the child; and
  • The actor’s sole purpose is to assume control of the child; and
  • The child is not taken out of the state

Additionally, contributory negligence is not a defense, when the defendant’s wrong is something more than mere negligence, i.e., when it has the element of willful, reckless and wanton misconduct.  However, one who willfully and in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury is liable for the consequences, even though the other is guilty of negligence[viii].

[i] Bernard v. United States, 25 F.3d 98, 102 (2d Cir. N.Y. 1994).

[ii] Hanna v. Marshall Field & Co., 279 Ill. App. 3d 784, 793 (Ill. App. Ct. 1st Dist. 1996).

[iii] Stein v. City of New York, 2009 NY Slip Op 50261U (N.Y. Sup. Ct. 2009).

[iv] Burghardt v. Remiyac, 207 Ill.App.3d. 402, 565 N.E.2d 1049, 152 Ill.Dec. 367.

[v] Oakley v. Rochester, 71 A.D.2d 15, 18 (N.Y. App. Div. 4th Dep’t 1979).

[vi] Caffrey v. Drugan, 144 Mass. 294, 296 (Mass. 1887).

[vii] Christ v. McDonald, 152 Ore. 494, 501-502 (Or. 1935).

[viii] Aiken v. Holyoke S. R. Co., 184 Mass. 269, 271 (Mass. 1903).

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