is a tort
, and possibly a crime
, wherein a person is intentionally confined without legal authority.
The elements of the tort are:
- Intent to confine another person against their will. In Australia, this element will be fulfilled if the imprisonment is negligently occasioned. In the United States, the possibility of false imprisonment arises if the imprisonment causes bodily harm or if the alleged victim is aware of the confinement as it happens.
- An act pursuant to this intent.
- The resulting confinement of another person against his or her will.
- Absence of a reasonable means of escape. A means of escape will not be reasonable if it endangers personal safety, such as leaping from the window of a tall building.
- In some jurisdictions, awareness of the confinement by the person so confined. In both England and Australia, consciousness of imprisonment is not an element of the tort.
- Absence of legal authority on the part of the person acting to confine another.
The following are false imprisonment scenarios.
- The taking hostage of a bank's customers and employees by bank robbers.
- The detainment of a customer by a business owner (e.g., hotel operator, apartment owner, credit card company) for the failure to pay a bill. However, there is something known as the "merchant's exception." A store operator may detain a suspected thief for a reasonable period of time to conduct an investigation of the facts or situation.
- Certain situations arising from controversial legislation, like California's Assembly Bill 1421, Laura's Law.
What false imprisonment is not
Not all detainments constitute false imprisonment, as to whether or not, it is based heavily on the context of the situation.
A police officer has the right to detain someone if he has probable cause to believe a crime has been committed, and that the person is so involved, or if the officer has reasonable suspicion that the person has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences.
A store owner holds the common law shopkeeper's privilege, under which he is allowed to detain a suspected shoplifter on store property for a reasonable period of time, with cause to believe that the person detained in fact committed, or attempted to commit theft of store property. The shopkeeper's privilege, although recognized in most jurisdictions, is not as broad a privilege as that of a police officer's, and therefore one must pay special attention to the temporal element that is, the shopkeeper may only detain the suspected criminal for a relatively short period of time. This is similar to a general right in many jurisdictions of citizen's arrest of suspected criminals by the public in limited circumstances.
This privilege has been justified by the very practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon his suspicion and risking a false arrest.
Most US states recognize a privilege, usually limited to shopkeepers to detain temporarily for investigation anyone whom they reasonably suspect of having tortiously taken their goods or is attempting to. In America to properly exercise this privilege all
the following conditions must be satisfied:
- Investigation on or near premises: The detention itself must be effected either on the store premises or in the immediate vicinity thereof. A majority of courts state that the privilege to detain is lost once they leave the store's property. US Courts do allow shopkeepers to chase after the person to recapture their lost merchandise when they are in "fresh pursuit." The investigation must be to determine ownership of the property, not to force a confession.
- Reasonable suspicion: The shopkeeper must have reasonable grounds to suspect the particular person detained.
- Reasonable force only: reasonable, nondeadly force may be used to effect the detention. Use of force is justified when the suspect is in immediate flight or violently resists detention. They may handcuff a customer, lie them on the ground, sit them on the ground but must allow them to look for a receipt. Credibility and contradictory testimony is for a fact finder, i.e. a jury or judge to determine. Doing so is evidence to support damages of false imprisonment, and even gross negligence if the conduct involved exposed the customer to an extreme risk of substantial harm, which would allow an award of exemplary damages.
- Reasonable period and manner of detention: The detention itself may be only for the period of time necessary for reasonable investigation (usually very short) and must be conducted in a reasonable manner. US courts have found that it may be only for 10 and never longer than 15 minutes. A detention can be accomplished by means which restrains the party so detained from removing from one place to another as he may see proper.
- If one of the conditions is not satisfied the shopkeeper loses the privilege and can be liable for false imprisonment, and any other torts they commit.
Note: Reasonable mistake protected: Where these conditions are established, the shopkeeper is immune from liability for false arrest, battery, etc. - even though it turns out that the person detained was innocent of any wrongdoing if they satisfied all the requirements.
The shopkeeper's privilege does not give immunity for defamation claims against the stores, they are not entitled to a qualified privilege to publicly accuse the suspect of shoplifting. Statements may be made privately during the course of investigation or they must be able to show such statements were made without malice (that is a statement made with knowledge of its falsity or with reckless disregard as to its truth). To avoid liability for defamation, the person must be acting in good faith, the communication passes only to persons having an interest or duty in the matter to which the communications relate.
The privilege for the most part is to be able to return the stolen goods. The shopkeeper may not force a confession. They do have a right to conduct a contemporaneous search of the person and the objects within that person's control.
Claim of False Imprisonment
To prevail under a false imprisonment claim, a plaintiff must prove: (1) willful detention; (2) without consent; and (3) without authority of law.
The test of liability is not based on the store patron's guilt or innocence, but instead on the reasonableness of the store's action under the circumstances; the trier of fact usually determines whether reasonable belief is established. A guilty shoplifter can still sue for false imprisonment then if the detention was unreasonable.
In a Louisiana case, a pharmacist and his pharmacy were found liable by a trial court for false imprisonment. They stalled for time and instructed a patient to wait while simultaneously and without the patient's knowledge calling the police. The pharmacist was suspicious of the patient's prescription, which her doctor had called in previously. When the police arrived, they arrested the patient. While the patient was in prison, the police verified with her doctor that the prescription was authentic and that it was meant for her. After this incident, the patient sued the pharmacy and its employees. She received $20,000 damages. An appeals court reversed the judgment, because it believed the elements of false imprisonment were not met.
In Colorado, a woman sued a police officer for false imprisonment after being arrested for not leashing her dog. The plaintiff was in her car when she was approached by the officer, and when she was asked to produce her driver's license and failed to do so, she was arrested. She won her claim, despite having lost the case of not leashing her dog. The court reasoned that the officer did not have proper legal authority in arresting her, because he arrested her for not producing her driver's license as opposed to the dog leash violation.