Am. Jur. 2d

FALSE IMPRISONMENT
by
Francis Collins, J.D.

TOPIC SCOPE

This article discusses false imprisonment or false arrest primarily as a tort, treating such matters as the nature and elements of the wrong, liability, defenses, procedural issues, and damages.  Some consideration is also given to false imprisonment as a crime.

I.  CIVIL ACTIONS [1-15]

A.  In General [1-7]

False imprisonment is the unlawful restraint by one person of the physical liberty of another. 1   False imprisonment entails such restraint without consent 2  or legal justification. 3   In this phrase, the word "false" seems to be exactly synonymous with "unlawful," 4  and the gravamen of the action lies in the unlawful detention. 5

Even though false imprisonments often appear to arise from legitimate motives, 6  the tort of false arrest or false imprisonment exists to protect and vindicate the individual's interest in freedom from unwarranted interference with that person's personal liberty. 7

Footnote 1. J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359; Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250; Lane v Collins,  29 Wis 2d 66, 138 NW2d 264.

The tort of false imprisonment is the unlawful restraint of an individual's personal liberty or freedom of locomotion.  Baltz v Shelley (ND Ill) 661 F Supp 169.

Forms: Instructions to jury defining false imprisonment.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  3.

Footnote 2. Ross v Meyers (CA6 Ohio) 883 F2d 486, reh den (CA6) 1989 US App LEXIS 16985, reh den (CA6) 1990 US App LEXIS 419; Abourezk v New York Airlines, Inc., 283 US App DC 34, 895 F2d 1456.

Footnote 3. Day v Providence Hosp. (Ala) 622 So 2d 1273, reh den, without op (Ala) 1993 Ala LEXIS 986; R.J.D. v Vaughan Clinic, P.C. (Ala) 572 So 2d 1225; Curtis v State Dep't for Children & Their Families (RI) 522 A2d 203; Kroger Co. v Demakes (Tex Civ App Houston (1st Dist)) 566 SW2d 653, writ ref n r e (Sep 20, 1978) and rehg of writ of error overr (Oct 25, 1978); J. C. Penney Co. v Duran (Tex Civ App San Antonio) 479 SW2d 374, writ ref n r e (Oct 4, 1972); Zayre of Virginia, Inc. v Gowdy, 207 Va 47, 147 SE2d 710.

Footnote 4. Stine v Shuttle, 134 Ind App 67, 186 NE2d 168 (ovrld on other grounds as stated in Seymour Nat'l Bank v State (Ind App) 384 NE2d 1177).

Footnote 5. Gabrou v May Dep't Stores Co. (Dist Col App) 462 A2d 1102;

False imprisonment has been defined as confinement without legal justification by a wrongdoer of the person wronged.  Nooner v Pillsbury Co. (CA8 Mo) 840 F2d 560; Day v Wells Fargo Guard Service Co. (Mo) 711 SW2d 503.

To constitute false imprisonment, restraint must be unreasonable and unwarranted under the circumstances.  Kanner v First Nat'l Bank (Fla App D3) 287 So 2d 715.

The restraint must be "false," that is, without right or authority to do so.  Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284.

Footnote 6. Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

Footnote 7. Phillips v District of Columbia (Dist Col App) 458 A2d 722.

False arrest, a name sometimes given to the tort more generally known as false imprisonment, 8  has also been defined as the unlawful restraint by one person of the physical liberty of another, by acting to cause a false arrest, that is, an arrest made without legal authority, 9   or without sufficient legal authority, 10  resulting in damages. 11  However, the tort of false arrest does not require a formal arrest, but rather a manifest intent to take someone into custody and subject that person to the defendant's control. 12   For false arrest, there is no requirement that the arrest be formal, that the detention be for the purpose of arraignment or that the detention continue until presentation to a judicial officer in order for the arrest to be actionable. 13

Footnote 8. Headrick v Wal-Mart Stores, Inc., 293 Ark 433, 738 SW2d 418.

Footnote 9. Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Footnote 10. Limited Stores v Wilson-Robinson, 317 Ark 80, 876 SW2d 248.

Footnote 11. Ting v United States (CA9 Cal) 927 F2d 1504, 91 CDOS 1794, 91 Daily Journal DAR 2996; Trenouth v United States (CA9 Cal) 764 F2d 1305, 119 BNA LRRM 3615.

Footnote 12. Cooper v Dyke (CA4 Md) 814 F2d 941.

Footnote 13. Day v Wells Fargo Guard Service Co. (Mo) 711 SW2d 503.

Some courts have described false arrest and false imprisonment as causes of action which are distinguishable only in terminology. 14  The two have been called virtually indistinguishable, 15  and identical. 16   However, the difference between them lies in the manner in which they arise. 17    In order to commit false imprisonment, it is not necessary either to intend to make an arrest 18  or actually to make an arrest. 19   By contrast, a person who is falsely arrested is at the same time falsely imprisoned, 20   and an unlawful arrest may give rise to a cause of action for either false arrest or false imprisonment. 21   Thus, it has been stated that false arrest and false imprisonment are not separate torts, and that a false arrest is one way to commit false imprisonment; since an arrest involves a restraint, it always involves imprisonment. 22   Furthermore, unlawful detention after a lawful arrest may give rise to a false imprisonment action. 23   It has been held, however, that a person improperly detained pursuant to a lawful arrest, though having the right to bring an action for false imprisonment, cannot bring an action for false arrest. 24

Absent an "arrest", there can be no false arrest. 25   Thus an individual subject to a warrant who turns himself or herself in voluntarily to the police or issuing authority is neither subject to false arrest nor able to bring a claim alleging false arrest. 26   In order to prevail on a claim for false arrest, the arrestee must show a lack of probable cause for the arrest, 27  or, put otherwise, the plaintiff must prove that the arrest was made without any legal process or warrant, or was made pursuant to a warrant which was null and void on its face. 28    

False arrest and false imprisonment are derivative of the ancient action of trespass, generally having to do with unlawful acts done to the person or property of another, by violence or force, direct or imputed, 29  and false arrest and wrongful detention 30  constitute a continuing tort, encompassing both the unlawful arrest and detention of the arrested person. 31   Both torts encompass the right to be free from being arrested without probable cause. 32 

Footnote 14. Johnson v Weiner, 155 Fla 169, 19 So 2d 699; Fox v McCurnin, 205 Iowa 752, 218 NW 499; Holland v Lutz, 194 Kan 712, 401 P2d 1015.

Although the distinctions are not always clearly set out by the authorities, false arrest, or unlawful arrest, is a species of the common-law action for false imprisonment.  Bonkowski v Arlan's Dep't Store, 12 Mich App 88, 162 NW2d 347, revd on other grounds 383 Mich 90, 174 NW2d 765.

Forms: Instructions to jury defining false arrest.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  4.

Footnote 15. Kraft v Bettendorf (Iowa) 359 NW2d 466.

Footnote 16. Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

Footnote 17. Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; Houghtaling v State,  11 Misc 2d 1049, 175 NYS2d 659; Alter v Paul (Franklin Co) 101 Ohio App 139, 1 Ohio Ops 2d 80, 72 Ohio L Abs 332, 135 NE2d 73; Alsup v Skaggs Drug Center, 203 Okla 525, 223 P2d 530; Bender v Seattle, 99 Wash 2d 582, 664 P2d 492, 9 Media L R 2101.

Footnote 18. Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507.

Footnote 19. S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508; Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507.

Refusal of a taxicab driver to allow a passenger to leave the cab, followed by transporting the passenger back to the place of origin of the ride, may have been sufficient to constitute false imprisonment, but it was not sufficient to constitute an arrest. McGlone v Landreth, 200 Okla 425, 195 P2d 268 (ovrld in part on other grounds by Parker v Washington (Okla) 421 P2d 861).

Footnote 20. McGlone v Landreth, 200 Okla 425, 195 P2d 268 (ovrld in part on other grounds by Parker v Washington (Okla) 421 P2d 861); Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507.

The tort of false arrest is essentially the same as the tort of false imprisonment, and every false arrest is itself a false imprisonment, with the imprisonment commencing with the arrest. Budgar v State,  98 Misc 2d 588, 414 NYS2d 463.

Footnote 21. Stallings v Foster, 119 Cal App 2d 614, 259 P2d 1006.

Footnote 22. Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613; George v Long Beach (CA9 Cal) 973 F2d 706, 92 CDOS 7892, 92 Daily Journal DAR 12847, cert den (US)  122 L Ed 2d 664,  113 S Ct 1269; Children v Burton (Iowa) 331 NW2d 673, cert den  464 US 848,  78 L Ed 2d 143,  104 S Ct 155; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508.

Footnote 23. Ogulin v Jeffries, 121 Cal App 2d 211, 263 P2d 75.

Footnote 24. Ogulin v Jeffries, 121 Cal App 2d 211, 263 P2d 75.

Footnote 25. Bonkowski v Arlan's Dep't Store, 383 Mich 90, 174 NW2d 765 (holding that there had been no "arrest" where a uniformed guard in a department store called back a customer, who was about 30 feet beyond the door, to a point near the door where he made certain accusatory statements and, with plaintiff's permission, examined the contents of her purse to ascertain whether certain jewelry had been stolen, the entire incident lasting some 4 to 5 minutes).

Footnote 26. Grandjean v Grandjean, 315 Ark 620, 869 SW2d 709.

Footnote 27. Simmons v Pryor (CA7 Ill) 26 F3d 650.

Footnote 28. Duboue v City of New Orleans (CA5 La) 909 F2d 129, cert den  499 US 922,  113 L Ed 2d 247,  111 S Ct 1314.

Footnote 29. Lindsey v Camelot Music (Ala) 628 So 2d 314, reh den, without op (Ala) 1993 Ala LEXIS 1390.

Footnote 30. Cowdrey v Eastborough (CA10 Kan) 730 F2d 1376 (stating that false arrest and wrongful detention are both actions for false imprisonment).

Footnote 31. Santiago v Fenton (CA1 Mass) 891 F2d 373.

Footnote 32. Bradway v Gonzales (CA2 NY) 26 F3d 313, 29 FR Serv 3d 997 (because warrantless seizure of property under the plain view doctrine was lawful and conferred a qualified immunity as to the seizure, the seizure could not form the basis for a false arrest claim based on 42 USC  1983, regardless of preexisting law).

The elements of the tort of abuse of process are:  (1) regularly issued process compelling the performance or forbearance of some prescribed act; (2) the person activating the process must have been motivated to do harm without economic or social excuse or justification; and (3) such person must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of process. 33   The absence of probable cause is not an element of abuse of process. 34   Abuse of process is a distinct claim from false arrest and malicious prosecution to the extent that abuse of process may lie as a cause of action regardless of whether there was probable cause or whether the prior proceedings terminated in favor of the charged party. 35   The two torts may also be distinguished in that the intention or purpose of the defendant in detaining a person is immaterial to the maintenance of an action for false imprisonment. 36  

Footnote 33. Bernard v United States (CA2 NY) 25 F3d 98; Drill Parts & Serv. Co. v Joy Mfg. Co. (Ala) 619 So 2d 1280, reh den, without op (Ala) 1993 Ala LEXIS 646; Jenkins v Daniels (Alaska) 751 P2d 19.

Elements of abuse of process include an illegal, improper or perverted use of the process; an ulterior motive or purpose on the part of the defendant in such exercise of the process; damage to the plaintiff resulting from such conduct by the defendant. Vahlsing v Commercial Union Ins. Co. (CA1 Mass) 928 F2d 486, 21 BCD 796, CCH Bankr L Rptr ¶ 73872.

Footnote 34. Simone v Golden Nugget Hotel & Casino (CA3 Pa) 844 F2d 1031, 25 Fed Rules Evid Serv 399.

Footnote 35. Santiago v Fenton (CA1 Mass) 891 F2d 373.

Footnote 36. 1 Am Jur 2d,  Abuse of Process § 4.

A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and that ultimately ends in failure. 37    The essential difference between false imprisonment and malicious prosecution is the validity of the legal authority for the restraint imposed. 38    In malicious prosecution the detention is malicious, but under due form of law, whereas in false imprisonment the converse is true.  The detention is unlawful, but malice and lack of probable cause are not essential, as a general rule, to the cause of action. 39  Thus, where the process on which an arrest is made is regular and legal in form and issued by a court of competent authority, but issued maliciously and without probable cause, the remedy is an action for malicious prosecution. 40  However, a suit for false arrest or imprisonment is the proper action where the aggrieved party is arrested without legal authority, 41  as where he or she is arrested pursuant to process that is void. 42    

Contrary to the general rule in the case of an action for malicious prosecution, 43   in an action for false imprisonment it is not necessary to show that the dispute on which the detention was based was judicially resolved in the plaintiff's favor. 44  

In some instances, the court may find that both malicious prosecution and false imprisonment are involved in the same dispute. 45   If so, the fact that they follow each other in successive events does not in any way merge the wrongs inflicted, or deprive the plaintiff of his or her right to recover damages for each offense. 46  

Footnote 37. 52 Am Jur 2d,  Malicious Prosecution § 1.

Footnote 38. See Burt v Ferrese (CA3 Del) 871 F2d 14 (While the defendants might have committed the tort of malicious prosecution, defendants are not subject to liability for false arrest and detention, where the arrest is pursuant to a warrant.  The distinction between false arrest and malicious prosecution depends on whether or not the arrest is made pursuant to a warrant.  One who initiates the proceedings that result in a warrant may be liable for malicious prosecution.)

Practice References Malicious Prosecution.   16 Am Jur Trials 205 § 2.

Malicious Prosecution.   7 Am Jur POF2d 181 § 2.

Footnote 39. Stallings v Foster, 119 Cal App 2d 614, 259 P2d 1006; Kredit v Ryan, 68 SD 274, 1 NW2d 813.

Footnote 40. Bernard v United States (CA2 NY) 25 F3d 98; Adams v Metiva (CA6 Mich) 31 F3d 375, 1994 FED App 277P; Reed v City & County of Honolulu, 76 Hawaii 219, 873 P2d 98; Page v Wiggins (Miss) 595 So 2d 1291, reh den (Miss) 1992 Miss LEXIS 208; Coffman v Shell Petroleum Corp., 228 Mo App 727, 71 SW2d 97; Kredit v Ryan, 68 SD 274, 1 NW2d 813.

Malicious filing of false complaint causing issuance of warrant on which plaintiff was arrested did not give rise to cause of action for false imprisonment; action must be for malicious prosecution.  Genito v Rabinowitz, 93 NJ Super 225, 225 A2d 590.

Acts of court authorizing arrest are not those of complainant in the case and there can be no charge against him for false imprisonment, whatever his liability might be for malicious prosecution.  Kaye v Shane, 204 Misc 82, 118 NYS2d 592.

Footnote 41. Coffman v Shell Petroleum Corp., 228 Mo App 727, 71 SW2d 97; Kredit v Ryan, 68 SD 274, 1 NW2d 813.

If an arrest is made pursuant to a warrant issued by a lawfully authorized person, neither the arrest nor the subsequent imprisonment is "false" and, as a consequence, the complaining party's action must be one for malicious prosecution.  Goodwin v Barry Miller Chevrolet, Inc. (Ala) 543 So 2d 1171; Ennis v Beason (Ala) 537 So 2d 17.

See Bulkley v Klein (4th Dist) 206 Cal App 2d 742, 23 Cal Rptr 855, discussing distinction between false imprisonment and malicious prosecution in action charging private person with both and holding that cause of action for false imprisonment was not established where arrest by police officer was not shown to be illegal.

Footnote 42. Duboue v City of New Orleans (CA5 La) 909 F2d 129, cert den  499 US 922,  113 L Ed 2d 247,  111 S Ct 1314.

Footnote 43. See 52 Am Jur 2d,  Malicious Prosecution § 29.

Footnote 44.  § 16.

Footnote 45. Vernon v Plumas Lumber Co., 71 Cal App 112, 234 P 869; Grimes v Greenblatt, 47 Colo 495, 107 P 1111.

Footnote 46. Vernon v Plumas Lumber Co., 71 Cal App 112, 234 P 869.

Where plaintiff suspected of shoplifting was first detained in store by store manager and later, at instigation of store manager, was arrested by police officer, there were 2 transactions, and plaintiff was not required to elect as between his counts for false arrest and malicious prosecution, although second arrest would, under case, be merged or blended into action for malicious prosecution.  Schwane v Kroger Co. (Mo App) 480 SW2d 113.

The causes of action for malicious prosecution and false imprisonment are sufficiently distinct so that where a plaintiff chooses to sue for both torts for acts occurring in sequence the fact that one of the causes of action is dismissed or is decided against him by the jury does not foreclose him from seeking a remedy on the other cause of action.  Ira v Columbia Food Co., 226 Or 566, 360 P2d 622,  86 ALR2d 1378.

Provision of incorrect information to a court resulting in an arrest based on a defective subpoena and subsequent bench warrant sets out a claim for false imprisonment resulting in the plaintiff's unlawful restraint, rather than a defamation which invades the plaintiff's interest in reputation and good name, 47  and mere accusation of commission of a crime, however slanderous it might be, does not of itself support a claim for false arrest. 48

Footnote 47. Simon v United States (CA5 La) 711 F2d 740.

Footnote 48. Vessels v District of Columbia (Dist Col App) 531 A2d 1016.

Negligent causation of arrest claims are not intentional torts. 49   Thus, a merchant's failure to exercise reasonable care to avoid subjecting its customers to arrest and criminal charges on the basis of negligent record-keeping will give rise to a negligence claim rather than a false arrest claim. 50   Standard negligence principles, including duty of care, negligent discharge of that duty, proximate causation of injury and compensability of damages to the injured party continue to apply, where applicable, in these contexts, notwithstanding the issues of confinement raised. 51

Footnote 49. King v Otasco, Inc. (CA5 Miss) 861 F2d 438, 12 FR Serv 3d 824.

An allegation amounting to a claim for negligent failure to rescue members of a film crew from the vicinity of a volcano, which plaintiffs attempted to characterize as a false imprisonment claim, could not survive, where plaintiffs failed to show that false imprisonment law had any application to the facts of the case. Johnson v Barker (CA9 Wash) 799 F2d 1396.

Footnote 50. Johnson v Supersave Mkts., 211 Mont 465, 686 P2d 209.

Footnote 51. Vahlsing v Commercial Union Ins. Co. (CA1 Mass) 928 F2d 486, 21 BCD 796, CCH Bankr L Rptr ¶ 73872.

B.  Elements [8-34]

Research References
ALR Digest:  False Imprisonment §§ 2, 3
ALR Index:  False Imprisonment and Arrest
10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  5-7,  23,  28,  30,  91,  111,  112,  114
 26 Am Jur POF2d 617, False Imprisonment–Failure to Take Arrestee Before Magistrate Without Unreasonable or Unnecessary Delay;  40 Am Jur POF2d 81, False Imprisonment in Connection With Confinement in Nursing Home or Hospital

1.  In General [8-10]

The gist of an action for false arrest or false imprisonment is the unlawful violation of a person's right of personal liberty or the restraint of that person without legal authority:  deprivation of liberty of movement or freedom to remain in the place of one's lawful choice 52   The essential elements of false imprisonment are (1) the detention or restraint of one against his or her will, and (2) the unlawfulness of such detention or restraint. 53   It has also been said that the elements of cause of action for false imprisonment include intent to confine, consciousness of confinement, lack of privilege, and nonconsent. 54   Further, some courts have required that the confinement occur within boundaries fixed by the defendant, 55  or within a limited area. 56

If the confinement leads to a subsequent prosecution, it is generally held that termination of the prosecution is not essential to maintenance of the action. 57   Also, it is not necessary that the wrongful act which results in detention or restraint be under color of any legal or judicial proceeding, 58  nor, as a general rule, do lack of malice, the presence of good faith, 59   or the presence of probable cause for the imprisonment 60   affect the existence of the wrong where the detention is unlawful.

Though assault is often an ingredient of false imprisonment, 61  it is not essential. 62   However, some courts have held or stated that the action of false imprisonment always includes the element of assault in a technical sense. 63

An action for false imprisonment does not require proof of injury to the individual's person, character, or reputation. 64  

Footnote 52. Bender v Seattle, 99 Wash 2d 582, 664 P2d 492, 9 Media L R 2101.

Whenever a person obstructs or deprives another of his or her freedom to choose his or her location, for however brief a period, that person will be liable for that interference.  Moody v McElroy (RI) 513 A2d 5.

Footnote 53. Pete v Metcalfe (CA5 Tex) 8 F3d 214; Adams v Metiva (CA6 Mich) 31 F3d 375, 1994 FED App 277P; Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613; Burlington Transp. Co. v Josephson (CA8 SD) 153 F2d 372; Hill v Georgia Power Co. (CA11 Ga) 786 F2d 1071, 122 BNA LRRM 2779, 104 CCH LC ¶ 11928; R.J.D. v Vaughan Clinic, P.C. (Ala) 572 So 2d 1225; Hazen v Anchorage (Alaska) 718 P2d 456; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Ware v Dunn, 80 Cal App 2d 936, 183 P2d 128; Shaw v May Dep't Stores Co. (Dist Col App) 268 A2d 607; Reed v City & County of Honolulu, 76 Hawaii 219, 873 P2d 98; Renk v City of Pittsburgh (Pa) 641 A2d 289, digest op at (Pa) 17 PLW 225; Kraft v Bettendorf (Iowa) 359 NW2d 466; Children v Burton (Iowa) 331 NW2d 673, cert den  464 US 848,  78 L Ed 2d 143,  104 S Ct 155; Jefferson Dry Goods Co. v Stoess, 304 Ky 73, 199 SW2d 994; Page v Wiggins (Miss) 595 So 2d 1291, reh den (Miss) 1992 Miss LEXIS 208; Richardson v Empire Trust Co., 230 Mo App 580, 94 SW2d 966; Hardy v La Belle's Distrib. Co., 203 Mont 263, 661 P2d 35; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; Commonwealth v Brewer, 109 Pa Super 429, 167 A 386; Coffee v Peterbilt of Nashville, Inc. (Tenn) 795 SW2d 656; J. C. Penney Co. v Duran (Tex Civ App San Antonio) 479 SW2d 374, writ ref n r e (Oct 4, 1972).

Footnote 54. Wiltse v State (4th Dept)  51 App Div 2d 865, 380 NYS2d 175.

As to intent to confine, see  § 12.

As to awareness of confinement, see  § 11.

As to the defense of consent, see  § 60.

Footnote 55. Vahlsing v Commercial Union Ins. Co. (CA1 Mass) 928 F2d 486, 21 BCD 796, CCH Bankr L Rptr ¶ 73872.

Footnote 56. Bennett v Ohio Dep't of Rehabilitation & Correction, 60 Ohio St 3d 107, 573 NE2d 633.

Footnote 57. Collins v Owens, 77 Cal App 2d 713, 176 P2d 372; Smith v Embry, 103 Ga App 375, 119 SE2d 45; Hunt v Davis, 248 NC 69, 102 SE2d 405; S. H. Kress & Co. v Rust (Tex Civ App) 97 SW2d 997, affd 132 Tex 89, 120 SW2d 425.

Footnote 58. Griffin v Clark, 55 Idaho 364, 42 P2d 297; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508.

Footnote 59.  § 9.

Footnote 60.  § 10.

Footnote 61. Ware v Dunn, 80 Cal App 2d 936, 183 P2d 128; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161.

Footnote 62. Alterauge v Los Angeles Turf Club, 97 Cal App 2d 735, 218 P2d 802; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161.

Footnote 63. Perry v S. H. Kress & Co., 187 Kan 537, 358 P2d 665; Fowler v Valencourt, 334 NC 345, dissenting op at (NC) 435 SE2d 530; Burkland v Bliss, 62 SD 91, 252 NW 25.

Footnote 64. Charles v Norfolk & W. R. Co. (CA7 Ill) 188 F2d 691, cert den  342 US 831,  96 L Ed 628,  72 S Ct 55; Griffin v Clark, 55 Idaho 364, 42 P2d 297; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508.

Actual malice or bad motive is not an essential element needed to sustain an action for false imprisonment. 65  and the plaintiff need not allege malice on behalf of the defendant in order to recover. 66    Except to increase or mitigate the damages, the existence or nonexistence of malice in fact is ordinarily immaterial; 67   the good or evil intention or purpose of the defendant neither creates nor excuses the tort. 68  

Footnote 65. Charles v Norfolk & W. R. Co. (CA7 Ill) 188 F2d 691, cert den  342 US 831,  96 L Ed 628,  72 S Ct 55; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Marshall v District of Columbia (Dist Col App) 391 A2d 1374; Johnson v Weiner, 155 Fla 169, 19 So 2d 699; Holland v Lutz, 194 Kan 712, 401 P2d 1015; Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495; Hall v Rice, 117 Neb 813, 223 NW 4,  78 ALR 1421 (ovrld in part on other grounds by Whitcomb v Nebraska State Education Asso., 184 Neb 31, 165 NW2d 99); Altana v McCabe, 132 NJL 12, 38 A2d 192; McLoughlin v New York Edison Co., 252 NY 202, 169 NE 277; Moody v McElroy (RI) 513 A2d 5; Kredit v Ryan, 68 SD 274, 1 NW2d 813.

Malice, ill will, or the slightest wrongful intention on the part of the defendant was not necessary to support a judgment against a peace officer for wrongful arrest for past misdemeanor without warrant.  Crosswhite v Barnes, 139 Va 471, 124 SE 242,  40 ALR 54.

Footnote 66.  § 123.

Footnote 67. Reilly v United States Fidelity & Guaranty Co. (CA9 Cal) 15 F2d 314; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Crawford v Huber, 215 Mich 564, 184 NW 594,  39 ALR 1392; Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1; Kroeger v Passmore, 36 Mont 504, 93 P 805; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452; Kredit v Ryan, 68 SD 274, 1 NW2d 813.

If the imprisonment is unlawful, the injury suffered is as great whether the motive be good or evil.  Nesmith v Alford (CA5 Ala) 318 F2d 110, reh den (CA5 Ala) 319 F2d 859 and cert den  375 US 975,  11 L Ed 2d 420,  84 S Ct 489.

The subjective state of mind of the defendant is irrelevant once it is determined that the defendant violated clearly established law.  McIntosh v Arkansas Republican Party-Frank White Election Comm. (CA8 Ark) 816 F2d 409, vacated, remanded, on reh, en banc (CA8 Ark) 825 F2d 184, on remand (ED Ark) 676 F Supp 912, affd (CA8 Ark) 856 F2d 1185.

As to relevancy, materiality, and competency of evidence as to malice or good faith in mitigation of damages, generally, see  § 130.

As to the relevancy of malice with respect to punitive damages, see  § 150.

Footnote 68. Stubbs v Abercrombie, 42 Cal App 170, 183 P 458; Wiegand v Meade, 108 NJL 471, 158 A 825.

An imprisonment which is lawful does not become unlawful because it was prompted by malicious motives.  Holland v Lutz, 194 Kan 712, 401 P2d 1015.

Forms: Instruction to jury–good faith no justification.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  7.

It is frequently held or recognized that the want of probable cause is not an essential element of the action for false imprisonment, 69  and need not be alleged by a plaintiff in the petition or complaint. 70  

On the other hand, some courts have expressly required the plaintiff in a false arrest action to show a lack of probable cause for the detention, 71  or indicated that the plaintiff has the burden of proving the lack of probable cause by affirmative evidence. 72   It has also been held that allegations of lack of probable cause are requisite parts of the plaintiff's prima facie case. 73

Footnote 69. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664; Daniels v Milstead, 221 Ala 353, 128 So 447; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Miller v Glass, 44 Cal 2d 359, 282 P2d 501; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Mahan v Adam, 144 Md 355, 124 A 901; Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495; Rogers v Barbera, 170 Ohio St 241, 10 Ohio Ops 2d 248, 164 NE2d 162; Swafford v Vermillion (Okla) 261 P2d 187; McNeff v Heider, 216 Or 583, 337 P2d 819, reh den 216 Or 594, 340 P2d 180; Crosswhite v Barnes, 139 Va 471, 124 SE 242,  40 ALR 54.

As to the relevance of probable cause where the issue is justification for an arrest or detention without a warrant, see  §§ 79,  84.

As to the relevance of probable cause where it is asserted that the defendant was acting in protection of his or her person or property.

Footnote 70.  § 123.

Footnote 71. Simmons v Pryor (CA7 Ill) 26 F3d 650.

Footnote 72. Taylor v Dillards Dep't Stores, Inc. (CA10 Okla) 971 F2d 601 (holding that an instruction that the defendant had the burden of proof on that point constitutes reversible error).

Footnote 73. Garton v Reno, 102 Nev 313, 720 P2d 1227.

The essential elements of an action for false arrest or false imprisonment are that the plaintiff was restrained or arrested by the defendant and that the defendant acted without having reasonable grounds to believe that an offense was committed by the plaintiff.  Meerbrey v Marshall Field & Co., 139 Ill 2d 455, 151 Ill Dec 560, 564 NE2d 1222.

2.  Detention or Restraint [11-20]

In order to constitute a false imprisonment, it is essential that there be some restraint of the person. 74   However, it is not necessary that there be confinement in a jail or prison. 75  All that is necessary is that the individual be restrained against his or her will and without sufficient authority either directly or indirectly, in any manner or by any means. 76  The wrong may be committed by acts or by words, or both. 77   The position has also been taken, however, that to constitute false imprisonment, the restraint or detention imposed must be within limits set by the restraining party, 78  and that it must be total. 79  

There is some authority that merely questioning a person and asking such person to return to a store does not constitute an "arrest" on which an action for false imprisonment can be based, 80  particularly where such person was not accused of any crime and nothing was done to indicate that such person was being taken into custody or being held for delivery to a peace officer to answer a criminal charge. 81

The existence of false imprisonment is a mixed question of law and fact.  It is a question of law for the court to decide what facts constitute a false imprisonment; 82  and it is a question of fact for the jury to determine whether such facts do exist as are necessary to make out an imprisonment under the law as settled by the court. 83

Footnote 74. Vandiveer v Charters, 110 Cal App 347, 294 P 440; Rogers v T.J.X. Cos., 329 NC 226, 404 SE2d 664 (holding that some restraint of the person is essential, whether by threats, express or implied, or by conduct); Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; Safeway Stores, Inc. v Amburn (Tex Civ App Fort Worth) 388 SW2d 443.

Footnote 75.  § 15.

Footnote 76. Griffin v Clark, 55 Idaho 364, 42 P2d 297; Mahan v Adam, 144 Md 355, 124 A 901.

Footnote 77. Griffin v Clark, 55 Idaho 364, 42 P2d 297; Durgin v Cohen, 168 Minn 77, 209 NW 532; Day v Wells Fargo Guard Service Co. (Mo) 711 SW2d 503; West v King's Dep't Store, Inc., 321 NC 698, 365 SE2d 621.

Restraint may be accomplished by means of physical force, threat of force or arrest, confinement by physical barriers or by means of any other form of unreasonable duress.  Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

If not lawful or consented to, any restraint is unlawful. Fowler v Valencourt, 334 NC 345, dissenting op at (NC) 435 SE2d 530.

As to restraint or detention by force or threats, see  §§ 18,  19.

Footnote 78. Stallings v Foster, 119 Cal App 2d 614, 259 P2d 1006.

Footnote 79.  § 16.

Footnote 80. Carruth v Barker (Ala) 454 So 2d 539 (holding that an investigatory stop is not an arrest); Conn v Paul Harris Stores, Inc. (Ind App) 439 NE2d 195; Bruce v Meijers Supermarkets, Inc., 34 Mich App 352, 191 NW2d 132.

Footnote 81. Lester v Albers Super Markets, Inc., 94 Ohio App 313, 51 Ohio Ops 457, 65 Ohio L Abs 315, 114 NE2d 529.

Footnote 82. Brinkman v Drolesbaugh, 97 Ohio St 171, 119 NE 451.

Footnote 83. See Taylor v Dillards Dep't Stores, Inc. (CA10 Okla) 971 F2d 601 (holding that a shopper detained on suspicion of shoplifting had the burden of proving lack of probable cause for detention).

A person is not liable for false imprisonment unless his or her act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it. 84   The necessary intent for purposes of a false imprisonment claim is merely the intent to confine. 85   So long as there is a manifest intent to take a person into custody and to subject such person to the defendant's control, the intent to confine element of a false arrest claim is sufficiently shown, even in the absence of a formal arrest. 86   Mere enlistment of the aid of law enforcement, however, does not of itself create a conspiracy to commit false arrest, 87  nor does the mere act of booking an arrested person render the booking officer liable for the arrestee's confinement. 88

Deliberate indifference to a person's right to freedom from prolonged incarceration supplies the necessary intent for a false imprisonment action. 89   In order to demonstrate the necessary element of intent, the defendants must only intend to accomplish the act that causes the confinement, they need not intend the confinement to be unlawful; the defendants' actual motives are immaterial, because the intent relates to the "confinement" element, rather than to the "unlawful" element of the detention. 90   If an act is done with the intention of causing the confinement of the person actually confined, or of another, and such act is a substantial factor in bringing about a confinement, it is immaterial whether the act directly or indirectly causes the confinement. 91   In this connection, there is some authority to the effect that the doctrine of transferred intent is applicable to the tort of false imprisonment.  Under this doctrine the intention to confine any person is sufficient intent to render one liable to the person actually confined, and it is immaterial that defendant did not know the identity of the person he or she intended to confine, nor does it matter that the defendant intended to affect some person other than the one actually confined. 92

It is ordinarily for the jury to determine from the evidence, as a question of fact, the intention of the defendant in an action for false imprisonment. 93  

Where, under state law, the defendant's intent to confine the plaintiff is an essential element, a false imprisonment claim against an airline arising out of a "skyjacking" by terrorists does not state a cause of action for false imprisonment, since it is the terrorists who have the intent to confine, rather than the airline. 94

Footnote 84. Johnson v Weiner, 155 Fla 169, 19 So 2d 699; Lively v Blackfoot, 91 Idaho 80, 416 P2d 27; J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359; State use of Powell v Moore, 252 Miss 471, 174 So 2d 352; Roberts v Coleman, 228 Or 286, 365 P2d 79; Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507.

Footnote 85. Vahlsing v Commercial Union Ins. Co. (CA1 Mass) 928 F2d 486, 21 BCD 796, CCH Bankr L Rptr ¶ 73872.

A deputy sheriff's actions in landing his helicopter, issuing citations to persons in a restricted area of volcanic activity, and departing, was not tantamount to an arrest so as to support a claim for false arrest even if, as alleged by the plaintiffs, the officer was angry and vulgar while he was in the process of issuing the citations.  Johnson v Barker (CA9 Wash) 799 F2d 1396.

Footnote 86. Cooper v Dyke (CA4 Md) 814 F2d 941.

Footnote 87. Kay v New Hampshire Democratic Party (CA1 NH) 821 F2d 31.

Footnote 88. Kinan v Brockton (CA1 Mass) 876 F2d 1029, 28 Fed Rules Evid Serv 327.

Footnote 89. Oviatt v Pearce (CA9 Or) 954 F2d 1470, 92 CDOS 490, 92 Daily Journal DAR 723.

Footnote 90. Oviatt v Pearce (CA9 Or) 954 F2d 1470, 92 CDOS 490, 92 Daily Journal DAR 723.

Footnote 91. Griffin v Clark, 55 Idaho 364, 42 P2d 297.

Footnote 92. Du Lac v Perma Trans Products, Inc. (2nd Dist) 103 Cal App 3d 937, 163 Cal Rptr 335.

Footnote 93. Blaz v Molin Concrete Products Co., 309 Minn 382, 244 NW2d 277; Johnson v Norfolk & W. Ry., 82 W Va 692, 97 SE 189,  6 ALR 1469.

Footnote 94. Abourezk v New York Airlines, Inc., 283 US App DC 34, 895 F2d 1456; Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613.

A restraint or confinement which is not against the will of the plaintiff is not a false imprisonment; the restraint must be involuntary. 95   There is no imprisonment if the plaintiff agrees of his or her own free choice to act in conformity with the request of the defendant, 96  as where he or she voluntarily complies with the defendant's request to accompany the defendant. 97

Footnote 95. Griffin v Clark, 55 Idaho 364, 42 P2d 297; Grayson Variety Store, Inc. v Shaffer (Ky) 402 SW2d 424; State use of Powell v Moore, 252 Miss 471, 174 So 2d 352; James v MacDougall & Southwick Co., 134 Wash 314, 235 P 812.

An employee, accused of theft, who was not restrained against her will, was not told she could not leave and admitted that she wished to remain in the office where she had been led for a discussion, so as to clarify the situation, was not restrained against her will for purposes of her false imprisonment claim; although she was not initially told the purpose of the meeting, the employee indicated she would have remained there voluntarily had she been told.  Hardy v La Belle's Distrib. Co., 203 Mont 263, 661 P2d 35.

As to consent as a defense to an action for false imprisonment, see  § 60.

Footnote 96. James v MacDougall & Southwick Co., 134 Wash 314, 235 P 812.

See also Pounders v Trinity Court Nursing Home, Inc., 265 Ark 1, 576 SW2d 934,  4 ALR4th 442, holding that defendant's commitment of plaintiff, her aunt, to a nursing home did not amount to false imprisonment, because no force or threats were used and there was actually consent.

Forms: Instructions to jury as to privilege arising from consent to acts constituting imprisonment.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  5.

Footnote 97. Grayson Variety Store, Inc. v Shaffer (Ky) 402 SW2d 424; Roberts v Coleman, 228 Or 286, 365 P2d 79; James v MacDougall & Southwick Co., 134 Wash 314, 235 P 812.

A high school student suspected of transporting a bomb on an airplane was not unlawfully restrained or confined against her will by the airline crew's request that she remain strapped in a seat in the plane's cockpit until she could be taken off the plane after it landed; the passenger cooperated with the requests voluntarily and never said that she did not want to go or that she wanted to leave.  Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613.

It is generally held that the plaintiff in a false imprisonment action must be aware or conscious of confinement; 98  there is no liability, it is stated, for intentionally confining another unless that person knows of the confinement. 99   This rule gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. 1  A person may be shown to have been conscious of confinement even though in a state of intoxication at the time of confinement. 2  

Where the evidence is conflicting, the issue of plaintiff's awareness of confinement is properly submitted to the jury. 3

Footnote 98. Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13.

Footnote 99. Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428.

The "awareness" requirement was met for purposes of a false imprisonment action brought against county officials where a clerical error resulted in the detainee's incarceration for 114 days prior to arraignment.  Although the detainee, who was diagnosed as suffering from schizophrenia, was incapable of communicating his plight, he was nonetheless aware of his confinement.  Oviatt v Pearce (CA9 Or) 954 F2d 1470, 92 CDOS 490, 92 Daily Journal DAR 723.

Footnote 1. Parvi v Kingston,  41 NY2d 553, 394 NYS2d 161, 362 NE2d 960.

Footnote 2. See Parvi v Kingston,  41 NY2d 553, 394 NYS2d 161, 362 NE2d 960 (evidence in an action against a city for false imprisonment was sufficient to show consciousness by plaintiff of his confinement by police, even though plaintiff later had trouble, because of his state of intoxication at the time of confinement, in recollecting the occurrence; distinction was to be made between later recollection of consciousness and existence of such consciousness at the time when imprisonment itself took place).

Footnote 3. Blaz v Molin Concrete Products Co., 309 Minn 382, 244 NW2d 277.

The term "false imprisonment" is misleading in that it does not necessarily refer to confinement within a jail or prison. 4   Any confinement of a person is said to be an imprisonment, 5  whether it be in prison 6  or in any place temporarily used for the purpose of confinement. 7  Thus, an action for false imprisonment may be predicated on detention or confinement in a mental institution, 8   hospital, 9   nursing home, 10  or juvenile home. 11   Also, an unlawful restraint and detention, sufficient as a basis for false imprisonment, may occur in such places as a restaurant, 12  a nightclub, 13  a hotel room, 14 a private house, 15  a truck at a job site, 16  an airplane on a runway, 17  a casino, 18  a chemical dependency treatment center under a "voluntary treatment agreement," 19  a place of employment or former employment, 20  a prison, 21  a barred room in a private residence, 22  or an automobile. 23

On occasion, the place of confinement may dictate the substantive result, as where state, federal or international law precludes the action at a particular situs. 24

Footnote 4. Ware v Dunn, 80 Cal App 2d 936, 183 P2d 128; Zayre of Virginia, Inc. v Gowdy, 207 Va 47, 147 SE2d 710.

It is not necessary that a person actually be incarcerated to have a cause of action for false imprisonment.  Cline v Flagler Sales Corp. (Fla App D3) 207 So 2d 709.

Footnote 5. Watkins v Oaklawn Jockey Club (DC Ark) 86 F Supp 1006, affd (CA8 Ark) 183 F2d 440; Fox v McCurnin, 205 Iowa 752, 218 NW 499.

Footnote 6. Gogue v MacDonald, 35 Cal 2d 482, 218 P2d 542,  21 ALR2d 639; Fox v McCurnin, 205 Iowa 752, 218 NW 499.

Footnote 7. Vandiveer v Charters, 110 Cal App 347, 294 P 440.

Footnote 8. Wagenmann v Adams (CA1 Mass) 829 F2d 196; Day v Providence Hosp. (Ala) 622 So 2d 1273, reh den, without op (Ala) 1993 Ala LEXIS 986; Radcliff v County of Harrison (Ind) 627 NE2d 1305.

As to commitment of mentally ill person, generally, see  §§ 33 et seq.

Footnote 9. Gadsden General Hospital v Hamilton, 212 Ala 531, 103 So 553,  40 ALR 294; Cox v Rhodes Ave. Hospital, 198 Ill App (abstract) 82.

A patient confined to the addictive disease unit of a hospital in a detoxification program failed to produce substantial evidence to rebut the hospital's showing of lawfulness of the patient's detention in view of a consent form signed by the patient's husband, authorizing such treatment as was necessary to keep the patient safe.  Lolley v Charter Woods Hosp., Inc. (Ala) 572 So 2d 1223.

The trial court was held to have committed no error in refusing to direct a verdict in favor of the plaintiff, who alleged that he was falsely imprisoned by a hospital staff physician who forcibly restrained him as he was attempting to leave the hospital, in Felton v Coyle (1st Dist) 95 Ill App 2d 202, 238 NE2d 191, where the plaintiff was hospitalized for treatment of a fractured clavicle, which required immobilization and bed rest, and following an apparent altercation with a nurse's aide and a discussion between the plaintiff, his daughter, and the physician, concerning efforts to find a new doctor and hospital for the plaintiff, he started to leave.

However, the mere fact that a patient considers himself restrained of his liberty upon being told that he may not leave the hospital until he has paid his bill does not constitute false imprisonment where he subsequently left the hospital without payment of the bill and without restraint by word or act.  Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161.

No false imprisonment of an 8-year-old hospital patient was established by evidence that her mother was requested by hospital authorities to obtain a dismissal slip from the cashier's office where, after discussing arrangements for the payment of the patient's hospital bill with the institution's credit manager, she was requested to sign a cognovit note to secure payment.  Bailie v Miami Valley Hospital, 8 Ohio Misc 193, 37 Ohio Ops 2d 259, 221 NE2d 217.

A three-day hospitalization of a child was lawful and justified in view of the evidence suggesting to statutorily-mandated authorities that the child might be the victim of physical abuse. Curtis v State Dep't for Children & Their Families (RI) 522 A2d 203.

As to the liability of hospitals or asylums for forcible detention of patients, generally, see 40 Am Jur 2d,  Hospitals and Asylums § 19.

Annotation: False imprisonment in connection with confinement in nursing home or hospital,  4 ALR4th 449.

Forms: Complaint, petition, or declaration alleging unreasonable detention of patient and infant by hospital for amount of bill due for hospitalization during and after childbirth.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  30.

Footnote 10. Big Town Nursing Home, Inc. v Newman (Tex Civ App Waco) 461 SW2d 195.

Where no physical force or threat of force was used to get an elderly woman to enter or remain in a nursing home, she was held not to have been falsely imprisoned even though the management of the nursing home initially refused to release her into the custody of anyone other than the person who had arranged for her admission. Pounders v Trinity Court Nursing Home, Inc., 265 Ark 1, 576 SW2d 934,  4 ALR4th 442.

Annotation: False imprisonment in connection with confinement in nursing home or hospital,  4 ALR4th 449.

Forms: False Imprisonment in Connection With Confinement in Nursing Home or Hospital.   40 Am Jur POF 2d 81.

Footnote 11. McAlmond v Trippel, 93 Cal App 584, 269 P 937.

Footnote 12. Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329.

Footnote 13. Mason v Wrightson, 205 Md 481, 109 A2d 128.

Footnote 14. Cicurel v Mollet (1st Dept)  1 App Div 2d 239, 149 NYS2d 397, affd  1 NY2d 797, 153 NYS2d 60, 135 NE2d 594.

Footnote 15. Holmes v Nester, 81 Ariz 372, 306 P2d 290,  62 ALR2d 1322.

Footnote 16. Halbert v City of Sherman (CA5 Tex) 33 F3d 526.

Footnote 17. Abourezk v New York Airlines, Inc., 283 US App DC 34, 895 F2d 1456.

Footnote 18. Simone v Golden Nugget Hotel & Casino (CA3 Pa) 844 F2d 1031, 25 Fed Rules Evid Serv 399; Hazelwood v Harrah's, 109 Nev 1005, 862 P2d 1189.

Footnote 19. Collins v Straight, Inc. (CA4 Va) 748 F2d 916, 17 Fed Rules Evid Serv 1351.

Footnote 20. Berry v Loiseau, 223 Conn 786, 614 A2d 414; Meerbrey v Marshall Field & Co., 139 Ill 2d 455, 151 Ill Dec 560, 564 NE2d 1222.

Footnote 21. Harwood v Johnson, 326 NC 231, 388 SE2d 439, reh den 326 NC 488, 392 SE2d 90; Bennett v Ohio Dep't of Rehabilitation & Correction, 60 Ohio St 3d 107, 573 NE2d 633.

Footnote 22. Adelman v State (Tex Crim) 828 SW2d 418, motion for rehearing on PDR denied (Apr 29, 1992).

Footnote 23. Cline v Flagler Sales Corp. (Fla App D3) 207 So 2d 709; Lewis v Atlantic Discount Co. (Fla App D1) 99 So 2d 241; National Bond & Inv. Co. v Whithorn, 276 Ky 204, 123 SW2d 263.

Footnote 24. Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613.

Courts have required that in order for restraint to furnish grounds for a false imprisonment action, such restraint must be total. 25   Thus, it is held, there is no false imprisonment if a reasonable way of escape is available, 26   unless the person restrained is unaware of the way of escape. 27   Nonetheless, false imprisonment has also been found where a person has been entirely restrained from doing a certain thing or going in a particular direction. 28   The true test, it has been said, seems to be not the extent of the restraint, where the interference amounts to a restraint, but the lawfulness thereof. 29  

A restraint may be nonetheless an imprisonment although it may lie within the power of the person restrained to obtain release by complying with the requirements of the person imposing the restraint; at least this is true where such requirements are without legal justification. 30

Footnote 25. Pounders v Trinity Court Nursing Home, Inc., 265 Ark 1, 576 SW2d 934,  4 ALR4th 442; Harwood v Johnson, 326 NC 231, 388 SE2d 439, reh den 326 NC 488, 392 SE2d 90.

Footnote 26. Davis & Allcott Co. v Boozer, 215 Ala 116, 110 So 28,  49 ALR 1307.

A customer who was completely surrounded by store staff from the time she was stopped in the parking lot until the police arrived was "completely confined" so as to meet the requisite "detention" element of her false imprisonment action.  Wal-Mart Stores v Yarbrough, 284 Ark 345, 681 SW2d 359.

Footnote 27. Talcott v National Exhibition Co., 144 App Div 337, 128 NYS 1059.

Footnote 28. See Cullen v Dickenson, 33 SD 27, 144 NW 656 (the right of freedom of locomotion may be violated by partial, as well as by total, restraint; to prevent a person from going to one particular place to which the person wishes to go constitutes a total deprivation of liberty with reference to that purpose and is an actual restraint).

Where one was restrained of her liberty by means of the removal of her baggage from the train on which she was traveling, and followed it to regain possession, and was thereby caused to remain after departure of the train, the circumstances constituted false imprisonment.  Griffin v Clark, 55 Idaho 364, 42 P2d 297.

Where parties attempted to repossess a car and, in doing so, attempted physically to keep the conditional purchaser of the car from maintaining possession thereof, even though they did not prevent him from leaving the car, there was a false imprisonment. National Bond & Inv. Co. v Whithorn, 276 Ky 204, 123 SW2d 263.

Footnote 29. People v Grant (5th Dist) 8 Cal App 4th 1105, 10 Cal Rptr 2d 828, 92 CDOS 7061, 92 Daily Journal DAR 11323, review den (Cal) 1992 Cal LEXIS 6231; Griffin v Clark, 55 Idaho 364, 42 P2d 297; Weiler v Herzfeld-Phillipson Co.,  189 Wis 554, 208 NW 599.

Footnote 30. Kroeger v Passmore, 36 Mont 504, 93 P 805 (the wrongful detention of a woman in an office for three quarters of an hour by closing the door and telling her that she cannot leave until she gives up a deed in her possession and by threatening to call the sheriff constitutes a false imprisonment).

Any period of unlawful confinement, however brief, may create liability for false imprisonment. 31  Confinement for an appreciable length of time, however short, even as short as fifteen minutes, may be sufficient to create liability for false imprisonment. 32   Even if no "appreciable" length of time elapses, the necessary element of false imprisonment is proven if enough time elapses for the plaintiff to recognize the illegal restraint. 33   It is generally of no concern, except in determining damages, that the confinement is of a temporary nature. 34

On the other hand, a lengthy confinement does not necessarily mean that a compensable false imprisonment has occurred. 35   An otherwise lawful detention, such as one authorized under a merchant's detention statute, may become unlawful if prolonged for an unreasonable period of time. 36  Similarly, an otherwise reasonable period of detention may become tortious if the time of detention exceeds the statutory time limit therefor, as in the case of delay in arraignment, 37  or excessive detention beyond the lawful term of an incarceration. 38

Footnote 31. Grayson Variety Store, Inc. v Shaffer (Ky) 402 SW2d 424.

An unlawful deprivation of freedom of locomotion for any amount of time, by actual force or a threat of force, is sufficient. Marshall v District of Columbia (Dist Col App) 391 A2d 1374.

Footnote 32. Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

Footnote 33. West v King's Dep't Store, Inc., 321 NC 698, 365 SE2d 621.

Footnote 34. Ware v Dunn, 80 Cal App 2d 936, 183 P2d 128.

The length of the period of restraint will play on the jury's award of damages, but will not defeat the cause of action itself. West v King's Dep't Store, Inc., 321 NC 698, 365 SE2d 621.

Footnote 35. Caban v United States (CA2 NY) 728 F2d 68 (holding that a six-day erroneous immigration detention of a non-English speaking American citizen was unfortunate, but not unreasonable).

Footnote 36. Latek v K Mart Corp., 224 Neb 807, 401 NW2d 503.

Footnote 37. Oviatt v Pearce (CA9 Or) 954 F2d 1470, 92 CDOS 490, 92 Daily Journal DAR 723.

Footnote 38. Bennett v Ohio Dep't of Rehabilitation & Correction, 60 Ohio St 3d 107, 573 NE2d 633.

Any exercise of force, or express or implied threat of force, whereby another person is deprived of his or her liberty or compelled to go where he or she does not wish to go is imprisonment. 39   The individual is restrained effectively by acts or words that one fears to disregard. 40   Thus, though the confinement or restraint necessary to create liability for false imprisonment may be imposed by compulsive physical force, 41  the actual use of force is not essential. 42   Also, there need not be any actual contact with the person, 43   such as manual seizure or touching. 44   The essential thing is the restraint of the person.  This may be caused by threats, as well as by actual force; and the threats may be by conduct or by words, 45  if the conduct or words are such as to induce a reasonable apprehension of the use of force. 46  

A person who relinquishes his or her right to move about freely as the only alternative to relinquishment of another right, such as that of an unsullied reputation, may be restrained or imprisoned for purposes of a false imprisonment claim. 47   However, a fear of being arrested or fired is not sufficient to establish the detaining force necessary to establish false imprisonment. 48  

Footnote 39. Watkins v Oaklawn Jockey Club (DC Ark) 86 F Supp 1006, affd (CA8 Ark) 183 F2d 440; Daniels v Milstead, 221 Ala 353, 128 So 447; Limited Stores v Wilson-Robinson, 317 Ark 80, 876 SW2d 248; Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759; Mahan v Adam, 144 Md 355, 124 A 901; Durgin v Cohen, 168 Minn 77, 209 NW 532; Herbrick v Samardick & Co., 169 Neb 833, 101 NW2d 488; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507; W. T. Grant Co. v Owens, 149 Va 906, 141 SE 860; Harris v Stanioch, 150 Wash 380, 273 P 198.

Footnote 40. Hardy v La Belle's Distrib. Co., 203 Mont 263, 661 P2d 35.

Footnote 41. Hughes v Oreb, 36 Cal 2d 854, 228 P2d 550.

Footnote 42. Nesmith v Alford (CA5 Ala) 318 F2d 110, reh den (CA5 Ala) 319 F2d 859 and cert den  375 US 975,  11 L Ed 2d 420,  84 S Ct 489; Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613 (actual use of force is not necessary; Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613 (actual use of force is not necessar; Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329; Durgin v Cohen, 168 Minn 77, 209 NW 532; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; Harris v Stanioch, 150 Wash 380, 273 P 198.

Employer's escorting employee to employer's office, the display of a gun, escort to employer's car, an accompanied trip to employee's residence to retrieve photographs sought by the employer, during which time the employee did not feel free to leave, constituted sufficient facts to raise a jury question as to the unlawful detention in employee's false imprisonment action. Berry v Loiseau, 223 Conn 786, 614 A2d 414.

Footnote 43. People v Agnew, 16 Cal 2d 655, 107 P2d 601; Sweeney v F. W. Woolworth Co., 247 Mass 277, 142 NE 50,  31 ALR 311; Arlan v Cervini (RI) 478 A2d 976.

Footnote 44. Bruce v Meijers Supermarkets, Inc., 34 Mich App 352, 191 NW2d 132.

Manual touching or seizure is not necessary if there is an intention on the part of one to arrest the other and an intention on the part of the other to submit under the belief and impression that submission is necessary.  Nau v Sellman, 104 Nev 248, 757 P2d 358.

Footnote 45. People v Zilbauer, 44 Cal 2d 43, 279 P2d 534; Lewis v Atlantic Discount Co. (Fla App D1) 99 So 2d 241; Sweeney v F. W. Woolworth Co., 247 Mass 277, 142 NE 50,  31 ALR 311; Durgin v Cohen, 168 Minn 77, 209 NW 532; Jorgensen v Pennsylvania R. Co., 25 NJ 541, 138 A2d 24, 41 BNA LRRM 2470, 34 CCH LC ¶ 71252,  72 ALR2d 1415; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508; Roberts v Coleman, 228 Or 286, 365 P2d 79; Chicago, R. I. & G. R. Co. v Neubert (Tex Civ App) 248 SW 139, writ dism w o j; Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507; S. H. Kress & Co. v Musgrove, 153 Va 348, 149 SE 453; Harris v Stanioch, 150 Wash 380, 273 P 198; Johnson v Norfolk & W. Ry., 82 W Va 692, 97 SE 189,  6 ALR 1469.

Footnote 46.  § 19.

Footnote 47. Foley v Polaroid Corp., 400 Mass 82, 508 NE2d 72, 2 BNA IER Cas 328.

Footnote 48. Malanga v Sears, Roebuck & Co. (4th Dept)  109 App Div 2d 1054, 487 NYS2d 194, affd  65 NY2d 1009, 494 NYS2d 302, 484 NE2d 665.

Threat of discharge from employment at will is not "imprisonment" for tort purposes.  Foley v Polaroid Corp., 400 Mass 82, 508 NE2d 72, 2 BNA IER Cas 328.

Though the confinement or restraint necessary to create liability for false arrest or imprisonment may be imposed by an express or implied threat, as well as by actual force, 49   if no force is used there must be a reasonable apprehension of force, 50       which may exist by reason of the wrongdoer's assertion of legal authority. 51    If the words or conduct are such as to induce a reasonable apprehension of force and the means of coercion are at hand, a person may be as effectually restrained and deprived of liberty as by prison bars. 52   If, however, the words or conduct do not impose confinement upon the plaintiff or do not induce a reasonable apprehension that force will be used to effect a confinement, false imprisonment does not exist. 53    Thus, in order to be actionable, the intended actions or words of the defendant must at least furnish a basis for a reasonable apprehension of present confinement. 54   The relationship of the parties and the circumstances surrounding the incident have an important bearing upon the question of whether particular words or acts have inspired a just fear of injury to person, reputation, or property. 55  

While threats of future action, 56  such as to call the police and have the plaintiff arrested, 57  or to institute criminal proceedings against him or her, 58  are not ordinarily sufficient in themselves to effect an unlawful imprisonment, such threats may influence the assessment of damages. 59

Unless it is clear that there is no reasonable apprehension of force, it is a question for the jury whether the submission was a voluntary act or brought about by fear that force would be used. 60    In resolving such a question, the jury is at liberty to consider not only the actual words spoken but also the sex, physical demeanor, and relative size, age, and experience of the participants. 61

Footnote 49.  § 18.

Footnote 50. Nesmith v Alford (CA5 Ala) 318 F2d 110, reh den (CA5 Ala) 319 F2d 859 and cert den  375 US 975,  11 L Ed 2d 420,  84 S Ct 489; Big B, Inc. v Cottingham (Ala) 634 So 2d 999 (stating that an exercise of force or the express or implied threat of force, by which in fact the other person is deprived of liberty, compelled to remain where he or she does not wish to remain or go where he or she does not wish to go, is an imprisonment); Vandiveer v Charters, 110 Cal App 347, 294 P 440; Whitman v Atchison, T. & S. F. R. Co., 85 Kan 150, 116 P 234; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; Roberts v Coleman, 228 Or 286, 365 P2d 79; Harris v Stanioch, 150 Wash 380, 273 P 198; Johnson v Norfolk & W. Ry., 82 W Va 692, 97 SE 189,  6 ALR 1469.

If words and conduct induce in the plaintiff a reasonable belief that resistance or physical attempts to escape would be useless and futile, it is false imprisonment, even in the absence of physical restraint.  Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122.

Where it is contended that the unlawful detention is brought about by threat, it must be shown that the threat was such as would inspire in the threatened person a just fear of injury to his or her person, reputation, or property.  Black v Kroger Co. (Tex Civ App Houston (1st Dist)) 527 SW2d 794, writ dism (Jan 14, 1976).

If the wrongdoer's acts and words are such that they reasonably create in the plaintiff's mind the belief of the necessity of conforming to the wrongdoer's demands or suffering the consequences, and plaintiff conforms, plaintiff is restrained of liberty.  Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507.

Forms: Instructions to jury that recovery is not barred where consent to restraint was induced by threatened and reasonably apprehended use of force.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  6.

Footnote 51.  § 24.

Footnote 52. Vandiveer v Charters, 110 Cal App 347, 294 P 440; Durgin v Cohen, 168 Minn 77, 209 NW 532; Hebrew v Pulis, 73 NJL 621, 64 A 121; West v King's Dep't Store, Inc., 321 NC 698, 365 SE2d 621; Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161; Chicago, R. I. & G. R. Co. v Neubert (Tex Civ App) 248 SW 139, writ dism w o j; W. T. Grant Co. v Owens, 149 Va 906, 141 SE 860; Harris v Stanioch, 150 Wash 380, 273 P 198.

Where a saleswoman delayed putting cash in the register and before she could do so was summoned to the office, accompanied by another employee, and was charged with stealing money and articles, abused, and ordered to bring her pocketbook from the locker room, which she did while accompanied by another employee at the defendant's direction, was threatened with arrest and feared such action, these facts constituted imprisonment.  Fleisher v Ensminger, 140 Md 604, 118 A 153.

Footnote 53. Grayson Variety Store, Inc. v Shaffer (Ky) 402 SW2d 424; Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329; Herbrick v Samardick & Co., 169 Neb 833, 101 NW2d 488; Roberts v Coleman, 228 Or 286, 365 P2d 79; Safeway Stores, Inc. v Amburn (Tex Civ App Fort Worth) 388 SW2d 443; James v MacDougall & Southwick Co., 134 Wash 314, 235 P 812.

False imprisonment may not be predicated on a person's unfounded belief that he was restrained.  White v Levy Bros., Inc. (Ky) 306 SW2d 829.

The fact that one considers himself restrained in person is not sufficient to constitute a false imprisonment, unless there is in fact a reasonable ground to apprehend a resort to force upon an attempt to assert his liberty.  Hoffman v Clinic Hospital, Inc., 213 NC 669, 197 SE 161.

Footnote 54. Marshall v District of Columbia (Dist Col App) 391 A2d 1374.

Although an implied threat of force, reasonably believed by the plaintiff, is sufficient to support a finding of false imprisonment, there was no evidence of words or conduct on the part of officials of a religious organization that the minor plaintiff was not free to leave, despite the officals' creation of substantial obstacles to her movement, by taking her far from her home, depriving her of financial resources and limiting her access to means of communication.  George v International Soc'y for Krishna Consciousness (4th Dist) 3 Cal App 4th 52, 4 Cal Rptr 2d 473, 92 CDOS 985, 92 Daily Journal DAR 1593, reh den (Cal App 4th Dist) 92 CDOS 1855, 92 Daily Journal DAR 2846 and review den, op withdrawn by order of ct (Cal) 92 CDOS 3848, 92 Daily Journal DAR 5838.

Footnote 55. Black v Kroger Co. (Tex Civ App Houston (1st Dist)) 527 SW2d 794, writ dism (Jan 14, 1976) (employee accused of theft by employer's agents).

Forms: Complaint, petition, or declaration against bank and bank employee for unreasonable detention of bank teller on accusation of misappropriation of bank deposit and attempt to secure confession and restitution.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  28.

Footnote 56. Roberts v Coleman, 228 Or 286, 365 P2d 79.

Footnote 57. Sweeney v F. W. Woolworth Co., 247 Mass 277, 142 NE 50,  31 ALR 311 (charging a customer in a store with larceny of goods and requiring him to turn his pockets inside out do not constitute false imprisonment, if there is no restraint other than a threat to call an officer if he does not do so).

Threats to invoke peacefully the processes of the law, standing alone and unaccompanied by force or any other form of restraint, cannot result in such a detention as would constitute false imprisonment.  Blumenfeld v Harris (1st Dept)  3 App Div 2d 219, 159 NYS2d 561, affd  3 NY2d 905, 167 NYS2d 925, 145 NE2d 871, reh den  3 NY2d 1018 and motion den  3 NY2d 1018 and cert den  356 US 930,  2 L Ed 2d 761,  78 S Ct 773.

Footnote 58. Priddy v Bunton (Tex Civ App) 177 SW2d 805, writ ref.

Footnote 59. West v King's Dep't Store, Inc., 321 NC 698, 365 SE2d 621.

Footnote 60. Jorgensen v Pennsylvania R. Co., 25 NJ 541, 138 A2d 24, 41 BNA LRRM 2470, 34 CCH LC ¶ 71252,  72 ALR2d 1415.

Footnote 61. Black v Kroger Co. (Tex Civ App Houston (1st Dist)) 527 SW2d 794, writ dism (Jan 14, 1976) (jury considering whether plaintiff, an employee accused of theft, could voluntarily have terminated interview with defendant's security agent without giving statement admitting her guilt or whether she was so over-awed and intimidated by the agent's threats that she was not able to exercise her free will).

A jury question was raised as to what was reasonably to be implied from store employees' conduct toward shopper who set off alarm device when she left the store.  Limited Stores v Wilson-Robinson, 317 Ark 80, 876 SW2d 248.

If a person has induced another to put himself or herself in a place which it is impossible to leave without such person's assistance, by words or other conduct which gives the other reason to believe that such assistance will be given when it is needed, the refusal to do so, if for the purpose of detaining the other, is a sufficient act of confinement to make such person liable. 62   It is generally held, however, that the mere refusal of permission on the part of an employer to allow an employee to leave the premises during the ordinary working hours or a failure to provide prompt facilities to enable the servant to leave does not constitute false imprisonment. 63   

Footnote 62. Restatement 2d, Torts. § 45, comment a.

The allegation of members of a film crew that a deputy sheriff who cited them for being in a restricted area of volcanic activity negligently failed to rescue them did not state a claim for false imprisonment; there was no application of false imprisonment law to the facts of the case.  Johnson v Barker (CA9 Wash) 799 F2d 1396.

In the absence of any showing of exigent circumstances triggering a duty on the part of an airline to release a passenger who was refused permission to leave the airplane when the plane was delayed on the runway for three hours, there was no unlawful detention or false imprisonment of the passenger by the airline. Abourezk v New York Airlines, Inc., 283 US App DC 34, 895 F2d 1456.

Footnote 63. Davis & Allcott Co. v Boozer, 215 Ala 116, 110 So 28,  49 ALR 1307 (an employer cannot be held liable for arrest of an employee by merely refusing to permit him to leave the plant upon his complaining of illness).

Refusing an employee permission to leave the room in which he is being questioned as to the state of his accounts does not constitute false imprisonment, where during such time he remains an employee under compensation and subject to the direction of his superiors.  Weiler v Herzfeld-Phillipson Co.,  189 Wis 554, 208 NW 599.

3.  Unlawfulness of Detention or Restraint [21-34]

a.  In General [21-23]

Mere loss of freedom cannot constitute false imprisonment even though it is unjust; 64  the imprisonment, confinement, or restraint must be unlawful. 65   Any intentional restraint by one person of the personal liberty of another is unlawful unless justified by some valid authority or right, 66    There is no false imprisonment if such imprisonment is under legal authority. 67    Thus, a false imprisonment action cannot be maintained where the detention was executed by virtue of legally sufficient process duly issued by a court of competent jurisdiction. 68     

Footnote 64. McMechen ex rel. Willey v Fidelity & Casualty Co., 145 W Va 660, 116 SE2d 388.

Footnote 65. Martin v Lincoln Park West Corp. (CA7 Ill) 219 F2d 622; Durgin v Cohen, 168 Minn 77, 209 NW 532; Weiler v Herzfeld-Phillipson Co.,  189 Wis 554, 208 NW 599.

The gist of any complaint for false arrest or false imprisonment is an unlawful detention.  Marshall v District of Columbia (Dist Col App) 391 A2d 1374.

Footnote 66. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664; Maxwell v Maxwell, 189 Iowa 7, 177 NW 541,  10 ALR 482.

As to justification, see  §§ 87 et seq.

Footnote 67. Lolley v Charter Woods Hosp., Inc. (Ala) 572 So 2d 1223; Davis v Syracuse,  66 NY2d 840, 498 NYS2d 355, 489 NE2d 242; Jones v Columbia, 301 SC 62, 389 SE2d 662; Darrow v Schumacher (SD) 495 NW2d 511.

Footnote 68. Pete v Metcalfe (CA5 Tex) 8 F3d 214; Big B, Inc. v Cottingham (Ala) 634 So 2d 999; Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Where an arrest is made under the authority of a proper warrant, there is no false arrest in either the common-law or the constitutional sense.  Thomas v Sams (CA5 Tex) 734 F2d 185, reh den (CA5 Tex) 741 F2d 783, cert den  472 US 1017,  87 L Ed 2d 612,  105 S Ct 3476.

As to the defense of justification based upon process, see  §§ 87 et seq.

One who is detained through no fault of his or her own, but merely as a witness to the wrong of another, is unlawfully imprisoned, at least where he expresses a readiness to appear as a witness when needed. 69   On the other hand, officers acting properly in the execution of a warrant for a material witness, and who are not chargeable with discrepancies in the warrant, effect a privileged arrest by a warrant regular in form and reasonably appearing to be issued by a court with jurisdiction and cannot be found to be acting tortiously. 70   

Footnote 69. New York, P. & N. R. Co. v Waldron, 116 Md 441, 82 A 709; Daniel v Phillips Petroleum Co., 229 Mo App 150, 73 SW2d 355.

Footnote 70. Ware v Reed (CA5 Tex) 709 F2d 345; Arnsberg v United States (CA9 Or) 757 F2d 971, cert den  475 US 1010,  89 L Ed 2d 300,  106 S Ct 1183.

One may be acquitted upon the merits of the case, or discharged upon some question of law, but that fact does not in and of itself make the restraint placed upon one's liberty false imprisonment. 71    

Footnote 71. Coverstone v Davies, 38 Cal 2d 315, 239 P2d 876, cert den  344 US 840,  97 L Ed 653,  73 S Ct 50; Brinkman v Drolesbaugh, 97 Ohio St 171, 119 NE 451.

A subsequent acquittal on the charge for which the arrest was made or the dropping of charges is of no consequence in determining the validity of the arrest itself.  Marx v Gumbinner (CA11 Fla) 905 F2d 1503.

An acquittal is not a bar to an adjudication that an arrest based upon an offense committed in the presence of the officer is lawful.  People v Edge, 406 Ill 490, 94 NE2d 359 (pointing out that judgment of not guilty is only determination that evidence presented did not approve offense charged); Ryan v Conover (Hamilton Co) 59 Ohio App 361, 11 Ohio Ops 565, 26 Ohio L Abs 593, 18 NE2d 277.

b.  Arrest [24-32]

(1).  Illegality Based Upon Conduct in Making Arrest [24-28]

The term "false imprisonment" is broad enough to include any detention under pretended color of official right. 72   An officer or individual making an arrest is bound by certain rules if he or she is to be protected from liability, 73   and in an action for false arrest or imprisonment the critical question is whether the arrest was made in conformance to these rules. 74   Where one is properly arrested by lawful authority, even though without a warrant, an action for false imprisonment cannot be maintained. 75    If probable cause exists, the subsequent arrest is lawful and there is no false arrest. 76   Similarly, if an arrest is made pursuant to a warrant valid on its face, there is no false imprisonment, 77  even if the warrant later turns out to be invalid. 78    However, liability may arise for an arrest made under circumstances or in a manner not authorized by law. 79   This principle is applicable, for example, to claims of unlawful arrest for theft, 80  shoplifting, 81  prostitution, 82  in an extradition proceeding, 83  detention for another arresting authority, 84  or an arrest based on alleged contempt of court for failure to obey a court order based on a settlement agreement. 85   Liability for false imprisonment may arise before an arrest is made. 86    An action for false imprisonment may be based, for instance, on an abuse of official authority in making an investigation, 87  arresting and detaining a person for psychiatric care or hospitalization, 88  execution of a search warrant and detention during the process of its execution, 89  or detention at a sobriety roadblock. 90

A right of action for false arrest or false imprisonment "under color of state law" has been recognized under the Federal Civil Rights Act. 91  

Footnote 72. McAlmond v Trippel, 93 Cal App 584, 269 P 937.

Footnote 73. See, generally, 5 Am Jur 2d,  Arrest.

Footnote 74. Dillon v Haskell, 78 Cal App 2d 814, 178 P2d 462; Taylor v Shields, 183 Ky 669, 210 SW 168,  3 ALR 1619.

Footnote 75.  § 81.

Footnote 76. Johnson v Morris (Minn) 453 NW2d 31, later proceeding (Minn) 1990 Minn LEXIS 118.

Footnote 77. Moody v McElroy (RI) 513 A2d 5; Horton v Chamberlain, 152 Vt 351, 566 A2d 953; Burt v Ferrese (CA3 Del) 871 F2d 14.

Footnote 78. Rustici v Weidemeyer (Mo) 673 SW2d 762.

As to defense of justification based upon legal process, see  §§ 90 et seq.

Footnote 79. Collyer v S. H. Kress & Co., 5 Cal 2d 175, 54 P2d 20; Laster v Chaney, 180 Miss 110, 177 So 524; Coffee v Peterbilt of Nashville, Inc. (Tenn) 795 SW2d 656 (liability may arise where the warrant relied upon was issued by a court without jurisdiction over the charged offense); Kalkanes v Willestoft, 13 Wash 2d 127, 124 P2d 219; Lane v Collins,  29 Wis 2d 66, 138 NW2d 264.

Forms: Complaint, petition, or declaration–unlawful arrest without warrant–against municipal corporation and police officer.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  91.

Footnote 80. Drill Parts & Serv. Co. v Joy Mfg. Co. (Ala) 619 So 2d 1280, reh den, without op (Ala) 1993 Ala LEXIS 646; Aitken v White, 93 Cal App 2d 134, 208 P2d 788.

Footnote 81. Hanna v Raphael Weill & Co., 90 Cal App 2d 461, 203 P2d 564; Vessels v District of Columbia (Dist Col App) 531 A2d 1016; McClure Ten Cent Co. v Humphries, 33 Ga App 523, 127 SE 151; Gust v Montgomery Ward & Co., 234 Mo App 611, 136 SW2d 94.

Footnote 82. Hazen v Anchorage (Alaska) 718 P2d 456; Fiori v Agnew, 33 Cal App 284, 164 P 899.

Footnote 83. Wood v Bailey, 144 Mass 365, 11 NE 567.

Footnote 84. Qualey v Wilton (Me) 540 A2d 479.

Footnote 85. Dozier v Dozier, 252 Kan 1035, 850 P2d 789.

Footnote 86. As to fact that actual arrest is unnecessary in order to constitute false imprisonment, see  § 2.

Footnote 87. Ware v Dunn, 80 Cal App 2d 936, 183 P2d 128.

Footnote 88. McKinney v George (CA7 Ill) 726 F2d 1183.

Footnote 89. Daniel v Taylor (CA11 Ga) 808 F2d 1401.

Footnote 90. Nelson v Lane County, 304 Or 97, 743 P2d 692.

Footnote 91. 42 USCS §  1983, discussed in 15 Am Jur 2d, Civil Rights §§ 16-21.

The time when an arrest may be made is determined by the common law and statutes. 92   An arrest at an unlawful or unreasonable time may impose liability for damages, 93  especially when combined with other elements of unlawfulness. 94 

Footnote 92. See 5 Am Jur 2d,  Arrest § 96.

Footnote 93. MacDonnell v McConville, 148 App Div 49, 132 NYS 1085, affd 210 NY 529, 103 NE 1126.

Footnote 94. Bryan v Comstock, 143 Ark 394, 220 SW 475,  9 ALR 1346 (arresting a reputable citizen late at night for driving his automobile without the necessary lights, refusing to permit him to make bail, and jailing him because of unwillingness to disturb a magistrate, constitute an abuse of discretion rendering the officer liable for wrongful arrest).

There are limitations upon the territorial extent of the power to arrest. 95   Even when officers have statewide arrest powers, a warrantless arrest must still be supported by probable cause and officers acting in a neighboring jurisdiction within the state must also comply with statutory requirements or limitations on an officer's authorization to stop and question a person on reasonable suspicion of criminal activity, within a particular geographical area. 96   Arrest by one agency which is authorized to act within a particular jurisdiction does not relieve another agency or municipality from possible liability for false imprisonment, based upon a subsequent arrest of the same person. 97

Footnote 95. See 5 Am Jur 2d,  Arrest §§ 34-36,  69-72.

Footnote 96. Brewster v New York (2d Dept)  111 App Div 2d 892, 490 NYS2d 601 (damages for battery and false imprisonment were properly awarded to an individual who was stopped by officers from a neighboring county, apparently because he fit the description of a purse snatcher recently observed there, was subjected to mace and arrested on charges that were later dismissed).

Footnote 97. Qualey v Wilton (Me) 540 A2d 479.

An officer attempting to make an arrest should, if the opportunity exists, make known his or her purpose and the official capacity in which he or she is acting, as well as the cause of the arrest.  Such notification is sometimes required by statute. 98    In jurisdictions where there is such a statutory duty, failure to comply with the requirements of informing the arrestee of the intention of, cause for and authority for the arrest may divest the person making the arrest of an otherwise applicable privilege or deprive the arresting person of justification for the arrest, 99  unless there is a showing of circumstances relieving the officer or other arresting person of compliance with the requirement of advising of the fact of arrest and the authority for making the arrest. 1   In other jurisdictions, the officer's failure to convey such information, even when required by statute, does not necessarily impose liability on the officer for false imprisonment. 2

Footnote 98. See 5 Am Jur 2d,  Arrest §§ 92-94.

Footnote 99. McFarland v Skaggs Cos. (Utah) 678 P2d 298 (among conflicting authorities on other grounds noted in Miskin v Carter (Utah) 761 P2d 1378, 90 Utah Adv Rep 19).

Footnote 1. Sprague v Burley, 109 Idaho 656, 710 P2d 566 (reasonableness of officer's conduct, including compliance with these requirements, is a jury question, going ultimately to the existence vel non of qualified immunity).

Footnote 2. Elliott v Haskins, 20 Cal App 2d 591, 67 P2d 698.

The fact that the arrestee is not told that he or she has been arrested generally does not affect the validity of the arrest. Bauldock v Davco Food, Inc. (Dist Col App) 622 A2d 28.

Claims of excessive force are frequently joined with false imprisonment actions in connection with the circumstances surrounding the arrest in question. 3

The question of the reasonableness of force utilized generally presents a question for the jury. 4   The resolution of the "reasonableness" issue on the facts of the particular case may influence or even be determinative on the existence of qualified immunity for an officer, 5   or on the officer's qualified privilege for use of force during the arrest. 6   The reasonableness of the use of force is an objective determination; the good or evil intentions of the arresting party will not change the characterization of the conduct. 7  

Footnote 3. Adams v Metiva (CA6 Mich) 31 F3d 375, 1994 FED App 277P; Leslie v Ingram (CA11 Fla) 786 F2d 1533; Renk v City of Pittsburgh (Pa) 641 A2d 289, digest op at (Pa) 17 PLW 225; Garton v Reno, 102 Nev 313, 720 P2d 1227.

Footnote 4. Ting v United States (CA9 Cal) 927 F2d 1504, 91 CDOS 1794, 91 Daily Journal DAR 2996.

Footnote 5. Wardlaw v Pickett (App DC) 303 US App DC 130, 1 F3d 1297, reh den (App DC) 1993 US App LEXIS 36953 and reh, en banc, den (App DC) 1993 US App LEXIS 36922 and cert den (US)  129 L Ed 2d 808,  114 S Ct 2672, reh den (US)  129 L Ed 2d 911,  115 S Ct 11.

As to immunity, generally, see  § 98 et seq.

Footnote 6. Etheredge v District of Columbia (Dist Col App) 635 A2d 908.

Footnote 7. Darrow v Schumacher (SD) 495 NW2d 511.

As to what constitutes excessive force in the course of an arrest, See 5 Am Jur 2d,  Arrest §§ 105 et seq.

(2).  Illegality Based Upon Conduct Following Arrest [29-32]

It is the duty of an officer or other person making an arrest to take the prisoner before a magistrate with reasonable diligence and without unnecessary delay. 8    Whether the arrest is made with a warrant or without a warrant, the person making the arrest, or his or her principal or employer, is liable for false imprisonment if he or she fails to take the arrested person before a court or magistrate within a reasonable time or without unnecessary delay. 9   Under this rule, an officer, without a warrant, arresting a person is liable for false imprisonment where the officer detains the prisoner an unreasonable time without securing a warrant or other legal authority for detention. 10      

In a lawful arrest without a warrant, the person making the arrest must promptly present the prisoner before a magistrate; an unreasonable delay will constitute an abuse of the privilege and make the arresting party liable for the unreasonable portion of the imprisonment. 11   If, however, the detention is reasonable under the circumstances, 12   there is no liability. 13     Moreover, recovery may be precluded if the conduct of the person arrested amounts to a waiver of the right to complain of the delay in presentment before a magistrate. 14    Also, the giving of bail may have the effect of waiving irregularities in the prior proceedings. 15 

Footnote 8. See 5 Am Jur 2d,  Arrest § 101.

Footnote 9. Luker v Nelson (ND Ill) 341 F Supp 111 (applying Illinois law); Peoria v Underwriter's at Lloyd's London, Unincorporated (SD Ill) 290 F Supp 890 (applying Illinois law); Hill v Wyrosdick, 216 Ala 235, 113 So 49; State v Gilbert, 105 Ariz 475, 467 P2d 63 (recognizing rule); Dragna v White, 45 Cal 2d 469, 289 P2d 428; Newport Beach v Sasse (4th Dist) 9 Cal App 3d 803, 88 Cal Rptr 476; Stone v National Surety Corp., 57 Ga App 427, 195 SE 905; Wilson v Hellard (Ky) 333 SW2d 777; Leisure v Hicks, 336 Mich 148, 57 NW2d 473; Kleidon v Glascock, 215 Minn 417, 10 NW2d 394; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495; Schreiner v Hutter, 104 Neb 539, 177 NW 826; Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141; Ames v Strain (Okla) 301 P2d 641; Westbrook v Hutchison, 195 SC 101, 10 SE2d 145; Heath v Boyd, 141 Tex 569, 175 SW2d 214; Thurston v Leno, 124 Vt 298, 204 A2d 106 (failure to bring before magistrate one arrested on civil process); Mullins v Sanders, 189 Va 624, 54 SE2d 116; Bergeron v Peyton,  106 Wis 377, 82 NW 291.

False imprisonment is considered to be a continuing tort, which commences at the time of the false arrest and continues until the unlawful detention ceases.  O'Fallon v Pollard (ND) 427 NW2d 809.

Annotation: Intoxication as ground for police postponing arrestee's appearance before magistrate,  3 ALR4th 1057 § 3.

Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment,  98 ALR2d 966.

Practice References False imprisonment–Failure to take arrestee before magistrate without unreasonable or unnecessary delay.   26 Am Jur POF2d 617.

Forms: Complaint, petition, or declaration–confinement without charge after arrest without warrant–against city and jailer. 10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  111.

Complaint, petition, or declaration–unreasonable delay in taking prisoner before magistrate after arrest without warrant–aggravation of damages by subjection of prisoner to public disgrace and humiliation–against city and police officer 10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  112.

Footnote 10. Von Arx v Shafer (CA9 Alaska) 241 F 649; Bryan v Comstock, 143 Ark 394, 220 SW 475,  9 ALR 1346; Dragna v White, 45 Cal 2d 469, 289 P2d 428; Keefe v Hart, 213 Mass 476, 100 NE 558; Clark v Kelly, 101 W Va 650, 133 SE 365,  46 ALR 799.

Texas law requires that an arrested motorist be taken "immediately" before a magistrate.  The test for determining compliance is whether the conduct of the police was reasonable under the circumstances.  Roberts v Bohac (CA5 Tex) 574 F2d 1232, holding that a jury verdict against two police officers for false imprisonment was proper, notwithstanding that the jury also determined that there had been probable cause for plaintiff's arrest, where plaintiff was arrested at 11:00 p.m. two blocks from his home, detained overnight in the local jail, and charged the next morning with having been "drunk under the wheel" although neither state nor local laws made such activity an offense, where there was evidence that plaintiff's imprisonment and an attendant 7-week campaign of harassment were motivated by the concern of one of the arresting officers over plaintiff having discovered that the officer was having an extra-marital relationship, and where the officers, in violation of state statute requiring that an arrested motorist be taken "immediately" before a magistrate, did not even attempt to ascertain whether a magistrate could make himself available before the next morning.

As to liability of one other than the arresting person or his principal or employer, see  §§ 35-37.

As to justification for delay in bringing arrested person before magistrate, see 5 Am Jur 2d,  Arrest § 102.

Forms: Instructions to jury as to duty to take prisoner arrested without warrant before magistrate without unnecessary delay.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  119.

Footnote 11. McFarland v Skaggs Cos. (Utah) 678 P2d 298 (among conflicting authorities on other grounds noted in Miskin v Carter (Utah) 761 P2d 1378, 90 Utah Adv Rep 19).

A one-hundred-fourteen-day delay between arrest and arraignment of arrestee, after arrestee's name was dropped from the arraignment docket in a clerical error was unreasonable and constituted grounds for county's liability for the unlawful detention; the county's minimalist approach to jail procedure and its policy of inaction when similar problems had been brought to official's attention previously showed a deliberate indifference to the arrestee's right of freedom from prolonged incarceration, which supplied the necessary element of intent.  Oviatt v Pearce (CA9 Or) 954 F2d 1470, 92 CDOS 490, 92 Daily Journal DAR 723.

Footnote 12.  § 25.

Footnote 13. Atchison, T. & S. F. R. Co. v Hinsdell, 76 Kan 74, 90 P 800.

Officer's initial finding of probable cause for arrest of individual for refusal to leave a bus terminal justified both the arrest and a reasonable period of continued detention for the purpose of bringing the arrested person before a magistrate; the officer had no duty to release the arrested party on post-arrest circumstances casting doubt on the original probable cause finding, since the post-arrest evidence did not negate probable cause beyond a reasonable doubt, even though the arrested person truthfully advised the officer that he suffered from diabetes and was emerging from insulin shock rather than drunk or incapacitated by drugs, as believed by the arresting officer.  Thompson v Olson (CA1 Me) 798 F2d 552, cert den  480 US 908,  94 L Ed 2d 524,  107 S Ct 1354.

Footnote 14.  § 63.

Footnote 15.  § 64.

A number of cases support the rule that failure to bring the arrested person before a magistrate without unnecessary delay makes the defendant liable as a trespasser ab initio, even though the original arrest may have been justified. 16   There are, however, cases holding to the contrary, at least where the original arrest was made in good faith without intent to subsequently restrain the arrested persons illegally. 17   Under this view, unreasonable delay after a lawful arrest is held to subject the offending person to liability only for so much of the imprisonment as could have been prevented had he or she exercised due diligence in bringing the arrested person before a magistrate. 18   Under these circumstances, even if an arrest is made pursuant to valid legal process and thus unactionable, imprisonment following the arrest may become unlawful; the plaintiff bears the burden of convincing the trier of fact, assuming the facts are disputed, that the delay following the arrest was unlawful and that the conduct of those effecting the delay was unreasonable. 19   However, where the arrest, even though legal, is made for the purpose of accomplishing some subsequent wrongful act, failure to bring the defendant before a magistrate within a reasonable time may make the arresting officer a trespasser ab initio. 20

Footnote 16. Great American Indem. Co. v Beverly (DC Ga) 150 F Supp 134; Nelson v Eastern Air Lines, Inc., 128 NJL 46, 24 A2d 371; Seguin v Myers, 279 App Div 690, 108 NYS2d 28; Leger v Warren, 62 Ohio St 500, 57 NE 506; Ulvestad v Dolphin, 152 Wash 580, 278 P 681.

Footnote 17. Oxford v Berry, 204 Mich 197, 170 NW 83; Brown v Meier & Frank Co., 160 Or 608, 86 P2d 79; Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337.

Footnote 18. Dragna v White, 45 Cal 2d 469, 289 P2d 428; Anderson v Foster, 73 Idaho 340, 252 P2d 199; Cline v Tait, 116 Mont 571, 155 P2d 752.

Footnote 19. Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141 (jury question was presented as to reasonableness of continuing detention, particularly in view of detainee's continuing attempts to pay the $29 bail).

The arresting officer does not have an ongoing duty to decide if probable cause dissipated to the point that the arrestee should be released.  Thompson v Olson (CA1 Me) 798 F2d 552, cert den  480 US 908,  94 L Ed 2d 524,  107 S Ct 1354.

Footnote 20. Shaw v Courtney, 317 Ill App 422, 46 NE2d 170, affd 385 Ill 559, 53 NE2d 432; Stromberg v Hansen, 177 Minn 307, 225 NW 148; Brown v Meier & Frank Co., 160 Or 608, 86 P2d 79.

Generally, it may be said that one making an arrest is liable in an action for false imprisonment for wrongfully denying the prisoner an opportunity to give bond. 21   However, the arresting officer has been held not liable for the period of confinement after a magistrate's refusal to accept bail and to release the prisoner from jail. 22  

In addition to the arresting officer, any person who aids in the denial of the opportunity to obtain bail may be liable for false imprisonment. 23   A jailer may be liable for false imprisonment for refusal to permit the prisoner to secure release on bail. 24

What amounts to reasonable diligence in affording the prisoner an opportunity to give bond depends on the circumstances of the individual case, including the time of day or night the arrest was made, the condition of the prisoner, and the prisoner's ability and readiness to give a sufficient bond. 25   Thus, for instance, it has been held that the failure to give a person arrested for drunkenness in a public place an opportunity to give bail does not become unreasonable until such person is restored to a degree of sobriety which would guarantee against rearrest. 26

The right to arrange for bail may be waived. 27  

Footnote 21. Moran v Beckley (CA4 W Va) 67 F2d 161; Bryan v Comstock, 143 Ark 394, 220 SW 475,  9 ALR 1346; Blocker v Clark, 126 Ga 484, 54 SE 1022; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495 (recognizing rule); King v Roberts, 125 Tex 623, 84 SW2d 718; Mullins v Sanders, 189 Va 624, 54 SE2d 116.

Annotation: Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment,  98 ALR2d 966.

Footnote 22. Anderson v Foster, 73 Idaho 340, 252 P2d 199.

Annotation: Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment,  98 ALR2d 966.

Footnote 23. Andersen v Spencer, 229 Iowa 595, 294 NW 904; Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1; Sands & Co. v Norvell, 126 Va 384, 101 SE 569; Karney v Boyd,  186 Wis 594, 203 NW 371.

Any person who induces an officer to deny a prisoner the right to give bail when the prisoner is lawfully entitled thereto is liable for false imprisonment as a principal.  Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1.

Annotation: Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment,  98 ALR2d 966.

Footnote 24. Oppenheimer v Los Angeles, 104 Cal App 2d 551, 232 P2d 30.

Footnote 25. Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1.

The arresting officer is not required to travel about with the prisoner in order to enable him to obtain bail.  King v Robertson, 227 Ala 378, 150 So 154; Calderone v Kiernan, 23 RI 578, 51 A 215.

Annotation: Intoxication as ground for police postponing arrestee's appearance before magistrate,  3 ALR4th 1057.

Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment,  98 ALR2d 966.

Footnote 26. Sheffield v Reece, 201 Miss 133, 28 So 2d 745.

See, however, Markey v Griffin, 109 Ill App 212, rejecting the contention that denial of an opportunity to give bail was excused by the intoxication of the prisoner, and holding that a person is entitled to have bail fixed and given if he is able to go to the court for a length of time sufficient for that purpose, even though he might be so weak or sick that he is unable to remain long enough for a trial.

Footnote 27.  § 31.

Unreasonable delay in releasing a person after he or she has a right to be released may constitute false imprisonment. 28     Thus, detaining a prisoner after a full pardon has been delivered to one having authority to release him constitutes false imprisonment. 29   Under other circumstances, however, there has been no liability for prolonging detention even after information was available to cast doubt on the original probable cause finding, 30     

Although time of delay is relevant in determining the propriety of delay in releasing a prisoner, 31  other considerations are also taken into account in determining the reasonableness of the delay, including administrative steps to be taken, the number of people to be processed, transportation, booking and filing charges and paperwork. 32

Requiring a detainee to cross a bridge and leave the state or transporting the detainee out of state may raise a cognizable claim for a constitutional violation, which may include a false arrest claim, 33  and it is unlawful to extend the imprisonment, after discharge, beyond the doors of the lockup for the purpose of sending the plaintiff out of town. 34

Footnote 28. Walton v Will, 66 Cal App 2d 509, 152 P2d 639; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495.

The defendant city was liable for false imprisonment of plaintiff who was lawfully taken to the city jail's drunk tank where he was held in jail after authorities knew or should have known that he was not drunk, but was suffering from diabetes. Tufte v Tacoma, 71 Wash 2d 866, 431 P2d 183.

As to liability of jailer, see  § 48.

Forms: Complaint, petition, or declaration–refusal to release prisoner on tender of bail–against county and sheriff.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  114.

Footnote 29. Weigel v McCloskey, 113 Ark 1, 166 SW 944.

Footnote 30. Thompson v Olson (CA1 Me) 798 F2d 552, cert den  480 US 908,  94 L Ed 2d 524,  107 S Ct 1354 (officer had no duty to release detainee who was arrested when he refused to leave bus terminal, despite detainee's accurate explanation that he was suffering from insulin shock rather than intoxication, as originally believed by officer; detainee was held at the police station until officers became convinced of the truth of his statement after finding medical alert notice on detainee's person).

But see Cooper v Dyke (CA4 Md) 814 F2d 941 (a jury question was raised on the false arrest claim of a detainee who was transported to the police station and chained to a detention rail without medical treatment, despite his truthful protestations that he had been shot in the chest).

Footnote 31. See Thornhill v Wilson (Miss) 504 So 2d 1205 (a five-minute delay in release from custody by police officers of a belligerent detainee, after the officers determined there was actually no problem, in their investigation of a "shots fired" complaint, was not unreasonable and did not subject the officers to liability for false arrest).

Footnote 32. Lewis v O'Grady (CA7 Ill) 853 F2d 1366.

Footnote 33. Ketchum v West Memphis (CA8 Ark) 974 F2d 81.

Footnote 34. Bath v Metcalf, 145 Mass 274, 14 NE 133.

c.  Commitment of Mentally Ill Person [33, 34]

Where a person is detained or confined pursuant to process regular and legal in form, duly issued in connection with authorized judicial or quasi-judicial "insanity," "mental disorder" or other authorized mental health commitment proceedings, and such process is lawfully executed, the person detained or confined cannot recover damages in an action for false imprisonment. 35   In accordance with the rule governing actions for false imprisonment under process in general, 36   even where the order of commitment is erroneously made, if it is valid on its face and issued by a court of competent jurisdiction, detention thereunder is not false imprisonment. 37

Footnote 35. Savage v Boies, 77 Ariz 355, 272 P2d 349 (apparently recognizing rule); Smith v Fish, 182 Ark 115, 30 SW2d 223; Maben v Rankin, 55 Cal 2d 139, 10 Cal Rptr 353, 358 P2d 681; Granier v Odom (La App 4th Cir) 167 So 2d 531, cert den 246 La 884, 168 So 2d 268 (apparently recognizing rule); Beaumont v Segal, 362 Mass 30, 283 NE2d 858; Rosvall v Provost, 279 Minn 119, 155 NW2d 900; Lauer v State (3d Dept)  57 App Div 2d 673, 393 NYS2d 813; Patrich v Menorah Medical Center (Mo App) 636 SW2d 134 (the patient was properly admitted under state statute for treatment of persons confined by reason of mental disorder, and state probate court issued a commitment order upon proper filing of physican's report); Fowle v Fowle, 263 NC 724, 140 SE2d 398; Pate v Stevens (Tex Civ App) 257 SW2d 763, writ dism w o j.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523.

Footnote 36.  § 90.

Footnote 37. Beitch v State, 280 App Div 855, 113 NYS2d 439; Zuckerman v Sanitarium Co., 92 Or 90, 179 P 911.

Physician was not liable for false imprisonment of plaintiff on theory that physician participated in void proceeding by writing letter stating facts sufficient for commitment while knowing that statute provided that physician be examined under oath, since court had jurisdiction to order lunacy arrest and letter could not be construed as participation in illegal proceeding.  O'Barr v Feist, 292 Ala 440, 296 So 2d 152.

On the other hand, where an order of commitment is made without jurisdiction because the statutory requirements for commitment are not complied with, 38  as, for example, where the person to be committed is not given notice, 39  or where the medical certificates do not comply with the statutory requirements, 40  persons involved in the individual's detention may not be entitled to the statutory privilege granted for such participation and are subject to liability upon the false imprisonment claim of the detained person. 41  

There is no duty on the part of state hospital officials to examine the form of the report of the examining psychiatrists upon which an order of commitment was based, nor is there any duty to examine or investigate a commitment order valid on its face unless there is knowledge that there was, in fact, no basis for the execution of the order of commitment. 42 

Footnote 38. Washer v Slater, 67 App Div 385, 73 NYS 425.

A psychiatrist ordering the arrest and detention of a woman of allegedly homicidal tendencies, in a manner not conforming to statute, is responsible to the victim as the instigator of the false imprisonment.  Jillson v Caprio, 86 US App DC 168, 181 F2d 523.

Footnote 39. Troutman v State, 273 App Div 619, 79 NYS2d 709.

Footnote 40. Washer v Slater, 67 App Div 385, 73 NYS 425.

Failure of physician's statement, in emergency proceeding instituted by him to have plaintiff committed, to comply with statute which required statement to be either sworn to before person authorized to take acknowledgments or to be witnessed by peace officer, deprived plaintiff of liberty without legal process. Samons v Meymandi, 9 NC App 490, 177 SE2d 209, cert den 277 NC 458, 178 SE2d 225.

Footnote 41. Welch v County of Westchester (2d Dept)  150 App Div 2d 371, 540 NYS2d 820 (county was not entitled to summmary judgment on false imprisonment claim, since its papers did not establish compliance with the statutory requirement that each examining physician file the appropriate certificate).

Footnote 42. Bangs v State (3d Dept)  41 App Div 2d 988, 343 NYS2d 976.

C.  Liability of Particular Persons [35-58]

Research References
ALR Digest:  False Imprisonment §§ 10-27
ALR Index:  False Imprisonment and Arrest
10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  21,  36,  45,  46,  51,  55-58,  111
 11 Am Jur POF 2d 499, Lack of Care in Selecting Independent Contractor

1.  In General [35-37]

All those who, by direct act or indirect procurement, personally participate in or proximately cause a false imprisonment or unlawful detention are liable therefor. 43   Generally, a defendant must have personally and actively participated in some aspect of the conduct in order to be found liable for the false imprisonment. 44   A person who is neither active in the commission of the tort 45   nor responsible for the acts of others is not liable for false imprisonment. 46   Thus, mere endorsement of conduct by a supervisor does not create liability in the absence of some causal connection. 47   Similarly, a mere passive knowledge of, acquiescence in, or consent to the acts of another, for which one is not otherwise responsible, is not sufficient to render one liable for false arrest or imprisonment, 48  nor will an individual be held liable where such individual merely acts on the order of a superior. 49

Footnote 43. Allen v Ruland, 79 Conn 405, 65 A 138; Johnson v Weiner, 155 Fla 169, 19 So 2d 699; Anderson v Averbeck, 189 Minn 224, 248 NW 719; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508; (Blue) Star Service, Inc. v McCurdy, 36 Tenn App 1, 251 SW2d 139; Winters v Campbell, 148 W Va 710, 137 SE2d 188; Hotzel v Simmons,  258 Wis 234, 45 NW2d 683.

Footnote 44. Sunshine Jr. Food Stores, Inc. v Aultman (Miss) 546 So 2d 659; Godines v First Guaranty Sav. & Loan Asso. (Miss) 525 So 2d 1321.

In order to be found liable, a defendant must do something to promote the false arrest.  Alvarado v Dodge City, 238 Kan 48, 708 P2d 174.

Mere presence is not enough to prove liability.  Leaon v Washington County (Minn) 397 NW2d 867.

Footnote 45. Director General of Railroads v Kastenbaum,  263 US 25,  68 L Ed 146,  44 S Ct 52; Santiago v Fenton (CA1 Mass) 891 F2d 373; Miller v Fano, 134 Cal 103, 66 P 183; Johnson v Weiner, 155 Fla 169, 19 So 2d 699; Lenaz v Conway, 234 Miss 231, 105 So 2d 762; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428.

Footnote 46. Ingo v Koch (CA2 NY) 127 F2d 667.

After an arrest has been made, one who conveys the prisoner to another county at the request of peace officers and there delivers him to other peace officers is not liable for the latter officers' delay in bringing the prisoner before a magistrate.  Plummer v Northern Pac. Ry., 79 Mont 82, 255 P 18.

As to vicarious liability for false imprisonment, see  §§ 49 et seq.

Footnote 47. Kinan v Brockton (CA1 Mass) 876 F2d 1029, 28 Fed Rules Evid Serv 327.

Footnote 48. Palmentere v Campbell (CA8 Mo) 344 F2d 234; Dugan v Midwest Cap Co., 213 Iowa 751, 239 NW 697.

Footnote 49. Vela v White (CA5 Tex) 703 F2d 147.

A private person 50  or a police officer 51   who effects an arrest may be held liable for false arrest or imprisonment unless he or she is justified under the principles of the law of arrest 52   or under legal process. 53   Thus, police officers may be held liable for–

–failure to follow up or fully investigate potential exculpatory information or leads which might prevent or put an end to a false arrest or imprisonment. 54  

–deliberate concealment of exculpatory facts concerning the detainee during the investigation, including concealment of such evidence from the prosecutor. 55

–suppression of results of an exculpatory lab test of an alleged controlled substance. 56

On the other hand, no liability has been found for–

–police failure to inform the court of the suspect's alibi claim, where the suspect did present witnessess on that issue and had the opportunity to develop further facts in that regard. 57   

–failure to investigate the arrestee's claim that the drug for possession of which the arrest was made had actually been legally prescribed, in light of some question of whether the arrestee mentioned the prescription. 58

–mere poor judgment in conducting the investigation, absent any ill motive or legal malice. 59

–failure to interview potential alibi witnesses before arresting the plaintiff on a facially valid warrant. 60  

–alleged failure to further investigate evidence of mistaken identity of the person arrested. 61  

As to arrests made by private citizens, such arrests, even if authorized by statute, may nonetheless subject the arresting party to possible liability for false imprisonment, 62  particularly if the arrest so effected does not comply with all requirements of the statutory authorization. 63   A warden appointed by a contractor for convict labor and confirmed by the court under statute is liable for detaining a prisoner after he has received a pardon. 64  The proprietor of a private sanitarium is liable to a person who is induced by false pretenses to enter the institution and is forcibly detained therein. 65   A school truant or attendance officer may be held liable for false imprisonment where he takes into custody a child who had parental permission to be absent from school and hence was not a truant within the meaning of a statute conferring upon such officers the power of arresting truants without warrant. 66   

Footnote 50. Hill v Levy, 117 Cal App 2d 667, 256 P2d 622; Dohery v Lester,  4 Misc 2d 741, 159 NYS2d 219; Rucker v Barker, 108 Tex 280, 192 SW 528.

False imprisonment may exist apart from any purported process of law enforcement, as by private individuals acting on their own initiative for their own private purpose without any pretense of legal authority.  Rustici v Weidemeyer (Mo) 673 SW2d 762.

Footnote 51. Dragna v White, 45 Cal 2d 469, 289 P2d 428; Taylor v Shields, 183 Ky 669, 210 SW 168,  3 ALR 1619; Mason v Wrightson, 205 Md 481, 109 A2d 128; Bonnau v State, 278 App Div 181, 104 NYS2d 364, affd 303 NY 721, 103 NE2d 340.

Footnote 52.  §§ 81 et seq.

Footnote 53.  §§ 87 et seq.

Footnote 54. Watzek v Walker, 14 Ariz App 545, 485 P2d 3,  66 ALR3d 1; Tufte v Tacoma, 71 Wash 2d 866, 431 P2d 183.

See also Jacksonville v Walton (Fla App D1) 318 So 2d 546 (officers held detainee for rape charge even though he was stopped away from the crime area, resembled the suspect only by being of the same race and police refused detainee's request to confirm his identity with his wife, who was nearby).

Liability based upon failure to credit or investigate a suspect's alibi claim, which was supported by twenty witnesses. Miller v East Baton Rouge Parish Sheriff's Dep't (La) 511 So 2d 446, on remand (La App 1st Cir) 522 So 2d 578, cert den (La) 524 So 2d 520.

Officers failed to investigate or advise arresting officer of arrestee's exculpatory statement that the person videotaped committing a crime was arrestee's wife's brother, which information would have tended to defeat probable cause.  Flones v Dalman, 199 Mich App 396, 502 NW2d 725.

Footnote 55. Jones v Chicago (CA7 Ill) 856 F2d 985 (suppressed facts included the failure of the chief witness to positively identify the detainee and differing blood types of detainee and blood found on victim).

Footnote 56. Lewis v McDorman (WD Va) 820 F Supp 1001, affd without op (CA4 Va) 28 F3d 1210, reported in full (CA4 Va) 1994 US App LEXIS 17760.

Footnote 57. Gisondi v Harrison,  72 NY2d 280, 532 NYS2d 234, 528 NE2d 157,  81 ALR4th 1021.

Footnote 58. Cerna v Rhodes (La App 1st Cir) 341 So 2d 1157, cert den (La) 343 So 2d 1067.

Footnote 59. Lee v Geiger (Fla App D1) 419 So 2d 717, petition den (Fla) 429 So 2d 5.

Footnote 60. Thomas v M----.R----.A----.(Mo App) 713 SW2d 570 (court foreclosed liability on false imprisonment theory, but not on malicious prosecution theory).

As to defense of justification based on legal process, see  §§ 87 et seq.

Footnote 61. Watzek v Walker, 14 Ariz App 545, 485 P2d 3,  66 ALR3d 1.

Footnote 62. Yancey v Farmer (Ala) 472 So 2d 990.

Footnote 63. Nau v Sellman, 104 Nev 248, 757 P2d 358.

Footnote 64. Weigel v McCloskey, 113 Ark 1, 166 SW 944.

Footnote 65. Cook v Highland Hospital, 168 NC 250, 84 SE 352.

Footnote 66. Holmes v Nester, 81 Ariz 372, 306 P2d 290,  62 ALR2d 1322.

Annotation: Truant or attendance officer's liability for assault and battery or false imprisonment,  62 ALR2d 1328.

Where several persons unite in the wrongful act constituting false imprisonment, the extent of individual participation is immaterial to the question of liability; each is equally liable, jointly and severally, regardless of whether a conspiracy to do the act had theretofore been entered into. 67   Thus, more than one officer and more than one police department may be exposed to liability for an unlawful arrest and subsequent confinement. 68

Footnote 67. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664; Anderson v Averbeck, 189 Minn 224, 248 NW 719; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508.

Footnote 68. Qualey v Wilton (Me) 540 A2d 479.

2.  Persons Procuring, Directing, or Participating In Arrest or Imprisonment [38-48]

Persons other than those who actually effect an imprisonment may be so related to the act or proceeding as instigators or participants therein as to be jointly liable; for all who aid, direct, advise, or encourage the unlawful detention of a person are liable for the consequences. 69    However, if an arrest is legal, the third person causing it cannot be held responsible for the conduct of the person in charge of the prisoner, unless it is shown that such person acted on the authority of the third person or that such conduct was caused by the third person. 70   Thus, where the law of a particular jurisdiction provides that a detention must be "willful" in order to support a false imprisonment action, a defendant who has effected the plaintiff's confinement through process that is valid on its face has acted "willfully" only if the process was maliciously or wrongfully obtained; that is, if the defendant knew that the process was actually void. 71

Footnote 69. Moran v Beckley (CA4 W Va) 67 F2d 161; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Southern R. Co. v Shirley, 121 Ky 863, 90 SW 597; Heinold v Muntz T. V., Inc. (Mo) 262 SW2d 32; Ferry v Ferry, 94 NH 395, 54 A2d 151; Stearns v New York City Transit Authority,  24 Misc 2d 216, 200 NYS2d 272, affd (1st Dept)  12 App Div 2d 451, 209 NYS2d 264; Pixton v Dunn, 120 Utah 658, 238 P2d 408; Bergeron v Peyton,  106 Wis 377, 82 NW 291.

Action for common-law tort of false imprisonment will lie against those who actually procure or participate in restraint of another's liberty either directly or by virtue of others acting in their stead.  Baltz v Shelley (ND Ill) 661 F Supp 169.

An officer was not insulated from false arrest liability merely because the officer was not the first person to actually effect the arrest but merely transported the arrestee and kept up the detention.  The officer was still liable as a principal, just as is a jailer who imprisons a plaintiff without justification. Rustici v Weidemeyer (Mo) 673 SW2d 762.

As to joint and several liability for false imprisonment, generally, see  § 35.

Footnote 70. Richardson v Dybedahl, 14 SD 126, 84 NW 486, later proceeding 17 SD 629, 98 NW 164; Plancich v Williamson, 57 Wash 2d 367, 357 P2d 693.

Even if there is a delay caused by the arresting officer in bringing the plaintiff before a magistrate, the person who caused the officer to arrest the arrested person is not responsible for the delay, unless it is shown that he has advised or directed the arresting officer as to what course he should follow.  Mullins v Sanders, 189 Va 624, 54 SE2d 116.

Footnote 71. Vahlsing v Commercial Union Ins. Co. (CA1 Mass) 928 F2d 486, 21 BCD 796, CCH Bankr L Rptr ¶ 73872.

When process is issued by a clerk of court, rather than by a judicial officer whose actions come within special rules of immunity, 72   the clerk is not entitled to the immunity of a judicial officer. 73   However, the clerk is not liable for issuing under order of the court a warrant of commitment which is valid on its face. 74   

The actions of a mayor in swearing out a complaint are not part of a judicial function and thus not cloaked in judicial immunity, particularly where there is no examination of the complaint and accompanying arrest warrant by an independent magistrate rather than by the mayor sitting as a magistrate. 75   

Footnote 72.  §§ 98 et seq.

Footnote 73. Stine v Shuttle, 134 Ind App 67, 186 NE2d 168 (ovrld on other grounds as stated in Seymour Nat'l Bank v State (Ind App) 384 NE2d 1177) (city clerk acting as clerk of city court).

Footnote 74. Ussery v Haynes, 344 Mo 530, 127 SW2d 410; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 75. Thomas v Sams (CA5 Tex) 734 F2d 185, reh den (CA5 Tex) 741 F2d 783, cert den  472 US 1017,  87 L Ed 2d 612,  105 S Ct 3476.

It is generally held that if an officer makes an arrest without a warrant solely at the request or instigation of a private citizen, the authority of the officer does not protect the citizen and the liability of the latter is determined as though he or she had personally effected the arrest. 76   Accordingly, a private citizen at whose request, direction, or command a police officer makes an arrest without a warrant is liable if the arrest turns out to be unlawful, 77  irrespective of whether the officer is liable. 78   On the other hand, it is sometimes held that if an officer makes an arrest within the officer's own authority to arrest without a warrant, as, for example, for an offense committed in the officer's presence, the private citizen is not liable for inducing the officer to make it. 79   Obviously, if the arrest without a warrant is not justifiable on the part of the police officer, it is not justifiable on the part of the citizen who requests the arrest, and the latter is liable therefor. 80  

At the same time, however, there is a strong policy consideration in favor of insulating from liability citizen witnesses who act responsibly in assisting law enforcement personnel in criminal investigations, where the citizens' actions are reasonably justified by the surrounding circumstances. 81   For that reason, enlisting police aid does not automatically create a conspiracy as to an unlawful detention, 82  nor is a citizen informant rendered liable for the instigation of a false imprisonment merely by stating the facts to an officer, leaving it to the officer as to how to proceed. 83   Before a person may be found liable for causing false imprisonment through false arrest, that person must have personally and actively participated therein directly or by indirect procurement. 84

Footnote 76. Porter v Granich, 136 Cal App 523, 29 P2d 220; Hill v Henry, 90 Ga App 93, 82 SE2d 35; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Robinson v Van Auken, 190 Mass 161, 76 NE 601; Winegar v Chicago, B. & Q. R. Co. (Mo App) 163 SW2d 357.

An arrest by an officer caused or procured by a private person is the same as an arrest by the private person.  Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613.

Annotation: False imprisonment:  liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer,  98 ALR3d 542.

False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 77. Grimes v Greenblatt, 47 Colo 495, 107 P 1111; Fox v McCurnin, 205 Iowa 752, 218 NW 499; Pearson v Great Southern Lumber Co., 134 La 117, 63 So 759; McDermott v W. T. Grant Co., 313 Mass 736, 49 NE2d 115; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428.

If the defendant is the motivating power behind the plaintiff's unlawful arrest and incarceration, he is as liable as if he had actually made the arrest himself.  Pixton v Dunn, 120 Utah 658, 238 P2d 408.

Forms: Instruction to jury–what constitutes direction or instigation by private person for arrest made by officer.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  56.

–Instruction to jury as to liability of private person directing or instigating arrest or imprisonment.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  57.

Footnote 78. Wood v Lehne, 30 Cal App 2d 222, 85 P2d 910.

One who actively instigates or procures an arrest, without lawful process, is generally regarded as the principal for whom the officer acts, and he may be liable to respond in damages although the officer making the arrest is protected.  Webb v Prince, 62 Ga App 749, 9 SE2d 675; Leve v Putting (Mo App) 196 SW 1060.

Footnote 79. Van v Pacific Coast Co. (CC Wash) 120 F 699; Gambill v Cannon, 165 Ala 570, 51 So 755; Haggard v First Nat'l Bank, 72 ND 434, 8 NW2d 5.

Footnote 80. Robinson v Van Auken, 190 Mass 161, 76 NE 601.

Footnote 81. Williams v Adams (CA5 La) 836 F2d 958, reh den, en banc (CA5 La) 844 F2d 788.

Footnote 82. Kay v New Hampshire Democratic Party (CA1 NH) 821 F2d 31.

Footnote 83. Rustici v Weidemeyer (Mo) 673 SW2d 762.

The mere giving of information by affidavit to an officer acting within his or her jurisdiction does not create liability in the informant for false imprisonment for an arrest procured on that information.  Headrick v Wal-Mart Stores, Inc., 293 Ark 433, 738 SW2d 418.

Footnote 84. Pokorny v First Federal Sav. & Loan Asso. (Fla) 382 So 2d 678; Godines v First Guaranty Sav. & Loan Asso. (Miss) 525 So 2d 1321.

The determination of what constitutes direction or instigation sufficient to impose liability on a private citizen for a wrongful arrest made by an officer, within the rule imposing liability on a citizen at whose request or instigation an arrest is made without a warrant, 85   depends on the facts of each case. 86   Instigation consists of words or acts which direct, request, invite or encourage the false arrest or imprisonment. 87   A person may be found to have instigated an arrest, even though there is no evidence that he or she expressly requested or demanded it, where the facts surrounding an arrest create a permissible inference of instigation. 88    However, in the absence of an express request for the detention of another, a private citizen will not be found to have instigated an arrest where his or her actions were reasonable in light of the facts known or readily available at the time. 89   The issue is for the jury. 90

It is not necessary, to impose liability, that the defendant expressly direct the arrest, 91  nor is it necessary that the defendant be present when the arrest is actually made. 92   However, the individual must take some active part in bringing about the arrest; 93  that is, there must be some affirmative act on the defendant's part which induces the officer to make the arrest. 94    Liability will not be found where the private citizen neither encourages nor commands the police to make the arrest and there is no suggestion of malice or bad faith on the part of the citizen. 95   The arrest by the officer must be so induced or instigated by the defendant that the act of arrest is made by the officer, not of his or her own volition, but to carry out the request of the defendant. 96   Merely summoning or calling on an officer for protection against a disturbance or trespass or to keep the peace, 97  or to deal with a person accused of crime, 98   is not sufficient participation to impose liability, as a general rule.  Also, no liability is incurred if a person merely gives information to an officer tending to show that a crime has been committed; 99     this is so even if the information purports to show that the person later falsely arrested is the one who committed the alleged crime, 1  and even if the informer acts maliciously and without probable cause. 2    A private citizen is not liable for a false arrest where such person acts solely to assist a peace officer in charge of an investigation of a past offense, 3  or does nothing to effect the arrest or imprisonment except to accompany an officer to identify one suspected of an offense, 4   even where the identification may have been the principal cause of the wrongful arrest. 5   Similarly, the mere identification of goods suspected to have been stolen, at least if made in good faith and on probable cause, will not render a person liable for a resulting arrest without warrant by an officer. 6   

On the other hand, while the mere giving of inaccurate information is not a basis for liability, 7  a private citizen who knowingly conveys false information to the police may be held liable for a subsequent false arrest. 8  

Footnote 85.  § 40.

Footnote 86. (Blue) Star Service, Inc. v McCurdy, 36 Tenn App 1, 251 SW2d 139.

Forms: –Instructions to jury on what constitutes direction or instigation by private person for arrest made by officer.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  56.

Footnote 87. Godines v First Guaranty Sav. & Loan Asso. (Miss) 525 So 2d 1321 (instigation is the equivalent of saying "Officer, arrest that man.").

Footnote 88. Deadman v Valley Nat'l Bank (App) 154 Ariz 452, 743 P2d 961.

The fact that defendant instigated a false arrest may be shown by circumstantial evidence.  Knupp v Esslinger (Mo App) 363 SW2d 210.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 89. Deadman v Valley Nat'l Bank (App) 154 Ariz 452, 743 P2d 961.

Footnote 90. Hales v McCrory-McLellan Corp., 260 NC 568, 133 SE2d 225 (whether corporate operator of variety store and its agents and servants either actually or by procurement caused plaintiff to be falsely imprisoned and accused of shoplifting was for jury, and if plaintiff was under unlawful arrest, not only individual defendants but their principal might be held civilly liable).

Footnote 91. Webb v Prince, 62 Ga App 749, 9 SE2d 675; Knupp v Esslinger (Mo App) 363 SW2d 210; McAleer v Good, 216 Pa 473, 65 A 934.

Footnote 92. Wood v Lehne, 30 Cal App 2d 222, 85 P2d 910; (Blue) Star Service, Inc. v McCurdy, 36 Tenn App 1, 251 SW2d 139.

Footnote 93. Burke v New York, N. H. & H. R. Co. (CA2 NY) 267 F2d 894; Hughes v Oreb, 36 Cal 2d 854, 228 P2d 550; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; McDermott v W. T. Grant Co., 313 Mass 736, 49 NE2d 115; Sunshine Jr. Food Stores, Inc. v Aultman (Miss) 546 So 2d 659; Davis v Weil Clothing Co. (Mo App) 367 SW2d 19; Edgar v Omaha Public Power Dist., 166 Neb 452, 89 NW2d 238; Aiken v Shell Oil Co., 219 Or 523, 348 P2d 51.

Railroad was liable for false arrest where its servant actively participated in apprehension of plaintiff.  Burke v New York, N. H. & H. R. Co. (CA2 NY) 267 F2d 894 (applying Connecticut law).

Bus company was liable where its driver instigated false arrest of passenger.  Williams v Carolina Coach Co. (DC Va) 111 F Supp 329, affd (CA4 Va) 207 F2d 408.

A person who told police that plaintiff had poisoned a baby, and accompanied officers to apprehend and identify plaintiff, was liable for false imprisonment where he had no knowledge that a crime had been committed and acted solely on suspicion.  Howard v Burton, 338 Mich 178, 61 NW2d 77.

Administrator who filed affidavit in probate court stating that plaintiff had wrongfully concealed property was not liable for plaintiff's subsequent false arrest where administrator was not present and had no knowledge of issuance of commitment on which plaintiff was arrested and had nothing to do with arrest or false imprisonment.  Zeitinger v Mitchell (Mo) 244 SW2d 91.

In action for false arrest, plaintiff must show that defendant instigated, assisted in, directed, countenanced, or encouraged arrest in order to make submissible case.  Checkeye v John Bettendorf Market, Inc. (Mo App) 257 SW2d 202.

Footnote 94. Palmentere v Campbell (CA8 Mo) 344 F2d 234; Zwickert v Brooklyn H. R. Co., 127 App Div 304, 111 NYS 480.

Drug center was liable for false arrest of alleged shoplifter accomplished by police officers without warrant, where assistant managers called police and police officers took custody of alleged shoplifter, since when person points out another as perpetrator of crime and requests or directs police officers to arrest him, such person making request or direction is liable for subsequent false imprisonment even though he acted on good faith.  Reicheneder v Skaggs Drug Center (CA5 Tex) 421 F2d 307.

A county plumbing inspector who reported to the state's attorney's office that an individual had performed plumbing work without the necessary permits was not liable for false imprisonment, where the inspector did not actually detain the plumber or directly procure his arrest, but merely acted in his official capacity and carried out his legal duties.  Hudson v Dykes (Fla App D1) 402 So 2d 491.

Evidence was sufficient for jury to find that corporation in investigating money theft instigated ex-employee's arrest and detention, where corporation store supervisor told ex-employee to come to drive-in to pick up nonexistent check as pretext to having him present where he could be arrested, and arranged for police to be there, and ex-employee was taken to police headquarters and confined there overnight without charge being lodged afterward, and police told ex-employee that corporation area manager had him picked up for questioning.  Gerald v Caterers, Inc. (Mo App) 382 SW2d 740.

A cause of action for false imprisonment cannot be based upon a mere negation or failure to speak or act, but can only be based upon some affirmative act instigating thereto.  Richardson v Empire Trust Co., 230 Mo App 580, 94 SW2d 966.

Evidence that defendant's attorney instructed detectives to arrest plaintiff some time before plaintiff was taken into custody established that defendant caused arrest, and created presumption that arrest was unlawful; defendant's proof failed to rebut presumption by showing justification for arrest.  Cicurel v Mollet (1st Dept)  1 App Div 2d 239, 149 NYS2d 397, affd  1 NY2d 797, 153 NYS2d 60, 135 NE2d 594 (apparently involving arrest without warrant).

Where plaintiff's roommate gave police a pill which she had found in her apartment and indicated that she thought plaintiff was on drugs, and officer, without conducting a conclusive laboratory test for presence of amphetamine and without knowing whether the pill in fact belonged to plaintiff, made a warrantless arrest of plaintiff, roommate was liable for false imprisonment.  McGillivray v Siedschlaw (SD) 278 NW2d 796.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 95. Dixie Beer Co. v Boyett, 158 Ga App 622, 281 SE2d 356.

To accuse another of committing a crime, however slanderous it may be, is not enough to sustain a claim of false arrest, so long as the decision whether to make the arrest remains with the police officer and is without the persuasion or influence of the accuser. Vessels v District of Columbia (Dist Col App) 531 A2d 1016.

There was no liability where store manager summoned the police when former employee refused to leave store, but the manager did not direct the employee's arrest or request the arrest; that decision was left to the uncontrolled discretion of the officer. Arrowsmith v Williams, 174 Ga App 690, 331 SE2d 30.

Footnote 96. Grinnell v Weston, 95 App Div 454, 88 NYS 781.

That arrest was made by police at request of defendant (with result that defendant was liable for false arrest) was shown by defendant's admission that she said to plaintiff, at police station, that she would not press charges against him if he would give back jewels which she alleged he had stolen.  Davis v Nadell (Sup) 138 NYS2d 50.

Defendant could be held liable for a false arrest and imprisonment of plaintiff even though a police officer actually made the arrest where there was plenary evidence that the officer arrested plaintiff at defendant's "request, direction, or command." Blackwood v Cates, 297 NC 163, 254 SE2d 7.

So long as the officer acts on his own volition, the informer is not liable; but if the officer acts under the direction or indirect request of the informer, the informer will be held liable. (Blue) Star Service, Inc. v McCurdy, 36 Tenn App 1, 251 SW2d 139.

Footnote 97. Crescent Amusement Co. v Scott, 34 Ala App 335, 40 So 2d 882, cert den 252 Ala 296, 40 So 2d 886; Frickstad v Medcraft, 100 Cal App 188, 279 P 840; Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531; Heitcamp v Willis, 139 La 745, 72 So 216; Lenaz v Conway, 234 Miss 231, 105 So 2d 762; Calloway v Fogel, 358 Mo 47, 213 SW2d 405; Lemel v Smith, 64 Nev 545, 187 P2d 169; Yoder v Yoder, 239 Pa 12, 86 A 523.

Bank official's request for police help was not sufficient to show instigation of arrest.  Curry v Giant Food Co. (Dist Col App) 522 A2d 1283.

Merely telephoning the police that a holdup is taking place is not such a participation in the resulting arrest as to make liable the employer of the one who telephones, even though the employee knew that the holdup was not genuine.  El Paso E. R. Co. v Crews (Tex Civ App) 277 SW 732, writ dism w o j.

An opera association and its president were not liable for the arrest of a man gathering signatures on a petition outside the opera house where the opera association representative at the scene had merely reported to police that the man was causing a disturbance and had refused to move, leaving it to the police to determine how to respond, and where there was no evidence that the representative suggested or approved of the arrest or even knew of it until after it had occurred.  McCord v Tielsch, 14 Wash App 564, 544 P2d 56.

An action for false imprisonment and abuse of process will not lie against a private defendant whose employees do no more than request police assistance and protection against a disturbance or trespass where the responding police officer, acting on his own observation and independent of any representation or information received from the dispatcher or from the defendant's employees, decided to have the plaintiff temporarily detained and confined in the mental health section of a hospital for examination or observation, under authority of the emergency provisions of a statute.  Harris v Kelly,  63 Wis 2d 664, 218 NW2d 360.

Annotation: False imprisonment:  liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer,  98 ALR3d 542.

Footnote 98. Dodson v Solomon, 134 Fla 284, 183 So 825; Shinglemeyer v Wright, 124 Mich 230, 82 NW 887; Hoock v S. S. Kresge Co. (Mo) 230 SW2d 758.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 99. Burke v New York, N. H. & H. R. Co. (CA2 NY) 267 F2d 894 (applying Connecticut law); Charles Stores Co. v O'Quinn (CA4 NC) 178 F2d 372; Butler v Goldblatt Bros., Inc. (ND Ill) 432 F Supp 1122 (applying Illinois law); Peterson v Robison, 43 Cal 2d 690, 277 P2d 19; Webb v Prince, 62 Ga App 749, 9 SE2d 675; Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531; Davis v Weil Clothing Co. (Mo App) 367 SW2d 19; Edgar v Omaha Public Power Dist., 166 Neb 452, 89 NW2d 238; Vickrey v Dunivan, 59 NM 90, 279 P2d 853; Francis v Taft Cleaners & Dyers, Inc., 281 App Div 893, 119 NYS2d 618, reh and app den 281 App Div 983, 121 NYS2d 259; Nicholson v Roop (ND) 62 NW2d 473,  43 ALR2d 1031; Harrison v Southland Corp. (Tex Civ App Dallas) 544 SW2d 692; Pixton v Dunn, 120 Utah 658, 238 P2d 408; McCord v Tielsch, 14 Wash App 564, 544 P2d 56.

Private persons calling and giving police officers information which was a principal cause of plaintiff's arrest and confinement on indecent exposure charge were not liable for false imprisonment, even though information was mistaken, where they acted in good faith.  Farnsworth v Cote (2nd Dist) 199 Cal App 2d 762, 19 Cal Rptr 45.

Wife's provision of information to law enforcement about ex-husband's whereabouts was not instigation so as to establish liability for false imporisonment; she had no part in directing that he be incarcerated or that he remain in jail.  Dozier v Dozier, 252 Kan 1035, 850 P2d 789.

If an automobile dealer, upon receiving a telephone inquiry from the police of a distant city as to whether a person professing to act as his agent has authority to sell a certain automobile, wrongly answers that the car has been stolen, the dealer is not, on that evidence alone, liable for a resulting arrest of the agent. Triangle Motors Co. v Smith, 216 Ky 479, 287 SW 914.

Store was not liable for false arrest of plaintiff on shoplifting charges where there was no evidence showing that manager deliberately gave false information to police.  Fletcher v High's Dairy Products Div. of Capital Milk Producers Co-Operative, Inc., 22 Md App 71, 321 A2d 821.

If the defendant was assaulted by the plaintiff and merely reported the matter to the police, who then made the arrest within their own responsibility, the defendant is not liable for false imprisonment though the arrest was made without a warrant. Mitchell v O'Hara, 165 Misc 630, 1 NYS2d 20.

False arrest requires a showing that the defendant encouraged, promoted, or instigated the arrest; a showing that the defendant merely gave information to the police is insufficient.  Garner v Texas Discount Gas Co. (Mo App) 723 SW2d 446.

Mere giving to the police of information about commission of a crime or accusing someone of its commission is not enough to show instigation for purposes of false imprisonment liability, so long as the giver of information leaves to the police the decision of what will be done about any arrest.  Nau v Sellman, 104 Nev 248, 757 P2d 358.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 1. Stueber v Admiral Corp. (CA7 Ill) 171 F2d 777, cert den  336 US 961,  93 L Ed 1113,  69 S Ct 891; Chesapeake & Potomac Tel. Co. v Lewis, 69 App DC 191, 99 F2d 424.

A judgment of nonsuit in an action against a private citizen for false imprisonment was proper where it appeared that defendant, from whose home about 100 silver dollars had been stolen, called the police and pointed out plaintiff as the person spending silver dollars at his bar, there being nothing to indicate that he gave any false information to the officers or that he took an active part in bringing about the arrest, which was without warrant. Hughes v Oreb, 36 Cal 2d 854, 228 P2d 550.

Footnote 2. Carr v National Discount Corp. (CA6 Mich) 172 F2d 899, cert den  338 US 817,  94 L Ed 495,  70 S Ct 59; United States Cast Iron Pipe & Foundry Co. v Henderson, 22 Ala App 448, 116 So 915, cert den 217 Ala 520, 116 So 917; Webb v Prince, 62 Ga App 749, 9 SE2d 675.

Footnote 3. Charles Stores Co. v O'Quinn (CA4 NC) 178 F2d 372; Standard Oil Co. v Davis, 208 Ala 565, 94 So 754, companion case 209 Ala 493, 96 So 629; Hughes v Oreb, 36 Cal 2d 854, 228 P2d 550; Scheurrmann v Vaccaro, 118 La 67, 42 So 648; Witham v Gregory & Read Co., 243 Mass 595, 137 NE 752; Clark v Whitaker (Mo App) 173 SW2d 586; Edgar v Omaha Public Power Dist., 166 Neb 452, 89 NW2d 238; Hamilton v California Co. (Tex Civ App) 103 SW2d 200, writ dism w o j; Buchholz v Glass,  180 Wis 527, 193 NW 392.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 4. Mackie v Ambassador Hotel & Inv. Corp., 123 Cal App 215, 11 P2d 3; Cope v Askins, 208 Ky 86, 270 SW 454; Zinkfein v W. T. Grant Co., 236 Mass 228, 128 NE 24; Gould v Skelly Oil Co. (Mo App) 50 SW2d 193; Meyer v Monnig Dry Goods Co. (Tex Civ App) 189 SW 80, writ ref.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 5. Turner v Mellon, 41 Cal 2d 45, 257 P2d 15; Edgar v Omaha Public Power Dist., 166 Neb 452, 89 NW2d 238; Stearns v New York City Transit Authority,  24 Misc 2d 216, 200 NYS2d 272, affd (1st Dept)  12 App Div 2d 451, 209 NYS2d 264; Schnaufer v Price (Tex Civ App) 124 SW2d 940, writ ref.

Bus driver's good-faith mistaken identification of plaintiff as person who had assaulted him and broken window on bus one week earlier did not cast him in personal liability, where trial court found that defendant did not physically or verbally attempt to detain or threaten plaintiff until arrival of police and impliedly found that it was solely police officers who decided to make arrest.  Armstead v Escobedo (CA5 Tex) 488 F2d 509 (applying Texas law).

Where defendant's employee thought she saw handle of pistol protruding from plaintiff's pocket while plaintiff was in store acting in manner that aroused employee's suspicion, employee left store to call police, and employee accompanied police and identified plaintiff, defendant was not guilty of false imprisonment.  Moon v Sperry & Hutchinson Co., 250 Ark 453, 465 SW2d 330.

Nonsuit was proper where defendant's identification of plaintiff to police as the man who robbed him was without malice and resulted from honest mistake, even though made on basis of plaintiff's clothing and size alone, and defendant did not inform arresting officers of that fact.  Cole v Johnson (1st Dist) 197 Cal App 2d 788, 17 Cal Rptr 664.

Persons who mistakenly identified plaintiff, a hospital orderly, as individual responsible for taking hospital patient's money, were not liable for false arrest.  Smith v District of Columbia (Dist Col App) 399 A2d 213.

However, bail bondsman who improperly identified plaintiff as person he had bonded, which positive identification resulted in imprisonment of plaintiff on bench warrant, was liable for false imprisonment, even though there was no proof of malice, where bondsman did not know for fact that plaintiff was man who had failed to appear, where he had no personal knowledge of plaintiff's identity, and where, despite plaintiff's claim that he had been mistakenly identified for other defendant with similar name, bonding agency took no steps to verify its identification of him. Fontenot v Lavergne (La App 3d Cir) 365 So 2d 1168.

Defendant's identification of plaintiff as man who passed bogus check at store of defendant's employer amounted only to giving of information to police officer, who had requested defendant to come to police station for such purpose and who subsequently made arrest on own initiative and judgment, and, in absence of evidence that defendant urged, advised, or approved arrest, defendant did not "direct, countenance, encourage or instigate" arrest so as to render him liable for false imprisonment.  Davis v Weil Clothing Co. (Mo App) 367 SW2d 19.

Defendant who mistakenly identified plaintiff to police as the person who attempted to rob him was not liable for false arrest and imprisonment where the arrest was by the police and the plaintiff acted reasonably and with probable cause under the existing facts. Barnes v Bollhorst (Sup) 225 NYS2d 286.

Footnote 6. Raphaer v Leader (DC Ga) 203 F 184; Klemm v Adair, 189 Iowa 896, 179 NW 51; State ex rel. Fireman's Fund Ins. Co. v Trimble, 294 Mo 615, 242 SW 934.

However, where television salesman said that he could determine if television set was a stolen set if it were taken to police station, and nodded his head when police officer said that plaintiff, in whose home set was, would have to go to police station, salesman was liable.  See Heinold v Muntz T. V., Inc. (Mo) 262 SW2d 32 (holding salesman's employer not liable, since arrest was not within scope of salesman's authority).

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 7. Halbert v City of Sherman (CA5 Tex) 33 F3d 526; Schroeder v Lufthansa German Airlines (CA7 Ill) 875 F2d 613.

Footnote 8. See Jensen v Barnett, 178 Neb 429, 134 NW2d 53 (hotelkeepers were liable in damages for false arrest and imprisonment of guest, where desk clerk knowingly conveyed to police officer false information that guest had committed breach of peace and false information was determining factor in officer's decision to make arrest).

Private person may incur liability for false imprisonment where such person knowingly gives false information to an arresting officer.  K-Mart Corp. v Salmon, 76 Md App 568, 547 A2d 1069, cert den 314 Md 496, 551 A2d 867.

Knowingly giving false information to a police officer may constitute an attempt to influence the officer's decision as to whether to make an arrest and may be sufficient to constitute instigation of a false arrest.  Godines v First Guaranty Sav. & Loan Asso. (Miss) 525 So 2d 1321.

Employer's unsupported statements about ex-employee's alleged possession of stolen gun, procuring employee's arrest despite employer's knowledge that gun was in the possession of another employee, constituted a submissible case for employer's instigation of the employee's false arrest.  Day v Wells Fargo Guard Service Co. (Mo) 711 SW2d 503.

Annotation: False imprisonment:  liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer,  98 ALR3d 542

In many jurisdictions, the failure of a citizen to assist a known police officer in making an arrest, when requested to do so, is a statutory offense. 9   Consequently, it is frequently held that whoever in good faith renders assistance and obeys the directions of a known public officer in response to a call for assistance is not liable for false arrest or imprisonment, although the officer may be acting unlawfully and may thus be personally liable. 10   According to this view a private citizen can respond to the call of a known officer without first determining the lawfulness of the officer's conduct. 11   This protection is accorded on the theory that the necessity for immediate action precludes inquiry and that if the citizen were obliged to make inquiry, the purpose of the statute authorizing officers to call private citizens to their assistance would be largely frustrated. 12    Moreover, it is said, it would be inequitable to impose liability on a citizen for conduct the citizen is under a legal obligation to perform. 13

However, a citizen is liable when summoned to assist an officer in making an arrest, if the citizen acts wantonly or beyond what is required. 14    Also, there is some authority indicating that a citizen is not protected if the citizen had affirmative knowledge of the illegality of an arrest. 15 

Footnote 9. Peterson v Robison, 43 Cal 2d 690, 277 P2d 19; Babington v Yellow Taxi Corp., 250 NY 14, 164 NE 726,  61 ALR 1354; Mitchell v Industrial Com. of Ohio (Delaware Co) 57 Ohio App 319, 10 Ohio Ops 503, 26 Ohio L Abs 102, 13 NE2d 736, motion overr; Moyer v Meier, 205 Okla 405, 238 P2d 338,  29 ALR2d 818; West Salem v Industrial Com. of Wisconsin,  162 Wis 57, 155 NW 929.

Footnote 10. Peterson v Robison, 43 Cal 2d 690, 277 P2d 19; Grau v Forge, 183 Ky 521, 209 SW 369,  3 ALR 642; Firestone v Rice, 71 Mich 377, 38 NW 885; Jefferson v Yazoo & M. V. R. R. Co., 194 Miss 729, 11 So 2d 442; Moore v State, 200 NC 300, 156 SE 806; Moyer v Meier, 205 Okla 405, 238 P2d 338,  29 ALR2d 818; Kearley v Cowan, 217 Ala 295, 116 So 145.

Annotation: Liability, for false imprisonment or arrest, of a private person answering call of known or asserted peace or police officer to assist in making arrest which turns out to be unlawful,  29 ALR2d 825 § 2.

Forms: Answer–defense–assistance rendered pursuant to command of officer.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  55.

Footnote 11. Cincinnati, N. O. & T. P. R. Co. v Cundiff, 166 Ky 594, 179 SW 615; State v Bertchey, 77 NJL 640, 73 A 524.

Forms: Instructions to jury on liability of person participating with officer in arrest or imprisonment.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  58.

Footnote 12. Moyer v Meier, 205 Okla 405, 238 P2d 338,  29 ALR2d 818.

Footnote 13. Presley v Ft. Worth & D. C. R. Co. (Tex Civ App) 145 SW 669.

Footnote 14. Moyer v Meier, 205 Okla 405, 238 P2d 338,  29 ALR2d 818.

A private person summoned by an officer to assist in an arrest is authorized to use such force as to him reasonably appears necessary to accomplish the arrest, even though the acts of the officer are without authority.  Smith v State, 139 Tex Crim 355, 140 SW2d 452.

Footnote 15. Jefferson v Yazoo & M. V. R. R. Co., 194 Miss 729, 11 So 2d 442.

Annotation: Liability, for false imprisonment or arrest, of a private person answering call of known or asserted peace or police officer to assist in making arrest which turns out to be unlawful,  29 ALR2d 825 § 6.

Since a person on whose complaint an arrest is made is usually a layman, not familiar with and not pretending to determine the legal procedure to be taken, it has been said to be unjust to hold such a person guilty of any tort if he or she merely makes to a magistrate an honest statement of the facts, and leaves it to the officers of the law to take such action as they deem proper; and under such circumstances many courts have held the complainant not liable. 16   If the facts supporting an arrest are placed before an independent intermediary, such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party. 17   It is frequently held or recognized that a person making a complaint before a magistrate having general jurisdiction over the subject matter of a criminal prosecution is not, merely because of that act, liable for false imprisonment, although the complaint is insufficient to charge the commission of a crime. 18   

Footnote 16. Gogue v MacDonald, 35 Cal 2d 482, 218 P2d 542,  21 ALR2d 639; Rush v Buckley, 100 Me 322, 61 A 774; Smith v Clark, 37 Utah 116, 106 P 653.

Officer of corporation in connection with the forgery of whose checks plaintiff was arrested was not liable for false imprisonment when he signed complaint at time when he knew (1) that corporation's checks were missing; (2) that person who had cashed such a check told police plaintiff had given it to him; (3) that, in opinion of himself and detective, plaintiff's signature was similar to that on forged check:  and (4) that prosecuting attorney recommended arrest.  Gooch v Wachowiak, 352 Mich 347, 89 NW2d 496.

Defendant was not liable for false arrest on warrant issued by magistrate where he disclosed all facts to magistrate, and signed complaint on the magistrate's advice, and magistrate was responsible for arrest.  J. C. Penney Co. v Reynolds (Tex Civ App El Paso) 329 SW2d 104, writ ref n r e (Apr 13, 1960).

As to defense to false imprisonment based upon issuance of legal process, see  § 87.

Footnote 17. Taylor v Gregg (CA5 Tex) 36 F3d 453, reh den (CA5 Tex) 1994 US App LEXIS 36112.

Footnote 18. Gogue v MacDonald, 35 Cal 2d 482, 218 P2d 542,  21 ALR2d 639; Rush v Buckley, 100 Me 322, 61 A 774; Doty v Hurd, 124 Mich 671, 83 NW 632; Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1; Van Buren v Ford, 189 Misc 352, 71 NYS2d 551; Whaley v Lawton, 62 SC 91, 40 SE 128; Smith v Jones, 16 SD 337, 92 NW 1084; Smith v Clark, 37 Utah 116, 106 P 653.

If the arrest of the plaintiff was upon a valid indictment but under a warrant void because not properly descriptive of the offense, and the defendant who instigated the prosecution in no way directed or influenced the court in issuing the void warrant, or with knowledge of its defects participated in the arrest under it, the defendant is not liable for the plaintiff's false imprisonment. Morgan v Baird, 219 Ala 225, 121 So 526.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

In suits against persons other than examining physicians, 19   recovery has been allowed in some cases against those who filed an insanity complaint or in some other manner directly initiated insanity proceedings against the plaintiff, 20  or at least such cases have been allowed to proceed past the summary judgment stage; 21  in other cases, however, relief has been denied. 22   

Footnote 19. As to immunity or liability of examining physicians, see  § 142.

Footnote 20. Burton v Llano Del Rio Co., 177 La 366, 148 So 259; O'Rourke v O'Rourke (La App, Orleans) 69 So 2d 567, amd on other grounds 227 La 262, 79 So 2d 87; Boesch v Kick, 98 NJL 183, 119 A 1,  25 ALR 1516; Sheean v Holman, 6 NJ Misc 346, 141 A 170.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523 § 7[a].

Footnote 21. Wagenmann v Adams (CA1 Mass) 829 F2d 196 (action against police officers and others who participated in an allegedly pretextual arrest and emergency psychiatric detention); Welch v County of Westchester (2d Dept)  150 App Div 2d 371, 540 NYS2d 820 (county was not entitled to summary judgment, since county did not establish compliance with all necessary provisions of state mental health law).

Footnote 22. Baer v Smith, 68 Cal App 2d 716, 157 P2d 646; Dougherty v Snyder, 97 Mo App 495, 71 SW 463.

The following cases exonerate treatment staff and others not directly involved in the original arrest or detention itself from liability on a false imprisonment claim, on the basis of reasonableness of decision-making based upon the detainee's need for protection or treatment, or on the basis of some other ground, such as the efficacy of consent or substituted consent:  McKinney v George (CA7 Ill) 726 F2d 1183 (nurse and ward supervisor); Radcliff v County of Harrison (Ind) 627 NE2d 1305 (county commissioners); Day v Providence Hosp. (Ala) 622 So 2d 1273, reh den, without op (Ala) 1993 Ala LEXIS 986 (physician and hospital); Lolley v Charter Woods Hosp., Inc. (Ala) 572 So 2d 1223 (physician and hospital); Reiser v Prunty, 224 Mont 1, 727 P2d 538 (physician and hospital; no violation found in decision to retain patient in hospital over election day; nor was this decision an unlawful restriction of the patient's right to vote, inasmuch as the patient was the subject of a lawful detention).

For other cases rejecting liability against defendants who initiated insanity proceedings, decided on the ground that a false imprisonment suit cannot be based on a commitment authorized by apparently valid process issued by a court having jurisdiction, see the following cases:  Rosvall v Provost, 279 Minn 119, 155 NW2d 900; Guzy v Guzy,  16 Misc 2d 975, 184 NYS2d 161, affd (2d Dept)  11 App Div 2d 1047, 206 NYS2d 355; Fowle v Fowle, 263 NC 724, 140 SE2d 398.

A welfare commissioner was held not liable in a false imprisonment suit for making a petition to commit the plaintiff to a state hospital for the insane, inBridgeman v Andrus, 247 App Div 922, 287 NYS 532, where the plaintiff was given notice of the petition, a hearing was held, two doctors certified that he was insane, and there was no contention that the order of commitment itself was unlawful or unauthorized.

In Pendleton v Burkhalter (Tex Civ App Houston (1st Dist)) 432 SW2d 724, writ ref n r e (Jan 8, 1969), the court said that it found no allegation of false imprisonment in a petition stating that the executive secretary for the medical staff of a hospital, acting under the supervision and direction, and as an employee, of various individual defendants who were physicians connected with the hospital, including one of the two principal stockholders in the hospital corporation, filed a sworn lunacy complaint which resulted in the issuance of an order by a justice of the peace committing the plaintiff's decedent, also a physician and the other principal stockholder in the hospital, to the mental ward of another hospital for examination and treatment.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523 § 7[b].

The cases are split over the liability of persons who participate in the actual arrest or confinement of the plaintiff as an allegedly mentally ill person, 23   and persons sought to be held liable because of other acts or omissions in connection with insanity proceedings. 24       

The immunity from civil or criminal penalties provided by a mental health statute, to any person who acts in good faith to assist in the apprehension or taking into protective custody and examination of a patient, has been held to preclude civil liability for false imprisonment on the part of private citizens instituting proceedings for commitment of a neighbor, where it is found that they acted in good faith and without malice pursuant to legal process. 25  

Liability will not be extended to persons who have no part in the allegedly unlawful commitment. 26

Footnote 23. In Ingo v Koch (CA2 NY) 127 F2d 667, the court, although reversing judgment for the plaintiff in a false imprisonment suit and remanding for a new trial on a question concerning the choice between two New York statutes of limitations, held that there was evidence sufficient to justify a jury in believing that certain police and jail officials who carried out the arrest and imprisonment of the plaintiff for assault, and then had her transferred to a hospital for treatment of her "paranoid state," were actuated by personal ill will and malice directed against her because of her previously filed suit against a police lieutenant and her charges in that suit of corruption by him and another city official.  The court pointed out that the sheriff who made the arrest violated the terms of the bench warrant authorizing the arrest, and that the certificate under which the plaintiff was transferred from jail to a hospital for treatment was signed only by the acting jail physician and not by the warden, contrary to a statutory requirement.  Also supporting the liability of the defendant, and tending to show his bad faith, said the court, was an application form, prepared by the district attorney for presentation to the county judge, seeking the plaintiff's removal from the jail to the hospital because of unsound mental condition.  While the particular form was not used, said the court, it is significant that it was dated the day before her arrest.

Officers' actions in taking detainee into custody and transporting him to mental hospital on an emergency basis were supported by probable cause, based on numerous citizen complaints that detainee was running through halls of a residential building, brandishing knives.  McKinney v George (CA7 Ill) 726 F2d 1183.

On the other hand, the following cases rejected liability against a defendant who allegedly participated in the actual arrest or confinement of the plaintiff, on the ground that a false imprisonment suit cannot be based on a commitment authorized by apparently valid process, issued by a court having jurisdiction, and lawfully executed:  Savage v Boies, 77 Ariz 355, 272 P2d 349; Smith v Fish, 182 Ark 115, 30 SW2d 223; Rosvall v Provost, 279 Minn 119, 155 NW2d 900; Dedrick v Durham, 136 Wash 265, 239 P 385.

The sheriff's actions in implementing an emergency detention order specifying that the detainee was mentally ill and dangerous were reasonable and the sheriff was entitled to immunity under the "good faith" provisions of state statute; in the absence of a hospital bed immediately available for the detainee, the sheriff made reasonable provisions for the detainee's care and protection until the bed became available and the sheriff could carry out the order.  Radcliff v County of Harrison (Ind) 627 NE2d 1305.

See also Boesch v Kick, 98 NJL 183, 119 A 1,  25 ALR 1516, where the court sustained liability for false imprisonment against a defendant who, among other things, induced the plaintiff to go with him to an insane asylum by means of a false statement, and caused her to be imprisoned there by an officer of the asylum.

Footnote 24. See Fish v Regents of University of Cal. (1st Dist) 246 Cal App 2d 327, 54 Cal Rptr 656 (a general surgeon who apparently reported that a telephone call represented a threat against him, which led to the detention of the caller for mental examination, was held not liable for false imprisonment).

On the other hand, an allegation by a plaintiff who had been held in custody at a state hospital to the effect that he was never served with any order of detention or petition for examination was held to raise a triable issue of fact and to bar the sustaining of a general demurrer in a false imprisonment action against the county whose sheriff should have made such service, inCulbertson v County of Santa Clara (1st Dist) 261 Cal App 2d 274, 67 Cal Rptr 752.

See also Morris v Nowotny (Tex Civ App Austin) 323 SW2d 301, writ ref n r e (Jun 10, 1959) and rehg of writ of error overr (Jul 8, 1959) and cert den  361 US 889,  4 L Ed 2d 124,  80 S Ct 164, reh den  361 US 921,  4 L Ed 2d 189,  80 S Ct 264, where two university deans were held not liable for, inter alia, false arrest and false imprisonment in a suit that involved a temporary commitment to a state hospital for mental observation, although the allegations of the plaintiff as to the deans did not refer to the hospital commitment but primarily to a prior imprisonment in jail and other matters not related to the hospital confinement.

Footnote 25. Humphrey v Feazel (La App 2d Cir) 367 So 2d 897, cert den (La) 369 So 2d 1365; Patrich v Menorah Medical Center (Mo App) 636 SW2d 134.

Footnote 26. See Radcliff v County of Harrison (Ind) 627 NE2d 1305 (county commissioners who had no part in the detention of the patient are not liable in a subsequent action based upon the detention).

The state governor and mental health commissioner whose tenure in office commenced subsequent to the patient's commitment are not liable for any claimed deficiencies in that detention.  Temple v Marlborough Div. of Dist. Court Dep't, 395 Mass 117, 479 NE2d 137.

One who in good faith invokes the action of public officers on account of a violation of the criminal law is entitled to more liberal treatment than one who seeks to bring about an arrest for his private advantage by the use of civil process. 27  Civil arrest is often regarded as a drastic remedy, penal in nature, which is not looked on with favor by the courts and should be resorted to only where the right to it is clear.  Accordingly, statutes authorizing such arrests are usually strictly construed; one who invokes them must strictly follow their provisions. 28   Where the object in view is the protection or enforcement of a private right and a warrant is issued where none is authorized, and an arrest is made, the individual procuring it may be liable. 29   Liability may be based upon participation in the improper arrest 30  or subsequent adoption, or "ratification," of such arrest. 31  

Footnote 27. Teal v Fissel (CC Pa) 28 F 351; Lemmon v King, 95 Kan 524, 148 P 750; Gifford v Wiggins, 50 Minn 401, 52 NW 904.

Footnote 28. See 5 Am Jur 2d,  Arrest § 74.

Footnote 29. Teal v Fissel (CC Pa) 28 F 351.

Since the court issuing the body attachment sought by attorney on basis of child support obligor's nonappearance at a child support hearing was satisfied that the requesting attorney followed the correct procedure and submitted the appropriate materials, the attorney would be liable for false imprisonment only if it could be proved that the attorney actively misled or defrauded the issuing court; in the absence of any such showing, the obligor's action for false imprisonment and abuse of process was a statutory frivolous claim.  Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Forms: Complaint for procurement by civil litigant of illegal arrest. 10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  51.

Footnote 30. Pinkerton v Gilbert, 22 Ill App 568; Haglund v Burdick State Bank, 100 Kan 279, 164 P 167.

Footnote 31. Stuart v Chapman, 104 Me 17, 70 A 1069.

Annotation:  21 ALR2d 643.

In cases of arrest for contempt of court the defendant is not liable for an independent error of judgment or a mistaken exercise of discretion by the court, even though the order adjudging the plaintiff to be in contempt was later annulled on that ground. 32   Also, one who institutes proceedings is not liable for an error of the judge in ordering, in excess of jurisdiction, a party committed for contempt, if that party is properly before the court and a regular hearing is had on the issues. 33     However, imprisonment for contempt does result in liability for false imprisonment where that remedy is not authorized by law for the particular purpose. 34

Footnote 32. Fischer v Langbein, 103 NY 84, 8 NE 251.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 33. Terry v Wright, 9 Colo App 11, 47 P 905; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 34. Yahola v Whipple, 189 Okla 583, 118 P2d 395.

A jury question existed as to whether a contempt citation and subsequent arrest of a debtor, in a replevin action brought subsequent to the debtor's discharge in bankruptcy, was an attempt to collect a void money judgment rather than a permissible action to recover the property in question.  An attempt to collect on a void judgment could invoke liability for false imprisonment. Houghton v Foremost Financial Services Corp. (CA10 Okla) 724 F2d 112.

The general rule that all who take part or assist in the commission of a false imprisonment are joint tortfeasors 35  is applicable to jailers. 36   A jailer is liable for false imprisonment if the jailer knows or should know that an arrest was illegal and that there is no right to imprison the person arrested, whether the act is done officially or otherwise. 37   Liability for unlawful imprisonment may also be predicated on a jailer's unreasonable delay in taking the person arrested before a magistrate, 38   on the refusal of a jailer to permit the prisoner to secure his release on bail, 39  or on a policy of inaction or deliberate indifference resulting in incarceration of a detainee without arraignment for a period of time well beyond the statutory maximum. 40   Finally, a jailer may be found liable for retaining a prisoner in custody beyond the lawful date for parole. 41

A prisoner has no action against the imprisoning authority, however, where the continuing imprisonment is not unlawful, as where, for example, a prisoner's sentence is set aside but the conviction is upheld. 42

Footnote 35.  § 146.

Footnote 36. Oppenheimer v Los Angeles, 104 Cal App 2d 551, 232 P2d 30; Egleston v Scheibel, 113 App Div 798, 99 NYS 969.

Footnote 37. Abbott v Cooper, 218 Cal 425, 23 P2d 1027.

Officer in charge, by continuing imprisonment of persons unlawfully arrested by police officers, makes himself personally liable for the arrests.  Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278 (officer in charge of a police station who, against the will of persons who were unlawfully arrested and protested their innocence, continued the imprisonment); Price v Tehan, 84 Conn 164, 79 A 68 (officer who imposed unwarranted terms on release of persons unlawfully arrested).

Forms: Complaint against jailer for confinement without charge after arrest without warrant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  111.

Footnote 38.  § 29.

Footnote 39.  § 31.

Footnote 40. Oviatt v Pearce (CA9 Or) 954 F2d 1470, 92 CDOS 490, 92 Daily Journal DAR 723.

See also Lewis v O'Grady (CA7 Ill) 853 F2d 1366 (jailer's liability based upon delay in effectuating a prisoner's release from custody, after unavoidable administrative delays, beyond a reasonable period of time, as determined by a jury).

Footnote 41. Harwood v Johnson, 326 NC 231, 388 SE2d 439, reh den 326 NC 488, 392 SE2d 90.

Footnote 42. Moore v Zant, 264 Ga 536, 448 SE2d 695, 94 Fulton County D R 3255.

3.  Vicarious Liability [49-58]

The liability of a master or principal for the act of a servant or agent in causing a false arrest or imprisonment depends upon whether the master or  principal previously authorized the act, or subsequently ratified it, or whether the act was within the scope of the servant's or agent's employment. 43  In determining the scope of authority of the agent and the responsibility of the principal, liberality must be accorded the person falsely imprisoned. 44   It is well settled that a master or principal is liable for damages resulting from a false arrest or imprisonment caused or procured by a servant or agent while the latter was acting within the course and scope of employment. 45   Clearly the master or principal may be held liable where the subordinate had express authority to make or cause the arrest or imprisonment. 46   However, it is not necessary that authority be expressly conferred or specifically authorized.  As a general rule, it is sufficient if the agent's or servant's authority to cause the arrest can be implied from the nature of the relationship and the mode in which the agent or servant was permitted to act or conduct the principal's business. 47    Whatever is fairly implied by the authority given is within the scope of employment, and in such a case the master is deemed to have consented to and authorized the act, although the servant acted contrary to instructions. 48     The fact that an agent or servant, through lack of good judgment or proper discretion, or infirmity of temper, or under the influence of passion aroused by the circumstances, has gone beyond the strict line of duty or authority and inflicted unjustifiable injury upon another does not relieve the master from liability. 49   There is also some authority to the effect that a principal may be held liable in damages for false imprisonment under the doctrine of agency by estoppel. 50  

An employer will not be held liable for false imprisonment for the actions of an employee which are outside the scope of employment and not within the policy or practice of the employer. 51   Where the act of the servant or agent causing the arrest or imprisonment is not within the scope of the authority expressly or impliedly given for that purpose by the master, there is no liability on the part of the superior for the act of the subordinate, 52     in the absence of ratification. 53    Thus, where the agent or servant commits willful torts, not to protect the master's interests, but to gratify some spite or personal object, 54   or acts in the supposed public interest and not for the benefit of the master, 55   the master is not liable.

A city cannot be held liable under respondeat superior theory, 56  nor does such vicarious liability lie against a municipality on a respondeat superior theory in a § 1983 action. 57

The question of whether the agent was acting within the scope of employment in causing the lawful arrest is generally reserved for the jury. 58 

Footnote 43. Craven v Bloomingdale, 171 NY 439, 64 NE 169; Bushardt v United Inv. Co., 121 SC 324, 113 SE 637,  35 ALR 637; Hudson v Philadelphia Life Ins. Co., 152 Tenn 691, 280 SW 403.

There is no basic or fundamental distinction to be drawn between the liability of a principal for the tortious act of an agent and the liability of a master for the tortious act of a servant.  3 Am Jur 2d,  Agency § 280.

Footnote 44. J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359.

Footnote 45. Collazo v John W. Campbell Farms, Inc. (CA5 Fla) 213 F2d 255; Crescent Amusement Co. v Scott, 34 Ala App 335, 40 So 2d 882, cert den 252 Ala 296, 40 So 2d 886; Kroger Grocery & Baking Co. v Waller, 208 Ark 1063, 189 SW2d 361; Schanafelt v Seaboard Finance Co., 108 Cal App 2d 420, 239 P2d 42; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Pilos v First Nat'l Stores, Inc., 319 Mass 475, 66 NE2d 576; Peak v W. T. Grant Co. (Mo App) 386 SW2d 685; Goldberg v Fleischer's Confidence Food Stores, Inc. (Sup) 102 NYS2d 176; Morton v Murphy Lumber & Hardware Co. (CP) 46 Ohio Ops 70, 62 Ohio L Abs 245, 102 NE2d 744; Coffee v Peterbilt of Nashville, Inc. (Tenn) 795 SW2d 656; Odom v Gray (Tenn) 508 SW2d 526; Kroger Co. v Warren (Tex Civ App Houston (1st Dist)) 420 SW2d 218; Wheatley v Washington Jockey Club, 39 Wash 2d 163, 234 P2d 878.

Pastor's acts of locking repairman in closet and holding him ransom until employer refunded money were outside the scope of the pastor's authority and summary judgment for the pastor's church and its parent organization was appropriate.  Hendricks v Bauer (Tex App Beaumont) 709 SW2d 774, writ ref n r e (Sep 17, 1986) and rehg of writ of error overr (Oct 29, 1986).

As to liability of master or principal for punitive damages based on act of servant or agent, see  § 153.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 (§ 8 superseded by Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826).

Footnote 46. Schanafelt v Seaboard Finance Co., 108 Cal App 2d 420, 239 P2d 42; Dillon v Sears-Roebuck Co., 126 Neb 357, 253 NW 331; Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776; Thomas v F. & R. Lazarus & Co. (App, Franklin Co) 3 Ohio Ops 2d 75, 40 Ohio L Abs 51, 57 NE2d 116; Alamo Downs, Inc. v Briggs (Tex Civ App) 106 SW2d 733, writ dism w o j; Wheatley v Washington Jockey Club, 39 Wash 2d 163, 234 P2d 878.

Annotation:  92 ALR2d 15 § 3[b].

Footnote 47. J. J. Newberry Co. v Smith, 227 Ala 234, 149 So 669; Hanna v Raphael Weill & Co., 90 Cal App 2d 461, 203 P2d 564; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Blickhan v American Brewing Co. (La App) 171 So 865 (dictum); Safeway Stores v Barrack, 210 Md 168, 122 A2d 457 (criticized on other grounds in Montgomery Ward v Wilson (Md) 1995 Md LEXIS 129); McDermott v W. T. Grant Co., 313 Mass 736, 49 NE2d 115; Hurst v Montgomery Ward & Co. (Mo App) 145 SW2d 992; Taylor v New York & L. B. R. Co., 80 NJL 282, 78 A 169; Young v Edelbrew Brewery, Inc., 302 NY 653, 98 NE2d 473; Combs v Kobacker Stores, Inc. (App, Franklin Co) 65 Ohio L Abs 326, 114 NE2d 447; Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470; Leon's Shoe Stores, Inc. v Hornsby (Tex Civ App Waco) 306 SW2d 402, writ dism (Dec 31, 1957).

Annotation:  92 ALR2d 15 § 3[b].

Doctrine of apparent authority as applicable where relationship is that of master and servant,  2 ALR2d 406 § 5.

Footnote 48. Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359; Schmidt v New Orleans R. Co., 116 La 311, 40 So 714; McDermott v W. T. Grant Co., 313 Mass 736, 49 NE2d 115; Kirschman v Pitt Pub. Co., 318 Pa 570, 178 A 828,  100 ALR 1062; Birmingham News Co. v Browne, 228 Ala 395, 153 So 773; Clement v Emmons (Tex Civ App) 170 SW2d 610, writ ref w o m; Cobb v Simon,  119 Wis 597, 97 NW 276.

Footnote 49. J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359.

Footnote 50. See Combs v Kobacker Stores, Inc. (App, Franklin Co) 65 Ohio L Abs 326, 114 NE2d 447 (store could not escape liability merely because the one who caused plaintiff's false arrest was employed by a shoe company which merely leased space in defendant's store, where there was evidence that the plaintiff had been encouraged to go to the store as a result of an advertisement for shoes in the local newspaper which designated the defendant as the advertiser; the court said that since the defendant advertised that the shoes were for sale in their store, and the plaintiff, in reliance thereon, bought the shoes at a department therein which was the only place in the store where the article in question could be found, the doctrine of agency by estoppel applied and the defendant could not deny that the lessee was its agent).

Annotation:  92 ALR2d 15 § 5.

Footnote 51. Big B, Inc. v Cottingham (Ala) 634 So 2d 999.

Footnote 52. Charles Stores Co. v O'Quinn (CA4 NC) 178 F2d 372; Wright v Georgia S. & F. R. Co., 66 Fla 510, 63 So 909; Bernheimer Bros. v Becker, 102 Md 250, 62 A 526; Heinold v Muntz T. V., Inc. (Mo) 262 SW2d 32; Taylor v Erie R. Co., 268 NY 711, 198 NE 570; Houston v Minneapolis S. P. & S. S. M. Ry., 25 ND 469, 141 NW 994; Bushardt v United Inv. Co., 121 SC 324, 113 SE 637,  35 ALR 637.

The owner of a store is not liable for the unauthorized act of an employee in causing a criminal prosecution to be instituted against one charged with having given a bad check in payment for merchandise, even though the employee's intention was to secure a benefit for his employer.  Lamm v Charles Stores Co., 201 NC 134, 159 SE 444,  77 ALR 923.

Forms: Answer asserting defense that employee's actions not within scope of employment.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  36.

Footnote 53.  § 51.

Footnote 54. Birmingham News Co. v Browne, 228 Ala 395, 153 So 773; Mayfield v St. Louis, I. M. & S. R. Co., 97 Ark 24, 133 SW 168; Cobb v Simon,  119 Wis 597, 97 NW 276.

Where plaintiff was arrested at the instance of the manager of the defendant's department store for the alleged issuance of bad checks, and the manager had no authority to receive checks in payment for merchandise, and the sum represented by the check involved was covered by the manager's personal funds before the swearing of the warrant for the arrest of plaintiff, a peremptory instruction for the defendant was proper, since he had no interest in the check or the prosecution and the manager's action was prompted solely by personal motive.  Cope v Askins, 208 Ky 86, 270 SW 454.

Footnote 55.  § 50.

Footnote 56. Vela v White (CA5 Tex) 703 F2d 147.

Footnote 57. Santiago v Fenton (CA1 Mass) 891 F2d 373.

Footnote 58. Crescent Amusement Co. v Scott, 34 Ala App 335, 40 So 2d 882, cert den 252 Ala 296, 40 So 2d 886; Hanna v Raphael Weill & Co., 90 Cal App 2d 461, 203 P2d 564; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Komorowski v Boston Store of Chicago, 263 Ill App 88; Allen v Ritter (Miss) 235 So 2d 253; Peak v W. T. Grant Co. (Mo App) 386 SW2d 685; Rolnick v Borden's Farm Products Co., 214 App Div 259, 212 NYS 189; Darden v Louisville & N. R. Co., 171 Ohio St 63, 12 Ohio Ops 2d 82, 167 NE2d 765; Hayes v Sears, Roebuck & Co., 34 Wash 2d 666, 209 P2d 468.

In action brought under the Federal Employers' Liability Act for false arrest of railroad employee by alleged agents of railroad, whether individual defendants were acting in official capacity as public officers, or whether they were acting within scope of their employment as agents of railroad, thereby causing their employer to incur liability, was a question of fact.  Cales v Chesapeake & O. R. Co. (WD Va) 300 F Supp 155, 72 BNA LRRM 2096, 61 CCH LC ¶ 10361.

Annotation:  92 ALR2d 15 § 3[d].

There is a marked distinction between a false imprisonment or arrest caused by an agent for the purpose of protecting the rights or interests of the master–that is, to protect property, to prevent its theft, or to recover it back–and an arrest or imprisonment caused for the purpose of punishing an offender for an act already done. 59   Generally, the trend of decisions has been to exonerate the principal where the act was not for the protection of the principal's property or interest, but was to vindicate public justice or to redress an offense against society or to punish the offender for something already done, even though the wrongful act had its origin in some agency relationship. 60   However, as to many employments, there is an implied authority to do all things that may be proper and necessary for the protection of the master's property, and it has been held that where a servant has reason to believe that property has actually been stolen and that the property could be recovered by taking the supposed thief into custody, and the evidence showed beyond question that the servant's objective in procuring the arrest of the plaintiff was not to vindicate public justice, but to recover the property or charges due thereon, the servant is acting within the scope of employment and the limits of implied authority, and the master is liable, however erroneous, mistaken, or malicious the act may be. 61  

Footnote 59. Southern R. Co. v Beaty, 212 Ala 608, 103 So 658.

Footnote 60. Southern R. Co. v Beaty, 212 Ala 608, 103 So 658; Arkansas Cent. Power Co. v Hildreth, 174 Ark 529, 296 SW 33; Lichtenstein v New Orleans R. & L. Co., 158 La 284, 103 So 769; McCrory Stores Corp. v Satchell, 148 Md 279, 129 A 348; Pridgen v Carolina Coach Co., 229 NC 46, 47 SE2d 609; Bushardt v United Inv. Co., 121 SC 324, 113 SE 637,  35 ALR 637.

Where there was some evidence that a hotel detective had caused plaintiff's subsequent unlawful detention after his justified arrest on a charge of receiving property previously stolen from the hotel, the hotel would not be liable, since the offense had already been committed and the detention did not aid in its business nor serve to protect its interests.  Mackie v Ambassador Hotel & Inv. Corp., 123 Cal App 215, 11 P2d 3.

Where a railroad company's police inspector and agent arrested plaintiff for alleged theft of golf equipment at the request of a head groundkeeper of a golf course which leased adjoining premises from the defendant, the railroad was not liable for false imprisonment.  Louisville & N. R. Co. v Vinson, 310 Ky 854, 223 SW2d 89.

Where a store manager, after having recovered property allegedly stolen by the plaintiff, detained her until the arrival of police for the purpose of prosecuting the plaintiff and vindicating the law, the detention was without the scope of the manager's employment.  Pruitt v Watson, 103 W Va 627, 138 SE 331 (criticized on other grounds by Nees v Julian Goldman Stores, Inc., 109 W Va 329, 154 SE 769).

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 (§ 8 superseded by Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826).

Footnote 61. S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Lewis v Montgomery Ward & Co., 144 Kan 656, 62 P2d 875; McDermott v W. T. Grant Co., 313 Mass 736, 49 NE2d 115; Hurst v Montgomery Ward & Co. (Mo App) 107 SW2d 183; Long v Eagle 5, 10 & 25› Store Co., 214 NC 146, 198 SE 573; Combs v Kobacker Stores, Inc. (App, Franklin Co) 65 Ohio L Abs 326, 114 NE2d 447; Sebastianelli v Cleland Simpson Co., 152 Pa Super 203, 31 A2d 570.

Where the assistant manager of the defendant's store pursued the plaintiff, whom he mistakenly suspected of shoplifting, into another store for the purpose of recovering the stolen property, and there caused him to be arrested and searched, the defendant was responsible for his employee's acts.  Moseley v J. G. McCrory Co., 101 W Va 480, 133 SE 73.

Annotation:  92 ALR2d 15 § 7.

The general rule that a principal or master is not liable for acts of a servant or agent which are committed outside the scope of the employment 62   is limited by the doctrine of ratification.  Even though a principal has not authorized the act, the principal may ratify it and thereby be liable for a false arrest or imprisonment by the agent for which the principal would not have been liable originally. 63   Ratification may be by acts of omission as well as commission. 64   Retaining a servant in employment after notice of a wrongful act is some evidence of ratification, 65   but the principal's information should be full and complete in order to justify the conclusion of ratification on this ground. 66   There is some indication that mere passive approval of, acquiescence in, knowledge of, or silence in regard to the act of a servant in making a wrongful arrest will not amount to a ratification thereof, 67  although under the circumstances of some cases it has been held that by such conduct an employer may be found to have ratified the act of the employee. 68  

Footnote 62.  § 49.

Footnote 63. Caldwell v Standard Oil Co., 220 Ala 227, 124 So 512; Rolnick v Borden's Farm Products Co., 214 App Div 259, 212 NYS 189; S. H. Kress & Co. v Rust, 132 Tex 89, 120 SW2d 425; Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250; Lemke v Anders,  261 Wis 555, 53 NW2d 436.

Where liability of corporation was predicated solely on its ratification of acts of manager of one of its service stations, unrefuted affidavit of corporate officer that manager had no authority to swear out warrant charging person with crime, and that manager was totally responsible for money shortages of station while open for business, entitled corporation to summary judgment in action for false imprisonment and malicious prosecution resulting from manager's act of swearing out warrant charging another with larceny of money while station was open for business. Brown v Triton, Inc., 115 Ga App 785, 156 SE2d 200.

In action for false arrest, abuse of process, and malicious prosecution arising out of agreement between third party and defendant's plantation manager to cultivate 32 acres of cotton, third party in turn having entered into working arrangement with plaintiff but argument ensued between third party and plaintiff with result that, on plaintiff's refusing to leave premises, plantation manager made out affidavit charging plaintiff with trespassing, question was for jury whether signing of affidavit alleging trespass was outside scope of plantation manager's authority, and, if so, whether his actions were ratified by plantation owners so as to render them liable as principals.  Allen v Ritter (Miss) 235 So 2d 253.

As to liability of master or principal for punitive damages based on ratification of act of servant or agent, see  § 155.

Annotation:  92 ALR2d 15 § 4.

Footnote 64. Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250; Cobb v Simon,  119 Wis 597, 97 NW 276.

Where plaintiff's false arrest on a charge of trespass was caused by a deputy sheriff who was also employed as a watchman by defendant corporation and there was evidence that after defendant's regular attorney was notified of the arrest he assisted in the prosecution of the plaintiff, the ratification by the attorney was sufficient to constitute "direct corporate action" as alleged in the complaint.  Ex parte Central Iron & Coal Co., 212 Ala 130, 101 So 824.

Footnote 65. Great Atlantic & Pacific Tea Co. v Lethcoe (CA4 W Va) 279 F2d 948; Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; Cobb v Simon,  119 Wis 597, 97 NW 276.

Footnote 66. Cobb v Simon,  119 Wis 597, 97 NW 276.

Footnote 67. Henriques v Franklin Motor Car Co., 260 Mass 518, 157 NE 580.

Footnote 68. Topolewski v Plankinton Packing Co.,  143 Wis 52, 126 NW 554.

The principal ratified an unauthorized arrest made by his agent where, after notice of the arrest, he did not investigate the circumstances under which the arrest was made but left the agent in control of the situation.  Southern R. Co. v Beaty, 212 Ala 608, 103 So 658; Alamo Downs, Inc. v Briggs (Tex Civ App) 106 SW2d 733, writ dism w o j.

Where the captain of the police force of the defendant railroad investigated plaintiff for theft of railroad property, the investigation having been ordered by defendant's officers, who conducted and took part in all of the subsequent proceedings and who did not object to what was done, even though it was clear that the investigation had shown that plaintiff had not been guilty of any wrongdoing; and where a supervisor of a division of the railroad, with knowledge of the facts, discharged plaintiff from his employment with the railroad and permitted the captain to wrongfully commit him to jail, defendant was liable.  Keidel v Baltimore & O. R. Co., 281 Pa 289, 126 A 770.

Where a master is sued for a false arrest or imprisonment caused by a servant, the master may prove in justification that the servant cannot be held liable, or has been released, and as a general rule if the servant is exonerated or released from liability, the master is also exonerated. 69  There are a number of exceptions to this rule, however, such as where liability is based on the acts of other servants, where there are separate grounds upon which to find the master liable, where the master subsequently ratifies the act of his servant, or where the act was performed under the direction and supervision of the master. 70  

Footnote 69. Turner v Mellon, 41 Cal 2d 45, 257 P2d 15; Burnett v Griffith (Mo) 739 SW2d 712, transf to (Mo App) 1988 Mo App LEXIS 480, later proceeding, en banc (Mo) 769 SW2d 780; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; Goines v Pennsylvania R. Co. (1st Dept)  3 App Div 2d 307, 160 NYS2d 39, reh den (1st Dept)  4 App Div 2d 831, 166 NYS2d 303 and later proceeding (1st Dept)  6 App Div 2d 531, 179 NYS2d 960, reh and app den (1st Dept)  7 App Div 2d 837, 182 NYS2d 295 and app dismd without op  5 NY2d 711 and app dismd  5 NY2d 1002, 185 NYS2d 257, 158 NE2d 121; Kraft v Montgomery Ward & Co., 220 Or 234, 348 P2d 239,  92 ALR2d 1; Virginia R. & P. Co. v O'Flaherty, 118 Va 749, 88 SE 312.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 (§ 8 superseded by Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826).

Footnote 70. Kraft v Montgomery Ward & Co., 220 Or 234, 348 P2d 239,  92 ALR2d 1.

Where the evidence is such that the jury could find that the defendant acted through an arresting officer and was responsible for his act, aside from, and independent of, whatever was done by the defendant's servant, although the servant also directed the arrest to be made, exoneration of the servant does not exonerate the master.  Vest v S. S. Kresge Co. (Mo App) 213 SW 165.

The liability of a corporation in tort may include an action for a false arrest or a false imprisonment.  The general rule is that a corporation may be held liable for the false imprisonment or false arrest of a third person caused by the act of its officer, agent, or employee while acting within the scope of authority or the course of employment. 71  However, as in other cases of liability of one for the act of another, in order to bind the corporation it must appear that the officer, agent, or employee through whom the arrest or imprisonment was caused was authorized in such respect, that the act if unauthorized originally was later ratified, or that the act was done within the scope of employment or general line of duty of such officer, agent, or employee. 72   

Exoneration of the employee who caused an assertedly false imprisonment exonerates the corporate employer. 73 

Footnote 71. Director General of Railroads v Kastenbaum,  263 US 25,  68 L Ed 146,  44 S Ct 52; St. Louis, I. M. & S. R. Co. v Tukey, 119 Ark 28, 175 SW 403; Moffatt v Buffums' Inc., 21 Cal App 2d 371, 69 P2d 424 (secretary-treasurer); Evansville & T. H. R. Co. v McKee, 99 Ind 519; Whitman v Atchison, T. & S. F. R. Co., 85 Kan 150, 116 P 234 (unlawful detention of injured passenger to obtain written statement); Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329 (plaintiff and her aunt detained by cashier in restaurant when only one check was presented); Lamm v Charles Stores Co., 201 NC 134, 159 SE 444,  77 ALR 923; Alamo Downs, Inc. v Briggs (Tex Civ App) 106 SW2d 733, writ dism w o j.

Defendant's false arrest claim against an individual employee of a company which supplied bail bonds was properly kept from the jury in the absence of evidence that the individual defendant so conducted and controlled the business as to make it his instrumentality and that the individual was liable for claims against the corporation; the plaintiff's claim was properly against the corporation.  Bloodsworth v Morgan (Ala) 593 So 2d 55, reh den, without op (Ala) 1992 Ala LEXIS 136.

Where a vice-president of a fur company expressly ordered and directed plaintiff's arrest and imprisonment on a charge of theft of a fur coat, the trial court properly directed a verdict for plaintiff.  Oliver v Kessler (Mo App) 95 SW2d 1226.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 (§ 8 superseded by Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826).

Forms: Instruction to jury on liability of corporation for act of agent authorized or ratified by corporation, or done within course of employment.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  45.

Footnote 72. St. Louis, I. M. & S. R. Co. v Sims, 106 Ark 109, 152 SW 985; Lamm v Charles Stores Co., 201 NC 134, 159 SE 444,  77 ALR 923; Kraft v Montgomery Ward & Co., 220 Or 234, 348 P2d 239,  92 ALR2d 1; Virginia R. & P. Co. v O'Flaherty, 118 Va 749, 88 SE 312.

Footnote 73. Wade v Campbell, 211 Mo App 274, 243 SW 248.

As to exoneration of agent or servant, generally, see  § 52.

The rules in regard to the liability or nonliability of the master or principal for the acts of a servant or agent in regard to false imprisonment have been applied to various particular servants or agents; including, among others, amusement park employees, 74  attorneys at law, 75   auditors or bookkeepers, 76   bank officers or employees, 77  carriers' employees, 78   cashiers, 79   clerks, 80  collectors, 81  elevator operators, 82  filling station operators and attendants, 83   finance companies' employees, 84  floorwalkers, 85   insurance companies' employees, 86   managers and assistant managers, 87  messengers, 88   newspaper and television station reporters and photographers, 89  private detectives and policemen, 90 including both private and public employees, 91  salespersons, 92   superintendents, 93   taxicab drivers, 94   toll collectors, 95  ushers, 96   watchmen, 97  an entry level security or loss prevention supervisor for a retailer, 98  and police officers not engaged in police business at the time. 99

Footnote 74. Rice v Harrington, 38 RI 47, 94 A 736.

Footnote 75.  § 55.

Footnote 76. Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 (§ 8 superseded by Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826).

Footnote 77. See Ginn v Citizens & Southern Nat'l Bank, 145 Ga App 175, 243 SE2d 528, 24 UCCRS 15 (where loan officer instigated arrest by knowingly relating to police officer false information, loan officer and bank were liable for false imprisonment).

Footnote 78. See 14 Am Jur 2d,  Carriers §§ 1208 et seq.

Footnote 79. Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329; S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508.

Where it appears that a cashier was in charge of an establishment in the absence of a manager and assistant manager, the actions of the cashier may make his principal liable in false imprisonment.  Crescent Amusement Co. v Scott, 34 Ala App 335, 40 So 2d 882, cert den 252 Ala 296, 40 So 2d 886.

Annotation:  92 ALR2d 15, § 14

Footnote 80. Crews-Beggs Dry Goods Co. v Bayle, 97 Colo 568, 51 P2d 1026; Hammond v Eckerd's of Asheville, Inc., 220 NC 596, 18 SE2d 151; Combs v Kobacker Stores, Inc. (App, Franklin Co) 65 Ohio L Abs 326, 114 NE2d 447; Bushardt v United Inv. Co., 121 SC 324, 113 SE 637,  35 ALR 637.

Even though a sales clerk violated the instructions of her employer when she exhibited certain diamond mountings to a customer, she nevertheless had the authority to attempt to prevent the stealing of such jewels while she had assumed the custody thereof.  Newton v Rhoads Bros. (Tex Com App) 24 SW2d 378.

A sales clerk who has not been instructed to accuse or arrest a customer is not within the scope of his employment when he falsely imprisons a customer.  Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250.

Annotation:  92 ALR2d 15, § 15.

Footnote 81. Bright v Sawyer, 229 Ala 657, 159 So 211; Irby v J. P. Allen & Co., 33 Ga App 362, 126 SE 888, affd 161 Ga 858, 131 SE 910.

Defendant store could not be charged with illegal acts of collector where petition did not allege that defendant expressly directed collection agent to cause plaintiff's false arrest or that it ratified those acts afterward, since agent's authority must not be construed as authorizing other than legal means to effectuate purposes of agency.  J. C. Penney Co. v Green, 108 Ga App 155, 132 SE2d 83.

Annotation:  92 ALR2d 15, § 16.

Footnote 82. See Turney v Rhodes, 42 Ga App 104, 155 SE 112 (an elevator operator who refuses to permit a person to leave the elevator is acting within the scope of his employment).

Annotation:  92 ALR2d 15, § 21.

Footnote 83. Brown v Triton, Inc., 115 Ga App 785, 156 SE2d 200; Cordell v Standard Oil Co., 131 Kan 221, 289 P 472; Peterson v Crossley, 14 NJ Misc 501, 185 A 926, affd 117 NJL 525, 189 A 624.

Undisputed evidence showed that manager of corporate defendant's filling station had power and duty to sell and collect for its products, and omission of instructions requiring jury to find that manager was acting within scope of employment when he gave police incomplete and misleading information resulting in plaintiff's arrest was not error; and manager's statement at police station, admissible as to him as an admission against interest, was, under the circumstances, also admissible on that basis against corporate defendant.  Wehrman v Liberty Petroleum Co. (Mo App) 382 SW2d 56.

Annotation:  92 ALR2d 15, § 22.

Footnote 84. Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703.

Annotation:  92 ALR2d 15, § 23.

Footnote 85. Ward v S. H. Kress & Co., 138 Kan 860, 28 P2d 983; Peak v W. T. Grant Co. (Mo App) 386 SW2d 685; Cobb v Simon,  119 Wis 597, 97 NW 276.

Annotation:  92 ALR2d 15, § 24.

Footnote 86. Perry v Washington Nat'l Ins. Co., 14 Cal App 2d 609, 58 P2d 701; Huff v National Acci. & Health Ins. Co., 58 Ga App 355, 198 SE 296.

Insurance association would be liable for acts of its special agent, part of whose duties was to investigate fires, in falsely imprisoning insured in course of questioning her about fire that damaged her house.  American Ins. Asso. v Smith (Tex Civ App Texarkana) 439 SW2d 418.

Annotation: Insurer's tort liability for acts of adjuster seeking to obtain settlement or release,  39 ALR3d 739 § 6.

Footnote 87. Kroger Grocery & Baking Co. v Waller, 208 Ark 1063, 189 SW2d 361; Brown v Triton, Inc., 115 Ga App 785, 156 SE2d 200 (manager of filling or service station); Aldridge v Fox, 348 Ill App 96, 108 NE2d 139; Lewis v Montgomery Ward & Co., 144 Kan 656, 62 P2d 875; J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359 (assistant manager of department store); McDermott v W. T. Grant Co., 313 Mass 736, 49 NE2d 115; Allen v Ritter (Miss) 235 So 2d 253 (plantation manager); Peak v W. T. Grant Co. (Mo) 409 SW2d 58,  31 ALR3d 697; Holloway v Kent, 67 Misc 440, 122 NYS 684; Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205; Leon's Shoe Stores, Inc. v Hornsby (Tex Civ App Waco) 306 SW2d 402, writ dism (Dec 31, 1957).

The manager of a local unit of a national business dealing with the public is more than a mere clerk or employee.  He is a vice-principal.  To permit a corporation of this type to escape liability for the act of its "manager" on the grounds that he is not one of the principal officers of the corporation and that he must have actual express authority to do the particular thing in question would be improper.  S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757.

Although the term "manager" implies general power, it is not the size of the job which the offending agent holds which determines the liability of the principal, but the quality of the act done in the line of duty.  Lamm v Charles Stores Co., 201 NC 134, 159 SE 444,  77 ALR 923.

Annotation:  92 ALR2d 15, § 25.

Forms: Complaint, petition, or declaration–unreasonable detention and search of customer on accusation of shoplifting–against store owner and store manager.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  21.

–Instructions to jury as to circumstances constituting false imprisonment in detention of customer by store manager.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  46.

Footnote 88. Wingate v Postal Tel. & Cable Co., 204 SC 520, 30 SE2d 307.

Annotation:  92 ALR2d 15, § 26.

Footnote 89. Odom v Gray (Tenn) 508 SW2d 526.

Footnote 90.  §§ 56,  57.

Footnote 91. Santiago v Fenton (CA1 Mass) 891 F2d 373; Bauldock v Davco Food, Inc. (Dist Col App) 622 A2d 28; Meerbrey v Marshall Field & Co., 139 Ill 2d 455, 151 Ill Dec 560, 564 NE2d 1222; Burnett v Griffith (Mo) 739 SW2d 712, transf to (Mo App) 1988 Mo App LEXIS 480, later proceeding, en banc (Mo) 769 SW2d 780; Latek v K Mart Corp., 224 Neb 807, 401 NW2d 503.

Footnote 92. Heinold v Muntz T. V., Inc. (Mo) 262 SW2d 32.

Where a head saleswoman employed by defendant procured the plaintiffs' arrest on her own individual complaint that they had taken a sum of money from her pocketbook, the acts of the saleswoman were not in the course of the defendant's business. Conover v Jaffee, 238 App Div 147, 263 NYS 618.

Annotation:  92 ALR2d 15, § 28.

Footnote 93. McGill v Walnut Realty Co., 235 Mo App 874, 148 SW2d 131.

Annotation:  92 ALR2d 15, § 29.

Footnote 94. McGlone v Landreth, 200 Okla 425, 195 P2d 268 (ovrld in part on other grounds by Parker v Washington (Okla) 421 P2d 861).

Annotation:  92 ALR2d 15, § 31.

Footnote 95. Ware v Barataria & Lafourche Canal Co., 15 La 169.

Footnote 96. Kennington-Saenger, Inc. v Wicks, 168 Miss 566, 151 So 549.

Annotation:  92 ALR2d 15, § 35.

Footnote 97.  § 56.

Footnote 98. Gardner v Federated Dep't Stores, Inc. (CA2 NY) 907 F2d 1348.

Footnote 99. Leaon v Washington County (Minn) 397 NW2d 867 (an action brought against sheriff, county and others, in connection with a police officers' stag party, not held on duty, on official time or on official premises).

It has been held that where an attorney is acting within the general scope of authority the client is liable for the attorney's tortious acts resulting in false arrest or imprisonment, 1   including an arrest resulting from the failure to cancel a warrant upon satisfaction of the underlying obligation for which the warrant was issued, attributable to the defendant's attorney's failure to see to dismissal of the warrant. 2   Thus, the client has been held liable for the act of the attorney in procuring an unlawful body attachment of a litigant in a civil suit, 3  or for procuring the issuance and service of an execution which is void, against the person of a litigant, and causing incarceration thereunder. 4

On the other hand, it has been held that a litigant who merely permits counsel and the court to commit for contempt one refusing to obey the order of the court, although the court acted beyond its jurisdiction, is not liable. 5   

Footnote 1. Vernes v Phillips, 266 NY 298, 194 NE 762; Morton v Murphy Lumber & Hardware Co. (CP) 46 Ohio Ops 70, 62 Ohio L Abs 245, 102 NE2d 744; Gibson v Holmes, 78 Vt 110, 62 A 11.

Where an attorney for a receiver initiated the arrest of one who was in violation of an order which the attorney should have known to be void, the receiver is liable for false imprisonment where he is acquainted with the matter and participated therein.  Pomeranz v Class, 82 Colo 173, 257 P 1086.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 § 10.

Footnote 2. Coffee v Peterbilt of Nashville, Inc. (Tenn) 795 SW2d 656.

Footnote 3. Otto v Levy, 244 App Div 349, 279 NYS 462.

Footnote 4. Rizzo v Riddell, 262 App Div 779, 27 NYS2d 837.

Footnote 5. Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Frequently, a principal has been held liable in damages where a private detective, security guard or police officer directly in the principal's employ procured or instigated a false arrest or imprisonment, the courts readily concluding that such action falls within the scope of the agency of such a servant. 6   However, the mere fact that a person is employed as a "detective" or "policeman" does not necessarily import authority to make arrests, 7  as where the hiring is for the specific and limited purpose of investigation of a particular past occurrence. 8  

Similarly, a watchman, as guardian of the master's property, usually has implied authority to use such force as is necessary to protect it and may bind the employer by making a false arrest. 9   However, if the arrest is not made to preserve or protect the master's property, it is not within the course of employment and no liability therefor attaches to the superior. 10

Even where the person causing the arrest is not directly employed by the defendant, but rather is the employee of a security or detective agency which has contracted with the defendant to protect the defendant's property from theft or embezzlement, the defendant is generally held liable. 11   Thus, it has been held or recognized that the doctrine of respondeat superior is applicable, under which the hirer may be found liable for the acts of the personnel supplied by an independent agency which are committed within the scope of employment, 12    at least where the circumstances are such as to render appropriate the conclusion that the hirer generally exercised control or participated in the tortious acts. 13   In so holding, some courts have indicated that the ordinary rule relieving a hirer from liability for the torts of an independent contractor is limited to negligent acts, and does not extend to intentional torts, 14   while other courts have based their holdings on the nondelegability of the hirer's duty because of the personal character of the duties involved, 15   but not because of their inherently dangerous character, there being no inherent danger in security work. 16     Even where the agreement provides that the right of control of the personnel supplied remains with the agency, it has been held that if the evidence indicates that the hirer, notwithstanding the agreement, generally exercises control over the personnel supplied, the hirer may be liable under the doctrine of respondeat superior for intentional torts committed by the personnel supplied. 17    Where the hirer or agent participates in or ratifies the specific acts of the agency personnel, 18   the hirer has been held liable vicariously or as a joint tortfeasor. 19   Under the principles stated above, liability has been imposed upon the hirer based on acts amounting to false arrest or imprisonment specifically initiated and carried out by agency personnel against employees of the hirer 20   as well as against customers or other members of the public, 21   particularly where such acts were done at the request or order of the hirer's own personnel. 22  

However, in the absence of any evidence that police detaining a suspected shoplifter act at the discretion of the merchant, the merchant is not liable to the person so detained. 23  The mere hiring of an off-duty police officer as a security guard does not make the merchant liable for the guard's actions, where retailer does not authorize, encourage or approve any illegal actions on the part of the person so hired. 24  Such exoneration from liability of the hiring party has been found applicable for purposes of a false arrest claim based on a security guard's actions after the store manager had told the customer to leave the store, the customer refused and probable cause existed to arrest the customer for unlawful entry. 25

Footnote 6. Director General of Railroads v Kastenbaum,  263 US 25,  68 L Ed 146,  44 S Ct 52; Burke v New York, N. H. & H. R. Co. (CA2 NY) 267 F2d 894; Missouri P. R. Co. v Hill, 200 Ark 253, 138 SW2d 783; Weir v Continental Oil Co., 5 Cal App 2d 714, 43 P2d 375; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Thompson v St. Louis S. F. R. Co. (Mo App) 3 SW2d 1033; Sebastianelli v Cleland Simpson Co., 152 Pa Super 203, 31 A2d 570.

A retail store was properly held liable for false imprisonment of its customer, where the customer felt she had no choice but to accompany the store's security guard to an "employees" area at the guard's request, required to empty her purse, subjected to an intrusive pat-search and escorted throughout the store by the store's employees, searching for the allegedly shoplifted item. Clark v Skaggs Cos. (Mo App) 724 SW2d 545.

See Lunsford v Sage, Inc. of Dallas (Tex Civ App Houston (1st Dist)) 438 SW2d 615, writ ref n r e (Jul 2, 1969) and rehg of writ of error overr (Jul 30, 1969), holding that a corporate defendant was not estopped, despite repeated assurances, from denying its ownership of the premises and its employment of a security guard who assaulted and falsely imprisoned plaintiff, so that plaintiff was barred by the running of the statute of limitations from later amending his complaint to include as defendant the proper corporation which employed the guard.  Plaintiff's confusion, it might be noted, was occasioned by the fact that the original defendant's corporate name was Sage, Inc. of Dallas, while the actual employer's corporate name was S.A.G.E., Inc. of Houston, and while there was some evidence that the guard was employed by the Dallas company, there was a great deal more evidence that he was employed by the Houston company.

As to liability for punitive damages, see  § 153.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15, § 19[a].

Footnote 7. Taylor v Erie R. Co., 268 NY 711, 198 NE 570.

Where the function of a private detective employed to aid in the protection of a railroad company's property is to secure information, his employment confers no real or apparent authority to make an arrest.  Orr v Burleson, 214 Ala 257, 107 So 825.

The duty imposed on private railroad police to guard and protect property may well imply the authority to arrest and detain persons found unlawfully interfering with it, but no authority to punish persons for an act of interference with the property already completed may be implied from such duty.  Southern R. Co. v Beaty, 212 Ala 608, 103 So 658.

Footnote 8. See Milton v Missouri P. R. Co., 193 Mo 46, 91 SW 949 (thus a person employing detectives to ascertain the facts as to the responsibility for a past robbery is not liable for a wrongful arrest made by the detectives for the purpose of ascertaining whether the person arrested was concerned in the robbery).

Annotation: Liability of one hiring private investigator or detective for tortious acts committed in course of investigation,  73 ALR3d 1175.

Footnote 9. Conchin v El Paso & S. W. R.R., 13 Ariz 259, 108 P 260; Pearson v Great Southern Lumber Co., 134 La 117, 63 So 759; Kraft v Montgomery Ward & Co., 220 Or 234, 348 P2d 239,  92 ALR2d 1.

Annotation:  92 ALR2d 15, § 36.

Footnote 10. Buman v Michigan C. R. Co., 168 Mich 651, 134 NW 972.

Footnote 11. Schantz v Sears, Roebuck & Co., 12 NJ Misc 689, 174 A 162, affd 115 NJL 174, 178 A 768; Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776; Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205; Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122; W. T. Grant Co. v Owens, 149 Va 906, 141 SE 860.

Annotation: Liability of one contracting for private police or security service for acts of personnel supplied,  38 ALR3d 1332.

Footnote 12. Greenbaum v Brooks, 110 Ga App 661, 139 SE2d 432; McClure Ten Cent Co. v Humphries, 33 Ga App 523, 127 SE 151; Nash v Sears, Roebuck & Co., 12 Mich App 553, 163 NW2d 471, revd on other grounds 383 Mich 136, 174 NW2d 818; Bonkowski v Arlan's Dep't Store, 12 Mich App 88, 162 NW2d 347, revd on other grounds 383 Mich 90, 174 NW2d 765; Singleton v Kansas City Baseball & Exhibition Co., 172 Mo App 299, 157 SW 964; Dillon v Sears-Roebuck Co., 126 Neb 357, 253 NW 331; Schantz v Sears, Roebuck & Co., 12 NJ Misc 689, 174 A 162, affd 115 NJL 174, 178 A 768; Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776; Zentko v G. M. McKelvey Co. (App, Mahoning Co) 54 Ohio L Abs 529, 88 NE2d 265; Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205; Webbier v Thoroughbred Racing Protective Bureau, 105 RI 605, 254 A2d 285; Dupree v Piggly Wiggly Shop Rite Foods, Inc. (Tex Civ App Corpus Christi) 542 SW2d 882, writ ref n r e (Jan 12, 1977); Kroger Co. v Warren (Tex Civ App Houston (1st Dist)) 420 SW2d 218; W. T. Grant Co. v Owens, 149 Va 906, 141 SE 860; Clinchfield Coal Corp. v Redd, 123 Va 420, 96 SE 836.

Thus the hirer of a detective agency for investigative purposes could not delegate the duty of conducting a proper investigation to the agency, so as to insulate itself from suit, if the agency failed to conduct reasonable surveillance; the "independent contractor" rule did not insulate the hiring party from liability in an action for invasion of privacy.  Ellenberg v Pinkerton's, Inc., 125 Ga App 648, 188 SE2d 911, appeal after remand on other grounds 130 Ga App 254, 202 SE2d 701.

Annotation:  38 ALR3d 1332, § 3.

Practice References Lack of care in selecting independent contractor.   11 Am Jur POF 2d 499.

Footnote 13. Nash v Sears, Roebuck & Co., 383 Mich 136, 174 NW2d 818 (jury question as to control of security guard).

A restaurant was properly held liable, under state law, with a security guard and a security agency, for the tortious conduct of the guard in enforcing parking regulations of the restaurant, inasmuch as the restaurant, under the facts of the case, was deemed to have supervision and direction over the guard's activities during the performance of duties.  Cappo v Vinson Guard Service, Inc. (La App 1st Cir) 400 So 2d 1148.

A corporation in the retail grocery business, by securing through the guise of an independent contractor security guards to protect its property, cannot obtain immunity from liability for false imprisonment which the storeowner would not be equally entitled to if the owner itself directly selected and paid the agents, expressly retaining the power of control and removal. Dupree v Piggly Wiggly Shop Rite Foods, Inc. (Tex Civ App Corpus Christi) 542 SW2d 882, writ ref n r e (Jan 12, 1977).

Annotation:  38 ALR3d 1332, § 3.

Footnote 14. See United States Shoe Corp. v Jones, 149 Ga App 595, 255 SE2d 73 (in an action for false imprisonment of a minor child by a security guard who accused the child of shoplifting, the trial court acted properly in refusing to direct the verdict or grant judgment notwithstanding the verdict to the store on its defense of nonliability for the act of the independent contractor; hirers may be held liable for intentional torts of agency's personnel committed, in the scope of the agency's employment, against hirer's invitees).

In Nash v Sears, Roebuck & Co., 12 Mich App 553, 163 NW2d 471, revd on other grounds 383 Mich 136, 174 NW2d 818, an action for false arrest, false imprisonment, and assault and battery by security personnel, the court rejected a contention by a store owner that the principle that an employer is not liable for the torts of an independent contractor unless the work involved is inherently dangerous should be applied, observing that this principle applies only to negligence cases and has not been held applicable to intentional torts.

In Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776, an action for false arrest against a department store, resulting from the acts of an employee of a security service, the court expressly declined to apply the principle that where negligence of an independent contractor is the sole alleged basis of liability, the doctrine of respondeat superior is inapplicable, observing that negligence does not enter into the tort of false arrest.  The court's position in this respect was quoted in support of the decisions in Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205, and in the Hendricks v Leslie Fay, Inc., 273 NC 59, 159 SE2d 362.

Attention is called, however, to Inscoe v Globe Jewelry Co., 200 NC 580, 157 SE 794, in which it was held that a detective bureau retained to make collections was an independent contractor, and that the employer of the bureau could thus not be held liable for a false imprisonment committed by an employee of the bureau acting pursuant to the agreement between the employer and the bureau.  The court noted that under the agreement the employer had no right of control over the work, and that the detective bureau was free to perform its obligations in its own way.  But this case may be of questionable value in view of modern trends and the position of the court in the later North Carolina case of Hendricks v Leslie Fay, Inc., 273 NC 59, 159 SE2d 362 (a malicious prosecution action), which, although not directly involving the liability of a hirer, takes a strong position of opposing tenor, and quotes with apparent approval the statement of the court in Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776, confining the rule to negligent acts.

Annotation:  38 ALR3d 1332, § 4.

Footnote 15. Malvo v J. C. Penney Co. (Alaska) 512 P2d 575,  63 ALR3d 1034; Nash v Sears, Roebuck & Co., 12 Mich App 553, 163 NW2d 471, revd on other grounds 383 Mich 136, 174 NW2d 818; Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776; Zentko v G. M. McKelvey Co. (App, Mahoning Co) 54 Ohio L Abs 529, 88 NE2d 265; Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205; Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122; Dupree v Piggly Wiggly Shop Rite Foods, Inc. (Tex Civ App Corpus Christi) 542 SW2d 882, writ ref n r e (Jan 12, 1977); W. T. Grant Co. v Owens, 149 Va 906, 141 SE 860; Clinchfield Coal Corp. v Redd, 123 Va 420, 96 SE 836.

Hirer of security guards was liable for their intentional torts against customers and invitees of hirer's place of business, even though the guards were supplied by an independent agency, because the hirer had a personal and non-delegable duty to its customers to provide responsible security guards.  Peachtree-Cain Co. v McBee, 170 Ga App 38, 316 SE2d 9, affd 254 Ga 91, 327 SE2d 188 (citing annotation).

Racetrack was liable for detective's assault on and false imprisonment of patron, since racetrack's statutory duty to protect public and preserve order on premises could not be delegated to security agency furnishing the detectives.  Webbier v Thoroughbred Racing Protective Bureau, 105 RI 605, 254 A2d 285.

Grocery store was liable to customer for false arrest committed by security guards employed by independent contractor of store where store had "non-delegable" duty to furnish customer with safe place to shop, where independent contractor was employed exclusively by store, and where store provided place in which guards were to work and thus intentionally exposed customers to possible tortious conduct of guards.  Dupree v Piggly Wiggly Shop Rite Foods, Inc. (Tex Civ App Corpus Christi) 542 SW2d 882, writ ref n r e (Jan 12, 1977).

Annotation:  38 ALR3d 1332, § 5[a].

Footnote 16. Del Signore v Pyramid Sec. Services, Inc. (3d Dept)  147 App Div 2d 759, 537 NYS2d 640 (citing annotation); Dupree v Piggly Wiggly Shop Rite Foods, Inc. (Tex Civ App Corpus Christi) 542 SW2d 882, writ ref n r e (Jan 12, 1977).

See also Nash v Sears, Roebuck & Co., 12 Mich App 553, 163 NW2d 471, revd on other grounds 383 Mich 136, 174 NW2d 818, in which the court expressly recognized that an exception to an employer's nonliability for acts of an independent contractor is found where the work delegated is inherently or intrinsically dangerous.  Liability being established on other grounds, however, the court did not reach the issue of whether or not protection of one's property with firearms was so inherently dangerous as to make the duties commensurate therewith nondelegable.

Annotation:  38 ALR3d 1332, § 5[b].

Footnote 17. Greenbaum v Brooks, 110 Ga App 661, 139 SE2d 432; Komorowski v Boston Store of Chicago, 263 Ill App 88; Singleton v Kansas City Baseball & Exhibition Co., 172 Mo App 299, 157 SW 964; Clinchfield Coal Corp. v Redd, 123 Va 420, 96 SE 836.

Defendants' contract with detective agency was not inconsistent with finding that at time of plaintiff's detention, the investigator was not acting as agent of independent contractor but as defendants' agent.  Greenbaum v Brooks, 110 Ga App 661, 139 SE2d 432.

Although there is a contract between a detective agency and a store whereby the agency undertakes to protect the store from shoplifters, employ detectives for that purpose, conduct all investigations incident thereto, and relieve the store from liability for its wrongful acts, it is not binding on third parties who have no notice of it; while such a contract prima facie establishes the detective as an employee of the agency and not the store, the third party may show by extrinsic facts and circumstances that the parties themselves had placed a different construction upon the contract.  Komorowski v Boston Store of Chicago, 263 Ill App 88.  To the same effect, See Thomas v F. & R. Lazarus & Co. (App, Franklin Co) 3 Ohio Ops 2d 61, 40 Ohio L Abs 29, 57 NE2d 103, motion overr.

In Bonkowski v Arlan's Dep't Store, 12 Mich App 88, 162 NW2d 347, revd on other grounds 383 Mich 90, 174 NW2d 765, a department store was held responsible for acts amounting to false arrest committed by a private policeman employed by a security police service under contract to protect the store from shoplifters, the court noting only that during the time he was on duty in the store, his activities were under the direction of the store's supervisory employees, and concluding that the guard, with respect to the incident giving rise to this action, was acting within the scope of his authority as the agent of the department store, which must respond for his acts.

Annotation:  38 ALR3d 1332, § 6.

Footnote 18. Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; Greenbaum v Brooks, 110 Ga App 661, 139 SE2d 432; McClure Ten Cent Co. v Humphries, 33 Ga App 523, 127 SE 151; Schramko v Boston Store of Chicago, 243 Ill App 251, appeal after remand 263 Ill App 88; Schantz v Sears, Roebuck & Co., 12 NJ Misc 689, 174 A 162, affd 115 NJL 174, 178 A 768; Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122; Kroger Co. v Warren (Tex Civ App Houston (1st Dist)) 420 SW2d 218.

In Dillon v Sears-Roebuck Co., 126 Neb 357, 253 NW 331, it was held that a department store was liable for the false imprisonment of one of its employees; the court noting that since the managers of the store were, pursuant to contract with a detective agency, directed to cooperate with the agency detectives, the defendant store showed not only an active participation in, but an approval and ratification of the illegal restraint of the store employee.

Annotation:  38 ALR3d 1332, § 7.

Footnote 19. Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122 (employer held liable as joint tortfeasor).

Although it was found that defendant investigatory agency was at all times material thereto acting as an agent and representative of defendant department store, it was held in Kroger Co. v Warren (Tex Civ App Houston (1st Dist)) 420 SW2d 218, that both the store and the investigatory agency, hired by the store to perform security checks on its employees, would be held liable for the respective acts of their employees, in a suit for false imprisonment brought by an employee of the store who had been detained and questioned by a store detective and an investigator from the agency.  In reaching its conclusion to affirm judgment against both defendants, the court apparently held applicable a state statute providing that all persons are principals who are guilty of acting together in the commission of an offense; and that when an offense is actually committed by one or more persons, but others are present and, knowing the illegal intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders.

Footnote 20. Dillon v Sears-Roebuck Co., 126 Neb 357, 253 NW 331; Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122.

Annotation:  38 ALR3d 1332 § 9[a].

Footnote 21. Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; Nash v Sears, Roebuck & Co., 12 Mich App 553, 163 NW2d 471, revd on other grounds 383 Mich 136, 174 NW2d 818; Bonkowski v Arlan's Dep't Store, 12 Mich App 88, 162 NW2d 347, revd on other grounds 383 Mich 90, 174 NW2d 765; Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205.

Annotation:  38 ALR3d 1332 § 9[b].

Footnote 22. Greenbaum v Brooks, 110 Ga App 661, 139 SE2d 432; Singleton v Kansas City Baseball & Exhibition Co., 172 Mo App 299, 157 SW 964; Schantz v Sears, Roebuck & Co., 12 NJ Misc 689, 174 A 162, affd 115 NJL 174, 178 A 768; Adams v F. W. Woolworth Co., 144 Misc 27, 257 NYS 776; W. T. Grant Co. v Owens, 149 Va 906, 141 SE 860.

Annotation:  38 ALR3d 1332 § 11.

Footnote 23. Lusk v Ira Watson Co., 185 W Va 680, 408 SE2d 630.

Footnote 24. Alvarado v Dodge City, 238 Kan 48, 708 P2d 174.

Footnote 25. Safeway Stores, Inc. v Kelly (Dist Col App) 448 A2d 856.

As a general rule, a private person or corporation is not responsible for a false arrest or imprisonment caused by a special police officer appointed by a public authority but employed and paid by the private person or corporation, where the arrest occurred while the officer was acting in his official capacity as a public officer. 26     

It has also been held that there is a presumption that the special officer acted in the officer's official capacity in making the arrest. 27   Moreover, the act of a special policeman in making an arrest cannot be ratified so as to render the employer liable where the policeman acts in the matter as an agent of the state and not of the employer. 28  An off-duty police officer working as a security guard, acts as a police officer, exonerating from tort liability the entity which hired the officer as a guard, when the officer's status changes from that of a guard to that of a police officer, at the time the officer witnesses unlawful acts in the officer's presence; thereby authorizing by officer to make the arrest. 29   However, though the master is not liable where the master's agent acted in an official capacity as a public officer, it does not follow that all the acts of such an agent are of a public nature so as to absolve the master of liability; and, in a number of cases the master is liable for a false arrest caused by such an agent where the agent was acting on behalf of the master or at the master's direction, and not for the public. 30   Where a statute prohibits off-duty police officers working as security guards from wearing police uniforms or indicating their identity as a police officer, so as to eliminate public confusion about their role, the fact of private employment prevents the peace officer from acting in what would otherwise be an official capacity; and thus an employer of the off-duty peace officer may not escape liability for a false arrest or imprisonment by such employee while acting as a security guard. 31   Similarly, a penal law provision making it illegal for any public employee or officer to receive any emolument, gratuity, or reward for doing an official act has been held to be applicable, giving rise to the conclusion that the officer must have been performing private rather than official duties while acting within the course and scope of a private employment as a security guard during off-duty hours; since otherwise the acts would have been in violation of the statute. 32

Where an arrest is caused by a special officer appointed by public authority but employed by a private individual or corporation, it is ordinarily a question of fact for the jury as to the capacity in which the officer acted in making the arrest. 33    However, if it is apparent that the person acted in one or the other capacity, the question becomes one of law. 34   Thus, in some cases it has been held as a matter of law that the evidence was insufficient to establish that the special officer acted other than in official capacity. 35

For purposes of an action under the Federal Civil Rights Act, 36   a policy of a store to work with local police may be sufficient to find that the store is acting "in concert with" police under state authority. 37

Footnote 26. Charles v Norfolk & W. R. Co. (CA7 Ill) 188 F2d 691, cert den  342 US 831,  96 L Ed 628,  72 S Ct 55; J. J. Newberry Co. v Smith, 227 Ala 234, 149 So 669; St. Louis, I. M. & S. R. Co. v Sims, 106 Ark 109, 152 SW 985; Hanna v Raphael Weill & Co., 90 Cal App 2d 461, 203 P2d 564; Vittorio v St. Regis Paper Co., 239 NY 148, 145 NE 913; Houston v Minneapolis S. P. & S. S. M. Ry., 25 ND 469, 141 NW 994 (conductor); Darden v Louisville & N. R. Co., 171 Ohio St 63, 12 Ohio Ops 2d 82, 167 NE2d 765; Clement v Emmons (Tex Civ App) 170 SW2d 610, writ ref w o m; Wheatley v Washington Jockey Club, 39 Wash 2d 163, 234 P2d 878; Moss v Campbell's C. R.R., 75 W Va 62, 83 SE 721.

A police officer, off-duty but in uniform, working as a security guard at a fast-food restaurant, was acting as a police officer and not as an agent of the restaurant when the officer arrested one of the restaurant's patrons on its premises; the restaurant was therefore not liable on the false arrest claim.  Bauldock v Davco Food, Inc. (Dist Col App) 622 A2d 28.

A power company was not liable for an individual's detention as a robbery suspect; even though the power company's agent, an off-duty police officer, caused the individual to be detained, the agent arrested the individual pursuant to his powers and duties as a law enforcement officer, and not as an agent of the power company.  Welton v Georgia Power Co., 189 Ga App 17, 375 SE2d 108.

Where a deputy sheriff who was also employed by the defendant mining company as a watchman arrested plaintiff under a warrant issued by a justice of the peace on a complaint of a citizen of the county for an offense committed away from the company's property, and thereafter locked him up in a building on the defendant's property, the company was not responsible for the acts of the deputy sheriff, since he was in no way serving the company in making the arrest but rather was acting simply as an officer of the state in executing a process of the state regularly issued and in no way procured by the defendant company.  McKinney Steel Co. v Belcher, 205 Ky 453, 266 SW 42.

County police officer who was also employed as part-time security guard at shopping center was not agent of shopping center when he arrested witness to traffic accident for obstructing justice where his duty as security guard was to keep peace and good order and where his investigation of traffic accident out of which false arrest occurred was in performance of police department function.  Leach v Penn-Mar Merchants Asso., 18 Md App 603, 308 A2d 446.

Baseball club was not liable for alleged assault and false imprisonment resulting from acts committed in the parking lot of three city policemen employed by club as security guards after officers had "checked out" at the end of the game; where all employer did was to advise officers that a certain described person had a gun and decision as to what officers should do as police officers was left to them.  Carmelo v Miller (Mo App) 569 SW2d 365.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 § 19[c].

Footnote 27. Erie R. Co. v Johnson (CA6 Ohio) 106 F2d 550, 16 Ohio Ops 1; La Chance v Berlin S. Ry., 79 NH 291, 109 A 720; Hayes v Sears, Roebuck & Co., 34 Wash 2d 666, 209 P2d 468; McKain v Baltimore & O. R.R., 65 W Va 233, 64 SE 18.

Footnote 28. See Quinones v Maier & Berkele, Inc., 192 Ga App 585, 385 SE2d 719, cert vacated 259 Ga 875, 390 SE2d 594 (a merchant was not responsible for the actions of the officer where the officer did not act in any manner at the direction of or according to the policies and procedures of the store.); Troupe v Superx Drugs Corp. (Mo App) 659 SW2d 276.

Footnote 29. Dinmark v Farrier (Ala) 510 So 2d 819.

Footnote 30. Charles v Norfolk & W. R. Co. (CA7 Ill) 188 F2d 691, cert den  342 US 831,  96 L Ed 628,  72 S Ct 55; Caudle v Sears, Roebuck & Co., 236 Ala 37, 182 So 461; Missouri P. R. Co. v Yancey, 178 Ark 147, 10 SW2d 22, appeal after remand on other grounds 180 Ark 684, 22 SW2d 408 (where evidence was conflicting whether defendant's special railroad policeman arrested plaintiff for robbery of a boxcar or whether he was merely assisting town marshal, who had given him a description of men who had been burglarizing houses in the neighborhood); Hanna v Raphael Weill & Co., 90 Cal App 2d 461, 203 P2d 564; Louisville & N. R. Co. v Mason, 199 Ky 337, 251 SW 184; Hull v Boston & M. R. R., 210 Mass 159, 96 NE 58; Graalum v Radisson Ramp, Inc., 245 Minn 54, 71 NW2d 904; Winegar v Chicago, B. & Q. R. Co. (Mo App) 163 SW2d 357; State ex rel. Cain v Corbett, 235 NC 33, 69 SE2d 20; Darden v Louisville & N. R. Co., 171 Ohio St 63, 12 Ohio Ops 2d 82, 167 NE2d 765; Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470; Clement v Emmons (Tex Civ App) 170 SW2d 610, writ ref w o m; Wheatley v Washington Jockey Club, 39 Wash 2d 163, 234 P2d 878.

Department store which had hired off-duty policeman as security guard was liable for false imprisonment where guard arrested, searched, and confined plaintiff with no apparent justification, during which plaintiff was roughed up and detained in security room for short period of time.  Draeger v Grand Cent., Inc. (CA10 Utah) 504 F2d 142 (applying Utah law).

Drug store was liable for false arrest made by police officer, employed during off-duty hours as clerk and to protect store from shoplifters, where entire incident occurred in one continuous sequence and commenced while policeman was acting as employee. Drug Fair of Maryland, Inc. v Smith, 263 Md 341, 283 A2d 392.

Department store was liable for false arrest made by police officer employed during off-duty hours to protect store from and apprehend shoplifters, where officer acted under department store's direction and as its representative, not public's.  Nelson v R. H. Macy & Co. (Mo App) 434 SW2d 767.

Footnote 31. Cervantez v J. C. Penney Co., 24 Cal 3d 579, 156 Cal Rptr 198, 595 P2d 975.

Footnote 32. Cervantez v J. C. Penney Co., 24 Cal 3d 579, 156 Cal Rptr 198, 595 P2d 975.

Footnote 33. J. J. Newberry Co. v Smith, 227 Ala 234, 149 So 669; Hanna v Raphael Weill & Co., 90 Cal App 2d 461, 203 P2d 564; Central of G. R. Co. v Dabney, 44 Ga App 143, 160 SE 818; Noe v Meadows, 229 Ky 53, 16 SW2d 505,  64 ALR 648; Hirst v Fitchburg & L. S. R. Co., 196 Mass 353, 82 NE 10; Graalum v Radisson Ramp, Inc., 245 Minn 54, 71 NW2d 904; Winegar v Chicago, B. & Q. R. Co. (Mo App) 163 SW2d 357; Hayes v Sears, Roebuck & Co., 34 Wash 2d 666, 209 P2d 468.

In false imprisonment action based on plaintiff's arrest for simple larceny, jury question arose, under evidence presented on defendant's motion for summary judgment, whether off-duty policeman employed by store's director of security to conduct surveillance of warehouse acted only in his capacity of public officer in causing arrest and not in his capacity as store's agent.  Colonial Stores, Inc. v Holt, 118 Ga App 826, 166 SE2d 30.

Footnote 34. Philadelphia, B. & W. R. Co. v Stumpo, 112 Md 571, 77 A 266.

But see Dillard Dep't Stores, Inc. v Stuckey, 256 Ark 881, 511 SW2d 154 (it could not be said as a matter of law that an off-duty police officer was acting solely as a policeman rather than as an employee of defendant department store where the officer had worked for defendant in his off duty hours for 2 years, he was paid by defendant at a specified rate, his primary duty was to deter shoplifting; immediately after he arrested plaintiff he interrogated her in a back room provided by defendant, and at the police station the officer made out an offense report describing the offense as shoplifting and listing defendant as the complainant).

Footnote 35. Erie R. Co. v Johnson (CA6 Ohio) 106 F2d 550, 16 Ohio Ops 1; Fagan v Pittsburgh Terminal Coal Corp., 299 Pa 109, 149 A 159; Du Pont Rayon Co. v Henson, 162 Tenn 394, 36 SW2d 879.

Footnote 36. 42 USCS  1983.

Footnote 37. Murray v Wal-Mart, Inc. (CA8 Ark) 874 F2d 555.

Any liability of a partner for a copartner's act in effecting a false imprisonment without the partner's participation or consent must be based on the theory of the partners' reciprocal agency, and it is a general rule, applicable also to false imprisonment, that each member of a firm is liable for the act of a copartner done within the scope of the firm business, although the act constitutes a tort. 38   However, where the scope of the partner's express or implied authority does not extend to procuring the arrest or detention of a person, a party falsely arrested by a partner in the name of the firm has no cause of action against the firm or any partner who did not personally authorize the act or subsequently ratify it; 39   and a partner who is not responsible for any of the wrongful acts done to the false imprisonment plaintiff may be properly exonerated from individual liability. 40  Mere approval of, or acquiescence in, a false arrest by a partner may constitute such ratification as will render the approving party liable for actual damages. 41

Footnote 38. Page v Citizens' Banking Co., 111 Ga 73, 36 SE 418.

Footnote 39. Rosenkranz v Barker, 115 Ill 331, 3 NE 93.

A partner in an ordinary mercantile house has no implied authority to bind his copartner by his acts in detaining and searching a customer suspected of having stolen property from the store.  Bernheimer Bros. v Becker, 102 Md 250, 62 A 526.

Annotation: Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15 § 27.

Footnote 40. Niles v Big Sky Eyewear, 236 Mont 455, 771 P2d 114 (ovrld in part on other grounds by Sacco v High Country Indep. Press (Mont) 896 P2d 411, 10 BNA IER Cas 1041).

Footnote 41. Rosenkranz v Barker, 115 Ill 331, 3 NE 93.

D.  Defenses [59-115]

Research References
ALR Digest:  False Imprisonment §§ 29-32
ALR Index:  False Imprisonment and Arrest
10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  21-24,  37-41,  43,  44,  53,  71,  72,  74-78,  91-99,  102,  104-106
 26 Am Jur POF2d 617, False imprisonment–Failure to take arrestee before magistrate without unreasonable or unnecessary delay

1.  In General [59-67]

To avoid liability in an action for false imprisonment, either the defendant must show that he or she did not imprison the plaintiff or must justify the imprisonment. 42   The presence of probable cause for imprisonment is not a defense 43  unless it constitutes reasonable grounds for acting in defense of property, 44  or in making an arrest without a warrant. 45   On the other hand, proof of the existence of a privilege is a complete defense, 46  as is proof of the legality of the detention, which negates an essential element of the cause of action. 47

If one is unlawfully imprisoned, it is no defense to an action therefor that the plaintiff refused the offer of a third person present to pay the fine which would have allowed the plaintiff to go free. 48   An offer to release a plaintiff temporarily has no effect upon an action for false imprisonment. 49  

Failure of the plaintiff to join as defendants other persons equally liable with the person sued or the fact that a codefendant is held not liable is not a defense. 50 

Footnote 42. Southern R. Co. v Shirley, 121 Ky 863, 90 SW 597; Kroeger v Passmore, 36 Mont 504, 93 P 805; Kraft v Montgomery Ward & Co., 220 Or 234, 348 P2d 239,  92 ALR2d 1.

Footnote 43. Nesmith v Alford (CA5 Ala) 318 F2d 110, reh den (CA5 Ala) 319 F2d 859 and cert den  375 US 975,  11 L Ed 2d 420,  84 S Ct 489; Collyer v S. H. Kress & Co., 5 Cal 2d 175, 54 P2d 20; Hill v Henry, 90 Ga App 93, 82 SE2d 35; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452; Swafford v Vermillion (Okla) 261 P2d 187.

Footnote 44.  §§ 74,  79.

Footnote 45.  § 84.

Footnote 46. Bernard v United States (CA2 NY) 25 F3d 98.

Footnote 47. Hill v Georgia Power Co. (CA11 Ga) 786 F2d 1071, 122 BNA LRRM 2779, 104 CCH LC ¶ 11928.

Footnote 48. O'Donnell v Rowe, 16 Pa D & C 212.

Footnote 49. See Johnson v Norfolk & W. Ry., 82 W Va 692, 97 SE 189,  6 ALR 1469 (if an officer, having made an arrest, tenders the subject permission to go at large temporarily if he will return for trial, the permit so tendered is in the nature of an offer of parole which the subject is not bound to accept, and which does not amount to a release or an abrogation of the arrest; rejection of such offer and an accepted submission leave the arrest in full force).

Footnote 50. American R. Express Co. v Stone (CA1 Mass) 27 F2d 8,  66 ALR 202; Grimes v Greenblatt, 47 Colo 495, 107 P 1111; Page v Citizens' Banking Co., 111 Ga 73, 36 SE 418; Anderson v Averbeck, 189 Minn 224, 248 NW 719; Burton v Drennan, 332 Mo 512, 58 SW2d 740.

Although it has been denied that one may consent to an unlawful restraint, on the ground that liberty is an inalienable prerogative of which no one may divest himself, 51  it is frequently held or recognized that consent of the plaintiff to acts which constitute an imprisonment bars the right of recovery therefor. 52   Such consent is not, strictly speaking, a privilege or even a defense, but rather goes to negate the existence of any tort in the first instance. 53  Consent such as will bar the action must be unequivocally manifested; not all acts on the part of the plaintiff will constitute consent such as will bar the right of action. 54   Moreover, consent, to be effective as a bar, must be free from any element of fraud, duress, 55   or mistake. 56

Consent to matters after arrest may operate as a waiver of illegality. 57  

The defense of consent raises a question for the jury, as to the existence and voluntariness of the consent, although reasonableness of the confinement itself is not at issue when the defense is one of consent. 58

A minor over the age of fourteen may presumptively be capable of consenting to conduct which would otherwise be tortious, even if defendants' conduct in concealing the minor from the child's parents would be a civil wrong against the parents. 59   A parent has the right and duty to care for his or her minor child and may consent to the confinement of a child so as to preclude a false imprisonment action based upon such confinement. 60  

A voluntary consent to admission or treatment at a hospital may be a valid consent so as to negate tort liability, 61  as may a valid substituted consent given by a parent on behalf of a child. 62   Consent may also be implied from the circumstances of the case. 63

Footnote 51. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664.

Footnote 52. Vice v Holley, 88 Miss 572, 41 So 7; Brown v Meier & Frank Co., 160 Or 608, 86 P2d 79.

As to jury instructions relating to plaintiff's consent, see  § 137.

Footnote 53. George v International Soc'y for Krishna Consciousness (4th Dist) 3 Cal App 4th 52, 4 Cal Rptr 2d 473, 92 CDOS 985, 92 Daily Journal DAR 1593, reh den (Cal App 4th Dist) 92 CDOS 1855, 92 Daily Journal DAR 2846 and review den, op withdrawn by order of ct (Cal) 92 CDOS 3848, 92 Daily Journal DAR 5838.

Footnote 54. See Grimes v Greenblatt, 47 Colo 495, 107 P 1111 (where the plaintiff, being in possession of wire claimed to have been stolen, said to the officers who demanded it of him, "No, you take me, but you can't take the wire," he did not consent to his arrest or imprisonment).

Consent to forgo an executive order for extradition does not amount to a waiver and relinquishment of any right to object to the unlawfulness of the arrest, where the plaintiff protested his innocence and asserted that he was being deprived of his liberty unlawfully.  Drake v Keeling (Iowa) 287 NW 596.

A person illegally detained in a hospital is not barred from his right of action therefor by the fact that he contracted to be subject to the rules of the institution.  Cook v Highland Hospital, 168 NC 250, 84 SE 352.

Footnote 55. See Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664 (the fact that one consents, under compulsion, to transportation to the state line by persons intent on driving him out of the state does not prevent their act in so deporting him from being false imprisonment).

Footnote 56. Whitman v Atchison, T. & S. F. R. Co., 85 Kan 150, 116 P 234 (consent of passenger to remain and make statement upon being told by conductor that it was required by law).

Footnote 57.  §§ 63 et seq.

Footnote 58. Collins v Straight, Inc. (CA4 Va) 748 F2d 916, 17 Fed Rules Evid Serv 1351.

Footnote 59. George v International Soc'y for Krishna Consciousness (4th Dist) 3 Cal App 4th 52, 4 Cal Rptr 2d 473, 92 CDOS 985, 92 Daily Journal DAR 1593, reh den (Cal App 4th Dist) 92 CDOS 1855, 92 Daily Journal DAR 2846 and review den, op withdrawn by order of ct (Cal) 92 CDOS 3848, 92 Daily Journal DAR 5838.

Footnote 60. R.J.D. v Vaughan Clinic, P.C. (Ala) 572 So 2d 1225 (summary judgment affirmed in favor of psychiatric hospital; hospital was not liable for false imprisonment of 17-year old girl whose admission had been approved by her mother, as mother had common-law right to commit her unemancipated child).

As to child's right of action against parent for false imprisonment or other intentional torts, generally, see 59 Am Jur 2d,  Parent and Child § 148.

Footnote 61. Day v Providence Hosp. (Ala) 622 So 2d 1273, reh den, without op (Ala) 1993 Ala LEXIS 986.

Footnote 62. R.J.D. v Vaughan Clinic, P.C. (Ala) 572 So 2d 1225.

Footnote 63. See Blackman for Blackman v Rifkin (Colo App) 759 P2d 54 (plaintiff's extreme intoxication and head trauma warranted retention in emergency room to prevent further harm to herself or others, and the hospital staff's privilege to restrain her from leaving was commensurate with consent implied for necessary treatment).

While there is some authority to the effect that the negligence of a plaintiff may bar recovery for the intentional tort of false imprisonment, 64   such authority is contrary to the prevailing view that negligence of the plaintiff is not a defense to an intentional tort. 65   Moreover, many jurisdictions have adopted the comparative negligence or fault doctrine, in some form. 66 
In any event, plaintiff's contributory negligence may be proved in mitigation of damages. 67 

Footnote 64. See Sindle v New York City Transit Authority,  33 NY2d 293, 352 NYS2d 183, 307 NE2d 245, in which, after defendant, a school bus driver, advised the student passengers that he was taking them to the police station because of the damage they had done to the bus, plaintiff was seriously injured when he either jumped or fell to the street attempting to escape through a window while the bus was moving.  The court, after noting that alighting from a moving vehicle, absent some compelling reason, is negligence per se, stated that upon retrial, if the trier of fact finds that plaintiff was falsely imprisoned but that he acted unreasonably for his own safety by placing himself in a perilous position in the window of the bus preparatory to an attempt to alight, recovery for the bodily injuries subsequently sustained would be barred.

Footnote 65. See Cieplinski v Severn, 269 Mass 261, 168 NE 722 (contributory negligence resulting in injury to the plaintiff is not a defense in an action of false imprisonment, when defendant's wrong has the element of wilful, reckless and wanton misconduct).

See generally 57 Am Jur 2d,  Negligence § 914; 74 Am Jur 2d,  Torts § 45.

Footnote 66. 57A Am Jur 2d,  Negligence § 1165.

Footnote 67.  § 129.

A release executed in consideration of an agreement to seek the dismissal of a pending prosecution is contrary to public policy and unenforceable, and the trial court may properly refuse to submit the issue of the release to the jury. 68   One who is arrested on a charge which is no offense under the law and who secured release under a promise not to prosecute is not barred from suit, for such promise is without consideration and may be found to have been exacted by the exigencies of the situation. 69   However, a release in which a defendant accused of committing the crime of shoplifting has discharged the complaining party from all civil liability is not void as a matter of public policy, nor is such a release the product of duress because it was executed in consideration of a nolle prosequi entered by the state's attorney in the exercise of broad prosecutorial discretion, where there was probable cause for the charge and the complainant did not participate in the decision of the state's attorney, directly or indirectly. 70

Footnote 68. Kroger Co. v Demakes (Tex Civ App Houston (1st Dist)) 566 SW2d 653, writ ref n r e (Sep 20, 1978) and rehg of writ of error overr on other grounds (Oct 25, 1978).

Footnote 69. Rice v Harrington, 38 RI 47, 94 A 736.

Footnote 70. Food Fair Stores, Inc. v Joy, 283 Md 205, 389 A2d 874.

It has been held or recognized in some cases that one may, by one's acts at the time of the alleged illegal detention, waive any right to recover therefor from the judicial officer involved for false imprisonment. 71   It is generally held, however, that there can be no valid waiver of an objection that a court lacks jurisdiction over the subject matter, and that there can be no estoppel to object on this ground. 72

The conduct of the person arrested may amount to a waiver of the right to complain of the failure to take an arrested person promptly before a magistrate or court. 73    Waiver may be found where it appears that an arrangement was made whereby the plaintiff was released upon his or her promise to appear at a future time. 74   Also, it is frequently held that the right to complain of the failure to take an arrested person before a magistrate within a reasonable time or without unnecessary delay may be found waived where the prisoner was discharged at his or her own request or with his or her consent. 75   although there is authority to the contrary, 76   Also, the arrested person has sometimes been deemed to have waived the failure to be taken before a magistrate within a reasonable time or without unnecessary delay, where the person agreed to await an investigation of the case, 77   or the outcome of a polygraph test. 78

Footnote 71. Pierce v Mitchell, 77 Wash 453, 137 P 1008.

Footnote 72. See Cox v Perkins, 299 Ky 470, 185 SW2d 954 (one committed pursuant to a judgment rendered by a justice of the peace in a trial held without the territorial jurisdiction of the justice does not waive, and is not estopped to assert, his or her right of action against the justice for false imprisonment by reason of the facts that the holding of the trial outside the jurisdiction was upon the motion and request of the plaintiff and plaintiff's father, or that no objection was made at the time of the trial as to the place of holding trial).

Where a justice of the peace was without jurisdiction of proceedings of contempt because the warrant was not issued on oath or affirmation, appearance before the justice's court under the illegal warrant did not constitute waiver of the right of the alleged contemner to proceed against the justice for false imprisonment.  Church v Pearne, 75 Conn 350, 53 A 955.

Footnote 73. Janus v United States (CA9 Idaho) 38 F2d 431; Twilley v Perkins, 77 Md 252, 26 A 286; Oxford v Berry, 204 Mich 197, 170 NW 83 (recognizing rule); Venable v Huddy, 77 NJL 351, 72 A 10; Singerman v William J. Burns International Detective Agency, Inc., 219 App Div 291, 219 NYS 724; Haggard v First Nat'l Bank, 72 ND 434, 8 NW2d 5; Mackay v Maxwell (App, Madison Co) 17 Ohio L Abs 637, error dismd 128 Ohio St 643, 193 NE 75; Brown v Meier & Frank Co., 160 Or 608, 86 P2d 79.

Where the officer offered to complete the investigation as speedily as possible and effect the release of the arrested person without filing a formal charge if he then determined that a charge should not be filed, the officer having pointed out that by permitting him to follow this course of action the arrested person might save the cost of a bail bond and an attorney's fee, and where the plaintiff assented to this procedure, the plaintiff would be held not to have a cause of action for false imprisonment for delay.  Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699.

Where the plaintiff, arrested without a warrant, agreed to remain in custody without any warrant being issued for a period of 48 hours and she was released within that time, there was no liability for false imprisonment.  Peloquin v Hibner,  231 Wis 77, 285 NW 380.

Annotation: Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment,  98 ALR2d 966 § 22.

Practice References False imprisonment–Failure to take arrestee before magistrate without unreasonable or unnecessary delay.   26 Am Jur POF2d 617, 639, § 10.

Footnote 74. Venable v Huddy, 77 NJL 351, 72 A 10; Mackay v Maxwell (App, Madison Co) 17 Ohio L Abs 637, error dismd 128 Ohio St 643, 193 NE 75.

Footnote 75. Doherty v Shea, 320 Mass 173, 68 NE2d 707; Singerman v William J. Burns International Detective Agency, Inc., 219 App Div 291, 219 NYS 724; Reed v Hutton, 1 Tenn App 36.

Where plaintiff told the sheriff that she did not want a trial or an appearance before the justice of the peace, and she consented and agreed together with and in company with her brothers that the defendant sheriff might discharge her from custody without taking her before the justice of the peace who issued the warrant, the court was correct in instructing the jury that after the consent of the plaintiff that she be discharged from custody without any hearing or trial and without being taken before the justice of the peace, plaintiff was not entitled to recover any damages in the action.  Kredit v Ryan, 68 SD 274, 1 NW2d 813.

Annotation:  98 ALR2d 966 § 23[a].

Footnote 76. Stewart v Feeley, 118 Iowa 524, 92 NW 670 (ovrld in part on other grounds by Young v Des Moines (Iowa) 262 NW2d 612,  1 ALR4th 431); Stromberg v Hansen, 177 Minn 307, 225 NW 148; Newhall v Egan, 28 RI 584, 68 A 471.

Annotation:  98 ALR2d 966 § 23[b].

Footnote 77. Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699; Bishop v Lucy, 21 Tex Civ App 326, 50 SW 1029, reh overr on other grounds (Tex Civ App) 51 SW 854.

Annotation:  98 ALR2d 966 § 24.

Footnote 78. Grooms v Fervida, 182 Ind App 664, 396 NE2d 405, holding that plaintiff's agreement to postpone appearance before magistrate until outcome of polygraph test was learned constituted waiver of right to appear promptly and of right to give bail which precluded action for false imprisonment.

The authorities are in conflict as to whether the giving of a bail bond by the person arrested constitutes a waiver.  In some jurisdictions, by merely entering into a recognizance, a party is held to have waived irregularities in the prior proceedings, for the party is then held by force of the recognizance, and not by any other means. 79   In other jurisdictions, there is held to be no waiver in such a case, for the party, by giving bail only, submits to the custody of persons of his or her own choosing, rather than remaining in the custody of the officer. 80

Footnote 79. See Hill v Day, 168 Kan 604, 215 P2d 219 (the giving of a bond for bail and an appeal bond constitutes a waiver of any right to object to the legality of an arrest without a warrant).

Footnote 80. Buzzell v Emerton, 161 Mass 176, 36 NE 796; Worden v Davis, 195 NY 391, 88 NE 745.

The general rule is that civil liability for an illegal arrest is not waived by pleading guilty to the offense. 81    If, however, the imprisonment is claimed to have been illegal because the plaintiff was arrested without a warrant and without probable cause, a plea of guilty of the offense charged or conviction thereof upon trial may well be held conclusive as to the existence of probable cause, 82   and may thus operate as a bar. 83

Footnote 81. Knickerbocker S. B. Co. v Cusack (CA2 NY) 172 F 358; Anderson v Foster, 73 Idaho 340, 252 P2d 199; McCullough v Greenfield, 133 Mich 463, 95 NW 532; Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470; Hotzel v Simmons,  258 Wis 234, 45 NW2d 683.

Footnote 82.  § 85.

Footnote 83. Pete v Metcalfe (CA5 Tex) 8 F3d 214; Erie R. Co. v Reigherd (CA6 Ohio) 166 F 247, 7 Ohiolr 485; Hanson v Snohomish, 121 Wash 2d 552, 852 P2d 295.

The fact that a police officer making an unlawful arrest was acting under direct orders of a superior is not generally a defense to an action for false imprisonment. 84   It may, however, be admissible in mitigation of damages. 85  

Footnote 84. Grau v Forge, 183 Ky 521, 209 SW 369,  3 ALR 642; Mason v Wrightson, 205 Md 481, 109 A2d 128; Leger v Warren, 62 Ohio St 500, 57 NE 506; Christ v McDonald, 152 Or 494, 52 P2d 655.

Forms: Answer raising defense that police officer made arrest on command of superior.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  102.

Footnote 85.  § 130.

A matter which was in issue and disposed of in the original action out of which the plaintiff's imprisonment arose may be res judicata in an action for false imprisonment. 86    However, if the defendant was not a party to the original proceeding, a determination therein is not binding upon that individual. 87   Similarly, the doctrine of collateral estoppel is not applicable where the parties to the litigation are not identical, 88  or where the burdens of proof in the two proceedings are different. 89

The question of whether a recovery in an action or count for malicious prosecution is a bar to a recovery for false imprisonment based on the same acts is disputed.  Some authorities hold that only one recovery can be had on either cause of action, 90  but other authorities declare that the actions are so distinct that a recovery in one does not bar recovery in the other. 91    Where, however, an issue is fundamental to both the malicious prosecution and false imprisonment actions, the determination of that issue in one has been held to be conclusive in the other. 92

Footnote 86. Castor v Bates, 127 Mich 285, 86 NW 810 (holding that where plaintiff secured his release on habeas corpus, defendant appearing and being heard, adjudication was conclusive).

Plaintiff in a state law tort action for false imprisonment may be collaterally estopped from relitigating the issue of probable cause for a warrantless arrest which was resolved against the plaintiff in prior civil rights litigation.  Witherspoon v United States (CA5 Miss) 838 F2d 803, cert den  488 US 858,  102 L Ed 2d 122,  109 S Ct 150.

Plaintiff precluded from relitigating an issue of "justification" which was previously determined in an administrative proceeding.  Ryan v New York Tel. Co.,  62 NY2d 494, 478 NYS2d 823, 467 NE2d 487 (among conflicting authorities on other grounds noted in Pinaud v County of Suffolk (CA2 NY) 52 F3d 1139).

Party could not seek redetermination of an identification issue resolved against the individual in a prior criminal proceeding. Hanson v Snohomish, 121 Wash 2d 552, 852 P2d 295.

Footnote 87. Brinkman v Drolesbaugh, 97 Ohio St 171, 119 NE 451.

Footnote 88. Duncan v Clements (CA8 Mo) 744 F2d 48 (among conflicting authorities on other grounds noted in Mahlberg v Mentzer (CA8 Neb) 968 F2d 772).

Footnote 89. Warren v Byrne (CA2 NY) 699 F2d 95.

Footnote 90. Boeger v Langenberg, 97 Mo 390, 11 SW 223.

Footnote 91. Gore v Gorman's Inc. (DC Mo) 148 F Supp 241, app dismd (CA8 Mo) 244 F2d 716; Ira v Columbia Food Co., 226 Or 566, 360 P2d 622,  86 ALR2d 1378; McNunis v Zukosky, 141 W Va 145, 89 SE2d 354.

Annotation: Judgment in false imprisonment action as res judicata in later malicious prosecution action, or vice versa,  86 ALR2d 1385.

Footnote 92. Robinson v Chicago G. W. R. Co. (DC Mo) 154 F Supp 626 (holding that where acts involved were held in prior action for malicious prosecution to be beyond authority of agents of defendant, finding would be applicable in subsequent false imprisonment action).

2.  Justification [67-96]

a.  In General [68-72]

Where a social worker has a statutory duty to report suspected child abuse, and has reasonable cause to believe that such abuse has occurred, the social worker cannot be held liable for false imprisonment for taking the child to an emergency room and seeking his or her hospitalization. 93

A school bus driver entrusted with the care of student passengers and the custody of public property, has the duty to take reasonable measures for the safety and protection of both the passengers and the property, and, in this regard, the reasonableness of the driver's actions, as bearing on the defense of justification, is to be determined from a consideration of all the circumstances; at a minimum, this would seem to import a consideration of the need to protect the persons and property in the driver's charge, the duty to aid the investigation and apprehension of those inflicting damage, the manner and place of the occurrence, and the feasibility and practicality of other alternative courses of action. 94  

The relationship of husband and wife barred actions between them for false imprisonment under the common-law concept of the unity of the spouses, since abrogated by statute in a number of jurisdictions. 95   That relationship may also authorize the rendition of substituted consent to treatment, under some circumstances which might otherwise amount to false imprisonment. 96

One may be privileged to interfere with the liberty of another, within limits, for the purpose of preventing the commission of a crime, defending a third person, 97  or defending oneself, 98  so long as that privilege is exercised, as provided by law, for the purpose of defending against an unlawful force. 99

However, an innkeeper's right to exclude the disorderly does not include the right to take a patron who is willing to leave an establishment, against his or her will, to a private place in order to read that person an eviction notice, 1  nor will a casino's right to detain a patron suspected of violating the gaming laws justify a detention which is unreasonable and without probable cause. 2

Footnote 93. Curtis v State Dep't for Children & Their Families (RI) 522 A2d 203.

Footnote 94. Sindle v New York City Transit Authority,  33 NY2d 293, 352 NYS2d 183, 307 NE2d 245.

Footnote 95. See 41 Am Jur 2d,  Husband and Wife §§ 522,  526.

Footnote 96. Lolley v Charter Woods Hosp., Inc. (Ala) 572 So 2d 1223.

Footnote 97. Drabek v Sabley,  31 Wis 2d 184, 142 NW2d 798,  20 ALR3d 1435.

Footnote 98. Cunningham v Shea, 111 App Div 624, 97 NYS 884; Drabek v Sabley,  31 Wis 2d 184, 142 NW2d 798,  20 ALR3d 1435.

Footnote 99. State v Brown, 235 Neb 374, 455 NW2d 547.

Footnote 1. Simone v Golden Nugget Hotel & Casino (CA3 Pa) 844 F2d 1031, 25 Fed Rules Evid Serv 399.

Footnote 2. Hazelwood v Harrah's, 109 Nev 1005, 862 P2d 1189.

While there is some conflict on the question, it is generally held that reliance on the advice of counsel, whether private or public (such as a prosecuting or county attorney), is a good and complete defense to an action of false arrest or imprisonment, 3   provided that such advice is predicated upon a full, correct, and fair statement of all facts bearing upon the guilt of the accused and acted upon in good faith by the recipient. 4    Thus, it has been held that the fact that the defendant acted on the advice of counsel in calling for police assistance in removing an alleged trespasser was a defense to the latter's action for false arrest and imprisonment. 5   

Whether the defendant has fully and clearly stated the facts to counsel in seeking counsel's advice is a question for the jury, under proper charge from the court. 6    

In addition, evidence may be introduced, in mitigation of punitive damages, to show that a defendant acted under advice of counsel, thus indicating good faith on the part of the defendant and rebutting the existence of malice. 7 

Footnote 3. Seaboard Oil Co. v Cunningham (CA5 Fla) 51 F2d 321, cert den  284 US 657,  76 L Ed 557,  52 S Ct 35; Toomey v Tolin (Fla App D4) 311 So 2d 678, cert dismd (Fla) 336 So 2d 604; Herbeck v Holdeman (Fla App D2) 163 So 2d 766; Galarza v Sprague, 284 Ill App 254, 1 NE2d 275; Crawford v Huber, 215 Mich 564, 184 NW 594,  39 ALR 1392 (reliance on advice of prosecuting attorney); Biddle v Jenkins, 61 Neb 400, 85 NW 392; Price v Cook, 120 Okla 105, 250 P 519 (sheriff acting on advice of county attorney).

Court properly refused to grant judgment n.o.v. in favor of alleged trespasser in false imprisonment action brought by him against head resident of student apartment building, even though plaintiff had been on property at express request of lawful tenant and hence could not have been guilty of trespass, where head resident had informed state's attorney regarding plaintiff's activities in the apartment building and had acted upon attorney's advice in calling for police assistance in removing plaintiff. Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531.

For decisions to the contrary, See Fire Ass'n of Philadelphia v Fleming, 78 Ga 733, 3 SE 420; Butcher v Adams, 310 Ky 205, 220 SW2d 398 (reliance on legal opinion of county attorney).

Footnote 4. Seaboard Oil Co. v Cunningham (CA5 Fla) 51 F2d 321, cert den  284 US 657,  76 L Ed 557,  52 S Ct 35; Toomey v Tolin (Fla App D4) 311 So 2d 678, cert dismd (Fla) 336 So 2d 604; Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531; Biddle v Jenkins, 61 Neb 400, 85 NW 392.

Failure to disclose all the known facts to the prosecutor negates prosecutorial advice as to the existence or not of probable cause, as a defense to a false imprisonment action.  Murray v Wal-Mart, Inc. (CA8 Ark) 874 F2d 555.

In an action for false arrest and malicious prosecution based on the arrest of a newspaper reporter for disrupting a public meeting of a town board by refusing to stop his tape recorder, the court did not err in refusing to instruct the jury that any malice on the board's part was negated by advice it received from the town attorney, where there was no evidence that the attorney had advised the board concerning the reporter's right to tape record the board meetings.  Feldman v Bethel (3d Dept)  106 App Div 2d 695, 484 NYS2d 147.

Footnote 5. Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531, holding that court properly refused to grant judgment n.o.v. in favor of alleged trespasser in false imprisonment action brought by him against head resident of student apartment building, even though plaintiff had been on property at express request of lawful tenant and hence could not have been guilty of trespass, where head resident had informed state's attorney regarding plaintiff's activities in the apartment building and had acted upon attorney's advice in calling for police assistance in removing plaintiff.

Annotation: False imprisonment:  liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer,  98 ALR3d 542 § 5.

Footnote 6. Seaboard Oil Co. v Cunningham (CA5 Fla) 51 F2d 321, cert den  284 US 657,  76 L Ed 557,  52 S Ct 35.

Footnote 7.  § 130.

Reliance upon the advice of counsel has been recognized as a defense in a suit for false imprisonment based on the institution of insanity proceedings, provided the client had made a full disclosure and acted in good faith. 8 

Footnote 8. Biddle v Jenkins, 61 Neb 400, 85 NW 392.

See also Rosvall v Provost, 279 Minn 119, 155 NW2d 900, an action for both false imprisonment and malicious prosecution, based on a hospital commitment for a mental examination, where the court noted in affirming a summary judgment for certain city officials that the "Petition for Commitment" was filed after consultation with the county attorney, in whose office it was prepared.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523 § 6.

Where an arrest or imprisonment would ordinarily have been justified under the terms of a statute or ordinance with the violation of which the person arrested or imprisoned was charged, the fact that the provision in question subsequently turned out to have been unconstitutional or otherwise void has frequently been held not to preclude the defense of justification by a private person. 9   However some authorities subscribing to the general view that a private person is not liable for false imprisonment merely because the enactment under which the person proceeded was invalid indicate that the principle is applicable only where the private person acted without malice and in the good-faith belief that the measure was valid. 10   Thus, an arrest under a statute known by the complaining witness to be invalid has been held to be actionable. 11

On the other hand, a few courts have taken the view that when an arrest is made at the instance of a private person under an enactment which is subsequently found to be unconstitutional or otherwise invalid, the arrest is false and the private person is liable for false imprisonment. 12   Under such view, it has been said that an arrest under an unconstitutional statute is prima facie false imprisonment and the time at which the statute is declared unconstitutional is inconsequential since unconstitutional measures are deemed to be so from their inception. 13   

Footnote 9. Fleming v McEnany (CA2 Vt) 491 F2d 1353 (construing Vermont law); Bohri v Barnett (CA7 Wis) 144 F 389; Miller v Stinnett (CA10 NM) 257 F2d 910 (applying New Mexico law); Rush v Buckley, 100 Me 322, 61 A 774; Gilbert v Satterlee, 101 App Div 313, 91 NYS 960.

As to liability or immunity of judicial officers acting under invalid law, see  § 104.

Annotation: False imprisonment:  civil liability of private person as affected by invalidity of statute or ordinance for violation of which arrest was made,  16 ALR3d 535 § 2[a].

Footnote 10. Bohri v Barnett (CA7 Wis) 144 F 389; Hill v Taylor, 50 Mich 549, 15 NW 899; Gifford v Wiggins, 50 Minn 401, 52 NW 904.

Annotation:  16 ALR3d 535 § 2[b].

Footnote 11. Miller v Stinnett (CA10 NM) 257 F2d 910.

Footnote 12. Williams v Carolina Coach Co. (DC Va) 111 F Supp 329, affd (CA4 Va) 207 F2d 408; Sumner v Beeler, 50 Ind 341.

See also Miller v Stinnett (CA10 NM) 257 F2d 910 (applying New Mexico law), where the court, although finding that defendant's bad faith was sufficient to hold him liable for falsely imprisoning plaintiff under an ordinance he knew to have been twice previously declared invalid, indicated that the arrest might have been unprivileged because of the invalidity alone.

A drugstore owner who caused the arrest and detention of the plaintiff by the police, and signed an affidavit for the arrest charging the plaintiff with a violation of an ordinance which was subsequently held to be unconstitutional, was guilty of false imprisonment.  Coleman v Mitnick, 137 Ind App 125, 202 NE2d 577,  16 ALR3d 527, reh den 137 Ind App 133, 203 NE2d 834,  16 ALR3d 533.

Annotation:  16 ALR3d 535 § 3.

Footnote 13. Coleman v Mitnick, 137 Ind App 125, 202 NE2d 577,  16 ALR3d 527, reh den 137 Ind App 133, 203 NE2d 834,  16 ALR3d 533.

One is justified in restraining, without legal proceedings, an insane person who is dangerous to the person or others, and generally an action for false arrest or imprisonment will not lie for the arrest or detention. 14   Insanity which does not render the insane person dangerous to self or others, however, is not usually a lawful excuse for restraint without judicial proceedings. 15    

It is frequently held that the right to arrest is dependent upon the existence of the fact of insanity and of the necessity for restraint, rather than upon a mere belief of insanity. 16   Under this view, the person who makes the arrest assumes the responsibility of an erroneous estimate as to the arrestee's condition, and the fact that the arrested person was actually sane, or at least was not actually insane, may render the arrester liable for false imprisonment. 17  On the other hand, it is sometimes held or recognized that a summary arrest of a person may be justified on the ground that the arrester had reasonable grounds to believe and did believe at the time that the person arrested was dangerously insane. 18  

An imprisonment on the ground of insanity, even if initially justifiable, may become unlawful if the detention is protracted unnecessarily without the commencement of sanity proceedings. 19  

Restraint for an emergency detention upon allegation of mental illness or dangerousness which is a purely pretextual rationale for confinement, may subject the arresting party or official to liability for false imprisonment. 20

Footnote 14. Crawford v Brown, 321 Ill 305, 151 NE 911,  45 ALR 1457; Maxwell v Maxwell, 189 Iowa 7, 177 NW 541,  10 ALR 482; Warner v State, 297 NY 395, 79 NE2d 459, reh gr 297 NY 865, 79 NE2d 271; Mulberry v Fuellhart, 203 Pa 573, 53 A 504.

As to commitment of mentally ill person under judicial proceedings, see  §§ 33,  34 et seq.

Annotation: Right, without judicial proceeding, to arrest and detain one who is, or is suspected of being, mentally deranged,  92 ALR2d 570 § 3.

Footnote 15. Collins v Jones, 131 Cal App 747, 22 P2d 39 (ovrld in part on other grounds by Whaley v Kirby (4th Dist) 208 Cal App 2d 232, 25 Cal Rptr 50); Maxwell v Maxwell, 189 Iowa 7, 177 NW 541,  10 ALR 482; Belger v Arnot, 344 Mass 679, 183 NE2d 866; Warner v State, 297 NY 395, 79 NE2d 459, reh gr 297 NY 865, 79 NE2d 271.

In action for false arrest and false imprisonment by plaintiff who claimed he was forcibly taken to mental hospital by police for psychiatric examination, judgment for defendant was reversed where there was no evidence indicating need for immediate action to prevent imminent harm and plaintiff's involuntary detention could only be justified by proceedings initiated by director of hospital. Siegel v New York (1st Dept)  43 App Div 2d 271, 351 NYS2d 394.

Annotation:  92 ALR2d 570 § 4.

Footnote 16. Crawford v Brown, 321 Ill 305, 151 NE 911,  45 ALR 1457; Maxwell v Maxwell, 189 Iowa 7, 177 NW 541,  10 ALR 482; Witte v Haben, 131 Minn 71, 154 NW 662.

Footnote 17. Crawford v Brown, 321 Ill 305, 151 NE 911,  45 ALR 1457.

Forms: Complaint for instigation of arrest and imprisonment without warrant on insanity charge.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  53.

Footnote 18. Christiansen v Weston, 36 Ariz 200, 284 P 149; Plancich v Williamson, 57 Wash 2d 367, 357 P2d 693,  92 ALR2d 559.

Footnote 19. Mulberry v Fuellhart, 203 Pa 573, 53 A 504.

Annotation:  92 ALR2d 570 § 6.

Footnote 20. Wagenmann v Adams (CA1 Mass) 829 F2d 196.

An action may be brought on false imprisonment and other theories of recovery based on efforts made to prompt an individual's disaffiliation from a religious sect, 21   which conduct is sometimes referred to as deprogramming. 22   Evidence that a plaintiff has been abducted and confined against his or her will for a period of days without any reasonable means of escape is sufficient to establish liability for false imprisonment under circumstances of attempted deprogramming, particularly where the plaintiff is confined beyond the time required to turn the plaintiff over to lawful authorities and lawful alternatives such as civil commitment are not used. 23   The existence of a guardianship over the person confined is not necessarily dispositive of that person's false imprisonment claim. 24          

Recovery may be denied where there is evidence that the subject of deprogramming efforts has assented to the deprivation of liberty. 25      

An allegation that a police department has colluded in a deprogramming effort may give rise to a federal civil rights claim, 26  although use of a state court to obtain a guardianship order does not constitute sufficient state action to give rise to liability under § 1983. 27         

Footnote 21. Peterson v Sorlien (Minn) 299 NW2d 123,  11 ALR4th 208, cert den  450 US 1031,  68 L Ed 2d 227,  101 S Ct 1742.

Footnote 22. Weiss v Patrick (DC RI) 453 F Supp 717, affd without op (CA1 RI) 588 F2d 818, cert den  442 US 929,  61 L Ed 2d 296,  99 S Ct 2858.

Law Reviews: For a law review article suggesting that liability for false imprisonment might be imposed on the religious sect itself, see He Who Controls the Mind Controls the Body:  False imprisonment, Religious Cults and the Destruction of Volitional Capacity, 25 Val U L Rev 407-54 (Spr, 1991).

Footnote 23. Eilers v Coy (DC Minn) 582 F Supp 1093.

Footnote 24. Taylor v Gilmartin (CA10 Okla) 686 F2d 1346, cert den  459 US 1147,  74 L Ed 2d 994,  103 S Ct 788 and cert den  463 US 1229,  77 L Ed 2d 1411,  103 S Ct 3570, reh den  463 US 1249,  77 L Ed 2d 1456,  104 S Ct 37 and (among conflicting authorities on other grounds noted in Peloza v Capistrano Unified Sch. Dist. (CA9 Cal) 37 F3d 517, 94 CDOS 7611, 94 Daily Journal DAR 14090).

Footnote 25. Peterson v Sorlien (Minn) 299 NW2d 123,  11 ALR4th 208, cert den  450 US 1031,  68 L Ed 2d 227,  101 S Ct 1742.

As to defense based upon consent, see  § 60.

Footnote 26. Cooper v Molko (ND Cal) 512 F Supp 563 (among conflicting authorities on other grounds noted in Peloza v Capistrano Unified Sch. Dist. (CA9 Cal) 37 F3d 517, 94 CDOS 7611, 94 Daily Journal DAR 14090).

Footnote 27. Taylor v Gilmartin (CA10 Okla) 686 F2d 1346, cert den  459 US 1147,  74 L Ed 2d 994,  103 S Ct 788 and cert den  463 US 1229,  77 L Ed 2d 1411,  103 S Ct 3570, reh den  463 US 1249,  77 L Ed 2d 1456,  104 S Ct 37 and (among conflicting authorities on other grounds noted in Peloza v Capistrano Unified Sch. Dist. (CA9 Cal) 37 F3d 517, 94 CDOS 7611, 94 Daily Journal DAR 14090).

b.  Protection of Property by Detention of Customer or Employee [74-80]

(1).  Common-law rule [74, 75]

At common law, the owner of property, in the exercise of the inherent right to protect it, is ordinarily justified in restraining another who seeks to interfere with or injure it where the restraint or detention is reasonable in time and manner. 28   Thus, where a person has probable cause or reasonable grounds to believe that another is taking his or her property, the person is justified in detaining the suspect for a reasonable length of time for the purpose of making an investigation in a reasonable manner. 29    In such cases, it has been held that probable cause is a defense, even though the injury which is about to be inflicted constitutes only a misdemeanor, for it is the existence of a reasonable ground to suppose that one's property is in danger which gives right to the protection. 30   Merchants who detain individuals whom they have probable cause to believe are about to injure their property are privileged against a false imprisonment action, if the detention is carried out for a reasonable time in a reasonable manner. 31   It follows that the owner of a store or other premises has a right to detain a customer or patron, for a reasonable time and for a reasonable investigation, whom the owner has reasonable grounds to believe has not paid for what was received, 32  or is attempting to take goods without payment. 33    

Liability for false imprisonment will be imposed if there are insufficient grounds to justify the detention 34   or if the detention is for an unreasonable length of time, 35  or is imposed in an unreasonable manner. 36   The restraint may not be justified under the rules of arrest, and liability for false arrest or imprisonment may be imposed if the defendant arrests the suspected individual and takes the person into custody. 37  

The existence of probable cause 38   and the reasonableness of the detention of a patron 39    are ordinarily questions for the jury, at least where the facts are in dispute. 40   However, a question which is ordinarily one of fact may become one of law for the court to determine, as where the facts are undisputed, 41  or where reasonable persons would not differ in their deductions from the facts. 42  

Footnote 28. Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495.

Footnote 29. Collyer v S. H. Kress & Co., 5 Cal 2d 175, 54 P2d 20.

Although store owners may not proceed with abandon to rectify the problem of shoplifting, they should not be deterred by the prospect of a punitive damages award from attempting to apprehend those responsible for the theft of merchandise.  Guion v Associated Dry Goods Corp. (Lord & Taylor Div.) (1st Dept)  56 App Div 2d 798, 393 NYS2d 8, affd  43 NY2d 876, 403 NYS2d 465, 374 NE2d 364.

As to what constitutes "reasonable manner" and "reasonable time" under shoplifting statutes, see  § 80.

Footnote 30. Collyer v S. H. Kress & Co., 5 Cal 2d 175, 54 P2d 20; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495.

Footnote 31. Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

But see Jefferson Dry Goods Co. v Stoess, 304 Ky 73, 199 SW2d 994, holding that detention of a customer by store authorities was not justified, though the latter had probable cause to believe that the customer had taken merchandise, where the offense constituted a mere misdemeanor.

Footnote 32. Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495.

See also S. H. Kress & Co. v Bradshaw, 186 Okla 588, 99 P2d 508, stating that store authorities have the right to detain a customer for a reasonable time pending investigation by them of coin tendered by the customer in payment for goods purchased, and thought by clerk to be counterfeit.

Forms: Answers asserting defense of reasonable detention of suspected shoplifter.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  37-41.

–Instructions to jury on privilege of property owner to reasonably detain customer or patron to investigate suspected theft.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  43,  44.

Footnote 33. Collyer v S. H. Kress & Co., 5 Cal 2d 175, 54 P2d 20; Sima v Skaggs Payless Drug Ctr., 82 Idaho 387, 353 P2d 1085 (under statute authorizing private person to arrest for misdemeanor committed in his presence); Sweeney v F. W. Woolworth Co., 247 Mass 277, 142 NE 50,  31 ALR 311; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495; Lester v Albers Super Markets, Inc., 94 Ohio App 313, 51 Ohio Ops 457, 65 Ohio L Abs 315, 114 NE2d 529; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250.

Where plaintiff, while shopping in defendant's store, placed around her waist an article of merchandise belonging to defendant and walked away from the rack from which the article had been removed, and where she was thereafter detained by one of defendant's employees for the purpose of determining whether she was attempting to evade payment for the merchandise, the summary judgment for the defendant entered by the lower court was proper. Rothstein v Jackson's of Coral Gables, Inc. (Fla App D3) 133 So 2d 331.

Footnote 34. Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759; Banks v Food Town, Inc. (La App 1st Cir) 98 So 2d 719.

Where there was no evidence that anyone saw plaintiff take anything and the only evidence was that someone in the store told a clerk that he believed plaintiff had stolen something, the proof of probable cause was not sufficient to justify plaintiff's restraint by a store manager.  J. C. Penney Co. v Cox, 246 Miss 1, 148 So 2d 679.

Forms: Complaints for unreasonable detention and search of customer on accusation of shoplifting.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  21-24.

Footnote 35. Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329; Lester v Albers Super Markets, Inc., 94 Ohio App 313, 51 Ohio Ops 457, 65 Ohio L Abs 315, 114 NE2d 529; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13.

Footnote 36. A. Harris & Co. v Caldwell (Tex Civ App) 276 SW 298, writ dism; Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250.

Footnote 37. Szymanski v Great Atlantic & Pacific Tea Co. (Lucas Co) 79 Ohio App 407, 35 Ohio Ops 177, 74 NE2d 205; Martin v Castner-Knott Dry Goods Co., 27 Tenn App 421, 181 SW2d 638.

As to justification of an arrest without a warrant, see  §§ 82-84.

Footnote 38. Harrison v May Dep't Stores Co. (Dist Col App) 381 A2d 610; Brown v Hartford Ins. Co. (La App 3d Cir) 370 So 2d 179; Jarjoura v Fred's One & Two Dollar Store, Inc. (Miss) 370 So 2d 696.

The court submits the evidence as to probable cause to the jury with instructions as to what will amount to probable cause, if proved.  Director General of Railroads v Kastenbaum,  263 US 25,  68 L Ed 146,  44 S Ct 52; Drabek v Sabley,  31 Wis 2d 184, 142 NW2d 798,  20 ALR3d 1435.

In an action against a city for false arrest, false imprisonment, and malicious prosecution arising from the arrest and arraignment of a person for obstructing a police officer in the performance of his duties by the placement of signs saying "Speed Trap Ahead" near an intersection at which police used radar equipment, the trial court erred by directing a verdict in favor of the city, since the issue of probable cause for the arrest was either a jury issue or, if the issue were one of law, it should have been resolved in favor of the arrested person on the basis of his right of free speech.  Owens v Pensacola (Fla App D1) 355 So 2d 1266, quashed (Fla) 369 So 2d 328 (with respect to claim for malicious prosecution).

Footnote 39. Jacques v Childs Dining Hall Co., 244 Mass 438, 138 NE 843,  26 ALR 1329; Cooke v J. J. Newberry & Co., 96 NJ Super 9, 232 A2d 425 (detention for about 27 minutes held not unreasonable); Stienbaugh v Payless Drug Store, 75 NM 118, 401 P2d 104; Kroger Co. v Demakes (Tex Civ App Houston (1st Dist)) 566 SW2d 653, writ ref n r e (Sep 20, 1978) and rehg of writ of error overr on other grounds (Oct 25, 1978).

Question of reasonableness of manner in which plaintiff was detained was for jury to resolve where defendant contended detention was instigated when plaintiff was observed taking three shirts from table and leaving store with them in shopping bag and was reasonable for purposes of investigation, and where plaintiff contended she had brought shirts into store to exchange them and was told she would be detained until she signed written admission and returned shirts.  Best v Genung's, Inc. (3d Dept)  46 App Div 2d 550, 363 NYS2d 669.

Footnote 40. Neisner Bros., Inc. v Ramos (Dist Col App) 326 A2d 239; Nichols v Woodward & Lothrop, Inc. (Dist Col App) 322 A2d 283, cert den  419 US 1108,  42 L Ed 2d 804,  95 S Ct 780; May Dep't Stores Co. v Devercelli (Dist Col App) 314 A2d 767.

Probable cause for customer's detention for shoplifting, for purposes of subsequent false imprisonment action, was established as a matter of law, pursuant to plaintiff's nolo contendere plea and conviction of misdemeanor theft in connection with the incident.  Adcox v Safeway Stores, Inc. (ND Tex) 512 F Supp 452.

The manner and extent of detention were reasonable when the customer, upon triggering an electronic device due to the sales clerk's failure to remove a tag on purchased merchandise, was asked by a detective to accompany the detective back into the store, where the contents of the package were examined and only five to ten minutes elapsed.  Lindsey v Sears, Roebuck & Co. (La App 4th Cir) 389 So 2d 902.

In a detained customer's action against a store for false arrest, the court's permitting evidence of plaintiff's companion's record as a shoplifter on the issue of probable cause for plaintiff's detention was error; the companion's reputation had no bearing on the store's right to arrest and detain the plaintiff. Duran v Buttrey Food, 189 Mont 381, 616 P2d 327.

A security officer did not have reasonable grounds to believe the customer was committing larceny where the customer placed a box containing merchandise in his shopping bag without paying for it, headed for the door to the street and was holding an inner door open facing inward when stopped by the guard; on being stopped the customer tendered $20.00 to pay for the merchandise.  Mullen v Sibley, Lindsay & Curr Co.,  51 NY2d 924, 434 NYS2d 982, 415 NE2d 971.

Store employees did not have probable cause to detain a thirteen-year-old plaintiff based on a security guard's description of the shoplifting suspect as wearing a baseball cap and stolen white tennis shoes; the detained child had neither cap nor shoes and was stopped two blocks from the store in the opposite direction from the suspect's line of flight.  Wolf v Nordstrom, Inc., 51 Or App 715, 626 P2d 953, affd in part and revd in part on other grounds 291 Or 828, 637 P2d 1280.

A merchant had probable cause to believe a customer had shoplifted where the merchant received word, through an employee, that the customer had removed an infant seat from the shelf, put her child in the seat and left the store without paying for the seat.  Johnson v K-Mart Enterprises, Inc. (App)  98 Wis 2d 533, 297 NW2d 74.

Footnote 41. Lansburgh's, Inc. v Ruffin (Dist Col App) 372 A2d 561; Schneider v Shepherd, 192 Mich 82, 158 NW 182; Diers v Mallon, 46 Neb 121, 64 NW 722; Stienbaugh v Payless Drug Store, 75 NM 118, 401 P2d 104; Drabek v Sabley,  31 Wis 2d 184, 142 NW2d 798,  20 ALR3d 1435.

Footnote 42. Hebrew v Pulis, 73 NJL 621, 64 A 121; Bushardt v United Inv. Co., 121 SC 324, 113 SE 637,  35 ALR 637.

The right to detain the person suspected of wrongdoing exists only during commission of the offense, and does not arise where the offense was completed at some prior time. 43   Accordingly, if it appears that the victim is not detained for investigation, but, on the contrary, is held for the purpose of compelling restitution 44   or securing a confession 45   in connection with property taken at a prior time, liability for false imprisonment may be imposed. However, at common law, there is a limited privilege for a person to recapture a chattel, in fresh pursuit, using reasonable force not calculated to inflict serious bodily harm, after there has been a demand for the return of the chattel and with the proviso that the person so acting to recapture the chattel be correct as to the facts which confer the privilege; if incorrect, the actor faces liability for false imprisonment or other applicable torts. 46

Footnote 43. Moffatt v Buffums' Inc., 21 Cal App 2d 371, 69 P2d 424; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495.

Footnote 44. Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263.

Footnote 45. Moffatt v Buffums' Inc., 21 Cal App 2d 371, 69 P2d 424; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495.

Footnote 46. Gortarez v Smitty's Super Valu, 140 Ariz 97, 680 P2d 807.

(2).  Under Statute [76-80]

Many state legislatures have enacted statutes expressly giving the merchant a qualified privilege to detain suspected shoplifters. 47    Various state statutes giving a merchant a qualified privilege to detain suspected shoplifters differ in form but are consistent in providing that merchants or their employees or agents may detain in good faith and upon probable cause or reasonable grounds any person it is believed was removing goods for sale from the store without paying for them, provided that the detention is for a reasonable time and in a reasonable manner. 48  

Clearly, the most significant aspect of these statutes, from the merchant's standpoint, is that the propriety, if not the legality, of the arrest is not dependent upon a finding, either in the false imprisonment action or in a criminal proceeding for shoplifting, that the suspect was actually guilty of the offense. 49    The fact that under the statute the merchant can act upon probable cause or reasonable grounds leaves room for honest mistake, reasonable grounds or probable cause being a question of fact. 50

A statute may set forth a presumption that a person concealing unpurchased goods is taking the goods with the intention of depriving the owner of the goods, thus warranting a reasonable merchant's detention. 51   The issue of the existence of probable cause or of reasonable grounds for detention of a customer is generally a question of fact for the jury in a false arrest action. 52    However, if the material facts on the issue of probable cause for arrest under the shopkeeper immunity statute are undisputed, the issue becomes a question of law for the court. 53

A statutory provision allowing for a shopkeeper's defense to false arrest or false imprisonment claims based upon a reasonable belief that the plaintiff was shoplifting or that the manner of the detention or arrest was reasonable has been read in the conjunctive, despite use of disjunctive language in the statute. 54

Footnote 47. See statutes delineated in, for example, Rothstein v Jackson's of Coral Gables, Inc. (Fla App D3) 133 So 2d 331; J. C. Penney Co. v Cox, 246 Miss 1, 148 So 2d 679; Isaiah v Great Atlantic & Pacific Tea Co. (Summit Co) 111 Ohio App 537, 15 Ohio Ops 2d 291, 174 NE2d 128,  86 ALR2d 430, motion overr; Doyle v Douglas (Okla) 390 P2d 871; Lukas v J. C. Penney Co., 233 Or 345, 378 P2d 717.

Footnote 48. Morris v Albertson's, Inc. (CA5 Fla) 705 F2d 406; Taylor v Dillards Dep't Stores, Inc. (CA10 Okla) 971 F2d 601; Whitlow v Bruno's, Inc. (Ala) 567 So 2d 1235, reh den, without op (Ala) 1990 Ala LEXIS 845; Gortarez v Smitty's Super Valu, 140 Ariz 97, 680 P2d 807; Mendenhall v Skaggs Cos., 285 Ark 236, 685 SW2d 805; Alvarado v Dodge City, 238 Kan 48, 708 P2d 174; K-Mart Corp. v Washington, 109 Nev 1180, 866 P2d 274; Lusk v Ira Watson Co., 185 W Va 680, 408 SE2d 630.

As to reasonableness of manner and time, see  § 80.

Footnote 49.  § 77.

Footnote 50. Alvarado v Dodge City, 238 Kan 48, 708 P2d 174.

Footnote 51. Murray v Wal-Mart, Inc. (CA8 Ark) 874 F2d 555.

Footnote 52. Coblyn v Kennedy's, Inc., 359 Mass 319, 268 NE2d 860,  47 ALR3d 991 ("probable cause" and "reasonable grounds" have substantially identical meanings in statutes providing for detention of suspected shoplifters).

Footnote 53. Morris v Albertson's, Inc. (CA5 Fla) 705 F2d 406.

Footnote 54. K Mart Corp. v Adamson, 192 Ga App 884, 386 SE2d 680.

The term "shoplifting," as used in a statute according a shopkeeper a qualified privilege to detain a suspected shoplifter, has been held to include the offense of substituting bogus price tags, 55  and likewise, the passing of counterfeit money in a store has been held to be within the term "larceny" as used in a shoplifting statute, 56   although the stealing of cash by an employee has been held not to constitute "larceny of merchandise." 57  

A shoplifting statute has been held unavailable as a defense to a merchant in a false imprisonment action by one who came to the assistance of a suspected shoplifter. 58

Since privilege to detain on probable cause was established to harmonize the individual right to liberty with the inherent right of a property owner to protect the interest in property, protection from civil liability is limited to suits based on detention and does not extend to suits based on arrest. 59

Despite a provision that detention must take place on the merchant's premises, a shoplifting statute was held available as a defense to a merchant who stopped a suspected shoplifter after the suspect had left the store, the court reasoning that the area immediately outside the store was part of the "premises" as intended by the statute. 60

Formal arrest of the suspected shoplifter is not necessary to invoke the protection of the statute in favor of the merchant. 61   Similarly, it has been held that the wording of a particular statute permitting detention of suspected shoplifters on probable cause did not require that the suspect actually be found guilty of shoplifting before the statute could be used as a defense by the merchant. 62  

Footnote 55. S. S. Kresge Co. v Carty, 120 Ga App 170, 169 SE2d 735.

Footnote 56. Wolin v Abraham & Straus,  64 Misc 2d 982, 316 NYS2d 377.

Footnote 57. Chenkin v Times Square Stores Corp. (2d Dept)  69 App Div 2d 849, 415 NYS2d 468.

Footnote 58. Peak v W. T. Grant Co. (Mo App) 386 SW2d 685.

Footnote 59. Cervantez v J. C. Penney Co., 24 Cal 3d 579, 156 Cal Rptr 198, 595 P2d 975.

Footnote 60. Simmons v J. C. Penney Co. (La App 1st Cir) 186 So 2d 358.

Fact that detention occurred in front of shop and not within store did not defeat merchant's statutory privilege where detention occurred on sidewalk on walkway within few feet of door of shop which was located in shopping center.  Thompson v Le Blanc (La App 1st Cir) 336 So 2d 344, application den (La) 339 So 2d 26.

Footnote 61. F. B. C. Stores, Inc. v Duncan, 214 Va 246, 198 SE2d 595.

Footnote 62. J. S. Dillion & Sons Stores Co. v Carrington, 169 Colo 242, 455 P2d 201; Jacques v Sears, Roebuck & Co.,  30 NY2d 466, 334 NYS2d 632, 285 NE2d 871.

For purposes of a merchant's detention statute, conviction of the alleged shoplifter is not a necessary element of the merchant's invocation of the detention statute, so long as the merchant or employee acts in good faith in detaining the suspect.  Mendenhall v Skaggs Cos., 285 Ark 236, 685 SW2d 805.

Shoplifter detention statutes have sometimes been applied to cases involving detention of employees suspected of theft, 63  There is, however, some authority indicating that such a statute is inapplicable in an employer-employee situation. 64

A statute providing a limited privilege with respect to detention of suspected shoplifters has been held to be no defense for a pari-mutuel racetrack in a false imprisonment action brought by one who was detained on suspicion of cashing a nonwinning ticket, since a pari-mutuel operator was not a "merchant" within the meaning of the statute. 65

A statute granting immunity from liability for false arrest to "a police officer, a merchant, or a merchant's employee," has been held not to include agents, so that an independent contractor which employed all the security guards assigned to a supermarket was properly held liable for false arrest of one who was erroneously accused of shoplifting by a security guard, who was not an employee of the merchant. 66

Footnote 63. Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284.

Since statutory defense of probable cause in false imprisonment cases is applicable to employers, as well as to merchants, judgment for plaintiff employee in false imprisonment case was error where employee was detained momentarily by employer's supervisory personnel immediately after reports were received that employee was stealing material from employer, and she was released 20 minutes later when she refused to open her pocketbook.  Faulkenberry v Springs Mills, Inc., 271 SC 377, 247 SE2d 445.

Footnote 64. General Motors Corp. v Piskor, 27 Md App 95, 340 A2d 767, affd in part and revd in part on other grounds 277 Md 165, 352 A2d 810, appeal after remand 281 Md 627, 381 A2d 16,  93 ALR3d 1097 (a statute permitting detention of suspected shoplifters by merchants was not applicable to detention of an auto assembly plant employee by security guards to check for possession of articles stolen from employer, since the statute applied only to shoplifting, which was not the crime of which employee was suspected, and privilege created by statute was inapplicable to employer in employee's false imprisonment action).

Footnote 65. Washington County Kennel Club, Inc. v Edge (Fla App D1) 216 So 2d 512, cert dismd (Fla) 225 So 2d 522, appeal after remand (Fla App D1) 253 So 2d 726.

Footnote 66. Bishop v Bockoven, Inc., 199 Neb 613, 260 NW2d 488.

Several courts have expressly or impliedly supported the proposition that the existence of "probable cause" or "reasonable grounds," as used in statutes permitting the detention of persons believed to be shoplifting, must be judged against the objective standard of whether the facts available to the detaining party at the moment would warrant a reasonably prudent person to believe that the person in question had been shoplifting. 67      Some of these courts have further held that under this rule, mere suspicion that a person is shoplifting is insufficient to create probable cause for detention under a shoplifting statute, 68   although it has been held that the application of the statute is not dependent upon the actual guilt of the shoplifter. 69  

When a merchant detains a customer for investigation of possible shoplifting entirely upon the word of other persons, and not upon the basis of what the merchant saw, the test of probable cause would appear to be whether or not the circumstances, as they appeared to the informer, were sufficient to give the informer probable cause for believing that the customer was shoplifting. 70    Failure of the merchant to properly attempt to confirm or disprove suspicions by reasonable investigation has been held in several cases to be a significant factor in determining the existence or nonexistence of probable cause.  Failure to conduct sufficient inquiry has been considered an important factor in determining that insufficient cause existed for detaining a suspected shoplifter where–

–the store detective believed that he saw a customer place a bar of a particular brand of soap in her bag, but instead of generally asking the cashier whether the customer had paid for a bar of soap, the detective asked her instead whether the customer had paid for the particular brand of soap he thought he saw her take.  Upon receiving a negative answer, the detective detained the customer outside the store, and upon investigation found that the bar of soap he saw her take off the shelf was not the brand that he had thought it was, but was another brand of soap for which the customer had paid. 71  

–a store detective testified that he saw a customer take a buffer pad off the store shelf and place it in her purse, and that he watched her closely from that time on and she did not pay for the buffer pad before she left the store.  The evidence was in conflict as to the issue of whether shoplifting had been committed, and the court stated that the only method by which shoplifting, if reasonably suspected, could have been immediately proved or disproved was by checking the customer's grocery slip, and that since this method was not employed, it could reasonably have been found that no probable cause existed for detaining the customer. 72

–customers were detained for allegedly stealing a dress from a store, the testimony of store employees indicating that prior to detaining the suspected shoplifters, they conducted a quick search of the dress rack to see if the missing dress had been replaced thereon, but the testimony of the suspected customers indicating that they had returned the dress to the rack from which they had taken it.  The evidence being in dispute, the court held that a jury could reasonably have found that there was insufficient cause for detention of the customers, in view of further testimony that the missing dress had later been discovered on the dress rack in the store. 73   On the other hand, the mere word of a merchant to a police officer has been held sufficient to constitute probable cause for the detention of the suspected shoplifter by the officer, although the merchant can still be held liable for false imprisonment if he or she cannot show probable cause for making the accusation to police in the first place. 74

Some cases have presented circumstances under which the particular court held as a matter of law, there apparently being no conflict in the evidence, that probable cause to detain a suspected shoplifter did exist within the meaning of a statute permitting such detention where probable cause existed. 75     In other cases, the absence of probable cause has been found as a matter of law. 76    Similarly, in some cases, in at least some of which the evidence was apparently in dispute, the courts held that the question of probable cause, as used in a statute permitting detention of shoplifters, was to be determined by the jury, 77  and that under the particular circumstances involved, the juries hearing these cases were justified in concluding that probable cause did exist to detain the suspected shoplifters. 78    In other cases it was held that under the particular circumstances involved, the jury or trier of fact could reasonably have found that probable cause did not exist to justify detention of a suspected shoplifter. 79     

A statutory presumption of shoplifting, arising when there is a knowing concealment of unpurchased items, may impact on such probable cause determination. 80

Footnote 67. S. S. Kresge Co. v Carty, 120 Ga App 170, 169 SE2d 735; Dixon v S. S. Kresge, Inc., 119 Ga App 776, 169 SE2d 189; Clark v I. H. Rubenstein, Inc. (La) 326 So 2d 497, on remand (La App 1st Cir) 335 So 2d 545; Wilde v Schwegmann Bros. Giant Supermarkets, Inc. (La App 4th Cir) 160 So 2d 839; Tota v Alexander's,  63 Misc 2d 908, 314 NYS2d 93; Dlep v Zapp's Drug & Variety Stores, 238 Or 538, 395 P2d 137; Lukas v J. C. Penney Co., 233 Or 345, 378 P2d 717.

The reasonableness of a department store's restraining of a customer is a jury question and is to be judged by an objective standard.  Swift v R.H. Macy's & Co. (CA8 Mo) 780 F2d 1358.

In a case where the existence of probable cause for a security guard's detention of a customer was the primary issue, the trial court should have given a probable cause instruction, preferably one using a "person of reasonable caution" standard.  Alvarado v Dodge City, 238 Kan 48, 708 P2d 174.

In Coblyn v Kennedy's, Inc., 359 Mass 319, 268 NE2d 860,  47 ALR3d 991. the court rejected an argument by defendant store that the issue of probable cause should be determined according to the subjective test of whether the defendant had an honest and strong suspicion that the plaintiff was attempting to commit larceny, and held that the words "reasonable grounds" as used in the shoplifting statute had the same meaning as "probable cause" as used in the Fourth Amendment "stop-and-frisk" rule.  The court stated that probable cause must be judged against the facts available to the detaining person, and whether those facts would lead a reasonable man to believe that the detention was necessary.

Annotation: Construction and effect, in false imprisonment action, of statute providing for detention of suspected shoplifters,  47 ALR3d 998 § 4.

Footnote 68. For example, See Draeger v Grand Cent., Inc. (CA10 Utah) 504 F2d 142; Coblyn v Kennedy's, Inc., 359 Mass 319, 268 NE2d 860,  47 ALR3d 991; Butler v W. E. Walker Stores, Inc. (Miss) 222 So 2d 128; J. C. Penney Co. v Cox, 246 Miss 1, 148 So 2d 679.

A store owner was liable for false arrest of a customer who was detained for shoplifting by a supervisor who mistook the customer for an actual shoplifter; detention was based on an inadequate description by a store employee, the customer was not acting in a suspicious manner and the employee did not remain in the area to verify the identification of the person observed.  Morris v Albertson's, Inc. (CA5 Fla) 705 F2d 406.

Store employees lacked probable cause to think that plaintiff was a shoplifter and plaintiff was subjected to a detention for which she was entitled to compensation from the merchant where one employee had failed to remove a tag that triggered an antishoplifter alarm as plaintiff left the store and the alarm system, which was new, had previously been triggered by employee error or other imperfections in the system and where, when the alarm went off and plaintiff was asked to return for a search of her goods in the presence of other shoppers, had plaintiff attempted to leave the scene she would have tended to confirm the suspicions of the store's employees that she had stolen something and could have subjected herself to restraint by force.  Clark v I. H. Rubenstein, Inc. (La) 326 So 2d 497, on remand (La App 1st Cir) 335 So 2d 545.

Although customer was observed by two store employees placing two items in her purse or tote bag and leaving the store without paying for them, employees did not have "reasonable cause to believe that [customer] committed theft of goods held for sale" as provided by the statute authorizing detention of shoplifters, where customer was known to be regular customer of store and was known to have check cashing privileges at store, and where customer telephoned store to inform them of mistake she had made and that she was returning to store to pay for items.  Pace v Winn-Dixie Louisiana, Inc. (La App 1st Cir) 339 So 2d 856, cert den (La) 341 So 2d 404.

Reasonable cause to detain a customer for suspicion of shoplifting a dress from the fitting room did not exist where there had been a discrepancy as to the number of items the customer took into the room and where the employee was made aware of the possibility of the discrepancy and did nothing to straighten it out.  Levy v Duclaux (La App 4th Cir) 324 So 2d 1, cert den (La) 328 So 2d 887 and cert den (La) 328 So 2d 888.

Footnote 69.  § 77.

Footnote 70. Butler v W. E. Walker Stores, Inc. (Miss) 222 So 2d 128; J. C. Penney Co. v Cox, 246 Miss 1, 148 So 2d 679; Lukas v J. C. Penney Co., 233 Or 345, 378 P2d 717.

Statement of a shopper that the shopper observed another customer opening packages of pantyhose and closing them after removing contents was sufficient probable cause for detention of customer; the issue was properly submitted to the jury.  Frison v Delchamps Store No. 11 (Ala) 507 So 2d 478.

Store manager had probable cause to detain customers where a store clerk reported that the clerk followed the customers through the store after the clerk did not see the customers pay for or deposit a 59-cent item; even though the reasonableness of the subsequent detention raised a jury question.  Gortarez v Smitty's Super Valu, 140 Ariz 97, 680 P2d 807.

There was no probable cause for detention of customers on suspicion of shoplifting dog food where, among other factors, the testimony of the store employee who detained the customers was ambiguous as to whether the employee asked the store cashier whether the dog food had been paid for before detaining the customers.  West v Wal-Mart Stores, Inc. (La App 3d Cir) 539 So 2d 1258, cert den (La) 543 So 2d 19.

Where a store security guard observed a customer put an Alka Seltzer in her purse and leave the store and, after ascertaining that the item had not been checked out, followed the customer into parking the lot, verified that she had Alka Seltzer, and asked her to return to the store, the security guard had reasonable cause to believe that a theft had been committed and initial detention was privileged under statute; the fact that the customer was asked to and did sign a statement admitting that she took Alka Seltzer without paying for it, but that store employees failed to investigate further her insistence that she did not intend to take the item without paying for it, did not render inquiry arbitrary and unreasonable.  Mapes v National Food Stores, Inc. (La App 1st Cir) 329 So 2d 831, cert den (La) 332 So 2d 486.

Annotation:  47 ALR3d 998 § 5[a].

Footnote 71. Southwest Drug Stores, Inc. v Garner (Miss) 195 So 2d 837,  29 ALR3d 953.

Footnote 72. Wilde v Schwegmann Bros. Giant Supermarkets, Inc. (La App 4th Cir) 160 So 2d 839.

Footnote 73. Lukas v J. C. Penney Co., 233 Or 345, 378 P2d 717.

Footnote 74. See Stienbaugh v Payless Drug Store, 75 NM 118, 401 P2d 104 (while a declaration made to a police officer by a merchant who believed that a customer had been shoplifting did constitute probable cause for the police to detain the suspect, the store was nevertheless still under a burden of showing that it had its own probable cause to instigate the arrest made by the police.  The court thus determined that the testimony of a store employee who observed suspicious actions of the suspected customer, the testimony of the store manager who, upon an accusation by the observing employee, also observed suspicious acts on the part of the suspect, and the testimony of the suspect himself to the effect that he had not committed the suspicious acts he had been accused of, should all be considered by the jury in determining the issue of probable cause).

Footnote 75. Meadows v F. W. Woolworth Co. (ND Fla) 254 F Supp 907; J. S. Dillion & Sons Stores Co. v Carrington, 169 Colo 242, 455 P2d 201; Rothstein v Jackson's of Coral Gables, Inc. (Fla App D3) 133 So 2d 331; Thompson v Le Blanc (La App 1st Cir) 336 So 2d 344, application den (La) 339 So 2d 26; Kimbrough v Giant Food, Inc., 26 Md App 640, 339 A2d 688; Cooke v J. J. Newberry & Co., 96 NJ Super 9, 232 A2d 425; Tota v Alexander's,  63 Misc 2d 908, 314 NYS2d 93; Dlep v Zapp's Drug & Variety Stores, 238 Or 538, 395 P2d 137.

Probable cause was established as a matter of law where customer walked out of the store without paying for videocassettes in the customer's possession.  Whitlow v Bruno's, Inc. (Ala) 567 So 2d 1235, reh den, without op (Ala) 1990 Ala LEXIS 845.

Directed verdict for store was proper where the customer told security guard items were paid for, store theft detection device was set off and the customer then admitted that the items had not yet been paid for, as the customer had not yet finished shopping. Gabrou v May Dep't Stores Co. (Dist Col App) 462 A2d 1102.

Store was entitled to summary judgment where detainee was seen putting small items into detainee's pockets and signed a form admitting taking the items.  Duvall v Kroger Co. (Ind App) 549 NE2d 403.

Where a customer walked by a counter of hairbrushes near the entrance to the store, and in one continuous motion, ran her hand across several of the brushes, suddenly raised her hand and pulled her overcoat tightly around her, and without stopping, went out of the door of the store, it was held in Simmons v J. C. Penney Co. (La App 1st Cir) 186 So 2d 358; that a store detective who observed the customer's motions had reasonable ground, within the meaning of the state shoplifting statute, to believe that the customer might have been shoplifting.  Noting that the customer in her own testimony admitted that her actions might have been such as to lead others to believe that she was taking something from the counter and hiding it under her coat, the court concluded that a jury could have found that the detective's detention of the customer, which immediately followed his observations, was privileged and authorized under the shoplifting statute which provides that no merchant shall be liable for any detention made by an authorized employee who suspects on reasonable grounds that a customer is shoplifting.

Annotation:  47 ALR3d 998 § 7[a].

Footnote 76. Pace v Winn-Dixie Louisiana, Inc. (La App 1st Cir) 339 So 2d 856, cert den (La) 341 So 2d 404; Wilde v Schwegmann Bros. Giant Supermarkets, Inc. (La App 4th Cir) 160 So 2d 839; J. C. Penney Co. v Cox, 246 Miss 1, 148 So 2d 679.

Annotation:  47 ALR3d 998 § 8[a].

Footnote 77. Swift v R.H. Macy's & Co. (CA8 Mo) 780 F2d 1358; Taylor v Dillards Dep't Stores, Inc. (CA10 Okla) 971 F2d 601; Limited Stores v Wilson-Robinson, 317 Ark 80, 876 SW2d 248; Wal-Mart Stores v Yarbrough, 284 Ark 345, 681 SW2d 359; Berry v Loiseau, 223 Conn 786, 614 A2d 414 (detention of employee at place of business); Alvarado v Dodge City, 238 Kan 48, 708 P2d 174; K-Mart Corp. v Washington, 109 Nev 1180, 866 P2d 274; West v King's Dep't Store, Inc., 321 NC 698, 365 SE2d 621.

Footnote 78. Miller v Roses' Stores, Inc., 151 Ga App 158, 259 SE2d 162; S. S. Kresge Co. v Carty, 120 Ga App 170, 169 SE2d 735; Consolidated Sales Co. v Malone (Ky) 530 SW2d 680; Bly v Skaggs Drug Centers, Inc. (Mo App) 562 SW2d 723.

Evidence that store security guard saw customer break open socket wrench set and remove one of the sockets; that customer apparently saw security guard watching him; concealed socket in palm of his hand; and began to walk towards front of store and that security guard went after customer; but, because of other patrons obstructing his path, was unable to catch up until customer was almost out of store, although socket was not found on customer's person when he was searched, warranted conclusion that store had reasonable cause to believe that customer had committed theft of goods from store and that store was, therefore, protected from liability for false arrest and imprisonment by qualified privilege afforded by statute.  Jordon v Mangel Stores Corp. (La App 1st Cir) 336 So 2d 278.

Attention is called to Doyle v Douglas (Okla) 390 P2d 871, in which it was held that the trial court properly permitted the introduction of evidence by a store of alleged activities of the plaintiff that were claimed to have occurred some 3 weeks prior to the date of the incident that precipitated the action for false imprisonment.  Noting that the Oklahoma shoplifting statute permitted merchants to take suspected shoplifters into custody upon probable cause, the court apparently took the position that evidence of prior suspicious acts on the part of the plaintiff in the store were admissible to show that probable cause for her detention did exist.

Annotation:  47 ALR3d 998 § 7[b].

Footnote 79. Draeger v Grand Cent., Inc. (CA10 Utah) 504 F2d 142; Gaszak v Zayre of Illinois, Inc. (1st Dist) 16 Ill App 3d 50, 305 NE2d 704; Duhe v Schwegmann Bros. Giant Super Markets (La App 4th Cir) 384 So 2d 1019; Coblyn v Kennedy's, Inc., 359 Mass 319, 268 NE2d 860,  47 ALR3d 991; Butler v W. E. Walker Stores, Inc. (Miss) 222 So 2d 128; Southwest Drug Stores, Inc. v Garner (Miss) 195 So 2d 837,  29 ALR3d 953; Stienbaugh v Payless Drug Store, 75 NM 118, 401 P2d 104; Isaiah v Great Atlantic & Pacific Tea Co. (Summit Co) 111 Ohio App 537, 15 Ohio Ops 2d 291, 174 NE2d 128,  86 ALR2d 430, motion overr; Lukas v J. C. Penney Co., 233 Or 345, 378 P2d 717.

Evidence was sufficient to support conclusion that there was no reasonable cause for detention of customer by store employee, although another employee reported that she saw customer handling card of initial rings, put one ring on her finger and leave the store wearing the initial ring without paying for it; where customer testified she never touched any of the store's rings while in the store and where, in fact, the initial ring which customer was wearing was one she had owned for several years.  Guidry v IGF, Inc. (La App 3d Cir) 332 So 2d 515.

Annotation:  47 ALR3d 998 § 8[b].

Footnote 80. Wal-Mart Stores v Yarbrough, 284 Ark 345, 681 SW2d 359.

Most of the so-called merchant's or shopkeeper's detention statutes provide that any detention thereunder must be carried out in a reasonable manner and for a reasonable time. 81   Generally speaking, the reasonableness of the detention is likewise dependent upon the facts and circumstances of the case.  In numerous cases it has been held, under the circumstances, either that the detention was carried out in a reasonable manner and for a reasonable time or that a finding to that effect would have been supportable. 82   Detentions have been found unreasonable in time or manner, despite the existence of a shoplifting statute, in other cases. 83   Where the detention is continued for the purpose of securing a confession or a release from liability from the suspect, 84   or where the merchant or the employee or agent is unnecessarily rude or uses excessive force in carrying out the detention, 85   the test of reasonableness in time and manner provided for in the statute is not met.

An originally reasonable detention may be denied protection of the statute if the actions taken in connection with the detention become unreasonable. 86   Thus, a detention lawfully made which is continued for an unreasonable time, after the detaining party knows that the suspicion is groundless and the apprehension a mistake, is unreasonable and is not privileged in a false imprisonment action. 87  

Some statutes contain a specific time limit on the detention. 88

Footnote 81.  § 75.

Footnote 82. Meadows v F. W. Woolworth Co. (ND Fla) 254 F Supp 907; Gonzales v Harris, 34 Colo App 282, 528 P2d 259, revd on other grounds 189 Colo 518, 542 P2d 842; Mapes v National Food Stores, Inc. (La App 1st Cir) 329 So 2d 831, cert den (La) 332 So 2d 486; Cooke v J. J. Newberry & Co., 96 NJ Super 9, 232 A2d 425; Roker v Gertz Long Island (2d Dept)  34 App Div 2d 680, 310 NYS2d 536; Mullins v Rinks, Inc. (Butler Co) 27 Ohio App 2d 45, 56 Ohio Ops 2d 218, 272 NE2d 152; Dlep v Zapp's Drug & Variety Stores, 238 Or 538, 395 P2d 137.

Store acted in a reasonable manner in detaining a shopper where no force was used and the shopper was asked to remove undergarments, under reasonable conditions, because a security guard had observed the shopper place merchandise under her skirt. Wilson v Wal-Mart Stores, Inc. (La App 3d Cir) 525 So 2d 111.

Footnote 83. See Hardin v Barker's of Monroe, Inc. (La App 2d Cir) 336 So 2d 1031 (although store security guard, who saw customer put shoes in pocket and leave the store, had reasonable cause to initially detain and question customer and was authorized to use reasonable force in overcoming customer's physical resistance to detention, at which point guard learned from his own inspection that the shoes he saw customer place in his pockets were the shoes of customer's children, who were still in the store; and that customer had funds with which to accomplish his stated purpose of purchasing new shoes for his children, guard had reasonable explanation for customer's suspicious actions; reasonable cause then ceased to exist and no immunity or legal protection against civil liability, as provided by statute, was thereafter afforded the store for actions of its employee in detaining and arresting customer).

Detention of a store customer was not reasonable, within protection of the statute, where the shopper was detained for fifteen minutes after it was determined there were no grounds to continue holding the shopper.  Adams v Zayre Corp. (2d Dist) 148 Ill App 3d 704, 102 Ill Dec 121, 499 NE2d 678.

Despite existence of probable cause for detention of a store customer, excessive detention of three hours and forty-five minutes, in derogation of statutory maximum of detention for sixty minutes, entitled the customer to recover damages for the unreasonable delay.  Attaldo v Schwegmann Giant Supermarkets, Inc. (La App 4th Cir) 469 So 2d 1132, cert den (La) 475 So 2d 354.

Store owner and employee were not immune from liability under a statute authorizing detention "in a reasonable manner," where employee and owner refused to search detainees' pocket books, call the police, or explain why detainees could not leave the store. Ayscue v Mullen, 78 NC App 145, 336 SE2d 863.

Annotation: Construction and effect, in false imprisonment action, of statute providing for detention of suspected shoplifters,  47 ALR3d 998 §§ 9, 10.

Footnote 84. Silvia v Zayre Corp. (Fla App D3) 233 So 2d 856, cert den (Fla) 238 So 2d 112; Jefferson Stores, Inc. v Caudell (Fla App D3) 228 So 2d 99; Wilde v Schwegmann Bros. Giant Supermarkets, Inc. (La App 4th Cir) 160 So 2d 839.

Annotation:  47 ALR3d 998 § 10[a].

Footnote 85. J. C. Penney Co. v Cox, 246 Miss 1, 148 So 2d 679; K-Mart Corp. v Washington, 109 Nev 1180, 866 P2d 274; Lukas v J. C. Penney Co., 233 Or 345, 378 P2d 717.

A merchant was not entitled to statutory immunity for detention of a 73-year-old individual accused of shoplifting where the merchant failed to detain the person for the sole purpose of delivery to the police, and, in the course of the detention, a security guard pinned the detainee's arms behind his back.  Altman v Knox Lumber Co. (Minn App) 381 NW2d 858.

Annotation:  47 ALR3d 998 § 10[b].

Footnote 86. Murray v Wal-Mart, Inc. (CA8 Ark) 874 F2d 555 (detention prolonged after shopper was exonerated of shoplifting); Rogers v T.J.X. Cos., 329 NC 226, 404 SE2d 664 (employee impersonated a police officer, badgered the detainee to confess and forced detainee to sign a release from liability).

Footnote 87. Latek v K Mart Corp., 224 Neb 807, 401 NW2d 503.

Footnote 88. Brown v Hartford Ins. Co. (La App 3d Cir) 370 So 2d 179, (referring to provision of the Louisiana Code of Criminal Procedure, authorizing a peace officer, merchant, or a specifically authorized employee of a merchant to detain a person for questioning on the merchant's premises for a length of time not to exceed 60 minutes).

Detention for 3 hours and forty-five minutes was in derogation of statutory limitation of detention to 60 minutes.  Attaldo v Schwegmann Giant Supermarkets, Inc. (La App 4th Cir) 469 So 2d 1132, cert den (La) 475 So 2d 354.

Statute provides that a merchant is not liable for detention for a reasonable time not to exceed 30 minutes.  Lusk v Ira Watson Co., 185 W Va 680, 408 SE2d 630.

c.  Arrest Without Warrant [81-86]

Where one is properly arrested by lawful authority, even though without a warrant, an action for false imprisonment cannot be maintained. 89    It has been held that an arrest lawfully made without a warrant justifies holding the prisoner only long enough to secure a warrant or to present the arrestee before a magistrate, and no longer. 90     

Footnote 89. Erie R. Co. v Reigherd (CA6 Ohio) 166 F 247, 7 Ohiolr 485; Hill v Levy, 117 Cal App 2d 667, 256 P2d 622; Bushardt v United Inv. Co., 121 SC 324, 113 SE 637,  35 ALR 637.

Warrantless arrest by police officers is justified only if misdemeanor or felony was committed in their presence or if officers have probable cause to believe that felony has been or is about to be committed.  Cooper v Dyke (CA4 Md) 814 F2d 941 (applying Maryland law).

Footnote 90. Atchison, T. & S. F. R. Co. v Hinsdell, 76 Kan 74, 90 P 800; Kroeger v Passmore, 36 Mont 504, 93 P 805.

An officer's initial finding of probable cause justifies both the arrest and a reasonable period of continued detention for the purpose of bringing an arrestee before a magistrate.  Thompson v Olson (CA1 Me) 798 F2d 552, cert den  480 US 908,  94 L Ed 2d 524,  107 S Ct 1354.

Forms: Complaints for unlawful arrest without warrant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  91-97.

An officer may justify an arrest, and will not be liable for false imprisonment, where there are reasonable grounds to believe that a felony has been committed and that the person to be arrested is the one who committed it, though, as it turns out, no felony was actually committed. 91   Ordinarily, however, a private individual may arrest without a warrant in a felony case only if the felony has actually been committed and the individual has reasonable grounds for believing that the person arrested was the one who committed it. 92    If, in fact, no felony has been committed by anyone, an arrest by a private individual without a warrant may give rise to an action for false imprisonment, even though an officer might have been justified in making an arrest under similar circumstances. 93 

Footnote 91. Goodrich v Lawrence, 138 Fla 287, 189 So 233; Tucker v Vornbrock, 270 Ky 712, 110 SW2d 659; Diers v Mallon, 46 Neb 121, 64 NW 722.

Forms: Answers alleging officer's reasonable cause to believe felony committed by person arrested as justification of arrest without warrant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms §§  98,  99.

Footnote 92. See 5 Am Jur 2d,  Arrest § 56.

Footnote 93. Garnier v Squires, 62 Kan 321, 62 P 1005; Melton v Rickman, 225 NC 700, 36 SE2d 276,  162 ALR 793.

Under New York law, a private citizen who makes an arrest does so at his peril, and if the person arrested did not in fact commit the crime for which he is arrested, the person who arrests him is liable even if he acts in good faith or has probable cause to make the arrest.  Scanlon v Flynn (SD NY) 465 F Supp 32.

Liability for false arrest or imprisonment may arise when a private individual 94  or a peace officer 95  makes an arrest for a misdemeanor and the offense complained of was actually not committed, even though such arrest is made on reasonable grounds and in good faith.  Furthermore, in the case of an arrest by a private citizen, at least in some jurisdictions it is the rule that a private person has no power to arrest one committing a misdemeanor in the person's presence unless it amounts to a breach of the peace; 96  and, under such a view, the usual shoplifting incident has been held not to be disruptive of the public peace. 97

On the other hand, it is frequently held that the doctrine of probable or reasonable cause is a good defense in an action for false arrest or imprisonment where the act was actually committed in the officer's presence, and where the offender's conduct was such as to cause a reasonable person to conclude that a public offense was being committed. 98    

Footnote 94. Banks v Food Town, Inc. (La App 1st Cir) 98 So 2d 719.

Footnote 95. Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Ware v Dunn, 80 Cal App 2d 936, 183 P2d 128; Pearson v Great Southern Lumber Co., 134 La 117, 63 So 759; Bergeron v Peyton,  106 Wis 377, 82 NW 291.

Forms: Instruction to jury–arrest withou warrant–by private person.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  104.

Footnote 96. Shaw v May Dep't Stores Co. (Dist Col App) 268 A2d 607.

Forms: Instruction to jury–arrest withou warrant–by private person.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  105.

Footnote 97. Shaw v May Dep't Stores Co. (Dist Col App) 268 A2d 607.

Footnote 98. Coverstone v Davies, 38 Cal 2d 315, 239 P2d 876, cert den  344 US 840,  97 L Ed 653,  73 S Ct 50; Winegar v Chicago, B. & Q. R. Co. (Mo App) 163 SW2d 357; Cave v Cooley, 48 NM 478, 152 P2d 886; Ryan v Conover (Hamilton Co) 59 Ohio App 361, 11 Ohio Ops 565, 26 Ohio L Abs 593, 18 NE2d 277.

Forms: Instruction to jury on right of officer to make arrest without warrant for breach of peace within hearing of officer.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  106.

Probable cause is a complete defense to actions for false arrest 99  and false imprisonment, 1  so that when probable cause is established, as a matter of law, false arrest and false imprisonment claims must necessarily fail. 2   It is said that the test for probable cause for the arrest and prosecution of an individual who later brings a claim of false imprisonment is an objective one, based not on the individual's actual guilt, but upon the existence of credible facts or information that would induce a person of ordinary caution to believe the accused to be guilty. 3   A defendant in a false arrest action who has established probable cause for the challenged arrest has no additional obligation to establish his or her good faith in order to raise a valid defense; 4  even malicious motives will not support a claim if probable cause is found to exist. 5

̈ Practice guide: The defendant has the burden of pleading and proving the defense of probable cause. 6

Footnote 99. Graebe v Falcetta (ED NY) 726 F Supp 36, affd without op (CA2 NY) 946 F2d 883 (applying New York law); O'Leary v Luongo (ND Ill) 692 F Supp 893, later proceeding (ND Ill) 1989 US Dist LEXIS 1979; LeGrand v Dean (Fla App D5) 564 So 2d 510, 15 FLW D 1489, review den (Fla) 576 So 2d 288, costs/fees proceeding (Fla App D5) 598 So 2d 218, 17 FLW D 1171.

Footnote 1. Marx v Gumbinner (SD Fla) 716 F Supp 1434, affd (CA11 Fla) 905 F2d 1503 (applying Florida law); Johnson v Morris (Minn) 453 NW2d 31, later proceeding (Minn) 1990 Minn LEXIS 118.

Footnote 2. Hanson v Snohomish, 121 Wash 2d 552, 852 P2d 295 (in an action brought by an individual whose criminal convictions were reversed, the false imprisonment and malicious prosecution claims were defeated by existence of probable cause, an issue conclusively resolved in the underlying criminal case).

Footnote 3. Wal-Mart Stores v Yarbrough, 284 Ark 345, 681 SW2d 359.

There was probable cause for arrest for burglary and attempted sexual battery, where the arresting detective was, at most, guilty of poor judgment in conduct of the investigation and the arrestee was identified by the victim as the assailant.  Lee v Geiger (Fla App D1) 419 So 2d 717, petition den (Fla) 429 So 2d 5.

An arrest based on probable cause is justified, regardless of whether the person arrested was guilty or not.  Renk v City of Pittsburgh (Pa) 641 A2d 289, digest op at (Pa) 17 PLW 225.

As to probable cause for warrantless arrests, generally, see 5 Am Jur 2d,  Arrest §§ 39-46.

Footnote 4. Welch v District of Columbia (Dist Col App) 578 A2d 175

Footnote 5. Simmons v Pryor (CA7 Ill) 26 F3d 650.

Footnote 6. Consolidated Sales Co. v Malone (Ky) 530 SW2d 680.

If an imprisonment is claimed to have been illegal because the plaintiff was arrested without a warrant and without probable cause, a plea of guilty to the offense charged or conviction thereof upon trial may well be held conclusive as to the existence of probable cause. 7   However, if the ground of the action is not the want of probable cause for the arrest, but the violation of the law or the exceeding of its authority in some other respect, the conviction of the prisoner may not be conclusive or even material on the issue, since one may be guilty of some crime and yet be entitled to redress for illegal imprisonment in the course of the prosecution therefor. 8

Footnote 7. Erie R. Co. v Reigherd (CA6 Ohio) 166 F 247, 7 Ohiolr 485.

Footnote 8. McCullough v Greenfield, 133 Mich 463, 95 NW 532.

Generally, a person unlawfully arresting another for one offense cannot, when sued for false imprisonment, justify the arrest on the ground that the one arrested was guilty of some other offense for which the arrest, under the circumstances, would have been legal, or because reasonable grounds existed for an arrest for such other offense. 9    However, the fact that the individual arrested is not tried on the original charge and is later acquitted on a lesser charge is not relevant in the subsequent false arrest or false imprisonment case. 10

Where probable cause is lacking to arrest the individual on the announced charge, but probable cause does exist to believe the individual committed a different offense proffered by the defense after the fact, the defendant can avoid liability if the consequences to the individual would have been substantially as unfavorable if the person had been arrested on the charge on which the defense seeks to rely after the fact. 11

If an arrest is made for several offenses, justification as to one of the offenses charged will constitute a good defense. 12 

Footnote 9. Santiago v Fenton (CA1 Mass) 891 F2d 373; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; McNeff v Heider, 216 Or 583, 337 P2d 819, reh den 216 Or 594, 340 P2d 180.

Police officer would not have statutory immunity from suit for false arrest if officer, while having probable cause to arrest for one act, arrested a person for a separate act as to which no probable cause existed.  Santiago v Fenton (CA1 Mass) 891 F2d 373 (applying Massachusetts law).

One who mistakenly arrests another on the ground that he has a stolen automobile in his possession cannot justify the arrest upon the ground that he discovered after the arrest that the car bore license plates issued for another car.  Noe v Meadows, 229 Ky 53, 16 SW2d 505,  64 ALR 648.

Where plaintiff was arrested for disorderly conduct, the fact that defendants could have arrested him for illegal parking, or other offenses, would not justify his arrest on the charge of disorderly conduct.  Donovan v Guy, 347 Mich 457, 80 NW2d 190.

Although two offenses are intimately associated in time and place, the arrest for one offense cannot be justified by proof of another separate and distinct offense.  Comisky v Norfolk & W. R. Co., 79 W Va 148, 90 SE 385.

Footnote 10. Darrow v Schumacher (SD) 495 NW2d 511.

Footnote 11. Etheredge v District of Columbia (Dist Col App) 635 A2d 908.

Footnote 12. Sima v Skaggs Payless Drug Ctr., 82 Idaho 387, 353 P2d 1085; Noe v Meadows, 229 Ky 53, 16 SW2d 505,  64 ALR 648; Donovan v Guy, 347 Mich 457, 80 NW2d 190.

d.  Justification By Legal Process [87-97]

(1).  In General [87-89]

An arrest or commitment by virtue of process which is regular and legal in form, duly issued by a court, magistrate, or body having authority to issue it, and executed in a lawful manner, does not constitute false arrest or imprisonment. 13   Valid process is a complete justification for the acts done under it and in compliance with it. 14   Thus, an arrest warrant protects the person who sued it out; 15   if the complaint and supporting evidence contain sufficient facts to present a judicial question to the magistrate as to whether they show a certain criminal offense, and that question is decided by the magistrate in favor of issuing the requested warrant, the prosecuting complainant is protected by the decision. 16   Under such circumstances, the complainant is not liable for false imprisonment because of any subsequent act or omission of the officer in executing the warrant whereby the arrest is rendered illegal, 17  such as the arrest by the officer of the wrong person. 18    

However, where an affiant falsely and maliciously misstates the facts and procures warrant to be issued, he or she is responsible for arrest. 19   One may also be liable in false imprisonment if one is guilty of officious interference or of a participation in the issuance and execution of the warrant beyond the mere making of the complaint. 20    Finally, liability for false arrest may also arise where the offense charged is no crime at all, 21  as where it amounts to only a civil injury. 22

False imprisonment claims may be precluded by grand jury indictments, raising a presumption of arrest with probable cause; 23  a judgment of conviction; 24  a properly issued order for a body attachment; 25   or a bench warrant for contempt citation based on violation of an order incorporating a marital settlement agreement. 26

Footnote 13. Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131; Stubbs v Abercrombie, 42 Cal App 170, 183 P 458; Clewley v Brown, Thomson, Inc., 120 Conn 440, 181 A 531; Waters v Winn, 142 Ga 138, 82 SE 537 (criticized on other grounds in Smith v Embry, 103 Ga App 375, 119 SE2d 45); Rush v Buckley, 100 Me 322, 61 A 774.

The tort of false arrest requires that the plaintiff prove that the arrest was made without any legal process or warrant or under a warrant null and void on its face.  Duboue v City of New Orleans (CA5 La) 909 F2d 129, cert den  499 US 922,  113 L Ed 2d 247,  111 S Ct 1314.

Footnote 14. Schneider v Kessler (CA3 NJ) 97 F2d 542; Martin v Sanford, 129 Neb 212, 261 NW 136,  100 ALR 179; James v Southwestern Ins. Co. (Okla) 354 P2d 408; Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337.

Footnote 15. Gogue v MacDonald, 35 Cal 2d 482, 218 P2d 542,  21 ALR2d 639; Feld v Loftis, 240 Ill 105, 88 NE 281; Vittorio v St. Regis Paper Co., 239 NY 148, 145 NE 913; Click v Parish (Hardin Co) 89 Ohio App 318, 46 Ohio Ops 38, 60 Ohio L Abs 169, 98 NE2d 333, affd 155 Ohio St 84, 44 Ohio Ops 96, 98 NE2d 293.

As to liability for false arrest or imprisonment of complainants in a criminal prosecution or parties in a civil action generally, see  §§ 46,  155.

Annotation: False imprisonment:  liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer,  98 ALR3d 542.

False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643.

Footnote 16. Traversara v Pinelli (Sup) 140 NYS2d 559.

A warrant issued by a court, unless utterly void, is a complete defense to an action for false imprisonment.  McFarland v Shirkey (Franklin Co) 106 Ohio App 517, 7 Ohio Ops 2d 309, 78 Ohio L Abs 129, 151 NE2d 797, application den (Franklin Co) 106 Ohio App 527, 7 Ohio Ops 2d 314, 155 NE2d 468 and motion overr (Franklin Co) 106 Ohio App 527, 7 Ohio Ops 2d 314, 155 NE2d 925 and app dismd for want of debat q 168 Ohio St 288, 6 Ohio Ops 2d 490, 154 NE2d 83.

In suit against employer and agent for false imprisonment after plaintiff was arrested and jailed upon defective criminal complaint filed by agent, where record revealed that plaintiff's arrest was made by officers acting under warrant emanating from justice of the peace who had authority to issue same, defendants could not be charged with false imprisonment merely because agent signed complaint at direction of justice after he had made full disclosure of facts.  Sparkman v Peoples Nat'l Bank (Tex Civ App Tyler) 501 SW2d 739, writ ref n r e (Feb 27, 1974) and rehg of writ of error overr (Apr 3, 1974).

Footnote 17. Burlington Transp. Co. v Josephson (CA8 SD) 153 F2d 372; McIntosh v Bullard, Earnhart & Magness, 95 Ark 227, 129 SW 85.

Footnote 18. Gearon v Bank for Savings, etc., 50 NY Super Ct 264; Stork v Evert (Lucas Co) 47 Ohio App 256, 15 Ohio L Abs 701, 191 NE 794.

The complaining witness in a criminal action is not liable for mistaken identity by public officers in charge of the prosecution. Nicholson v Roop (ND) 62 NW2d 473,  43 ALR2d 1031.

As to police officer's liability for arrest of wrong person, see  § 95.

Annotation: Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested,  39 ALR4th 705.

Footnote 19. Earl v Winne, 14 NJ 119, 101 A2d 535.

Misconduct in procurement of the warrant is not cured by the magistrate's acceptance of the warrant affidavit.  Olson v Tyler (CA7 Wis) 771 F2d 277, later proceeding (CA7 Wis) 825 F2d 1116.

Footnote 20. Holloway v Central of G. R. Co., 114 Ga 353, 40 SE 227 (holding defendant liable where proper warrant had been issued locally but defendant had, with authority of local police, secured plaintiff's arrest without warrant by communicating with distant police); Kearley v Cowan, 217 Ala 295, 116 So 145; Smith v Clark, 37 Utah 116, 106 P 653; Williamson v Glen Alum Coal Co., 72 W Va 288, 78 SE 94.

Annotation:  21 ALR2d 643 § 7.

Footnote 21. Jones v Perry, 128 Misc 263, 219 NYS 295.

Footnote 22. Caudle v Benbow, 228 NC 282, 45 SE2d 361.

Footnote 23. Bernard v United States (CA2 NY) 25 F3d 98.

Footnote 24. Pete v Metcalfe (CA5 Tex) 8 F3d 214; Hanson v Snohomish, 121 Wash 2d 552, 852 P2d 295.

Footnote 25. Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Footnote 26. Dozier v Dozier, 252 Kan 1035, 850 P2d 789.

Where a party seeks the arrest of another on civil process, and the magistrate, having jurisdiction to pass on the sufficiency of the affidavit, determines on such evidence that it is sufficient and issues the warrant, the party who invokes the decision is not answerable in damages for false imprisonment if the magistrate errs in judgment. 27    However, it has been held that whether the magistrate has jurisdiction must be determined from the affidavit itself and not from what the magistrate thinks it authorizes, and where there is no jurisdiction in fact, the order of arrest is void.  Hence, it is held that the plaintiff must see to it that the magistrate is clothed with actual, not merely apparent, authority before depriving the defendant of liberty. 28  It follows, under this view, that the affidavit must state sufficient facts to show jurisdiction in the court issuing the order for the arrest. 29   Thus, where the statute forbids imprisonment for debt, 30   or prohibits the arrest of certain persons under any state of facts, the magistrate cannot acquire jurisdiction to issue a warrant for such an arrest; and the party applying for it is liable for any wrongful imprisonment that may follow. 31

Footnote 27. Nelson v Kellogg, 162 Cal 621, 123 P 1115; Feld v Loftis, 240 Ill 105, 88 NE 281; Jastram v McAuslan, 31 RI 278, 76 A 648.

Annotation: False imprisonment:  liability of private citizen for false arrest by officer,  21 ALR2d 643 § 13.

Footnote 28. Fkumoto v Marsh, 130 Cal 66, 62 P 303, reh den 130 Cal 71, 62 P 509.

Footnote 29. Neves v Costa, 5 Cal App 111, 89 P 860; Hauss v Kohlar, 25 Kan 640.

Footnote 30. Dallas v Garras, 306 Mich 313, 10 NW2d 897.

But see Dozier v Dozier, 252 Kan 1035, 850 P2d 789 (a bench warrant and resultant arrest, issued after a finding of contempt and failed service, upon debtor's failure to make the required payment against an alimony judgment, was not imprisonment for debt; the parties' contractual agreement for the alimony obligation was merged into the judgment, which was enforceable by the contempt sanction, by arrest and by imprisonment).

Annotation:  21 ALR2d 643 § 14.

Footnote 31. Nelson v Kellogg, 162 Cal 621, 123 P 1115.

A warrant of commitment protects the officer who takes the person into custody under it 32   and the keeper of the place of incarceration. 33       

Footnote 32. Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131; Smith v Fish, 182 Ark 115, 30 SW2d 223 (sheriff and bondsman); Berger v Seneca Falls,  3 Misc 2d 647, 151 NYS2d 133; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 33. Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Individual whose commitment was accomplished through legally correct procedures and was pursuant to the order of commitment which was in no respect invalid, on its face or otherwise, could not recover from the state for alleged false imprisonment.  Lauer v State (3d Dept)  57 App Div 2d 673, 393 NYS2d 813.

(2).  Action of Officers Under Process [90-97]

(a).  In General [90-92]

An officer is protected and justified in executing process fair on its face–that is, process that is issued by a court, magistrate, or body having authority of law to issue process of that nature, is legal in form, and contains nothing to notify or fairly apprise the officer that it is issued without authority. 34    When a police officer, acting in good faith, obtains a warrant and acts within its scope, there is no official misconduct, even if the arrest turns out to be unlawful. 35   Thus, if the process is fair on its face it does not matter that it is irregular, and voidable for such irregularity. 36    The officer to whom such process is issued is not required at his or her peril to look behind it, 37  and liability of the officer may not be predicated on defects in the proceedings leading up to its issuance. 38  the officer is protected from liability even though it should subsequently appear that the process was erroneously or improvidently issued. 39   Officers whose conduct in the execution of the warrant is nearly perfect are not charged with liability for relatively minor and technical discrepancies in the warrant, 40  nor will controversy concerning the circumstances of the issuance of the process necessarily impugn the efficacy of the warrant itself. 41  Thus, a warrant is sufficient to confer immunity so long as there is jurisdiction over the person and the offense named in the warrant, even if the warrant was issued erroneously, and a warrant which is merely rubber-stamped with the signature of the issuing authority is valid to confer the immunity allowed for validly issued process. 42   Similarly, an arrest pursuant a body attachment is legally justified, despite errors in the circumstances underlying its issuance, where those errors are not attributable to the party executing the process. 43

If the court has apparent jurisdiction–that is, if it has general jurisdiction of the subject matter and the process is fair on its face–the officer incurs no liability in executing such process, although the court does not have jurisdiction of the person of the defendant. 44   Thus, it is generally held that if a warrant is fair on its face an officer cannot be held liable for taking the defendant into custody thereunder, though it is issued in a proceeding under an unconstitutional statute 45  or an invalid ordinance. 46   There is, however, some authority to the contrary. 47   

Footnote 34. Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131; Phillips v Morrow, 213 Ala 139, 104 So 260,  40 ALR 285; Crawford v Huber, 215 Mich 564, 184 NW 594,  39 ALR 1392; Hoppe v Klapperich, 224 Minn 224, 28 NW2d 780,  173 ALR 819; Zeitinger v Mitchell (Mo) 244 SW2d 91; Pate v Stevens (Tex Civ App) 257 SW2d 763, writ dism w o j.

An arrest pursuant to a validly issued arrest warrant insulated the officer from liability.  Pete v Metcalfe (CA5 Tex) 8 F3d 214.

Where an arrest is made under authority of a properly issued warrant, the arrest is simply not a false arrest.  Thomas v Sams (CA5 Tex) 734 F2d 185, reh den (CA5 Tex) 741 F2d 783, cert den  472 US 1017,  87 L Ed 2d 612,  105 S Ct 3476.

A facially valid warrant immunizes an officer who acted in an objectively reasonable manner in securing the warrant.  Olson v Tyler (CA7 Wis) 771 F2d 277, later proceeding (CA7 Wis) 825 F2d 1116.

When a warrant, valid in form and issued by a court of competent jurisdiction, is placed in the hands of an officer for execution, it is his duty to carry out its demands without delay, and he incurs no liability for its proper execution, however disastrous may be the effect on the person against whom it is issued.  Barrier v Alexander, 100 Cal App 2d 497, 224 P2d 436.

Forms: Answer alleging defense that arrest was made under warrant fair on its face.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  74.

Instruction to jury–Officer not liable for proper arrest under valid process.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  77.

Footnote 35. Olson v Tyler (CA7 Wis) 771 F2d 277, later proceeding (CA7 Wis) 825 F2d 1116; Rustici v Weidemeyer (Mo) 673 SW2d 762; Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141.

Footnote 36. Robinette v Price, 214 Minn 521, 8 NW2d 800; Pate v Stevens (Tex Civ App) 257 SW2d 763, writ dism w o j.

A warrant issued by a judge in one county for arrest for a crime committed in another county is not void on its face so as to afford no protection to the officer executing it because it was made returnable before the issuing judge, when, by statute, it should have been made returnable in the county where the crime was committed.  Phillips v Morrow, 213 Ala 139, 104 So 260,  40 ALR 285.

Footnote 37. Burlingame v Traeger, 101 Cal App 365, 281 P 1051; Stine v Shuttle, 134 Ind App 67, 186 NE2d 168 (ovrld on other grounds as stated in Seymour Nat'l Bank v State (Ind App) 384 NE2d 1177); Rush v Buckley, 100 Me 322, 61 A 774; Horton v Chamberlain, 152 Vt 351, 566 A2d 953.

A police officer must use reasonable prudence and diligence to determine whether a party being arrested is the one described in the warrant.  Nonetheless, it is not the function of an arresting officer to investigate the procedure by which the warrant was issued, nor is it the officer's duty to consider the propriety of its issuance provided the warrant is regular on its face.  Lopez v City of Oxnard (2nd Dist) 207 Cal App 3d 1, 254 Cal Rptr 556.

An officer has the right to assume that the court which issued a warrant acted within its authority.  De Witt v Thompson, 192 Miss 615, 7 So 2d 529.

Footnote 38. Jackson v Osborn, 116 Cal App 2d 875, 254 P2d 871.

Footnote 39. Nastasi v State, 275 App Div 524, 90 NYS2d 377, affd 300 NY 473, 88 NE2d 658.

Footnote 40. Arnsberg v United States (1985, CA9 Or) 757 F2d 971, cert den  475 US 1010,  89 L Ed 2d 300,  106 S Ct 1183.

Footnote 41. Goodwin v Barry Miller Chevrolet, Inc. (Ala) 543 So 2d 1171.

A sheriff cannot be made liable for the execution of a warrant in a legal manner, even if he personally knows the jurisdictional defects in a preliminary proceeding pursuant to which the warrant was issued.  Hoppe v Klapperich, 224 Minn 224, 28 NW2d 780,  173 ALR 819.

Footnote 42. Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141.

Footnote 43. Nooner v Pillsbury Co. (CA8 Mo) 840 F2d 560.

Footnote 44. Rush v Buckley, 100 Me 322, 61 A 774; Brown v Hadwin, 182 Mich 491, 148 NW 693; Whaley v Lawton, 62 SC 91, 40 SE 128.

Officers are entitled to rely on a justice of the peace's representation that the justice has the authority to sign a warrant.  If the defects in the warrant make it voidable but not void, the arresting officer can rely on the warrant and render the arrest "justified" for purposes of a false imprisonment claim. Moody v McElroy (RI) 513 A2d 5.

Footnote 45. Yekhtikian v Blessing, 90 RI 287, 157 A2d 669.

Footnote 46. See Rush v Buckley, 100 Me 322, 61 A 774 (the invalidity of an ordinance under which a magistrate acts in issuing a warrant for the arrest of an accused will not render the officer who serves it liable for false imprisonment, where the magistrate has general jurisdiction over the subject matter and the process is not void on its face).

Footnote 47. Coleman v Mitnick, 137 Ind App 125, 202 NE2d 577,  16 ALR3d 527, reh den 137 Ind App 133, 203 NE2d 834,  16 ALR3d 533.

As to municipal liability for issuance of a warrant of arrest for violation of an invalid ordinance, see 57 Am Jur 2d,  Municipal, County, School, and State Tort Liability § 208.

When the same officer provides the information to obtain a warrant and then executes the warrant, the officer is in a position to control the flow of information to the magistrate on which the probable cause determination is made; so an officer who knowingly withholds facts in order to obtain a warrant may not assert the facial validity of the warrant as an absolute defense; that officer must prove to the jury's satisfaction the existence of probable cause to arrest under the circumstances. 48

Footnote 48. Bender v Seattle, 99 Wash 2d 582, 664 P2d 492, 9 Media L R 2101.

A warrant is not an impenetrable barrier to impeachment of an affidavit supporting the warrant application; if an officer submits an affidavit with statements known to be false or submitted with a reckless disregard for truth and no accurate information sufficient to constitute probable cause, the officer's conduct is the active cause of the legal arrest and the officer has not acted in an objectively reasonable manner.  Olson v Tyler (CA7 Wis) 771 F2d 277, later proceeding (CA7 Wis) 825 F2d 1116.

An arrest pursuant to a warrant which is defective on its face is actionable. 49   A police officer, like all other persons, is presumed to know the law, or held liable as if he or she did know it; and if the process on which he or she relies is void on its face, it affords no protection. 50   An officer is charged with knowledge of the superficial requirements of a valid warrant, 51  and an arrest is unlawful if based on a void judgment, 52  or a warrant for which there is no subject matter jurisdiction. 53   Thus, a warrant which recites facts which do not constitute a crime cannot justify an arrest pursuant to such warrant. 54    In determining whether a writ or warrant is obviously defective and void on its face, a distinction is sometimes drawn between courts of general and courts of limited jurisdiction, and it has been ruled that, to be valid, a warrant issued by a magistrate or officer of limited jurisdiction must show on its face that there was jurisdiction of the subject matter, the person, and the process. 55  

An arrest warrant which does not specify the amount of bail, the offense, or the basis for plaintiff's arrest, but which rather simply states that plaintiff is to be arrested and brought before the court for the purpose of setting bail, is not regular on its face within the meaning of a statute immunizing a peace officer from liability for making an arrest pursuant to a warrant of arrest regular on its face. 56

Footnote 49. Thompson v Olson (CA1 Me) 798 F2d 552, cert den  480 US 908,  94 L Ed 2d 524,  107 S Ct 1354.

Footnote 50. Stine v Shuttle, 134 Ind App 67, 186 NE2d 168 (ovrld on other grounds as stated in Seymour Nat'l Bank v State (Ind App) 384 NE2d 1177); Folsom v Fisco, 62 Mont 194, 204 P 367; Brinkman v Drolesbaugh, 97 Ohio St 171, 119 NE 451; Goodell v Tower, 77 Vt 61, 58 A 790; Winters v Campbell, 148 W Va 710, 137 SE2d 188.

Forms: Complaint alleging arrest by officer under void process.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  71.

Footnote 51. Garton v Reno, 102 Nev 313, 720 P2d 1227.

Footnote 52. Houghton v Foremost Financial Services Corp. (CA10 Okla) 724 F2d 112.

Footnote 53. Rush v Buckley, 100 Me 322, 61 A 774; Brinkman v Drolesbaugh, 97 Ohio St 171, 119 NE 451.

One who secures a warrant from a court whose jurisdiction does not extend to the offense charged, the absence of jurisdiction being clear and not the subject of judicial decision in the case, is liable for the resulting arrest.  Coffee v Peterbilt of Nashville, Inc. (Tenn) 795 SW2d 656.

Footnote 54. Crawford v Huber, 215 Mich 564, 184 NW 594,  39 ALR 1392 (warrant issued under statute providing only civil remedy); Williamson v Glen Alum Coal Co., 72 W Va 288, 78 SE 94.

Footnote 55. Burke v New York, N. H. & H. R. Co. (CA2 NY) 267 F2d 894.

Where record clearly showed that town justice possessed requisite jurisdiction to issue bench warrants for arrest of claimant upon his failure to appear for trial and order of commitment which were valid on their face, there could be no liability on part of State for actions of state officers for alleged false arrest and imprisonment of claimant.  Jemzura v State (3d Dept)  53 App Div 2d 929, 385 NYS2d 196.

Footnote 56. Allison v County of Ventura (2nd Dist) 68 Cal App 3d 689, 137 Cal Rptr 542.

(b).  Effect of Improper Procedure by Officer in Execution of Warrant [93-97]

An officer who acts in an illegal or unauthorized manner in executing a warrant is liable to the person named, even though the writ is valid, 57  and the officer believes that his or her action is within the scope of the writ. 58  Thus, while a reasonable surveillance and restraint of a person whose premises are being searched is not false imprisonment, 59   an officer who, while executing a search warrant, wrongfully imprisons the owner of the premises being searched, is liable for false imprisonment. 60  An officer may be liable to the person against whom valid process is executed for failure to make the regular written return to the court of the fact of service. 61  

Process, though fair on its face, affords the arresting officer no protection where the officer is a party or is a complainant in causing the process to be wrongfully issued solely for his or her own benefit. 62   Similarly, if the officer uses, or permits the complainant to use, the imprisonment as a means of extorting money or other things from the prisoner, or unwarrantably to intimidate or oppress, the process is no protection. 63

The initial privilege of arrest can expire, and justification can end; 64  and imprisonment following arrest can become unlawful even if an arrest is made pursuant to valid legal process and is thus itself unactionable. 65   Thus, liability may also be imposed upon an officer for unreasonable delay in taking his prisoner before a magistrate or denying him the opportunity to give bail, regardless of the fact that the officer was acting under a valid warrant. 66  

Footnote 57. Schreiner v Hutter, 104 Neb 539, 177 NW 826; Leger v Warren, 62 Ohio St 500, 57 NE 506; Gibson v Holmes, 78 Vt 110, 62 A 11.

The finding of probable cause for the issuance of the warrant will not necessarily preclude action against the officer involved in the execution of the warrant.  Leslie v Ingram (CA11 Fla) 786 F2d 1533.

Footnote 58. Gomez v Scanlan, 2 Cal App 579, 84 P 50, affd 155 Cal 528, 102 P 12.

Footnote 59. Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1 (holding that otherwise such party could secrete or destroy item searched for and so defeat purpose of search).

Footnote 60. Gomez v Scanlan, 2 Cal App 579, 84 P 50, affd 155 Cal 528, 102 P 12.

Footnote 61. Gibson v Holmes, 78 Vt 110, 62 A 11.

Footnote 62. Hoppe v Klapperich, 224 Minn 224, 28 NW2d 780,  173 ALR 819.

Footnote 63. McClenny v Inverarity, 80 Kan 569, 103 P 82.

Footnote 64. Bennett v Ohio Dep't of Rehabilitation & Correction, 60 Ohio St 3d 107, 573 NE2d 633.

Footnote 65. Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141.

Footnote 66.  §§ 29,  31.

A warrant or other process has been held to be no protection to an arresting officer where there is a duty to produce it or state its contents and the officer does not do so. 67   However, a known or regular officer is not liable for failure to produce or state the contents of process which the officer has, where the persons arrested know the charge 68  or where the person arrested precludes learning the charge by the arrestee's conduct in immediately resisting the officer. 69

An officer may be required to have a warrant in his or her possession in order to take advantage of the defense of justification. 70

Footnote 67. Anderson v Foster, 73 Idaho 340, 252 P2d 199; Crosswhite v Barnes, 139 Va 471, 124 SE 242,  40 ALR 54.

As to duty of officer to produce warrant, see 5 Am Jur 2d,  Arrest § 95.

Footnote 68. Martin v Sanford, 129 Neb 212, 261 NW 136,  100 ALR 179.

Footnote 69. Tuck v Beliles, 153 Ky 848, 156 SW 883.

Footnote 70. Rustici v Weidemeyer (Mo) 673 SW2d 762 (trial court erred in directing verdict in favor of police officer on false arrest claim where officer did not possess warrant at time of arrest).

The obligation of an officer in executing a warrant of arrest has been said to be twofold:  to apprehend the person named in the warrant, and to avoid interfering with one not involved. 71   It has been held that an officer who arrests the wrong person will be liable for false imprisonment at the suit of the person taken into custody, even though the name of the person arrested is the same as or similar to the name in the warrant, unless the arrest be upon the representation of the person taken that he or she is the person named, or upon other conduct of the person arrested leading the arresting officer to believe that he or she is the person intended by the warrant. 72   On the other hand, the view is more often taken that the good faith of the arresting officer and his reasonable care in ascertaining the identity of the person arrested with the one named in the warrant are the test of his liability. 73   Under this view, the officer will not be liable for false imprisonment for mistaking the identity of the person named in a warrant of arrest if the officer exercises reasonable diligence and care in ascertaining the identity before serving the warrant. 74    The officer is liable, however, for failure to take proper precautions to ascertain the right person, if he or she refuses information offered that would have disclosed the mistake, or if the officer detains the person an undue length of time without taking proper steps to establish identity. 75    

Officers are generally found to be immune from liability for arrest of the wrong person if there is a good-faith belief that the officer is arresting the correct person and similarities of the parties support that belief; 76  if the error is caused by reasonable reliance on information supplied to the officer; 77  if the erroneous arrest is based upon the similarity of names and other factors, 78  or if the officer justifiably relies on the description of the suspect which is set out on the warrant. 79   An arrestee establishes a prima facie case of false imprisonment by simply showing that the arrestee was not the person named in the warrant and the arrest is not privileged unless the arresting officer can show by a preponderance of the evidence that the officer acted reasonably, both subjectively and objectively, in good faith and with due diligence in determining whether the person arrested was the one specified in the warrant. 80   If the person named in the warrant is arrested, the officer is justified, although the wrong name was inserted by mistake. 81  It is a question for the jury whether an officer used due diligence and reasonably believed that the plaintiff was the person intended by the warrant. 82  

Where, from the description furnished, a police officer has reason to believe that the person arrested is the one sought upon a warrant, the officer will be exonerated from liability for arresting and detaining the person until identity can be ascertained, 83  although other aspects of the detention during that period of time, such as an unwarrantedly intrusive search, may themselves be a basis for liability. 84

In some cases, the acts of the arrested person may be held to have constituted inducement of or consent to the arrest; 85   however, a claimant's peaceful accompaniment of the officers without resisting arrest has been held not to indicate consent to a false arrest and imprisonment. 86  

The United States Supreme Court has held that a claim against a sheriff resulting from incarceration of the wrong person due to mistaken identification is not cognizable under the federal statute imposing civil liability on any person who, under color of state law, deprives another of rights secured by "the Constitution and laws", 87   the court stating that false imprisonment does not become a violation of the Fourteenth Amendment for which liability may be imposed under that statute merely because the defendant is a state official. 88    

Footnote 71. Wallner v Fidelity & Deposit Co.,  253 Wis 66, 33 NW2d 215,  10 ALR2d 745.

Footnote 72. Jordan v C. I. T. Corp., 302 Mass 281, 19 NE2d 5; Stork v Evert (Lucas Co) 47 Ohio App 256, 15 Ohio L Abs 701, 191 NE 794.

As to recovery of damages against a peace officer for the act of his deputy in arresting the wrong person by mistake, see 70 Am Jur 2d,  Sheriffs, Police, and Constables § 273.

Annotation: Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested,  39 ALR4th 705.

Forms: Complaint for false imprisonment based on arrest under warrant directing arrest of another person.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  72.

Footnote 73. Mildon v Bybee, 13 Utah 2d 400, 375 P2d 458; White v Jansen, 81 Wash 435, 142 P 1140.

Police chief was not responsible for the false imprisonment of the plaintiff, who was seen driving a truck matching the description of the suspect's, and who bore a remarkable facial resemblance to the suspect.  Gero v Henault (CA1 Mass) 740 F2d 78, cert den  469 US 1191,  83 L Ed 2d 970,  105 S Ct 965.

Police officers who arrested plaintiff under a warrant that sought another man but accurately described the plaintiff and included his proper name, address, telephone number and driver's license were not liable for the arrest even though the same mistake had been made before; the sheriff was entitled to rely on a warrant valid on its face despite refusal to consider other information that the plaintiff was not the person sought.  Lopez v City of Oxnard (2nd Dist) 207 Cal App 3d 1, 254 Cal Rptr 556.

Police were immune from liability where the warrant clearly identified the plaintiff rather than the actual offender, and the address on the warrant was the same as the plaintiff's address. Dugger v Off 2nd, Inc. (Ky App) 612 SW2d 756.

An officer must act prudently, reasonably, and use ordinary care in making arrests, including the ascertainment that the right person is being arrested.  State ex rel. Anderson v Evatt, 63 Tenn App 322, 471 SW2d 949.

Forms: Answer–Defense–Officer's good faith and reasonable care in mistaken identity arrest under warrant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  75.

–Probable cause of officer in mistaken-identity arrest under John Doe warrant.  10 Am Jur Pl & Pr Forms (Rev), False Arrest, Form  76.

Instruction to jury–Probable cause of officer in mistaken identity arrest under John Doe warrant.  10 Am Jur Pl & Pr Forms (Rev), False Arrest, Form  78.

Footnote 74. Mildon v Bybee, 13 Utah 2d 400, 375 P2d 458.

Arresting officer, acting in good faith, must either have probable cause to assume that he is arresting person named in warrant, or he must exercise reasonable diligence to satisfy himself that he has placed the proper person under arrest.  Maracle v State,  50 Misc 2d 348, 270 NYS2d 439 (holding state of New York liable).

Footnote 75. Smith v Madruga (1st Dist) 193 Cal App 2d 543, 14 Cal Rptr 389; Maracle v State,  50 Misc 2d 348, 270 NYS2d 439; Mildon v Bybee, 13 Utah 2d 400, 375 P2d 458; Wallner v Fidelity & Deposit Co.,  253 Wis 66, 33 NW2d 215,  10 ALR2d 745.

Officer must act prudently, reasonably, and with ordinary care in making arrests; including ascertainment that right person is being arrested; and arrest of plaintiff pursuant to warrant charging person of same name and middle initial with abandonment of children ages 3 to 6 in state of Georgia was not reasonable where warrant contained two addresses, sheriff's office permitted middle initial to replace middle name on warrant, plaintiff arrested was 65 years old, woman present identified herself as his wife, and plaintiff insisted he was not right man and told officers he had never lived in Georgia but had lived in same residence for more than 30 years.  State ex rel. Anderson v Evatt, 63 Tenn App 322, 471 SW2d 949.

Footnote 76. Blackwell v Barton (CA5 Tex) 34 F3d 298.

Footnote 77. Scott v District of Columbia (Dist Col App) 493 A2d 319 (computer-generated printout of warrant information).

Footnote 78. Guffey v State, 103 Wash 2d 144, 690 P2d 1163 (ovrld in part on other grounds as stated in Savage v State (Wash) 899 P2d 1270).

Footnote 79. Rustici v Weidemeyer (Mo) 673 SW2d 762.

Footnote 80. Pierson v Multnomah County, 301 Or 48, 718 P2d 738 (officer's arrest of the plaintiff on a warrant for plaintiff's twin brother presented a jury question on adequacy of identification in the warrant and reasonableness of the officer's conduct, and the jury exoneration of the officer was proper).

Footnote 81. Blocker v Clark, 126 Ga 484, 54 SE 1022.

The warrant named the person to be arrested at the correct address; the officer arrested that person and was immune from suit, even though that person turned out not to be the person who was accused of the crime described in the warrant.  Davis v Syracuse,  66 NY2d 840, 498 NYS2d 355, 489 NE2d 242.

Footnote 82. Craner v Corbett (4th Dep't)  27 App Div 2d 796, 279 NYS2d 135.

Summary judgment dismissing complaint against city and one of its police officers for false arrest was erroneous, where plaintiff was brought to attention of arresting officers solely due to his stage name being same as alias used by person named in arrest warrant, plaintiff offered to prove his identity immediately upon being presented with warrant, and police officers did not consider any of proffered identification when making arrest; jury might have reasonably concluded either that officers' belief that they were actually arresting person named in warrant was reasonable or that belief was not reasonable.  Robinson v San Francisco (1st Dist) 41 Cal App 3d 334, 116 Cal Rptr 125.

In an action against two police officers for false arrest, there was a genuine issue of material fact as to whether defendants exercised due care in determining whether plaintiff was the person named in the warrant, and summary judgment was improperly entered for defendants, where the arrest warrant directed defendants to arrest "Bernard Jackson" for the crime of selling heroin; plaintiff's name is Clarence Bernard Robinson and nothing in the record suggests that he was known by any other name; even if defendants can show that a confidential informant who told one defendant that "Bernard Jackson" lived at plaintiff's address was reliable, such defendant's affidavit shows that when the officers went to the address they were informed that Clarence Bernard Robinson was the only black male who lived there; defendant's affidavits asserted that an SBI agent who purchased the heroin in question identified a photograph of plaintiff and later identified plaintiff himself as the person from whom the purchase was made, but the SBI agent's affidavit was to the effect that he never positively identified either the photograph or the plaintiff as the heroin seller; and it was unconstructed that even after defendants knew that they had arrested the wrong person, plaintiff was still held in jail overnight before he was allowed to go free.  Robinson v Winston-Salem, 34 NC App 401, 238 SE2d 628.

Peace officer will not necessarily be held liable for mistaking identity of person named in warrant of arrest, but this is true only if he has exercised reasonable diligence and care in ascertaining identity before he serves warrant; where at time officer accosted plaintiff, latter was conducting himself peaceably and there was nothing to give rise to any suspicion that he was then involved in or had any connection with a transgression of law, and there is no indication in record that defendant officer asked any of several persons standing near plaintiff whether plaintiff was person named in warrant, question of diligence should have been submitted to jury.  Mildon v Bybee, 13 Utah 2d 400, 375 P2d 458.

Footnote 83. Kittredge v Frothingham, 114 Me 537, 96 A 1063.

Footnote 84. Fricker v Stokes, 22 Ohio St 3d 202, 22 Ohio BR 354, 490 NE2d 577.

Footnote 85. See Driskell v Alfano (2d Dep't)  14 App Div 2d 791, 220 NYS2d 513 (plaintiff who knowingly or negligently permitted use of his barber license in barbershop after license had expired could not recover damages in action for false arrest and false imprisonment where owner of barbershop told investigator for division of licenses that plaintiff was owner and at the same time exhibited plaintiff's expired license which was without required photograph attached thereto and investigator thereupon procured a summons to be issued and plaintiff was arrested when he did not appear in response to the summons).

Footnote 86. Maracle v State,  50 Misc 2d 348, 270 NYS2d 439 (holding state of New York liable).

Footnote 87. 42 USCS §  1983, which is discussed generally in 15 Am Jur 2d Civil Rights §§ 16 et seq.

Footnote 88. Baker v McCollan,  443 US 137,  61 L Ed 2d 433,  99 S Ct 2689, on remand (CA5 Tex) 601 F2d 903 and (not followed on other grounds as stated in Davidson v O'Lone (CA3 NJ) 752 F2d 817).

Where two persons are of the same name and the name is that stated in the warrant and the officer arrests one whom the officer knows is not the one intended, or does not in good faith believe the person to be so, the warrant is not a justification. 89   However, if the officer in good faith arrests one of two persons having the same name as that stated in the warrant, believing that one to be the one intended, the officer is justified. 90   The justification would be all the more apparent if there were only one by that name known to the officer. 91   In these "misnomer" cases, where the warrant may be applicable to two or more persons with complete accuracy, the officer is required to exercise reasonable care in assuring that the officer has arrested the person intended to be apprehended under the warrant in order to enjoy the benefit of justification. 92   Likewise, where a warrant is issued for a certain person and executed against that person, the officer executing it is not liable for false imprisonment although the person who actually committed the offense was another party of the same name as the plaintiff 93   and the officer doubted that it was the plaintiff who had committed the crime. 94

Footnote 89. King v Robertson, 227 Ala 378, 150 So 154.

Even though plaintiff had the same name as person named in the warrant, defendant sheriff had the burden of proving reasonable execution of the warrant.  Stewart v Williams, 243 Ga 580, 255 SE2d 699, on remand 150 Ga App 539, 258 SE2d 251.

Annotation: Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested,  39 ALR4th 705.

Footnote 90. Schneider v Kessler (CA3 NJ) 97 F2d 542; King v Robertson, 227 Ala 378, 150 So 154; Blocker v Clark, 126 Ga 484, 54 SE 1022; O'Neill v Keeling, 227 Iowa 754, 288 NW 887,  127 ALR 1050.

Summary judgment should have been granted defendant sheriff where deputy arrested person of same name and residing at same address as that in warrant and there was no other person of that name at that address, even though person for whom warrant was intended resided in different county, the mistake in warrant having been made by someone other than arresting officer.  Sanders v Jacobs, 119 Ga App 101, 166 SE2d 433.

Where plaintiff, who had the same name, except for middle initial, as person against whom warrant had been issued in Pennsylvania, was arrested after investigation by police in Ohio, plaintiff having come to Ohio from Pennsylvania, probable cause for arrest existed as a matter of law and verdict should be directed in action against arresting officers for false arrest.  Johnson v Reddy (Ohio App, Cuyahoga Co) 120 NE2d 459, revd on other grounds 163 Ohio St 347, 56 Ohio Ops 316, 126 NE2d 911.

Footnote 91. King v Robertson, 227 Ala 378, 150 So 154.

Footnote 92. Davis v Syracuse,  66 NY2d 840, 498 NYS2d 355, 489 NE2d 242.

Where the person arrested bore the same name but was not the person named in the arrest warrant, the arresting officer must be shown to have made diligent inquiry as to the identity of the person named in the warrant, and if the officer made such inquiry and arrested the person the officer believed was the one named in the warrant, there was no liability, even though the wrong person was arrested.  Wilson v Bonner, 166 Ga App 9, 303 SE2d 134.

Footnote 93. Kalish v White, 36 Cal App 604, 173 P 494.

An officer making an arrest under a valid warrant in which the person to be arrested is described by name only is not liable for false arrest if the person arrested bears, or is commonly known by, that name, and is the person intended.  O'Neill v Keeling, 227 Iowa 754, 288 NW 887,  127 ALR 1050.

Footnote 94. Kalish v White, 36 Cal App 604, 173 P 494.

An exemption from arrest is generally regarded as a personal privilege which may be waived by the party in whose favor it is granted. 95   Consequently, the mere fact that a person has such a privilege and it is violated does not furnish a basis for an action for false imprisonment. 96   The only remedy for such a person is to avail himself or herself of exemption in a manner provided by law. 97    However, where the exemption is construed to be such an absolute prohibition of arrest that the arrest of such a person under any circumstances is illegal, a warrant is no protection. 98

Footnote 95. 5 Am Jur 2d,  Arrest § 143.

Footnote 96. Winchester v Everett, 80 Me 535, 15 A 596.

Footnote 97. 5 Am Jur 2d,  Arrest § 142.

Footnote 98. Nelson v Kellogg, 162 Cal 621, 123 P 1115.

3.  Immunity [98-115]

a.  Judicial Officers [98-108]

A judicial officer having jurisdiction of the person and of the subject matter is exempt from civil liability for false imprisonment, so long as the judge acts within that jurisdiction 99   and in a judicial capacity, 1  even though the judicial officer may commit an error of judgment. 2   Immunity is not extended to these officers in order to protect them as individuals, but to protect the interests of society upon the theory that society is best served if the judicial officer is left entirely free to act upon independent convictions, uninfluenced by fear of consequences personal to himself or herself. 3  

Footnote 99. Ravenscroft v Casey (CA2 NY) 139 F2d 776, cert den  323 US 745,  89 L Ed 596,  65 S Ct 63, reh den  323 US 814,  89 L Ed 648,  65 S Ct 114; Broom v Douglass, 175 Ala 268, 57 So 860; McDaniel v Harrell, 81 Fla 66, 87 So 631,  13 ALR 1333; Holland v Lutz, 194 Kan 712, 401 P2d 1015; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Gardner v Couch, 137 Mich 358, 100 NW 673, reh den 137 Mich 362, 101 NW 802; Grant v Williams, 54 Mont 246, 169 P 286, subsequent app 54 Mont 426, 171 P 276; Moore v Cotton, 94 NH 387, 54 A2d 167; Landseidel v Culeman, 47 ND 275, 181 NW 593,  13 ALR 1339.

The magistrate who issued a warrant, upon the affidavit of a citizen informant, for the driver of a car, deeming it probable that the driver was the car's owner of record, was within the presumption of good faith for one acting with judicial authority, affording the magistrate immunity on the false arrest or imprisonment claim.  Bahakel v Tate (Ala) 503 So 2d 837.

A claim against a district judge in connection with an alleged false imprisonment raised with respect to a temporary mental health commitment was barred by judicial immunity.  Temple v Marlborough Div. of Dist. Court Dep't, 395 Mass 117, 479 NE2d 137.

See also Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141 (holding that the issuer of a warrant is protected against false arrest and false imprisonment claims where the warrant is regular in form and the issuer has authority over the described offense and jurisdiction over the person named in the warrant).

Forms: Answer–defense–judicial immunity–acts of officer done in judicial capacity and while acting within jurisdiction.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  133.

Footnote 1. As to acting in ministerial capacity, see  § 107.

Footnote 2.  § 100.

Footnote 3. Bradley v Fisher,  80 US 335, 13 Wall 335,  20 L Ed 646; Grant v Williams, 54 Mont 246, 169 P 286, subsequent app 54 Mont 426, 171 P 276.

Judicial immunity from liability for false imprisonment extends to judges of courts of limited jurisdiction. 4     Moreover, though some distinction has been made between judges of superior and inferior courts in cases of acts done in excess of their jurisdiction 5   or with malice, 6   it is generally held that judges of courts of limited jurisdiction are exempt from civil liability in damages for their judicial acts in all cases where judges of courts of general jurisdiction are exempt. 7     

Footnote 4. Lacey v Hendricks, 164 Ala 280, 51 So 157; Holland v Lutz, 194 Kan 712, 401 P2d 1015; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Whitehead v De Andrea, 186 Misc 546, 60 NYS2d 44; Voll v Steele, 141 Ohio St 293, 25 Ohio Ops 424, 47 NE2d 991; Berry v Smith, 148 Va 424, 139 SE 252,  55 ALR 279.

If a judge of a court of limited jurisdiction has subject matter jurisdiction and a colorable claim of personal jurisdiction, the judge or magistrate is immune for the issuance of a warrant, so long as the judge or magistrate acts in good faith.  Bahakel v Tate (Ala) 503 So 2d 837.

Even though family court had not considered and transferred to county court charge of assault arising from claimant's alleged incest with his daughter, county court had at least the initial power to adjudicate whether the complex fact is required to transfer to the family court, and county court was not without some power to adjudicate and the state was protected against a claim for false imprisonment when its administrative officials acted upon commitment papers issued by county court.  Nuernberger v State,  41 NY2d 111, 390 NYS2d 904, 359 NE2d 412.

Footnote 5.  § 101.

Footnote 6.  § 108.

Footnote 7. Lacey v Hendricks, 164 Ala 280, 51 So 157; McDaniel v Harrell, 81 Fla 66, 87 So 631,  13 ALR 1333; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Berry v Bass, 157 La 81, 102 So 76; Allard v Estes, 292 Mass 187, 197 NE 884; Ussery v Haynes, 344 Mo 530, 127 SW2d 410; Grant v Williams, 54 Mont 246, 169 P 286, subsequent app 54 Mont 426, 171 P 276; Moore v Cotton, 94 NH 387, 54 A2d 167; Landseidel v Culeman, 47 ND 275, 181 NW 593,  13 ALR 1339; Shaw v Moon, 117 Or 558, 245 P 318,  45 ALR 600; Richardson v Capwell, 63 Utah 616, 176 P 205; Berry v Smith, 148 Va 424, 139 SE 252,  55 ALR 279; Kalb v Luce,  234 Wis 509, 291 NW 841.

The rule of judicial immunity protects a judicial officer from liability when acting within the court's jurisdiction even though in arriving at a decision he or she has committed an error of judgment. 8   A judge is not bound at the peril of an action for damages or a personal controversy to decide rightly in a matter of either law or fact, but is bound only to decide according to his or her own convictions. 9    So there is no liability where the magistrate erroneously demands cash bail instead of bond, 10  holds a person for the grand jury of the county under the belief that the person has committed an offense against the state, where the only authority is to hold the person for the federal grand jury, 11  sentences a person without first making and entering a finding of guilt 12  or without offering the alternative of paying a fine as provided by ordinance. 13

Where a court has jurisdiction of a certain class of cases and also the judicial duty of passing on the papers and the evidence in a particular case to decide whether its judicial power shall be exerted, any error in the decision is an error in the exercise of jurisdiction rather than an act outside jurisdiction. 14   For example, in determining whether notice had been served properly upon an alleged incompetent, a court acts judicially, and even if it is in error, it is not responsible for false imprisonment. 15

Footnote 8. Lacey v Hendricks, 164 Ala 280, 51 So 157; Malone v Carey, 17 Cal App 2d 505, 62 P2d 166; Waters v Ray (Fla App D1) 167 So 2d 326; Waters v Barclay, 57 Idaho 376, 64 P2d 1079; Brown v Larimer, 132 Kan 81, 294 P 906; Gardner v Couch, 137 Mich 358, 100 NW 673, reh den 137 Mich 362, 101 NW 802; Robinette v Price, 214 Minn 521, 8 NW2d 800; Pogue v Swink, 365 Mo 503, 284 SW2d 868; Bolton v Vellines, 94 Va 393, 26 SE 847; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

A magistrate issuing a warrant, on the affidavit of a citizen informant, deeming it "probable" that the owner of a car was also the driver of the car in question, acted within the assumption of good faith accorded to one acting with judicial authority, and the magistrate was immune from liability for false arrest, even if the magistrate's conclusion was, in fact, incorrect; a judge of a court of limited jurisdiction, acting within his or her jurisdiction and with a colorable claim of personal jurisdiction is immune for the issuance of a warrant, so long as the magistrate acts in good faith, even if wrong.  Bahakel v Tate (Ala) 503 So 2d 837.

A justice of the peace has jurisdiction to determine whether he is to be excused because of an affidavit of prejudice, and even if he incorrectly decides that he may try the case, he may not become liable for false imprisonment because of his decision on the question of prejudice.  King v Cawood, 223 Ky 291, 3 SW2d 616.

Neither superior nor inferior judicial officers should be held liable for errors of judgment, even in respect to the extent of their jurisdiction or of their powers under the laws which they are called upon to enforce.  Berry v Bass, 157 La 81, 102 So 76.

The issuer of a warrant is protected against false arrest and false imprisonment claims where the warrant is regular in form and the issuer has authority over the described offense and jurisdiction over the person named in the warrant, even if the warrant was issued erroneously.  Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141.

Footnote 9. See Lewis v Commonwealth, 329 Mass 445, 108 NE2d 922,  35 ALR2d 1277 (if a judge has jurisdiction of the crime of robbery and of the defendant the judge may impose a sentence for robbery without personal liability, notwithstanding that the facts presented are not such as would warrant a conviction for robbery).

Footnote 10. Gordon v District Court of Fifth Judicial Dist., 36 Nev 1, 131 P 134.

Footnote 11. McIntosh v Bullard, Earnhart & Magness, 95 Ark 227, 129 SW 85.

Footnote 12. Atwood v Atwater, 43 Neb 147, 61 NW 574.

Footnote 13. Berry v Bass, 157 La 81, 102 So 76.

Footnote 14. Nelson v Cordova (DC Alaska) 7 Alaska 555; Kraft v Porter, 76 Ill App 328; Grove v Van Duyn, 44 NJL 654; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 15. Ussery v Haynes, 344 Mo 530, 127 SW2d 410.

As a general rule, where a judge or other officer acting in a judicial capacity and having jurisdiction of the person and the subject matter goes beyond or exceeds his or her authority, the judge is not liable for false imprisonment. 16  Though in a few instances the courts seem to except from the rule granting immunity to judicial officers acts done by a judge of an inferior court in excess of jurisdiction, 17  the validity of any such exception has more often been expressly denied. 18

Footnote 16. Bradley v Fisher,  80 US 335, 13 Wall 335,  20 L Ed 646; Early v Fitzpatrick, 161 Ala 171, 49 So 686; Calhoun v Little, 106 Ga 336, 32 SE 86; Waters v Barclay, 57 Idaho 376, 64 P2d 1079; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Allard v Estes, 292 Mass 187, 197 NE 884; De Witt v Thompson, 192 Miss 615, 7 So 2d 529; Pogue v Swink, 365 Mo 503, 284 SW2d 868; Scott v Fishblate, 117 NC 265, 23 SE 436; Waugh v Dibbens, 61 Okla 221, 160 P 589.

Where facts which have either legal value or color of legal value are presented to a judge of a court of general jurisdiction, the judge is immune from liability for error committed, even though it is subsequently held that as a matter of law he or she has no jurisdiction whatsoever in the matter.  Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 17. Clarke v May, 68 Mass 410, 2 Gray 410.

Footnote 18. Blancett v Wimberley, 16 Ala App 402, 78 So 318; Berry v Bass, 157 La 81, 102 So 76; Allard v Estes, 292 Mass 187, 197 NE 884; Scott v Fishblate, 117 NC 265, 23 SE 436.

The rule that a judicial officer who exceeds jurisdiction is not liable for false imprisonment is applicable to protect judges of inferior courts as well as judges of superior courts.  Stahl v Currey, 135 Ohio St 253, 14 Ohio Ops 112, 20 NE2d 529.

Where any judicial officer causes the arrest or detention of a person in a proceeding in which the officer is acting wholly without jurisdiction, the judge or officer may be held liable for false imprisonment, 19  for even honesty of purpose cannot justify a clear usurpation of power. 20    This liability applies with equal force to judges of inferior and superior courts. 21   Thus, a justice who, not having power to require bond for the appearance of a witness, commits a witness for failure to file a bond is liable for false imprisonment. 22   Liability may be imposed even where assertion of jurisdiction might initially have been proper, such as where a magistrate issues process or causes a detention after the magistrate's term has expired, even though he or she is unaware of this fact, 23  or where a judge acts despite having lost jurisdiction of a case within his or her authority after the commencement of the action. 24  

Jurisdiction of the subject matter alone is not sufficient to protect the judge; he or she must also have jurisdiction of the person. 25   However, it has been held that judicial immunity will apply so long as the action complained of is one within the colorable jurisdiction of the court; 26  thus, the defense will be available unless a clear absence of jurisdiction is at once apparent to the ordinary understanding. 27   

Footnote 19. Ceinar v Johnston, 134 Cal App 166, 25 P2d 28; Tracy v Williams, 4 Conn 107; Brown v Larimer, 132 Kan 81, 294 P 906; Cox v Perkins, 299 Ky 470, 185 SW2d 954,  173 ALR 797; De Witt v Thompson, 192 Miss 615, 7 So 2d 529; Jones v Grooms (Adams Co) 56 Ohio App 351, 9 Ohio Ops 408, 25 Ohio L Abs 39, 10 NE2d 958; Goodell v Tower, 77 Vt 61, 58 A 790; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

When a judge acts in the clear absence of all jurisdiction the proceeding is coram non judice.  The judge becomes a mere private person and is liable as a trespasser for the damages resulting from unauthorized acts, including false imprisonment.  Manning v Ketcham (CA6 Ky) 58 F2d 948.

A municipal court judge wilfully ordering the re-arrest of a person freed on a writ of habeas corpus is liable for false imprisonment.  Farish v Smoot (Fla) 58 So 2d 534.

A municipal magistrate having no jurisdiction over a person imprisoned for violation of a state statute, which act is not an offense against the municipality, is liable in tort to the person thus illegally imprisoned.  Stembridge v Wright, 32 Ga App 587, 124 SE 115.

Forms: Complaint, petition, or declaration–imprisonment on charge not constituting crime–against magistrate acting without jurisdiction.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  131.

Footnote 20. Waters v Ray (Fla App D1) 167 So 2d 326.

A justice of the peace is civilly liable for acts which are outside the scope and limits of jurisdiction even though made in good faith in belief that there was jurisdiction.  Cox v Perkins, 299 Ky 470, 185 SW2d 954,  173 ALR 797.

Footnote 21. Stiles v Morse, 233 Mass 174, 123 NE 615,  4 ALR 1365 (disapproved on other grounds by Chartrand v Riley, 354 Mass 242, 237 NE2d 10) and (ovrld in part on other grounds by Gildea v Ellershaw, 363 Mass 800, 298 NE2d 847); Lucas v Central Missouri Trust Co., 349 Mo 537, 162 SW2d 569; Sweeney v Young, 82 NH 159, 131 A 155,  42 ALR 757; O'Regan v Schermerhorn, 25 NJ Misc 1, 50 A2d 10; Shaw v Moon, 117 Or 558, 245 P 318,  45 ALR 600; Goodell v Tower, 77 Vt 61, 58 A 790.

Footnote 22. Bates v Kitchel, 160 Mich 402, 125 NW 684.

Footnote 23. Grace v Teague, 81 Me 559, 18 A 289.

Footnote 24. Lacey v Hendricks, 164 Ala 280, 51 So 157; Farish v Smoot (Fla) 58 So 2d 534; Holz v Rediske,  116 Wis 353, 92 NW 1105.

Footnote 25. Von Arx v Shafer (CA9 Alaska) 241 F 649.

A judge who imposes a fine upon a witness who acknowledges guilt of a crime within the jurisdiction of the court while testifying in another case is liable in damages for imprisoning the witness in default of payment of the fine where the witness does not consent to trial, and where no papers are served so as to bring the witness within the jurisdiction of the court.  Rammage v Kendall, 168 Ky 26, 181 SW 631.

Footnote 26. Utley v Independence, 240 Or 384, 402 P2d 91.

Footnote 27. Germeroth v Oregon City, 83 Or App 533, 733 P2d 32 (while issue of whether citations, rather than sworn complaints, could form basis for issuance of arrest warrant was in doubt, judge was entitled to immunity where he issued warrant in exercise of his jurisdiction over city parking violations).

See also Colin v County of Suffolk (2d Dep't)  181 App Div 2d 653, 580 NYS2d 460, app den  80 NY2d 756, 588 NYS2d 824, 602 NE2d 232 (Family Court hearing examiner was entitled to summary judgment dismissing complaint alleging false arrest and malicious prosecution, where plaintiff failed to proffer evidence demonstrating that hearing examiner performed any acts in clear absence of jurisdiction).

In order to bring the act of a judicial officer in issuing a warrant within the rule granting immunity for acts done in a judicial capacity, the officer must have issued the warrant on a sufficient affidavit or complaint properly verified where it is not issued on view. 28   A magistrate is liable for issuing a warrant without the affidavit or complaint; 29  upon an oral statement where a written one is required; 30  or at the instance of one having no legal authority to make a complaint. 31

Some courts have taken or supported the view that if the affidavit or complaint fails to state any offense within the criminal laws, or an offense not within the jurisdiction of the court, the magistrate may be held liable. 32

In other cases, however, the courts have held that if the magistrate has general jurisdiction over the offense sought to be charged, the failure of the affidavit or complaint to fully or correctly state or sustain the charge will not render the magistrate liable for false imprisonment, though he or she issues a warrant and proceeds against the accused thereunder. 33   All that is required to protect the justice in issuing a warrant is that the evidence produced be colorable, calling upon the justice to act in judicial capacity in determining the question of probable cause. 34   If the facts presented by the affidavit or complaint are sufficient to challenge judicial determination, the issuance of a warrant on the strength of the affidavit or complaint does not render the magistrate liable. 35   Some fact or circumstance must appear tending to establish the guilt of the accused, however, and an affidavit showing on its face that it is based on information and belief which is merely hearsay is insufficient where it is not accompanied by any positive allegation. 36

Footnote 28. Harkness v Hyde, 31 Idaho 784, 176 P 885.

Footnote 29. Harkness v Hyde, 31 Idaho 784, 176 P 885; McCray v Lake Louisvilla (Ky) 332 SW2d 837; Kossouf v Knarr, 206 Pa 146, 55 A 854.

Footnote 30. Shaefer v Smith, 92 NJL 267, 106 A 21.

Footnote 31. Goodell v Tower, 77 Vt 61, 58 A 790 (complaint made by agent of society for prevention of cruelty to animals where statute authorized complaint only by "officer" of such society).

Footnote 32. Ceinar v Johnston, 134 Cal App 166, 25 P2d 28; Vickrey v Dunivan, 59 NM 90, 279 P2d 853.

Where the affidavit charged suspicion of malicious destruction of property, which was not an offense, the justice of the peace was liable for issuance of a warrant on the affidavit.  Minor v Seliga, 168 Ohio St 1, 5 Ohio Ops 2d 256, 150 NE2d 852.

Footnote 33. Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131; Platz v Marion, 35 Cal App 241, 169 P 697; Moore v Cotton, 94 NH 387, 54 A2d 167.

See also Germeroth v Oregon City, 83 Or App 533, 733 P2d 32 (while issue of whether citations, rather than sworn complaints, could form basis for issuance of arrest warrant was in doubt, judge was entitled to immunity where he issued warrant in exercise of his jurisdiction over city parking violations).

Footnote 34. Gardner v Couch, 137 Mich 358, 100 NW 673, reh den 137 Mich 362, 101 NW 802.

Footnote 35. Brinkman v Drolesbaugh, 97 Ohio St 171, 119 NE 451.

Footnote 36. McKelvey v Marsh, 63 App Div 396, 71 NYS 541.

According to the view most generally taken, if the judicial officer has jurisdiction, the fact that the officer is acting under an invalid statute or ordinance does not render him or her liable for false imprisonment. 37    There is authority, however, that the magistrate is liable to a person arrested on a warrant issued under an unconstitutional statute. 38

Footnote 37. Nelson v Cordova (DC Alaska) 7 Alaska 555; Trammell v Russellville, 34 Ark 105 (ovrld in part on other grounds by Parish v Pitts, 244 Ark 1239, 429 SW2d 45); McDaniel v Harrell, 81 Fla 66, 87 So 631,  13 ALR 1333; Calhoun v Little, 106 Ga 336, 32 SE 86; McCray v Lake Louisvilla (Ky) 332 SW2d 837; Rush v Buckley, 100 Me 322, 61 A 774; Brooks v Mangan, 86 Mich 576, 49 NW 633; Richardson v Capwell, 63 Utah 616, 176 P 205.

Footnote 38. Kelly v Bemis, 70 Mass 83, 4 Gray 83.

The exemption of judicial officers from civil liability for false imprisonment 39   applies also where the officer, while acting within the officer's jurisdiction, causes the arrest and commitment of a person for contempt. 40   Thus, one committed for contempt by a court of general jurisdiction has no right of action against the judge thereof for false imprisonment, even though the latter acted in excess of jurisdiction and was actuated by malicious motives and the prisoner was released by habeas corpus proceedings or otherwise. 41   

On the other hand, where the judicial officer is without jurisdiction in the proceeding in which the order of commitment for contempt is made, or is without statutory authority to commit the plaintiff for the alleged contempt, the officer is properly held liable for plaintiff's false imprisonment. 42 

Footnote 39.  §§ 98 et seq.

Footnote 40. Terry v Wright, 9 Colo App 11, 47 P 905; Waters v Barclay, 57 Idaho 376, 64 P2d 1079; Allard v Estes, 292 Mass 187, 197 NE 884; Bowman v Seaman, 152 App Div 690, 137 NYS 568, reh den 152 App Div 937, 137 NYS 1112.

Footnote 41. Early v Fitzpatrick, 161 Ala 171, 49 So 686; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Scott v Fishblate, 117 NC 265, 23 SE 436; Waugh v Dibbens, 61 Okla 221, 160 P 589; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 42. Harkness v Hyde, 31 Idaho 784, 176 P 885; Wheeler & Wilson Mfg. Co. v Boyce, 36 Kan 350, 13 P 609; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Piper v Pearson, 68 Mass 120, 2 Gray 120; Rutherford v Holmes, 66 NY 368; Jones v Grooms (Adams Co) 56 Ohio App 351, 9 Ohio Ops 408, 25 Ohio L Abs 39, 10 NE2d 958; Holz v Rediske,  116 Wis 353, 92 NW 1105.

The rule of judicial immunity has been applied as a defense in false imprisonment actions based upon the judge's order of commitment or other involvement in insanity proceedings. 43         

Footnote 43. Baer v Smith, 68 Cal App 2d 716, 157 P2d 646; Olepa v Mapletoff, 2 Mich App 734, 141 NW2d 350; Devault v Truman, 354 Mo 1193, 194 SW2d 29; Reynolds v Hart,  54 Misc 2d 476, 282 NYS2d 909; Quindlen v Hirschi (Okla) 284 P2d 723; Morris v Nowotny (Tex Civ App Austin) 323 SW2d 301, writ ref n r e (Jun 10, 1959) and rehg of writ of error overr (Jul 8, 1959) and cert den  361 US 889,  4 L Ed 2d 124,  80 S Ct 164, reh den  361 US 921,  4 L Ed 2d 189,  80 S Ct 264.

Probate judge's action in committing plaintiff to state mental hospital was judicial rather than ministerial act so that judge was immune from liability in plaintiff's action for wrongful commitment.  Perkins v United States Fidelity & Guaranty Co. (CA5 Ala) 433 F2d 1303 (applying Alabama law).

The false imprisonment claim against a district judge, among others, in connection with a temporary commitment under a statute authorizing emergency restraint of dangerous persons, was barred by judicial immunity.  Temple v Marlborough Div. of Dist. Court Dep't, 395 Mass 117, 479 NE2d 137.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523 § 4.

A distinction is to be noted between acts which are judicial in their nature and those of an administrative or ministerial character.  The protection afforded judicial officers extends only to judicial decisions or acts of a judicial nature, and not to mere administrative acts. 44  Accordingly, a magistrate who knows of an arrest and, being required to have the prisoner brought before the magistrate without delay, permits the prisoner to be imprisoned without hearing or bail, is liable for false imprisonment. 45   The action of a mayor, for example, in swearing out a complaint and warrant, is not part of the judicial function and is not an act which is cloaked in judicial immunity. 46   

Footnote 44. See Wyatt v Baker, 41 Ga App 750, 154 SE 816, appeal after remand 45 Ga App 448, 165 SE 133, appeal after remand 49 Ga App 410, 175 SE 678 (where the defendant as mayor had passed sentence on a plaintiff requiring that he pay a fine and costs or be imprisoned in lieu thereof, and where, after the fine and costs had been paid, the defendant, with knowledge of the payment, had issued a commitment and caused the plaintiff to be imprisoned under the sentence, the act of issuance of the commitment was ministerial and did not entitle the defendant to an exemption from liability for false imprisonment on the ground that it was performed in the exercise of a judicial function).

Footnote 45. Von Arx v Shafer (CA9 Alaska) 241 F 649.

Footnote 46. Thomas v Sams (CA5 Tex) 734 F2d 185, reh den (CA5 Tex) 741 F2d 783, cert den  472 US 1017,  87 L Ed 2d 612,  105 S Ct 3476.

With respect to judges of superior courts, immunity to suit for false imprisonment may extend even to cases where the judge is actuated by corrupt or malicious motives, 47  provided the judge is not acting wholly without jurisdiction, which would make him or her otherwise liable. 48   The immunity extends to judges of inferior courts, where the acts complained of are committed while they are acting wholly within their jurisdiction, although they act maliciously or corruptly. 49  There is, however, authority that where a justice exceeds his or her jurisdiction in sentencing and committing a person, and in doing so acts wilfully, maliciously, and corruptly, with full knowledge of lack of jurisdiction, the justice is liable. 50 

Footnote 47. Broom v Douglass, 175 Ala 268, 57 So 860; Trammell v Russellville, 34 Ark 105 (ovrld in part on other grounds by Parish v Pitts, 244 Ark 1239, 429 SW2d 45); Rogers v Marion, 11 Cal App 2d 750, 54 P2d 760; McDaniel v Harrell, 81 Fla 66, 87 So 631,  13 ALR 1333; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Lange v Benedict, 73 NY 12, error dismd  99 US 68, 9 Otto 68,  25 L Ed 469; Waugh v Dibbens, 61 Okla 221, 160 P 589; Berry v Smith, 148 Va 424, 139 SE 252,  55 ALR 279; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 48.  § 102.

Footnote 49. Broom v Douglass, 175 Ala 268, 57 So 860; McBurnie v Sullivan, 152 Ky 686, 153 SW 945; Pratt v Gardner, 56 Mass 63, 2 Cush 63; Grant v Williams, 54 Mont 246, 169 P 286, subsequent app 54 Mont 426, 171 P 276; Gordon v District Court of Fifth Judicial Dist., 36 Nev 1, 131 P 134; Scott v Fishblate, 117 NC 265, 23 SE 436; Landseidel v Culeman, 47 ND 275, 181 NW 593,  13 ALR 1339; Tedford v McWhorter (Tex Civ App Eastland) 373 SW2d 832, writ ref n r e (Apr 8, 1964); Berry v Smith, 148 Va 424, 139 SE 252,  55 ALR 279.

Footnote 50. Robertson v Parker,  99 Wis 652, 75 NW 423.

b.  Quasi-judicial Officers [109-113]

An exemption similar to that of judges from personal liability for their judicial acts 51   is extended to officers in the other departments of government whenever they are entrusted with the exercise of discretionary power and their determinations or decisions are, by their nature, judicial. 52   Therefore, no public officer whose functions are quasi-judicial in nature is liable to persons for false imprisonment based on a determination made within the officer's jurisdiction, however erroneous it may be, 53  and however malicious the motives which produced it. 54   This immunity exists only where the officer has jurisdiction of the particular case and is authorized to determine it; if the officer transcends the limits of authority the officer ceases, in the particular case, to act as judge, and is responsible for all the consequences. 55   The doctrine of nonresponsibility has been applied, for example, to protect a governor from civil liability for acts in the suppression of an insurrection; 56      to protect grand jurors who are charged with having acted erroneously and maliciously in the performance of their duties; 57  and to protect the mayor of a city in restraining and confining an intoxicated constable. 58    Even in those circumstances, however, a mayor's actions in investigating and swearing out a complaint and warrant do not entail judicial immunity, if such actions do not constitute part of the mayor's judicial function. 59   Also, the rule of immunity will not protect a mayor who is exercising official authority to aid the private interests of individuals, although the same acts may come within the scope of the mayor's public duties. 60

Under some circumstances, court clerks acting at the direction of a judge also have absolute immunity. 61

Absent a waiver of sovereign immunity members of a state parole board and analysts working at their direction are immune from an inmate's false imprisonment suit alleging unlawful delay in consideration of release on parole. 62

Footnote 51.  §§ 98 et seq.

Footnote 52. Papagianakis v The Samos (CA4 Va) 186 F2d 257, cert den  341 US 921,  95 L Ed 1354,  71 S Ct 741; Prentice v Bertken, 50 Cal App 2d 344, 123 P2d 96.

Footnote 53. Robinette v Price, 214 Minn 521, 8 NW2d 800.

Footnote 54. Papagianakis v The Samos (CA4 Va) 186 F2d 257, cert den  341 US 921,  95 L Ed 1354,  71 S Ct 741.

Footnote 55. Mumford v Starmont, 139 Mich 188, 102 NW 662; Bolton v Vellines, 94 Va 393, 26 SE 847.

Forms: Complaint for arrest and imprisonment of person not on probation on warrant of probation officer acting without jurisdiction.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  132.

Footnote 56. Moyer v Peabody (CC Colo) 148 F 870, affd  212 US 78,  53 L Ed 410,  29 S Ct 235; Druecker v Salomon,  21 Wis 621.

Footnote 57. Turpen v Booth, 56 Cal 65.

Footnote 58. Boutte v Emmer, 43 La Ann 980, 9 So 921.

If the mayor of a city is given power by the charter to issue warrants and try persons accused of violating the city ordinances, the mayor is within the doctrine of judicial immunity.  McDaniel v Harrell, 81 Fla 66, 87 So 631,  13 ALR 1333.

Footnote 59. Thomas v Sams (CA5 Tex) 734 F2d 185, reh den (CA5 Tex) 741 F2d 783, cert den  472 US 1017,  87 L Ed 2d 612,  105 S Ct 3476.

Footnote 60. Tryon v Pingree, 112 Mich 338, 70 NW 905.

Footnote 61. Temple v Marlborough Div. of Dist. Court Dep't, 395 Mass 117, 479 NE2d 137 (immunity from false imprisonment claim in an action concerning judicial commitment pursuant to a statute authorizing temporary restraint of dangerous persons).

Footnote 62. Harwood v Johnson, 326 NC 231, 388 SE2d 439, reh den 326 NC 488, 392 SE2d 90.

An attorney at law is an officer of the court and occupies what may be termed a quasi-judicial office. 63   Accordingly, the rule of judicial immunity 64   is largely applicable to an attorney. 65   As a general rule, an attorney is protected from personal liability for false imprisonment if, while acting in good faith on behalf of his or her client, the attorney procures the arrest or detention of a third person, 66  principally on the ground that the attorney is acting as the client's agent, rather than for himself or herself. 67   Thus a law firm cannot be held reponsible for the actions of an arresting officer where the arrest and incarceration are directed by the judge, 68  and an attorney's actions, based on probable cause, in instituting a spouse's competency proceeding on behalf of the other spouse did not entail liability for false imprisonment on the part of the attorney. 69

An attorney who requests and urges the commitment, for contempt, of one who disobeys an order of the court favorable to the client, even though the attorney subscribes and endorses the writ of commitment, is not liable for false imprisonment. 70     The same applies where the attorney requests the commitment, for contempt, of a witness who has refused to answer a question which was pertinent and material to the issue involved. 71

An attorney's immunity is not absolute, but is, rather, qualified in that the immunity from liability to third parties extends to an attorney who pursues in good faith the client's interest in a matter fairly debatable in the law.  Immunity does not apply when the attorney acts in a malicious, fraudulent or tortious manner which frustrates the administration of justice, or attempts to obtain something for the client to which the client is not justly entitled. 72    Thus, it is generally held that an action for false imprisonment may be maintained against an attorney who has acted with malice or some other improper motive in directing an unlawful arrest or detention. 73  

Absolute immunity for statements made in a judicial proceeding does not lie as to false arrest or false imprisonment claims in an action relating to a witness' subsequent arrest. 74

In some cases, an attorney's liability has been affected by whether the court through whose power the incarceration was brought about had underlying jurisdiction. 75   

̈ Practice guide: A claim of false imprisonment against an attorney is a species of fraud and, as such, must be pleaded with particularity. 76  

Footnote 63. 7 Am Jur 2d,  Attorneys at Law § 3.

Footnote 64.  §§ 98 et seq.

Footnote 65. Miller v Metropolitan Life Ins. Co., 28 Ky LR 223, 89 SW 183; Roth v Shupp, 94 Md 55, 50 A 430; Shull v Boyd, 251 Mo 452, 158 SW 313; Waugh v Dibbens, 61 Okla 221, 160 P 589; McMullin v Erwin, 69 Vt 338, 38 A 62.

It is in the interests of the proper administration of justice that counsel be courageous and fearless in the discharge of their duties; and, in fact, fearlessness and courage are among the principal elements that lead to professional success.  As we cannot have a strong court without courageous and fearless judges, so it is impossible to have a strong bar without courageous and fearless attorneys.  Both operate together in a common cause, as parts and parcels of the judicial system, to bring about the best results. Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Footnote 66. Waugh v Dibbens, 61 Okla 221, 160 P 589; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Accordingly, in Downey v Allen, 36 Cal App 2d 269, 97 P2d 515, where the plaintiff, by a second amended complaint, set forth as causes of action fraud and deceit, false imprisonment, and assault, and alleged that one of the defendants, acting as attorney for another of the defendants, did certain things as such attorney at the instance and request of such client which the latter knew to be false and fraudulent, the court affirmed a dismissal of the complaint as to the attorney, since there was no allegation that the attorney had knowledge of such fraud or falsity.

Annotation: Liability of attorney, acting for client, for malicious prosecution,  46 ALR4th 249.

Liability of attorney acting for client, for false imprisonment or malicious prosecution of third party,  27 ALR3d 1113.

Footnote 67. Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622 (if an attorney does no more than urge on the court, properly and in good faith, the claims of the client or a view of the law favorable to the client, the attorney does not become personally liable because the decision of the court thereon may subsequently be held to have been erroneous).

Footnote 68. Harvey v Pincus (ED Pa) 549 F Supp 332, affd without op (CA3 Pa) 716 F2d 890, cert den  464 US 918,  78 L Ed 2d 262,  104 S Ct 284 (applying Pennsylvania law).

Footnote 69. Hill v Hill (Fla App D1) 388 So 2d 625, approved (Fla) 415 So 2d 20 (superseded by statute on other grounds as stated in Waite v Waite (Fla App D3) 16 FLW D 1433).

Footnote 70. See Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622 (the issue of liability for contempt being fairly debatable, an attorney, in the discharge of duties toward the client, must urge the client's position regarding punishment upon the court, and if the court imprisons the accused, the attorney is not liable).

Footnote 71. Waugh v Dibbens, 61 Okla 221, 160 P 589; Shull v Boyd, 251 Mo 452, 158 SW 313.

Footnote 72. Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Footnote 73. Roth v Shupp, 94 Md 55, 50 A 430; Monson v Rouse, 86 Mo App 97; McMorris v Howell, 89 App Div 272, 85 NYS 1018.

An attorney, who procured a bench warrant for a witness in a criminal case upon the erroneous representation that the witness had been served and had failed to appear, was not entitled to immunity from the witness' subsequent action for wrongful arrest and false imprisonment.  Simon v United States (CA5 La) 711 F2d 740.

An attorney is not immune from an action brought by an individual sentenced to jail for contempt of court for failure to answer attorneys' questions which the individual could not lawfully be required to answer; malice and absence of probable cause being alleged in the claim.  Stafford v Muster (Mo) 582 SW2d 670.

Annotation:  27 ALR3d 1113 § 7.

Footnote 74. Simon v United States (CA5 La) 711 F2d 740.

Footnote 75.  § 112.

Footnote 76. Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Assuming that a plaintiff has been illegally detained, many courts have based the liability of an attorney who acts for a client in connection with the matter, on whether the illegality of the detention was caused by the action of the attorney, and the courts in such cases have done so without deeming it necessary to consider whether the attorney was acting with malice or want of probable cause. 77  Thus, liability has been found where the illegal incarceration was actively procured by the attorney, 78  or was obtained while acting in the attorney's rather than the client's behalf, 79   or was the result of "officious" interference. 80  

Footnote 77. Casey v Casey, 142 Ark 246, 218 SW 678; Pomeranz v Class, 82 Colo 173, 257 P 1086; Clyma v Kennedy, 64 Conn 310, 29 A 539; Vernes v Phillips, 266 NY 298, 194 NE 762; Yahola v Whipple, 189 Okla 583, 118 P2d 395; Gibson v Holmes, 78 Vt 110, 62 A 11.

Annotation: Liability of attorney, acting for client, for malicious prosecution,  46 ALR4th 249 § 3.

Liability of attorney acting for client, for false imprisonment or malicious prosecution of third party,  27 ALR3d 1113.

Footnote 78. Casey v Casey, 142 Ark 246, 218 SW 678; Pomeranz v Class, 82 Colo 173, 257 P 1086; Clyma v Kennedy, 64 Conn 310, 29 A 539 (drawing up of void mittimus); Tiede v Fuhr, 264 Mo 622, 175 SW 910; Otto v Levy, 244 App Div 349, 279 NYS 462; Gibson v Holmes, 78 Vt 110, 62 A 11 (suing out of illegal writ).

Annotation:  27 ALR3d 1113 § 4[a].

Footnote 79. Yahola v Whipple, 189 Okla 583, 118 P2d 395 (attorneys seeking to collect award of attorney's fees by imprisoning debtor husband under contempt order).

Annotation:  27 ALR3d 1113 § 4[b].

Footnote 80. Vernes v Phillips, 266 NY 298, 194 NE 762.

An attorney representing a detainee in an involuntary hospitalization proceeding was not immune from a legal malpractice claim in connection with the hospitalization, where the detainee's arrest and subsequent hospitalization was found to be pretextual in its entirety and a valid basis for the detainee's false arrest action against the arresting officer and others.  Wagenmann v Adams (CA1 Mass) 829 F2d 196.

Annotation:  27 ALR3d 1113 § 4[c].

A factor of importance in determining an attorney's liability has been whether or not the court through whose power the incarceration was brought about had underlying jurisdiction.  Thus, in those states which follow the rule that an attorney is liable when the attorney's participation was the cause of the illegal detention, 81  liability has been imposed where the court did not have jurisdiction, 82  although it has been held that where the court's jurisdiction was not clear-cut, the attorney will not be held liable for having taken a position if it should later be proved that the position was erroneous and the court did not have jurisdiction. 83   Furthermore, liability has been denied where it was found that there was no malice on the part of the attorney and that the court had jurisdiction in the matter. 84 

Footnote 81.  § 111.

Footnote 82. Casey v Casey, 142 Ark 246, 218 SW 678; Pomeranz v Class, 82 Colo 173, 257 P 1086; Tiede v Fuhr, 264 Mo 622, 175 SW 910.

In action against attorney and his client for false imprisonment, attorney was not entitled to automatic immunity from liability, even though he acted as officer of the court, in good faith, and in order to enforce his client's rights, where attorney procured void arrest order from court acting without jurisdiction over plaintiff.  Havens v Hardesty, 43 Colo App 162, 600 P2d 116.

In Otto v Levy, 244 App Div 349, 279 NYS 462, the court held that where an attorney was himself the active and procuring cause of an arrest, and not a mere passive agent, and the body attachment pursuant to which the arrest was made was wholly invalid, the court being without any power to issue it under the circumstances, the attorney was liable for false arrest or for malicious prosecution.

Annotation: Liability of attorney acting for client, for false imprisonment or malicious prosecution of third party,  27 ALR3d 1113 (§§ 9-15 superseded by Liability of attorney, acting for client, for malicious prosecution,  46 ALR4th 249) § 6[a].

Footnote 83. Fischer v Langbein, 103 NY 84, 8 NE 251; Langen v Borkowski,  188 Wis 277, 206 NW 181,  43 ALR 622.

Annotation:  27 ALR3d 1113 § 6[b].

Footnote 84. Melton v Jenkins, 50 Ga App 615, 178 SE 754; Roth v Shupp, 94 Md 55, 50 A 430; Shull v Boyd, 251 Mo 452, 158 SW 313.

Annotation:  27 ALR3d 1113 § 8.

It is the accepted rule that a prosecuting attorney or similar officer is protected by the doctrine of quasi-judicial immunity if the conduct in question was performed within the scope of his or her official duties. 85                    

In actions for false arrest or false imprisonment, quite a few courts have adopted the view that the immunity protecting the prosecutor acting within the scope of his or her duties is absolute, and is not vitiated by wrongful or malicious motive in arresting or imprisoning the plaintiff. 86  Other courts, however, have indicated that only a limited immunity applies to a prosecutor's actions, and that improper personal motive for bringing an action without probable cause will destroy the immunity which would protect the prosecutor had the prosecutor merely made a mistake in judgment by bringing the action. 87         

Courts have found that the doctrine of judicial immunity protected prosecutors from liability in actions in which the plaintiff alleged that–

–the defendant had acted to initiate criminal process as part of a conspiracy to arrest or imprison the plaintiff. 88   

–the initiation of criminal proceedings had been erroneous because the provision under which plaintiff had been arrested was invalid. 89  

–the acts for which plaintiff was charged did not constitute a crime. 90  

–the process had been initiated on the basis of a witness' perjured or erroneous testimony. 91      

–the arrest warrant had been issued by a court lacking jurisdiction. 92     

Footnote 85. Zellner v Wallace (MD Ala) 233 F Supp 874 (applying Alabama law); Link v Greyhound Corp. (ED Mich) 288 F Supp 898 (applying Michigan law); Bottos v Beamer (ND Ind) 399 F Supp 999; Duba v McIntyre (CA8 Neb) 501 F2d 590, cert den  424 US 975,  47 L Ed 2d 745,  96 S Ct 1480 (applying Nebraska law); Reilly v United States Fidelity & Guaranty Co. (CA9 Cal) 15 F2d 314 (applying California law; Casey v Casey, 142 Ark 246, 218 SW 678; Schneider v Shepherd, 192 Mich 82, 158 NW 182; Bloss v Williams, 15 Mich App 228, 166 NW2d 520; Wheeler v Moe, 163 Mont 154, 515 P2d 679 (recognizing rule); Koch v Grimminger, 192 Neb 706, 223 NW2d 833,  79 ALR3d 874; Polidor v Mahady, 130 Vt 173, 287 A2d 841.

An assistant United States attorney is immune from civil suit for damages caused by acts done by him in the discharge of his official duty.  Cooper v O'Connor, 69 App DC 100, 99 F2d 135,  118 ALR 1440, cert den  305 US 643,  83 L Ed 414,  59 S Ct 146, reh den  305 US 673,  83 L Ed 436,  59 S Ct 242 and reh den  307 US 651,  83 L Ed 1530,  59 S Ct 1035; Daniels v Kieser (CA7 Ill) 586 F2d 64, cert den  441 US 931,  60 L Ed 2d 659,  99 S Ct 2050; Henderson v Fisher (CA3 Pa) 631 F2d 1115, on remand (WD Pa) 506 F Supp 579 and (criticized on other grounds by Ybarra v Reno Thunderbird Mobile Home Village (CA9 Nev) 723 F2d 675); Holland v Rubin (ED NY) 460 F Supp 1051; Stevens v Rifkin (ND Cal) 608 F Supp 710; Black v Cloose (DC Minn) 612 F Supp 470, affd (CA8 Minn) 758 F2d 317; Davis v Eddie, 130 Mich App 284, 343 NW2d 11, app den 419 Mich 943; State ex rel. Department of Justice v District Court, 172 Mont 88, 560 P2d 1328; Minicozzi v Glen Cove (2d Dep't)  97 App Div 2d 815, 468 NYS2d 689.

Annotation: Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment,  79 ALR3d 882 § 3.

Footnote 86. Reilly v United States Fidelity & Guaranty Co. (CA9 Cal) 15 F2d 314 (applying California law); Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131 (by implication); Lang v Wood, 67 App DC 287, 92 F2d 211, cert den  302 US 686,  82 L Ed 530,  58 S Ct 48; Polidor v Mahady, 130 Vt 173, 287 A2d 841.

Allegations that prosecutors made false pretrial statements, tampered with evidence and altered trial transcripts did not relate to the investigative phase of the process, and prosecutors were protected by prosecutorial immunity.  Gutierrez v Vergari (SD NY) 499 F Supp 1040, 31 FR Serv 2d 293 (criticized on other grounds in Curro v Watson (ED NY) 884 F Supp 708).

Claims of allegedly unlawful arrest, illegal search and seizure, excessive bail, untimely prosecution and illegal detention related to judicial phase of the criminal process and were barred by absolute prosecutorial immunity.  Holland v Rubin (ED NY) 460 F Supp 1051.

County prosecutor representing a child's mother as a private attorney also initiated child molesting charges against the child's father and arranged for father's arrest one day before hearing on contempt charge concerning the mother's failure to comply with a visitation order; the prosecutor was entitled to absolute immunity on father's false arrest claim.  Petry v Lawler (SD Ind) 718 F Supp 1396.

Asserting that the immunity from a civil action, including that of false imprisonment, which protects a prosecuting attorney acting within the scope of his or her duties was identical to that protecting a judge, the court expressed the view in Bottos v Beamer (ND Ind) 399 F Supp 999, apparently applying federal law, that the immunity applies regardless of intentions and motivations–no matter how evil, sinister, or diabolical they may be.

County prosecutor was absolutely immune from claim of false imprisonment concerning involuntary commitment to detoxification center, regardless of the prosecutor's failure to make an adequate investigation before preparing petition, and despite fabricated accusations included in the petition; the only accusations which would destroy absolute immunity were destruction of exculpatory evidence or commission of perjury.  Dick v Watonwan County (DC Minn) 551 F Supp 983, later proceeding (DC Minn) 562 F Supp 1083, 13 Fed Rules Evid Serv 1068, revd on other grounds (CA8 Minn) 738 F2d 939.

Alleged prosecutorial misconduct occurring after the preliminary hearing was related unquestionably to trial preparation and was subject to absolute prosecutorial immunity.  Reed v City & County of Honolulu, 76 Hawaii 219, 873 P2d 98.

A county attorney who was requested by an officer to accompany the officer in locating a suspect, and who carried a concealed weapon in doing so, was acting in the scope of employment by keeping the peace and arresting the suspect, and was immune from the suspect's false arrest claim.  Mendoza v Reno County, 235 Kan 692, 681 P2d 676.

Annotation: Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment,  79 ALR3d 882 § 4[a].

Footnote 87. Koch v Grimminger, 192 Neb 706, 223 NW2d 833,  79 ALR3d 874; Cashen v Spann, 66 NJ 541, 334 A2d 8, cert den  423 US 829,  46 L Ed 2d 46,  96 S Ct 48 and on remand 143 NJ Super 560, 364 A2d 21, affd 150 NJ Super 500, 376 A2d 186, revd on other grounds 77 NJ 138, 389 A2d 969; Price v Cook, 120 Okla 105, 250 P 519.

Although prosecutors have absolute immunity for approving or ratifying a warrantless arrest, prosecutors enjoy only qualified immunity when engaged in investigative activities and detainee's claim against prosecutor for illegal arrest, detention and use of force was proper, where the prosecutor had participated in the detainee's 12-hour marathon interrogation.  Thomas v Riddle (ND Ill) 673 F Supp 262.

Due to a clerical error, a witness detained to testify in a criminal action was detained for five months after trial was completed; district attorney was immune from false imprisonment claim, since there were no allegations of malice and the evidence indicated mere negligence.  Navarre v Foti (La App 4th Cir) 562 So 2d 1113.

In Carpenter v Rochester,  67 Misc 2d 832, 324 NYS2d 591, affd (4th Dep't)  39 App Div 2d 1019, 335 NYS2d 255, the court, in discussing the liability of a district attorney for false arrest and false imprisonment, stated that a prosecutor is immune from liability for civil suit unless it is alleged that he, after acquiring knowledge that he should not have brought the suit against the plaintiff, had expressly conducted himself in a manner calculated to injure the plaintiff.  To hold otherwise, stated the court, would constitute an unreasonable interference with the disposition of criminal proceedings and the court related social services provided therewith.

See, however, Zimmerman v New York,  52 Misc 2d 797, 276 NYS2d 711, where, although the court was only concerned with the liability of a municipality for the alleged false imprisonment of the plaintiff by a district attorney and his assistants, the court stated that as quasi-judicial officers, prosecutors as well as all persons acting under their direction and control are immune from civil suit for official acts performed by them in the investigation and prosecution of the crime with which the plaintiff was charged, even if it be assumed that they acted maliciously to the injury and damage of the plaintiff.

Annotation: Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment,  79 ALR3d 882 § 4[b].

Footnote 88. Price v Cook, 120 Okla 105, 250 P 519 (county attorney and assistant county attorney).

Annotation:  79 ALR3d 882 § 5[a].

Footnote 89. Bohri v Barnett (CA7 Wis) 144 F 389.

Annotation:  79 ALR3d 882 § 6.

Footnote 90. Casey v Casey, 142 Ark 246, 218 SW 678.

Annotation:  79 ALR3d 882 § 7.

Footnote 91. Downey v Allen, 36 Cal App 2d 269, 97 P2d 515; Koch v Grimminger, 192 Neb 706, 223 NW2d 833,  79 ALR3d 874; Cashen v Spann, 66 NJ 541, 334 A2d 8, cert den  423 US 829,  46 L Ed 2d 46,  96 S Ct 48 and on remand 143 NJ Super 560, 364 A2d 21, affd 150 NJ Super 500, 376 A2d 186, revd on other grounds 77 NJ 138, 389 A2d 969.

Annotation:  79 ALR3d 882 § 8.

Footnote 92. Fletcher v McMahon, 73 App DC 263, 121 F2d 729, cert den  314 US 662,  86 L Ed 531,  62 S Ct 131.

Annotation:  79 ALR3d 882 § 10.

c.  Physicians [114, 115]

Examining physicians who testify or otherwise give evidence in proceedings to determine sanity have been held immune from liability for false imprisonment in a number of cases on several different theories. 93    In a few cases such immunity has been granted on the ground that court-appointed physicians are in effect judicial or quasi judicial officers and as such entitled to the protection of judicial immunity. 94  Other cases have ruled that physicians giving testimony or other forms of evidence in connection with insanity proceedings are protected from liability in a later suit for false imprisonment by the doctrine of privilege or immunity for relevant testimony in judicial proceedings. 95  The mantle of sovereign immunity has sometimes been extended to examining physicians employed by an agency of the state, so as to protect them from liability for false imprisonment based on the institution of insanity proceedings resulting in a commitment for mental examination. 96      

Footnote 93. Niven v Boland, 177 Mass 11, 58 NE 282; Linder v Foster, 209 Minn 43, 295 NW 299; Springer v Steiner, 91 Or 100, 178 P 592; Dyer v Dyer, 178 Tenn 234, 156 SW2d 445.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523 § 5[a].

Footnote 94. Bartlett v Weimer (CA7 Ind) 268 F2d 860, cert den  361 US 938,  4 L Ed 2d 358,  80 S Ct 380; Baer v Smith, 68 Cal App 2d 716, 157 P2d 646; Sukeforth v Thegen (Me) 256 A2d 162 (recognizing rule); Linder v Foster, 209 Minn 43, 295 NW 299.

See also Beckham v Cline, 151 Fla 481, 10 So 2d 419,  145 ALR 705, where the court apparently recognized that physicians appointed to examine an allegedly insane person would be entitled to rely on the defense of immunity as quasi-judicial officers in a subsequent action for false imprisonment based on an erroneous commitment, but ruled that this defense was not available to protect physicians who reported to the judge in a lunacy proceeding that the woman whom they had been appointed to examine was insane, when in fact they had not even examined her, since without making an examination the physicians had no authority to make any report to the court concerning the mental condition of the woman.

And see Bromund v Holt,  24 Wis 2d 336, 129 NW2d 149, where the court cited a number of cases, including some for false imprisonment, as authority for the view that physicians appointed to examine a person in connection with proceedings to determine sanity are immune from civil liability, either on the ground that they are quasi-judicial officers and as such immune from liability for actions within their jurisdiction, or that they are expert witnesses and are immune on the theory of absolute privilege for relevant testimony.

As to the immunity of quasi-judicial officers, generally, see  §§ 109 et seq.

Footnote 95. Hurley v Towne, 155 Me 433, 156 A2d 377; Mezullo v Maletz, 331 Mass 233, 118 NE2d 356; Bromund v Holt,  24 Wis 2d 336, 129 NW2d 149.

Footnote 96. Fish v Regents of University of Cal. (1st Dist) 246 Cal App 2d 327, 54 Cal Rptr 656; Morris v Nowotny (Tex Civ App Austin) 323 SW2d 301, writ ref n r e (Jun 10, 1959) and rehg of writ of error overr (Jul 8, 1959) and cert den  361 US 889,  4 L Ed 2d 124,  80 S Ct 164, reh den  361 US 921,  4 L Ed 2d 189,  80 S Ct 264.

Facts presented by plaintiff did not support a cause of action against two physicians for false imprisonment where emergency admissions to mental hospitals were the result of legal processes. Olsen v Karwoski (1st Dist) 68 Ill App 3d 1031, 25 Ill Dec 173, 386 NE2d 444.

In some cases involving the liability of physicians who have examined allegedly insane persons and given evidence as to their sanity, the courts, while not expressly rejecting the privilege or immunity defense, have treated the issue of liability for false imprisonment as one to be generally resolved on the merits. Recovery has ordinarily been allowed in such cases where the physician, although certifying that he examined the plaintiff and found him to be insane, in fact made the certification without conducting any examination. 97  However, where the physician has made an examination, and the plaintiff's contention is that it was a faulty or inadequate examination, or that the physician reached the wrong conclusion as to the plaintiff's sanity, recovery has generally been denied. 98     

Although a physician's failure to file a required report with the court in connection with an emergency detention procedure does not of itself make the detention unlawful or create a basis of liability for the physician, the detainee may also allege violations of medical practice in connection with the physician's handling of the matter, raising a jury issue by presenting an expert witness with a contrary medical view. 99   A physician acting as a court psychiatrist may not be immune under state law as to alleged procedural violations in a civil commitment procedure. 1

Footnote 97. Beckham v Cline, 151 Fla 481, 10 So 2d 419,  145 ALR 705; Crouch v Cameron (Ky) 414 SW2d 408,  30 ALR3d 520; O'Rourke v O'Rourke, 227 La 262, 79 So 2d 87.

Assuming that members of incompetency committee had no immunity, allegations contained in complaint filed in action for deprivation of civil rights that plaintiff had not been examined by committee as required by law, stated cause of action for false imprisonment. White v Padgett (CA5 Fla) 475 F2d 79, cert den  414 US 861,  38 L Ed 2d 112,  94 S Ct 78 (applying Florida law).

See, however, Christopher v Henry, 284 Ky 127, 143 SW2d 1069, where two certifying physicians were held not liable for illegally causing the incarceration of an alleged insane person, even though one of the physicians made no examination at all and the other was unable to make a personal examination because of the refusal of the alleged insane person to submit to one.

Coroner who issued certificate attesting plaintiff's need for commitment to mental institution without observing and examining plaintiff could not rely on immunity based on state constitution or statute where petition alleged illegal commitment.  Delatte v Genovese (La App 1st Cir) 228 So 2d 252.

Although recognizing that examining and certifying physician acting as witness in commitment proceedings enjoys absolute immunity from civil liability, or that physician acting in quasi-judicial capacity, as in present case, where he alone determines whether individual is mentally ill and should be subjected to immediate emergency restraint, also enjoys immunity from civil liability arising out of acts which are proper exercise of his discretionary and judicial functions; physician acting in quasi-judicial capacity could not receive protection of immunity where he did not perform examination needed to acquire jurisdiction over person to be restrained, and thereafter falsely certified that examination had been made and determined that plaintiff was mentally ill and needed to be restrained.  Sukeforth v Thegen (Me) 256 A2d 162.

Punitive damages were improperly awarded against physician who failed to examine plaintiff within 10 days before signing certificate of insanity where plaintiff, who was denied compensatory damages as matter of law on ground that she required psychiatric help so that no actual damage resulted from her commitment, had been constantly attended by defendant physician until 5 months before he signed certificate; physician had received numerous reports concerning plaintiff's conduct during the last 5 months from the plaintiff's family, and had signed certificate at request of plaintiff's daughter and on condition that psychiatrist confirm his diagnosis; record showed that had physician examined plaintiff within 10 days of signing certificate his conclusions would have been no different; and it was not contended that physician acted vindictively but contrarily it was undisputed that he was motivated by interest in plaintiff's welfare and health. Di Giovanni v Pessel, 55 NJ 188, 260 A2d 510.

Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings,  30 ALR3d 523 § 8.

Footnote 98. Christiansen v Weston, 36 Ariz 200, 284 P 149; Bailey v McGill, 247 NC 286, 100 SE2d 860.

For other cases rejecting liability for false imprisonment against examining physicians who allegedly conducted an inadequate or erroneous medical examination, decided on the ground that a false imprisonment suit cannot be based on a commitment authorized by apparently valid process, issued by a court having jurisdiction, see Fisher v Payne, 93 Fla 1085, 113 So 378; Mezullo v Maletz, 331 Mass 233, 118 NE2d 356; Guzy v Guzy,  16 Misc 2d 975, 184 NYS2d 161, affd (2d Dep't)  11 App Div 2d 1047, 206 NYS2d 355; Pate v Stevens (Tex Civ App) 257 SW2d 763, writ dism w o j.

See also Christopher v Henry, 284 Ky 127, 143 SW2d 1069. Although the court said that the principles to be applied in this case were those of an action to recover damages for malicious prosecution, the plaintiff–according to the court's description of his petition–did not use the word "malicious" or any form of it in charging that the physicians "illegally caused his apprehension and incarceration" in an insane asylum, and the court itself indicated that the action was to recover damages "for the brief imprisonment of plaintiff."  Thus, it appears more likely that the court was viewing the action as one for false imprisonment rather than one for malicious prosecution.

Plaintiff's claim for alleged wrongful detention in state mental hospital was properly dismissed where statements made to examining physicians, plus her prior history, were sufficient to support determination that she was mentally ill; alleged failure of state's physicians to make exhaustive investigation of plaintiff's statements made during examination was at most error in medical judgment for which state was not liable.  Young v State (3d Dep't)  40 App Div 2d 730, 336 NYS2d 470.

Annotation:  30 ALR3d 523 § 9.

Footnote 99. Reiser v Prunty, 224 Mont 1, 727 P2d 538.

Footnote 1. Temple v Marlborough Div. of Dist. Court Dep't, 395 Mass 117, 479 NE2d 137.

E.  Practice And Procedure [116-139]

Research References
ALR Digest:  False Imprisonment
ALR Index:  False Imprisonment and Arrest
10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  1,  1.1,  1.3,  21-33,  43-46,  51-54.1,  56-58,  71-73,  91-97,  104-107,  111-113,  119,  131,  132
 26 Am Jur POF2d 617, False imprisonment–Failure to take arrestee before magistrate without unreasonable or unnecessary delay
 4 Am Jur Trials 441, Solving Statutes of Limitations Problems

1.  In General [116-118]

Under statutes barring actions for false imprisonment begun more than a specified time after the accrual of the cause of action, it is generally held that the limitation begins to run from the termination of the imprisonment or confinement and not from the time of termination of the proceedings under which the plaintiff's arrest occurred. 2               

Each day of a false imprisonment is a continuing trespass against the plaintiff, 3  and a statute of limitation period will be analyzed separately for each cause of action. 4

While the period of limitation for actions for false arrest, false imprisonment and wrongful detention are generally the same, 5  issues may arise, where statutory periods do not specifically refer to false imprisonment as a cause of action, as to the applicability of limitation periods related to actions against public officers, as opposed to more general limitation statutes concerning other civil actions. 6

Where the statute is viewed as running from the time of termination of the imprisonment or confinement, the mere fact that, until the police testified in the criminal trial, the defendant was unaware that the arrest had been illegal, has been held not to delay commencement of the period of limitations. 7   It has also been held that duress allegedly preventing a plaintiff from commencing the action within the prescribed time, even if proved, will not toll the running of the statute. 8   For the purpose of a statutory provision requiring that claims against the state be filed within 90 days after accrual of such claims, it has been held that a claim for false arrest accrues at the time of arraignment and release on bail, rather than at the time of acquittal. 9    In this connection, a distinction has been made between a cause of action for false imprisonment and a cause of action for false arrest, it being held that the former accrues upon release from detention while the latter accrues at the time of arraignment. 10  

In some jurisdictions, however, the rule appears to be that the statute of limitations runs from the date of arrest or the order of commitment, rather than from the date of release from confinement. 11  In such a jurisdiction, where the pleadings indicate that a cause of action is for false arrest only, and not also for malicious prosecution, the statute will begin to run on the date of the arrest rather than on the date of termination of the proceedings, 12  and the statute is not tolled because plaintiff was imprisoned. 13

Where an action for false imprisonment is brought under the Federal Civil Rights Act provision creating a private right of action for acts done under color of state law, 14   there being no federal statute of limitations applicable to such actions, it is uniformly held that the state statute of limitations should be applied. 15   

Designation of a party to the complaint as "John Doe," and subsequent naming of the individual so designated as a party to the action, may not be permitted to relate back in date, so as to preserve a cause of action from the bar of a statute of limitation. 16

Footnote 2. Warren v Byrne (CA2 NY) 699 F2d 95; Lathon v Parish of Jefferson (ED La) 358 F Supp 558 (applying Louisiana law); Alexander v Thompson (CA6 Mich) 195 F 31; Kirwan v State, 31 Conn Supp 46, 320 A2d 837, affd 168 Conn 498, 363 A2d 56; Matovina v Hult, 125 Ind App 236, 123 NE2d 893; De Bouchel v Koss Const. Co., 177 La 841, 149 So 496; Hackler v Miller, 79 Neb 206, 112 NW 303, adhered to 79 Neb 209, 114 NW 274; O'Fallon v Pollard (ND) 427 NW2d 809; Belflower v Blackshere (Okla) 281 P2d 423,  49 ALR2d 917; Nave v Seattle, 68 Wash 2d 721, 415 P2d 93, app dismd  385 US 450,  17 L Ed 2d 513,  87 S Ct 614, reh den  386 US 929,  17 L Ed 2d 803,  87 S Ct 853; Oosterwyk v Bucholtz,  250 Wis 521, 27 NW2d 361.

Arrestee's complaint alleging civil rights violations and false arrest was time-barred; state law claims accrued on the date of arrest, while civil rights claim accrued on the date of release from confinement.  Young v Philadelphia (ED Pa) 744 F Supp 673, affd without op (CA3 Pa) 931 F2d 53.

In suit for false imprisonment, arising out of plaintiff's involuntary civil commitment to mental hospital, confinement was continuing tort and limitation period commenced running only upon patient's release.  Donaldson v O'Connor (CA5 Fla) 493 F2d 507, vacated on other grounds  422 US 563,  45 L Ed 2d 396,  95 S Ct 2486, on remand on other grounds (CA5 Fla) 519 F2d 59.

Party's cause of action for false arrest accrued for purposes of statutory period of limitations when plaintiff regained his liberty by release upon recognizance.  Jedzierowski v Jordan, 157 Me 352, 172 A2d 636.

False arrest technically accrues at the initial moment of restraint but becomes complete at the end of the restraint, and the latter date is the date of accrual for statute of limitation purposes.  Karen v State,  111 Misc 2d 396, 444 NYS2d 381, 1982-1 CCH Trade Cases ¶ 64593.

False imprisonment is a continuing tort for which a cause of action accrues when the detention ceases.  Adler v Beverly Hills Hospital (Tex Civ App Dallas) 594 SW2d 153.

Annotation: When statute of limitations begins to run against action for false imprisonment or false arrest,  49 ALR2d 922.

Practice References Solving Statutes of Limitations Problems.   4 Am Jur Trials 441 § 12.

Footnote 3. Bennett v Ohio Dep't of Rehabilitation & Correction, 60 Ohio St 3d 107, 573 NE2d 633.

Footnote 4. King v Otasco, Inc. (CA5 Miss) 861 F2d 438, 12 FR Serv 3d 824.

Footnote 5. Cowdrey v Eastborough (CA10 Kan) 730 F2d 1376; Jenkins v Daniels (Alaska) 751 P2d 19; Mound Bayou v Johnson (Miss) 562 So 2d 1212, reh den (Miss) 1990 Miss LEXIS 375.

Footnote 6. Jenkins v Daniels (Alaska) 751 P2d 19; Fowler v Valencourt, 334 NC 345, dissenting op at (NC) 435 SE2d 530.

Footnote 7. Collins v County of Los Angeles (2nd Dist) 241 Cal App 2d 451, 50 Cal Rptr 586.

Footnote 8. Jastrzebski v New York (SD NY) 423 F Supp 669 (applying New York law).

Footnote 9. Huff v State (3d Dept)  27 App Div 2d 892, 278 NYS2d 12.

Footnote 10. Jastrzebski v New York (SD NY) 423 F Supp 669 (applying New York law).

Generally as to distinction between false imprisonment and false arrest, see  § 2.

Footnote 11. Henig v Odorioso (ED Pa) 256 F Supp 276, affd (CA3 Pa) 385 F2d 491, cert den  390 US 1016,  20 L Ed 2d 166,  88 S Ct 1269, reh den  391 US 929,  20 L Ed 2d 671,  88 S Ct 1814 (apparently assuming that statute of limitations on action for false imprisonment began running on date of arrest or order of confinement, rather than on date of release from confinement); Whitsell v Rodrigues (ED La) 351 F Supp 1042 (applying Louisiana law); Gilpin v Tack (WD Ark) 256 F Supp 562 (expressing dictum to effect that statute of limitations on false arrest claim began running on date of arrest); Brewster v Woodward & Lothrop, Inc., 174 US App DC 164, 530 F2d 1016; Buvens v Buvens (La App 3d Cir) 286 So 2d 144.

Cause of action for false arrest and false imprisonment accrued for limitations purposes on the date of arrest.  Hitchmon v United States (SD Fla) 585 F Supp 256.

See also Evans v Chipps, 56 NC App 232, 287 SE2d 426 (criticized on other grounds by Clark v Velsicol Chem. Corp., 110 NC App 803, 431 SE2d 227) and (disapproved on other grounds by Fowler v Valencourt, 334 NC 345) (plaintiff's actions to recover damages for alleged violations of civil rights, false imprisonment and other claims were barred by the statute of limitations; all of the claims arose by the date on which the plaintiff was sentenced to prison and on which the plaintiff would necessarily have known of the injuries forming the bases of the actions).

Footnote 12. Meyers v Edwards (La App 1st Cir) 256 So 2d 337.

Footnote 13. Hileman v Knable (MD Pa) 266 F Supp 317 (applying Pennsylvania law).

Footnote 14. 42 USCS §  1983.  For discussion, see 15 Am Jur 2d (Rev), Civil Rights §§ 16-21, 269.

Footnote 15. Hileman v Knable (MD Pa) 266 F Supp 317 (applying Pennsylvania law); King v Otasco, Inc. (CA5 Miss) 861 F2d 438, 12 FR Serv 3d 824; Ketchum v West Memphis (CA8 Ark) 974 F2d 81; Rodgers v Corporation of Harpers Ferry, 179 W Va 637, 371 SE2d 358.

Action under Federal Civil Rights Act for false imprisonment and false arrest was barred by state statute of limitations of 1 year where events took place over 2 years prior to filing complaint and where statute began to run upon occurrence of events and was not tolled during period of confinement.  Getz v Bruch (ED Pa) 400 F Supp 1033 (applying Pennsylvania law).

In action under Federal Civil Rights Act (42 USCS §§  1983,  1988) apparently stating cause of action analogous to action under state law for false arrest and false imprisonment, state statute of limitations of 1 year applied, and began to run from date of plaintiff's arrest, plaintiff's intervening imprisonment not operating to toll statute in regard to false arrest claim; but in regard to false imprisonment claim, although statute of limitations also was not tolled, since plaintiff had been in prison continuously since his arrest, he had cause of action for those damages incurred during year immediately preceding commencement of his action.  Whitsell v Rodrigues (ED La) 351 F Supp 1042 (applying Louisiana law).

Footnote 16. Leaon v Washington County (Minn) 397 NW2d 867.

Venue of false imprisonment actions is usually controlled by statute.  Thus, for example, depending on the pertinent statutory provisions, the county in which the cause of action arose, 17  or the county of the defendant's residence, 18   may be the proper place in which to bring the action.

While a court may, within its discretion, decline jurisdiction of an action for false imprisonment on the grounds of forum non conveniens, such discretion is not unlimited. 19

In many jurisdictions, statutes have been enacted providing that an action against a public officer for an act done by virtue or under color of office must be tried in the county where the cause or some part thereof arose. 20  Under such a statute, it has been held that the action might be brought in the county in which the seizure of the plaintiff took place, even though the plaintiff was subsequently taken to and detained in another county. 21  Or, it has also been held, it might be brought in the county to which the plaintiff was subsequently taken, or in which the plaintiff was subsequently detained, 22  or in the county in which the affidavit was made forming the grounds for the arrest. 23

Where the plaintiff is arrested in one county but transported through another county to a place of incarceration in the county of arrest, there is a division of authority whether venue can properly be laid in the county through which the arrested person was transported, some authority holding venue properly laid in that county, 24  and others holding that venue is in the county in which the plaintiff was arrested. 25  

It has been held that actions for false imprisonment do not come within a statute providing that a cause of action for injury to person or property shall be tried "in the county where the injury occurs", the statute being construed as limited to the infliction of physical or bodily injury and as not including mere injury to reputation, business, or personal feelings. 26   There is, however, authority to the contrary. 27

Footnote 17. Summers v Southern R. Co., 118 Ga 174, 45 SE 27; Lawton v Farrell, 178 App Div 376, 164 NYS 838, affd 221 NY 654, 117 NE 1075.

Footnote 18. Miles v Wright, 22 Ariz 73, 194 P 88,  12 ALR 970; Monk v Ehret, 192 Cal 186, 219 P 452; Haffner v United States Fidelity & Guar. Co., 35 Idaho 517, 207 P 716, later proceeding 49 Idaho 451, 288 P 1071 and (ovrld in part on other grounds by Helgeson v Powell, 54 Idaho 667, 34 P2d 957).

Footnote 19. Washington v May Dep't Stores (Dist Col App) 388 A2d 484 (where the plaintiff was a resident of the jurisdiction in which the suit was brought, the defendant had a significant presence there, and most of the witnesses resided there, the court's determination to dismiss the action on the grounds of forum non conveniens was improper, it being clear that a balancing of the private interests involved favored conducting the suit in such jurisdiction).

Footnote 20. 63 Am Jur 2d,  Public Officers and Employees §§ 612,  613.

As to venue of action against sheriff for false imprisonment, see 70 Am Jur 2d,  Sheriffs, Police, and Constables § 223.

Footnote 21. Enos v American Sur. Co., 95 Mont 588, 28 P2d 197; Ellis v Baker, 62 App Div 542, 71 NYS 88; Jordan v Koerth,  212 Wis 109, 248 NW 918.

Annotation: Venue of actions or proceedings against public officers,  48 ALR2d 423 § 11[c].

Footnote 22. Shugart v Cruise (CA4 Va) 260 F 36; King v Milner, 63 Colo 405, 167 P 957.

If the arrest occurred in one county, and the imprisonment in another, the action can properly be tried in either county. Haffner v United States Fidelity & Guar. Co., 35 Idaho 517, 207 P 716, later proceeding 49 Idaho 451, 288 P 1071 and (ovrld in part on other grounds by Helgeson v Powell, 54 Idaho 667, 34 P2d 957); Meihak v Schreckenghaust, 67 SD 603, 297 NW 122.

Footnote 23. Leach v Stone (Tex Civ App) 264 SW 620.

Footnote 24. Hooper v Deisher (Tex Civ App) 113 SW2d 966.

Footnote 25. Bergin v Temple, 111 Mont 539, 111 P2d 286,  133 ALR 1115, in which it was held that in false imprisonment the cause of action arises at the moment of the arrest by which plaintiff's personal liberty is unlawfully violated, and no further cause of action arises even though during the imprisonment plaintiff is carried from the county of his arrest into another county.

Footnote 26. Plum v Forgay Lumber Co., 118 Cal App 76, 4 P2d 804.

Footnote 27. Rains v Smith, 155 Ky 766, 160 SW 493.

Under the rules of pleading in many jurisdictions, actions for false imprisonment and malicious prosecution may properly be joined in separate counts. 28   However, the two causes have been held to be inconsistent; consequently, the plaintiff may be required to elect upon which count to go to the jury. 29  

A claim of false arrest frequently ripens into false imprisonment and the two claims are often brought together. 30

Frequently, the same facts which give rise to a false imprisonment also establish a cause of action for abuse of process, in which case the causes may be joined in the same action, but not in the same count, 31    since actions for false arrest or imprisonment and abuse of process are separate claims. 32

Footnote 28. Stubbs v Abercrombie, 42 Cal App 170, 183 P 458; Page v Citizens' Banking Co., 111 Ga 73, 36 SE 418; Haskins v Ralston, 69 Mich 63, 37 NW 45; Burton v Drennan, 332 Mo 512, 58 SW2d 740; Thomas v F. & R. Lazarus & Co. (App, Franklin Co) 3 Ohio Ops 2d 75, 40 Ohio L Abs 51, 57 NE2d 116.

Footnote 29. Rosendale v Market Square Dry Goods Co. (Mo App) 213 SW 169.

Where the plaintiff states a cause of action for false arrest, the fact that he pleads additional facts which may constitute a cause of action for malicious prosecution will not support a demurrer for misjoinder, at least where the plaintiff has clearly, in his pleading, elected the remedy of false arrest rather than the remedy of malicious prosecution.  State ex rel. Cain v Corbett, 235 NC 33, 69 SE2d 20.

As to distinctions between malicious prosecution and false imprisonment, see  § 5.

Footnote 30. Mound Bayou v Johnson (Miss) 562 So 2d 1212, reh den (Miss) 1990 Miss LEXIS 375.

Footnote 31. See 1 Am Jur 2d,  Abuse of Process § 20.

As to distinctions between abuse of process and false imprisonment, see  § 4.

Footnote 32. Santiago v Fenton (CA1 Mass) 891 F2d 373.

2.  Parties [119, 120]

Generally, actions for false imprisonment or arrest are personal, and do not give rise to a cause of action in anyone other than the person aggrieved. 33   However, it has been held that when a party plaintiff dies pendente lite, that party's representative is properly substituted. 34  

Two plaintiffs may join in an action where the relief sought arises out of the same transaction, and where a question of law or fact will arise that is common to all parties; thus, if two persons are arrested at the same time, at the same place, and with the same persons present, the arrest constitutes one "transaction," and its wrongfulness would be a question of fact common to both parties, within the meaning of the rule. 35  The fact that damages in a false arrest or imprisonment action may require individualized determination would not preclude certification of a plaintiff class of aggrieved individuals, but the necessity of individualized liability determination suggests that a class action would not be the best way to resolve such claims. 36

Footnote 33. Coverstone v Davies, 38 Cal 2d 315, 239 P2d 876, cert den  344 US 840,  97 L Ed 653,  73 S Ct 50.

Footnote 34. Gomez v Scanlan, 2 Cal App 579, 84 P 50, affd 155 Cal 528, 102 P 12.

As to survival of causes of action for false imprisonment, generally, see 1 Am Jur 2d,  Abatement, Survival, and Revival § 91.

Footnote 35. Peters v Bigelow, 137 Cal App 135, 30 P2d 450.

Footnote 36. McCarthy v Kleindienst, 239 US App DC 247, 741 F2d 1406, 39 FR Serv 2d 1165.

Distinctions have been drawn between false arrest and false imprisonment with respect to potential party defendants. 37

Where several persons unite in the commission of a false imprisonment, each is equally liable, jointly and severally, regardless of whether a conspiracy to do the act had theretofore been entered into. 38    Hence, the injured person may sue all of them, any one, or as many as he or she chooses. 39  

The necessity for individual liability determinations on a false imprisonment claim suggests that a class action may not be the best method of resolving such claims. 40

Footnote 37. Bender v Seattle, 99 Wash 2d 582, 664 P2d 492, 9 Media L R 2101 (holding that false arrest may be committed only by one who has legal authority to arrest or who had pretended legal authority to arrest, while false imprisonment may exist apart from any purported process of law enforcement, through the actions of private individuals acting on their own initiative).

Footnote 38.  § 37.

Footnote 39. American R. Express Co. v Stone (CA1 Mass) 27 F2d 8,  66 ALR 202; Grimes v Greenblatt, 47 Colo 495, 107 P 1111; Page v Citizens' Banking Co., 111 Ga 73, 36 SE 418; Blackman v Simpson, 120 Mich 377, 79 NW 573; Anderson v Averbeck, 189 Minn 224, 248 NW 719; Burton v Drennan, 332 Mo 512, 58 SW2d 740; Burk v Howley, 179 Pa 539, 36 A 327.

Footnote 40. McCarthy v Kleindienst, 239 US App DC 247, 741 F2d 1406, 39 FR Serv 2d 1165.

3.  Pleadings [121-125]

Generally, in order to set forth a cause of action for false imprisonment, the plaintiff must allege that the imprisonment was wrongful or unlawful, or allege facts or circumstances showing the unlawfulness thereof. 41   There must be an allegation that there is no color of legal authority lending legal justification for the restraint of the plaintiff. 42   Allegations of procedural irregularities with respect to the underlying arrest or imprisonment cannot substitute for allegations as to the absence of legal justification. 43   A general allegation in a false imprisonment pleading that the police arrested the plaintiff without probable cause is not sufficient to preserve a question of material fact not asserted by the plaintiff in the trial court. 44

Where the arrest or confinement was under a warrant or other process, the facts constituting the invalidity of the process must be set forth in the complaint. 45   However, if an allegedly false arrest was made without a warrant, it is sufficient to plead the arrest and a subsequent confinement, as the illegality of the arrest is presumed. 46     

A claim of false imprisonment against an attorney raises the issue of fraud and must therefore be pled with particularity. 47  

As a general rule, the plaintiff is not required to plead that the proceeding upon which the arrest or detention was based has terminated in his or her favor. 48   

Footnote 41. Burlington Transp. Co. v Josephson (CA8 SD) 153 F2d 372; Whaley v Jansen (4th Dist) 208 Cal App 2d 222, 25 Cal Rptr 184; Webb v Prince, 62 Ga App 749, 9 SE2d 675; Smith v Clark, 37 Utah 116, 106 P 653.

Allegations that the defendant appeared before the chief of police and willfully, maliciously, and without cause, falsely charged the plaintiff with adultery, and that the police chief executed a warrant for the plaintiff's arrest, were sufficient to support an action for false imprisonment.  Wilson v Eberle (DC Alaska) 15 Alaska 260.

A declaration was sufficient to plead an action for false imprisonment where it pleaded the following: that the defendant, a merchant, had sued out a warrant for the arrest of a person by a particular name; that the warrant had been placed in the hands of the sheriff; that the defendant had notified the sheriff that the person sought in the warrant was in his store; that the sheriff came to the store and arrested the plaintiff; that the defendant was acquainted with the plaintiff, or should have been, as he had bought merchandise from the defendant for a number of years; that plaintiff had committed no crime and was not the person of the same name against whom the defendant had sought the warrant; and that defendant maliciously and wrongfully had had plaintiff arrested and put in jail.  Johnson v Weiner, 155 Fla 169, 19 So 2d 699.

A pleading that defendant had suddenly grabbed plaintiff and laid hold of her hands, arms, and body and imputed to her that she had stolen certain articles from a store, and thereupon unlawfully, and against her will, took her into custody and detained her, deprived her of her right to freedom and locomotion, and publicly searched her and her shopping bag, states a cause of action for false imprisonment.  Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759.

Cause of action for false imprisonment was stated in petition alleging that defendant unlawfully, maliciously, and with intent to injure, falsely imprisoned plaintiffs for 24 hours by force, without reasonable cause, right, or authority, and against will of plaintiffs.  Pogue v Smallen (Mo) 285 SW2d 915.

Where the complaint alleges the facts and circumstances leading to an arrest in considerable detail, showing that an arrest without a warrant or any other process was unjustified, together with the direct allegation that the arrest was made "without warrant," the complaint sufficiently charges the arrest to have been made without legal justification, and is sufficient against the objection of the absence of a further specific allegation that the arrest was "without other process."  Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428.

Forms: Complaint, petition, or declaration–false imprisonment imposed by private individual–Attempted extortion by means of threats of violence.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  1.

Complaint, petition or declaration in actions based on false imprisonment imposed by private individual–Sexual assault. 10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  1.1.

Complaint, petition or declaration in actions for false imprisonment on refusal of defendant to allow former domestic partner to leave defendant's residence upon return to pick up clothing and personal belongings.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  1.3.

Complaint, petition or declaration in actions based on imprisonment of store employee on accusation of misuse of employee discount privilege.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  54.1.

Complaint, petition, or declaration in actions based on illegal detention after arrest.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  111 et seq.

Complaint, petition, or declaration in actions based on arrest or imprisonment by judicial or quasi-judicial officer.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  131,  132.

Footnote 42. Mann v Cannon (CA1 RI) 731 F2d 54.

Pleading brought by former prisoner against county, alleging false arrest, false imprisonment and civil rights violations, was sufficient to make the requisite statement of a claim for relief; the action was brought subsequent to the former prisoner's release after federal habeas corpus proceeding, following ten years' imprisonment on a life sentence.  Cunha v Algona (Iowa) 334 NW2d 591.

Footnote 43. Garton v Reno, 102 Nev 313, 720 P2d 1227.

Footnote 44. Vessels v District of Columbia (Dist Col App) 531 A2d 1016.

Footnote 45. Kaufman v Brown, 93 Cal App 2d 508, 209 P2d 156 (disapproved on other grounds by Dragna v White, 45 Cal 2d 469, 289 P2d 428).

A complaint is insufficient to state a cause of action for false arrest where it is not alleged that the warrant under which the plaintiff was arrested was void, and there are no allegations in the complaint from which such fact might be determined. Stauffacher v Brother, 67 SD 314, 292 NW 432,  128 ALR 925.

Forms: Complaint, petition, or declaration in actions based on arrest or imprisonment by peace officer pursuant to legal process.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  71-73.

Footnote 46. Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Stine v Shuttle, 134 Ind App 67, 186 NE2d 168 (ovrld on other grounds as stated in Seymour Nat'l Bank v State (Ind App) 384 NE2d 1177).

It has long been the law that a cause of action for false imprisonment is stated where it is alleged that there was an arrest without process, followed by imprisonment and damages.  Cervantez v J. C. Penney Co., 24 Cal 3d 579, 156 Cal Rptr 198, 595 P2d 975.

Allegations that defendants did not have a warrant authorizing arrest of the plaintiff, and that plaintiff was arrested and imprisoned in jail for about 24 hours without being taken before a magistrate, together with the averment of damages, constitute a cause of action for false arrest.  Kaufman v Brown, 93 Cal App 2d 508, 209 P2d 156 (disapproved on other grounds by Dragna v White, 45 Cal 2d 469, 289 P2d 428).

As to presumption of illegality of detention in case of an arrest without a warrant, generally, see  § 126.

Forms: Complaint, petition, or declaration in actions based on arrest or imprisonment by peace officer without legal process.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  91-97.

Footnote 47. Stern v Thompson & Coates,  185 Wis 2d 221, 517 NW2d 658, reconsideration den (Wis) 525 NW2d 736.

Footnote 48. Neves v Costa, 5 Cal App 111, 89 P 860; Boesch v Kick, 98 NJL 183, 119 A 1,  25 ALR 1516.

As to general rule that termination of the prosecution is not essential to the maintenance of an action for false imprisonment, see  § 8.

The plaintiff must allege that the person sought to be held liable instigated, caused, or procured the arrest or confinement of the party complaining. 49   Liability is not shown absent allegations that the named defendant was personally and actively involved in the actions complained of. 50   Thus no liability was shown where the defendant's actions were not part of the allegedly unlawful arrest, 51  where the defendants were not involved in deciding the length of the plaintiff's confinement, 52  where a supervisor did not participate in the broadcast which allegedly caused an allegedly unlawful arrest, 53  or where the defendant, a merchant, had no part in the subsequent alleged tortious conduct of police officers. 54

Where an action is brought against a principal for the act of his agent, the plaintiff should allege that the agent's acts were authorized or ratified by the principal. 55   Similarly, in an action to hold a superior public officer liable for the act of an inferior who is not the officer's servant, the complaint should show that the act of the inferior was an official one. 56   A simple allegation that the act was done by a deputy in the deputy's official capacity is a mere conclusion. 57  

Footnote 49. Burlington Transp. Co. v Josephson (CA8 SD) 153 F2d 372; Richardson v Empire Trust Co., 230 Mo App 580, 94 SW2d 966.

Averments claiming false arrest were sufficient to state a cause of action where it was alleged that plaintiff was accosted, stopped, detained by defendant's employee while deputy sheriff was being called, and required to accompany defendant's employee and deputy sheriff to locker room, and it was further alleged that defendants, "in perpetuating the said false arrest and imprisonment of plaintiff, were intentional or in willful and wanton disregard of the rights and feelings of the plaintiff."  McDonald v Lakewood Country Club, 170 Colo 355, 461 P2d 437.

Complaint alleging that defendant unlawfully ordered and procured arrest of plaintiff by police, without warrant, forcibly and against will of plaintiff and without reasonable or probable cause, and that plaintiff was confined in city prison as consequence of false arrest, was good as against general demurrer. McCoy v Baer (Franklin Co) 100 Ohio App 274, 60 Ohio Ops 226, 136 NE2d 66.

Generally as to liability of persons procuring, directing, or participating in arrest or imprisonment, see  §§ 38 et seq.

Forms: Complaint, petition, or declaration in actions based on arrest or imprisonment by private individual.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  21-30.

Complaint, petition, or declaration in actions based on instigation of or participation in arrest or imprisonment by private individual.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  51-54.

Footnote 50. Sunshine Jr. Food Stores, Inc. v Aultman (Miss) 546 So 2d 659; Godines v First Guaranty Sav. & Loan Asso. (Miss) 525 So 2d 1321.

Footnote 51. Williams v Adams (CA5 La) 836 F2d 958, reh den, en banc (CA5 La) 844 F2d 788.

Footnote 52. Kay v New Hampshire Democratic Party (CA1 NH) 821 F2d 31.

Footnote 53. Kinan v Brockton (CA1 Mass) 876 F2d 1029, 28 Fed Rules Evid Serv 327.

Footnote 54. Lusk v Ira Watson Co., 185 W Va 680, 408 SE2d 630.

Footnote 55. Minter v Southern Express Co., 153 NC 507, 69 SE 497.

A pleading that the manager of a store has the specific duty to guard the interests of his principal against the passing of spurious coin and against other misdemeanors liable to result in monetary loss to his employer is sufficient to plead his authority to inspect a bill tendered by a customer, to pronounce it counterfeit, even if falsely, and to cause the customer to be detained in the store and to be given into the custody of a policeman.  S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757.

Generally as to vicarious liability for acts of employees or agents, see  §§ 49 et seq.

Footnote 56. Miles v Wright, 22 Ariz 73, 194 P 88,  12 ALR 970.

Footnote 57. Jones v Van Bever, 164 Ky 80, 174 SW 795 (ovrld in part on other grounds by Maryland Casualty Co. v McCormack (Ky) 488 SW2d 347,  82 ALR3d 857).

Malice 58   and the want of probable cause 59   are not ordinarily elements of a cause of action for false imprisonment. Although it has been indicated that, where exemplary or punitive damages are sought, an allegation of malice 60 or want of probable cause 61  may be required, it is generally held that it is not necessary to allege these factors, 62  although there is some contrary authority indicating that failure to allege lack of probable cause or reasonable grounds renders the complaint demurrable. 63

Even if want of probable cause need not be averred, it has been suggested that its averment may be helpful, 64  and there is authority supporting the contention that such allegations, although unnecessary to the action in the first instance, when made must be supported by proof in order to recover. 65

Footnote 58.  § 9.

Footnote 59.  § 10.

Footnote 60. Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452.

Footnote 61. McCoy v Baer (Franklin Co) 100 Ohio App 274, 60 Ohio Ops 226, 136 NE2d 66.

Footnote 62. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664; Robinson v Chicago G. W. R. Co. (DC Mo) 144 F Supp 713; Buttrey v Wilhite, 208 Ala 573, 94 So 585; Stallings v Foster, 119 Cal App 2d 614, 259 P2d 1006; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Southern R. Co. v Shirley, 121 Ky 863, 90 SW 597; Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284; Broughton v State,  37 NY2d 451, 373 NYS2d 87, 335 NE2d 310, cert den  423 US 929,  46 L Ed 2d 257,  96 S Ct 277; Jones v Independent Fence Co.,  12 Misc 2d 413, 173 NYS2d 684; McCoy v Baer (Franklin Co) 100 Ohio App 274, 60 Ohio Ops 226, 136 NE2d 66 (recognizing rule); Brown v Meier & Frank Co., 160 Or 608, 86 P2d 79; Strong v Milwaukee,  38 Wis 2d 564, 157 NW2d 619 (by implication).

Lack of probable cause does not have to be pleaded and proved in action for false arrest and imprisonment, except that where offense is apparently being committed in presence of arresting officer, he may by way of defense invoke doctrine of probable cause to justify arrest without warrant.  Miller v Glass, 44 Cal 2d 359, 282 P2d 501.

Malice is not an essential element of a false imprisonment complaint, nor is good faith a necessary showing.  Moody v McElroy (RI) 513 A2d 5.

Annotation: Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause,  14 ALR2d 264 § 18.

Footnote 63. Klimper v Glendale, 99 Cal App 2d 446, 222 P2d 49 (disapproved on other grounds by Rand v Andreatta, 60 Cal 2d 846, 36 Cal Rptr 846, 389 P2d 382); Edens v Hudson (Ky) 243 SW2d 501.

Causes of action for false arrest and malicious prosecution against special agent of FBI were stated by complaint alleging, inter alia, that defendant, without reasonable cause, arrested plaintiff without warrant for theft of freight being shipped in interstate commerce; that plaintiff was brought before United States commissioner where he waived preliminary examination and was held until released on bail; and that complaint was later dismissed before action by grand jury.  Waiver of hearing is at most prima facie evidence of probable cause, and does not destroy general averment of want of probable cause.  Kozlowski v Ferrara (DC NY) 117 F Supp 650.

Footnote 64. McCoy v Baer (Franklin Co) 100 Ohio App 274, 60 Ohio Ops 226, 136 NE2d 66.

Footnote 65. Wilson v Orr, 210 Ala 93, 97 So 133; Billingsley v Kline Cloak Co., 196 Mo App 534, 196 SW 415.

Exemplary or punitive damages need not be requested in the pleading.  If the facts of the case warrant an award of such damages, they may be allowed even though the petition does not pray for them. 66   

Footnote 66. Davis v Seeley, 91 Iowa 583, 60 NW 183; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452.

As to liability for exemplary or punitive damages, see  §§ 149 et seq.

A number of cases recognize that, at common law, where the complaint is sufficient to raise the issue of allowance of punitive damages, the defendant may, under a general denial, show that the defendant acted without malice and in good faith so as to defeat or diminish the recovery of exemplary damages. 67   However, it has been held, under statutes in force in a particular jurisdiction, that a special plea of good faith is at least permissible, 68  and that such a plea is even necessary before the evidence in mitigation may be received. 69  

The defense of justification must be pleaded; it is not available under the general issue. 70    

A plea of justification in behalf of a justice must aver his or her jurisdiction of the subject matter and of the person of the defendant in the proceedings. 71  

The cases are not in accord as to whether a general denial and a plea of justification are inconsistent defenses, 72  but, it has been held, such pleas may be joined in the same answer where a statute allows the pleading of inconsistent defenses. 73

Where a plea to the merits is of such nature that under it a defense to the action may be proved, the plea is good, and a demurrer thereto should not be sustained. 74  

Even if collateral estoppel is not pled as an affirmative defense, with respect to a plaintiff's guilty plea to an underlying charge relating to the false imprisonment claim, the jury may be given the issue, if the facts which form the basis for the collateral estoppel defense are pleaded in the answer, received in evidence and called to the court's attention on a motion for directed verdict. 75

Footnote 67. Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Richardson v Huston, 10 SD 484, 74 NW 234, later proceeding 14 SD 126, 84 NW 486, later proceeding 17 SD 629, 98 NW 164.

Facts to establish absence of malice may be pleaded in mitigation to avoid imposition of punitive damages for assault and for false arrest but not with respect to cause of action for malicious prosecution.  Versosa v New York,  22 Misc 2d 597, 194 NYS2d 5.

Annotation: Pleading good faith or lack of malice in mitigation of damages in action for false arrest or imprisonment,  49 ALR2d 1460.

Footnote 68. Newburn v Durham, 10 Tex Civ App 655, 32 SW 112.

Footnote 69. See Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452 (notwithstanding tender of the issue of punitive damages by the plaintiff in an action for false imprisonment, a general denial by the defendant is insufficient to permit the defendant to introduce proof to show an absence of malice or wilfulness).

Proof in an action for false arrest that arrest was made because a felony had been committed in a sister state and that arresting officer had reasonable grounds for believing that plaintiff had committed it and that arrest was made on this ground was not admissible in mitigation of damages where it was not pleaded. MacDonnell v McConville, 148 App Div 49, 132 NYS 1085, affd 210 NY 529, 103 NE 1126.

Footnote 70. Kaufman v Brown, 93 Cal App 2d 508, 209 P2d 156 (disapproved on other grounds by Dragna v White, 45 Cal 2d 469, 289 P2d 428); Woodson v New York City Housing Authority,  10 NY2d 30, 217 NYS2d 31, 176 NE2d 57; Brown v Meier & Frank Co., 160 Or 608, 86 P2d 79; Westbrook v Hutchison, 195 SC 101, 10 SE2d 145.

In false imprisonment action against city, burden was on city both to prove and plead legal justification; city's failure to do so precluded it from introducing evidence of justification under its general denial.  Parvi v Kingston,  41 NY2d 553, 394 NYS2d 161, 362 NE2d 960.

Footnote 71. Smith v Roebuck, 155 Ala 395, 46 So 455.

As to immunity of judicial officers, see  §§ 98 et seq.

Footnote 72. Hull v Boston & M. R. R., 210 Mass 159, 96 NE 58 (denying right to plead both).

Footnote 73. Shallcross v West J. & S. R. Co., 75 NJL 395, 67 A 931.

Footnote 74. McDaniel v Harrell, 81 Fla 66, 87 So 631,  13 ALR 1333.

A separate defense stating that defendant's agent had observed plaintiff pick up an item from defendant's stock and take it from the store without paying for it states facts relevant to the question whether plaintiff was lawfully arrested and detained, and therefore it should not be struck from the answer.  Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337.

Footnote 75. Prinz v Greate Bay Casino Corp. (CA3 Pa) 705 F2d 692.

4.  Proof and Evidentiary Matters [126-133]

A plaintiff has the burden of proving false arrest, 76  whereas the defendant bears the burden of production and persuasion for any defense. 77   There is a division of authority, however, as to which party bears the burden of proof with respect to probable cause.  Some courts have placed the burden of proving absence of probable cause upon the plaintiff in both false arrest 78  and false imprisonment cases. 79   Other courts have held that a defendant in a false arrest action has the burden of establishing probable cause. 80   Yet another approach places on the plaintiff, after defendant makes a prima facie showing of probable cause, the burden of rebutting that showing and of establishing the lack of probable cause. 81

A warrantless arrest is presumed to be unlawful; 82  once a warrantless arrest has been established, the burden of going forward with evidence to establish probable cause passes to the defendant. 83   By contrast, a magistrate's finding of probable cause in issuing a warrant creates a presumption of probable cause. 84   One jurisdiction permits rebuttal of this presumption upon proof of fraud, perjury, or misrepresentation or falsification of evidence. 85

The plaintiff in a false imprisonment action must prove that the defendant proximately caused the injuries for which the plaintiff seeks damages. 86   However, the defendant will bear the burden of proving that a detention was reasonable in both time and manner. 87   

A presumption that a person who knowingly conceals an unpurchased item is shoplifting will not apply where a store employee, in observing a customer, is able to see the item at all times. 88  

Where an action is based on a principal's responsibility for the acts of an agent, the plaintiff has the burden of showing by clear proof that the agent had express or implied authority to cause the unlawful arrest or imprisonment. 89   

Footnote 76. United Steelworkers of America v Milstead (DC Ariz) 705 F Supp 1426, 128 BNA LRRM 3168.

Plaintiff bears burden of establishing that the arrest was made without color of legal authority.  Touchton v Kroger Co. (La App 3d Cir) 512 So 2d 520.

Footnote 77. Gasho v United States (CA9 Ariz) 39 F3d 1420, 94 CDOS 8368, 94 Daily Journal DAR 15508, cert den (US)  132 L Ed 2d 831,  115 S Ct 2582.

In a customer's action against a retailer, the trial court erred in placing the burden on the customer to negative the statutory privilege rather than requiring the retailer to establish that privilege; the statutory privilege was an affirmative defense. Castillo v Sears, Roebuck & Co. (Tex App El Paso) 682 SW2d 432, revd on other grounds (Tex) 693 SW2d 374.

Footnote 78. Taylor v Dillards Dep't Stores, Inc. (CA10 Okla) 971 F2d 601; Garrett v Bloomington (Ind App) 478 NE2d 89.

Footnote 79. Hajawii v Venture Stores, Inc. (1st Dist) 125 Ill App 3d 22, 80 Ill Dec 461, 465 NE2d 573.

Footnote 80. Safeway Stores, Inc. v Kelly (Dist Col App) 448 A2d 856; Lee v Geiger (Fla App D1) 419 So 2d 717, petition den (Fla) 429 So 2d 5.

Plaintiff in false arrest or false imprisonment case need not prove lack of probable cause.  Garton v Reno, 102 Nev 313, 720 P2d 1227.

Footnote 81. Thomas v Hamilton (Ala) 611 So 2d 1038.

Footnote 82. Broadaway v New York (SD NY) 601 F Supp 624; McCarthy v Kleindienst, 239 US App DC 247, 741 F2d 1406, 39 FR Serv 2d 1165.

Footnote 83. United Steelworkers of America v Milstead (DC Ariz) 705 F Supp 1426, 128 BNA LRRM 3168; Reams v Tucson (App) 145 Ariz 340, 701 P2d 598; Children v Burton (Iowa) 331 NW2d 673, cert den  464 US 848,  78 L Ed 2d 143,  104 S Ct 155.

Where plaintiff has demonstrated an arrest without process, followed by imprisonment and damages, burden is on defendant to prove justification.  Trenouth v United States (CA9 Cal) 764 F2d 1305, 119 BNA LRRM 3615 (applying California law).

In false imprisonment action, burden of proving that imprisonment came within exception permitting a warrantless arrest is on the person making the arrest or causing the imprisonment. Scott Housing Systems, Inc. v Hickox, 174 Ga App 23, 329 SE2d 154.

Defendant has burden of justifying warrantless arrest by showing that probable cause existed as of time of arrest.  Kramer v New York (1st Dept)  173 App Div 2d 155, 569 NYS2d 67, app den  78 NY2d 857, 574 NYS2d 938, 580 NE2d 410.

But see Noel v King County, 48 Wash App 227, 738 P2d 692 (warrantless felony arrest in public place was not presumed to be unlawful and plaintiff had the burden of proving unlawfulness of arrest).

Annotation: Necessity and sufficiency of allegations, in complaint for malicious prosecution or tort action analogous thereto, that defendant or defendants acted without probable cause,  14 ALR2d 264 § 18 (action for false arrest or imprisonment).

Forms: Instruction to jury as to burden of proving justification for arrest without warrant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  107.

Footnote 84. See Benjamin v United States (ED NY) 554 F Supp 82 (where arrest is pursuant to facially valid warrant issued by court of competent jurisdiction, probable cause for arrest is conclusively established).

Footnote 85. LoSacco v City of Middletown (DC Conn) 745 F Supp 812, summary judgment den (DC Conn) 1992 US Dist LEXIS 21672, reconsideration den (DC Conn) 1993 US Dist LEXIS 16098 and approved, adopted (DC Conn) 1993 US Dist LEXIS 16100, reported in full (DC Conn) 822 F Supp 870, affd without op (CA2 Conn) 33 F3d 50.

Footnote 86. Fischer v Famous-Barr Co. (Mo App) 618 SW2d 446, appeal after remand on other grounds (Mo App) 646 SW2d 819.

Footnote 87. Signorino v National Super Markets, Inc. (Mo App) 782 SW2d 100 (false arrest action based upon detention of customer on suspicion of shoplifting); Luppo v Waldbaum, Inc. (2d Dept)  131 App Div 2d 443, 515 NYS2d 871 (false imprisonment action based upon detention of retail employee on suspicion of theft of merchandise).

But see Nelson v Las Vegas, 99 Nev 548, 665 P2d 1141 (plaintiff must prove that delay in release following valid arrest was unlawful).

Practice References False imprisonment–Failure to take arrestee before magistrate without unreasonable or unnecessary delay.   26 Am Jur POF2d 617 § 11 (burden of proof and evidence).

Footnote 88. Wal-Mart Stores v Yarbrough, 284 Ark 345, 681 SW2d 359.

Annotation: Construction and effect, in false imprisonment action, of statute providing for detention of suspected shoplifters,  47 ALR3d 998.

Footnote 89. White v Miami Home Milk Producers Ass'n, 143 Fla 518, 197 So 125; J. C. Penney Co. v Green, 108 Ga App 155, 132 SE2d 83; Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703.

Annotation: Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826.

Principal's liability for false arrest or imprisonment caused by agent or servant,  92 ALR2d 15.

The general rules governing the admissibility of evidence in civil actions 90  are applicable in actions for false arrest or imprisonment. 91   Generally, all the facts and circumstances connected with the unlawful arrest or imprisonment are admissible in evidence. 92   The complaint, warrant, and transcript of the record of proceedings before a magistrate may be admissible to show what such proceedings were and who conducted them, or to mitigate the damages or to defeat the claim. 93   In an action for false arrest under a warrant issued for a person indicted by a grand jury, the issue as to what person was intended by the name used in the warrant may be shown by all the competent facts and circumstances surrounding the transaction out of which the indictment arose and the warrant issued. 94  

Where the plaintiff has been imprisoned by an agent of the defendant acting in the course of his employment, the declarations, as well as the conduct of such agent, are admissible against the principal. 95   Declarations may also be admissible as part of the res gestae. 96  

Rules or instructions for dealing with shoplifters have sometimes been offered in evidence in actions for false imprisonment for the purpose of showing that the defendant's employee was or was not acting within his or her authority in causing the arrest or prosecution, or for the purpose of showing grounds for the award of punitive damages.  A few cases have held the defendant's rules or instructions admissible for one or both of such purposes. 97  However, it has been held that the defendant's rules or instructions were inadmissible in an action for false imprisonment, where such evidence was offered by the defendant for the purpose of showing that the defendant's employee was not acting within the employee's authority in causing the arrest. 98   Proffered store manuals have also been excluded as irrelevant where the store did not deny liability, 99  where receipt in evidence might have created doubts in the minds of the jury as to whether the applicable standard of care was the statute or the manual, 1  or where the court was concerned that the merchant's liability for false arrest be determined according to the minimum legal standards established by statute rather than the merchant's own standards. 2

In some instances, courts have rejected the testimony of experts in false imprisonment cases on grounds of relevance. 3   In other cases, courts have suggested that expert testimony might be admissible on issues of negligent hiring, 4  on the issue of the appropriate medical standards to be applied, 5  or, on the proper evidentiary foundation, to validate an item of claimed damages. 6

Footnote 90. See 29 Am Jur 2d,  Evidence §§ 301 et seq.

Footnote 91. Martin v Sanford, 129 Neb 212, 261 NW 136,  100 ALR 179 (holding inadmissible contradictory statements made by third person unconnected with defendant, and not made in his presence).

In an action for false imprisonment against a bank and bank officials by a former bank employee suspected of stealing money mistakenly assumed to have been left for deposit, the compromise and settlement of an earlier action for slander against the supposed depositor, offered in evidence by the defendants, has been held properly excluded since the compromise agreement could not alleviate the wrongful acts of the defendants or mitigate the punitive damages recoverable from them.  Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263.

In an action for false arrest, the admission in evidence of a police department property receipt, to which the plaintiff objected on the ground that the receipt constituted hearsay evidence of the matters set out therein, was cumulative as to the existence of the articles listed and, if error, would not constitute grounds for reversal of the judgment.  Olund v Federated Dep't Stores, Inc. (Fla App D3) 300 So 2d 31.

In an action for false imprisonment against a storekeeper by an employee accused of theft from the employees' cloakroom, the pleading of a lawful arrest as a justification does not render admissible, upon that issue, evidence of prior thefts from the cloakroom, since it has no probative value in establishing the actual guilt of the plaintiff.  Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452.

Footnote 92. Miller v Fano, 134 Cal 103, 66 P 183.

Footnote 93. Thompkins v Missouri, K. & T. R. Co. (CA8 Mo) 211 F 391.

Footnote 94. O'Neill v Keeling, 227 Iowa 754, 288 NW 887,  127 ALR 1050.

Footnote 95. White v Apsley Rubber Co., 194 Mass 97, 80 NE 500.

Footnote 96. Gadsden General Hospital v Hamilton, 212 Ala 531, 103 So 553,  40 ALR 294 (declaration of person in charge in the hospital to officer serving writ of habeas corpus that reason for detention was nonpayment of bill).

Footnote 97. See Peak v W. T. Grant Co. (Mo App) 386 SW2d 685 (a store's written "Operation Manual on Shoplifting" was held admissible when offered into evidence by a patron in an action for false arrest and imprisonment growing out of her detention in the store on unfounded charges of shoplifting against her sister, the court pointing out that the manual was material to the issue of the authority of the store's floor supervisor in detaining the patron, that it was material to the issue of punitive damages, and that the manual was first brought into the case by the store's own counsel, who questioned a witness concerning it).

Failure of merchant to go through store's manual with its assistant manager was relevant with respect to determination of merchant's liability for punitive damages concerning the conduct of its employee.  Big B, Inc. v Cottingham (Ala) 634 So 2d 999.

In an action by a customer detained for suspected shoplifting, the trial court erred in excluding the store's rules on dealing with shoplifting suspects, since those rules were illustrative of what might be reasonable cause for, manner of and length of detention.  Luckie v Piggly-Wiggly Southern, Inc., 173 Ga App 177, 325 SE2d 844.

In an action by a supermarket customer against a store security agency, training manuals and testimony were properly admitted on the punitive damages issue, as material to the issues of wantonness and reckless disregard for the rights of others.  Globe Sec. Systems Co. v Sterling, 79 Md App 303, 556 A2d 731.

See also Brown v Great Atlantic & Pacific Tea Co., 275 App Div 304, 89 NYS2d 247, where a patron brought an action against a store for assault, false imprisonment, and slander, and the store had a carefully drawn, printed manual of instructions relating to the undesirability of making arrests for pilfering, the court said that the store was entitled to offer the instructions in evidence for the consideration of the jury on the issue of whether the store's employee was acting within the scope of employment in charging the patron with stealing groceries.  Explaining that the instructions of the employer would not be determinative on the issue of agency, the court nevertheless ruled that they might be given such weight, if any, as appropriate under the circumstances of the case in connection with the jury's consideration of whether the act complained of was within the general scope of employment in carrying on the employer's business and with a view to the furtherance thereof.

Annotation: Admissibility of defendant's rules or instructions for dealing with shoplifters, in action for false imprisonment or malicious prosecution,  31 ALR3d 705.

Footnote 98. See J. J. Newberry Co. v Judd, 259 Ky 309, 82 SW2d 359 (where a store attempted to elicit testimony concerning its instructions to its employees that they should never cause the arrest of a suspected shoplifter, apparently for the purpose of disproving that its assistant manager was acting within his authority in causing a patron's arrest, it was held that such testimony was properly excluded; the court merely explained that the evidence was properly rejected because the store could not be relieved of liability on the basis of the assistant manager's violation of his orders in this respect).

Footnote 99. Curry v Giant Food Co. (Dist Col App) 522 A2d 1283.

Footnote 1. Jones v Montgomery Ward & Co., 49 Or App 231, 619 P2d 907.

Footnote 2. Alvarado v Dodge City, 238 Kan 48, 708 P2d 174.

Footnote 3. Nau v Sellman, 104 Nev 248, 757 P2d 358 (testimony of prosecutor as to guilt or not on the underlying charge).

Footnote 4. Etheredge v District of Columbia (Dist Col App) 635 A2d 908.

Footnote 5. Reiser v Prunty, 224 Mont 1, 727 P2d 538.

Footnote 6. Curry v Giant Food Co. (Dist Col App) 522 A2d 1283.

Any elements of the arrest or imprisonment which increase its hardships to the plaintiff may be proved to add to the amount which will constitute the fair compensation to which the plaintiff is entitled. 7   Thus, the plaintiff may show that he or she was taken to a jail or police station, 8  what he or she experienced there, 9  including harsh or humiliating treatment while in custody, 10  and the filthy or evil conditions of the jail or place where he or she was lodged. 11

The plaintiff may show that he or she was compelled to leave a cash bail to secure his or her release, 12  that he or she was discharged from restraint by habeas corpus, 13  that he or she lost employment by the imprisonment, 14   or that the fact of arrest and the charges made were published in a newspaper. 15  Where punitive damages may be awarded, the plaintiff may show the existence of malice, lack of reasonable cause, or other aggravations essential to recovery. 16  

Some courts have held that testimony concerning the personal and family affairs of the plaintiff is inadmissible, since such testimony is calculated improperly to increase the damages; 17   other courts hold that evidence of the circumstances of the plaintiff's family may be shown 18  on the ground that mental pain and suffering is an element of damages. 19    It is not permissible to show ill treatment of the plaintiff by one for whose conduct the defendant is not responsible, 20   or the fact that the defendant had put handcuffs on the plaintiff if there was nothing to show that this was done unreasonably. 21

Footnote 7. New York, P. & N. R. Co. v Waldron, 116 Md 441, 82 A 709; Gallon v House of Good Shepherd, 158 Mich 361, 122 NW 631; Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470.

As to damages, generally, see  §§ 140 et seq.

Forms: Complaints alleging aggravation of damages resulting from arrest or imprisonment by private individual.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  31-33.

Complaints alleging aggravation of damages resulting from arrest or imprisonment by law enforcement officers.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  92-95.

Footnote 8. New York, P. & N. R. Co. v Waldron, 116 Md 441, 82 A 709.

Footnote 9. Kraft v Montgomery Ward & Co., 220 Or 234, 348 P2d 239,  92 ALR2d 1.

Footnote 10. Miller v Fano, 134 Cal 103, 66 P 183.

Footnote 11. Grimes v Greenblatt, 47 Colo 495, 107 P 1111; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Fox v McCurnin, 205 Iowa 752, 218 NW 499; Stoecker v Nathanson, 5 Neb Unof 435, 98 NW 1061; Brockwell v Western Union Tel. & Cable Co., 205 NC 474, 171 SE 784; Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470.

Footnote 12. New York, P. & N. R. Co. v Waldron, 116 Md 441, 82 A 709.

Footnote 13. Whittaker v Sanford, 110 Me 77, 85 A 399.

Footnote 14. Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Stoecker v Nathanson, 5 Neb Unof 435, 98 NW 1061.

Footnote 15. Filer v Smith, 96 Mich 347, 55 NW 999.

Footnote 16.  § 130.

Footnote 17. Winters v Campbell, 148 W Va 710, 137 SE2d 188; Bergeron v Peyton,  106 Wis 377, 82 NW 291.

Footnote 18. Davis v Seeley, 91 Iowa 583, 60 NW 183; Stoecker v Nathanson, 5 Neb Unof 435, 98 NW 1061.

Footnote 19.  § 146.

Footnote 20. Harbison v Chicago, R. I. & P. R. Co., 327 Mo 440, 37 SW2d 609,  79 ALR 1.

Footnote 21. McCullough v Greenfield, 133 Mich 463, 95 NW 532.

Facts and circumstances attending the arrest or imprisonment which may be inadmissible on the question of liability may nevertheless be received in mitigation of damages. 22   Thus, evidence of previous arrests and time spent in jail may be admitted where the plaintiff claims humiliation and upset caused by the alleged false arrest. 23   Evidence is admissible to show that although the defendant could not justify an arrest upon the ground for which it was made, the plaintiff was at the same time guilty of another offense. 24   Likewise, the plaintiff's conduct and the provocation by the plaintiff, if any, may be shown. 25  Where punitive damages may be awarded, evidence of the defendant's financial standing is admissible. 26    The existence of good faith and probable cause for imprisonment may be shown in mitigation of punitive damages, 27   but the authorities are not entirely in accord as to the admissibility of the plaintiff's conviction or guilt, 28   or of character or reputation. 29  

Footnote 22. Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147; Comisky v Norfolk & W. R. Co., 79 W Va 148, 90 SE 385.

Footnote 23. Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147.

Footnote 24. Comisky v Norfolk & W. R. Co., 79 W Va 148, 90 SE 385.

Footnote 25. Petit v Colmary, 20 Del 266, 4 Penne 266, 55 A 344; Palmer v Maine C. R. Co., 92 Me 399, 42 A 800.

Footnote 26. Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Heinze v Murphy, 180 Md 423, 24 A2d 917; Nelson v Halvorson, 117 Minn 255, 135 NW 818.

Footnote 27.  § 130.

Footnote 28.  § 131.

Footnote 29.  § 132.

The defendant's malice or good faith 30  does not affect the essentials of false imprisonment.  Nor, as a general rule, is the want of probable cause an essential element of the action of false imprisonment. 31   The motive of the defendant is immaterial as to the right of the plaintiff to recover a fair compensation for all injury sustained as a natural consequence of the imprisonment. 32    Hence, evidence as to defendant's good faith, probable cause for the arrest or detention, or lack of malice, is ordinarily not admissible in mitigation of compensatory damages. 33        

On the other hand, the existence of malice, lack of reasonable cause, or other aggravations essential to the allowance of exemplary or punitive damages, 34   may be admitted in proof thereof. 35   Likewise, evidence as to probable cause may become material and thus admissible where it tends to show justification for the arrest or detention. 36   Probable cause may also be shown in mitigation of exemplary or punitive damages, 37  as may all the facts or circumstances surrounding the arrest or imprisonment which tend to show good faith on the part of the defendant and to rebut the existence of malice. 38  Although an imprisonment is without actual warrant of law, one sued for damages therefor may show in mitigation of punitive damages that he or she acted under an honest belief that he or she was within legal rights, and with intent only to enforce the law. 39   Thus, it may be shown that a defendant acted under advice of counsel; 40    or under the orders or instructions of one's superiors. 41 

Footnote 30.  § 9.

Footnote 31.  § 10.

Footnote 32. Phillips v Morrow, 210 Ala 34, 97 So 130, appeal after remand, remanded on other grounds 213 Ala 139, 104 So 260,  40 ALR 285; Bean v Best, 77 SD 433, 93 NW2d 403.

Footnote 33. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Phillips v Morrow, 210 Ala 34, 97 So 130, appeal after remand, remanded on other grounds 213 Ala 139, 104 So 260,  40 ALR 285; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Nelson v Kellogg, 162 Cal 621, 123 P 1115; Cincinnati, N. O. & T. P. R. Co. v Cundiff, 166 Ky 594, 179 SW 615; Nelson v Halvorson, 117 Minn 255, 135 NW 818; Bean v Best, 77 SD 433, 93 NW2d 403; Crosswhite v Barnes, 139 Va 471, 124 SE 242,  40 ALR 54.

In action for recovery of compensatory damages for false arrest, affirmative defense based on lack of malice is unavailing as plea in mitigation.  Rifkin v New York,  12 Misc 2d 367, 176 NYS2d 716.

Footnote 34.  § 149.

Footnote 35. Phillips v Morrow, 210 Ala 34, 97 So 130, appeal after remand, remanded on other grounds 213 Ala 139, 104 So 260,  40 ALR 285; Palmer v Maine C. R. Co., 92 Me 399, 42 A 800; McNeff v Heider, 216 Or 583, 337 P2d 819, reh den 216 Or 594, 340 P2d 180.

Evidence of acts of the defendant after plaintiff was arrested and turned over to the authorities is admissible if it tends to show that the defendant acted maliciously.  Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Thomas v F. & R. Lazarus & Co. (App, Franklin Co) 3 Ohio Ops 2d 61, 40 Ohio L Abs 29, 57 NE2d 103, motion ovrld.

Footnote 36. Director General of Railroads v Kastenbaum,  263 US 25,  68 L Ed 146,  44 S Ct 52; Carr v National Discount Corp. (CA6 Mich) 172 F2d 899, cert den  338 US 817,  94 L Ed 495,  70 S Ct 59; Collyer v S. H. Kress & Co., 5 Cal 2d 175, 54 P2d 20; Atlantic C. L. R. Co. v Wegner, 90 Ga App 267, 83 SE2d 58; Sima v Skaggs Payless Drug Ctr., 82 Idaho 387, 353 P2d 1085; Teel v May Dep't Stores Co., 348 Mo 696, 155 SW2d 74,  137 ALR 495; Morgan v New York C. R. Co., 256 App Div 177, 9 NYS2d 339.

Defendant who reported to police that plaintiff appeared to be driving while intoxicated was not liable for false arrest where manner in which plaintiff was driving furnished defendant with probable cause for his acts.  Vickrey v Dunivan, 59 NM 90, 279 P2d 853.

Footnote 37. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Oates v Bullock, 136 Ala 537, 33 So 835; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Rogers v Toliver, 139 Ga 281, 77 SE 28; Conoly v Imperial Tobacco Co., 63 Ga App 880, 12 SE2d 398; Jefferson Dry Goods Co. v Stoess, 304 Ky 73, 199 SW2d 994; Kroeger v Passmore, 36 Mont 504, 93 P 805; Baker Co. v Turpin (Tex Civ App) 53 SW2d 154, writ dism w o j; Zayre of Virginia, Inc. v Gowdy, 207 Va 47, 147 SE2d 710.

Footnote 38. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Nesmith v Alford (CA5 Ala) 318 F2d 110, reh den (CA5 Ala) 319 F2d 859 and cert den  375 US 975,  11 L Ed 2d 420,  84 S Ct 489; Phillips v Morrow, 210 Ala 34, 97 So 130, appeal after remand, remanded on other grounds 213 Ala 139, 104 So 260,  40 ALR 285; Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Klein v Pollard, 149 Mich 200, 112 NW 717; Bean v Best, 77 SD 433, 93 NW2d 403.

Evidence of good faith is relevant to rebut a claim for punitive damages.  Yancey v Farmer (Ala) 472 So 2d 990.

Footnote 39. Nelson v Halvorson, 117 Minn 255, 135 NW 818; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452; McNeff v Heider, 216 Or 583, 337 P2d 819, reh den 216 Or 594, 340 P2d 180.

Footnote 40. Phillips v Morrow, 210 Ala 34, 97 So 130, appeal after remand, remanded on other grounds 213 Ala 139, 104 So 260,  40 ALR 285; Filer v Smith, 96 Mich 347, 55 NW 999 (stating that facts and evidence known to defendant must have been fully and fairly laid before counsel).

As to reliance on advice of counsel as justification or defense, generally, see  § 69.

Footnote 41. Christ v McDonald, 152 Or 494, 52 P2d 655; Cullen v Dickenson, 33 SD 27, 144 NW 656 (holding that purpose of evidence should be pointed out clearly in instructions).

As to admissibility of rules or instructions of employer for dealing with shoplifters, see  § 127.

There exists some confusion as to the effect, upon an action for false imprisonment, of the plaintiff's plea of guilty to, or conviction for, the offense with which the plaintiff was charged and for which an arrest was made. 42   As a result, courts have reached varying results regarding the admissibility of such evidence.  In some cases, evidence of the plaintiff's plea of guilty, 43  or, where compensatory damages only were asked, his conviction, has been held inadmissible. 44   However, in other cases, evidence of a plea of guilty and evidence of conviction have been held admissible in the action as proof of an admission on the part of the plaintiff; 45  and where the unlawfulness of the imprisonment arises out of a defect in the proceedings, the defendant may show in mitigation of damages that the plaintiff is in fact guilty of the crime. 46

Footnote 42.  §§ 85,  65.

Footnote 43. Larson v Feeney, 196 Mich 1, 162 NW 275 (arrest without warrant).

Footnote 44. Hickman v Jones,  76 US 197, 9 Wall 197,  19 L Ed 551; Sundholm v Bettendorf (Iowa) 389 NW2d 849; Dewberry v Brookshire Bros. #1 (Tex App Beaumont) 699 SW2d 685; Crosswhite v Barnes, 139 Va 471, 124 SE 242,  40 ALR 54 (failure to exhibit warrant in making arrest).

Footnote 45. Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470.

The convictions of the plaintiffs for disorderly conduct conclusively established probable cause to support their arrests and prevented their successful prosecution of an action for damages for false arrest, notwithstanding the fact that their convictions were subsequently reversed on appeal for lack of evidence.  Carter v St. Petersburg (Fla App D2) 319 So 2d 602.

Footnote 46. Friesenhan v Maines, 137 Mich 10, 100 NW 172.

The general rule is that evidence of character and reputation is not admissible unless put in issue by the very proceeding itself. 47   This rule is applied to actions for false imprisonment, under which it is usually held that the plaintiff's character is not at issue, 48  and proof of bad character in mitigation of damages is excluded, 49  as well as proof of the defendant's good character. 50   In the absence of an attack by the defendant upon the plaintiff's character, evidence of the plaintiff's good character will not be received. 51

However, character is an issue in a false imprisonment action where the plaintiff claims compensatory damages for emotional distress, and in such a case evidence as to the plaintiff's character may be admitted, 52  unless the probative value of such evidence is outweighed by the danger of confusion or undue prejudice. 53   The fact that the plaintiff's general reputation before the arrest was bad has been held admissible in rebutting the proof of want of probable cause, and in mitigation of damages. 54   Similarly, evidence that a person is generally reputed to be insane is admissible in mitigation of damages in an action by such person for false imprisonment on a charge of insanity. 55

In certain situations, evidence of the character of the plaintiff's associates may be admissible. 56

Footnote 47. See 29 Am Jur 2d,  Evidence § 364.

Footnote 48. Texas M. R. Co. v Dean, 98 Tex 517, 85 SW 1135.

Footnote 49. Hickman v Jones,  76 US 197, 9 Wall 197,  19 L Ed 551; Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664.

Footnote 50. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664.

Footnote 51. Humphreys v St. Louis S. F. R. Co. (Mo App) 286 SW 738; Diers v Mallon, 46 Neb 121, 64 NW 722; Doyle v Douglas (Okla) 390 P2d 871; S. H. Kress & Co. v Roberts, 143 Va 71, 129 SE 244.

Footnote 52. Bean v Best, 77 SD 433, 93 NW2d 403.

Footnote 53. Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147.

Footnote 54. Rosenkranz v Barker, 115 Ill 331, 3 NE 93; S. H. Kress & Co. v Roberts, 143 Va 71, 129 SE 244.

Footnote 55. State v Charles, 124 La 744, 50 So 699; Biddle v Jenkins, 61 Neb 400, 85 NW 392.

Footnote 56. See Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470 (where the plaintiff was arrested upon a charge of drunkenness and it was claimed that an intoxicant was given him by his companion, the plaintiff claiming that it was ginger ale, it was permissible to show that the plaintiff's companion "was a good, clean athlete and drank no liquor").

The general rules as to the weight and sufficiency of evidence 57   apply in actions for false imprisonment.  If it is shown that the imprisonment was by force, by threats, or without process of law, a prima facie case is established for the plaintiff. However, if it is shown that the imprisonment was by virtue of judicial proceedings and by the execution of a warrant or other legal process issued thereon, the plaintiff must show something more than a mere detention and imprisonment to make a prima facie case. 58    Direct and express evidence is not the only means of proof.  The fact that the defendant instigated a false arrest may be shown by circumstantial evidence, 59  so long as there is some basis for the inference. 60  Also, the scope of an agent's authority, as well as ratification of his acts, may be established by circumstantial evidence. 61   However, ratification of an illegal imprisonment for shoplifting was not shown on the part of one of the partners in the business by the fact that upon receiving a complaint from the husband of the victim, he ordered him out of the store. 62  Nor is ratification of an unauthorized arrest by an employee shown by evidence that on notice of the arrest the employer promptly investigated the situation and within an hour following notice of the arrest acted to release the arrested customer. 63

Evidence of a plea of guilty and conviction upon an arrest for a criminal offense has been held not to be conclusive upon the plaintiff in a civil action for false imprisonment, such record being between different parties. 64   However, it has been held that a conviction of the charge on which the plaintiff was arrested is a conclusive determination that there was probable cause for the arrest. 65

The fact that an officer discharges a prisoner before presenting the prisoner to a magistrate is not conclusive proof that the arrest was not made in good faith. 66

Footnote 57. As to weight and sufficiency of evidence, generally, see 30 Am Jur 2d,  Evidence §§ 1430 et seq.

Footnote 58.  § 126.

Footnote 59. Grimes v Greenblatt, 47 Colo 495, 107 P 1111; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Knupp v Esslinger (Mo App) 363 SW2d 210; Harrer v Montgomery Ward & Co., 124 Mont 295, 221 P2d 428; Sylvester v D'Ambra, 73 RI 203, 54 A2d 418; (Blue) Star Service, Inc. v McCurdy, 36 Tenn App 1, 251 SW2d 139.

Footnote 60. See Burlington Transp. Co. v Josephson (CA8 SD) 153 F2d 372 (proof of a request to police to remove the plaintiff from a bus, and of a complaint drawn by a deputy court clerk charging a disturbance of the peace in violation of a city ordinance, is not sufficient, either as pleading or as proof, to show that the individual instigated the unlawful arrest).

Proof of a private conversation between the defendant or his agent and a police officer, followed by plaintiff's arrest, is not sufficient evidence to support a contention that the defendant instigated the arrest.  There must be other facts and evidence which warrant the inference that arrest was instigated by the defendant or by an authorized agent of defendant during the conversation.  Heinold v Muntz T. V., Inc. (Mo) 262 SW2d 32.

Footnote 61. See 3 Am Jur 2d,  Agency § 364.

Footnote 62. Bernheimer Bros. v Becker, 102 Md 250, 62 A 526.

Footnote 63. Rogers v Sears, Roebuck & Co., 48 Wash 2d 879, 297 P2d 250.

Footnote 64. Warren v Byrne (CA2 NY) 699 F2d 95; Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470.

Footnote 65. Hill v Day, 168 Kan 604, 215 P2d 219.

Footnote 66. Atchison, T. & S. F. R. Co. v Hinsdell, 76 Kan 74, 90 P 800.

5.  Trial [134-137]

The plaintiff in a false arrest proceeding has a constitutional right to the trial of his or her claim by a jury, whose role includes the assessment of damages. 67   The general rule that the control of the conduct of counsel in the trial and argument of a case rests largely in the discretion of the trial court, which will not be disturbed on appeal in the absence of an abuse of such discretion, 68   has been applied in the review of trial court rulings with respect to the conduct, statements, or arguments of counsel in actions for false imprisonment or false arrest. 69   Resubmission of an inconsistent verdict to a jury is proper. 70   However, an ex parte communication of a trial judge to the jury has been held to constitute reversible error. 71

Footnote 67. Wochek v Foley, 193 Conn 582, 477 A2d 1015.

Footnote 68. See 75A Am Jur 2d,  Trial § 497.

Footnote 69. Felton v Coyle (1st Dist) 95 Ill App 2d 202, 238 NE2d 191.

In a false arrest action arising out of detention of a customer suspected of shoplifting, it was held that there was no abuse of judicial discretion in permitting plaintiff's counsel to argue that defendant operated a self-service store inadequately staffed, and to inject the "golden rule" into the case by saying to the jury that "today it can be thee, tomorrow it might be me."Wisner v S.S. Kresge Co. (Mo App) 465 SW2d 666.

Footnote 70. Larson v Neimi (CA9 Cal) 9 F3d 1397, 93 CDOS 8528, 93 Daily Journal DAR 14699.

Footnote 71. Etheredge v District of Columbia (Dist Col App) 635 A2d 908.

The general principle that questions of law are to be determined by the court while questions of fact are to be decided by the jury 72   has been applied in actions for false imprisonment or false arrest with respect to such issues as:

(1) the intent of the defendant to confine, 73  

(2) the involuntariness of the confinement, 74   

(3) the plaintiff's awareness of his confinement, 75  

(4) the existence of false imprisonment under particular facts, 76  

(5) the connection of the defendant to the alleged unlawful acts, 77  

(6) whether a special officer appointed by public authority was acting in an official capacity or on behalf of a private employer in making an arrest, 78   

(7) probable cause for, and reasonableness of, the detention of a suspected shoplifter, 79    and

(8) the legality of a warrantless arrest by a police officer. 80    Where a question is one of fact for the jury, proper instructions must be given by the court to guide the jury in its determination. 81    It has been said that the majority rule views the probable cause issue as a mixed question of law and fact to be decided in some instances only by the judge and in others by a combination of judge and jury, while the minority rule sees probable cause as a question of fact which is ordinarily one for the jury. 82    

Footnote 72. See, generally, 75 Am Jur 2d,  Trial §§ 714 et seq.

Footnote 73.  § 12.

Footnote 74.  §§ 13,  19.

Footnote 75.  § 14.

Footnote 76.  § 11.

Footnote 77.  § 35.

Footnote 78.  § 57.

Footnote 79.  §§ 74,  79.

Footnote 80.  § 81.

Footnote 81.  § 137.

Footnote 82. District of Columbia v Murphy (Dist Col App) 635 A2d 929; Jones v Columbia, 301 SC 62, 389 SE2d 662.

Probable cause is an issue decided by the court only if there is no dispute on the facts.  Parkin v Cornell University, Inc.,  78 NY2d 523, 577 NYS2d 227, 583 NE2d 939, 121 CCH LC ¶ 56790, on remand on other grounds (3d Dept)  182 App Div 2d 850, 581 NYS2d 914, app dismd  80 NY2d 914, 588 NYS2d 821, 602 NE2d 229.

In an action based on the arrest of a newspaper reporter for disrupting a public meeting of a town board by refusing to stop the reporter's tape recorder, the trial court properly submitted the issue of probable cause for the reporter's arrest to the jury where, in view of the reporter's legal right to record the meeting, it could not be said, as a matter of law, that there was probable cause for the arrest.  Feldman v Bethel (3d Dept)  106 App Div 2d 695, 484 NYS2d 147.

Failure to raise issues at trial may be construed as a waiver, including the issue of absolute immunity, 83  or the existence of an inconsistent verdict. 84

Footnote 83. Henderson v District of Columbia (Dist Col App) 493 A2d 982.

Footnote 84. Burnett v Griffith (Mo) 739 SW2d 712, transf to (Mo App) 1988 Mo App LEXIS 480, later proceeding, en banc (Mo) 769 SW2d 780.

The general rules governing the form, contents, and sufficiency of instructions to the jury and the necessity for and propriety of giving them 85   are applicable in actions for false imprisonment or false arrest.  In general, instructions which are meandering, so as to tend to the misleading of the jury, should be avoided, 86  although an issue may be fairly submitted if a party fails to object. 87

Where the facts of the case raise the issue, instructions should be given on good faith as a justification, 88  or on the defense of acting on the advice of counsel. 89   

In actions arising out of an arrest without a warrant, proper instructions should be given on the circumstances under which a peace officer is authorized to make such an arrest, 90   and on what constitutes reasonable grounds or probable cause for a warrantless arrest. 91   If a police officer is outside his or her territorial jurisdiction, an instruction may yet be proper regarding the right to make a citizen's arrest for a misdemeanor committed in his or her presence and amounting to a breach of the peace. 92   Also, there is no error in instructing the jury that there was at the time of the arrest a statute proscribing the conduct for which plaintiff was arrested, even though such statute was subsequently held to be unconstitutional. 93    

Where the arrest was made pursuant to legal process, instructions should be given regarding the defense of reasonable good faith justifying one's actions in the imprisonment of a prisoner. 94   

In the proper case, the jury should be instructed on the applicable standards for qualified immunity, 95  although failure to elaborate on that point is not erroneous. 96   If the action is based on illegal detention after a proper arrest, instructions may be necessary on the officer's duty to take the arrested prisoner before a magistrate without unnecessary delay. 97   

In an action arising out of voluntary commitment of a mentally ill person, a charge regarding the patient's statutory right to release upon application or request therefor is proper. 98  

In actions based on a private individual's instigation of or participation in an arrest or imprisonment, 99   a charge should be given on what constitutes direction or instigation and the liability of a private person for such instigation or participation. 1    In actions arising out of a merchant's protection of property by detention of a customer or employee suspected of shoplifting or theft, 2   instructions should be given on such merchant's general privilege 3   or statutory defense 4   of reasonable detention of a suspected shoplifter; 5   what constitutes probable cause or reasonable grounds for detention of a suspected shoplifter should be clearly and accurately defined. 6

Where a plaintiff pleads alternatively or cumulatively both false imprisonment and malicious prosecution, the jury should be separately charged concerning these distinct torts. 7  

To aid the jury in its determination of damages, 8   the court should charge the jury as to the measure and elements of compensatory damages, 9    including damages for mental suffering 10   where the plaintiff's allegations and proof at trial support such an item, 11  and, where appropriate, on the liability of defendant for exemplary or punitive damages. 12    The trial court may properly refuse to give a requested charge on liability for damages, actual or punitive, if it states the applicable law incorrectly. 13   However, a charge regarding damages, though inaccurate, may become the law of the case if not objected to. 14

A court may also properly instruct on the concepts of legal cause as opposed to proximate cause, where such a distinction is present on the issue of fixing damages. 15

Footnote 85. 75A Am Jur 2d,  Trial §§ 1077 et seq.

Footnote 86. State v Plentychief (ND) 464 NW2d 373.

Footnote 87. Swift v R.H. Macy's & Co. (CA8 Mo) 780 F2d 1358.

Footnote 88. See Curry v Giant Food Co. (Dist Col App) 522 A2d 1283 (instructions on good faith and reasonable belief in connection with detention of a store customer were properly given, in connection with merchant's detention statute).

Footnote 89. Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531.

As to acting under advice of counsel, generally, see  § 69.

Footnote 90. Horn v Elgin, 28 Or App 545, 559 P2d 1319.

Forms: Instructions to jury as to arrest without warrant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  104-107.

Footnote 91. See Dawkins v Los Angeles, 22 Cal 3d 126, 148 Cal Rptr 857, 583 P2d 711 (where the evidence establishes as a matter of law that the police officers validly detained plaintiff for investigation, an instruction to that effect should have been given).

The jury should receive an instruction defining probable cause. Alvarado v Dodge City, 238 Kan 48, 708 P2d 174.

Footnote 92. Sturman v Golden Beach (Fla App D3) 355 So 2d 453, cert den (Fla) 361 So 2d 836.

Footnote 93. Mitchell v Drake, 172 Ind App 376, 360 NE2d 195.

It would be reversible error to fail to instruct the jury that at the time of the arrest the ordinance for violation of which the plaintiff was arrested was still in effect and that its constitutionality had not yet been specifically determined, although it was later rendered unconstitutional as a result of a United States Supreme Court decision.  Boca Raton v Coughlin (Fla App D4) 299 So 2d 105, wherein an ordinance making possession of obscene material a misdemeanor was found to have been subsequently rendered unconstitutional by the Supreme Court's decision regarding noncriminality of mere private possession of obscene material, Stanley v Georgia,  394 US 557,  22 L Ed 2d 542,  89 S Ct 1243, on remand on other grounds 225 Ga 273, 167 SE2d 756.

Footnote 94. Miller v Jones (CA5 Tex) 534 F2d 1178.

Forms: Instruction to Jury–Officer not liable for proper arrest under valid process.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  77.

Instruction to jury–Probable cause of officer in mistaken-identity arrest under John Doe warant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  78.

Footnote 95. Cooper v Dyke (CA4 Md) 814 F2d 941.

Footnote 96. K-Mart Corp. v Washington, 109 Nev 1180, 866 P2d 274.

Footnote 97. Librach v Litzinger (Mo) 401 SW2d 433.

As to delay in presentment before magistrate, generally, see  §§ 29 et seq.

Forms: Instructions to jury on duty to take prisoner arrested without warrant before magistrate without unnecessary delay.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  119.

Footnote 98. Rice v Mercy Hospital Corp. (Fla App D3) 318 So 2d 436, cert den (Fla) 330 So 2d 726.

As to false imprisonment actions arising out of commitment of mentally ill persons, generally, see  §§ 33-45.

Footnote 99. As to liability of persons procuring, directing, or participating in arrest or imprisonment, generally, see  §§ 38 et seq.

Footnote 1. Greenwell v Canyon Lincoln Mercury (Utah) 575 P2d 688 (where, after defendant's employee told the police not to arrest plaintiff on a charge of theft, the officers arrested plaintiff on their own authority and incarcerated him for offenses committed in their presence, it was error for the court not to instruct the jury to the effect that where an officer makes an arrest on his own authority, and not at the instance of the defendant, the defendant is not liable for any resulting damage).

Forms: Instructions to jury in actions based on instigation of or participation in arrest or imprisonment by private individual.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  56-58.

Footnote 2.  §§ 74 et seq.

Footnote 3.  § 74.

Footnote 4. Generally as to statutes providing for detention of suspected shoplifters, see  §§ 75-78.

Footnote 5. Bly v Skaggs Drug Centers, Inc. (Mo App) 562 SW2d 723.

See also Codner v Toone, 224 Kan 531, 581 P2d 387, holding, however, that failure to give defendants' requested instruction, which was in the language of the statute, was not prejudicial error where the instructions actually given by the court gave defendants even more protection than they were entitled to under the statute.

Forms: Instructions to jury in action for detention by property owner or merchant.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Forms  43-46.

Footnote 6. Moore v Target Stores, Inc. (Okla App) 571 P2d 1236.

Instruction that employer, on reasonable cause, may request police investigation of suspected theft and that a store employee may temporarily detain another person to investigate a theft only upon probable cause accurately stated the law for false imprisonment cases.  Hardy v La Belle's Distrib. Co., 203 Mont 263, 661 P2d 35.

In a customer's false imprisonment suit against a retailer, submission of the retailer's privilege of detention to investigate a possible theft as an instruction rather than as a special issue was not an abuse of discretion; the trial court submitted the claim broadly with appropriate instructions and the charge correctly stated the law.  Sears, Roebuck & Co. v Castillo (Tex) 693 SW2d 374.

Footnote 7. Colonial Stores, Inc. v Scarbrough (Fla App D1) 338 So 2d 1119, approved (Fla) 355 So 2d 1181.

As to distinction between false imprisonment and malicious prosecution, generally, see  § 5.

Footnote 8.  §§ 140 et seq.

Footnote 9. Pimental v Postoian, 121 RI 6, 393 A2d 1097.

As to measure and elements of compensatory damages, generally, see  §§ 145-148.

Forms: Instructions to jury on compensatory damages.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  8.

Footnote 10.  § 146.

Footnote 11. Stewart v Williams, 243 Ga 580, 255 SE2d 699, on remand on other grounds 150 Ga App 539, 258 SE2d 251.

Footnote 12. Pimental v Postoian, 121 RI 6, 393 A2d 1097.

The trial court correctly instructed that probable cause or the good faith of a person making an arrest is admissible to rebut a claim for punitive damages.  Dinmark v Farrier (Ala) 510 So 2d 819.

Forms: Instructions to jury on exemplary or punitive damages where false imprisonment effected with malice.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  9.

Footnote 13. Moore v Target Stores, Inc. (Okla App) 571 P2d 1236 (requested charge allowing jury to find defendant not liable for actual or punitive damages for the acts of other defendants if jury found them to be independent contractors).

Footnote 14. Pimental v Postoian, 121 RI 6, 393 A2d 1097.

Footnote 15. Niles v Big Sky Eyewear, 236 Mont 455, 771 P2d 114 (ovrld in part on other grounds by Sacco v High Country Indep. Press (Mont) 896 P2d 411, 10 BNA IER Cas 1041).

6.  Judgment [138, 139]

In an action against two or more parties liable for the wrong, a judgment may be rendered for or against any or all, which may be reversed as against one or more and sustained as against others. 16   A trial court's refusal to set aside a verdict in a false imprisonment action is entitled to great weight. 17

Footnote 16. See Sparrow v Bromage, 83 Conn 27, 74 A 1070 (where a judgment is recovered against two defendants, the court may set it aside as to one and permit it to stand as against the other, where it clearly appears that the latter performed acts which would have rendered him liable if sued alone).

Footnote 17. Berry v Loiseau, 223 Conn 786, 614 A2d 414.

In cases involving questions of intent, credibility, or state of mind, such as arise in actions for false imprisonment, summary judgment is hardly ever appropriate. 18  While summary judgment may be appropriate on the question of existence of probable cause in a false imprisonment case, 19  or in a case involving an arrest on a warrant, 20  a case should not be taken from jury consideration when there is a substantial dispute in the evidence. 21

Footnote 18. Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284, holding that in an action for false imprisonment of plaintiff who was discharged from her position as a cashier by defendant employer for allegedly stealing $5, issues of credibility, intent, and state of mind were present and the question of probable cause on the part of the security officers in detaining plaintiff created a genuine issue of material fact upon which reasonable minds could differ, precluding summary judgment.

Footnote 19. Marx v Gumbinner (CA11 Fla) 905 F2d 1503.

Footnote 20. Jackson v Smith Sec. Service, Inc. (Tex App Houston (1st Dist)) 786 SW2d 787, supp op (Tex App Houston (1st Dist)) 1990 Tex App LEXIS 2661.

Footnote 21. Penrod v Carter (Utah) 737 P2d 199, 56 Utah Adv Rep 16.

F.  Damages [140-156]

Research References
ALR Digest:  False Imprisonment § 8.5
ALR Index:  False Imprisonment and Arrest
10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  9
 13 Am Jur POF3d 111, Compensatory Damages for False Imprisonment;  22 Am Jur POF2d 445, Aggravated wrongful detention–Malice sufficient to support award of punitive damages

1.  In General [140-144]

Damages in a false imprisonment case are those which flow from the detention. 22   A person injured by conduct that is either intentional or reckless, such as false arrest, is entitled to compensatory damages and is under no duty to mitigate such damages. 23

Where the law provides no legal rule of measurement, assessment of damages is the province of the jury, 24  and its assessment should be set aside only when the verdict is plainly excessive and exorbitant. 25  

One falsely arrested is entitled to at least nominal damages. 26

Footnote 22. Sundholm v Bettendorf (Iowa) 389 NW2d 849.

Footnote 23. Wilson v Walla Walla, 12 Wash App 152, 528 P2d 1006, holding that plaintiff, a customer, who was detained by store detectives who inquired whether payment had been made for items plaintiff had just placed in his automobile was under no duty to submit to the inquiries of the detectives to mitigate damages.

Footnote 24. Hazelwood v Harrah's, 109 Nev 1005, 862 P2d 1189.

In a false imprisonment case, there is no set "legal" measure of damages, that matter being left to the jury's discretion. Wal-Mart Stores v Jones (Ala) 533 So 2d 551.

Footnote 25. Wochek v Foley, 193 Conn 582, 477 A2d 1015.

As to excessiveness of damages, see  § 143.

Footnote 26. Phillips v District of Columbia (Dist Col App) 458 A2d 722.

Where a jury returns verdicts against a master and a servant in different amounts, it has been said to be proper, at least where the intent of the jury apparently was to apportion damages, 27   to enter a judgment in the larger of the two amounts, especially where the master is a corporation, 28  but where the purpose of the jury was to hold the master liable while absolving the servant, the verdict should be overturned and a new trial awarded. 29       

Footnote 27. Goines v Pennsylvania R. Co. (1st Dep't)  3 App Div 2d 307, 160 NYS2d 39, reh den (1st Dep't)  4 App Div 2d 831, 166 NYS2d 303 and later proceeding (1st Dep't)  6 App Div 2d 531, 179 NYS2d 960, reh and app den (1st Dep't)  7 App Div 2d 837, 182 NYS2d 295 and app dismd without op  5 NY2d 711 and app dismd  5 NY2d 1002, 185 NYS2d 257, 158 NE2d 121.

Footnote 28. Aldridge v Fox, 348 Ill App 96, 108 NE2d 139.

Footnote 29. Goines v Pennsylvania R. Co. (1st Dep't)  3 App Div 2d 307, 160 NYS2d 39, reh den (1st Dep't)  4 App Div 2d 831, 166 NYS2d 303 and later proceeding (1st Dep't)  6 App Div 2d 531, 179 NYS2d 960, reh and app den (1st Dep't)  7 App Div 2d 837, 182 NYS2d 295 and app dismd without op  5 NY2d 711 and app dismd  5 NY2d 1002, 185 NYS2d 257, 158 NE2d 121 (action to recover damages for false imprisonment caused by two of defendant railroad company's special policemen, wherein jury, after first attempting to return verdict against railroad but exonerating special police officers, and after being sent back for further deliberations, returned verdict of $8,000 against railroad and one dollar against each of special police officers).

Most cases declare the broad and general rule that a person causing a wrongful imprisonment is liable for all the natural and probable consequences thereof. 30   Where a plaintiff is injured due not only to false imprisonment but also due to another noncompensable cause, only those damages found to be a "natural result" of the false imprisonment are recoverable. 31  

If an arrest was illegal only because it was made before the issuance of a warrant, the plaintiff can recover damages only for detention until the time when the plaintiff was turned over to an officer holding a valid warrant. 32

The independent illegal acts of the officers of the law are not the natural and probable consequences of a false arrest, but the question of whether the action of the magistrate or other officer of the law after the person arrested has been turned over to the proper custodian is the natural and probable consequence of the original unlawful act, is one upon which the authorities conflict, at least in result. 33   It has been held that an arresting officer is liable for damages only up to the time the officer produced the person arrested before a judicial officer, and is not liable thereafter for acts of other persons or for any subsequent confinement upon the order or judgment of the judicial officer, unless the arresting officer directs or urges such acts or imprisonment, or such is the direct result of the arrest. 34  Under this rule, damages for false arrest are to be measured only to the time of arraignment or indictment, whichever comes first, the rationale for this rule being that arraignment or indictment involves an independent evaluation of the grounds for the charges against the defendant, so that detention subsequent to such evaluation, or costs subsequently incurred, cannot be attributed to the earlier improper arrest; the independent, supervening determination of probable cause cutting off the liability of the arrestor. 35        Where, however, there exists such continuity in time and circumstances between an unlawful arrest and the subsequent discharge of the accused as to constitute one continuous unlawful act, the defendant is liable for all the consequences resultant from the false arrest. 36   So, a police officer who arrests without warrant a person whom the police officials desire to interview is answerable in damages for mistreatment of the prisoner by such officials while they are subjecting the prisoner to examination in the absence of the officer. 37

In an action against an officer for excessive force in making an arrest, the plaintiff is entitled to recover for only such mental and physical suffering as resulted from force in excess of what was necessary to effect the arrest or to retain the plaintiff in custody after the arrest was made. 38

Footnote 30. Knickerbocker S. B. Co. v Cusack (CA2 NY) 172 F 358; Westbrook v Hutchison, 195 SC 101, 10 SE2d 145; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13.

Where the damages follow as a consequence of the plaintiff's detention without justification, an award may include those for bodily injuries.  Sindle v New York City Transit Authority,  33 NY2d 293, 352 NYS2d 183, 307 NE2d 245.

Footnote 31. Dupler v Seubert,  69 Wis 2d 373, 230 NW2d 626, holding that since plaintiff's action against two of her superiors at work, such action claiming that they falsely imprisoned her during an interview in which she was fired, rested entirely upon false imprisonment, and no claim was made that the firing itself was tortious or illegal; only those damages found to be a natural result of the false imprisonment were recoverable; emotional harm caused by the firing was noncompensable and had to be distinguished.

Footnote 32. McCullough v Greenfield, 133 Mich 463, 95 NW 532.

Footnote 33. Knickerbocker S. B. Co. v Cusack (CA2 NY) 172 F 358.

Footnote 34. Gisske v Sanders, 9 Cal App 13, 98 P 43.

Footnote 35. Scanlon v Flynn (SD NY) 465 F Supp 32 (applying New York law); Broughton v State,  37 NY2d 451, 373 NYS2d 87, 335 NE2d 310, cert den  423 US 929,  46 L Ed 2d 257,  96 S Ct 277.

Assessment of damages in part for incarceration subsequent to arraignment was improper; such damages must be compensated for by a malicious prosecution claim.  Dabbs v State,  59 NY2d 213, 464 NYS2d 428, 451 NE2d 186.

Footnote 36. Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470; Comisky v Norfolk & W. R. Co., 79 W Va 148, 90 SE 385.

Footnote 37. Ross v Kohler, 163 Ky 583, 174 SW 36.

Footnote 38. Romans v McGinnis, 156 Ky 205, 160 SW 928.

The amount of damages to be awarded in an action for false imprisonment is a question for the jury, and the general rule is that their verdict will not be disturbed on the ground of excessiveness unless it is so flagrantly large as to evince passion, partiality, or corruption. 39    The fact that the amount awarded is larger than the court would have allowed, 40  or that the court doubts that the plaintiff was morally entitled to any verdict, will not make the award excessive. 41   Although there is no measure for compensatory damages in cases of false imprisonment, the amount awarded may be so large as to exceed any compensation which a jury might reasonably allow under the circumstances of the case, 42   and a verdict will be set aside, or a remittitur will be ordered, where the damages awarded are out of all reason and conscience and so disproportionate to the injury sustained that they show that the jury was influenced by passion or prejudice 43   or by a mistaken estimate of the proprieties of the case. 44    A judgment on compensatory damages will not be sustained where the award is so excessive as to shock the judicial conscience, 45  or so exorbitant and shocking to the judicial conscience as to entitle the defendant to a new trial. 46  The question to be asked is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation or whether it so shocks the conscience as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. 47

The courts appear equally reluctant to set aside the verdict of a jury on the ground that the damages awarded are not adequate compensation for the injury received from the false imprisonment, and the general rule is that the verdict will not be set aside on the ground that the damages awarded are too small. 48   However, the verdict will be set aside where the damages awarded are grossly inadequate to the injury sustained. 49

In the jury's attempt to strike a balance between ensuring that important personal rights are not lightly regarded and avoiding extravagant awards bearing little or no relation to the injury involved, length of the confinement is an appropriate factor for the jury to consider. 50 

Footnote 39. Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759; Nelson v Halvorson, 117 Minn 255, 135 NW 818; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; J. C. Penney Co. v Duran (Tex Civ App San Antonio) 479 SW2d 374, writ ref n r e (Oct 4, 1972); Bolton v Vellines, 94 Va 393, 26 SE 847; Comisky v Norfolk & W. R. Co., 79 W Va 148, 90 SE 385.

Verdict of $20,000 was not excessive in action brought by former employee against former employer, where former employer locked employee inside the business and then instigated false report to the police that the spouse of the former employee was vandalizing a motor vehicle.  Taiwo v Vu, 249 Kan 585, 822 P2d 1024.

An appellate court is justified in reversing or granting a new trial on damages only if the verdict is so flagrantly improper as to indicate passion, prejudice, or corruption in the jury; which is not shown solely by the fact that the verdict is large in amount.  Hernandez v Salt Lake, 100 Nev 504, 686 P2d 251.

Annotation: Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest,  48 ALR4th 165.

Footnote 40. Boesch v Kick, 97 NJL 92, 116 A 796.

Footnote 41. Howell v Wysor, 74 W Va 589, 82 SE 503.

Footnote 42. Gomez v Scanlan, 155 Cal 528, 102 P 12; Hogg v Plant, 145 Va 175, 133 SE 759,  47 ALR 308.

Footnote 43. Fotheringham v Adams Exp. Co. (CC Mo) 36 F 252; Cincinnati, N. O. & T. P. R. Co. v Cundiff, 166 Ky 594, 179 SW 615; Herbrick v Samardick & Co., 169 Neb 833, 101 NW2d 488.

A verdict is excessive if it is so large as to be beyond all reason.  Phillips v District of Columbia (Dist Col App) 458 A2d 722.

Damage award of $25,000 was excessive, in the absence of any evidence of hospital or doctor bills, loss of earnings, future medical expenses or permanent injury or disability, in case involving a restaurant customer involved in an altercation with police and the restaurant's manager.  Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147.

The trial court's rejection of the $994,000 jury award was not clearly erroneous, in case involving a department store customer detained outside the store, where the evidence indicated that the plaintiff had returned to performing household chores, there was medical testimony of improvement in the plaintiff's condition and there was expert testimony that the plaintiff's depression was caused by several serious personal events, beside the arrest, suffered by the plaintiff.  Panas v Harakis, 129 NH 591, 529 A2d 976.

Footnote 44. Gadsden General Hospital v Hamilton, 212 Ala 531, 103 So 553,  40 ALR 294.

Footnote 45. Gardner v Federated Dep't Stores, Inc. (CA2 NY) 907 F2d 1348.

Footnote 46. Wagenmann v Adams (CA1 Mass) 829 F2d 196.

Footnote 47. Wochek v Foley, 193 Conn 582, 477 A2d 1015.

Footnote 48. Bergeron v Peyton,  106 Wis 377, 82 NW 291.

Footnote 49. Hoagland v Forest Park Highlands Amusement Co., 170 Mo 335, 70 SW 878.

Footnote 50. Phillips v District of Columbia (Dist Col App) 458 A2d 722.

Award of $25,000 was not excessive for plaintiff's arrest and confinement in a hospital after an altercation at the plaintiff's home, where the plaintiff had not previously been arrested; was subjected to verbal abuse and physical threats; was subsequently unable to hold a part-time job and 7 years later still suffered nightmares about the incident.  Wochek v Foley, 193 Conn 582, 477 A2d 1015.

Award of $225,000 for false imprisonment of 42 days after erroneous arrest did not shock the judicial conscience.  Hernandez v Salt Lake, 100 Nev 504, 686 P2d 251.

Annotation:  48 ALR4th 165.

While a trial court may order remittitur of damages in lieu of a new trial, where there is no conflict in the evidence on damages, a remittitur order is suspect on review unless the amount awarded in damages by the jury is so excessive as to suggest passion or prejudice. 51   To avoid a violation of the constitutional right to a trial by jury, however, only when there is no genuine issue of material fact may a court impose a remittitur without offering the prevailing party a new trial. 52   A remittitur order, if too drastic, may constitute an abuse of discretion, as where a court orders remittitur of 80 percent of the damage award. 53

An evidentiary challenge on appeal to the trial court's reduction of damages is foreclosed by the plaintiff's acceptance of remittitur. 54

An order restoring the jury verdict, which the trial court had found excessive, as a result of failure of the defendant to file a required escrow on appeal was reversible error. 55

Footnote 51. Hazelwood v Harrah's, 109 Nev 1005, 862 P2d 1189.

Award of $10,000 for a 3-to 5-hour detention by police was excessive, and the trial court did not abuse its discretion in finding it such and directing remittitur.  Phillips v District of Columbia (Dist Col App) 458 A2d 722.

Footnote 52. Phillips v District of Columbia (Dist Col App) 458 A2d 722.

Footnote 53. Wochek v Foley, 193 Conn 582, 477 A2d 1015.

Footnote 54. Gardner v Federated Dep't Stores, Inc. (CA2 NY) 907 F2d 1348.

Footnote 55. Ross v Meyers (CA6 Ohio) 883 F2d 486, reh den (CA6) 1989 US App LEXIS 16985, reh den (CA6) 1990 US App LEXIS 419.

2.  Measure and Elements of Compensatory Damages [145-148]

The general rule in personal tort action that the plaintiff is entitled to recover such a sum as will be a fair and just compensation for the injuries sustained and that the recoverable damages are limited to such compensation, in the absence of circumstances justifying an award of exemplary or punitive damages, 56   applies in actions for false imprisonment. 57   The mere unlawful detention of a person constitutes a basis of recovery of at least nominal damages; 58  but an award of only nominal damages may be insufficient and erroneous where the facts proved indicate a right to greater damages. 59  Plaintiff is limited, however, to nominal damages where a legal right is to be vindicated from an invasion that has produced no actual present loss of any kind. 60  

The damages recoverable in any case must be susceptible of ascertainment with a reasonable degree of certainty, 61   and damages for false imprisonment which are merely speculative are not recoverable. 62   It is nonetheless recognized, however, that there is no legal measure of damages in false imprisonment cases, damage ascertainment being left to the jury's discretion. 63

Elements of injury to the person imprisoned which are properly included in the recovery comprise injury to the person and physical suffering, 64   mental suffering and humiliation; 65   loss of time or earnings and interruption of business; 66      reasonable and necessary expenses incurred; 67     injury to reputation; 68    and, generally, the deprivation of any right caused by the loss of liberty, 69    such as plaintiff's loss of the family's company during the period of arrest. 70   The fact that expenses incurred have not been paid does not affect the rule allowing recovery of expenses. 71

Footnote 56. See 22 Am Jur 2d,  Damages § 27.

Footnote 57. Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759; Goodell v Tower, 77 Vt 61, 58 A 790.

As to interest on damages, generally, see 22 Am Jur 2d,  Damages §§ 648 et seq.

Practice References Compensatory Damages for False Imprisonment,  13 Am Jur POF3d 111.

Footnote 58. George v Long Beach (CA9 Cal) 973 F2d 706, 92 CDOS 7892, 92 Daily Journal DAR 12847, cert den (US)  122 L Ed 2d 664,  113 S Ct 1269; Marshall v District of Columbia (Dist Col App) 391 A2d 1374; Hoagland v Forest Park Highlands Amusement Co., 170 Mo 335, 70 SW 878; Worden v Davis, 195 NY 391, 88 NE 745; Noce v Ritchie, 109 W Va 391, 155 SE 127.

Where plaintiff offers no proof of damages and it would be difficult, if not impossible, to estimate his damages on a pecuniary basis, he will be held entitled to nominal damages on reversal by an appellate court of a judgment for the defendant. Mason v Wrightson, 205 Md 481, 109 A2d 128.

Footnote 59. See, for example, Schulz v Lamb (CA9 Nev) 591 F2d 1268 (applying Nevada law), holding that an award of token damages of only $1 was in error, the court stating that arrest, handcuffing, transportation to jail, processing, and incarceration for some 4 1/2 hours in a lockup called for some compensation for embarrassment, humiliation, and inconvenience to a 27-year-old college graduate never before arrested, even if testimony as to long-lasting mental effects were entirely discounted.

Footnote 60. Salo v Smith, 25 Cal App 295, 143 P 322; Miller v Belmar, 5 NJ Misc 224, 135 A 795; Clements v Canon, 170 Okla 340, 40 P2d 640; Duggan v Baltimore & O. R. Co., 159 Pa 248, 28 A 182; Wegner v Risch,  114 Wis 270, 90 NW 168.

Footnote 61. 22 Am Jur 2d,  Damages § 486.

Footnote 62. Spain v Oregon W. R. & N. Co., 78 Or 355, 153 P 470.

But see Jeffers v Heavrin (CA6 Ky) 10 F3d 380 (even though damages may not generate paid receipts or documented out-of-pocket expenses, they are not speculative and may be relatively easy to compute).

Footnote 63. Wal-Mart Stores v Jones (Ala) 533 So 2d 551.

Footnote 64. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Dogarin v Connor, 6 Ariz App 473, 433 P2d 653 (assault and battery); S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Lemmon v King, 95 Kan 524, 148 P 750; Ross v Kohler, 163 Ky 583, 174 SW 36; Johnson v Supersave Mkts., 211 Mont 465, 686 P2d 209; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; S. H. Kress & Co. v Musgrove, 153 Va 348, 149 SE 453; Woodard v Albany (3d Dep't)  81 App Div 2d 947, 439 NYS2d 701.

Footnote 65.  § 146.

Footnote 66. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Simon v United States (CA5 La) 711 F2d 740; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Ross v Kohler, 163 Ky 583, 174 SW 36; Guion v Associated Dry Goods Corp. (Lord & Taylor Div.) (1st Dep't)  56 App Div 2d 798, 393 NYS2d 8, affd  43 NY2d 876, 403 NYS2d 465, 374 NE2d 364; Duggan v Baltimore & O. R. Co., 159 Pa 248, 28 A 182; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; Gibson Discount Center, Inc. v Cruz (Tex Civ App El Paso) 562 SW2d 511, writ ref n r e (May 17, 1978); Goodell v Tower, 77 Vt 61, 58 A 790.

Inability of the plaintiff to accept a job in another state due to pendency of the criminal case resulting from allegedly false arrest did not flow from the detention and damages therefor were not recoverable in false arrest action.  Sundholm v Bettendorf (Iowa) 389 NW2d 849.

Footnote 67. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Nelson v Kellogg, 162 Cal 621, 123 P 1115 (doctors' bills); S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; Bolton v Vellines, 94 Va 393, 26 SE 847.

In an action against a department store for false imprisonment and malicious prosecution stemming from the arrest and prosecution of the plaintiff for the alleged theft of a hat, of which charge the plaintiff was acquitted at a criminal trial, plaintiff's recoverable actual damages would include the costs of his bail bond and defense at the criminal trial.  Gibson Discount Center, Inc. v Cruz (Tex Civ App El Paso) 562 SW2d 511, writ ref n r e (May 17, 1978).

As to recovery of attorneys' fees, see  § 148.

Footnote 68. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13.

Footnote 69. Gardner v Federated Dep't Stores, Inc. (CA2 NY) 907 F2d 1348; George v Long Beach (CA9 Cal) 973 F2d 706, 92 CDOS 7892, 92 Daily Journal DAR 12847, cert den (US)  122 L Ed 2d 664,  113 S Ct 1269; Phillips v District of Columbia (Dist Col App) 458 A2d 722; S. H. Kress & Co. v Powell, 132 Fla 471, 180 So 757; Westbrook v Hutchison, 195 SC 101, 10 SE2d 145.

Footnote 70. Gibson Discount Center, Inc. v Cruz (Tex Civ App El Paso) 562 SW2d 511, writ ref n r e (May 17, 1978).

Footnote 71. Nelson v Kellogg, 162 Cal 621, 123 P 1115.

Mental suffering, including fright, shame, and mortification from the indignity and disgrace, consequent upon an illegal detention, is usually considered an injury for which compensation may be made in an action for false arrest or false imprisonment. 72   

The fact that no physical hurt or injury was inflicted on one complaining of false imprisonment or arrest has been said not to be grounds for denying recovery of reasonable compensation for mental suffering; 73  however, where a shoplifter detention statute limits recovery to compensatory damages where the merchant acted with probable cause, the contrary result has been reached. 74  

Humiliation, shame, and fright are elements to be considered in assessing mental suffering. 75   The jury has considerable discretion in determining the amount of damages where a legal restraint is accompanied by circumstances causing humiliation, shame and public disgrace. 76

Evidence, such as character evidence, which would not be admissible on other issues, is admissible on the question of mental suffering and humiliation. 77  

Footnote 72. Scanlon v Flynn (SD NY) 465 F Supp 32; Boies v Raynor, 89 Ariz 257, 361 P2d 1; Gomez v Scanlan, 155 Cal 528, 102 P 12; Davis v Seeley, 91 Iowa 583, 60 NW 183; Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759; Mumford v Starmont, 139 Mich 188, 102 NW 662; Herbrick v Samardick & Co., 169 Neb 833, 101 NW2d 488; Budgar v State,  98 Misc 2d 588, 414 NYS2d 463; Westbrook v Hutchison, 195 SC 101, 10 SE2d 145; Little Stores v Isenberg, 26 Tenn App 357, 172 SW2d 13; Hepworth v Covey Bros. Amusement Co., 97 Utah 205, 91 P2d 507.

Where the record disclosed that plaintiff was wrongfully imprisoned for murder for about 4 years, of which approximately 2 years was in a state penitentiary; that he was on "death row" for 2 months and 5 days; that on the day set for his execution his head was shaved, he was served his "last meal" and was shown the coffin in which he was to be buried; that he testified that he had a wife and 2 children at the time of his imprisonment and that he never got to see them, and that he worried about them greatly; and that after the death cell experience it was hard for him to remember because of the mental anguish he had suffered; it was held that the trial court's finding that he suffered extreme mental pain and suffering as a proximate result of his erroneous conviction and imprisonment; and that he sustained damages in the sum of $20,000, was sufficiently supported by the record.  State v Vargas (Tex Civ App San Antonio) 419 SW2d 926, writ ref n r e (Tex) 424 SW2d 416, rehg of writ of error overr (Mar 6, 1968).

Footnote 73. J. C. Penney Co. v Duran (Tex Civ App San Antonio) 479 SW2d 374, writ ref n r e (Oct 4, 1972); McDonald v Henderson (Tex Civ App) 250 SW 463.

An essential part of the injury done by a false arrest is the mental anguish it causes the victim, including the shame and humiliation to which the injured party has been wrongfully subjected; which recovery is not conditioned on proof of physical manifestations of such suffering.  Kraft v Bettendorf (Iowa) 359 NW2d 466.

Where there is evidence of substantial invasion of a legal interest which causes a significant impact on the person of the plaintiff, emotional distress is compensable without showing physical or mental injury, including evidence of depression and withdrawal; post-traumatic stress disorder and personality change affecting marriage.  Niles v Big Sky Eyewear, 236 Mont 455, 771 P2d 114 (ovrld on other grounds in part by Sacco v High Country Indep. Press (Mont) 896 P2d 411, 10 BNA IER Cas 1041).

Courts will decide, on a case by case basis, if emotional distress is compensable in the absence of a physical injury, looking at whether the tortious conduct results in a substantial invasion of a legally protected interest and causes a significant impact on the person of the plaintiff.  Johnson v Supersave Mkts., 211 Mont 465, 686 P2d 209.

Footnote 74. See Tumbarella v Kroger Co., 85 Mich App 482, 271 NW2d 284; Mosley v Federals Dep't Stores, Inc., 85 Mich App 333, 271 NW2d 224.

For general discussion of such statutes, see  §§ 75-78.

Footnote 75. J. C. Penney Co. v Duran (Tex Civ App San Antonio) 479 SW2d 374, writ ref n r e (Oct 4, 1972).

Mental suffering damages are recoverable for damages related to public embarassment and humiliation which flow directly from the plaintiff's false imprisonment.  Arlan v Cervini (RI) 478 A2d 976.

Footnote 76. Washington v Farlice (2nd Dist) 1 Cal App 4th 766, 2 Cal Rptr 2d 607, 91 Daily Journal DAR 15105.

Footnote 77. Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147.

The scope of damages recoverable goes beyond those already actually suffered.  The general rule that in an action for personal torts future damages to the injured person are an element of recovery, where there is reasonable certainty that they will result, 78   applies to actions for false imprisonment. 79  There is insufficient evidence to warrant submission to the jury of a damage claim for future lost wages, absent any showing that such consequences are nonspeculative and reasonably certain. 80   Recovery of damages for loss of earning capacity has been precluded in the absence of expert testimony. 81

Footnote 78. See 22 Am Jur 2d,  Damages §§ 675 et seq.

Footnote 79. Winters v Campbell, 148 W Va 710, 137 SE2d 188.

Footnote 80. Curry v Giant Food Co. (Dist Col App) 522 A2d 1283.

Footnote 81. Panas v Harakis, 129 NH 591, 529 A2d 976.

It has generally been held or recognized that in an action for false imprisonment or arrest, the plaintiff may recover as an element of damages attorneys' fees incurred as a result of the unlawful imprisonment or arrest in question. 82   The plaintiff's right to recover attorneys' fees as an element of damages ordinarily extends to attorneys' services received by the plaintiff for his discharge or release from imprisonment or restraint. 83    However, the courts are not altogether in agreement as to whether the plaintiff is entitled to recover attorneys' fees incurred to defend against a prosecution or action instituted against him or her in connection with the false imprisonment or arrest in question.  In some cases, the plaintiff was allowed to recover attorneys' fees incurred for this kind of service. 84    However, in those jurisdictions following the rule that where a plaintiff successfully establishes liability for false imprisonment damages will be measured only to the time of arraignment or indictment, whichever comes first, 85   it necessarily follows that such damages will not include attorneys' fees expended in the subsequent defense of the criminal prosecution. 86   It has been said, in this connection, that such damages are properly attributable to the tort of malicious prosecution, and that the reason for the rule is that an action for false imprisonment redresses the violation of plaintiff's freedom of movement and not freedom from unjustifiable litigation, so that attorneys' fees are not proximate after arraignment or indictment and hence not recoverable.  Consequently, when malicious prosecution has not been alleged or established, the plaintiff will be limited to those legal fees incurred up to and including the evaluation by a neutral body that the charges are warranted. 87   It has also been held that the plaintiff in an action for false imprisonment or arrest is not entitled to recover attorneys' fees incurred in defending against a prosecution or action instituted in connection with the false imprisonment or arrest in question where the plaintiff has been discharged or released from imprisonment or restraint at the time of such services. 88  

In order to recover attorneys' fees as an element of damages in an action for false imprisonment or arrest, the plaintiff must ordinarily prove the legal services rendered and the amount paid or obligated to be paid. 89   It must also be shown that the attorneys' fees sought to be recovered were proximately and necessarily caused by the act complained of. 90     Attorneys' fees that may be recoverable as an element of damages in this connection must be reasonable under the circumstances. 91 

Footnote 82. Rosario v State,  51 Misc 2d 790, 274 NYS2d 81, revd on other grounds (3d Dep't)  33 App Div 2d 122, 305 NYS2d 574, affd  36 NY2d 901, 372 NYS2d 647, 334 NE2d 596; Vallon v Ramage, 196 Misc 740, 93 NYS2d 56; Moyer v Cordell, 204 Okla 255, 228 P2d 645; Lane v Collins,  29 Wis 2d 66, 138 NW2d 264.

Plaintiff was entitled to damages for expenses incurred in securing discharge from restraint, including a reasonable attorney fee.  Phillips v District of Columbia (Dist Col App) 458 A2d 722.

Stating that it was error to grant defendant's motion to strike from the complaint the allegation that the plaintiff was required to furnish a bond and employed an attorney to represent and defend her, the court in Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337, pointed out that any reasonable expense necessarily incurred in procuring her release was an element of damages in the event plaintiff's cause of action for false imprisonment was sustained.

Annotation: Attorneys' fees as element of damages in action for false imprisonment or arrest, or for malicious prosecution,  21 ALR3d 1068 § 3[a].

Footnote 83. Fidelity & Deposit Co. v Adkins, 222 Ala 17, 130 So 552; Neves v Costa, 5 Cal App 111, 89 P 860; Nastasi v State, 194 Misc 449, 86 NYS2d 635, revd on other grounds 275 App Div 524, 90 NYS2d 377, affd 300 NY 473, 88 NE2d 658; Warner v State, 189 Misc 51, 68 NYS2d 60, revd on other grounds 272 App Div 954, 71 NYS2d 559, revd on other grounds 297 NY 395, 79 NE2d 459, reh gr 297 NY 865, 79 NE2d 271; S. H. Kress & Co. v Roberts, 143 Va 71, 129 SE 244.

In claim against state for false arrest and imprisonment, trial judge properly awarded claimant $250 for counsel fees in connection with habeas corpus proceeding to obtain release from jail.  Casler v State (4th Dep't)  33 App Div 2d 305, 307 NYS2d 695.

Where the plaintiff in an action for damages was wrongfully arrested and his place of business closed, it was held in Moyer v Cordell, 204 Okla 255, 228 P2d 645, that he was entitled to the recovery of $20 paid by him to his attorney in connection with his false arrest and his release from jail on bond.

Annotation:  21 ALR3d 1068 § 7.

Footnote 84. Worden v Davis, 195 NY 391, 88 NE 745; Maracle v State,  50 Misc 2d 348, 270 NYS2d 439; Simanton v Caldbeck, 96 Vt 523, 121 A 411.

In action for false imprisonment and malicious prosecution, plaintiff was entitled to reimbursement of $500 incurred as a result of defending a charge of disorderly conduct where plaintiff was arrested by state trooper after blowing the horn and shaking a fist at the trooper who made a sudden U-turn in front of him, and then throwing his insurance card at the trooper.  Budgar v State,  98 Misc 2d 588, 414 NYS2d 463.

Courts so holding, it has been noted, take the more practical view that a person falsely arrested and charged will thereafter opt to defend himself on the assumption that the foundations of the prosecution are valid, rather than take the risks of disregarding those proceedings in reliance upon a subsequent ruling that they were void at the outset, while courts denying recovery proceed on the theoretical principle that all actions arising from an initial invalid arrest are void and that therefore any defense undertaken in such proceedings is wholly voluntary and hence not recoverable. Berberian v Mitchell, 115 RI 149, 341 A2d 56.

Footnote 85.  § 142.

Footnote 86. Broughton v State,  37 NY2d 451, 373 NYS2d 87, 335 NE2d 310, cert den  423 US 929,  46 L Ed 2d 257,  96 S Ct 277; Laskowski v County of Nassau (2d Dep't)  57 App Div 2d 888, 394 NYS2d 442.

Although plaintiff could not recover attorney fees incurred while defending underlying criminal action, plaintiff was entitled to expenses incurred in securing discharge from restraint, including reasonable attorney's fees.  Barnes v District of Columbia (Dist Col App) 452 A2d 1198.

See also Berberian v Mitchell, 115 RI 149, 341 A2d 56; where, although the court held that reasonable legal fees shown to have been incurred in a person's defense against criminal prosecution directly resulting from his false arrest may be includible among the natural and probable consequences of that wrong and hence may be recoverable as damages, expressly reserved for a later case the question whether the intervention of indictment or other substantial proceedings between a person's unlawful arrest and his later prosecution would compel a different result.

Footnote 87. Broughton v State,  37 NY2d 451, 373 NYS2d 87, 335 NE2d 310, cert den  423 US 929,  46 L Ed 2d 257,  96 S Ct 277.

Footnote 88. Fidelity & Deposit Co. v Adkins, 222 Ala 17, 130 So 552; Miami Beach v Bretagna (Fla App D3) 190 So 2d 364,  21 ALR3d 1064.

Footnote 89. Smith v Bryson (Tex Civ App) 33 SW2d 268, writ dism w o j (wherein the court sustained the defendant's assignment of error regarding the trial court's instructions to the jury authorizing them to consider attorneys' fees paid by the plaintiff to secure his release from jail, on the ground that the same was not warranted by the evidence).

Annotation:  21 ALR3d 1068 § 4.

Footnote 90. Nelson v Kellogg, 162 Cal 621, 123 P 1115; Zimmerman v Knox, 34 Kan 245, 8 P 104; Powell v State,  19 Misc 2d 9, 191 NYS2d 846; Berberian v Mitchell, 115 RI 149, 341 A2d 56.

In an action to recover damages suffered by the plaintiffs as the result of criminal proceedings instituted and prosecuted against them by the defendants, where at the trial the plaintiffs had shown that they were arrested, held in custody for several hours immediately prior to and after the preliminary hearing, and required to post bail, that they were subjected to a 3-day criminal trial on charges amounting to felonies, and that each paid $1,250 as attorneys' fees; the court in Biggans v Hajoca Corp. (DC Pa) 94 F Supp 593, affd (CA3 Pa) 185 F2d 982, denying defendant's motion to set aside verdicts for the plaintiffs and noting that if plaintiffs were to recover for loss other than general damages, such loss must be established by proof and shown to be the natural and proximate result of the criminal proceedings, held that with the exception of the physical harm and loss of business, it could not be said that the plaintiffs had failed to offer evidence from which the jury could allow compensatory damages in addition to the amount of the attorneys' fees.

Annotation:  21 ALR3d 1068 § 5.

Footnote 91. Tutwiler Coal, Coke & Iron Co. v Tuvin, 158 Ala 657, 48 So 79; Berberian v Mitchell, 115 RI 149, 341 A2d 56.

Annotation:  21 ALR3d 1068 § 6.

3.  Exemplary or Punitive Damages [149-156]

In most jurisdictions, if an arrest or imprisonment is effected recklessly, oppressively, insultingly, or willfully and maliciously, with a design to oppress and injure, the jury may go beyond the rule of compensation; and, as a punishment to the defendant, assess such additional damages as, in their discretion, they deem proper. 92   Punitive damages have been described as a means of deterring defendants from future conduct, 93  where the defendant's conduct is recklessly indifferent to the rights of others or in intentional or wanton violation of those rights. 94   In some jurisdictions, however, exemplary or punitive damages are not recoverable at all; 95   while in other jurisdictions, they may be recovered only when permitted by express statutory enactment, which may not include an action for false imprisonment. 96  

Even in those jurisdictions in which recovery of punitive damages is generally permitted, such damages will not be allowed in the absence of actual damage sustained by plaintiff. 97   However, where actual damages are shown, the extent thereof is immaterial in order to sustain a recovery of punitive damages. 98   Accordingly, awards of exemplary damages greatly in excess of the award of actual damages have been sustained. 99

Some jurisdictions require proof of all elements of the claim by the higher standard of clear and convincing evidence in order to award punitive damages. 1

Footnote 92. Adair v Williams, 24 Ariz 422, 210 P 853,  26 ALR 278; Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Farish v Smoot (Fla) 58 So 2d 534; National Bond & Inv. Co. v Whithorn, 276 Ky 204, 123 SW2d 263; Heinze v Murphy, 180 Md 423, 24 A2d 917; Hoagland v Forest Park Highlands Amusement Co., 170 Mo 335, 70 SW 878; Jackson v American Tel. & Tel. Co., 139 NC 347, 51 SE 1015; Landseidel v Culeman, 47 ND 275, 181 NW 593,  13 ALR 1339; McAleer v Good, 216 Pa 473, 65 A 934; Cullen v Dickenson, 33 SD 27, 144 NW 656.

Footnote 93. Kay v New Hampshire Democratic Party (CA1 NH) 821 F2d 31.

Footnote 94. Berry v Loiseau, 223 Conn 786, 614 A2d 414.

Punitive damages were warranted where store employee impersonated a police officer, detained a customer for 35 minutes, badgered customer to confess to shoplifting, pressured customer even after determining that no offense had been committed, and forced customer to sign a release from liability.  Rogers v T.J.X. Cos., 329 NC 226, 404 SE2d 664.

Footnote 95. See 22 Am Jur 2d,  Damages § 737.

Footnote 96. Hall v Rice, 117 Neb 813, 223 NW 4,  78 ALR 1421 (ovrld in part on other grounds by Whitcomb v Nebraska State Education Asso., 184 Neb 31, 165 NW2d 99).

Footnote 97. Hoagland v Forest Park Highlands Amusement Co., 170 Mo 335, 70 SW 878; Rogers v T.J.X. Cos., 329 NC 226, 404 SE2d 664; Moyer v Meier, 205 Okla 405, 238 P2d 338,  29 ALR2d 818.

Footnote 98. McConathy v Deck, 34 Colo 461, 83 P 135 (ovrld in part on other grounds by Ress v Rediess, 130 Colo 572, 278 P2d 183); Hoagland v Forest Park Highlands Amusement Co., 170 Mo 335, 70 SW 878; Moyer v Cordell, 204 Okla 255, 228 P2d 645.

Annotation: Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest,  48 ALR4th 165.

Footnote 99. Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122.

Footnote 1. Big B, Inc. v Cottingham (Ala) 634 So 2d 999; Niles v Big Sky Eyewear, 236 Mont 455, 771 P2d 114 (ovrld in part on other grounds by Sacco v High Country Indep. Press (Mont) 896 P2d 411, 10 BNA IER Cas 1041).

Courts have frequently said that "malice" or "malicious" conduct will warrant an award of punitive damages in an action for false arrest or imprisonment, without affording any guidance, by way of definition or example, as to the content of those concepts. 2    Similarly, "implied" or "presumed" malice has been held to sustain such an award, again without any clarification of the circumstances warranting an implication or presumption. 3   On the other hand, some courts have specifically held that the requisite malice may be inferred from want of probable cause for the plaintiff's arrest; 4   or from disregard of, or indifference to, one's rights. 5  

Malice, justifying an award of punitive damages, has also been held to be inferable from evidence of ill will or dislike, 6  disparate treatment of plaintiffs as opposed to others similarly situated; 7  and assault and battery upon the plaintiff. 8   Malice has been held not inferable, however, from a physician's false certification that he had examined the plaintiff prior to the plaintiff's commitment to a mental institution. 9

"Malice," as used in the cases which allow recovery for exemplary damages where the imprisonment is actuated by malice, does not necessarily mean anger, or a malevolent or vindictive feeling toward the plaintiff; but a wrongful act without reasonable excuse is malicious within the legal meaning of the term. 10

Punitive damages will not be allowed where the false imprisonment was brought about in good faith, without malice in fact or in law, and where there is no element of wantonness or oppression. 11     Evidence of good faith is admissible to rebut a claim for punitive damages. 12

Footnote 2. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124; Wells v Adams, 232 Ark 873, 340 SW2d 572 (by implication); Walker v Tucker, 131 Colo 198, 280 P2d 649 (by statute); Karow v Student Inns, Inc. (4th Dist) 43 Ill App 3d 878, 2 Ill Dec 515, 357 NE2d 682,  98 ALR3d 531 (by implication); Guion v Associated Dry Goods Corp. (Lord & Taylor Div.) (1st Dep't)  56 App Div 2d 798, 393 NYS2d 8, affd  43 NY2d 876, 403 NYS2d 465, 374 NE2d 364; Doyle v Douglas (Okla) 390 P2d 871; Skillern & Sons, Inc. v Stewart (Tex Civ App Fort Worth) 379 SW2d 687, writ ref n r e (Oct 7, 1964) and rehg of writ of error overr (Nov 18, 1964); Lane v Collins,  29 Wis 2d 66, 138 NW2d 264.

Annotation: Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment,  93 ALR3d 1109 § 3.

Practice References Aggravated wrongful detention–Malice sufficient to support award of punitive damages.   22 Am Jur POF2d 445.

Forms: Instruction to jury on recovery of exemplary or punitive damages where false imprisonment effected with malice.  10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form  9.

Footnote 3. Maher v Wilson, 139 Cal 514, 73 P 418 (presumed); Alterauge v Los Angeles Turf Club, 97 Cal App 2d 735, 218 P2d 802 (implied); Young v Gormley, 120 Iowa 372, 94 NW 922 (presumed); Hill v S.S. Kresge Co., 202 Mo App 385, 217 SW 997 (implied).

In Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263, an action against a bank and certain of its officials for false arrest and imprisonment, and other wrongful acts, the court concluded that the jury could reasonably infer both from the facts alleged and the evidence that the defendants were guilty of oppression, fraud, or malice, express or implied, and that, therefore, the issue of punitive damages was properly submitted to the jury.

Annotation:  93 ALR3d 1109 § 4[a].

Footnote 4. Standard Oil Co. v Davis, 208 Ala 565, 94 So 754, companion case 209 Ala 493, 96 So 629; Farish v Smoot (Fla) 58 So 2d 534 (by implication); Jackson v Thompson (Mo App) 188 SW2d 853.

In affirming a verdict for punitive damages in an action for false imprisonment, the court, in Oliver v Kessler (Mo App) 95 SW2d 1226, rejected the defendants' contention that there was no showing of malice on the part of the defendants, and that the trial court therefore erred in commissioning the jury to award punitive damages on a finding of malice.  The court declared that malice was a question of fact for the jury, and was generally inferred from a want of probable cause, and that the requisite showing had been made by the plaintiff to sustain the award.

Appropriate standard for determining availability of punitive damages is "malice in fact" or "actual malice," which cannot be implied from the absence of probable cause in effecting the plaintiff's arrest.  McFarland v Skaggs Cos. (Utah) 678 P2d 298 (among conflicting authorities on other grounds noted in Miskin v Carter (Utah) 761 P2d 1378, 90 Utah Adv Rep 19).

Annotation:  93 ALR3d 1109 § 4[b].

Footnote 5. Birmingham Ledger Co. v Buchanan, 10 Ala App 527, 65 So 667, cert den 191 Ala 659, 66 So 1008; Wrains v Rose (Fla App D2) 175 So 2d 75; Garvis v K Mart Discount Store (Mo App) 461 SW2d 317.

While the good faith of an arresting officer, in the sense of absence of malice, does not by itself relieve the officer from liability for compensatory damages for false imprisonment because good faith implies due diligence and the failure to exercise ordinary care is inconsistent with good faith; a showing of malice or of conduct demonstrating reckless disregard of the rights of others is required to support an award of punitive damages for such false imprisonment.  Robinson v Winston-Salem, 34 NC App 401, 238 SE2d 628.

In an action against a department store for false imprisonment and malicious prosecution stemming from the arrest and prosecution of the plaintiff for the alleged theft of a hat, of which charge the plaintiff was acquitted at a criminal trial, exemplary damages were properly recoverable on the grounds that the evidence reflected malice and that the defendant's employees acted without regard to the rights of the plaintiff where the police were called even though three people stated that the hat had been bought at an earlier date; where the hat itself evidenced wear and that it had been used for a period of time; where, even when confronted at trial with a sales receipt showing that the hat had been bought and paid for a month prior to the incident, the defendant's security agent still stated that she thought the plaintiff had stolen the hat and where the defendant's employees never acknowledged the possibility of an honest mistake or that they should have further investigated before filing theft charges on merchandise valued at less than $5.  Gibson Discount Center, Inc. v Cruz (Tex Civ App El Paso) 562 SW2d 511, writ ref n r e (May 17, 1978).

Annotation:  93 ALR3d 1109 § 4[d].

Footnote 6. Vandermeer v Pacific Northwest Development Corp., 274 Or 221, 545 P2d 868 (citizen's arrest for minor infraction held probative of malice).

Footnote 7. O'Brien v Eugene Chemical Exports, Inc., 63 Or App 284, 664 P2d 1106.

Footnote 8. Altman v Knox Lumber Co. (Minn App) 381 NW2d 858.

Footnote 9. Di Giovanni v Pessel, 55 NJ 188, 260 A2d 510.

Footnote 10. Fotheringham v Adams Exp. Co. (CC Mo) 36 F 252; Farish v Smoot (Fla) 58 So 2d 534; Winegar v Chicago, B. & Q. R. Co. (Mo App) 163 SW2d 357; Jones v Hebdo, 88 W Va 386, 106 SE 898.

Footnote 11. Cincinnati, N. O. & T. P. R. Co. v Cundiff, 166 Ky 594, 179 SW 615; Heinze v Murphy, 180 Md 423, 24 A2d 917; Gamble v Keyes, 43 SD 245, 178 NW 870.

Malice authorizing punitive damages cannot be predicated on the mere fact that hospital authorities, under a mistaken view of their rights, detained a patient for a few hours to compel payment of the bill.  Gadsden General Hospital v Hamilton, 212 Ala 531, 103 So 553,  40 ALR 294.

Claim for punitive damages will be dismissed where there is no showing that the wrong complained of was actuated by evil and reprehensible motives, duration of imprisonment is brief and there is no substantial mental or physical injury.  Hollender v Trump Village Cooperative (2d Dep't)  97 App Div 2d 812, 468 NYS2d 683.

Footnote 12. Dinmark v Farrier (Ala) 510 So 2d 819.

Various rules have been expressed by the courts with respect to the role of actual or express malice, in the common-law sense of ill will or hostility, as a basis for an award of punitive damages in an action for false arrest or imprisonment.  Some courts have held that only express or actual malice would warrant an award of punitive damages in an action for false arrest or imprisonment. 13    Moreover, by stating rules which included actual malice as one of several states of mind that would support an award of punitive damages, many courts have indicated that actual malice was a sufficient basis therefor. 14   Other courts have expressly held that proof of actual malice was not necessary for recovery of punitive damages. 15   

In an action for false arrest against police officer who arrested individual charged with slapping the officer's wife prior to marriage, under the mistaken belief that unrelated capias issued nearly 33 months later authorized the arrest, the jury was properly instructed that punitive damages could be awarded if they found that officer acted with actual malice or in such a reckless or wanton manner as to amount to malice, and the additional instruction (to which no objection was made) that officer's asserted good faith in acting on capias was only one factor to be considered in the determination of whether he acted with malice became the law of the case for purposes of appeal, so that the trial court erred in granting a new trial on the asserted basis that officer's reliance on capias precluded malice, and a jury verdict would be reinstated.  Pimental v Postoian, 121 RI 6, 393 A2d 1097.

Annotation: Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment,  93 ALR3d 1109 § 6.

Footnote 14. Williams v Carolina Coach Co. (DC Va) 111 F Supp 329, affd (CA4 Va) 207 F2d 408 (by implication); Kroger Grocery & Baking Co. v Waller, 208 Ark 1063, 189 SW2d 361; Parrott v Bank of America Nat'l Trust & Sav. Asso., 97 Cal App 2d 14, 217 P2d 89,  35 ALR2d 263; Hollywood v Coley (Fla App D4) 258 So 2d 828; Darlow v State, 207 Misc 124, 137 NYS2d 69 (recklessness that betokens vindictiveness); Nappi v Wilson (Franklin Co) 22 Ohio App 520, 4 Ohio L Abs 766, 155 NE 151; Vandermeer v Pacific Northwest Development Corp., 274 Or 221, 545 P2d 868.

Annotation:  93 ALR3d 1109 § 9.

Footnote 15. Farish v Smoot (Fla) 58 So 2d 534; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Helming v Adams (Mo App) 509 SW2d 159; Stevens v O'Neill, 51 App Div 364, 64 NYS 663, affd 169 NY 375, 62 NE 424; Nappi v Wilson (Franklin Co) 22 Ohio App 520, 4 Ohio L Abs 766, 155 NE 151.

Distinguishing actions involving torts arising out of a contractual relationship, in which actual malice in the common-law sense of spite, hatred, or animosity was required to be shown to recover punitive damages, the court, in General Motors Corp. v Piskor, 281 Md 627, 381 A2d 16,  93 ALR3d 1097, held that such malice was not required in an action, such as that before it, for false imprisonment and assault which, the court stated, were torts in the "purest sense" of that term.  The action was brought by an employee of the defendant automobile manufacturer, who had been detained and searched by the defendant's security personnel to ascertain whether he had stolen certain items from one of the defendant's production lines.  The defendant claimed that the detention and search were authorized by an express plant rule which was a part of the employment contract.  The court held, however, that, be that as it may, there was no such direct relationship between the defendant's tortious conduct and the employment contract as would justify the conclusion that the tort arose out of the contractual relationship.

Annotation:  93 ALR3d 1109 § 8.

States of mind other than malice or actual malice have been held to justify an award of punitive damages in an action for false arrest or imprisonment.  Thus, some courts have spoken of willful, wanton, reckless, or intentional misconduct; 16    or of bad faith in making or instigating an arrest. 17    Punitive damages have also been allowed where an arrest was made with the knowledge that it was in violation of law or a court order. 18  

Generally, the courts, either by not expressing any contrary view, or by including improper motive or evil intent in an enumeration of states of mind warranting an award of punitive damages, have indicated that such motive or intent is sufficient, but not required, to justify an award of punitive damages. 19    

Some courts have indicated that more than one of the categories of the foregoing mental states must be present to warrant an award of punitive damages in an action for false arrest or imprisonment. 20  

Footnote 16. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124 (wanton); Atkinson v Dixie Greyhound Lines, Inc. (CA5 Miss) 143 F2d 477, cert den  323 US 758,  89 L Ed 607,  65 S Ct 92 (wanton or willful applying Mississippi law); Fotheringham v Adams Exp. Co. (CC Mo) 36 F 252 (willful, wanton, or reckless); Bujaki v Egan (DC Alaska) 237 F Supp 822 (willful); Brown v Evans (CC Nev) 8 Sawy 488, 17 F 912, affd  109 US 180,  27 L Ed 898,  3 S Ct 83 (wanton recognizing rule).Kroger Grocery & Baking Co. v Waller, 208 Ark 1063, 189 SW2d 361 (wanton or willful); Hollywood v Coley (Fla App D4) 258 So 2d 828 (willful); Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192 (wanton or willful); General Motors Corp. v Piskor, 277 Md 165, 352 A2d 810 (wanton recognizing rule); Garvis v K Mart Discount Store (Mo App) 461 SW2d 317 (wrongful act done intentionally and without just cause or excuse); Di Giovanni v Pessel, 55 NJ 188, 260 A2d 510 (reckless indifference to consequences recognizing); Guion v Associated Dry Goods Corp. (Lord & Taylor Div.),  43 NY2d 876, 403 NYS2d 465, 374 NE2d 364 (wanton by implication); Guion v Associated Dry Goods Corp. (Lord & Taylor Div.) (1st Dep't)  56 App Div 2d 798, 393 NYS2d 8, affd  43 NY2d 876, 403 NYS2d 465, 374 NE2d 364 (wanton and reckless); Selden v Albany (3d Dep't)  50 App Div 2d 975, 376 NYS2d 46 (willful or wanton); Doyle v Douglas (Okla) 390 P2d 871 (wanton); Travelers Indem. Co. v Hoard, 47 Tenn App 565, 340 SW2d 260 (willful); Big Town Nursing Home, Inc. v Newman (Tex Civ App Waco) 461 SW2d 195 (intentionally done in violation of plaintiff's rights).

Punitive damages award was justified against officer who arrested individual, whom officer understood to be seeking help, without making an effort to assist the individual or discover whether the complaint was justified; officer's actions displayed a reckless disregard for the rights of others.  Gagnon v Ball (CA2 Conn) 696 F2d 17.

Actual malice need not be proven to make a case for punitive damages; it is sufficient if the imprisonment is willfully, wantonly or oppressively done, to warrant punitive damages. Collins v Straight, Inc. (CA4 Va) 748 F2d 916, 17 Fed Rules Evid Serv 1351.

See also Wal-Mart Stores v Yarbrough, 284 Ark 345, 681 SW2d 359 (state of mind of "conscious indifference" raises a jury question on punitive damages).

Punitive damages are generally allowable where there is a showing that the acts were either willful or malicious or that they were performed in such a way as would indicate a gross neglect or disregard for the rights of the person wronged.  Horton v Union Light, Heat & Power Co. (Ky) 690 SW2d 382.

A judgment for punitive damages was reversed, in Consolidated Sales Co. v Malone (Ky) 530 SW2d 680, an action for false imprisonment, in which the court stated that punitive damages must be premised on one or both of the following two circumstances:  (1) the defendant's conduct was malicious, in that he acted in bad faith, and was not motivated by a belief that he had probable cause to detain the plaintiff, or (2) even though he acted in good faith, his treatment of the plaintiff was grossly in excess of what the circumstances, as the defendant actually believed them to be, reasonably required.

Actual ill will or vindictiveness of purpose is not required, and exemplary damages have frequently been awarded when the imprisonment is accompanied by fraud, recklessness, wantonness, bad faith, oppression, insult, outrage, willful injury or wrongful act without a reasonable excuse or in known violation of law.  Rogers v T.J.X. Cos., 329 NC 226, 404 SE2d 664.

Annotation: Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment,  93 ALR3d 1109 § 11.

Footnote 17. Farish v Smoot (Fla) 58 So 2d 534; Superx Drugs of Kentucky, Inc. v Rice (Ky App) 554 SW2d 903 (by implication); Heinze v Murphy, 180 Md 423, 24 A2d 917; Hadler v Rhyner,  244 Wis 448, 12 NW2d 693.

According to the court in Consolidated Sales Co. v Malone (Ky) 530 SW2d 680, an action for false imprisonment arising out of the plaintiff's arrest and detention on suspicion of shoplifting, punitive damages must be premised either on a showing that the defendant's conduct was malicious, in that he acted in bad faith and was not motivated by a belief that he had probable cause to detain the plaintiff or that his treatment of the plaintiff was grossly in excess of what the circumstances, as the defendant actually believed them to be, reasonably required.  Finding that the defendant's security officer acted in good faith in unlawfully arresting the plaintiff and did not mistreat her, the court reversed a judgment for the plaintiff and ordered a new trial, eliminating, however, the question of punitive damages.

In order to recover punitive damages there must be some evidence that the persons making the arrest were acting in bad faith, or that treatment of the person being arrested was grossly in excess of what circumstances reasonably required, as perceived by the persons making the arrest.  Taylor Drugstores, Inc. v Story (Ky App) 760 SW2d 102.

Annotation:  93 ALR3d 1109 § 14.

Footnote 18. Farish v Smoot (Fla) 58 So 2d 534; Greaves v Kansas City Junior Orpheum Co., 229 Mo App 663, 80 SW2d 228; Caudle v Sears, Roebuck & Co., 236 Ala 37, 182 So 461.

No punitive damages will lie where there is no evidence that the defendant knew the confinement to be unlawful at the time it occurred.  Rustici v Weidemeyer (Mo) 673 SW2d 762.

Annotation:  93 ALR3d 1109 § 15.

Footnote 19. Beckwith v Bean,  98 US 266, 8 Otto 266,  25 L Ed 124 (by implication); Curtis v Peerless Ins. Co. (DC Minn) 299 F Supp 429 (malicious motive; Gilmer v Playboy Club of Denver, Inc. (Colo App) 513 P2d 1065; Hammargren v Montgomery Ward & Co., 172 Kan 484, 241 P2d 1192; Beardsley v Soper, 184 App Div 399, 171 NYS 1043 (by implication); Darlow v State, 207 Misc 124, 137 NYS2d 69 (recklessness that betokens improper motive); Vandermeer v Pacific Northwest Development Corp., 274 Or 221, 545 P2d 868; Skillern & Sons, Inc. v Stewart (Tex Civ App Fort Worth) 379 SW2d 687, writ ref n r e (Oct 7, 1964) and rehg of writ of error overr (Nov 18, 1964) (design to oppress and injure).

The trial court's instruction, in an action for false arrest and imprisonment and assault and battery against two police officers, that punitive damages should not be imposed if the jury found that the defendants acted in good faith under an erroneous sense of duty or right, without any intention to oppress or without any actual oppression, was upheld, in Hash v Hogan (Alaska) 453 P2d 468.

In setting aside an award of exemplary damages, the court, in Johnson v Enlow, 132 Colo 101, 286 P2d 630, an action for unlawful arrest and imprisonment against the sheriffs of two counties and their deputies, stated that to justify a recovery of such damages, the act causing the injury must be done with an evil intent and with the purpose of injuring the plaintiff; or with such a wanton and reckless disregard of his rights as to evidence a wrongful motive, and the court found nothing in the record to bring the case before it within this rule.

Annotation:  93 ALR3d 1109 § 16.

Footnote 20. Bujaki v Egan (DC Alaska) 237 F Supp 822 (willfully and maliciously; Shelton v Barry, 328 Ill App 497, 66 NE2d 697 (willfully and maliciously, with design to oppress and injure); Rauma v Lamont, 82 Minn 477, 85 NW 236 (malicious and wanton act); Voltz v Blackmar, 64 NY 440 (willfully and maliciously, with design to oppress and injure); Fittipaldi v Legassie (4th Dep't)  18 App Div 2d 331, 239 NYS2d 792, 53 BNA LRRM 2175, 47 CCH LC ¶ 50849 (willfully and maliciously, with design to oppress and injure); Nappi v Wilson (Franklin Co) 22 Ohio App 520, 4 Ohio L Abs 766, 155 NE 151 (wanton and reckless invasion of rights of another); McAleer v Good, 216 Pa 473, 65 A 934 (wantonly and maliciously).

Annotation:  93 ALR3d 1109 § 17.

It has been held, implied, recognized, or assumed, in cases dealing with the nature of the entity or office as such, that corporations 21  and receivers 22   may be held liable for punitive damages as principals, on account of the wrongful acts of their agents or employees, in actions for false arrest or imprisonment.

On the other hand, it has been held that in the absence of statutory authorization, punitive damages are not available against a municipality, irrespective of the nature of the conduct involved; 23    and that absent evidence of actual malice, wanton conduct or deliberate violence of the agent-shareholder of a corporation, the plaintiff could not recover punitive damages against the corporation, even if the corporation was found to have participated in or ratified its agent/shareholder's actions. 24  

Footnote 21. Craven v Bloomingdale, 171 NY 439, 64 NE 169; Thomas v F. & R. Lazarus & Co. (App, Franklin Co) 3 Ohio Ops 2d 61, 40 Ohio L Abs 29, 57 NE2d 103, motion overr.

Annotation: Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826 § 3.

Footnote 22. Gardner v Martin, 123 Miss 218, 85 So 182,  10 ALR 1054; Comstock v Wells (Mo App) 259 SW 500.

Annotation:  93 ALR3d 826 § 4.

Footnote 23. Stebbins v Washington Metropolitan Area Transit Authority (Dist Col App) 495 A2d 741.

But see Kieninger v New York (2d Dep't)  53 App Div 2d 602, 384 NYS2d 11 (in an action for false imprisonment, malicious prosecution, and assault, the court assumed that, in a proper case, punitive damages may be awarded against a governmental agency but found no factual basis for such an award in the case before it).

Annotation:  93 ALR3d 826 § 5.

Footnote 24. Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147.

The courts have adopted, or rejected, various bases of liability for punitive damages, asserted against a principal in actions for false arrest or imprisonment.  They have agreed, in cases involving corporate or individual principals, that the mere fact that their agent's acts were wrongful is not sufficient to charge the principals with liability for punitive damages; 25  except that some courts have imposed such liability on a corporation when the wrongful acts were committed by managerial or executive employees. 26   

There is a difference of opinion among the courts as to whether, in actions for false arrest or imprisonment, punitive damages may be assessed against a principal on the basis, simply, that the agent's wrongful acts were within the scope or in the course of employment.  Some courts have taken the position that the principal is liable in that situation, 27   while others have adopted the contrary view. 28  

The mere fact that the principal had prior knowledge that the agent would commit the wrongful acts in question has been held or indicated, in actions for false arrest or imprisonment, to be sufficient to warrant an award of punitive damages against the principal, 29   while the fact that such knowledge was lacking has been relied on as a factor, among others, precluding an award of such damages. 30  

Footnote 25. Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821; Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; Craven v Bloomingdale, 171 NY 439, 64 NE 169; Murray v Long I. R. R. Co. (2d Dep't)  35 App Div 2d 579, 313 NYS2d 610, affd  28 NY2d 849, 322 NYS2d 248, 271 NE2d 227 (by implication); S. H. Kress & Co. v Lindley (Tex Civ App) 46 SW2d 379 (by implication).

Annotation: Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826 § 7[a].

Footnote 26. Western Union Tel. Co. v Thomasson (CA4 Va) 251 F 833; Standard Oil Co. v Davis, 208 Ala 565, 94 So 754, companion case 209 Ala 493, 96 So 629; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452; Bingham v Lipman, Wolfe & Co., 40 Or 363, 67 P 98; Baker Co. v Turpin (Tex Civ App) 53 SW2d 154, writ dism w o j.

Annotation:  93 ALR3d 826 § 7[b].

Footnote 27. Standard Oil Co. v Davis, 208 Ala 565, 94 So 754, companion case 209 Ala 493, 96 So 629; Safeway Trails, Inc. v Schmidt (Dist Col App) 225 A2d 317 (applying Maryland law); Peak v W. T. Grant Co. (Mo App) 386 SW2d 685; Moore v Target Stores, Inc. (Okla App) 571 P2d 1236 (false arrest and imprisonment and malicious prosecution by implication); Davis v Chesapeake & O. Ry., 61 W Va 246, 56 SE 400.

̈ Observation: Decision of newspaper and television station was liable for acts of reporters and photographers employed by it who conspired to obtain false arrest of plaintiff where such unlawful acts were done in furtherance of their employer's business; namely, to get news stories and pictures, and products of their unlawful acts were used by employer in publication of news stories; employer was liable for punitive damages for malicious acts of servants even though it had not participated in such acts, nor authorized or ratified such acts.  Odom v Gray (Tenn) 508 SW2d 526.

Annotation:  93 ALR3d 826 § 8[a].

Footnote 28. Reardon v Erie R. Co., 179 App Div 374, 166 NYS 287 (by implication); Kastner v Long Island R. Co., 76 App Div 323, 78 NYS 469 (false arrest and malicious prosecution); Staples v Schmid, 18 RI 224, 26 A 193 (by apparent implication).

Holding that, under New Mexico law, a principal was not liable for the tortious conduct of an employee, even though the employee was acting within the scope of his authority, unless the principal participated in, authorized, or ratified the agent's conduct, and finding no evidence that the defendant finance company, a corporation, had participated in, authorized, or ratified the tortious conduct of its agent in repossessing an automobile, the court, in Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703, an action for the wrongful taking and detention of the vehicle and false imprisonment of the plaintiff, reversed a judgment for punitive damages in the plaintiff's favor.

Annotation:  93 ALR3d 826 § 8[b].

Footnote 29. Schanafelt v Seaboard Finance Co., 108 Cal App 2d 420, 239 P2d 42; Craven v Bloomingdale, 171 NY 439, 64 NE 169.

Annotation:  93 ALR3d 826 § 9[a].

Footnote 30. Alterauge v Los Angeles Turf Club, 97 Cal App 2d 735, 218 P2d 802.

Although the defendant hotel company's assistant manager had apparently authorized the removal from the defendant's hotel by its house detective, and the arrest, at the latter's request, of an aged loiterer, the court in Ft. Worth Hotel Co. v Waggoman (Tex Civ App) 126 SW2d 578, writ dism, an action for false imprisonment, found that the assistant manager was not aware that the house detective would subsequently maliciously cause the arrest of the plaintiff when he offered to furnish bond for the old man, and the court accordingly held that the defendant was not liable for exemplary damages.

Annotation:  93 ALR3d 826 § 9[b]

Liability of one contracting for private police or security service for acts of personnel supplied,  38 ALR3d 1332 § 10.

Courts have frequently expressed the view that a private principal is liable for punitive damages, in an action for false arrest or imprisonment, where the principal authorized or directed, 31   ratified, 32  or participated in 33  the agent's wrongful acts precipitating the litigation.  However, notwithstanding the mutual agency that exists between partners, it has been held that ratification by one partner of a wrongful arrest caused by the other did not warrant assessment of punitive damages against the innocent partner. 34  

In several cases the evidence adduced was held to be sufficient to establish authorization by the principal of the agent's wrongful behavior and, accordingly, to warrant an award of punitive damages against the principal; 35  and in others was found to be insufficient for that purpose. 36   A similar difference in result exists in the courts' holdings with respect to ratification by the principal of the agent's wrongful acts, with the evidence being found sufficient in some cases 37   but not in others. 38    

It has been held that a bonus policy of the principal based upon the number of arrests made by security personnel does not show a prior authorization for a private detective's improper actions, and that without further evidence as to the extent of the rewards or bonuses, the types of arrests for which the awards were given, the administration of the program, or the encouragement given by the management personnel, it cannot be inferred that the bonus policy authorized false arrests and it would be speculation for the jury to conclude that the management had previously authorized malicious acts by its employees. 39    Moreover, the fact of a private detective's retention and promotion several years after the incident giving rise to the cause of action has been held not enough, standing alone, to indicate that the employer had ratified the individual's actions; there must be some additional evidence of approval by the management which tends to prove ratification. 40   

Several courts have held or implied that to hold a principal liable for punitive damages on the basis of ratification of an agent's wrongful act, in an action for false arrest or imprisonment, it must appear that the principal had full knowledge of the nature of the agent's acts at the time of the ratification, 41   while some courts have held the opposite, that is, that such knowledge is not required. 42  

Footnote 31. Great Atlantic & Pacific Tea Co. v Lethcoe (CA4 W Va) 279 F2d 948 (applying West Virginia law); Schanafelt v Seaboard Finance Co., 108 Cal App 2d 420, 239 P2d 42; Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821; Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703; Craven v Bloomingdale, 171 NY 439, 64 NE 169; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452; Morton v Murphy Lumber & Hardware Co. (CP) 46 Ohio Ops 70, 62 Ohio L Abs 245, 102 NE2d 744; Ft. Worth Hotel Co. v Waggoman (Tex Civ App) 126 SW2d 578, writ dism; Virginia Electric & Power Co. v Wynne, 149 Va 882, 141 SE 829 (false arrest and malicious prosecution).

It is undoubtedly the law, the court said, in McInerney v United R. of S. F., 50 Cal App 538, 195 P 958, an action for assault and false imprisonment, that a corporation may become liable in exemplary damages where an act of one of its employees, done in ill will or in actual malice or under circumstances of fraud or oppression, is done under the express direction of its superior officials having power to bind the corporation.

Annotation: Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826 § 10[a].

Footnote 32. Great Atlantic & Pacific Tea Co. v Lethcoe (CA4 W Va) 279 F2d 948 (applying West Virginia law); Alterauge v Los Angeles Turf Club, 97 Cal App 2d 735, 218 P2d 802; Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821; Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703; Craven v Bloomingdale, 171 NY 439, 64 NE 169; Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452; Fitscher v Rollman & Sons Co. (Hamilton Co) 31 Ohio App 340, 167 NE 469; Morton v Murphy Lumber & Hardware Co. (CP) 46 Ohio Ops 70, 62 Ohio L Abs 245, 102 NE2d 744; K-Mart No. 4195 v Judge (Tex Civ App Beaumont) 515 SW2d 148, writ dism w o j (Feb 26, 1975); Ft. Worth Hotel Co. v Waggoman (Tex Civ App) 126 SW2d 578, writ dism; Hogg v Plant, 145 Va 175, 133 SE 759,  47 ALR 308.

Evidence that a restaurant manager owned fifty percent of the stock of the restaurant was a sufficient showing that the corporation participated in or ratified the manager-owner's actions in allegedly putting a choke hold on a departing customer in the course of an altercation about the customer's bill to warrant submission to the jury of the issue of the corporation's liability for punitive damages.  Smith v Executive Club, Ltd. (Dist Col App) 458 A2d 32,  48 ALR4th 147.

Annotation:  93 ALR3d 826 § 12[a].

Footnote 33. Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821; Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703; Magagnos v Brooklyn H. R. Co., 128 App Div 182, 112 NYS 637; Fitscher v Rollman & Sons Co. (Hamilton Co) 31 Ohio App 340, 167 NE 469; Morton v Murphy Lumber & Hardware Co. (CP) 46 Ohio Ops 70, 62 Ohio L Abs 245, 102 NE2d 744; Staples v Schmid, 18 RI 224, 26 A 193; Hogg v Plant, 145 Va 175, 133 SE 759,  47 ALR 308.

Under state law, punitive damages may be imposed on an employer for the intentional wrongdoing of its employees if there is sufficient proof that a superior officer, or an individual employed in a managerial capacity, participated in, authorized, consented to or ratified the misconduct; the concern being that the individual's responsibility is sufficiently important and that his or her participation in the wrongdoing renders the employer blameworthy and arouses the institutional conscience for corrective action.  Gardner v Federated Dep't Stores, Inc. (CA2 NY) 907 F2d 1348.

An employer is not liable for punitive damages based on the actions of an employee unless the employer knew or should have known of the unfitness of the employee and continued employment or services, authorized the wrongful conduct, ratified the wrongful conduct, or the acts of the agent were calculated to and did benefit the principal, except where the plaintiff participated in the fraud or wrongful conduct with knowledge of his or her acts. Big B, Inc. v Cottingham (Ala) 634 So 2d 999.

Annotation:  93 ALR3d 826 § 14[a].

Footnote 34. Birmingham Ledger Co. v Buchanan, 10 Ala App 527, 65 So 667, cert den 191 Ala 659, 66 So 1008.

See also Moore v Target Stores, Inc. (Okla App) 571 P2d 1236, an action for false arrest and imprisonment, in which the court held that punitive damages could be awarded for the act of the defendant corporation's agent, even though the defendant did not "personally" participate in or ratify the agent's act.

Annotation:  93 ALR3d 826 § 14[b].

Footnote 35. Schanafelt v Seaboard Finance Co., 108 Cal App 2d 420, 239 P2d 42; Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; Reardon v Erie R. Co., 179 App Div 374, 166 NYS 287.

Annotation:  93 ALR3d 826 § 10[b].

Footnote 36. Alterauge v Los Angeles Turf Club, 97 Cal App 2d 735, 218 P2d 802; Walker v Lord & Taylor, 236 App Div 111, 258 NYS 96; Ft. Worth Hotel Co. v Waggoman (Tex Civ App) 126 SW2d 578, writ dism.

Finding no evidence in the record before it of prior authorization or subsequent ratification by the defendant's store manager of the actions of its store detective in arresting a customer on suspicion of shoplifting, the court, in Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821, reversed the judgment of the court below to the extent that it awarded punitive damages to the customer in his action for false arrest against the drug store.

Annotation:  93 ALR3d 826 § 10[c].

Footnote 37. Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; S. H. Kress & Co. v Rust, 132 Tex 89, 120 SW2d 425; Virginia Electric & Power Co. v Wynne, 149 Va 882, 141 SE 829.

Annotation:  93 ALR3d 826 § 12[e].

Footnote 38. Great Atlantic & Pacific Tea Co. v Lethcoe (CA4 W Va) 279 F2d 948 (applying Virginia law); McInerney v United R. of S. F., 50 Cal App 538, 195 P 958; Sanchez v Securities Acceptance Corp., 57 NM 512, 260 P2d 703; Fitscher v Rollman & Sons Co. (Hamilton Co) 31 Ohio App 340, 167 NE 469.

In reversing a judgment in favor of the plaintiff in her action for false arrest against the defendant store, a corporation, to the extent that it awarded punitive damages, the court, in Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821, an action for false arrest, held, among other grounds of reversal, that ratification of the defendant's store detective's action in wrongfully arresting the plaintiff on suspicion that she had secreted a lipstick in her purse, could not be inferred from the fact that the defendant's store manager had released the plaintiff after examining her purse with her consent and finding no lipstick there, or from the fact of the detective's retention and promotion 2 years after the incident.

Annotation:  93 ALR3d 826 § 12[f].

Footnote 39. Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821.

Footnote 40. Dart Drug, Inc. v Linthicum (Dist Col App) 300 A2d 442,  93 ALR3d 821.

As to culpability in selection, retention, discipline, or supervision as a separate basis of liability, see  § 156.

Footnote 41. Safeway Stores, Inc. v Gibson (Mun Ct App Dist Col) 118 A2d 386, affd 99 US App DC 111, 237 F2d 592; Cope v John Wanamaker of New York, 249 App Div 747, 292 NYS 51, affd 274 NY 622, 10 NE2d 581; Thomas v F. & R. Lazarus & Co. (App, Franklin Co) 3 Ohio Ops 2d 61, 40 Ohio L Abs 29, 57 NE2d 103, motion overr (false imprisonment and malicious prosecution); Virginia Electric & Power Co. v Wynne, 149 Va 882, 141 SE 829 (false arrest and malicious prosecution).

It is undoubtedly the law, the court said, in McInerney v United R. of S. F., 50 Cal App 538, 195 P 958, an action for assault and false imprisonment, that a corporation may become liable in exemplary damages where an act of one of its employees, done in ill will or in actual malice or under circumstances of fraud or oppression, is thereafter ratified by its superior officials, having power to bind the corporation, with full knowledge as to the willful and malicious quality of such acts.

See also Walker v Lord & Taylor, 236 App Div 111, 258 NYS 96, an action for false imprisonment and malicious prosecution, in which the court held that the defendant department store could be assessed punitive damages for the illegal acts of its detectives in detaining and causing the plaintiff's arrest on a "framed" case of shoplifting only if it authorized such acts or ratified them after notice (presumably meaning notice of those acts).

Annotation:  93 ALR3d 826 § 12[b].

Footnote 42. S. H. Kress & Co. v Rust, 132 Tex 89, 120 SW2d 425.

Annotation:  93 ALR3d 826 § 12[c].

A private principal's culpability in the selection, supervision, disciplining, or retention of an incompetent or unfit agent or employee has been held to warrant assessment of punitive damages against the principal, in an action for false arrest or imprisonment. 43   A similar view that such liability is warranted, has been implied or assumed in actions against a governmental body. 44      

Footnote 43. Reardon v Erie R. Co., 179 App Div 374, 166 NYS 287; Kastner v Long Island R. Co., 76 App Div 323, 78 NYS 469.

Punitive damages were recoverable where bus driver's detention of passenger was motivated by malice; fact that bus driver was scheduled to leave employ of bus company at time of incident placed employer in difficult position from standpoint of control but did not exonerate it from liability.  D. C. Transit System, Inc. v Brooks, 264 Md 578, 287 A2d 251.

Among the bases of liability of a principal for punitive damages on account of the wrongful act of the agent stated by the court, in Gill v Montgomery Ward & Co., 284 App Div 36, 129 NYS2d 288,  49 ALR2d 1452, an action for false imprisonment, was the principal's employment or retention of an unfit employee, whose malicious act occasioned the litigation, with knowledge of his unfitness.

In Morton v Murphy Lumber & Hardware Co. (CP) 46 Ohio Ops 70, 62 Ohio L Abs 245, 102 NE2d 744, an action for false arrest or false imprisonment arising out of the plaintiff's unlawful arrest and detention on a contempt order obtained by the defendant corporation's attorney in the mistaken belief that the plaintiff, who had not appeared for examination in aid of execution on a judgment against her husband, had been served personally with an order for her appearance, the trial court found that there was no proof that the defendant's attorney had acted with malice; but that, even if malice on his part had been shown no punitive damages should be awarded against the defendant corporation, because there was no evidence that the defendant had authorized, participated in, or ratified the arrest, nor any proof that the defendant had failed to exercise due care in the selection of its agent, the attorney.

Annotation: Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee,  93 ALR3d 826 § 16[a].

Footnote 44. Kieninger v New York (2d Dep't)  53 App Div 2d 602, 384 NYS2d 11; Chirieleison v New York (2d Dep't)  49 App Div 2d 873, 373 NYS2d 361.

Finding, in an action against a county for assault and false arrest, that the defendant was not wanton or reckless in permitting the arresting officers to serve on its police force, and was not derelict in failing to discipline the officers or to investigate the incident on which the plaintiff's action was based, the court, in Laskowski v County of Nassau (2d Dep't)  57 App Div 2d 888, 394 NYS2d 442, set aside an award of punitive damages in favor of the plaintiff.

See also Budgar v State,  98 Misc 2d 588, 414 NYS2d 463, wherein the court noted that there was no evidence that the defendant state employed an unfit police officer and hence any assessment of punitive damages (which were not sought) would not be justified.

Annotation:  93 ALR3d 826 § 17.

II.  CRIMINAL LIABILITY [157-162]

Research References
ALR Digest:  False Imprisonment § 9.5
ALR Index:  False Imprisonment and Arrest

In some jurisdictions, false or unlawful imprisonment, 45  or false arrest, 46  has been made a crime by statute.  Other states, not having a statute making false imprisonment a crime, may punish it as a crime at common law. 47

The definition of false imprisonment as either a crime or a tort is generally the same, 48   and the general principles which are applicable in the civil action also apply in criminal proceedings, 49  except as the criminal prosecution is affected by the general laws of criminal jurisprudence. 50  

The crime and the tort of false imprisonment are identically defined as the unlawful violation of the personal liberty of another. 51   At common law, false imprisonment was the unlawful restraint or detention of another against his or her will, without authority of law, by actual force or reasonably apprehended force. 52  The similar offense of criminal confinement requires proof of substantial interference with a person's liberty but not necessarily by touching or attempting to touch the person; confinement can be accomplished by fraud, enticement, force or the threat of force. 53

There is no criminal liability for false imprisonment in connection with taking children out of the state where the defendant has the consent of the child's physical and legal custodian, where lack of consent is an element of the offense. 54

Under a statute providing that a person is guilty of unlawful imprisonment who knowingly restrains another person, and defining "restraint" as restricting a person's movements without consent and without legal authority in a manner which interferes substantially with liberty, the term "substantial" is used as an adjective to mean a "real" or "material" interference with the liberty of another as contrasted with a petty annoyance, a slight inconvenience, or an imaginary conflict. 55

̈ Practice guide: An instruction which departs from statutory definitions and clouds the essential elements of the offense may not fairly inform the jury of the law that applies in the case, thereby necessitating a new trial. 56

False imprisonment is not a "continuing offense" so limitation on the number of convictions concerning one incident which might apply under an "uninterrupted offense" or "continuing course of conduct" crime does not apply, and a defendant can be convicted of multiple separate offenses for imprisonment of several people in the same incident. 57

A person may be indicted, prosecuted, and convicted for aiding and abetting in the commission of the offense of false imprisonment. 58

Footnote 45. As to degrees of offense under statutes punishing the offense of false or unlawful imprisonment, see  § 159.

Footnote 46. See, for example, Finch v Commonwealth (Ky) 419 SW2d 146, holding that an indictment charging that citizen's arrest was "otherwise than according to law" was sufficient to charge the offense under a statute punishing false arrest.

Footnote 47. State v Fulcher, 34 NC App 233, 237 SE2d 909, petition gr 293 NC 741, 241 SE2d 516 and error den 294 NC 503, 243 SE2d 338.

Footnote 48. Street v State, 307 Md 262, 513 A2d 870,  67 ALR4th 1095.

At common law, false imprisonment was the unlawful restraint or detention of another against that person's will, without authority of law, by actual force or reasonably apprehended force.  State v Berntsen, 295 SC 52, 367 SE2d 152.

Footnote 49. People v Agnew, 16 Cal 2d 655, 107 P2d 601; Kroeger v Passmore, 36 Mont 504, 93 P 805.

Footnote 50. See, generally, 21 Am Jur 2d,  Criminal Law.

Footnote 51. Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

Footnote 52. State v Berntsen, 295 SC 52, 367 SE2d 152.

A person commits the offense of unlawful restraint when the person knowingly, without legal authority, detains another.  People v Wisslead, 108 Ill 2d 389, 92 Ill Dec 226, 484 NE2d 1081.

Footnote 53. McDonald v State (Ind) 511 NE2d 1066.

Footnote 54. State v Niska (Minn) 514 NW2d 260, reh den (Minn) 1994 Minn LEXIS 368.

Footnote 55. State v Robinson, 20 Wash App 882, 582 P2d 580, affd 92 Wash 2d 357, 597 P2d 892, holding that the evidence was sufficient to show that defendant had interfered "substantially" with the liberty of the female victim.

In order to constitute a case of criminal false imprisonment under state statute, it is essential that there be some restraint of the person; but it is not necessary that there be confinement in a jail or a prison.  People v Grant (5th Dist) 8 Cal App 4th 1105, 10 Cal Rptr 2d 828, 92 CDOS 7061, 92 Daily Journal DAR 11323, review den (Cal) 1992 Cal LEXIS 6231.

Defendant's conduct in binding each of the victims to their beds was a substantial interference with their liberty, sufficient for conviction of confinement.  Hansford v State (Ind) 490 NE2d 1083.

Footnote 56. State v Plentychief (ND) 464 NW2d 373.

Footnote 57. Smith v State, 296 Ark 451, 757 SW2d 554, post-conviction proceeding (Ark) 1989 Ark LEXIS 229, habeas corpus proceeding (CA8 Ark) 923 F2d 1314.

Footnote 58. People v Henderson, 19 Cal 3d 86, 137 Cal Rptr 1, 560 P2d 1180.

While some courts state that false imprisonment is a lesser included offense of kidnapping, 59   other courts hold that where the crime of false imprisonment has been incorporated into a statute as one method of proving kidnapping, a trial court may correctly refuse to instruct the jury on the common law crime of false imprisonment as a lesser included offense of statutory kidnapping. 60

One approach to the question of whether the crime committed constitutes kidnapping or a lesser included offense of false imprisonment looks to the purpose of the confinement, restraint or removal of the victim; if the purpose was to accomplish one of the statutorily-enumerated purposes of kidnapping, the offense is kidnapping, rather than false imprisonment. 61   A kidnapping statute, in the particular case, may be broad enough to include, yet not require, proof of the elements constituting false imprisonment. 62   Where, under statutes, kidnapping involves abduction and restraint of the person abducted with intent to inflict physical injury or sexual abuse, and the crime of unlawful restraint involves restraint of another person under circumstances exposing the latter to a substantial risk of physical injury, kidnapping can be committed without committing unlawful restraint and consecutive sentences for the two offenses are proper. 63

The crime of confinement is not inherently included in the crime of rape, so as to bar conviction for both on double jeopardy grounds, because each requires different elements, and conviction for both is proper even though convictions arise from a single incident, particularly where the defendant confined the victim both before and after the rape. 64   However, where there are convictions for both rape and unlawful imprisonment, and the rape conviction is reversed, the related conviction for unlawful imprisonment must also be reversed where such conviction is factually dependent on the conviction for rape. 65  

It has been held that a charge of unlawful imprisonment exists independently of the charge of sexual abuse, since the elements of both crimes are totally different, and the crime of sexual abuse can be committed without an unlawful imprisonment where an underage victim engages in acts of sexual abuse without resistance. 66  

A charge of confinement, that the defendant knowingly confined the victim while the defendant was armed with a deadly weapon, has been held coextensive with a robbery charge for the same incident, thus precluding conviction for both, on double jeopardy grounds. 67   On the other hand, conviction for both confinement and attempted battery is proper, since confinement can be accomplished by fraud, enticement, force or threat of force and, unlike battery, does not require proof of touching or attempting to touch the victim. 68

Where a statute provides, in relevant part, that a person commits the crime of unlawful restraint if he or she knowingly restrains another unlawfully in circumstances exposing the victim to risk of serious bodily injury, while the crime of false imprisonment is completed when a person knowingly restrains another unlawfully so as to interfere substantially with that person's liberty, it has been held that since unlawfully restraining a person in circumstances entailing risk of serious bodily injury would necessarily constitute a substantial interference with the victim's liberty, false imprisonment is thus a lesser included offense of unlawful restraint; in other words, once the crime of unlawful restraint has been proved, no additional facts are necessary to prove false imprisonment, and thus, for sentencing purposes, the two offenses merge. 69

Under the terms of a statute, the misdemeanor of unlawful imprisonment, involving the knowing subjection of another to unlawful restraint, is a lesser included offense to the charge of felonious restraint under terrorizing circumstances, or an attempt thereof, which involves abduction or knowing restraint under terrorizing circumstances or circumstances exposing the victim to the risk of serious bodily injury. 70

A false imprisonment almost always constitutes or includes a common-law assault, 71   and may be prosecuted as a distinct and separate offense under the common law. 72    However, there is authority holding that where the offenses of false imprisonment and battery are committed by the same act of the defendant, the battery is a lesser included offense of the false imprisonment and it is error to adjudicate the defendant guilty of the battery count. 73

Footnote 59. State v Niska (Minn) 514 NW2d 260, reh den (Minn) 1994 Minn LEXIS 368; State v Kyle, 333 NC 687, 430 SE2d 412.

See 1 Am Jur 2d,  Abduction and Kidnapping § 2.

Footnote 60. State v Berntsen, 295 SC 52, 367 SE2d 152.

Footnote 61. State v Kyle, 333 NC 687, 430 SE2d 412.

Footnote 62. State v Berntsen, 295 SC 52, 367 SE2d 152.

Footnote 63. State v Palmer, 206 Conn 40, 536 A2d 936.

Footnote 64. Purter v State (Ind) 515 NE2d 858.

Footnote 65. People v Watson,  45 NY2d 867, 410 NYS2d 577, 382 NE2d 1352.

Footnote 66. In re M.,  93 Misc 2d 545, 403 NYS2d 178.

Footnote 67. Tingle v State (Ind) 632 NE2d 345.

Footnote 68. McDonald v State (Ind) 511 NE2d 1066.

Footnote 69. Commonwealth v Belgrave, 258 Pa Super 40, 391 A2d 662.

Footnote 70. State v Plentychief (ND) 464 NW2d 373.

Footnote 71.  § 8.

Footnote 72. Meints v Huntington (CA8 Minn) 276 F 245,  19 ALR 664; Doss v State, 220 Ala 30, 123 So 231,  68 ALR 712; Great Atlantic & Pacific Tea Co. v Smith, 281 Ky 583, 136 SW2d 759; Commonwealth v Brewer, 109 Pa Super 429, 167 A 386.

Footnote 73. Jane v State (Fla App D4) 362 So 2d 1005 (defendant wrapping his arms around the victim in a "bear hug").

Under some state statutes, if a false imprisonment is effected without the use of violence, menace, fraud or deceit, it is a misdemeanor.  The presence of one or more of these elements elevates the false imprisonment to a felony.  The primary element of the offense, the unlawful restraint of another's liberty, does not require one or more of these elements necessary to raise the crime to felony status.  All that is necessary to make out a misdemeanor charge of false imprisonment is that the individual be restrained of his or her liberty without any sufficient complaint or authority, and it may be accomplished by words or acts, together with the requisite intent to confine, which the individual fears to disregard.  To raise the offense to a felony, violence or menace, which may or may not be life endangering, or fraud or deceit, which presents no present significant danger to the victim, must be established. 74      The required element of the felony of confinement entailing commission while armed with a deadly weapon or resulting in serious bodily harm, can be provided, for example, by evidence of holding the victim at gunpoint or inflicting serious injuries, 75  by abandoning helpless victims in circumstances of danger, 76  or through confinement directed to accomplish murder and effected through concerted action with co-perpetrators. 77

The distinction between a charge alleging restraint under terrorizing circumstances or circumstances exposing the victim to the risk of serious bodily injury and a charge alleging unlawful restraint is characterized under some statutes as the distinction between false imprisonment in the first degree and false imprisonment in the second degree. 78

In states not having a statute making false imprisonment a crime, the offense may be punishable as a crime under the common law, 79   under which it is a general misdemeanor. 80    Where the crime of false imprisonment under state law is a common law offense for which the penalty is not statutorily prescribed, statutory penalties for other offenses do not influence the penalty for the common law crime; imposition of a fine is a reasonable exercise of the sentencing court's discretion and is not cruel and unusual punishment. 81  

The Model Penal Code provides that a person commits the misdemeanor offense of false imprisonment if he or she knowingly restrains another unlawfully so as to interfere substantially with the other person's liberty. 82   A person who knowingly restrains another unlawfully in circumstances exposing the other person to risk of serious bodily injury, or who holds another in a condition of involuntary servitude, commits felonious restraint, a felony of the third degree. 83

Footnote 74. People v Haney (4th Dist) 75 Cal App 3d 308, 142 Cal Rptr 186 (criticized on other grounds by People v Olivencia (6th Dist) 204 Cal App 3d 1391, 251 Cal Rptr 880).

Similarly, a statutory offense of unlawful imprisonment is a misdemeanor when the offender simply restrains another person,People v Ennis (2d Dept)  37 App Div 2d 573, 322 NYS2d 341, affd  30 NY2d 535, 330 NYS2d 384, 281 NE2d 180, and a felony when the offender restrains such other person under circumstances which expose the latter to a substantial risk of serious physical injury. People v Amazon (3d Dept)  52 App Div 2d 1012, 383 NYS2d 686.

In the absence of "terrorizing circumstances," meaning circumstances that result when threats of violence or acts dangerous to human life are made with intent to place another human being in fear of his or her safety, evidence was insufficient to support conviction for attempted felonious restraint under terrorizing circumstances, and would support only the misdemeanors of unlawful imprisonment or attempted unlawful imprisonment.  State v Plentychief (ND) 464 NW2d 373.

The evidence was sufficient to find a "substantial risk of serious bodily injury" where the victims were bound and gagged and placed in a store's refrigerated meat locker, since they were thereby exposed to a risk of frostbite, pneumonia, or any of the other well-known health hazards associated with near-freezing and sub-freezing temperatures.  Taylor v State (Tex Crim) 550 SW2d 695.

Footnote 75. Tingle v State (Ind) 632 NE2d 345 (victim was held at point of shotgun while defendant ransacked the house); State v Vance, 240 Neb 794, 484 NW2d 453 (husband and wife held at gunpoint, wife sexually assaulted); State v Brown, 235 Neb 374, 455 NW2d 547 (victim confined in car, forcibly removed from car, forced into residence and sexually assaulted); State v Moreno, 228 Neb 210, 422 NW2d 56 (victim was robbed, severely beaten so as to cause crushed bones and skull fractures, and prevented by the injuries from reporting the offense).

Footnote 76. Jordan v Commonwealth (Ky) 703 SW2d 870.

Footnote 77. Nelson v State (Ind) 528 NE2d 453.

Footnote 78. State v Schwartz, 219 Neb 833, 366 NW2d 766.

Footnote 79.  § 157.

Footnote 80. State v Fulcher, 34 NC App 233, 237 SE2d 909, petition gr 293 NC 741, 241 SE2d 516 and error den 294 NC 503, 243 SE2d 338.

At common law, false imprisonment, being the unlawful detention of a person against that person's will, is a misdemeanor.  Street v State, 307 Md 262, 513 A2d 870,  67 ALR4th 1095.

Footnote 81. Street v State, 307 Md 262, 513 A2d 870,  67 ALR4th 1095 (taxi driver kept passenger locked in taxi for twenty-five minutes, because passenger did not have correct amount, and refused to allow passenger to leave to secure change for the fare, even though the passenger had sufficient money to pay the fare).

Footnote 82. Model Penal Code § 212.3.

Footnote 83. Model Penal Code § 212.2.

To support a conviction for the crime of false imprisonment, there must be criminal intent. 84   The good motives and purpose of the defendant are therefore legitimate matters of defense. 85   Thus, where the defendant's claim is that the defendant only detained the complainant to protect the complainant from attempting to commit suicide, the court's failure to give an appropriate instruction on defendant's good motive or purpose as a defense constitutes prejudicial error warranting a new trial. 86  However, a surety who arrests a bail-jumper forcibly and without a warrant, for the purpose of surrendering such person as principal on the forfeited bond to protect the obligation on the bond, cannot raise such matter as a defense and cannot complain of the court's refusal to instruct the jury with respect to such defense, in the absence of any written interpretation of the state statutes by a court or by a public official charged with responsibility for interpreting the law which would justify any reasonable belief that the surety's conduct did not constitute a crime. 87

Consent may also be raised as a defense in a criminal false imprisonment or confinement case, as an attempt to negate an element of the crime. 88   Thus, the consent of a child's legal and physical custodian to removal of children out of the state is a defense to the crime of false imprisonment of a child, where lack of consent is an element of the crime. 89

̈ Practice guide: In a false imprisonment or confinement prosecution, an instruction on the defense of consent is acceptable, in circumstances where more than one offense has been charged and where the charge and victim to which the issue of consent is applicable are clear to the jury. 90

Parental privilege as to alleged confinement of the parent's own child may also be a defense to a charge of unlawful imprisonment. 91

The facts of the case may rule out the possibility of self-defense as a viable defense to false imprisonment, as where the defendant fails to allege the use of any unlawful force to which the defendant might be privileged to respond. 92

Footnote 84. Commonwealth v Cheney, 141 Mass 102, 6 NE 724; Commonwealth v Trunk, 311 Pa 555, 167 A 333.

In both the tort and criminal offense of false imprisonment, the required mental state is only intent to confine or to create a similar intrusion; no motive to cause harm is required.  Fermino v Fedco, Inc., 7 Cal 4th 701, 30 Cal Rptr 2d 18, 872 P2d 559, 59 Cal Comp Cas 296, 94 CDOS 3399, 94 Daily Journal DAR 6423, 9 BNA IER Cas 1132.

Even if the intent of defendant is to escape, confinement of another person in the process of effectuating the escape may be sufficient proof to support the defendant's conviction for criminal confinement.  McDonald v State (Ind) 511 NE2d 1066.

Footnote 85. State v Hembd, 305 Minn 120, 232 NW2d 872; Commonwealth v Trunk, 311 Pa 555, 167 A 333.

Footnote 86. State v Hembd, 305 Minn 120, 232 NW2d 872.

Footnote 87. Austin v State (Tex Crim) 541 SW2d 162.

Footnote 88. State v Lawrence, 135 Ariz 569, 663 P2d 561; State v Horswill, 75 Hawaii 152, 857 P2d 579; State v Niska (Minn) 514 NW2d 260, reh den (Minn) 1994 Minn LEXIS 368.

Footnote 89. State v Niska (Minn) 514 NW2d 260, reh den (Minn) 1994 Minn LEXIS 368.

Footnote 90. State v Horswill, 75 Hawaii 152, 857 P2d 579.

Footnote 91. State v Lawrence, 135 Ariz 569, 663 P2d 561.

Footnote 92. State v Brown, 235 Neb 374, 455 NW2d 547.

A conviction for criminal confinement may be sustained on the testimony of the victim alone. 93   Multiple convictions for false imprisonment, in connection with several persons imprisoned in a single incident, may be sustained without the necessity of calling every victim to testify that he or she felt restrained without consent or legal justification; the prosecution is not required to put every victim on the witness stand in order to satisfy the required proof of all the elements. 94

Evidence on the issue of identification of the defendant may be held sufficient in a prosecution for criminal confinement, even in view of pretrial identification of others as the perpetrator, where the identification of the defendant is corroborated by other evidence. 95

Evidence has been found sufficient to support conviction in cases involving unlawful imprisonment or similar charges where–

–the victim was beaten too badly to move and the defendant told police defendant intended to keep the victim there until the victim's appearance improved. 96

–the defendant and a codefendant brandished guns, demanded drugs, forced a husband and wife into a car and kept them captive at gunpoint, later participating in the sexual assault of the wife. 97

–the defendant kept defendant's adult developmentally-disabled son shackled hand and foot in a room in defendant's home, although the son was not violent. 98

–the defendant kidnapped and killed an estranged spouse, putting the body in a fifty-five gallon drum. 99

–the defendant brandished a knife at the victim at 1:00 a.m., forced the victim to drive to another area, handcuffed the victim and led the victim to another area before releasing the victim and fleeing. 1  

–the defendant and an accomplice entered a store with knives and took money from a cash drawer and employees' possessions from their persons. 2

–the defendant held persons in an office at gunpoint and threatened to kill everyone in the building if defendant did not receive a check. 3

–the defendant forcibly entered the victim's vehicle at 2:00 a.m. robbed and sexually assaulted the victim and implied harm to the victim if the assault were reported to the authorities. 4

–the evidence, albeit all circumstantial in character, indicated that the victim was bound at wrist and ankles, gagged and blindfolded and subsequently murdered. 5          

–where two robberies were committed; in the first, one perpetrator held a knife to the victim's throat while holding him by the hair, and in the second robbery, one perpetrator knocked the victim to the floor and sat on her while the co-perpetrator accomplished the theft. 6

Under a statute, the element of "restraint" is adequately shown by evidence of the fact that the defendant's conduct toward the victim invoked enough fear and apprehension for the safety of the victim that four other persons who had been with the defendant and the victim followed them and took steps to attempt to rescue the victim from potential harm. 7

Footnote 93. Lewis v State (Ind) 511 NE2d 1054.

Footnote 94. Smith v State, 296 Ark 451, 757 SW2d 554, post-conviction proceeding (Ark) 1989 Ark LEXIS 229, habeas corpus proceeding (CA8 Ark) 923 F2d 1314.

Footnote 95. Winfrey v State (Ind) 547 NE2d 272.

Footnote 96. Roberts v State (Ind) 599 NE2d 595, reh den (Jan 26, 1993).

Footnote 97. State v Vance, 240 Neb 794, 484 NW2d 453.

Footnote 98. Adelman v State (Tex Crim) 828 SW2d 418, motion for rehearing on PDR denied (Apr 29, 1992).

Footnote 99. Raskin v State, 261 Ga 848, 412 SE2d 832, 103-35 Fulton County D R 21, related proceeding 216 Ga App 478, 454 SE2d 809, 95 Fulton County D R 857, 23 Media L R 2054.

Footnote 1. State v Fleck, 238 Neb 446, 471 NW2d 132.

Footnote 2. Bivens v State (Ind) 553 NE2d 127.

Footnote 3. Smith v State, 296 Ark 451, 757 SW2d 554, post-conviction proceeding (Ark) 1989 Ark LEXIS 229, habeas corpus proceeding (CA8 Ark) 923 F2d 1314.

Footnote 4. Fointno v State (Ind) 487 NE2d 140.

Footnote 5. Felker v State, 252 Ga 351, 314 SE2d 621, cert den  469 US 873,  83 L Ed 2d 158,  105 S Ct 229, reh den  469 US 1067,  83 L Ed 2d 440,  105 S Ct 554, cert den  502 US 1064,  117 L Ed 2d 118,  112 S Ct 950, habeas corpus den (CA11 Ga) 52 F3d 907, 9 FLW Fed C 61, reh, en banc, den (CA11 Ga) 62 F3d 342, 9 FLW Fed C 339.

Footnote 6. Steele v State (Ind) 533 NE2d 1197.

Footnote 7. State v Wyatt, 234 Neb 349, 451 NW2d 84.

But see State v Dokken (Minn) 312 NW2d 106 (in a criminal prosecution for false imprisonment, the fact that an 11-year-old boy is bound on two or three occasions for less than ten minutes while the defendant takes photographs of him with his shirt removed is insufficient to show the requisite intent to restrict the child's freedom of movement for purposes of proving the "intent" element).

A statutory penalty for unlawful restraint is not clearly irrational simply because the penalty is greater than that set for aggravated assault, the two statutes having different purposes, the aggravated assault charge being concerned with threatened bodily harm while the unlawful restraint is concerned with actual restriction of another's freedom to move about. 8

In a number of cases involving prosecutions for a variety of criminal offenses, the imposition of consecutive sentences for criminal confinement, false imprisonment or similar offenses has been upheld as not excessive under the circumstances. 9

Footnote 8. People v Wisslead, 108 Ill 2d 389, 92 Ill Dec 226, 484 NE2d 1081.

Footnote 9. State v Palmer, 206 Conn 40, 536 A2d 936 (imposition of consecutive sentences for kidnapping and unlawful restraint, in connection with a single incident, was proper, since it was possible for defendant to have committed kidnapping without committing unlawful restraint, indicating that the two were separate offenses, rather than an offense and a lesser included offense); Zeilinga v State (Ind) 555 NE2d 471; Pyle v State (Ind) 476 NE2d 124, appeal after remand on other grounds (Ind) 493 NE2d 452 (consecutive sentencing for confinement and attempted murder was adequately supported by the aggravating circumstances, including the defendant's extensive criminal history, separate offenses, two victims and the ruthless, premeditated and heartless manner of commission of the crimes); State v Schumacher, 240 Neb 184, 480 NW2d 716, post-conviction proceeding (Neb Ct App) 1994 Neb App LEXIS 99 (consecutive sentences of five to ten years for sexual assault, one to two years for false imprisonment and one year for use of a firearm); State v Winchester, 239 Neb 535, 476 NW2d 862 (sentence of eight to fifteen years for sexual offense, two to five years consecutive for use of knife and two to five year concurrent sentence for false imprisonment).

But see Fointno v State (Ind) 487 NE2d 140 (an additional sentence of twenty-four years was excessive in view of the reduced significance of the confinement offense compared to the rape and robbery offenses committed in the same incident, and which were all part of a single criminal episode).