False imprisonment

Under United States law, police officers have the right to detain individuals based on probable cause that a crime has been committed and the individual was involved, or based on reasonable suspicion that the individual has been, is, or is about to be engaged in a criminal activity.

To prevail under a false imprisonment claim, a plaintiff must prove:

1. Willful detention in a bounded area
2. Without consent; and
3. Without authority of lawful arrest. (Restatement of the Law, Second, Torts)

Many jurisdictions in the United States recognize the common law known as shopkeeper's privilege under which a person is allowed to detain a suspected shoplifter on store property for a reasonable period of time. The shopkeeper has cause to believe that the detainee in fact committed, or attempted to commit, theft of store property. The shopkeeper is allowed to ask the suspect to demonstrate that they have not been shoplifting. The purpose of the shopkeeper's privilege is to discover if the suspect is shoplifting and, if so, whether the shoplifted item can be reclaimed.[4] The shopkeeper's privilege, although recognized in most jurisdictions, is not as broad a privilege as that of a police officer's. Therefore, one must pay special attention to the temporal element: the shopkeeper may only detain the suspected criminal for a relatively short period of time. This is similar to a general right in many jurisdictions, and in limited circumstances, of citizen's arrest of suspected criminals by private citizens. In those jurisdictions, if someone detains an innocent person or unreasonably detains the suspect, uses excessive force to detain the suspect, or fails to notify the police within a reasonable time after detaining the suspect, then the detention may constitute false imprisonment and can result in an award of damages for the illegal detention. In jurisdictions without the privilege, detaining someone may constitute false imprisonment, even if the suspect is detained for doing something illegal without using excessive force and doing something illegal in the process, and the police gets notified within a reasonable time after the suspect is detained.

This privilege has been justified by the very practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon their suspicion and risk making a false arrest.[5]

In order for a customer to be detained, the shopkeeper must:[6]

1. Conduct the investigation on the store premises, or immediately near the premises.
2. Have reasonable cause to believe the person detained was shoplifting.
3. Use reasonable (non-excessive) force to detain the suspected individual.
4. Not prolong the detention longer than a reasonable amount of time needed to gather all the facts.

The test of liability is not based on the store patron's guilt or innocence, but instead on the reasonableness of the store's action under the circumstances; the trier of fact usually determines whether reasonable belief is established. A guilty shoplifter can still sue for false imprisonment then if the detention was unreasonable.

The privilege for the most part is to be able to return the stolen goods. The shopkeeper may not force a confession. They do have a right to conduct a contemporaneous search of the person and the objects within that person's control.

In Enright v. Groves, a woman sued a police officer for false imprisonment after being arrested for not producing her driver's license. The plaintiff was in her car when she was approached by the officer for not leashing her dog; she was arrested after being asked to produce her driver's license and failing to do so. She won her claim, despite having lost the case of not leashing her dog. The court reasoned that the officer did not have proper legal authority in arresting her, because he arrested her for not producing her driver's license (which itself was legal) as opposed to the dog leash violation.[7]

In a Clark County, Indiana Circuit Court case, Destiny Hoffman was jailed for 154 days, during which "no hearing was conducted to determine the validity of such sanction and the defendant was not represented by counsel" according to deputy county prosecutor Michaelia Gilbert.[8] An order by Judge Jerry Jacobi[9] in the Clark County Circuit Court case was supposed to be a 48-hour jail stay for Hoffman, pending drug evaluation and treatment, "until further order of the court."[8] After a motion by Prosecutor Gilbert, Special Judge Steve Fleece ordered Hoffman released and said Hoffman’s incarceration was “a big screw up".[9]

In a Louisiana case in the United States, a pharmacist and his pharmacy were found liable by a trial court for false imprisonment. They stalled for time and instructed a patient to wait while simultaneously and without the patient's knowledge calling the police. The pharmacist was suspicious of the patient's prescription, which her doctor had called in previously. When the police arrived, they arrested the patient. While the patient was in jail, the police verified with her doctor that the prescription was authentic and that it was meant for her. After this incident, the patient sued the pharmacy and its employees. She received $20,000 damages. An appeals court reversed the judgment, because it believed the elements of false imprisonment were not met.[10][11]

Under English law, police have the right to arrest under conditions set out in PACE Code G. As a general rule, to be lawful an arrest must be supported by reasonable suspicion. An arrest may also occur if the police have a reasonable suspicion that an offence has occurred or will occur for which the arrested person is responsible. An arrest may also occur if the identity of the person arrested is in question, such that any investigation will be frustrated. Also, arrest may be lawful if the police have reason to believe that the person arrested poses an imminent risk of harm to themselves or others.

The police may also detain a person under principles of prompt investigation, for such purposes as gaining evidence or taking statements. However, the taking of fingerprints is not deemed necessary for prompt investigation except when taking fingerprints from persons present at a crime scene.

In the United Kingdom, a case was brought to the High Court concerning the alleged unlawful detention of hundreds of members of the public during the May Day riots of 2001 in London, England. The police, using the tactic of "kettling", held a large crowd in Oxford Circus for several hours without allowing anyone to leave. Lois Austin, a peaceful protester who had not broken the law, and Geoffrey Saxby, an innocent passer-by who was not involved in the demonstration, claimed that they were falsely imprisoned by the London Metropolitan Police and that their detention was in breach of the European Convention of Human Rights.[12] The pair lost their court action in 2005,[13] when the High Court ruled that the police had not acted unlawfully. An appeal against the ruling also failed in 2007.[13] A ruling by the House of Lords declared that even in the case of an absolute right, the High Court was entitled to take the "purpose" of the deprivation of liberty into account before deciding if human rights law applied at all.[14]