26 am jur proof of facts 2d 617

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26 Am. Jur. Proof of Facts 2d 617

American Jurisprudence Proof of Facts 2dDatabase updated July 2006

Categorical List of Articles

False Imprisonment Failure to Take Arrestee Before Magistrate Without Unreasonable or Unnecessary Delay

Jimmie E. Tinsley, J.D.[FN*]

ARTICLE OUTLINE

I Background1 In general; scope2 Elements of action for false imprisonment; related actions distinguished3 What constitutes unreasonable or unnecessary delay4 Factors considered in determining whether delay was unreasonable or

unnecessary--Accessibility of magistrate5 Factors considered in determining whether delay was unreasonable or

unnecessary--Other duties of officer; delay for investigative purposes6 Factors considered in determining whether delay was unreasonable or

unnecessary--Mental or physical condition or conduct of arrestee7 Factors considered in determining whether delay was unreasonable or

unnecessary--Failure to take arrestee before nearest magistrate8 Effect of unreasonable or unnecessary delay--Doctrine of trespass ab initio9 Persons liable10 Arrestee's consent to or waiver of delay11 Burden of proof and evidence12 Elements of damages: guide and checklist12.5 Defense considerations

II Proof of Failure to Take Arrestee Before Magistrate Without Unreasonable orUnnecessary DelayA Elements of Proof

13 Guide and checklistB Testimony of Plaintiff

14 Arrest of plaintiff by defendant

15 Defendant's refusal of plaintiff's request to be taken before magistrate16 Incarceration of defendant pending investigation17 Overnight detention of plaintiff18 Release of plaintiff without charge19 Lack of consent by plaintiff to delay

C Testimony of Attorney20 Availability of magistrate21 Defendant's refusal to take plaintiff before magistrate

D Testimony of Defendant22 Arrest and incarceration of plaintiff23 Mental and physical condition of plaintiff at time of arrest


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24 Lack of other duties elsewhere25 Feasibility of taking plaintiff before magistrate at night26 Previous policy of taking arrestees before magistrate at night

E Testimony of Magistrate27 Status as qualified and acting magistrate28 Availability of magistrate on night of arrest29 Previous policy of setting bond for arrestees at night

INDEX

Abuse of process distinguished,, 2Accessibility of magistrate ,

consideration of on issue of reasonableness of delay,, 4, 7testimony concerning,, 20, 25 29

Arrest of plaintiff ,delay's effect on legality of,, 8reasonableness of delay, legality of arrest as factor in determining,, 1, 2testimony concerning,, 14, 22

Burden of proof ,generally,, 11accessibility of magistrate,, 4

Chief of police, liability of,, 9Conduct of arrestee ,

reasonableness of delay, consideration on issue of,, 6testimony concerning,, 23

Consent by arrestee to delay ,consideration of on issue of reasonableness of delay,, 5, 10lack of consent, testimony concerning,, 19

Consultation with others, as factor justifying delay,, 5Court, function of,, 3Custody, transfer of, effect on liability of arresting officer,, 9Damages ,

compensatory damages,, 12elements of,, 12

punitive damages,, 2, 12Duties of arresting officer ,

obligation to take arrestee before magistrate,, 1other duties ,

consideration of on issue of reasonableness of delay,, 5lack of, testimony concerning,, 24

Elements of proof ,false imprisonment action,, 2guide and checklist,, 13

Employer, liability for false imprisonment committed by employee,, 9Evidence ,

generally,, 11damages,, 2, 12

False arrest distinguished,, 2Feasibility of taking plaintiff before magistrate, testimony concerning,, 25Federal Tort Claims Act, liability under,, 9Good or bad faith of arresting officer ,

consideration of on issue of punitive damages,, 12consideration of on issue of reasonableness of delay,, 1, 2, 8

Good or bad faith of arresting officer, testimony concerning,, 15, 17, 21Governmental liability for false imprisonment,, 9Guilt of plaintiff, effect of,, 2Holiday, arrest and detention on,, 4Identification, propriety of delay for purposes of,, 5


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Incarceration of arrestee, testimony concerning,, 16, 22Intoxication of arrestee ,

as factor justifying choice of distant detention facility,, 7as factor justifying delay,, 6

Investigative delay ,arrestee's consent to, effect of,, 5, 10propriety of,, 5testimony concerning,, 16, 17, 21

Jailer, liability of,, 9Jury, function of,, 3Length of detention ,

reasonableness of,, 3testimony concerning,, 17, 22

Malice of arresting officer, admissiblity of evidence of, on issue of punitivedamages,, 12Malicious prosecution distinguished,, 2Mass arrests, as factor justifying delay,, 5Medical attention, necessity of as justifying delay,, 6Mental condition of arrestee ,


Motivaton of arresting officer, consideration of,, 2Persons liable,, 9Physical condition of arrestee ,


Police officers, liability of,, 9Principal ,

false imprisonment committed by agent, liability for,, 9punitive damages, liability for,, 12

Private citizen, liability of,, 1, 9Probable cause ,

consideration of on issue of punitive damages,, 12consideration of on issue of reasonableness of delay, 2, 2

Release of arrestee without appearance before magistrate ,effect of,, 1, 10testimony concerning,, 18, 22

Removal of arrestee to distant location, effect of,, 7Resistance to arrest, as justifying delay,, 6Riot, need to suppress, as factor justifying delay,, 5Road conditions, consideration of on issue of reasonableness of delay,, 7Statutory regulations,, 3, 5Sunday, arrest and detention on,, 4Time of arrest and detention ,

consideration of on issue of reasonableness of delay,, 4testimony concerning,, 16, 20, 22

Transportation facilities, availability and quality of,, 7

Trespass ab initio, doctrine of,, 8Waiver by arrestee of delay,, 10Warrant of arrest, effect of,, 1, 11


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Topic of Article:

Whether, after an arrest, there was an unreasonable or unnecessary delay in takingthe arrestee before a magistrate, so as to render the persons responsible for thedelay liable for false imprisonment.

This fact question may arise in a civil action for the recovery of damagessustained as a result of the defendant's delay, following the arrest of the

plaintiff, in taking the plaintiff before a magistrate.

I. Background

1. In general; scope

[Cumulative Supplement]

When a police officer makes an arrest, the officer does not have the right toindefinitely detain the arrestee. Rather, a police officer has a duty to take anarrested person before a magistrate as soon as reasonably possible and without anyunnecessary delay.[FN1] The requirement that an arrestee be taken promptly beforea magistrate is a uniform requirement in state and federal jurisdictions.[FN2]Moreover, the requirement extends not only to arrests made without a warrant, butalso to arrests made pursuant to a warrant.[FN3] It has been said, however, thatthe duty to bring a prisoner before a magistrate without delay is even moreimperative when the arrest is made without a warrant.[FN4]

When an arrestee is not taken before a magistrate within a reasonable time and

without unnecessary delay, the arresting officer or other persons responsible forthe delay may be held civilly liable for false imprisonment of the arrestee.[FN5]An unreasonable delay may constitute false imprisonment even though the arrest waslawful and even if the officer at all times acted in good faith.[FN6] However,there is considerable confusion and disagreement concerning the length and type ofdelay that will be considered unreasonable or unnecessary,[FN7] as well as withregard to the liability of particular individuals involved in the detention.[FN8]

This article is concerned with the circumstances under which a delay in taking aprisoner before a magistrate may subject the arresting officer or otherresponsible persons to liability in a cause of action for false imprisonment. Thelegality of the arrest itself, as distinguished from the detention following the

arrest, is considered here only to the extent that it either bears on or is insome way affected by the legality of the delay in taking the arrestee before themagistrate.[FN9] Thus, except where otherwise stated, the article proceeds on thegeneral assumption that the initial arrest was valid and that the onlyconsideration is the legality of the delay between arrest and presentation beforea magistrate.

Note:

Although the discussion in the article generally refers to arrests made by policeofficers, a private citizen making an arrest also has a duty to take the arrested


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person before a magistrate without unreasonable or unnecessary delay, and failureto do so may render a private individual liable for false imprisonment.[FN10]Although the applicable rules are generally the same regardless of whether thearrest was made by a police officer or a private citizen, the cases generallyindicate that the courts will grant a police officer greater latitude than theywill grant a private citizen.[FN11]

Comment:

The reported cases involve not only situations where the plaintiff was arrestedand detained for some time before being taken before a magistrate, but alsosituations where the plaintiff was arrested and detained for some time but nevertaken before a magistrate, being released instead. Since a person, once arrested,has a right to be taken before a magistrate without unreasonable or unnecessarydelay, either type of factual situation may result in a finding of unnecessarydelay and hence in the imposition of liability for false imprisonment.

CUMULATIVE SUPPLEMENT

Cases:

Persons arrested without a warrant must promptly be brought before a neutralmagistrate for a judicial determination of probable cause. U.S.C.A. Const.Amend.4. Devenpeck v. Alford, 125 S. Ct. 588 (U.S. 2004); West's Key Number Digest,Pensions 70(2).

Lost in the computer: County's failure to process detainee more rapidly, when shewas apparently lost in new computer system for several hours, delaying her releaseafter bail had been posted on outstanding warrants, was mere negligence, and thusstandard of criminal recklessness needed to prove that sheriff or other jailemployee was deliberately indifferent to her constitutional due process rights was

not satisfied. U.S.C.A. Const.Amend. 14. Golberg v. Hennepin County, 417 F.3d 808(8th Cir. 2005); West's Key Number Digest, Constitutional Law 262.

Paperwork delay: Posting of sign in jail booking area advising detainees thatcompleting and processing their paperwork might take "more than eight hours" didnot show reckless disregard to substantive due process right of detainees totimely release; delay of eight hours would in many situations not be deprivationof rights. U.S.C.A. Const.Amend. 14. Golberg v. Hennepin County, 417 F.3d 808 (8thCir. 2005); West's Key Number Digest, Constitutional Law 262.

Evidence failed to support jury verdict in favor of arrestee who was detained

without charge for 14 months, where arrestee failed to show that police departmentpolicies or customs, or lack of same, caused deprivation of liberty or denial ofprocedural due process rights. Tilson v Forrest City Police Dep't (1994, CA8 Ark)28 F3d 802, petition for certiorari filed (Nov 21, 1994).

The 31.5 hour delay in bringing juvenile before a magistrate, though a clearviolation of the Juvenile Delinquency Act, did not violate due process, wherejuvenile's confession came only three and a half hours into the delay, thegovernment did not attempt to further interrogate him before taking him before amagistrate, it did not seek to use any statements he may have made after he was


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booked into the juvenile facility, and there was no evidence that the delay wasdeliberate, used to gain undue advantage or influence over the juvenile, orotherwise prejudicial. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. 5033. U.S. v. Doe, 219 F.3d 1009 (9th Cir. 2000); West's Key Number Digest, Constitutional Law255(4).

Exigent circumstances: Whether exigent circumstances existed making delay in

presenting arrestee before a federal magistrate or state or local judicial officerwithin 48 hours of a warrantless arrest excusable, and what, if any, is the remedyto be afforded, is for court to determine; there is no presumption or general rulethat a punitive sanction must exist for every departure or omission from duty,even if negligent, by court, prosecutors, or government. U.S.C.A. Const.Amend. 4;Fed.Rules Cr.Proc.Rule 5(a), 18 U.S.C.A. U.S. v. Salivas-Gonzalez, 147 F. Supp. 2d58 (D.P.R. 2001); West's Key Number Digest, Arrest 70(2).

Delay in presentment after arrest did not require suppression of statements wherepolice held defendant pursuant to breaking and entering complaint and may havearranged for bail, there is no suggestion that delay in any way tainted theotherwise free, intelligent, and voluntary statements of defendant, defendant was

given Miranda warnings repeatedly, delay from arrest until initial statements wasless than 20 hours, and defendant's subsequent statements were essentiallyidentical to the original statements. Commonwealth v Butler (1996) 423 Mass 517,668 NE2d 832.

Defendant's claim that police intentionally delayed arraignment for purpose ofobtaining confession did not give rise to state constitutional right to counselclaim which could be raised for first time on appeal, but rather assertedviolation of promptarraignment statute which had to be preserved for appellatereview; when defendant confessed, judicial proceedings had not yet begun, nor haddefendant retained or requested an attorney; abrogating People v. Mosley, 135A.D.2d 662, 522 N.Y.S.2d 238, People v. Cooper, 101 A.D.2d 1, 475 N.Y.S.2d 660.

McKinney's Const. Art. 1, 6; McKinney's CPL 140.20, 470.05, subd. 2. People v. Ramos, 99 N.Y.2d 27, 750 N.Y.S.2d 821, 780 N.E.2d 506 (2002); West's Key NumberDigest, Criminal Law 1031(4).

Application of Davenport-Duncan rule related to prompt arraignment to permit useof confession obtained after defendant was detained for substantial period onunrelated charge does not preclude defendant from pleading and proving that hisstatement was not voluntary. Com. v. Persiano, 555 Pa. 428, 725 A.2d 151 (1999);West's Key Number Digest, Criminal Law 519(8).

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[END OF SUPPLEMENT]

2. Elements of action for false imprisonment; related actions distinguished



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The basic elements of the tort of false imprisonment are (1) the detention of aperson against his will, and (2) the unlawfulness of such detention.[FN12] Thus,it has been said that the essence of the tort of false imprisonment is thedeprivation of a person's liberty without lawful justification.[FN13] Actualmalice on the part of the arresting officer is not a necessary element of falseimprisonment, and the arresting officer's state of mind generally is irrelevant tothe issue of whether a false imprisonment occurred. Neither the officer's good or

bad faith nor his motivation in making the arrest and the detention has anybearing on the lawfulness of the detention.[FN14] Likewise, the existence orabsence of probable cause for the arrest is not generally relevant on the issue offalse imprisonment; even though the arrest is lawful and made on probable cause,liability for false imprisonment will still exist if there is an unreasonably longdelay in bringing the arrestee before a magistrate.[FN15] Nor is it necessary forthe prior proceeding to have been terminated favorably to the plaintiff in thefalse imprisonment action. Indeed, a recovery for false imprisonment may be hadeven though the criminal charge was truthful and the plaintiff in the falseimprisonment action was convicted of the crime.[FN16]

Note:

Evidence of the officer's good or bad faith and of the existence or absence ofprobable cause, although irrelevant on the issue of whether there was a falseimprisonment, may be admitted on the issue of punitive damages.[FN17]

It is difficult to distinguish between false arrest and false imprisonment, and ithas been said that the two causes of action are virtually indistinguishable.However, while it is clear that a person who is falsely arrested is also falselyimprisoned, a person may be subjected to false imprisonment without being falselyarrested. Where a lawful arrest is followed by an unnecessary or unreasonabledelay in taking the arrestee before a magistrate, therefore, the cause of actionis for false imprisonment, not false arrest. Where the arrest itself is alsounlawful, causes of action may exist for both false arrest and false

imprisonment.[FN18]

False imprisonment is also related to malicious prosecution, and the same set offacts may give rise to causes of action based on the commission of both torts.There is, however, a fundamental distinction between the two causes of action. Anaction for malicious prosecution may be brought where a person is detained formalicious reasons but under due form of law, while an action for falseimprisonment may be brought where a person is detained without valid legalauthority, regardless of whether the defendant acted with malice or with probablecause in detaining the plaintiff.[FN19]

An action for abuse of process is distinguished from one for false imprisonment inthat the gist of the former is the improper use of regularly issued process, whilethe essence of the latter is the unlawful deprivation of the plaintiff's liberty.In an action for abuse of process it must be shown that legal process was used ina manner or for a purpose not intended by law, and it is no defense that theprocess was valid on its face. On the other hand, in an action for falseimprisonment the plaintiff must prove that there was no lawful justification forthe detention, and the intent or purpose of the defendant is irrelevant.[FN20]



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Cases:

Whether store employees intended to, and did, confine customers within boundariesfixed by store and whether customers were conscious of such confinement was forjury in customers' false imprisonment action against store when employees stoppedcustomers as they were seeking to leave store, said two of customers were not

allowed in store, told customers to accompany them and said that police were beingcalled, and then stood guard over customers while they waited for security guardto arrive. McCann v. Wal-Mart Stores, Inc., 210 F.3d 51 (1st Cir. 2000); West'sKey Number Digest, False Imprisonment 39.

Deliberate indifference to medical emergency: Genuine issue of material factexisted as to whether two police officers were deliberately indifferent to allegedshoplifter's diabetic condition, such that alleged indifference resulted in deathof alleged shoplifter, for purpose of police officers' summary judgment motionasserting the defense of qualified immunity, where facts were such that a jurycould infer that police officers knew that depriving alleged shoplifter of aninsulin shot would endanger his health and that police officers deprived him of it

for no better reason that to get him out of the police station. Fed. RulesCiv.Proc.Rule 56, 28 U.S.C.A. Egebergh v. Nicholson, 272 F.3d 925 (7th Cir. 2001);West's Key Number Digest, Federal Civil Procedure 2491.5.

In arrestee's civil rights action against city and police officers, alleging thatdefendants violated his Fourth Amendment rights by arresting him for murderwithout warrant and keeping him in custody for more than 48 hours without judicialprobable-cause determination, defendants were not liable since detention was notunreasonable where arrestee was arrested late at night when it was not likely thatmagistrate was readily available, he was arrested only after witness identifiedhim as murderer, and thereafter police acted with reasonable promptness tocomplete investigation rather than releasing arrestee; nor were defendants liable

for subsequent arrest of arrestee for same murder after he had been releasedfollowing first arrest where second arrest was supported by probable cause basedon three other witnesses' identification of arrestee as man who had argued withvictim on night of murder and police's finding of empty holster in arrestee'sapartment and their knowledge that he had called in sick at work morning aftermurder, which was unusual. Bostic v Chicago (1992, CA7 Ill) 981 F2d 965.

Finding that shopper was falsely imprisoned or wrongfully detained in store wasnot manifestly erroneous; although shopper agreed to go to back of store toclarify that he had not harassed employee, shopper did not agree to be held inroom for at least 30 minutes with employees stationed as guards at door whileemployees decided shopper's fate, shopper's prior attempts to leave store were

thwarted, and there was no legal basis or authority for shopper's detainment.Elrod v. Wal-Mart Stores, Inc., 737 So. 2d 208 (La. Ct. App. 2d Cir. 1999); West'sKey Number Digest, False Imprisonment 5.

City was liable to plaintiff for false imprisonment where plaintiff, whose namewas Allen Hayes, was initially arrested for receiving stolen goods and gave hisnickname to police officers as "Booby," and where city detectives thenmisidentified plaintiff as person wanted under two contempt warrants issuedagainst "Bubba Hayes," which resulted in plaintiff's being rearrested and bookedon contempt charges, though he continuously maintained that wrong person was being


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arrested, and being incarcerated for 171 days. No effort was made by citydetective to determine if there was difference between "Bubba Hayes" wanted inwarrant and "Allen 'Booby' Hayes" arrested on receiving stolen goods charge.Moreover, parish sheriff was also liable based on his failure to investigate intoplaintiff's identity. His duty to investigate arose because several factorsindicated that plaintiff might have been falsely imprisoned and he breached thisduty because, despite indication of problem with identification, he allowedplaintiff to spend nearly six months in jail without once inquiring into why he

had not yet been tried, released or even brought to court. Hayes v Kelly (1993, LaApp 3d Cir) 625 So 2d 628.

Evidence supported verdict for plaintiff on false imprisonment cause of actionagainst city where (1) plaintiff was arrested by city detective without warrantafter complainants falsely reported to detective (who was friend of theirs) thathe had stolen ring while visiting their home, (2) detective ignored plaintiff'sprotestations of innocence and his attorney's insistence to investigate similarincident wherein complainants had accused another man of stealing ring and laterdropped charges, (3) plaintiff was jailed for 28 hours awaiting arraignment,during which time he was strip searched, ridiculed by police, subjected to analcavity search, beaten by cellmates while police watched, and threatened by other

officers for standing too close to cell door, (4) when he was finally produced forarraignment, complainants dropped charges after allegedly finding ring on theirdoorstep, and (5) detective thereafter apologized to plaintiff and offered toarrest complainants; however, malicious prosecution cause of action was notsustained, since plaintiff was released without being arraigned or indicted, andthus he had not been subjected to "unjustifiable litigation." Stile v New York(1991, 2d Dept) 172 AD2d 743, 569 NYS2d 129.

In action for false imprisonment, town was properly granted judgment on agreedstatement of facts where (1) following plaintiff's arrest on probable cause, townpolice promptly discharged their preliminary duties and then notified presidingtown justice of her arrest for purpose of having her brought before court for

arraignment, (2) in response to notice, justice signed securing order whichdirected plaintiff to be detained without bail at county jail until courtreconvened in 4 days, and (3) justice never ordered plaintiff to be arraignedbefore himself or any other appropriate local criminal court in interim; anyunnecessary delay in arraigning plaintiff was attributable to facially validsecuring order issued by court with appropriate authority and jurisdiction. Franzav Greenburgh (1989, 2d Dept) 154 AD2d 436, 546 NYS2d 107.

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[END OF SUPPLEMENT]

3. What constitutes unreasonable or unnecessary delay


Statutes and judicial statements often refer to a duty to take an arrested personbefore a magistrate "immediately," "forthwith," without "unreasonable" or "undue"


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delay, or the like.[FN21] However, these statutory commands are not interpretedliterally, and the basic requirement is that the prisoner be brought before amagistrate as soon as reasonably possible. For example, in interpreting a statelaw that required an arrested motorist to be taken "immediately" before amagistrate, the court stated that the word "immediately" meant with due diligence,and that the question in each case was whether the delay in doing so wasreasonable under all the circumstances of the case.[FN22]

Note:

The propriety of a particular period of detention may be affected by statutesspecifying the period within which a prisoner must be brought before amagistrate.[FN23] However, the mere fact that an arrestee was brought before amagistrate before the expiration of the statutory time limit does not necessarilyrender the delay reasonable or necessary.[FN24]

Regardless of the exact wording of the statutory or judicial rule, therefore, theissue of whether a given delay in taking an arrestee before a magistrate wasreasonable or necessary depends almost entirely on the facts and circumstances ofthe particular case.[FN25] The reasonableness of the length and manner of

detention, including the reasonableness or necessity of any delay in bringing thearrestee before a magistrate is generally considered a question of fact for thejury or other trier of fact.[FN26] However, the issue of whether a particulardelay was unreasonable or unnecessary may become one of law for the court underthe particular circumstances of the case, as where the facts are withoutdispute.[FN27]

The length of detention that will be considered unreasonable or unnecessary variesgreatly, depending on the facts surrounding the detention and arrest, and therulings generally have been only that a particular period of delay was or was notreasonable or necessary under the facts of a given case.[FN28] Even a short delayof as little as an hour may be considered unreasonable by the trier of fact if the

circumstances so indicate.[FN29] Thus, delays involving anywhere from a few hoursup to a week or more have been found or held unreasonable, while at the same timedelays ranging from a few hours up to 7 days have been held legal under theparticular facts involved.[FN30]

While it is obvious, therefore, that mere passage of time alone does notautomatically render a delay unreasonable or unnecessary, the cases also revealthat the longer the delay in taking the arrestee before a magistrate, the morelikely it is that the delay will be found or held to be unreasonable orunnecessary.[FN31]


Cases:

For purposes of 42 USCA 1983 action, arrestee was deprived of her constitutional right not to be subjected to unreasonable delay in coming before magistrate, whereshe was arrested at 9:00 A.M. on Friday and was not taken before judge untilapproximately 4:00 P.M. on Monday, despite fact that magistrate was on call 24hours each day, and arrestee was held impermissibly for 2 days after judgedirected her release on bail, in violation of her constitutional rights. Hallstrom


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v Garden City (1993, CA9 Idaho) 991 F2d 1473, 93 CDOS 2636, 93 Daily Journal DAR4546.

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[END OF SUPPLEMENT]

4. Factors considered in determining whether delay was unreasonable or unnecessary--Accessibility of magistrate


The accessibility or inaccessibility of a magistrate has been treated by thecourts as a major factor in determining whether a delay in taking an arresteebefore a magistrate was justified and reasonable. It has been said that a police

officer's duty to take an arrested person before a magistrate is conditional on amagistrate being available to receive the arrestee,[FN32] and a delay is justifiedwhere the magistrate is unavailable at the time of arrest or at the time ofarrival at the magistrate's office or other location.[FN33] Indeed, it has beenheld that when an action for false imprisonment is based on an unreasonable orunnecessary delay in taking is based on an unreasonable or unnecessary delay intaking the arrestee before a magistrate, an essential element of the plaintiff'scase is proof that a magistrate was available on the day and at the time that thefalse imprisonment occurred.[FN34]

The question of a magistrate's availability frequently arises in cases where anarrest was made after normal business hours, and recovery has been denied in a

number of cases where the arrest was made or arrival at the magistrate's locationoccurred at a late hour, or at least later than the normal business hours.[FN35]

Case Illustration:

A delay of 5 hours or more in taking an arrestee before a magistrate was necessaryand unavoidable, where the evidence showed that the justice of the peace officeswere closed at the time of day when the arrest occurred, that the sheriff'sofficers unsuccessfully tried to contact a magistrate to arraign the arrestee, andthat the arrestee was arraigned after the sheriff's officers finally located anavailable magistrate.[FN36]

Where the evidence shows that, notwithstanding the lateness of the hour, amagistrate was available, the delay will be found or held unreasonable andrecovery will be allowed for false imprisonment.[FN37]

Case Illustrations:

The plaintiff was arrested after 10:00 p.m. and arrived at the jail at 10:58 p.m. His attorney arrived at the jail about 11:00 p.m. and telephoned a magistrate, whoagreed to either come to the courthouse or to have the arrestee brought to hishome. The attorney informed the deputy in charge of the magistrate's availabilityand also telephoned the sheriff to inform him of the magistrate's availability.


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The sheriff also received a similar call from the magistrate, but the sheriffstill refused to take the arrestee before the magistrate. It was held on appealthat the plaintiff had sufficiently proved availability of the magistrate and hadmade a submissible case for the jury.[FN38]

A jury verdict finding two city police officers liable for false imprisonment of the plaintiff was affirmed, where, although the plaintiff was arrested at 11:00p.m. and the magistrate generally was not available after 9:00 p.m., there was

evidence that on other occasions when an arrest was made late at night the policehad telephoned the magistrate, who, if he was home, would make himself available.The appellate court stated that, although the failure to take the plaintiff beforea magistrate would have been excused if good grounds had existed for the beliefthat a magistrate was not available, such was not the case, since the defendantofficers made no attempt to determine whether the magistrate was or would makehimself available.[FN39]

The intervention of a Sunday or other legal holiday, during which the courts arenot in session, may also justify a delay in bringing an arrestee before amagistrate for arraignment. However, failure to bring the arrestee before amagistrate the next Monday morning or regular business day may result in liability

for false imprisonment. Moreover, in some cases it has been held that theintervention of a Sunday or holiday did not necessarily make the delayreasonable.[FN40] For example, in one case it was held that the fact that largenumbers of people were arrested on a weekend did not justify a failure to take thearrestees before a magistrate, where there was no showing that a magistrate wasunavailable or that the police had attempted to secure a magistrate.[FN41]

The fact that a magistrate is initially unavailable does not forever relieve anarresting officer of his duty to take an arrestee before a magistrate. Thus, if amagistrate is not available at first, the arresting officers must still take thearrestee before a magistrate as soon as it is reasonably possible to do so.[FN42]A court may require some showing of an attempt to locate a magistrate before it

will accept unavailability as an excuse for a delay, and the efforts of the policeto contact a magistrate may make the difference between recovery or nonrecoveryfor false imprisonment.[FN43]


Cases:

Tricky jurisdictional questions: Accused burglar is not entitled to suppression ofhis confession, where inappropriate delay in getting him before magistrate was dueto tricky questions of jurisdiction and whether to proceed with state, federal, or

tribal prosecution, because all other evidence indicates that accused madevoluntary waiver of his rights prior to 3 interrogations, and Tenth Circuit'sapproach not making 6-hour time limit sole criterion is good policy and harmoniouswith congressional intent in 18 USCA 3501. United States v Duncan (1994, DC Utah) 857 F Supp 852.

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5. Factors considered in determining whether delay was unreasonable or unnecessary--Other duties of officer; delay for investigative purposes

One factor that may be considered in determining whether a given delay in bringingan arrestee before a magistrate was reasonable is the unavoidable or required

duties of the arresting officer. A delay may be justified on the ground that thearresting officer had other pressing duties to attend to before taking theprisoner before a magistrate.[FN44] For example, where the arresting officer'sassistance in the suppression of a riot is required, a delay in taking an arresteebefore a magistrate may be considered reasonable.[FN45] However, before theexistence of other duties elsewhere can be accepted as justification for a delay,it must appear that the delay was in fact due to the performance of such otherduties. For example, in an action based on mass arrests of racial protestdemonstrators, the court held that the mere fact that large numbers of people werearrested did not justify the failure to take them before a magistrate. The courtstated that, while mass arrests might cause problems for the arresting officers,it did not relieve them of their duty to make a reasonable effort to bring thearrestees before a magistrate without unnecessary delay.[FN46]

Police officers have on occasion attempted to justify a delay in bringing anarrestee before a magistrate on the ground that the delay was for the purpose ofpermitting the arresting officer to further investigate the case or to consultwith others as to further procedures, but most jurisdictions have rejected suchjustification.[FN47]

Case Illustration:

Where police officers arrested the plaintiff on suspicion of burglary around 9:30p.m. or 10:00 p.m., detained him in custody without charges that evening and allthe next day for purposes of completing the investigation, and then charged him

with disorderly conduct and released him on bail the following morning, theplaintiff was held entitled to a verdict for false imprisonment. In so holding,the court noted that the plaintiff could have been taken before a magistrate onthe morning following his arrest and that it was normal procedure to do so, andstated that the lack of sufficient evidence to file charges was not an excuse fordetention, but rather was the evil that the requirement of of prompt presentationbefore a magistrate was designed to correct.[FN48]

In some cases, however, a delay for purposes of investigation or consultation hasbeen held justified, and in a few cases a delay in taking an arrestee before amagistrate has been held justified where the delay was for the purpose ofidentification of either the victim or the arrestee.[FN49]

Case Illustration:

Three boys were arrested for curfew violation after the police had received areport of a prowler in the vicinity. One of the boys fit the description of theprowler, so police officers took them to the home where the prowler had been seen.After the people there were unable to make an identification, the boys were takento the station house on the curfew charge. In the action for false imprisonment byone of the boys, it was held that the deviation of approximately 10 minutes intaking the boys to the complainants' home was necessary and prudent forinvestigative purposes, and that the delay in taking them before a magistrate was


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therefore not unreasonable or unnecessary.[FN50]

Note:

Some states have statutes that expressly permit a person's detention withoutarrest for defined periods of time for investigative purposes.[FN51] In such astate a defendant in a false imprisonment action might assert that a detention wasfor purposes of investigation pursuant to such a statute.

An otherwise unjustified delay for investigative purposes may be consented to bythe arrestee, and in such a case no false imprisonment will be found.[FN52]

6. Factors considered in determining whether delay was unreasonable or unnecessary--Mental or physical condition or conduct of arrestee

A circumstance that may be considered in determining whether a delay in taking anarrestee before a magistrate was reasonable or necessary is the mental or physicalcondition or the conduct of the arrestee at the time of arrest.[FN53] A delay in

bringing an arrestee before a magistrate may be justified on the ground that thearrestee was not in a physical or mental condition to appear, or that thearrestee's obstreperous conduct or resistance to arrest made the delaynecessary.[FN54]

Case Illustration:

The plaintiff was struck several times and shot in the leg while resisting arrest.When finally subdued, he was taken to the jail, where he was seen by a physician,and then released within approximately an hour and taken to a hospital. Theappellate court held that under the facts, which showed that the plaintiff wasseriously injured and in immediate need of medical attention, there was noviolation of a statute requiring an arrestee to be taken forthwith before a

magistrate.[FN55]

Although a few cases have rejected the intoxication of the arrestee as a groundfor delay in bringing him before a magistrate, most of the courts considering thequestion have indicated that the arrestee's intoxication may, at least under somecircumstances, justify some delay.[FN56] For example, it has been held that wherean officer arrests a drunken person, he need not take the person before amagistrate until the person is sober enough to avoid rearrest; in the interim, theofficer may detain the person in the most convenient and suitable jailavailable.[FN57]

7. Factors considered in determining whether delay was unreasonable or unnecessary--Failure to take arrestee before nearest magistrate

An arrestee should ordinarily be taken before the nearest magistrate by means ofthe most direct route.[FN58] Liability for false imprisonment has generally beenimposed in cases where the arresting officer moved the arrestee to another town,county, or district to appear before a magistrate there, notwithstanding theavailability of a magistrate in the area of arrest.[FN59]

Case Illustration:


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At the time of the plaintiff's arrest, there was a duly qualified and actingjustice of the peace in the town where she was arrested. The town marshallnonetheless transported the plaintiff 25 miles to the county seat, where she wasimprisoned in the county jail for 30 minutes before release. In affirming a juryverdict for the plaintiff in her action for assault and battery and falseimprisonment, the court held that, in light of the presence of a justice of thepeace in the town where she was arrested, her transportation and incarceration in

jail in another town were not necessary.[FN60]

Under some circumstances, the arrestee's removal to another town or county may bejustified. For example, where the nearest magistrate is inaccessible at the timeof arrest, it is permissible to take the arrestee to a more distantmagistrate.[FN61] Also, where, by virtue of better roads or other transportationfacilities, the most accessible magistrate is not the nearest one, it ispermissible to take the arrestee to the more accessible magistrate,notwithstanding the greater distance traveled.[FN62] Under some circumstances itmay be permissible to remove the arrestee to another county, even when to do soprecludes taking the arrestee before the nearest and most accessible magistrate.

Case Illustration:

The plaintiff's arrest for public drunkenness occurred near the town of Sumrall inPerry County, which town had a justice of the peace. However, the arrestinghighway patrol officer took her to a jail located in the city of Hattiesburg inForrest County, a distance of about 20 miles. The Hattiesburg jail was on theofficer's assigned route, and he took the plaintiff there because it was the mostconvenient and suitable jail for detention of a woman, and because she wasintoxicated and in no condition to be given a hearing at the time. On appeal, thecourt held that the plaintiff's removal to and detention in the Forrest Countyjail was not unreasonable and did not cause an unnecessary delay in taking herbefore a magistrate.[FN63]

8. Effect of unreasonable or unnecessary delay--Doctrine of trespass ab initio

The question has sometimes arisen as to whether delay in bringing an arresteebefore a magistrate has any effect on the legality of the original arrest. In manycases it has been held that failure to bring an arrestee before a magistratewithout unreasonable or unnecessary delay renders the defendant liable as atrespasser ab initio, even though the original arrest may have been lawful orjustified. Under such an approach, the arrest is rendered unlawful from thebeginning and the defendants are liable for all injurious consequences to theplaintiff until such time as he is taken before a magistrate.[FN64] For example,in one case it was held that where the arresting officer never took the arrestees

before a magistrate for arraignment, the officer was a trespasser ab initio andthe existence of probable cause or justification for the arrest was no protectionfor him.[FN65]

Some courts have declined to adopt the above rule, and a number of cases have heldthat unnecessary or unreasonable delay in bringing an arrestee before a magistratedoes not render the arresting officer liable as a trespasser ab initio, at leastwhere the original arrest was made in good faith without intent to subsequentlyillegally restrain the arrestee.[FN66] Thus, it has been held that where thearrest is lawful, a subsequent unreasonable delay in taking the arrestee before a


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magistrate does not affect the legality of the arrest. However, the offendingperson is subject to liability for so much of the imprisonment as occurs after theperiod of necessary or reasonable delay.[FN67]

A number of courts following this rule have indicated that it is conditioned notonly on the lawfulness of the arrest but also on the arresting officer's goodfaith.[FN68] Thus, such courts have indicated that the doctrine of trespass ab

initio is applicable only where the original arrest was made for the purpose ofand as a cover for committing some subsequent wrong, such as unnecessarily orunreasonably detaining the arrestee.[FN69]

9. Persons liable


Police officers traditionally have been held personally liable for damages for

false imprisonment. Thus, as a general rule the arresting officer is liable forfalse imprisonment for unnecessary or unreasonable delay in taking an arresteebefore a magistrate.[FN70]

Note:

The doctrine of governmental immunity has traditionally been applied to precludeliability of the employing governmental entity for a false imprisonment committedby its police officers. However, with the trend away from governmental immunityand toward liability, a public employer in some states might now be liable for afalse imprisonment committed by one of its employees.[FN71] The Federal TortClaims Act now provides that liability of the United States may be based on claimsarising out of false arrest or false imprisonment committed by federal

investigative or law enforcement officers.[FN72]

Where an arrest is made by a private citizen, such as a store detective or otherprivate police officer, both the arresting person and his principal or employermay be held liable for false imprisonment if there is an unnecessary delay intaking the arrestee before a magistrate.[FN73]

Note:

In order to hold a principal liable for punitive damages, there generally must besome evidence of the principal's participation in, authorization of, orratification of the acts of his agent.[FN74]

Where someone other than the arresting officer is partially or wholly responsiblefor the unnecessary delay, questions arise as to the liability of the arrestingofficer. Generally, an arresting officer is not excused from liability for anunreasonable delay in taking an arrestee before a magistrate by reason of the factthat the officer was following a superior's orders.[FN75]

There is a divergence of opinion as to the liability of the arresting person, orof his principal or employer, for a delay that occurs after the arresting person


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has delivered the arrestee to the custody of another person. Some courts haveimposed continuing responsibility on the arresting officer, holding that deliveryof an arrestee to another person does not relieve the arresting officer of hisduty to take the arrestee before a magistrate without unreasonable delay. Othercourts have found the arresting officer not liable under such circumstances,holding that once the arresting officer has properly delivered custody to someother officer, such as the jailer or investigating detectives, the arrestingofficer's responsibility is terminated and he is not liable for any subsequent

delay in taking the prisoner before a magistrate.[FN76]

Case Illustration:

Where the plaintiff was arrested by store employees for shoplifting, then turnedover to the city police, the responsibility of the store employees ended when theyturned the plaintiff over to the police, and the fact that the plaintiff was nottaken immediately before a magistrate did not render the store employees liablefor false imprisonment.[FN77]

The size of the governmental unit or the police department may have a bearing onthe determination of whether the arresting officer's delivery of custody to

another officer will relieve the arresting officer of liability. In a small policedepartment it might be expected that the arresting officer, notwithstanding thetransfer of custody to another officer, might still be aware of the futurehandling of the prisoner and of the fact that he was not brought before amagistrate. On the other hand, in a large police department it is unlikely thatthe arresting officer will have any knowledge concerning what happens to thearrestee once he has been turned over to other officers.

Case Illustration:

The plaintiff was arrested by the defendant police officers, who were patrolofficers for the Chicago police department. The arresting officers turned theplaintiff over to investigating detectives within hour of the arrest. The

appellate court reasoned that, to be efficient, a city Chicago's size requires ahighly organized police department with a division of authority and functions, andthat the courts should recognize such reality. Thus, the court held, when a patrolofficer turns an arrestee over to the proper persons, such as investigatingdetectives, the patrol officer's responsibility and duties cease, and he cannot beheld liable for any subsequent unlawful detention.[FN78]

The general rule is that all persons who participate in the various stages of thearrest and illegal detention may be liable, and it has thus been held orrecognized in a number of cases that a person other than the arresting officer maybe liable for false imprisonment, where such person, his agent or employee,participates in or is responsible for the delay in taking the arrestee before a

magistrate. Thus, courts have imposed liability for false imprisonment on personsother than the arresting officer where such persons took part in, either directlyor indirectly, or proximately caused the unreasonably long detention of anarrestee. However, where such other person was in fact not responsible either forthe arrest or for the unnecessary delay, the courts have denied liability.[FN79]

In some cases the chief or superintendent of police has been sued based on anofficer's failure to take a prisoner before a magistrate without unnecessarydelay. Where the chief or superintendent either ordered the imprisonment of thearrestee or was the keeper of the jail or prison, the courts have imposed


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liability for the delay. However, where the chief of police was unaware that thearrestee had not been taken before a magistrate, the courts have denied liability,since the chief was not responsible for the delay.[FN80]

Case Illustration:

In an action for false imprisonment against the chief of police, the court heldthat the police chief could be held liable for an officer's failure to take a

prisoner before a magistrate only if the chief directed, countenanced, orcooperated in the delay. Where there is no evidence that the chief knew of thedelay in taking the prisoner before the magistrate, the chief cannot be heldliable for false imprisonment.[FN81]

The jailer in whose custody an arrestee is placed may also be held liable forfalse imprisonment, if the jailer detains the arrestee for an unreasonable periodof time before taking him before a magistrate.[FN82] However, where the decisionto incarcerate an arrestee rests with some other officer, and the officer incharge of the jail has no discretion with respect to whether to incarcerate or torelease a prisoner, the officer in charge of the jail cannot be held liable.[FN83]


Cases:

Evidence was insufficient to support conclusion that police department or chiefcaused incarceration of person for 14 months without charges being filed, forpurposes of 42 USCA 1983 action, where although chief knew that person was incarcerated and neither department nor chief promulgated any written proceduresto guide criminal investigation, no evidence showed that chief's lack of actioncaused person's deprivation of liberty or that some departmental custom was movingforce behind person's incarceration. Tilson v Forrest City Police Dep't (1994, CA8

Ark) 28 F3d 802.

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10. Arrestee's consent to or waiver of delay


The general rule is that an arrestee's conduct may constitute a waiver of theright to complain of the failure promptly to take him before a magistrate. Thereis ordinarily no liability where the arrestee causes, consents to, or requests thedelay.[FN84]

A number of cases have held that where the arrestee, at his own request or withhis consent, is discharged from custody rather than taken before a magistrate, a


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waiver may be found of the right to complain of failure to take him before amagstrate without unreasonable delay. A waiver has also been found in severalcases where the arrestee was released from custody on his promise to appear at afuture time.[FN85] Some states have rejected the general rule, finding no waiverwhere the arrestee was released at his own request or with his consent, sometimeseven where the arrestee had entered into an agreement with authorities to releaseany claim for damages.[FN86] And, at least in Massachusetts, it may be a juryquestion as to whether any waiver of the right to be taken before a magistrate was

voluntary, when such waiver was given to secure the arrestee's release fromcustody.[FN87]

In a few cases the arrestee has been deemed to have waived the failure to take himbefore a magistrate without unreasonable delay, where the arrestee agreed toforego an appearance before a magistrate while awaiting the outcome of aninvestigation of the case.[FN88]

Case Illustration:

The plaintiff was arrested on suspicion of grand theft on a charge by a privatecitizen that she had stolen a ring. On the morning following her arrest she was

interviewed by the detective investigating the case, who, on concluding that shedid not have much money, suggested to her that she defer obtaining an attorney andrelease on bail until completion of the police investigation, which he would speedup as much as possible. The plaintiff assented to the suggested procedure and,following his investigation, the detective recommended that the plaintiff bereleased without charge because of insufficient evidence, which was done. Theplaintiff had been imprisoned more than 36 hours without being taken before amagistrate. The appellate court, in affirming a judgment in favor of the detectiveand the various other defendants, stated that the plaintiff could not takeadvantage of a delay in which she acquiesced and which was due to her own conduct,and held that the trial court could have concluded that the plaintiff was nottaken before a magistrate only because she had expressed a desire not to soappear, and that the detention was therefore not unreasonable.[FN89]


Cases:

Detainee's civil rights claim against police officers is denied summarily, whereclaim was based on officers' placement of detainee in second 12-hour protectivecustody, because although officers violated state law by keeping detainee incustody beyond initial 12-hour period, officers were entitled to qualifiedimmunity since they asked detainee if he wanted to leave and he either said "no"or did not respond; in light of this, reasonable officer may have reasonably but

mistakenly concluded that detainee could remain in custody without violating hisFourth Amendment rights. Ringuette v City of Fall River (1995, DC Mass) 906 F Supp55.

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11. Burden of proof and evidence[FN90]


The burden of proof of all material elements in a false imprisonment action rests

on the plaintiff.[FN91] Where an arrest is made without a warrant, there is apresumption that the arrest and following imprisonment were unlawful, and theburden of showing lawful authority rests on the defendant.[FN92] However, wherethe arrest is lawful and the only issue is whether there was an unnecessary delayin taking the arrestee before a magistrate, the burden of proof of unnecessarydelay rests on the plaintiff, who must prove all the elements essential to showunreasonable or unnecessary delay.[FN93]

Note:

It has been held that the burden of proving that the plaintiff was released fromcustody at his own request is on the defendant.[FN94]

The rules governing the admissibility of evidence in civil actions generally areequally applicable to actions for false imprisonment. Generally, where an actionfor false imprisonment is based on an unnecessary or unreasonable delay inbringing the arrestee before a magistrate, all the facts and circumstancesconnected with the arrest and detention, and particularly those facts andcircumstances relating to the reason for the delay, are relevant and admissible inevidence.[FN95] The weight and sufficiency of the evidence to support a verdict isdetermined by the general rules of evidence applicable in civil actions.[FN96] Ajury verdict will not be overturned if there is some competent evidence to supportit.[FN97]


Cases:

While a delay of over 48 hours between a warrantless arrest and a judicialdetermination of probable cause is not per se unlawful, under the FourthAmendment, the government bears the burden to demonstrate the existence of a bonafide emergency or other extraordinary circumstance that led to the delayedprobable cause determination. U.S.C.A. Const.Amend. 4. Cherrington v. Skeeter, 344F.3d 631, 2003 FED App. 0342P (6th Cir. 2003); West's Key Number Digest, CivilRights 1404.

Expert testimony as to municipal police policies: Although expert could havetestified that discipline in municipal police department was lax and as to what hebelieved to be consequences of lax discipline, he could not testify that laxdiscipline policies of police department indicated that municipality wasdeliberately indifferent to welfare of its citizens since "deliberateindifference" is legal term to be defined by court, not witnesses. Berry v City ofDetroit (1994, CA6 Mich) 25 F3d 1342, 39 Fed Rules Evid Serv 960, 94 FED App 215p.

Once police officer defending claim of false arrest moves for summary judgment on


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ground that his actions were supported by probable cause and submits evidence thatduly authorized judicial officer found probable cause, defendant has necessarilyput probable cause at issue, and plaintiff must thus come forward and show thatthere is issue of fact as to existence of probable cause to survive summaryjudgment. Simmons v Pryor (1994, CA7 Ill) 26 F3d 650.

Unexplained detention of 17 days before being charged with crime for which

detainee is held is presumptively unconstitutional and precludes grant of summaryjudgment in favor of defendant on plaintiff's 42 USCA 1983 claim. Sivard v Pulaski County (1992, CA7 Ind) 959 F2d 662.

In civil rights action against police officers alleging illegal arrest, excessiveforce and false imprisonment, officers' personnel records were not admissible inevidence to show prior bad acts. Robinson v St. Charles (1992, CA8 Mo) 972 F2d974.

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12. Elements of damages: guide and checklist


Assessment of potential damages is important to a determination of whether to file

an action for false imprisonment. In many cases the plaintiff may be able to provethat the delay in bringing him before a magistrate was unreasonable so as toconstitute false imprisonment, but be unable to prove any damages as a resultthereof, and in such a situation it might be better to file no action atall.[FN98]

Generally, all defendants who are found guilty in false imprisonment actions areequally liable for compensatory damages.[FN99] The general rule is that theplaintiff can recover as damages all the natural and probable consequences of thefalse imprisonment.[FN1] While the mere fact of an unlawful detention generallyentitles the plaintiff to at least nominal damages, there must be some proof ofactual damages to entitle the plaintiff to any greater recovery. Where there isevidence of actual damages, the plaintiff is entitled to recover such a sum as

will be a fair and just compensation for the injuries sustained.[FN2]

With respect to compensatory damages, the plaintiff may introduce evidenceconcerning the circumstances and conditions of confinement during the illegaldetention; evidence of the plaintiff's mental suffering, including fright,humiliation, and mortification, is generally admissible, at least where there issome evidence of physical injury as well, and evidence of damage to reputation orcharacter is also generally admissible.[FN3]Case Illustration:

Evidence that the plaintiff spent the night in a frigid, unattended, unsanitaryjail, that he became sick, with a nervous stomach, frequent vomiting, loss of


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weight and sleep over a period of several weeks, and that the anxiety forced himto drop out of school, was sufficient to sustain an award of $5,000 in actualdamages for false imprisonment.[FN4]

The plaintiff may also introduce evidence of and recover damages for anyreasonable and necessary expenses incurred in obtaining release from the illegaldetention.[FN5] In this regard, the plaintiff may recover any attorneys' fees that

were proximately and necessarily caused by the unreasonable delay in bringing himbefore a magistrate.[FN6] For example, in an action for false arrest, it was heldpermissible for the plaintiff, arrested on shoplifting charges, to show thecircumstances under which she was released from custody, including the furnishingof bond and the employment of an attorney.[FN7]

In most jurisdictions exemplary or punitive damages may also be recovered in anaction for false imprisonment, if there is evidence that the defendant actedrecklessly, willfully, or maliciously in arresting or in unreasonably detainingthe plaintiff.[FN8] Evidence that the defendant acted out of malice or in badfaith, or that he acted without probable cause, although not admissible either inmitigation of compensatory damages or on the issue of whether there was a falseimprisonment, is admissible on the issue of punitive damages. Similarly, evidence

that the officer acted in good faith or with probable cause is relevant andadmissible in mitigation of punitive damages.[FN9]Case Illustration:

Evidence that the imprisonment of the plaintiff and a 7-week period of harrassmentof him by the defendant police officers were motivated by one defendant's concernover the plaintiff's knowledge of that defendant's extramarital affair wasadmissible and sufficient to warrant an inference of malice and an award ofpunitive damages of $2,500 against each of the two defendants.[FN10]

The general rule is that in order to hold a principal liable for punitive orexemplary damages, he must have participated in, authorized, or ratified thewrongful conduct or acts relied on to support such damages. Thus, a principal

ordinarily may not be held liable for punitive damages merely by reason of anagent's wanton or malicious conduct in connection with the false imprisonment.However, some courts have rejected this rule, holding instead that if the act isdone in the course of employment, ratification or authorization by the principalis not necessary to support an award of punitive damages against theprincipal.[FN11]

As in civil cases generally, the question of the amount of damages, bothcompensatory and punitive, to be awarded in an action for false imprisonment isprimarily one for the jury. While both trial and appellate courts may review theamount of damages awarded, such awards will be set aside or a remittitur orderedonly in extreme cases, either for excessiveness or inadequacy.[FN12]Checklist:

For general checklists of elements of damages in personal injury, wrongful death,and survival actions see 28 Am. Jur. Proof of Facts 2d 167 18. The elements of damages listed there are equally recoverable in an action for false imprisonmentwhere personal injury or wrongful death results as a proximate result thereof.Testimony as to the following additional elements of damages whould be elicited,when applicable, in an action for false imprisonment based on an unreasonable orunnecessary delay in taking an arrestee before a magistrate:

? Injury to plaintiff's reputation


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In the community where plaintiff lives

In the community where plaintiff is employed

? Mental distress and injury to plaintiff's feelings incarceration

As a result of humiliation, embarrassment, or shame

As a result of the reaction of others toward plaintiff

? Reasonable and necessary expenses incurred to obtain release from custody

Attorneys' fees

Cost of bail bond

Other expenses incurred to obtain release

? Existence of aggravating circumstances, where punitive damages are sought

Bad faith or actual malice

Lack of probable cause


Cases:

Store employee's conduct in denying 12-year-old customer's request to use bathroomwhile customer was being detained, mistakenly, as former shoplifter was notoutrageous conduct supporting award of punitive damages under Maine law whencustomer did not pursue matter after his request was denied, even considered inconjunction with other circumstances, including that employee allegedly violatedstore policy by detaining customer rather than asking him to leave, that employeepointed finger at customer while accusing him of stealing, and that employeefailed to clear up identity of customer and his mother and sister, who also weredetained, at earlier stage in incident. McCann v. Wal-Mart Stores, Inc., 210 F.3d

51 (1st Cir. 2000); West's Key Number Digest, False Imprisonment 35.

Award of $1.1 million in punitive damages in 1981 action brought against department store by African-American customer, who alleged that store hadimpermissibly interfered with her right to enforce fragrance sample coupon, whichwas benefit of her purchase contract with store, when it pretextually stoppedcustomer's niece to investigate possible shoplifting, was not excessive, and didnot violate store's due process rights; jury was presented with evidence regardingstore's closer surveillance of African-American shoppers, and award of punitivedamages in amount almost 20 times greater than compensatory damages was not


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disproportionate or conscience-shocking. U.S.C.A. Const.Amend. 5. Hampton v.Dillard Dept. Stores, Inc., 247 F.3d 1091 (10th Cir. 2001); West's Key NumberDigest, Constitutional Law 303.

Remittitur of punitive damages award was required under due process clause ofFourteenth Amendment, in customer's lawsuit against business alleging assault,battery, and false imprisonment, since compensatory damages award was generous and

jury's punitive award of 12 times compensatory damages represented more than one-third of business' yearly revenue and much larger percentage of its income afterexpenses. U.S.C.A. Const.Amend 14. Fresh v. Entertainment U.S.A. of Tennessee,Inc., 340 F. Supp. 2d 851 (W.D. Tenn. 2003); West's Key Number Digest, Pensions303.

Award of $150,000 in punitive damages to arrestee who prevailed in her claimsagainst store and store loss control manager for malicious prosecution andintentional infliction of emotional distress was supported by evidence that storeand loss control manager acted with malice in causing arrestee to be arrested forshoplifting even though loss control manager admitted that she did not seearrestee shoplifting, and by evidence that store and loss control manager acted

with conscious indifference to consequences in causing arrestee to be arrested andjailed. O.C.G.A. 51-12-5.1(b). K-Mart Corp. v. Lovett, 241 Ga. App. 26, 525 S.E.2d 751 (1999), cert. denied, (Mar. 10, 2000); West's Key Number Digest,Damages 94.

Teacher, who chained high school student to tree allegedly as joke, was notentitled to directed verdict on student's false imprisonment and assault andbattery claims since neither of these intentional torts required proof of damagesfor at least a nominal award and there was sufficient proof of emotional damageswhich would justify submitting the issue to the jury. Banks v. Fritsch, 39 S.W.3d474, 152 Ed. Law Rep. 379 (Ky. Ct. App. 2001); West's Key Number Digest, Assaultand Battery 42.

Casino patron waived for appellate review issue as to whether he deserved newtrial on basis of inconsistent jury verdict, which awarded him punitive, but notactual or nominal, damages upon finding that casino was liable for false arrest;only basis for new trial was that a verdict in patron's favor, without an award ofactual damages, was an inconsistent verdict, but once that verdict was rendered,burden was on patron to ask trial court to instruct jury to award him nominaldamages if it did not find that he suffered actual damages, and patron failed todo so. Blue v. Harrah's North Kansas City, LLC, 170 S.W.3d 466 (Mo. Ct. App. W.D.2005), reh'g and/or transfer denied, (63948)(Aug. 2, 2005) and transfer denied,(Sept. 20, 2005); West's Key Number Digest, Appeal and Error 216(1).

In action against Port Authority of New York and New Jersey for wrongfullydetaining plaintiff for 3 hours after 3 of defendant's police officers had assaulted and arrested him in presence of his stepdaughter, damages of $100,000(reduced by stipulation from jury award of $318,000) were not excessive despitebrief duration of detention, lack of claim for lost earnings, and absence ofmental or physical injury, since incident had racial overtones, and mostsignificant aspect of damage claim was abject humiliation to which plaintiff wassubjected in presence of his young impressionable stepdaughter, which causedstrain on his relationship with her. Bert v Port Authority of New York & NewJersey (1990, 1st Dept) 166 App Div 2d 351, 561 NYS2d 416.


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Evidence supporting jury's punitive damages award in patron's false imprisonmentaction against store, which detained patron for suspected shoplifting, was legallyand factually sufficient, and viewed from the eyes of public policy, punitivedamages award of $50,000 was not excessive; nature of wrong was emotional harmpatron sustained as a result of this incident, patron's personality changed afterthe incident, patron experienced nightmares and testified this incident caused him

to be depressed, and patron testified that store's security guard prevented himfrom taking medication for a migraine headache, handcuffed him, placed him on thefloor in front of other people, and dumped his shopping bag on the floor. DillardDept. Stores, Inc. v. Silva, 106 S.W.3d 789 (Tex. App. Texarkana 2003), reh'goverruled, (June 10, 2003) and petition for review filed, (July 22, 2003); West'sKey Number Digest, False Imprisonment 36.

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12.5. Defense considerations



Cases:

Under Kentucky law, shoplifting arrestee's stipulation, in exchange for dismissalof charges, that probable cause existed for her arrest precluded arrestee'ssubsequent defamation action against store owner and mall owner based onallegations of shoplifting, even though stipulation was entered into withgovernment, not with store or mall. Pennington v. Dollar Tree Stores, Inc., 104 F.Supp. 2d 710 (E.D. Ky. 2000); West's Key Number Digest, Libel and Slander 30.

Plaintiff's wrongful detention claim against officers in their individualcapacities is not denied summarily, where officers claimed that plaintiff's 8-hourdetention at police station was based on good-faith suspicion, because qualifiedimmunity turns on objective reasonableness of action assessed in light of legalrules clearly established when action was taken, and because at time of detention

clearly established legal rules provided that transportation of suspect to, andprolonged detention at, station was indistinguishable from arrest and requiredprobable cause, so, in light of officers' violation of clearly established law,they are not entitled to qualified immunity. Craig v Fuselier (1994, WD La) 861 FSupp 1290.

New York statute which allows as a defense to torts such as false imprisonment aretailer's reasonable detention of a person attempting to commit larceny on itspremises did not convert department store security guard into "state actor," forpurposes of 1983 liability for alleged violation of 14-year-old girls' Fourth


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Amendment rights when guard forced the girls to strip to their underclothes afterthe guard caught them shoplifting, even though the guard called police who thenarrested the girls on the strength of the guard's statements. U.S.C.A.Const.Amend. 4; 42 U.S.C.A. 1983; N.Y.McKinney's General Business Law 218. Guiducci v. Kohl's Dept. Stores, 320 F. Supp. 2d 35 (E.D. N.Y. 2004); West's KeyNumber Digest, Pensions 1326(9).

Assuming a Fourth Amendment violation occurred due to failure to provide defendantwith a probable cause determination within 48 hours of arrest, defendant's finalconfession was sufficiently an act of free will to purge the primary taint of theunlawful invasion, where defendant was repeatedly given Miranda warnings,defendant gave several incriminating statements during the 48-hour period, withonly the very last version of his confession being given after 48 hours elapsed,defendant had numerous breaks, outings, refreshments, and quiet reflection duringperiod, there was probable cause to arrest defendant at time he was firstdetained, and continued detention focused on locating his child victim, ratherthan on gathering additional evidence to justify the arrest. U.S.C.A. Const.Amend.4; West's F.S.A. RCrP Rule 3.133. Chavez v. State, 832 So. 2d 730 (Fla. 2002),cert. denied, 123 S. Ct. 2617, 156 L. Ed. 2d 637 (U.S. 2003); West's Key NumberDigest, Criminal Law 519(8).

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II. Proof of Failure to Take Arrestee Before Magistrate Without Unreasonable orUnnecessary Delay

A. Elements of Proof

13. Guide and checklist


The following facts and circumstances, among others, tend to establish that adelay in taking an arrestee before a magistrate was unreasonable and unnecessary,so as to constitute false imprisonment:

? Arrest of plaintiff by defendant [ 14, 22]

? Incarceration of plaintiff [ 16, 22]

? Length of delay (overnight detention) [ 17, 22]

? Lack of consent by plaintiff to delay [ 19]


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? Defendant's refusal of requests to take plaintiff before magistrate

Refusal of requests by plaintiff [ 15, 17]

Refusal of request by plaintiff's attorney [ 21]

? Defendant's desire for further investigation as reason for delay [ 16, 17, 21]

? Availability and accessibility of magistrate [ 20, 25, 27, 28]

? Feasibility of taking plaintiff before magistrate [ 25]

? Mental and physical condition of plaintiff as no bar to appearance beforemagistrate [ 23]

? Conduct of plaintiff as no bar to appearance before magistrate [ 23]

? Lack of other duties precluding defendant from taking plaintiff beforemagistrate [ 24]

? Defendant's previous policy of taking arrestees before magistrate at night [26]

? Magistrate's previous policy of setting bond for arrestees at night [ 29]

? Release of plaintiff without charge and without appearance before magistrate [18, 22]

[In the following proof it is assumed that the plaintiff is seeking recovery forfalse imprisonment solely on the theory that the defendant failed to take the

plaintiff before a magistrate without unreasonable or unnecessary delay. Forpurposes of the proof, it is therefore assumed that the plaintiff is notcontesting the legality of the arrest itself. In a particular case, however, aplaintiff might well join an action for false imprisonment based on unnecessarydelay with actions for false arrest and/or malicious prosecution.]


Cases:

In a personal injury action against a police officer, the trial court erred in

ordering the officer to answer interrogatories asking for, inter alia, his homeaddress and home telephone number without complying with the statutory procedureswhich created a conditional privilege as to personnel records of and personalinformation about peace officers. The privilege applies to both personnel recordsand information obtained from the records. The statute was intended to create aprivilege for all information in peace officers' personnel files without regard towhether the information could also be obtained from the officer or elsewhere.Hackett v Superior Court (1993) 13 Cal App 4th 96, 16 Cal Rptr 2d 405, 93 CDOS1038.


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B. Testimony of Plaintiff

14. Arrest of plaintiff by defendant

[After introduction and identification of witness]

Q. Where do you presently live?

A. At [address] in the Town of .

Q. How long have you lived there?

A. All my life, which would make it years.

Q. I want to direct your attention now to , . Do you recall that date?

A. Yes, very well.

Q. What happened to you on that date?

A. That's the night that [defendant] arrested me.

Q. What time did [defendant] arrest you?

A. It was right about 6:00 p.m.

Q. Where did this arrest take place?

A. It was at my house in [town].

Q. Did [defendant] inform you at that time why he was arresting you?

A. Yes, he did. He said he was arresting me on suspicion of defrauding aninnkeeper.

Q. Did you know what the charge referred to?

A. Yes, I did. I had gone to the restaurant in the Hotel for lunch that day, andthe food was virtually inedible, so I had refused to pay and left without eating.

Q. What happened after you were arrested?

A. [Defendant] told me he was taking me downtown to the police station.

15. Defendant's refusal of plaintiff's request to be taken before magistrate

Q. Did you go with [defendant]?


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A. After a brief discussion, yes.

Q. What did the discussion concern?

A. Essentially it related to whether or not it was necessary for him to take me tojail on a charge such as that.

Q. Did you suggest any alternative to [defendant]?

A. Yes, I did. I aked him if he couldn't just take me over to [magistrate's] houseso I could post bond on the charge.

Q. Why did you suggest [magistrate's] house?

A. Because he is the justice of the peace in [town].

Q. How did [defendant] respond to your request?

A. He just said no, that he was going to take me to the station.

16. Incarceration of defendant pending investigation

Q. What time did you arrive at the police station?

A. It was probably somewhere between 6:15 p.m. and 6:30 p.m.

Q. What happened when you got to the station?

A. [Defendant] put me in one of the jail cells there.

Q. Did you in any way object to being incarcerated?

A. I sure did. I asked [defendant] if I didn't at least get to call an attorney.

Q. What did [defendant] say?

A. He said something like, "All in good time." Then he told me he wanted to dosome preliminary investigation on my case.

Practice Comment: Impropriety of delay for investigative purposes.

Although there is authority to the contrary, most jurisdictions have rejected theneed or desire for further investigation of the case as a justification for delayin taking an arrestee before a magistrate. Moreover, even in a jurisdiction wheresome delay for investigative purposes is permitted, it would seem that such delay

would have to be relatively short to be reasonable, and that an overnightdetention (see 17, infra) for purposes of investigation would be unreasonable. See 5, supra.

17. Overnight detention of plaintiff

Q. Did you ever get to call your attorney?

A. Yes, about 7:30 p.m., [defendant] came back to the cell and told me I could


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make the call then. So I telephoned [name], my attorney, and asked her to comedown right away.

Q. Did your attorney in fact come down that evening?

A. Yes, she did. She got there about a half hour after I called her.

Q. What happened when your attorney arrived?

A. I talked with her for about 5 or 10 minutes, and then she went out to talk to[defendant].

Q. Were you able to hear the conversation between her and [defendant]?

A. No, [defendant] made me remain in the jail cell during the conversation.

Q. Did you see your attorney again after that?

A. Yes, she came back to my cell about 10 or 15 minutes later and told me that[defendant] was insisting that I had to spend the night in jail.

Q. And did you in fact spend the night in jail?

A. I sure did.

Q. Did you see [defendant] again that evening?

A. Yes, he came in and talked to me briefly about 9:00 p.m.

Q. What was the subject of that conversation?

A. Again, it essentially related to the necessity of keeping me there overnight.

Q. What did you suggest in that regard?

A. I once more requested that [defendant] take me over to the justice of thepeace's house, so I could post bond, and I aked him why he insisted on keeping methere all night.

Q. And how did [defendant] respond?

A. He just said that I would be taken before the justice of the peace the next dayif it was necessary, and that he still wanted to investigate the case some morebefore deciding what to do.

Practice Reminder: Necessity of introducing evidence of damages resulting fromdelay.

Counsel should remember that, to recover more than nominal damages, it isnecessary to introduce evidence of damages sustained by the plaintiff as a resultof the unnecessary delay in taking him before a magistrate. Thus, evidence shouldbe introduced concerning the conditions of confinement during the overnightdetention of the plaintiff, and of any mental suffering sustained by the plaintiffas a result of being forced to remain in the jail overnight. See 12, supra.

18. Release of plaintiff without charge


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Q. Were you in fact taken before the justice of the peace the next day?

A. No, I was never taken before the justice of the peace.

Q. What happened the next morning?

A. [Defendant] came in about 9:00 a.m., let me out of the cell, and told me I

could go on home.

Q. Did you in any way question your release in this way?

A. I certainly did. I aked him what was going on, keeping me in jail all night andthen just telling me to go home.

Q. What did [defendant] say?

A. He just told me that he had decided there was insufficient evidence to pressthe case, so that he wasn't going to charge me with anything. He also said Ishould just be happy to be getting out.

19. Lack of consent by plaintiff to delay

Q. You have testified that on a couple of occasions [defendant] stated that heneeded to investigate your case further, is that correct?

A. Yes, that's right.

Q. Did you ever request [defendant] to investigate the case any further?

A. No, I never asked him to investigate at all.

Q. Did you ever consent to being taken to the jail?

A. No, certainly not.

Q. Did you consent to remain in jail overnight?

A. No, I did not.

Q. On the morning of your release, did you request that you be released withoutbeing taken before the justice of the peace?

A. No, I did not. As long as I had stayed in jail all night, I felt I was entitledto be taken before the justice of the peace.

Practice Comment: Testimony of plaintiff regarding lack of consent.

Although proof of lack of consent to the delay is not an essential element of theplaintiff's case, and although the burden of proving such consent is apparently onthe defendant, testimony concerning the plaintiff's lack of consent to the delayand to the overnight detention is presented here both to emphasize the involuntarynature of the plaintiff's unreasonably long detention and to negative anysuggestion by the defendant that the delay was requested or acquiesced in by theplaintiff.


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C. Testimony of Attorney

20. Availability of magistrate


[After introduction and identification of witness]

Q. What is your occupation?

A. I am an attorney at law.

Q. Are you admitted to the bar of this state?

A. Yes, I am.

Q. How long have you been so admitted?

A. years.

Q. Do you know [plaintiff]?

A. Yes, I do.

Q. Have you ever been employed professionally by [plaintiff]?

A. Yes, I have. I have handled his legal matters for about years now.

Practice Note: Attorney as witness.

While an attorney clearly is a competent witness to testify on behalf of a client,it is generally considered unethical for an attorney to remain in a case aftertestifying or to accept employment in a case when it is known in advance that theattorney may be called as a witness. See 81 Am. Jur. 2d, Witnesses 97, 98. It is therefore assumed in the present proof that the attorney whose testimony ispresented here is not the attorney representing the plaintiff in the trial of theaction.

Q. Directing your attention now to , 20 [date of plaintiff'sarrest], did you haveoccasion to talk to [plaintiff] on that date?

A. Yes, I did.

Q. And what time did you talk to [plaintiff] that day?

A. It was about 7:30 in the evening.

Q. Was this conversation in person?

A. No, it was not. I did eventually talk to him in person, but the firstconversation was over the telephone.


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Q. And what was the subject of that conversation?

A. [Plaintiff] had been arrested and wanted me to see if I could get him out ofjail.

Q. So he was calling from jail?

A. Yes, he was.

Q. Did he inform you of the charge on which he had been arrested?

A. Yes, he said he had been arrested on suspicion of defrauding an innkeeper, andthat [defendant] had put him in jail and refused to take him to the justice of thepeace.

Q. Did you suggest a possible course of action to [plaintiff]?

A. Yes, I did. I told him I would contact [magistrate], who is the justice of thepeace in [town], to see if he would agree to set bond for [plaintiff].

Q. What did you do after the telephone conversation with [plaintiff]?

A. I telephoned [magistrate] at his home in [town] to see if he would be agreeableto setting bond for [plaintiff].

Q. Was [magistrate] home when you called?

A. Yes, he was.

Q. And did he agree to set bond for [plaintiff]?

A. Yes, he did. He told me that if I could bring [plaintiff] over to his housebefore 10:00 o'clock that he would set bond for him. He also said that, if forsome reason it was impossible to bring [plaintiff] over to his house, he would

come down to the courthouse if it was agreeable with the police.

Practice Reminder: Necessity of proving availability of magistrate.

Some courts have held that, where an action for false imprisonment is based on thecontention that there was an unreasonable delay in taking the arrestee before amagistrate, an essential element of plaintiff's case is proof of availability of amagistrate. See 4, supra. It has been held that the burden of proving such availability is met where the plaintiff introduces evidence that an attorney hadcontacted a magistrate and obtained the magistrate's

26 am jur proof of facts 2d 617

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