We can all agree that theft is wrong1)talking to you Jean Valjean. But we all could also come to a general consensus in stating that it is wrong for a person to be held prisoner against his or her will without any pretext for doing so. Then again, we can agree that a merchant should have some sort of recourse if he or she truly believe a so-called customer has been stealing merchandise. The law pertaining to civil liability for false imprisonment tries to balance these social needs2)this is a discussion of the tort only, not the crime.
False imprisonment is an intentional tort, meaning that unlike a negligence action, the tort must have been committed purposefully. For example, accidently locking someone in a closet is not false imprisonment. Besides needing to be intentional, false imprisonment is a product of three elements:
- An unlawful restraint of a person
- Against the will of that person
- Without any legal justification for doing so.
Each of these will be addressed in turn.
False Imprisonment and Unlawful Restraint
This element is used to evaluate the degree that the accuser was restrained against his or her will. Obviously, physically restraining the person so he or she cannot move is sufficient, but there does not need to be actual force. The security personnel of a shop could threaten harm, implied or direct, and that could be sufficient unlawful restraint.
False Imprisonment, Against the Will
Under the prong of the analysis, a judge or jury will listen to the specific facts of the incident and determine of a similarly situated “reasonable person” would have believed that the person was being held against his or her will. If an average, reasonable person could have left the situation then there is no false imprisonment. For example, if the security guard is holding your hand gently, that likely is not enough. Or, if the security personnel is blocking the main exit to the room, but there is a side door open and available to be utilized, then this would not be false imprisonment either.
False Imprisonment and No Legal Justification
This element considers if there is legal justification for holding you in the store without your consent. A good faith arrest and detention at the store for a reasonable period is lawful. Nevada has a statute describing the terms that a shopkeeper may detain a customer. Below is the pertinent section:
NRS 597.850 Shoplifting: Merchant may request person on premises to keep merchandise in full view; detention of suspect; immunity of merchant from liability; display of notice.
2. Any merchant may request any person on the merchant’s premises to place or keep in full view any merchandise the person may have removed, or which the merchant has reason to believe the person may have removed, from its place of display or elsewhere, whether for examination, purchase or for any other purpose. No merchant is criminally or civilly liable on account of having made such a request.
3. Any merchant who has reason to believe that merchandise has been wrongfully taken by a person and that the merchant can recover the merchandise by taking the person into custody and detaining the person may, for the purpose of attempting to effect such recovery or for the purpose of informing a peace officer of the circumstances of such detention, take the person into custody and detain the person, on the premises, in a reasonable manner and for a reasonable length of time. A merchant is presumed to have reason to believe that merchandise has been wrongfully taken by a person and that the merchant can recover the merchandise by taking the person into custody and detaining the person if the merchant observed the person concealing merchandise while on the premises. Such taking into custody and detention by a merchant does not render the merchant criminally or civilly liable for false arrest, false imprisonment, slander or unlawful detention unless the taking into custody and detention are unreasonable under all the circumstances.
4. No merchant is entitled to the immunity from liability provided for in this section unless there is displayed in a conspicuous place on the merchant’s premises a notice in boldface type clearly legible and in substantially the following form:
Any merchant or his or her agent who has reason to believe that merchandise has been wrongfully taken by a person may detain such person on the premises of the merchant for the purpose of recovering the property or notifying a peace officer. An adult or the parents or legal guardian of a minor, who steals merchandise is civilly liable for its value and additional damages. NRS 597.850, 597.860 and 597.870.
The key phrase of subsection 3 states the suspected customer may only be held “in a reasonable manner and for a reasonable length of time.” Important also (from subsection 4), is that if the merchant observed the items being stolen by the suspected customer, then the shopkeeper is protected from civil litigation unless the detention is “unreasonable under all circumstances.” The statute balances interests of the parties by requiring reasonable behavior by the shopkeeper if a theft is not witnessed, but permits more leeway in detention of a suspect for a witnessed crime.