Unlawful Restraint

Unlawful Restraint

The third element of § 212.3 rests on a single adverb. The offense is committed by a person who knowingly "restrains another unlawfully so as to interfere substantially with his liberty," and the preceding sections have covered the knowing mental state and the degree of interference that confinement must reach.¹ Neither of those elements asks whether the restraint was justified. An officer carrying out a lawful arrest knows precisely what is being done, and the hold interferes with the suspect's liberty to a substantial degree. Something in the statute must therefore separate that arrest from a crime, and the Code places the separation in the word unlawfully.

The general principle is that a restraint is unlawful unless the law specifically authorizes it or the person restrained validly consents to it.² That gives two separate routes by which an otherwise complete restraint becomes lawful, and each route rests on a different reason. Consent removes the wrong because the offense protects a person's control over where he goes and where he stays, and a person who has chosen to be held has not had that control taken from him. Legal authority removes the wrong because the legal system itself licenses certain holds, such as an arrest or a detention the law permits, and a system that authorized a hold with one hand and punished it with the other would contradict itself.

Both routes are bounded, and the boundaries exist because the person who did the restraining always has an incentive to invoke them. Anyone who holds another against that person's will has every reason to say afterward that the victim agreed or that the law allowed it, and if either claim dissolved the offense on assertion alone, the crime would reach almost no one. The exceptions are therefore drawn narrowly. Consent counts only when the person actually gave it, with capacity, free of coercion, and only for what was agreed. Authority counts only when the law actually grants it and only within the limits of the grant. The limits take different shapes because the reasons differ: consent is limited by what the victim's own will really was, and authority is limited by what the legal system really allows.

The two routes operate together. A restraint is lawful if either one supplies the justification, so an answer must examine both on every set of facts before calling the restraint unlawful. Skipping consent because the facts feature an officer, or skipping authority because the facts feature a willing participant, leaves half of the element unanalyzed. The mall-guard examples earlier in this chapter reached confinement only subject to this element, and this is where they are resolved: once a show of authority has satisfied the first two elements, the question becomes whether the guard actually held legal power or the shopper actually agreed.

Students lose this issue when they treat confinement alone as the offense. A hold that satisfies the knowledge and substantiality requirements still fails at this element when valid consent or legal authority supports it. The reverse also holds, because a bare claim of agreement or of power does not rescue the actor unless it meets the limits described below. The next subsection takes up consent, since it turns on the victim's own choice, and the one after it addresses legal authority and privilege, using the shopkeeper's detention as its main example.

Absence of Valid Consent

Consent is the first of the two routes by which a complete restraint becomes lawful under § 212.3, and it works because the interest the offense protects belongs to the person restrained.⁴ The offense guards a person's freedom to decide where to go and where to stay, and someone who chooses to remain in a room or a car is exercising that freedom rather than losing it.⁵ The justification holds only as far as the choice is real, so the analysis runs through two questions in order: whether the consent was valid when given, and whether the restraint stayed within what was agreed. The decisions used below come from tort law, where false imprisonment raises the same consent question, and they serve as illustrations of what genuine and counterfeit agreement look like.

Valid consent must first be freely given. An agreement extracted by force, by a threat, or by a choice between the restraint and something worse is submission, which lacks the exercise of will that consent presupposes. The Restatement states the principle for the tort: submission under duress makes consent ineffective.⁶ In Parvi v. City of Kingston, police took a man who had been drinking to an abandoned golf course outside the city after he said he had no place to go, and the only alternative put to him was arrest. The New York Court of Appeals found that the consent element presented no difficulty for the plaintiff, because a choice between going along and being arrested was hardly the stuff of which consent is formed, and his intoxication and the officers' refusal of his request to be released where he chose pointed the same way.⁷ Pressure can also hide behind compliance. In Meints v. Huntington an angry mob arrived at the plaintiff's sons' house and assaulted one of the sons, and the Eighth Circuit held that the plaintiff's apparent agreement to confinement was coerced by the defendants' words and acts; it reached the same conclusion in Eilers v. Coy, where deprogrammers sought to remove a person from a cult.⁸ In both, the actors had produced the fear themselves, so they could not treat the compliance it produced as agreement.

Not every pressure defeats consent, and the line runs through what the actor had a right to do. A shopper who stays in a store's back office because staff threatened to grab her or took her purse has been compelled, while a shopper who stays to clear his name, knowing that the alternative is a call to the police, has made a real choice among pressures the store is entitled to apply.⁹ The same reasoning explains why staying merely to avoid an awkward scene does not show a coerced agreement: ordinary social discomfort leaves the decision with the person.¹⁰ An answer should therefore ask what the actor threatened or took, and whether the actor had any right to use that pressure.

Two further defects keep an agreement from counting. The first is deception about the arrangement itself, since a person told that the door will open on request, who then finds it locked, agreed to a different arrangement from the one imposed. The second is lack of capacity. Consent requires understanding as well as willingness, so a yes from a person whose mental illness, cognitive impairment, intoxication, or youth prevents grasping what staying means does not supply the choice that removes the wrong.¹¹ The justification for honoring consent is that the person decided, and a person who cannot appreciate the arrangement has decided nothing for the law to honor. The hospital setting shows the same idea: a patient who has not been lawfully committed has no obligation to stay, and physical or coercive efforts to keep that patient from leaving can amount to false imprisonment.¹²

Valid consent still reaches only what was agreed, which is the second question. A person who accepts a ride has agreed to ride, and the agreement does not stretch to cover being kept once the ride is over or the person asks to get out. In one standard illustration, Montez agrees to go for a drive with Hurley, and when they return Hurley drives off instead of letting Montez out; because jumping from a moving car is no reasonable way out, Montez is confined for the period after the drive, and the earlier agreement is no defense.¹³ A bus passenger likewise boards on the understanding that he may get off at his stop, so a driver who refuses to let him off there confines him.¹⁴ Consent to a temporary arrangement leaves intact the right to end it. That right is the freedom the offense protects, so holding a person past the agreed time or after a request to leave is a fresh restraint that the earlier agreement never covered.

Two decided cases show agreement at the outset turning into restraint at the moment the person tries to leave. In Whittaker v. Sandford a woman leaving a religious sect accepted passage on the sect leader's yacht only after he repeatedly assured her that she would not be detained, and on arrival he refused to furnish a boat so that she could reach shore.¹⁵ The Maine court reasoned that refusing the boat was like turning the key in a locked door, with the sea as the wall, so the restraint was physical although no one laid a hand on her.¹⁶ She had consented to the voyage and to nothing more. In Big Town Nursing Home, Inc. v. Newman a 67-year-old man was admitted on paperwork stating that he would not be forced to remain against his will. When he decided to leave, staff refused him the telephone, locked up his clothes, caught him and brought him back each time he tried to escape, and kept him for 51 days, including hours taped into a restraint chair, with no court order committing him.¹⁷ The court emphasized that the home acted knowing there was no commitment order and that its own admission agreement promised he would not be kept against his will.¹⁸ Whatever he accepted by entering the home, the detention fell outside it.

Consent can also end partway through. A person who agreed at the outset may withdraw, and a restraint that continues after a clear withdrawal falls outside the agreement, which is the idea behind the Restatement rule that an actor who exceeds the consent given cannot claim the plaintiff consented.¹⁹ How clear the withdrawal must be depends on the setting, since a person who joins an activity expects some of its ordinary discomforts, but a plain demand to leave that the actor hears leaves no room to claim the agreement still covers the hold.

Once the operator hears a clear demand to leave and keeps the door shut anyway, the operator knows the continued hold is unconsented, so the mental-state element adds little further difficulty. Students lose this issue when they treat agreement at the outset as consent to everything that follows. The first question is whether the agreement was real, the second is whether the restraint matches it, and a failure at either point leaves the restraint unlawful unless the law separately authorizes it, which the next subsection takes up.

Legal Authority and Privilege

Legal authority is the second route by which a complete restraint becomes lawful under § 212.3, and it asks a different question from consent. Consent turns on what the person restrained actually chose, while authority turns on what the legal system actually permits the actor to do and whether the actor stayed inside that permission.²¹ The route exists because the law itself licenses some holds, and a legal system that authorized an arrest with one hand and punished it with the other would contradict itself. It is bounded because anyone who holds another against that person's will has every reason to say afterward that the law allowed it. If the bare claim were enough, the offense would reach almost no one, so authority counts only to the extent the law really grants it and only on the conditions the grant imposes.

The merchant's detention of a suspected shoplifter shows how a grant of authority is built and where it ends. One caution comes first. The decision used here, Coblyn v. Kennedy's, Inc., applied a Massachusetts statute.²² The Code text covered in this chapter does not codify a merchant's privilege, so the merchant's detention serves as an example of how authority-to-detain doctrines operate. On any problem the student should confirm what the governing jurisdiction provides before treating a merchant's hold as lawful.

In Coblyn a store employee stopped a 70-year-old shopper as he was leaving, gripped his arm, and told him he had "better go back and see the manager," although the ascot around the shopper's neck had been bought at a different store.²³ The statute the store invoked makes it a defense to a false imprisonment action that the person was detained for questioning on or near the merchant's premises, in a reasonable manner, for no more than a reasonable time, by the merchant or an authorized agent, and that reasonable grounds existed to believe the person was committing or attempting larceny of goods for sale.²⁴ The length of the detention was conceded to be reasonable, and the court did not decide whether the manner was reasonable, because there were no reasonable grounds to believe the shopper was committing larceny and he should not have been detained at all.²⁵ A failure on that single condition was enough to defeat the privilege, so all three conditions must be satisfied.

Each condition guards against a different way the power could be abused. The grounds requirement controls whom a merchant may hold, the manner requirement controls how the hold is carried out, and the time requirement controls how long it lasts. Authority to detain exists so that merchants can respond to real wrongdoing while the goods and the suspect are still at hand, and a merchant with a financial stake in stopping losses is the actor with the strongest temptation to stretch it. Requiring all three conditions keeps the privilege from becoming a license to hold anyone who looks suspicious. The manner condition has independent force: the court observed that the employee's failure to identify himself as store staff or to explain the reasons for his inquiry, joined with physical restraint of an elderly man in a public place, could itself be an unreasonable method.²⁶

The grounds are judged objectively. The store argued that the test was whether its employee had an honest and strong suspicion of larceny, and the court rejected that reading because it would let a person's liberty depend on a shopkeeper's "inarticulate hunches" without regard to any discernible facts, and would give the merchant even more authority than a police officer holds.²⁷ The court gave the statute's reasonable grounds their traditional meaning, the same objective measure used for probable cause in false arrest and malicious prosecution cases, and the trial judge's instruction asked whether a reasonably prudent, cautious, intelligent person would see a basis for the suspicion.²⁸ The incentive behind that choice is plain from the structure of the defense. A merchant who has held an innocent customer will always say the suspicion was sincere, and only the merchant knows what was in the merchant's mind, so a subjective test would make the defense nearly impossible to examine. An objective test lets the visible facts decide, and those facts are available to the customer, the jury, and the court alike.

The two poles of the privilege differ on one fact. Coblyn is the pole where the privilege fails, because nothing objective pointed to larceny and the grip on the shopper's arm was therefore an unlawful restraint. The other pole appears in a standard store-detention problem, where a security officer sees a customer walking out with four pairs of jeans that still carry the security tags normally removed at the register, asks to examine them, and then holds the customer in the store office to discuss the matter.²⁹ Tags that should have been removed are a visible fact that would lead a reasonably prudent person to suspect larceny, so the grounds are objectively reasonable, and a short detention to examine the goods and put questions fits the manner and duration the privilege allows. If the customer later proves to have paid and the clerk simply forgot the tags, the privilege still covers the hold, because grounds are measured by what a prudent person would believe from what was visible when the officer acted and not by what later turns out to be true.

Even a detention supported by good grounds stays inside the privilege only while it remains an investigation. The privilege lets store personnel restrain a suspected shoplifter for a reasonable period and in a reasonable manner, and it does not reach a hold based on suspicion arising from an earlier visit to the same store.³⁰ The reason follows from the purpose of the grant: the privilege is a means of checking a suspicion quickly, and a suspicion about last month's conduct cannot be checked by holding the customer today.

Merchants are one source of authority among several, and each source carries its own conditions. A validly issued warrant authorizes the arrest in the deputy example earlier in this chapter because the law itself has approved the hold. Warrantless arrests by private persons rest on a narrower footing. A footnote in the Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics records that New York at the time followed the common-law rule allowing a private person to arrest another who has in fact committed a felony, and that where the felony had occurred, the arrester's probable cause was irrelevant.³¹ The rule turns on the fact of the felony, so a private citizen who arrests the wrong person, or arrests for conduct that was not a felony, cannot fall back on a sincere belief. The risk of a mistake sits with the arrester, which gives a private person a reason to be sure before restraining anyone. Because arrest privileges vary by jurisdiction and offense, the question on a problem is always what the governing law grants this particular actor.

A person need not be an officer to assert legal authority, but the assertion supplies no justification unless the law actually grants the power. In Whitman v. Atchison, T. & S.F.R. Co., a railroad conductor told a passenger who had fallen and broken his leg that the law required him to stay and fill out an accident statement, and the passenger's cab was held for fifteen or twenty minutes while he was in considerable pain; the court held this to be false imprisonment.³² The conductor's statement worked as the means of confinement, while the law gave him no power to back it. Responsibility for an unlawful arrest also extends only as far as participation. A private citizen who physically helps carry out a false arrest can be liable, though one who helps at an officer's request escapes liability unless he knows the arrest is unlawful.³³ A person who only tells police his version of the facts and leaves the response to the officer's discretion, as in Holcomb v. Walter's Dimmick Petroleum, Inc., is generally not liable even if the information proves wrong, because the officer's own judgment stands between the report and the arrest.³⁴

Workplaces and hospitals show the same pattern of a limited grant that ends where its conditions end. Employers have a privilege to investigate suspected theft or serious misconduct, so questioning conducted reasonably, in familiar surroundings, during business hours, and in good faith produces no liability, while repeatedly putting hands on an employee's shoulders to keep her seated, making threats, or questioning for an excessive length of time does.³⁵ The privilege covers asking questions and does not extend to forcing the employee to stay. A hospital stands in a different position when it holds a patient who has not been lawfully committed. That patient has no obligation to remain, and keeping the patient over an unpaid bill, over unsigned billing forms, or through physical or coercive efforts rests on no privilege at all.³⁶ In each setting the law grants a limited power, names its conditions, and treats a hold that outruns them as unlawful.

Students lose this issue when they let the merchant's honest suspicion stand in for reasonable grounds. The privilege asks what a prudent person would have seen on the facts available, so an actor's sincerity matters only if objective facts support it. The same discipline applies to every source of authority: name the grant, find its conditions, and test the facts against them, with the governing jurisdiction's law supplying the grant.