False Arrest and False Imprisonment

Cartoon of shoplifter caught by a store owner
Image courtesy of [Paul Gilligan} / Getty Images.

Retail businesses are vulnerable to lawsuits based on allegations of false arrest or false imprisonment. These acts are closely related. False arrest is actually a type of false imprisonment.

State Laws

Many states have enacted laws that give retail businesses the right to arrest and detain shoplifters. The laws vary from state to state. Generally, you (the merchant) or your employee may arrest and detain a customer if you have seen him or her stealing (or attempting to steal) merchandise.

You may also arrest and detain a customer if you reasonably believe he or she has stolen something even if you haven't actually witnessed a theft. Once you have made the arrest you must immediately contact local law enforcement.

False Arrest

False arrest means the unlawful detention of someone or the restraint of that person's movements. Here is an example.

Bill is employed as a security guard at an electronics store you own. One day, Bill arrests Jim, a customer, by grabbing Jim's arm and refusing to let him leave the premises. Bill tells Jim that he's being arrested because Bill saw Jim grab a headset off a shelf and stuff it into his pocket.

Suppose that Bill does not find a headset in Jim's pocket. Bill has no direct evidence that Jim committed a crime. Jim later files a lawsuit against Bill (and your store) for false arrest. Jim's suit contends that he was arrested without probable cause.

As a defense, Bill could argue that the arrest was legal because Bill reasonably believed that Jim had stolen a headset.

False Arrest by Police Officers

Police officers have broader authority than private citizens to make arrests. When a police officer is sued for false arrest, the suit typically contends that the officer overstepped his or her authority.

For example, Steve, a police officer, arrests Alan after learning Alan is cheating on his wife. Alan's wife is Steve's sister. Steve has no legal authority to arrest his brother-in-law. Thus, Alan could file a lawsuit against Steve for false arrest.

False Imprisonment

False imprisonment means the unlawful restraint of another person's movements against that person's will. The restraint must be intentional. False imprisonment may be committed by the use of bodily restraint or a physical barrier, such as a blocked aisle or padlocked door. It may also be committed by the use of verbal threats or intimidation. No physical contact is required.

In the previous example, suppose that Bill forces Jim into a small office at the back of the store. Bill doesn't call the local police. He handcuffs Jim to a desk even though Bill has no evidence that Jim stole anything. Bill restrains Jim for four hours. He finally releases Jim when you order him to do so. Jim later sues Bill and your store for false imprisonment.

Insurance Coverage

False arrest and false imprisonment are intentional acts that can violate a person's civil rights. For this reason they are considered intentional torts.

Claims or suits based on false arrest or false imprisonment may be covered by a general liability policy under Personal and Advertising Injury Liability.

The definition of personal and advertising injury specifically includes false arrest, detention or imprisonment.

For a claim based on false arrest or false imprisonment to be covered, all of the following conditions must be satisfied:

  • The false arrest or false imprisonment must arise out of your business;
  • The offense must be committed during the policy period of your policy;
  • The offense must be committed in the coverage territory; and
  • The defendant named in the claim or suit must be an insured under your policy