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Black Letter and Comment from Tentative Draft No. 2:

§ 9. Confinement by Assertion of Legal Authority

An actor confines another within the meaning of § 8(d) if:

(a) the actor asserts the legal authority to take the other into custody or to otherwise confine the other; and

(b) the other submits to such confinement because the other believes that he or she has a duty to comply with the assertion of authority or might face adverse legal or physical consequences for failure to comply.

Comment:

a. History. This Section and its Comments replace Restatement Second, Torts § 41. Significant changes are noted in the Comments.

b. Assertion of legal authority as a mode of confinement. This Section defines a particular method of confinement, identified in § 8(d): cases in which an actor explicitly or implicitly declares to the plaintiff that the actor has the right to confine the plaintiff, and the plaintiff responds by submitting to an arrest or to another form of confinement. Submission under these circumstances constitutes a distinct type of confinement, apart from the other types of confinement identified in § 8 (physical barriers, actual or threatened physical force or restraint, or duress). The assertion of legal authority that can result in a confinement under this Section should not be confused with the very different context in which an actor, during subsequent litigation, “asserts” or invokes a legal privilege to confine by reference to his or her legal authority to do so. In the latter context, of course, the actor is simply invoking a defense that would privilege the actor’s conduct. An actor might be protected by such a privilege with respect to any of the four types of confinement identified in § 8. Thus, suppose a police officer has a privilege to arrest that justifies the officer employing modest force to grab a suspect by the arm while walking the person to a police car. Although the person has been confined by physical restraint under § 8(b), the existence of the privilege precludes the officer’s tort liability. Such a case does not implicate this Section because it does not involve assertion of legal authority as a mode of confinement. By contrast, if a police officer instructs a person that she is under arrest and demands that she accompany the officer to a police car, and the person complies, she has been confined by assertion of legal authority under this Section. Once again, however, it is a separate question whether the officer has a privilege under the circumstances that precludes tort liability.

c. Relationship to “wrongful arrest” or “false arrest.” The most common situation in which an actor asserts a legal authority to confine a person (and in which the person submits to the confinement) is when the actor claims the authority to arrest the person. In this situation, the actor might act either pursuant to legal process, such as an arrest warrant, that she represents as valid and sufficient to authorize her action; or pursuant to an asserted privilege to take the person into custody without legal process. In either case, taking another into custody under such an authority is a confinement as long as the other submits because she believes she has a duty to comply or believes noncompliance might trigger an adverse legal consequence, or might lead to authorized or unauthorized physical coercion or violence.

dRationales. Recognizing false-imprisonment liability in the situations covered by this Section is appropriate because society has a strong interest in encouraging citizen cooperation with those asserting legal authority to confine, especially police and other law-enforcement authorities, and in avoiding the risk that noncooperation could result in needless violence. Many persons may understandably and legitimately fear that noncooperation could lead to criminal charges, such as resisting arrest, even if the person knows that the actor lacks the authority that he or she claims. And, indeed, in many jurisdictions there is a legal duty to refrain from resisting arrest.

e. What constitutes an assertion of legal authority. Confinement under this Section occurs only when an actor asserts legal authority to confine and plaintiff submits to that assertion. Whether an actor has asserted legal authority is a contextual question of fact for the jury to decide. At the core of this inquiry is whether the actor is claiming the mantle of the law, either expressly or implicitly, under the circumstances. The inquiry logically encompasses two distinct, if related, questions: first, whether the actor is capable of asserting legal authority to confine, and second, whether the actor’s words and conduct constitute such an assertion. An obvious instance in which both aspects of this inquiry are satisfied is when a police officer makes an explicit, peremptory demand of a citizen: “You must come with me” or “You need to get into the police car now.” However, actors other than police officers may also assert legal authority, and assertions short of express commands might also qualify.

f. Submission to assertion of legal authority. If an actor asserts the legal authority to take a person into custody (or to otherwise confine the person), and if the person then submits, by his words or conduct, to being taken into custody or being otherwise confined because the person believes that he or she might have a duty to comply or may face adverse legal consequences for failure to comply, the person’s submission to the actor’s control constitutes a confinement. This is so even if the actor does not physically touch the person and does not explicitly or implicitly threaten to employ force if the person does not acquiesce. In this situation, the actor, by invoking apparent legal authority, realistically imposes a significant constraint on the person’s freedom of movement because the person will often feel a subtle form of social or psychological pressure to submit. Moreover, adverse legal consequences, such as subsequent investigation or charges of disorderly conduct or resisting arrest, may sometimes follow if the person does not submit to confinement.

gPlaintiff believes that he or she might have a duty to comply or fears adverse legal consequences. If an actor asserts legal authority to confine, and the plaintiff submits to the confinement due to a belief that he or she might have a duty to comply or might face adverse legal consequences for failure to do so, then plaintiff has been confined under this Section. Some courts frame the inquiry as whether, under the totality of the circumstances, the plaintiff did not feel free to disobey the assertion of legal authority to confine. This formulation is broadly consistent with the approach of this Restatement.

hPlaintiff need not believe that the actor has the legal authority that he or she asserts. A confinement can occur even if the plaintiff believes that the actor lacks the legal authority to confine under the circumstances, so long as the plaintiff believes that he or she might have a duty to comply or might face adverse legal consequences for failure to do so.

i. Overlap between § 8(b) and (c) and § 9. Many cases falling within this Section also fully satisfy other confinement criteria, especially the criteria of § 8(b) and (c). For example, a plaintiff might submit to an assertion of legal authority to confine not only because she believes that she might face adverse legal consequences for not complying, but also because she faces an implied threat of physical force or restraint. For this reason, the black letter of § 9(b) includes the language “or physical” consequences. In light of § 8(b), that language is not strictly necessary, but it serves as a useful reminder that in many cases, concerns about both potential legal and physical consequences explain why plaintiff submits to the confinement.

j. Wrongful prosecution of criminal proceedings, wrongful use of civil proceedings, and abuse of process distinguished. If an actor has the legal authority to confine a person, such as by virtue of statutory authority or a common-law privilege, the person may not obtain a remedy for false imprisonment. However, in narrow circumstances, a remedy for wrongful prosecution of criminal proceedings (malicious prosecution), wrongful use of civil proceedings, or abuse of process may still be available. See Restatement Second, Torts §§ 653-673, 674-681B, 682. [Cross-reference to Restatement Third, Torts: Liability for Economic Harm].

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Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

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