26 Am Jur Proof of Facts 2d 617

26 Am. Jur.
Proof of Facts 2d 617
American Jurisprudence Proof of Facts 2d

Database 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 Background
� 1 In general; scope
� 2 Elements of action for false imprisonment; related actions distinguished
� 3 What constitutes unreasonable or unnecessary delay
� 4 Factors considered in determining whether delay was unreasonable or
unnecessary--Accessibility of magistrate
unnecessary--Other duties of officer; delay for investigative purposes
unnecessary--Mental or physical condition or conduct of arrestee
unnecessary--Failure to take arrestee before nearest magistrate
� 8 Effect of unreasonable or unnecessary delay--Doctrine of trespass ab initio
� 9 Persons liable
� 10 Arrestee's consent to or waiver of delay
� 11 Burden of proof and evidence
� 12 Elements of damages: guide and checklist
� 12.5 Defense considerations
II Proof of Failure to Take Arrestee Before Magistrate Without Unreasonable or
Unnecessary Delay
A Elements of Proof
� 13 Guide and checklist
B Testimony of Plaintiff
� 14 Arrest of plaintiff by defendant
� 15 Defendant's refusal of plaintiff's request to be taken before magistrate
� 16 Incarceration of defendant pending investigation
� 17 Overnight detention of plaintiff
� 18 Release of plaintiff without charge
� 19 Lack of consent by plaintiff to delay
C Testimony of Attorney
� 20 Availability of magistrate
� 21 Defendant's refusal to take plaintiff before magistrate
D Testimony of Defendant
� 22 Arrest and incarceration of plaintiff
� 23 Mental and physical condition of plaintiff at time of arrest
� 24 Lack of other duties elsewhere
� 25 Feasibility of taking plaintiff before magistrate at night
� 26 Previous policy of taking arrestees before magistrate at night
E Testimony of Magistrate
� 27 Status as qualified and acting magistrate
� 28 Availability of magistrate on night of arrest
� 29 Previous policy of setting bond for arrestees at night
INDEX
Abuse of process distinguished,, � 2

Accessibility of magistrate�,
consideration of on issue of reasonableness of delay,, �� 4, 7
testimony concerning,, �� 20, 25� 29
Arrest of plaintiff�,
delay's effect on legality of,, � 8
reasonableness of delay, legality of arrest as factor in determining,, �� 1, 2
testimony concerning,, �� 14, 22
Burden of proof�,
generally,, � 11
accessibility of magistrate,, � 4
Chief of police, liability of,, � 9
Conduct of arrestee�,
reasonableness of delay, consideration on issue of,, � 6
testimony concerning,, � 23
Consent by arrestee to delay�,
consideration of on issue of reasonableness of delay,, �� 5, 10
lack of consent, testimony concerning,, � 19
Consultation with others, as factor justifying delay,, � 5
Court, function of,, � 3
Custody, transfer of, effect on liability of arresting officer,, � 9
Damages�,
compensatory damages,, � 12
elements of,, � 12
punitive damages,, �� 2, 12
Duties of arresting officer�,
obligation to take arrestee before magistrate,, � 1
other duties�,
consideration of on issue of reasonableness of delay,, � 5
lack of, testimony concerning,, � 24
Elements of proof�,
false imprisonment action,, � 2
guide and checklist,, � 13
Employer, liability for false imprisonment committed by employee,, � 9
Evidence�,
generally,, � 11
damages,, �� 2, 12
False arrest distinguished,, � 2
Feasibility of taking plaintiff before magistrate, testimony concerning,, � 25
Federal Tort Claims Act, liability under,, � 9
Good or bad faith of arresting officer�,
consideration of on issue of punitive damages,, � 12
consideration of on issue of reasonableness of delay,, �� 1, 2, 8
Good or bad faith of arresting officer, testimony concerning,, �� 15, 17, 21
Governmental liability for false imprisonment,, � 9
Guilt of plaintiff, effect of,, � 2
Holiday, arrest and detention on,, � 4
Identification, propriety of delay for purposes of,, � 5
Incarceration of arrestee, testimony concerning,, �� 16, 22
Intoxication of arrestee�,
as factor justifying choice of distant detention facility,, � 7
as factor justifying delay,, � 6
Investigative delay�,
arrestee's consent to, effect of,, �� 5, 10
propriety of,, � 5
testimony concerning,, �� 16, 17, 21
Jailer, liability of,, � 9
Jury, function of,, � 3
Length of detention�,
reasonableness of,, � 3
Malice of arresting officer, admissiblity of evidence of, on issue of punitive
damages,, � 12
Malicious prosecution distinguished,, � 2
Mass arrests, as factor justifying delay,, � 5
Medical attention, necessity of as justifying delay,, � 6
Mental condition of arrestee�,
Motivaton of arresting officer, consideration of,, � 2
Persons liable,, � 9
Physical condition of arrestee�,
Police officers, liability of,, � 9
Principal�,
false imprisonment committed by agent, liability for,, � 9
punitive damages, liability for,, � 12
Private citizen, liability of,, �� 1, 9
Probable cause�,
consideration of on issue of punitive damages,, � 12
consideration of on issue of reasonableness of delay, 2, � 2
Release of arrestee without appearance before magistrate�,
effect of,, �� 1, 10
Removal of arrestee to distant location, effect of,, � 7
Resistance to arrest, as justifying delay,, � 6
Riot, need to suppress, as factor justifying delay,, � 5
Road conditions, consideration of on issue of reasonableness of delay,, � 7
Statutory regulations,, �� 3, 5
Sunday, arrest and detention on,, � 4
Time of arrest and detention�,
consideration of on issue of reasonableness of delay,, � 4
testimony concerning,, �� 16, 20, 22
Transportation facilities, availability and quality of,, � 7
Trespass ab initio, doctrine of,, � 8
Waiver by arrestee of delay,, � 10
Warrant of arrest, effect of,, �� 1, 11
Topic of Article:
Whether, after an arrest, there was an unreasonable or unnecessary delay in taking

the arrestee before a magistrate, so as to render the persons responsible for the
delay liable for false imprisonment.
This fact question may arise in a civil action for the recovery of damages
sustained 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 to
indefinitely detain the arrestee. Rather, a police officer has a duty to take an
arrested person before a magistrate as soon as reasonably possible and without any
unnecessary delay.[FN1] The requirement that an arrestee be taken promptly before
a magistrate is a uniform requirement in state and federal jurisdictions.[FN2]
Moreover, the requirement extends not only to arrests made without a warrant, but
also to arrests made pursuant to a warrant.[FN3] It has been said, however, that
the duty to bring a prisoner before a magistrate without delay is even more
imperative 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 for
the delay may be held civilly liable for false imprisonment of the arrestee.[FN5]
An unreasonable delay may constitute false imprisonment even though the arrest was
lawful 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 of
delay that will be considered unreasonable or unnecessary,[FN7] as well as with
regard to the liability of particular individuals involved in the detention.[FN8]
This article is concerned with the circumstances under which a delay in taking a
prisoner before a magistrate may subject the arresting officer or other
responsible persons to liability in a cause of action for false imprisonment. The
legality 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 in
some way affected by the legality of the delay in taking the arrestee before the
magistrate.[FN9] Thus, except where otherwise stated, the article proceeds on the
general assumption that the initial arrest was valid and that the only
consideration is the legality of the delay between arrest and presentation before
a magistrate.
Note:
Although the discussion in the article generally refers to arrests made by police
officers, a private citizen making an arrest also has a duty to take the arrested
person before a magistrate without unreasonable or unnecessary delay, and failure
to do so may render a private individual liable for false imprisonment.[FN10]
Although the applicable rules are generally the same regardless of whether the
arrest was made by a police officer or a private citizen, the cases generally
indicate that the courts will grant a police officer greater latitude than they
will grant a private citizen.[FN11]
Comment:
The reported cases involve not only situations where the plaintiff was arrested
and detained for some time before being taken before a magistrate, but also
situations where the plaintiff was arrested and detained for some time but never
taken before a magistrate, being released instead. Since a person, once arrested,
has a right to be taken before a magistrate without unreasonable or unnecessary
delay, either type of factual situation may result in a finding of unnecessary
delay and hence in the imposition of liability for false imprisonment.
CUMULATIVE SUPPLEMENT
Cases:
Persons arrested without a warrant must promptly be brought before a neutral

magistrate 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 she
was apparently lost in new computer system for several hours, delaying her release
after bail had been posted on outstanding warrants, was mere negligence, and thus
standard of criminal recklessness needed to prove that sheriff or other jail
employee 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 that
completing and processing their paperwork might take "more than eight hours" did
not show reckless disregard to substantive due process right of detainees to
timely release; delay of eight hours would in many situations not be deprivation
of rights. 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.
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 department
policies or customs, or lack of same, caused deprivation of liberty or denial of
procedural 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 clear
violation of the Juvenile Delinquency Act, did not violate due process, where
juvenile's confession came only three and a half hours into the delay, the
government did not attempt to further interrogate him before taking him before a
magistrate, it did not seek to use any statements he may have made after he was
booked into the juvenile facility, and there was no evidence that the delay was
deliberate, used to gain undue advantage or influence over the juvenile, or
otherwise 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 Law
255(4).
Exigent circumstances: Whether exigent circumstances existed making delay in

presenting arrestee before a federal magistrate or state or local judicial officer
within 48 hours of a warrantless arrest excusable, and what, if any, is the remedy
to be afforded, is for court to determine; there is no presumption or general rule
that 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. 2d
58 (D.P.R. 2001); West's Key Number Digest, Arrest 70(2).
Delay in presentment after arrest did not require suppression of statements where
police held defendant pursuant to breaking and entering complaint and may have
arranged for bail, there is no suggestion that delay in any way tainted the
otherwise free, intelligent, and voluntary statements of defendant, defendant was
given Miranda warnings repeatedly, delay from arrest until initial statements was
less than 20 hours, and defendant's subsequent statements were essentially
identical to the original statements. Commonwealth v Butler (1996) 423 Mass 517,
668 NE2d 832.
Defendant's claim that police intentionally delayed arraignment for purpose of

obtaining confession did not give rise to state constitutional right to counsel
claim which could be raised for first time on appeal, but rather asserted
violation of promptarraignment statute which had to be preserved for appellate
review; when defendant confessed, judicial proceedings had not yet begun, nor had
defendant retained or requested an attorney; abrogating People v. Mosley, 135
A.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 Number
Digest, Criminal Law 1031(4).
Application of Davenport-Duncan rule related to prompt arraignment to permit use

of confession obtained after defendant was detained for substantial period on
unrelated charge does not preclude defendant from pleading and proving that his
statement was not voluntary. Com. v. Persiano, 555 Pa. 428, 725 A.2d 151 (1999);
West's Key Number Digest, Criminal Law 519(8).
[Top of Section]
[END OF SUPPLEMENT]
� 2. Elements of action for false imprisonment; related actions distinguished
The basic elements of the tort of false imprisonment are (1) the detention of a
person 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 the
deprivation of a person's liberty without lawful justification.[FN13] Actual
malice on the part of the arresting officer is not a necessary element of false
imprisonment, and the arresting officer's state of mind generally is irrelevant to
the 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 any
bearing on the lawfulness of the detention.[FN14] Likewise, the existence or
absence of probable cause for the arrest is not generally relevant on the issue of
false imprisonment; even though the arrest is lawful and made on probable cause,
liability for false imprisonment will still exist if there is an unreasonably long
delay in bringing the arrestee before a magistrate.[FN15] Nor is it necessary for
the prior proceeding to have been terminated favorably to the plaintiff in the
false imprisonment action. Indeed, a recovery for false imprisonment may be had
even though the criminal charge was truthful and the plaintiff in the false
imprisonment action was convicted of the crime.[FN16]
Note:
Evidence of the officer's good or bad faith and of the existence or absence of
probable cause, although irrelevant on the issue of whether there was a false
imprisonment, may be admitted on the issue of punitive damages.[FN17]
It is difficult to distinguish between false arrest and false imprisonment, and it

has 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 falsely
imprisoned, a person may be subjected to false imprisonment without being falsely
arrested. Where a lawful arrest is followed by an unnecessary or unreasonable
delay in taking the arrestee before a magistrate, therefore, the cause of action
is for false imprisonment, not false arrest. Where the arrest itself is also
unlawful, 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 of
facts 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. An
action for malicious prosecution may be brought where a person is detained for
malicious reasons but under due form of law, while an action for false
imprisonment may be brought where a person is detained without valid legal
authority, regardless of whether the defendant acted with malice or with probable
cause in detaining the plaintiff.[FN19]
An action for abuse of process is distinguished from one for false imprisonment in
that the gist of the former is the improper use of regularly issued process, while
the 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 in
a manner or for a purpose not intended by law, and it is no defense that the
process was valid on its face. On the other hand, in an action for false
imprisonment the plaintiff must prove that there was no lawful justification for
the detention, and the intent or purpose of the defendant is irrelevant.[FN20]
Cases:
Whether store employees intended to, and did, confine customers within boundaries
fixed by store and whether customers were conscious of such confinement was for
jury in customers' false imprisonment action against store when employees stopped
customers 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 being
called, and then stood guard over customers while they waited for security guard
to arrive. McCann v. Wal-Mart Stores, Inc., 210 F.3d 51 (1st Cir. 2000); West's
Key Number Digest, False Imprisonment 39.
Deliberate indifference to medical emergency: Genuine issue of material fact

existed as to whether two police officers were deliberately indifferent to alleged
shoplifter's diabetic condition, such that alleged indifference resulted in death
of alleged shoplifter, for purpose of police officers' summary judgment motion
asserting the defense of qualified immunity, where facts were such that a jury
could infer that police officers knew that depriving alleged shoplifter of an
insulin 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. Rules
Civ.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 that
defendants violated his Fourth Amendment rights by arresting him for murder
without warrant and keeping him in custody for more than 48 hours without judicial
probable-cause determination, defendants were not liable since detention was not
unreasonable where arrestee was arrested late at night when it was not likely that
magistrate was readily available, he was arrested only after witness identified
him as murderer, and thereafter police acted with reasonable promptness to
complete investigation rather than releasing arrestee; nor were defendants liable
for subsequent arrest of arrestee for same murder after he had been released
following first arrest where second arrest was supported by probable cause based
on three other witnesses' identification of arrestee as man who had argued with
victim on night of murder and police's finding of empty holster in arrestee's
apartment and their knowledge that he had called in sick at work morning after
murder, which was unusual. Bostic v Chicago (1992, CA7 Ill) 981 F2d 965.
Finding that shopper was falsely imprisoned or wrongfully detained in store was
not manifestly erroneous; although shopper agreed to go to back of store to
clarify that he had not harassed employee, shopper did not agree to be held in
room for at least 30 minutes with employees stationed as guards at door while
employees 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's
City was liable to plaintiff for false imprisonment where plaintiff, whose name
was Allen Hayes, was initially arrested for receiving stolen goods and gave his
nickname to police officers as "Booby," and where city detectives then
misidentified plaintiff as person wanted under two contempt warrants issued
against "Bubba Hayes," which resulted in plaintiff's being rearrested and booked
on contempt charges, though he continuously maintained that wrong person was being
arrested, and being incarcerated for 171 days. No effort was made by city
detective to determine if there was difference between "Bubba Hayes" wanted in
warrant and "Allen 'Booby' Hayes" arrested on receiving stolen goods charge.
Moreover, parish sheriff was also liable based on his failure to investigate into
plaintiff's identity. His duty to investigate arose because several factors
indicated that plaintiff might have been falsely imprisoned and he breached this
duty because, despite indication of problem with identification, he allowed
plaintiff 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, La
App 3d Cir) 625 So 2d 628.
Evidence supported verdict for plaintiff on false imprisonment cause of action

against city where (1) plaintiff was arrested by city detective without warrant
after complainants falsely reported to detective (who was friend of theirs) that
he had stolen ring while visiting their home, (2) detective ignored plaintiff's
protestations of innocence and his attorney's insistence to investigate similar
incident wherein complainants had accused another man of stealing ring and later
dropped charges, (3) plaintiff was jailed for 28 hours awaiting arraignment,
during which time he was strip searched, ridiculed by police, subjected to anal
cavity 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 for
arraignment, complainants dropped charges after allegedly finding ring on their
doorstep, and (5) detective thereafter apologized to plaintiff and offered to
arrest complainants; however, malicious prosecution cause of action was not
sustained, since plaintiff was released without being arraigned or indicted, and
thus 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 agreed
statement of facts where (1) following plaintiff's arrest on probable cause, town
police promptly discharged their preliminary duties and then notified presiding
town justice of her arrest for purpose of having her brought before court for
arraignment, (2) in response to notice, justice signed securing order which
directed plaintiff to be detained without bail at county jail until court
reconvened in 4 days, and (3) justice never ordered plaintiff to be arraigned
before himself or any other appropriate local criminal court in interim; any
unnecessary delay in arraigning plaintiff was attributable to facially valid
securing order issued by court with appropriate authority and jurisdiction. Franza
v 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 person
before a magistrate "immediately," "forthwith," without "unreasonable" or "undue"
delay, or the like.[FN21] However, these statutory commands are not interpreted
literally, and the basic requirement is that the prisoner be brought before a
magistrate as soon as reasonably possible. For example, in interpreting a state
law that required an arrested motorist to be taken "immediately" before a
magistrate, 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 was
reasonable under all the circumstances of the case.[FN22]
Note:
The propriety of a particular period of detention may be affected by statutes

specifying the period within which a prisoner must be brought before a
magistrate.[FN23] However, the mere fact that an arrestee was brought before a
magistrate before the expiration of the statutory time limit does not necessarily
render the delay reasonable or necessary.[FN24]
Regardless of the exact wording of the statutory or judicial rule, therefore, the
issue of whether a given delay in taking an arrestee before a magistrate was
reasonable or necessary depends almost entirely on the facts and circumstances of
the particular case.[FN25] The reasonableness of the length and manner of
detention, including the reasonableness or necessity of any delay in bringing the
arrestee before a magistrate is generally considered a question of fact for the
jury or other trier of fact.[FN26] However, the issue of whether a particular
delay was unreasonable or unnecessary may become one of law for the court under
the particular circumstances of the case, as where the facts are without
dispute.[FN27]
The length of detention that will be considered unreasonable or unnecessary varies

greatly, depending on the facts surrounding the detention and arrest, and the
rulings generally have been only that a particular period of delay was or was not
reasonable or necessary under the facts of a given case.[FN28] Even a short delay
of 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 hours
up to a week or more have been found or held unreasonable, while at the same time
delays ranging from a few hours up to 7 days have been held legal under the
particular facts involved.[FN30]
While it is obvious, therefore, that mere passage of time alone does not
automatically render a delay unreasonable or unnecessary, the cases also reveal
that the longer the delay in taking the arrestee before a magistrate, the more
likely it is that the delay will be found or held to be unreasonable or
unnecessary.[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, where
she was arrested at 9:00 A.M. on Friday and was not taken before judge until
approximately 4:00 P.M. on Monday, despite fact that magistrate was on call 24
hours each day, and arrestee was held impermissibly for 2 days after judge
directed her release on bail, in violation of her constitutional rights. Hallstrom
v Garden City (1993, CA9 Idaho) 991 F2d 1473, 93 CDOS 2636, 93 Daily Journal DAR
4546.
[Top of Section]
[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 the

courts as a major factor in determining whether a delay in taking an arrestee
before 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 a
magistrate being available to receive the arrestee,[FN32] and a delay is justified
where the magistrate is unavailable at the time of arrest or at the time of
arrival at the magistrate's office or other location.[FN33] Indeed, it has been
held that when an action for false imprisonment is based on an unreasonable or
unnecessary delay in taking is based on an unreasonable or unnecessary delay in
taking the arrestee before a magistrate, an essential element of the plaintiff's
case is proof that a magistrate was available on the day and at the time that the
false imprisonment occurred.[FN34]
The question of a magistrate's availability frequently arises in cases where an

arrest 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 location
occurred 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 necessary

and unavoidable, where the evidence showed that the justice of the peace offices
were closed at the time of day when the arrest occurred, that the sheriff's
officers unsuccessfully tried to contact a magistrate to arraign the arrestee, and
that the arrestee was arraigned after the sheriff's officers finally located an
available magistrate.[FN36]
Where the evidence shows that, notwithstanding the lateness of the hour, a
magistrate was available, the delay will be found or held unreasonable and
recovery 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, who
agreed to either come to the courthouse or to have the arrestee brought to his
home. The attorney informed the deputy in charge of the magistrate's availability
and also telephoned the sheriff to inform him of the magistrate's availability.
The sheriff also received a similar call from the magistrate, but the sheriff
still refused to take the arrestee before the magistrate. It was held on appeal
that the plaintiff had sufficiently proved availability of the magistrate and had
made 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 11:00
p.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 police
had telephoned the magistrate, who, if he was home, would make himself available.
The appellate court stated that, although the failure to take the plaintiff before
a magistrate would have been excused if good grounds had existed for the belief
that a magistrate was not available, such was not the case, since the defendant
officers made no attempt to determine whether the magistrate was or would make
himself available.[FN39]
The intervention of a Sunday or other legal holiday, during which the courts are
not in session, may also justify a delay in bringing an arrestee before a
magistrate for arraignment. However, failure to bring the arrestee before a
magistrate the next Monday morning or regular business day may result in liability
for false imprisonment. Moreover, in some cases it has been held that the
intervention of a Sunday or holiday did not necessarily make the delay
reasonable.[FN40] For example, in one case it was held that the fact that large
numbers of people were arrested on a weekend did not justify a failure to take the
arrestees before a magistrate, where there was no showing that a magistrate was
unavailable or that the police had attempted to secure a magistrate.[FN41]
The fact that a magistrate is initially unavailable does not forever relieve an
arresting officer of his duty to take an arrestee before a magistrate. Thus, if a
magistrate is not available at first, the arresting officers must still take the
arrestee 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 police
to contact a magistrate may make the difference between recovery or nonrecovery
for false imprisonment.[FN43]
Cases:
Tricky jurisdictional questions: Accused burglar is not entitled to suppression of

his confession, where inappropriate delay in getting him before magistrate was due
to tricky questions of jurisdiction and whether to proceed with state, federal, or
tribal prosecution, because all other evidence indicates that accused made
voluntary waiver of his rights prior to 3 interrogations, and Tenth Circuit's
approach not making 6-hour time limit sole criterion is good policy and harmonious
with congressional intent in 18 USCA � 3501. United States v Duncan (1994, DC
Utah) 857 F Supp 852.
[Top of Section]
[END OF SUPPLEMENT]
unnecessary--Other duties of officer; delay for investigative purposes
One factor that may be considered in determining whether a given delay in bringing
an 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 the
arresting officer had other pressing duties to attend to before taking the
prisoner before a magistrate.[FN44] For example, where the arresting officer's
assistance in the suppression of a riot is required, a delay in taking an arrestee
before a magistrate may be considered reasonable.[FN45] However, before the
existence 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 other
duties. For example, in an action based on mass arrests of racial protest
demonstrators, the court held that the mere fact that large numbers of people were
arrested did not justify the failure to take them before a magistrate. The court
stated 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 the
arrestees before a magistrate without unnecessary delay.[FN46]
Police officers have on occasion attempted to justify a delay in bringing an

arrestee before a magistrate on the ground that the delay was for the purpose of
permitting the arresting officer to further investigate the case or to consult
with others as to further procedures, but most jurisdictions have rejected such
justification.[FN47]
Case Illustration:
Where police officers arrested the plaintiff on suspicion of burglary around 9:30
p.m. or 10:00 p.m., detained him in custody without charges that evening and all
the next day for purposes of completing the investigation, and then charged him
with disorderly conduct and released him on bail the following morning, the
plaintiff 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 on
the morning following his arrest and that it was normal procedure to do so, and
stated that the lack of sufficient evidence to file charges was not an excuse for
detention, but rather was the evil that the requirement of of prompt presentation
before a magistrate was designed to correct.[FN48]
In some cases, however, a delay for purposes of investigation or consultation has

been held justified, and in a few cases a delay in taking an arrestee before a
magistrate has been held justified where the delay was for the purpose of
identification of either the victim or the arrestee.[FN49]
Case Illustration:
Three boys were arrested for curfew violation after the police had received a
report of a prowler in the vicinity. One of the boys fit the description of the
prowler, 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 taken
to the station house on the curfew charge. In the action for false imprisonment by
one of the boys, it was held that the deviation of approximately 10 minutes in
taking the boys to the complainants' home was necessary and prudent for
investigative purposes, and that the delay in taking them before a magistrate was
therefore not unreasonable or unnecessary.[FN50]
Note:
Some states have statutes that expressly permit a person's detention without
arrest for defined periods of time for investigative purposes.[FN51] In such a
state a defendant in a false imprisonment action might assert that a detention was
for purposes of investigation pursuant to such a statute.
An otherwise unjustified delay for investigative purposes may be consented to by

the arrestee, and in such a case no false imprisonment will be found.[FN52]

unnecessary--Mental or physical condition or conduct of arrestee
A circumstance that may be considered in determining whether a delay in taking an

arrestee before a magistrate was reasonable or necessary is the mental or physical
condition 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 the
arrestee was not in a physical or mental condition to appear, or that the
arrestee's obstreperous conduct or resistance to arrest made the delay
necessary.[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. The
appellate court held that under the facts, which showed that the plaintiff was
seriously injured and in immediate need of medical attention, there was no
violation 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 ground
for delay in bringing him before a magistrate, most of the courts considering the
question have indicated that the arrestee's intoxication may, at least under some
circumstances, justify some delay.[FN56] For example, it has been held that where
an officer arrests a drunken person, he need not take the person before a
magistrate until the person is sober enough to avoid rearrest; in the interim, the
officer may detain the person in the most convenient and suitable jail
available.[FN57]

unnecessary--Failure to take arrestee before nearest magistrate
An arrestee should ordinarily be taken before the nearest magistrate by means of

the most direct route.[FN58] Liability for false imprisonment has generally been
imposed in cases where the arresting officer moved the arrestee to another town,
county, or district to appear before a magistrate there, notwithstanding the
availability of a magistrate in the area of arrest.[FN59]
Case Illustration:
At the time of the plaintiff's arrest, there was a duly qualified and acting
justice of the peace in the town where she was arrested. The town marshall
nonetheless transported the plaintiff 25 miles to the county seat, where she was
imprisoned in the county jail for 30 minutes before release. In affirming a jury
verdict for the plaintiff in her action for assault and battery and false
imprisonment, the court held that, in light of the presence of a justice of the
peace 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 be
justified. For example, where the nearest magistrate is inaccessible at the time
of arrest, it is permissible to take the arrestee to a more distant
magistrate.[FN61] Also, where, by virtue of better roads or other transportation
facilities, the most accessible magistrate is not the nearest one, it is
permissible to take the arrestee to the more accessible magistrate,
notwithstanding the greater distance traveled.[FN62] Under some circumstances it
may be permissible to remove the arrestee to another county, even when to do so
precludes 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 in
Perry County, which town had a justice of the peace. However, the arresting
highway patrol officer took her to a jail located in the city of Hattiesburg in
Forrest County, a distance of about 20 miles. The Hattiesburg jail was on the
officer's assigned route, and he took the plaintiff there because it was the most
convenient and suitable jail for detention of a woman, and because she was
intoxicated and in no condition to be given a hearing at the time. On appeal, the
court held that the plaintiff's removal to and detention in the Forrest County
jail was not unreasonable and did not cause an unnecessary delay in taking her
before 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 arrestee

before a magistrate has any effect on the legality of the original arrest. In many
cases it has been held that failure to bring an arrestee before a magistrate
without unreasonable or unnecessary delay renders the defendant liable as a
trespasser ab initio, even though the original arrest may have been lawful or
justified. Under such an approach, the arrest is rendered unlawful from the
beginning and the defendants are liable for all injurious consequences to the
plaintiff 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 and
the existence of probable cause or justification for the arrest was no protection
for him.[FN65]
Some courts have declined to adopt the above rule, and a number of cases have held
that unnecessary or unreasonable delay in bringing an arrestee before a magistrate
does not render the arresting officer liable as a trespasser ab initio, at least
where the original arrest was made in good faith without intent to subsequently
illegally restrain the arrestee.[FN66] Thus, it has been held that where the
arrest is lawful, a subsequent unreasonable delay in taking the arrestee before a
magistrate does not affect the legality of the arrest. However, the offending
person is subject to liability for so much of the imprisonment as occurs after the
period of necessary or reasonable delay.[FN67]
A number of courts following this rule have indicated that it is conditioned not
only on the lawfulness of the arrest but also on the arresting officer's good
faith.[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 of
and as a cover for committing some subsequent wrong, such as unnecessarily or
unreasonably 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 for
false imprisonment for unnecessary or unreasonable delay in taking an arrestee
before a magistrate.[FN70]
Note:
The doctrine of governmental immunity has traditionally been applied to preclude

liability of the employing governmental entity for a false imprisonment committed
by its police officers. However, with the trend away from governmental immunity
and toward liability, a public employer in some states might now be liable for a
false imprisonment committed by one of its employees.[FN71] The Federal Tort
Claims Act now provides that liability of the United States may be based on claims
arising 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 other

private police officer, both the arresting person and his principal or employer
may be held liable for false imprisonment if there is an unnecessary delay in
taking the arrestee before a magistrate.[FN73]
Note:
In order to hold a principal liable for punitive damages, there generally must be
some evidence of the principal's participation in, authorization of, or
ratification of the acts of his agent.[FN74]
Where someone other than the arresting officer is partially or wholly responsible
for the unnecessary delay, questions arise as to the liability of the arresting
officer. Generally, an arresting officer is not excused from liability for an
unreasonable delay in taking an arrestee before a magistrate by reason of the fact
that the officer was following a superior's orders.[FN75]
There is a divergence of opinion as to the liability of the arresting person, or

of his principal or employer, for a delay that occurs after the arresting person
has delivered the arrestee to the custody of another person. Some courts have
imposed continuing responsibility on the arresting officer, holding that delivery
of an arrestee to another person does not relieve the arresting officer of his
duty to take the arrestee before a magistrate without unreasonable delay. Other
courts have found the arresting officer not liable under such circumstances,
holding that once the arresting officer has properly delivered custody to some
other officer, such as the jailer or investigating detectives, the arresting
officer'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 turned
over to the city police, the responsibility of the store employees ended when they
turned the plaintiff over to the police, and the fact that the plaintiff was not
taken immediately before a magistrate did not render the store employees liable
for false imprisonment.[FN77]
The size of the governmental unit or the police department may have a bearing on
the determination of whether the arresting officer's delivery of custody to
another officer will relieve the arresting officer of liability. In a small police
department it might be expected that the arresting officer, notwithstanding the
transfer of custody to another officer, might still be aware of the future
handling of the prisoner and of the fact that he was not brought before a
magistrate. On the other hand, in a large police department it is unlikely that
the arresting officer will have any knowledge concerning what happens to the
arrestee once he has been turned over to other officers.
Case Illustration:
The plaintiff was arrested by the defendant police officers, who were patrol
officers for the Chicago police department. The arresting officers turned the
plaintiff over to investigating detectives within � hour of the arrest. The
appellate court reasoned that, to be efficient, a city Chicago's size requires a
highly organized police department with a division of authority and functions, and
that the courts should recognize such reality. Thus, the court held, when a patrol
officer turns an arrestee over to the proper persons, such as investigating
detectives, the patrol officer's responsibility and duties cease, and he cannot be
held liable for any subsequent unlawful detention.[FN78]
The general rule is that all persons who participate in the various stages of the
arrest and illegal detention may be liable, and it has thus been held or
recognized in a number of cases that a person other than the arresting officer may
be 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 persons
other than the arresting officer where such persons took part in, either directly
or indirectly, or proximately caused the unreasonably long detention of an
arrestee. However, where such other person was in fact not responsible either for
the 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 an
officer's failure to take a prisoner before a magistrate without unnecessary
delay. Where the chief or superintendent either ordered the imprisonment of the
arrestee or was the keeper of the jail or prison, the courts have imposed
liability for the delay. However, where the chief of police was unaware that the
arrestee 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 held
that 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, or
cooperated in the delay. Where there is no evidence that the chief knew of the
delay in taking the prisoner before the magistrate, the chief cannot be held
liable for false imprisonment.[FN81]
The jailer in whose custody an arrestee is placed may also be held liable for
false imprisonment, if the jailer detains the arrestee for an unreasonable period
of time before taking him before a magistrate.[FN82] However, where the decision
to incarcerate an arrestee rests with some other officer, and the officer in
charge of the jail has no discretion with respect to whether to incarcerate or to
release 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 chief

caused incarceration of person for 14 months without charges being filed, for
purposes of 42 USCA � 1983 action, where although chief knew that person was
incarcerated and neither department nor chief promulgated any written procedures
to guide criminal investigation, no evidence showed that chief's lack of action
caused person's deprivation of liberty or that some departmental custom was moving
force 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 the
right to complain of the failure promptly to take him before a magistrate. There
is ordinarily no liability where the arrestee causes, consents to, or requests the
delay.[FN84]
A number of cases have held that where the arrestee, at his own request or with
his consent, is discharged from custody rather than taken before a magistrate, a
waiver may be found of the right to complain of failure to take him before a
magstrate without unreasonable delay. A waiver has also been found in several
cases where the arrestee was released from custody on his promise to appear at a
future time.[FN85] Some states have rejected the general rule, finding no waiver
where the arrestee was released at his own request or with his consent, sometimes
even where the arrestee had entered into an agreement with authorities to release
any claim for damages.[FN86] And, at least in Massachusetts, it may be a jury
question 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 from
custody.[FN87]
In a few cases the arrestee has been deemed to have waived the failure to take him
before a magistrate without unreasonable delay, where the arrestee agreed to
forego an appearance before a magistrate while awaiting the outcome of an
investigation of the case.[FN88]
Case Illustration:
The plaintiff was arrested on suspicion of grand theft on a charge by a private

citizen 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 she
did not have much money, suggested to her that she defer obtaining an attorney and
release on bail until completion of the police investigation, which he would speed
up as much as possible. The plaintiff assented to the suggested procedure and,
following his investigation, the detective recommended that the plaintiff be
released without charge because of insufficient evidence, which was done. The
plaintiff had been imprisoned more than 36 hours without being taken before a
magistrate. The appellate court, in affirming a judgment in favor of the detective
and the various other defendants, stated that the plaintiff could not take
advantage 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 not
taken before a magistrate only because she had expressed a desire not to so
appear, and that the detention was therefore not unreasonable.[FN89]
Cases:
Detainee's civil rights claim against police officers is denied summarily, where
claim was based on officers' placement of detainee in second 12-hour protective
custody, because although officers violated state law by keeping detainee in
custody beyond initial 12-hour period, officers were entitled to qualified
immunity 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 his
Fourth Amendment rights. Ringuette v City of Fall River (1995, DC Mass) 906 F Supp
55.
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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 a
presumption that the arrest and following imprisonment were unlawful, and the
burden of showing lawful authority rests on the defendant.[FN92] However, where
the arrest is lawful and the only issue is whether there was an unnecessary delay
in taking the arrestee before a magistrate, the burden of proof of unnecessary
delay rests on the plaintiff, who must prove all the elements essential to show
unreasonable or unnecessary delay.[FN93]
Note:
It has been held that the burden of proving that the plaintiff was released from
custody at his own request is on the defendant.[FN94]
The rules governing the admissibility of evidence in civil actions generally are
equally applicable to actions for false imprisonment. Generally, where an action
for false imprisonment is based on an unnecessary or unreasonable delay in
bringing the arrestee before a magistrate, all the facts and circumstances
connected with the arrest and detention, and particularly those facts and
circumstances relating to the reason for the delay, are relevant and admissible in
evidence.[FN95] The weight and sufficiency of the evidence to support a verdict is
determined by the general rules of evidence applicable in civil actions.[FN96] A
jury verdict will not be overturned if there is some competent evidence to support
it.[FN97]
Cases:
While a delay of over 48 hours between a warrantless arrest and a judicial

determination of probable cause is not per se unlawful, under the Fourth
Amendment, the government bears the burden to demonstrate the existence of a bona
fide emergency or other extraordinary circumstance that led to the delayed
probable cause determination. U.S.C.A. Const.Amend. 4. Cherrington v. Skeeter, 344
F.3d 631, 2003 FED App. 0342P (6th Cir. 2003); West's Key Number Digest, Civil
Rights 1404.
Expert testimony as to municipal police policies: Although expert could have

testified that discipline in municipal police department was lax and as to what he
believed to be consequences of lax discipline, he could not testify that lax
discipline policies of police department indicated that municipality was
deliberately indifferent to welfare of its citizens since "deliberate
indifference" is legal term to be defined by court, not witnesses. Berry v City of
Detroit (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
ground that his actions were supported by probable cause and submits evidence that
duly authorized judicial officer found probable cause, defendant has necessarily
put probable cause at issue, and plaintiff must thus come forward and show that
there is issue of fact as to existence of probable cause to survive summary
judgment. 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 summary
judgment 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, excessive
force and false imprisonment, officers' personnel records were not admissible in
evidence to show prior bad acts. Robinson v St. Charles (1992, CA8 Mo) 972 F2d
974.
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[END OF SUPPLEMENT]
� 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 prove
that the delay in bringing him before a magistrate was unreasonable so as to
constitute false imprisonment, but be unable to prove any damages as a result
thereof, and in such a situation it might be better to file no action at
all.[FN98]
Generally, all defendants who are found guilty in false imprisonment actions are
equally liable for compensatory damages.[FN99] The general rule is that the
plaintiff can recover as damages all the natural and probable consequences of the
false imprisonment.[FN1] While the mere fact of an unlawful detention generally
entitles the plaintiff to at least nominal damages, there must be some proof of
actual damages to entitle the plaintiff to any greater recovery. Where there is
evidence 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 evidence

concerning the circumstances and conditions of confinement during the illegal
detention; evidence of the plaintiff's mental suffering, including fright,
humiliation, and mortification, is generally admissible, at least where there is
some evidence of physical injury as well, and evidence of damage to reputation or
character is also generally admissible.[FN3]Case Illustration:
Evidence that the plaintiff spent the night in a frigid, unattended, unsanitary
jail, that he became sick, with a nervous stomach, frequent vomiting, loss of
weight and sleep over a period of several weeks, and that the anxiety forced him
to drop out of school, was sufficient to sustain an award of $5,000 in actual
damages for false imprisonment.[FN4]
The plaintiff may also introduce evidence of and recover damages for any
reasonable and necessary expenses incurred in obtaining release from the illegal
detention.[FN5] In this regard, the plaintiff may recover any attorneys' fees that
were proximately and necessarily caused by the unreasonable delay in bringing him
before a magistrate.[FN6] For example, in an action for false arrest, it was held
permissible for the plaintiff, arrested on shoplifting charges, to show the
circumstances under which she was released from custody, including the furnishing
of bond and the employment of an attorney.[FN7]
In most jurisdictions exemplary or punitive damages may also be recovered in an

action for false imprisonment, if there is evidence that the defendant acted
recklessly, willfully, or maliciously in arresting or in unreasonably detaining
the plaintiff.[FN8] Evidence that the defendant acted out of malice or in bad
faith, or that he acted without probable cause, although not admissible either in
mitigation of compensatory damages or on the issue of whether there was a false
imprisonment, is admissible on the issue of punitive damages. Similarly, evidence
that the officer acted in good faith or with probable cause is relevant and
admissible in mitigation of punitive damages.[FN9]Case Illustration:
Evidence that the imprisonment of the plaintiff and a 7-week period of harrassment
of him by the defendant police officers were motivated by one defendant's concern
over the plaintiff's knowledge of that defendant's extramarital affair was
admissible and sufficient to warrant an inference of malice and an award of
punitive 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 or
exemplary damages, he must have participated in, authorized, or ratified the
wrongful 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 an
agent's wanton or malicious conduct in connection with the false imprisonment.
However, some courts have rejected this rule, holding instead that if the act is
done in the course of employment, ratification or authorization by the principal
is not necessary to support an award of punitive damages against the
principal.[FN11]
As in civil cases generally, the question of the amount of damages, both

compensatory and punitive, to be awarded in an action for false imprisonment is
primarily one for the jury. While both trial and appellate courts may review the
amount of damages awarded, such awards will be set aside or a remittitur ordered
only 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 imprisonment
where 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 or
unnecessary delay in taking an arrestee before a magistrate:
? Injury to plaintiff's reputation

� 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 bathroom

while customer was being detained, mistakenly, as former shoplifter was not
outrageous conduct supporting award of punitive damages under Maine law when
customer did not pursue matter after his request was denied, even considered in
conjunction with other circumstances, including that employee allegedly violated
store policy by detaining customer rather than asking him to leave, that employee
pointed finger at customer while accusing him of stealing, and that employee
failed to clear up identity of customer and his mother and sister, who also were
detained, 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 had
impermissibly interfered with her right to enforce fragrance sample coupon, which
was benefit of her purchase contract with store, when it pretextually stopped
customer's niece to investigate possible shoplifting, was not excessive, and did
not violate store's due process rights; jury was presented with evidence regarding
store's closer surveillance of African-American shoppers, and award of punitive
damages in amount almost 20 times greater than compensatory damages was not
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 Number
Digest, Constitutional Law 303.
Remittitur of punitive damages award was required under due process clause of
Fourteenth 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 after
expenses. 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, Pensions
303.
Award of $150,000 in punitive damages to arrestee who prevailed in her claims

against store and store loss control manager for malicious prosecution and
intentional infliction of emotional distress was supported by evidence that store
and loss control manager acted with malice in causing arrestee to be arrested for
shoplifting even though loss control manager admitted that she did not see
arrestee shoplifting, and by evidence that store and loss control manager acted
with conscious indifference to consequences in causing arrestee to be arrested and
jailed. 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 not
entitled to directed verdict on student's false imprisonment and assault and
battery claims since neither of these intentional torts required proof of damages
for at least a nominal award and there was sufficient proof of emotional damages
which would justify submitting the issue to the jury. Banks v. Fritsch, 39 S.W.3d
474, 152 Ed. Law Rep. 379 (Ky. Ct. App. 2001); West's Key Number Digest, Assault
and Battery 42.
Casino patron waived for appellate review issue as to whether he deserved new
trial on basis of inconsistent jury verdict, which awarded him punitive, but not
actual 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 of
actual 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 nominal
damages if it did not find that he suffered actual damages, and patron failed to
do 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 wrongfully
detaining 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 despite
brief duration of detention, lack of claim for lost earnings, and absence of
mental or physical injury, since incident had racial overtones, and most
significant aspect of damage claim was abject humiliation to which plaintiff was
subjected in presence of his young impressionable stepdaughter, which caused
strain on his relationship with her. Bert v Port Authority of New York & New
Jersey (1990, 1st Dept) 166 App Div 2d 351, 561 NYS2d 416.
Evidence supporting jury's punitive damages award in patron's false imprisonment
action against store, which detained patron for suspected shoplifting, was legally
and factually sufficient, and viewed from the eyes of public policy, punitive
damages award of $50,000 was not excessive; nature of wrong was emotional harm
patron sustained as a result of this incident, patron's personality changed after
the incident, patron experienced nightmares and testified this incident caused him
to be depressed, and patron testified that store's security guard prevented him
from taking medication for a migraine headache, handcuffed him, placed him on the
floor in front of other people, and dumped his shopping bag on the floor. Dillard
Dept. Stores, Inc. v. Silva, 106 S.W.3d 789 (Tex. App. Texarkana 2003), reh'g
overruled, (June 10, 2003) and petition for review filed, (July 22, 2003); West's
[Top of Section]
[END OF SUPPLEMENT]
� 12.5. Defense considerations
Cases:
Under Kentucky law, shoplifting arrestee's stipulation, in exchange for dismissal

of charges, that probable cause existed for her arrest precluded arrestee's
subsequent defamation action against store owner and mall owner based on
allegations of shoplifting, even though stipulation was entered into with
government, 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 individual

capacities is not denied summarily, where officers claimed that plaintiff's 8-hour
detention at police station was based on good-faith suspicion, because qualified
immunity turns on objective reasonableness of action assessed in light of legal
rules clearly established when action was taken, and because at time of detention
clearly established legal rules provided that transportation of suspect to, and
prolonged detention at, station was indistinguishable from arrest and required
probable 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 F
Supp 1290.
New York statute which allows as a defense to torts such as false imprisonment a
retailer's reasonable detention of a person attempting to commit larceny on its
premises did not convert department store security guard into "state actor," for
purposes of � 1983 liability for alleged violation of 14-year-old girls' Fourth
Amendment rights when guard forced the girls to strip to their underclothes after
the guard caught them shoplifting, even though the guard called police who then
arrested 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 Key
Number Digest, Pensions 1326(9).
Assuming a Fourth Amendment violation occurred due to failure to provide defendant

with a probable cause determination within 48 hours of arrest, defendant's final
confession was sufficiently an act of free will to purge the primary taint of the
unlawful invasion, where defendant was repeatedly given Miranda warnings,
defendant gave several incriminating statements during the 48-hour period, with
only the very last version of his confession being given after 48 hours elapsed,
defendant had numerous breaks, outings, refreshments, and quiet reflection during
period, there was probable cause to arrest defendant at time he was first
detained, and continued detention focused on locating his child victim, rather
than 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 Number
Digest, Criminal Law 519(8).
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[END OF SUPPLEMENT]
II. Proof of Failure to Take Arrestee Before Magistrate Without Unreasonable or

Unnecessary Delay
A. Elements of Proof
� 13. Guide and checklist
The following facts and circumstances, among others, tend to establish that a
delay 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]

? 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 before

magistrate [� 23]
? Conduct of plaintiff as no bar to appearance before magistrate [� 23]
? Lack of other duties precluding defendant from taking plaintiff before

magistrate [� 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 for
false imprisonment solely on the theory that the defendant failed to take the
plaintiff before a magistrate without unreasonable or unnecessary delay. For
purposes of the proof, it is therefore assumed that the plaintiff is not
contesting the legality of the arrest itself. In a particular case, however, a
plaintiff might well join an action for false imprisonment based on unnecessary
delay 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 home
address and home telephone number without complying with the statutory procedures
which created a conditional privilege as to personnel records of and personal
information about peace officers. The privilege applies to both personnel records
and information obtained from the records. The statute was intended to create a
privilege for all information in peace officers' personnel files without regard to
whether 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 CDOS
1038.
[Top of Section]
[END OF SUPPLEMENT]
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 an

innkeeper.
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, and
the 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]?

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 to

jail 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] house
so 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 do

some preliminary investigation on my case.
Practice Comment: Impropriety of delay for investigative purposes.
Although there is authority to the contrary, most jurisdictions have rejected the
need or desire for further investigation of the case as a justification for delay
in taking an arrestee before a magistrate. Moreover, even in a jurisdiction where
some delay for investigative purposes is permitted, it would seem that such delay
would have to be relatively short to be reasonable, and that an overnight
detention (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
make the call then. So I telephoned [name], my attorney, and asked her to come
down 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 the
peace's house, so I could post bond, and I aked him why he insisted on keeping me
there 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 day
if it was necessary, and that he still wanted to investigate the case some more
before deciding what to do.
Practice Reminder: Necessity of introducing evidence of damages resulting from

delay.
Counsel should remember that, to recover more than nominal damages, it is

necessary to introduce evidence of damages sustained by the plaintiff as a result
of the unnecessary delay in taking him before a magistrate. Thus, evidence should
be introduced concerning the conditions of confinement during the overnight
detention of the plaintiff, and of any mental suffering sustained by the plaintiff
as a result of being forced to remain in the jail overnight. See � 12, supra.
� 18. Release of plaintiff without charge

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 and
then just telling me to go home.
A. He just told me that he had decided there was insufficient evidence to press
the case, so that he wasn't going to charge me with anything. He also said I
should 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 he

needed 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 without
being 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 entitled
to 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 the
plaintiff's case, and although the burden of proving such consent is apparently on
the defendant, testimony concerning the plaintiff's lack of consent to the delay
and to the overnight detention is presented here both to emphasize the involuntary
nature of the plaintiff's unreasonably long detention and to negative any
suggestion by the defendant that the delay was requested or acquiesced in by the
plaintiff.
C. Testimony of Attorney
� 20. Availability of magistrate
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 after
testifying or to accept employment in a case when it is known in advance that the
attorney 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 is
presented here is not the attorney representing the plaintiff in the trial of the
action.
Q. Directing your attention now to , 20 [date of plaintiff'sarrest], did you have

occasion 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 first
conversation was over the telephone.
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 of
jail.
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, and

that [defendant] had put him in jail and refused to take him to the justice of the
peace.
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 the
peace 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 agreeable

to 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 house
before 10:00 o'clock that he would set bond for him. He also said that, if for
some 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 the
contention that there was an unreasonable delay in taking the arrestee before a
magistrate, an essential element of plaintiff's case is proof of availability of a
magistrate. See � 4, supra. It has been held that the burden of proving such
availability is met where the plaintiff introduces evidence that an attorney had
contacted a magistrate and obtained the magistrate's agreement to set bond for the
plaintiff. Librach v Litzinger (Mo) 401 SW2d 433.
Cases:
In arrestee's civil rights action against city and two police officers, alleging
that his 22-hour overnight detention on domestic assault charges without
arraignment or opportunity for immediate release on interim bond violated Fourth
Amendment, defendants were entitled to summary judgment based on qualified
immunity where arrestee failed not only to show that magistrate was available to
arraign him on night of his arrest but also to show even genuine issue of material
fact on this matter. Brennan v Township of Northville (1996, CA6 Mich) 78 F3d
1152.
Arrestee's � 1983 claim against township police officers, alleging wrongful

detention after her arrest for shooting her husband in domestic dispute, is not
denied summarily, where officers claimed that arrestee was detained for 20 hours
because they were awaiting arraignment and conducting further investigation and
wanted situation to "cool down" between arrestee and her husband, but where there
was no evidence as to whether magistrate could have been made available through
special arrangement for arraignment on Saturday, because material issue of fact
exists as to whether arrestee was detained even though magistrate was available.
Williams v Van Buren Twp. (1996, ED Mich) 925 F Supp 1231.
[Top of Section]
[END OF SUPPLEMENT]
� 21. Defendant's refusal to take plaintiff before magistrate
Q. What did you do after talking to [magistrate]?
A. I drove down to the police station to talk to [plaintiff] and [defendant].
Q. And what time did you arrive at the police station?
A. It was at about 8:00 p.m., possibly a little later than that.
Q. What did you do on your arrival there?
A. I spoke briefly to [defendant] and told him that I was the attorney for
[plaintiff], and I asked to speak to my client.
Q. Did [defendant] permit you to do so?
A. Yes, he did. He took me back to the cell where [plaintiff] was being held and
let me talk to him.
Q. How long did that conversation take?
A. Just a couple or three minutes. I just told [plaintiff] about my conversation

with the justice of the peace, and then I went back to talk to [defendant].
Q. What was your purpose in talking to [defendant]?
A. I wanted to make arrangements to take [plaintiff] over to [magistrate's] house

to set bond.
Q. What did you tell [defendant]?
A. I told him that I had telephoned [magistrate] before coming over, and that he
was agreeable to setting bond that evening. I also told him that [magistrate]
preferred that we go over to his house, but that if we were unable to do so, he
would come down to the courthouse if we wanted.
Q. What did [defendant] say in response?
A. He said that it would be impossible to release [plaintiff] on bond that

evening.
Q. And what did you say?
A. I asked him why, since the judge was agreeable to doing it.
A. He said that it was after 5:00 o'clock, and that anyone arrested after that
time had to wait until the next morning for arraignment and setting of bond. He
also said that he wanted to investigate the case a little further before deciding
on the exact charge.
Q. Did you say anything further to [defendant] that evening?
A. Well, I just reiterated what I had already said, and I told him it was
absolutely unreasonable to keep a man in jail overnight on a charge like that.
Q. Did [defendant] respond to that statement?
A. He said that he had made his decision, that he had every right to hold
[plaintiff] overnight if he wanted, and that nothing I said was going to change
his mind, so I might just as well go home.
Q. What did you do then?
A. I saw that he was adamant in his refusal, so I conferred briefly with

[plaintiff] again, and then left and went home.
Practice Reminder: Recoverability of attorneys' fees.
In an action for false imprisonment, the plaintiff may recover as damages any
attorneys' fees that were proximately and necessarily caused by the unreasonable
delay in bringing him before a magistrate. See � 12, supra; see also, Annotation:
Attorneys' Fees as element of damages in action for false imprisonment or arrest,
or for malicious prosecution, 21 A.L.R. 3d 1068. Thus, on the issue of damages,
testimony should be adduced as to the fee charged by the attorney in connection
with her efforts to obtain the plaintiff's release from custody.
D. Testimony of Defendant
� 22. Arrest and incarceration of plaintiff

Practice Comment: Adverse party testimony.
Proof through the adverse party often may be necessary and may be accomplished by
examination before trial with the use of depositions and interrogatories, by
cross-examination during presentation of the adverse party's case, or by calling
the adverse party as an adverse witness during presentation of a party's own
direct case. In the latter situation, the federal courts (Fed R Evid 611(c)) and
most states permit the adverse party to be interrogated as if under cross
examination, and leading questions may be asked. See 81 Am. Jur. 2d, Witnesses ��
422, 423, 494; 4 Jones on Evidence (6th ed.) �� 24:12, 25:18. Counsel should
insist on direct and responsive answers to secure the necessary information.
A. I am a police officer for the Town of .
Q. How long have you been so employed?
A. About years.
Q. Directing your attention now to , 20 [date of arrest], you arrested [plaintiff]

on that date, didn't you?
A. Yes, I did.
Q. What time did that arrest occur?
A. It was approximately 6:00 o'clock in the evening.
Q. After arresting [plaintiff], did you take him before the justice of the peace
in [town]?
A. No, I did not.
Q. Where did you take him?
A. I took him downtown to the police station.
Q. And you placed him in jail?
A. That is correct.
Q. What charge did you arrest him on?
A. It was for suspicion of defrauding an innkeeper.
Q. No formal charges were ever filed, where they?
A. No, that is correct. He was released without charge.
Q. When was [plaintiff] released from jail?
A. He was released the following morning.
Q. So he was kept in jail the entire night for suspicion of defrauding an

innkeeper, is that right?
A. Yes.
Q. And he was kept in jail at your direction, is that correct?
Q. How many officers were on duty that evening?

A. There were a total of officers on duty until midnight; after midnight there
were officers on duty.
Q. And who was in overall charge until midnight?
A. I was the superior officer in charge.
Q. And as such, you had overall responsibility for the operation of the town's
police department and the functioning of the jail, is that right?
Q. And you were also responsible for any inmates in the jail, is that right?
A. I was.
� 23. Mental and physical condition of plaintiff at time of arrest
Q. At the time you arrested [plaintiff], did he seem to be in possession of his

mental faculties?
A. Yes, he did.
Q. Did he appear intoxicated?
A. No, he did not.
Q. Did he appear to be in good physical condition?
A. Yes, he did.
Q. Did he appear to be suffering from any illness or disability?
A. No, he did not.
Q. So there was nothing about his mental or physical condition that prevented you
from taking him before the justice of the peace, was there?
A. No, that was not a factor.
Q. [Plaintiff] did not resist arrest, did he?
A. No, he did not.
Q. And in fact he behaved himself very well at all times that evening, didn't he?
A. Yes, he gave me no trouble.
Q. So there was nothing about the way that he behaved that prevented you from
taking him before the justice of the peace, was there?
A. No, there was not.
Practice Comment: Elimination of possible justifications for delay.

A delay in bringing an arrestee before a magistrate may be justified on the ground
that the mental or physical condition or conduct of the arrestee, or the
intoxication of the arrestee, prevented taking him before a magistrate. See � 6,
supra. By eliciting the defendant's admissions that the plaintiff was in sound
mental and physical condition, that he was not intoxicated, and that he was well
behaved, the plaintiff can effectively prevent the defendant from seeking to claim
that the failure to take him before a magistrate was justified as a result of the
plaintiff's mental or physical condition.
� 24. Lack of other duties elsewhere
Q. You have testified that you were the officer in operational charge of the
police department on the evening of , 20 [date of arrest], is that right?
Q. As such, I assume you were responsible for the assignment of the [number] other
officers on duty that night, is that correct?
A. Yes, that's correct.
Q. And you also could determine what you yourself did, isn't that true?
A. Well, of course I had to attend to police duties, but as the officer in charge,
I did have the discretion of determining which duties to handle at a particular
moment.
Q. Was that a particularly busy night for the police department?
A. No, not that I recall.
Q. Were any other arrests made that evening?
A. I don't believe so.
Q. In fact, [plaintiff] was the only person who was in the [town] jail that
evening, wasn't he?
A. Yes, that's true.
Q. And you spent a good portion of the evening at the police station, didn't you?
A. I was there off and on, yes.
Q. So you had no duties that required your presence elsewhere, isn't that right?
A. Well, I went out on patrol at times, but it wasn't necessary to be outside the
station at all times.
� 25. Feasibility of taking plaintiff before magistrate at night
Q. Where is the courthouse in [town] located?
A. It's on Street.
Q. Where is that in relation to the police station?
A. It's two doors down from the police station.
Q. So you could walk to it in a couple of minutes, couldn't you?
A. Yes, I could.
Q. Do you know [magistrate]?
A. Yes, I do.
Q. Who is he?
A. He is the justice of the peace in [town].
Q. Was he the justice of the peace on , 20 [date of arrest]?
A. Yes, he was.
Q. And you were familiar with him and his position as justice of the peace on that
date?
A. Yes, I was.
Q. Did you, on that date, know [magistrate's] home address?
A. Yes, I did.
Q. How far was his home from the police station?
A. I would estimate about 4 miles.
Q. And [town] is not heavily populated, is it?
A. No, it is not.
Q. And there is no traffic congestion to speak of at night there, is there?
A. No, there is not.
Q. So it would have taken only a matter of minutes to have driven to

[magistrate's] house, wouldn't it?
A. Yes, it would not have taken long if I had decided to do so.
Q. When you arrested [plaintiff] did you search him for weapons?
A. No, I did not.
Q. Did you search him before you placed him in the jail cell?
A. No.
Q. Why not?
A. I was familiar with [plaintiff], and I knew that he would not be carrying any
weapon.
Q. So you did not feel that he posed any security threat, did you?
A. No, he was no security problem.
Q. And when you took him to jail, you transported him by yourself, with you
driving, is that true?
A. Yes, I did.
Q. It wasn't any concern with possible security problems, then, was it, that
prevented you from taking [plaintiff] before the justice of the peace?
A. No, that was not the reason.
Practice Comment: Significance of evidence showing feasibility of taking plaintiff

before magistrate.
Evidence that the defendant did not have any other pressing duties on the night of
the arrest, and that it was not a particularly busy night for the police
department, coupled with the evidence concerning the feasibility of taking the
plaintiff before the magistrate that evening, tends to negate any claim that the
delay was justified because the officer had other pressing duties that prevented
him from taking the plaintiff before a magistrate, and thus such evidence tends to
establish that the failure to take the plaintiff before the magistrate on the
evening of the arrest was both unreasonable and unnecessary.
� 26. Previous policy of taking arrestees before magistrate at night
Q. Prior to the evening you arrested [plaintiff], you had made other arrests
during the evening hours, hadn't you?
A. Oh yes, I've made many arrests at night.
Q. Prior to the arrest of [plaintiff], had you ever arrested anyone at 6:00 p.m.
or later and taken them before the magistrate that same night?
A. On a few occasions I had done that, but it was not my usual practice.
Q. You knew the home telephone number of the justice of the peace, didn't you?
A. Yes, I did.
Q. And on other occasions you had telephoned him at home to see if he would set
bond for someone during the evening hours, hadn't you?
A. Yes, I had on occasion.
Q. In fact, it was your policy, was it not, to telephone [magistrate] when an

arrest was made on a relatively minor charge in the early eveining hours, to see
if [magistrate] was available to set bond?
A. I'm not sure if I would say it was a policy, but I often tried to do that, yes.
Q. You didn't consider the charge that you arrested [plaintiff] on as a serious
one, did you?
A. It could be a serious charge.
Q. But in light of the facts underlying the charge, did you consider it a serious
one?
A. I didn't really believe that was up to me to decide.
Case Illustration: Effect of failure to follow previous practice of contacting

magistrate.
In a case where the defendants sought to justify their failure to take the
plaintiff before a magistrate on the ground that the arrest occurred at 11:00 p.m.
and there was no magistrate available, it was held that such justification was
properly rejected, since, although the magistrate was not generally available
after 9:00 p.m., the police on prior occasions had telephoned the magistrate when
an arrest was made late at night, and the magistrate had made himself available if
he was home. Since the officers in the case on appeal had not attempted to
determine whether the magistrate was available, they did not have good grounds for
believing that he was unavailable. Roberts v Bohac (CA5 Tex) 574 F2d 1232.
E. Testimony of Magistrate
� 27. Status as qualified and acting magistrate
A. I am a justice of the peace of the Court of .
Q. Where is your court located?
A. It is in the Town of .
Q. Do you also live in that town?
A. Yes, I do.
Q. How long have you been a justice of the peace?
A. years.
Q. So you were a justice of the peace on , 20 [date of arrest], is that correct?
A. Yes, I was.
Q. As a justice of the peace, do you have any duties with respect to the
arraignment of arrested persons and the setting of bond for them?
A. Yes, I do. Persons arrested in or near the Town of are commonly brought before
my court, and I have the power and the duty to arraign them and to set bond for
their release.
Q. And on , 20 [date of arrest], you were equally empowered to arraign arrestees
and set bond for their release?
A. Yes, I was.
� 28. Availability of magistrate on night of arrest
Q. Did you hold court as usual on , 20 [date of arrest]?
A. Yes, I did.
Q. Do you recall what time your court adjourned that day?
A. I believe it was about 2:30 p.m.
Q. Did you thereafter go home?
A. No, I did not. I routinely stay in my chambers until 5:00 p.m. when court is
not in session.
Q. So you stayed at the courthouse until 5:00 p.m. that day?
A. Yes, I did.
Q. What did you do after that?
A. I went home, ate dinner, watched some television, did some reading, and then
went to bed about 11:00 o'clock.
Q. So you were at your home from shortly after 5:00 o'clock until you left the
next morning, is that correct?
A. Yes, that's correct.
Q. Do you know [plaintiff's attorney]?
A. Yes, I do.
Q. How long have you known her?
A. I really don't know exactly, but it's been a good number of years.
Q. Do you know her occupation?
A. Yes, she's an attorney.
Q. Prior to , , [date of plaintiff's arrest], had [attorney] ever appeared before

you in your court?
A. Yes, numerous times.
Q. So you were fully familiar with her at that time?
A. Oh, yes, I was.
Q. Did you have occasion to talk with [attorney] on the evening of , 20 [date of
plaintiff's arrest]?
A. Yes, I did.
Q. Where did that conversation occur?
A. She telephoned me at my home.
Q. Do you recall what time it was?
A. Yes, I recall that the news on television had just ended, so it would have been
shortly after 7:30 p.m.
Q. What was the reason that she called you that evening?
A. A client of hers had been arrested a short while before, and she wanted to know
if I would be agreeable to setting a bond for his release.
Q. And what did you tell [attorney]?
A. I agreed to do it for her. I told her I would be home all evening, and that she
could either have her client brought over to my house, which I actually would have
preferred, or I could go down to the courthouse, assuming of course it was
agreeable to the police department as well.
� 29. Previous policy of setting bond for arrestees at night
Q. Prior to that date, had you ever before agreed to set bond for someone during
the evening hours?
A. Yes, I had done that on a number of occasions.
Q. Was it your policy to do so?
A. If it was a minor offense that a person really should not spend a night in jail
for, yes, provided of course that I was at home and not otherwise engaged for the
evening.
Q. Did you know the charge that [attorney's] client had been arrested on?
A. I frankly don't recall the exact charge, but I do remember that it seemed
rather trivial.
Q. Did you hear again from [attorney] that evening?
A. No, I did not.
Q. And [plaintiff] was not brought before you that evening, was he?
A. No, he was not.
Primary Authority
Applicability of Federal Tort Claims Act to false arrests and false imprisonments
committed by federal investigative or law enforcement officers, 28 USCA � 2680(h)
A.L.R. Library
Waiver of, or estoppel to assert, failure to give or defects in notice of claim

against state or local political subdivision�Modern status, 64 A.L.R. 5th 519
Construction, and application of "pay-all-taxes" provision in will, as including

liability of nontestamentary property for inheritance and estate taxes, 56 A.L.R.
5th 133
Payment of attorneys' services in defending action brought against officials

individually as within power or obligation of public body, 47 A.L.R. 5th 553
Excessiveness or inadequacy of compensatory damages for false imprisonment or

arrest, 48 A.L.R. 4th 165
Intoxication as ground for police postponing arrestee's appearance before

magistrate, 3 A.L.R. 4th 1057
Defendant's state of mind necessary or sufficient to warrant award of punitive

damages in action for false arrest or imprisonment, 93 A.L.R. 3d 1109
Immunity of prosecuting attorney or similar officer from action for false arrest
or imprisonment, 79 A.L.R. 3d 882
Construction and effect, in false imprisonment action, of statute providing for

detention of suspected shoplifters, 47 A.L.R. 3d 998
Liability of attorney acting for client, for false imprisonment or malicious

prosecution of third party, 27 A.L.R. 3d 1113
Attorneys' fees as element of damages in action for false imprisonment or arrest,

or for malicious prosecution, 21 A.L.R. 3d 1068
Delay in taking before magistrate or denial of opportunity to give bail as

supporting action for false imprisonment, 98 A.L.R. 2d 966
Principal's liability for false arrest or imprisonment caused by agent or servant,

92 A.L.R. 2d 15
Judgment in false imprisonment action as res judicata in later malicious

prosecution action, or vice versa, 86 A.L.R. 2d 1385
Pleading good faith or lack of malice in mitigation of damages in action for false
arrest or imprisonment, 49 A.L.R. 2d 1460
When statute of limitations begins to run against action for false imprisonment or
false arrest, 49 A.L.R. 2d 922
Excessiveness or inadequacy of damages for false imprisonment or arrest, 35 A.L.R.

2d 273
Legal Encyclopedias
Duty to bring arrested person before magistrate without unnecessary delay, 5 Am.
Jur. 2d, Arrest �� 76, 77
Elements of action for false imprisonment, generally, 32 Am. Jur. 2d, False
Imprisonment �� 5 et seq.
Waiver of right to be brought before magistrate without unnecessary delay, 32 Am.

Jur. 2d, False Imprisonment � 90
Evidence in action for false imprisonment, generally, 32 Am. Jur. 2d, False
Damages in action for false imprisonment, generally, 32 Am. Jur. 2d, False
Delay in bringing arrested person before magistrate as basis of action for false
imprisonment, 32 Am. Jur. 2d, False Imprisonment �� 23�25
Treatises and Practice Aids
Police Misconduct: Law and Litigation
Gershman, Prosecutorial Misconduct
Torcia, Wharton's Criminal Procedure (13th ed.)
Trial Strategy
Compensatory damages for false imprisonment, 13 Am. Jur. Proof of Facts 3d 111
Police Misconduct as Municipal Policy or Custom, 13 Am. Jur. Proof of Facts 3d 1
Invalidity of Suspect's Waiver of Miranda Rights, 42 Am. Jur. Proof of Facts 2d

617
Excessive Bail, 18 Am. Jur. Proof of Facts 2d 149
Malicious Prosecution, 7 Am. Jur. Proof of Facts 2d 181
Wrongful Death of Minor in Police Custody, 69 Am. Jur. Trials 1
Asserting Claims of Unconstitutional Prison Conditions Under 42 USCA � 1983, 64

Am. Jur. Trials 425
Obtaining Damages in Federal Court for State and Local Police Misconduct, 62 Am.
Jur. Trials 547
Habeas Corpus: Pretrial Rulings, 41 Am. Jur. Trials 349
Historical Aspects and Procedural Limitations of Federal Habeas Corpus, 39 Am.

Jur. Trials 157
Defense of a Police Misconduct Suit, 38 Am. Jur. Trials 493
Police Misconduct Litigation�Hostage Situations, 35 Am. Jur. Trials 505
Police Misconduct Litigation�Plaintiff's Remedies, 15 Am. Jur. Trials 555
Forms
Complaints seeking recovery for false imprisonment based on unreasonable detention

of plaintiff after arrest and failure to bring plaintiff before magistrate without
unnecessary delay, 10 Am. Jur. Pleading and Practice Forms, False Imprisonment,
Forms 101�103
Defensive pleadings in actions for false imprisonment based on unnecessary delay

in taking prisoner before magistrate, 10 Am. Jur. Pleading and Practice Forms,
False Imprisonment, Forms 105�108
Jury instruction concerning duty to take arrestee before magistrate without
unnecessary delay, 10 Am. Jur. Pleading and Practice Forms, False Imprisonment,
Form 109
Law Reviews and Other Periodicals
The "we didn't know any better" defense: the Eighth Circuit's view of qualified
immunity for jail officers who detain arrestees, 68 Mo. L. Rev. 983 (2003 WL
23744785)
Merchant's racial slurs violated customer's civil rights, N.J. court says, 40
Trial 78 (2004 WL 585894)
50-hour delay in arraignment bars statements, 9/27/2001 N.Y. L.J. 1 (2001 WL

1585721)
A double-barrelled assault: How technology and judicial interpretation threaten

public access to law enforcement records, 48 Fed Commun LJ 2:341 (1996)
A new preparer's penalty, 185 J Accountancy 3:30 (1998)
Brutality in blue: Community, authority, and the elusive promise of police reform,
92 Mich LR 1556 (1994)
Busting open the big box: Wal-Mart and other large corporations fight hard to keep
documents that are relevant to plaintiffs' claims sealed up tight. Here's how to
combat discovery abuse and get the evidence your client needs, 37 Trial 26 (2001
WL 1657500)
Death in a Texas store costs Dillard's $800,000; Black patron was hogtied by white
security officers, 5/28/2001 Nat'l L.J. 9 (2001)
Denial of Fourth Amendment protections in the pretrial detention of juveniles, 35

Santa Clara LR 2:689 (1996)
False arrest, malicious prosecution, and abuse of process in � 1983 litigation, 20

Touro L. Rev. 705 (2004 WL 3395167)
Halliday, How Much Detention Constitutes False Imprisonment, 15 Clev-Mar L Rev 75

(Jan 1966)
How individual trustees can avoid liability and breaches of trust, 24 Estate Plan
10:481 (1998)
Littlejohn, Civil Liability and the Police Officer: The Need for New Deterrents to
Police Misconduct, 58 U Det J Urb L 365 (1981)
Man "disappears" in Miss county jail; Improperly jailed for 10 months, he seeks $4
million, gets $36,200, 10/30/2000 Nat'l L.J. A14 (2000)
Manos, Police liability for false arrest or imprisonment, 16 Clev-Mar L Rev 415
(Sept 1967)
Minimum compliance with minimum standards: Managing trustee conflicts of interest,

24 J Coll & Univ L 3:465 (1998)
Negligent false imprisonment�Scope for re-emergence? 61 Modern LR 4:573 (1999)
New York Pretrial Criminal Procedure, by Marks et al, West Publishing Co.,
(Reviewed), 68 NY St BJ 7:43 (1997)
Note: Civil liability for illegal arrests and confinements in California, 19 Hast
L J 974 (March 1968)
Police civil liability and the First Amendment: Retaliation against citizens who
criticize and challenge the police, 42 Crime & Delinquency 1:50 (1996)
Police civil liability under Section 1983: When do police officers act under color
of law? 23 J Crim Just 5:395 (1995)
Police documents as admissible hearsay, 1993 Crim LR 480 (1993)
Psychological research on the police: An introduction, 17 Law & Hum Beh 151 (1993)
Qualified immunity in section 1983 cases and the role of state decisional law, 35
Ariz LR 621 (1993)
Restrictive police records access policy struck down, 19 News Media & Law 1:46
(1995)
Screening, evaluating, and settling police misconduct cases, 29 Trial 36 (1993)
Section 1983 actions under Miranda: A critical view of the right to avoid
interrogation, 30 Am Crim LR 1277 (1993)
Self-dealing trustees and the exoneration clause: Can trustees ever profit from
transactions involving trust property? 72 St John's U LR 1:43 (1998)
States of Confinement: Policing, Detention, and Prisons, (Reviewed), 6/23/2000

N.Y. L.J. 2 (2000)
The attorney's guide to trust conveyances, 14 Prac RE Lawyer 1:83 (1998)
The feds, lies, and videotape: The need for an effective federal role in
controlling police abuse in urban America, 66 S Cal LR 1453 (1993)
The Financial Advisor's Analytical Toolbox: Using Technology to Optimize Client

Solutions, by McCarthy, McGraw-Hill, (Reviewed), 51 J Am Soc of CLU & ChFC
5:107(1) (1998)
The relationship between police belief systems and attitudes toward police
practices, 20 Crim Jus & Beh 199 (1993)
Wal-Mart hit with $13M verdict; malicious prosecution verdict hinges on tape,
10/22/2001 Nat'l L.J. A4 (2001 WL 1538392)
Weighing society's need for effective law enforcement against an individual's

right to liberty: Swinney v. State and the forty-eight hour rule, 24 Miss. C. L.
Rev. 73 (2004 WL 3507396)
[FN*] Senior Editor, Bancroft-Whitney Company.
--------------------------------------------------------------------------------
Section 1 Footnotes:
[FN1]
A.L.R. Library
Delay in taking before magistrate or denial of opportunity to give bail as

supporting action for false imprisonment, 98 A.L.R. 2d 966.
Halliday, How Much Detention Constitutes False Imprisonment, 15 Clev-Mar L Rev 75,
79 (Jan 1966).
Legal Encyclopedias
5 Am. Jur. 2d, Arrest � 76; 32 Am. Jur. 2d, False Imprisonment � 23.
[FN2] Anderson v Nosser (CA5 Miss) 438 F2d 183, mod en banc (CA5 Miss) 456 F2d
835, cert den 409 US 848, 34 L Ed 2d 89, 93 S Ct 53 and later app (CA5 Miss) 507
F2d 929, reh den (CA5 Miss) 510 F2d 1407.
[FN3]
98 A.L.R. 2d 966.
Legal Encyclopedias
5 Am. Jur. 2d, Arrest � 76.
[FN4] Dragna v White, 45 Cal 2d 469, 289 P2d 428.
[FN5]
98 A.L.R. 2d 966.
Halliday, 15 Clev-Mar L Rev 75, 79; Manos, Police Liability for False Arrest or
Imprisonment, 16 Clev-Mar L Rev 415, 425 (Sept 1967).
Dragna v White, 45 Cal 2d 469, 289 P2d 428.
[FN6] Note: Civil liability for illegal arrests and confinements in California, 19
Hast L J 974, 977 (March 1968). See � 2, infra.
[FN7] See �� 3� 7, infra.
[FN8] See � 9, infra.
[FN9] Cross-reference: With respect to a possible cause of action for false

arrest, see � 2, infra.
With respect to the effect that the legality of the delay has on the legality of
an otherwise proper arrest, see � 8, infra.
[FN10]
98 A.L.R. 2d 966.
Legal Encyclopedias
Note: 19 Hast L J 974, 985.
[FN11] Halliday, 15 Clev-Mar L Rev 75, 84.

[FN12] 32 Am. Jur. 2d, False Imprisonment �� 1, 5.
Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699.
[FN13] Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337.
Halliday, 15 Clev-Mar L Rev 75.
[FN14] Manos, 16 Clev-Mar L Rev 415, 416; Note: 19 Hast L J 974, 982.
Legal Encyclopedias
32 Am. Jur. 2d, False Imprisonment �� 5, 6.
[FN15] Manos, 16 Clev-Mar L Rev 415, 416; Note: 19 Hast L J 974, 977, 982.
Legal Encyclopedias
See, for example, Roberts v Bohac (CA5 Tex) 574 F2d 1232.
[FN16] Manos, 16 Clev-Mar L Rev 415, 416�417; Note: 19 Hast L J 974, 982.
Legal Encyclopedias
32 Am. Jur. 2d, False Imprisonment � 5.
[FN17]
Pleading good faith or lack of malice in mitigation of damages in action for false
arrest or imprisonment, 49 A.L.R. 2d 1460. Manos, 16 Clev-Mar L Rev 415, 416, 426.
32 Am. Jur. 2d, False Imprisonment �� 6, 7, 105. See, for example, Roberts v Bohac
(CA5 Tex) 574 F2d 1232.
Cross-reference: With respect to recovery of punitive damages, see � 12, infra.
[FN18] Manos, 16 Clev-Mar L Rev 415; Note: 19 Hast L J 974, 982.
Legal Encyclopedias
[FN19] Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349.

Manos, 16 Clev-Mar L Rev 415, 417.
Legal Encyclopedias
32 Am. Jur. 2d, False Imprisonment � 4; 52 Am. Jur. 2d, Malicious Prosecution � 3.
[FN20] 1 Am. Jur. 2d, Abuse of Process � 3; 32 Am. Jur. 2d, False Imprisonment �
3.
[FN21]
98 A.L.R. 2d 966.
Legal Encyclopedias
5 Am. Jur. 2d, Arrest � 77.
[FN22] Roberts v Bohac (CA5 Tex) 574 F2d 1232.
[FN23]
98 A.L.R. 2d 966.
[FN24] Dragna v White, 45 Cal 2d 469, 289 P2d 428.
[FN25]
98 A.L.R. 2d 966.
Halliday, 15 Clev-Mar L Rev 75, 84.

Librach v Litzinger (Mo) 401 SW2d 433.
[FN26] Halliday, 15 Clev-Mar L Rev 75, 76, 80�81; Note: 19 Hast L J 974, 982.
98 A.L.R. 2d 966.
Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699; Librach v
Litzinger (Mo) 401 SW2d 433.
[FN27]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN28] Halliday, 15 Clev-Mar L Rev 75, 76.
98 A.L.R. 2d 966.
[FN29]
98 A.L.R. 2d 966.
[FN30]
98 A.L.R. 2d 966.
Halliday, 15 Clev-Mar L Rev 75, 80�81; Note: 19 Hast L J 974, 977�978.
[FN31]
98 A.L.R. 2d 966.
[FN32] Wilson v Hellard (Ky) 333 SW2d 777.
[FN33]
98 A.L.R. 2d 966.
Halliday, 15 Clev-Mar L Rev 75, 84.
Legal Encyclopedias
[FN34] Rounds v Bucher, 137 Mont 39, 349 P2d 1026, 98 ALR2d 962; Librach v
[FN35]
98 A.L.R. 2d 966.
[FN36] Ames v Strain (Okla) 301 P2d 641.
[FN37]
98 A.L.R. 2d 966.
[FN38] Librach v Litzinger (Mo) 401 SW2d 433.
[FN40]
98 A.L.R. 2d 966.
[FN42] Wilson v Hellard (Ky) 333 SW2d 777.
[FN43] Compare Ames v Strain (Okla) 301 P2d 641 (delay justified on ground of
unavailability of magistrate where officers unsuccessfully tried to contact one)
with Anderson v Nosser (CA5 Miss) 438 F2d 183, mod en banc (CA5 Miss) 456 F2d 835,
cert den 409 US 848, 34 L Ed 2d 89, 93 S Ct 53 and later app (CA5 Miss) 507 F2d
929, reh den (CA5 Miss) 510 F2d 1407 (unavailability of magistrate not shown where
no attempt by police to secure one).
[FN44]
98 A.L.R. 2d 966. Halliday, 15 Clev-Mar L Rev 75, 84.
[FN45]
98 A.L.R. 2d 966.
[FN47]
98 A.L.R. 2d 966.
[FN48] Fulford v O'Connor, 3 Ill 2d 490, 121 NE2d 767.
[FN49]
98 A.L.R. 2d 966.
[FN50] Myers v Collett, 1 Utah 2d 406, 268 P2d 432.

[FN51] Note: 19 Hast L J 974, 981.
[FN52]
98 A.L.R. 2d 966.
See, for example, Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699.
Cross-reference: With respect to consent to or waiver of delay, see � 10, infra.
[FN53]
98 A.L.R. 2d 966. Halliday, 15 Clev-Mar L Rev 75, 84.
[FN54]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN55] Johnson v Chesapeake & O. R. Co., 259 Ky 789, 83 SW2d 521.
[FN56]
98 A.L.R. 2d 966.
[FN57] State use of Kelley v Yearwood, 204 Miss 181, 37 So 2d 174.
[FN58] 32 Am. Jur. 2d, False Imprisonment � 25.
[FN59]
98 A.L.R. 2d 966.
[FN60] Hall v State, 114 Ind App 328, 52 NE2d 370.
[FN61]
98 A.L.R. 2d 966.
[FN62] Haverbekken v Hollingsworth (Tex Civ App) 250 SW 261, writ dism w o j.
[FN63] State use of Kelley v Yearwood, 204 Miss 181, 37 So 2d 174.

[FN64]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN65] Seguin v Myers, 279 App Div 690, 108 NYS2d 28.
[FN66]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN67]
98 A.L.R. 2d 966.
Note: 19 Hast L J 974, 982.

See, for example, Dragna v White, 45 Cal 2d 469, 289 P2d 428; Thomas v Colonial
Stores, Inc., 236 SC 95, 113 SE2d 337.
[FN68] See, for example, Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337.
[FN69]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN70]
98 A.L.R. 2d 966.
Note: 19 Hast L J 974, 983.
[FN71] Note: 19 Hast L J 974, 983�984.

Legal Encyclopedias
57 Am. Jur. 2d, Municipal, School, and State Tort Liability � 112.
[FN72] 28 USCA � 2680(h).
[FN73]
98 A.L.R. 2d 966. Note: 19 Hast L J 974, 985.
Legal Encyclopedias
[FN74]
A.L.R. Library
Principal's liability for false arrest or imprisonment caused by agent or servant,

92 A.L.R. 2d 15.
Cross-reference: As to recovery of punitive damages, see � 12, infra.
[FN75]
98 A.L.R. 2d 966. Manos, 16 Clev-Mar L Rev 415, 425.
[FN76]
98 A.L.R. 2d 966. Manos, 16 Clev-Mar L Rev 415, 425�426.
[FN77] Sima v Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P2d 1085.
[FN78] Alvarez v Reynolds, 35 Ill App 2d 54, 181 NE2d 616.
[FN79]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN80]
98 A.L.R. 2d 966.
[FN81] Kangieser v Zink (1st Dist) 134 Cal App 2d 559, 285 P2d 950.
[FN82]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN83] Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699.
[FN84]
98 A.L.R. 2d 966.
Legal Encyclopedias
[FN85]
98 A.L.R. 2d 966.
[FN86]
98 A.L.R. 2d 966.
[FN87]
98 A.L.R. 2d 966.
[FN88]
98 A.L.R. 2d 966.
[FN89] Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699.
[FN90] The proof necessary to establish that a delay was or was not reasonable and
that a particular defendant was or was not liable, and the types of evidence that
may be relied on in so doing, are also discussed in various of the preceding
sections. Evidence relating to damages is discussed in the following section.

Thurston v Leno, 124 Vt 298, 204 A2d 106.
[FN92] 32 Am. Jur. 2d, False Imprisonment � 101. Dillard v Syracuse (4th Dept) 51
App Div 2d 432, 381 NYS2d 913, app dismd 39 NY2d 1011, 387 NYS2d 243, 355 NE2d
298.
[FN93] Rounds v Bucher, 137 Mont 39, 349 P2d 1026, 98 ALR2d 962; Librach v
[FN94] Doherty v Shea, 320 Mass 173, 68 NE2d 707.
[FN97] Feliciano v Kreiger, 50 Ohio St 2d 69, 4 Ohio Ops 3d 158, 362 NE2d 646.
[FN98] Manos, 16 Clev-Mar L Rev 415, 426.


[FN3] 32 Am. Jur. 2d, False Imprisonment �� 103, 107, 113�114. Manos, 16 Clev-Mar
L Rev 415, 426.

[FN6]
A.L.R. Library
Attorneys' fees as element of damages in action for false imprisonment or arrest,

or for malicious prosecution, 21 A.L.R. 3d 1068.
[FN7] Thomas v Colonial Stores, Inc., 236 SC 95, 113 SE2d 337.

[FN9] Manos, 16 Clev-Mar L Rev 415, 416.
49 A.L.R. 2d 1460.
Legal Encyclopedias
32 Am. Jur. 2d, False Imprisonment �� 103�105, 116.
[FN11]
92 A.L.R. 2d 15.
Legal Encyclopedias
[FN12]
A.L.R. Library
Excessiveness or inadequacy of damages for false imprisonment or arrest, 35 A.L.R.

2d 273.
� 2006 Thomson/West
26 AMJUR POF 2d 617
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American Jurisprudence Proof of Facts 2d

Categorical List of Articles

False Imprisonment�Failure to Take Arrestee Before Magistrate Without Unreasonable

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

Abuse of process distinguished,, � 2

Whether, after an arrest, there was an unreasonable or unnecessary delay in taking

Persons arrested without a warrant must promptly be brought before a neutral

Exigent circumstances: Whether exigent circumstances existed making delay in

Defendant's claim that police intentionally delayed arraignment for purpose of

Application of Davenport-Duncan rule related to prompt arraignment to permit use

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

It is difficult to distinguish between false arrest and false imprisonment, and it

Deliberate indifference to medical emergency: Genuine issue of material fact

Evidence supported verdict for plaintiff on false imprisonment cause of action

� 3. What constitutes unreasonable or unnecessary delay

The propriety of a particular period of detention may be affected by statutes

The length of detention that will be considered unreasonable or unnecessary varies

� 4. Factors considered in determining whether delay was unreasonable or

The accessibility or inaccessibility of a magistrate has been treated by the

The question of a magistrate's availability frequently arises in cases where an

A delay of 5 hours or more in taking an arrestee before a magistrate was necessary

Tricky jurisdictional questions: Accused burglar is not entitled to suppression of

Police officers have on occasion attempted to justify a delay in bringing an

In some cases, however, a delay for purposes of investigation or consultation has

An otherwise unjustified delay for investigative purposes may be consented to by

� 6. Factors considered in determining whether delay was unreasonable or

A circumstance that may be considered in determining whether a delay in taking an

� 7. Factors considered in determining whether delay was unreasonable or

An arrestee should ordinarily be taken before the nearest magistrate by means of

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

The question has sometimes arisen as to whether delay in bringing an arrestee

The doctrine of governmental immunity has traditionally been applied to preclude

Where an arrest is made by a private citizen, such as a store detective or other

There is a divergence of opinion as to the liability of the arresting person, or

Evidence was insufficient to support conclusion that police department or chief

� 10. Arrestee's consent to or waiver of delay

The plaintiff was arrested on suspicion of grand theft on a charge by a private

While a delay of over 48 hours between a warrantless arrest and a judicial

Expert testimony as to municipal police policies: Although expert could have

� 12. Elements of damages: guide and checklist

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

With respect to compensatory damages, the plaintiff may introduce evidence

In most jurisdictions exemplary or punitive damages may also be recovered in an

As in civil cases generally, the question of the amount of damages, both

For general checklists of elements of damages in personal injury, wrongful death,

? Injury to plaintiff's reputation

� 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

� 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

Store employee's conduct in denying 12-year-old customer's request to use bathroom

Award of $1.1 million in punitive damages in � 1981 action brought against

Award of $150,000 in punitive damages to arrestee who prevailed in her claims

� 12.5. Defense considerations

Under Kentucky law, shoplifting arrestee's stipulation, in exchange for dismissal