A Self-Help remedy, abatement by the plaintiff, is available under limited circumstances. This privilege must be exercised within a reasonable time after learning of the nuisance and usually requires notice to the defendant and the defendant’s failure to act. Reasonable force may be used to employ the abatement, and a plaintiff may be liable for unreasonable or unnecessary damages. For example, dead tree limbs extending dangerously over a neighbor’s house may be removed by the neighbor in danger, after notifying the offending landowner of the nuisance. In cases where an immediate danger to health, property, or life exists, no notification is necessary. An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice.
An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case. A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case.
The public policy that supports the action for malicious prosecution is the discouragement of Vexatious Litigation. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice.
False imprisonment false imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention. When it comes to public police, the proving of false imprisonment is sufficient to obtain a writ of habeas corpus.
The following are false imprisonment scenarios.
• The taking hostage of a bank’s customers and employees by bank robbers.
• The detention of a customer by a business owner (e.g., hotel operator, apartment owner, credit
card company) for the failure to pay a bill.
• Certain situations arising from state legislation, like California’s Assembly Bill 1421, Laura’s Law.
• A robber in a home invasion ties hostage up and takes them to a separate room.
What false imprisonment is not
Under United States law, the police have the right to detain someone if they have probable cause to believe a crime has been committed, and that the person is so involved, or if the officer has reasonable suspicion, based on specific and articulate facts and inferences, that the person has been, is, or is about to be, engaged in a criminal activity.
Many jurisdictions of the United States recognize the common law shopkeeper’s privilege, under which he is allowed to detain a suspected shoplifter on store property for a reasonable period of time, with cause to believe that the person detained in fact committed, or attempted to commit theft of store property. The shopkeeper’s privilege, although recognized in most jurisdictions, is not as broad a privilege as that of a police officer’s, and therefore one must pay special attention to the temporal element – that is, the shopkeeper may only detain the suspected criminal for a relatively short period of time. This is similar to a general right in many jurisdictions of citizen’s arrest of suspected criminals by the public in limited circumstances.
This privilege has been justified by the very practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon his suspicion and risk making a false arrest.
In order for a customer to be detained, the shopkeeper must:
1. Conduct the investigation on the store premises, or immediately near the premises.
2. The shopkeeper has reasonable cause to believe the person detained was shoplifting.
3. Reasonable force (non-excessive) is used to detain the suspected individual.
4. The detention lasts a reasonable amount of time to gather all the facts.
Purpose The privilege for the most part is to be able to return the stolen goods. The shopkeeper may not force a confession. They do have a right to conduct a contemporaneous search of the person and the objects within that person’s control.
Claim of false imprisonment
To prevail under a false imprisonment claim, a plaintiff must prove: (1) willful detention; (2) without consent; and (3) without authority of law.(Restatement of the Law, Second, Torts) The test of liability is not based on the store patron’s guilt or innocence, but instead on the reasonableness of the store’s action under the circumstances; the trier of fact usually determines whether reasonable belief is established. A guilty shoplifter can still sue for false imprisonment then if the detention was unreasonable.