The thin line between lawful detention and false imprisonment

This week’s question comes from Lionel T. in South San Francisco, who writes:

Q: “I went shopping at a [major retailer] in a mall with a friend of mine. We are young, and he was being uncool and he took a cheap piece of jewelry for his girl and didn’t pay for it. He walked out, and the alarms went off. He took off, and security chased him while another one grabbed me in front of some nearby classmates. I hadn’t done anything. I told them to let me go, and they told me to come with them and led me into a back room and told me to empty my pockets. I did, and I didn’t have anything stolen on me. They then told me to call my friend and get him to come back. I said no. They told me that they would call the police and tell them that I stole something. I said I didn’t do anything and to let me go. They said no, and I walked to the door and a guard stepped between me and the door. After a while, they called the store manager, who came in. I explained that I had nothing to do with any theft, and he told the guards to let me go. I feel they did me wrong. Do I have a case?”

A: Lionel, it appears the security guards thought they were police in some bad B-grade movie. The general rule is that people should be free of any unlawful detention. Of course, there are some restrictions concerning private property, construction sites and government facilities, among other places, where access is prohibited. But in areas open to the public, movement should not be unlawfully restricted, and one should not be unlawfully restrained.

What happened to you involves the law of false imprisonment. False imprisonment, under California law, is the “unlawful violation of the personal liberty of another.”

The tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short. A person is falsely imprisoned if he or she is wrongfully deprived of his or her freedom to leave a particular place by the conduct of another. Restraint, or confinement, “may be effectuated by means of physical force, threat of force or of arrest, confinement by physical barriers, or by means of any other form of unreasonable duress.” Fermino v. Fedco, Inc., (1994)

A storekeeper, “on probable cause to believe a theft has been committed, may detain the suspected person for a reasonable time, to conduct an investigation in a reasonable manner.” The presence or absence of probable cause is a question of law for the court and not a jury question.

There have been cases in which a patron has paid for goods and was falsely accused and wrongfully detained by store security. In one, the patron had purchased some gloves and was called back to the counter by security and falsely accused of taking them. Although she was not physically and/or forcibly detained, the court indicated that her honesty and veracity had been openly and repeatedly challenged. If she had gone out before exoneration, her departure well might have been interpreted by the lookers-on as an admission of guilt, or of circumstances from which guilt might be inferred. The situation was in the control of the defendant.

In your case, Lionel, the facts indicate that your detention was undertaken even though they had no probable cause to think you had stolen property. Even if they had a suspicion that you were working in concert with your friend, the guards soon determined that you had stolen nothing and detained you anyways for the purpose of forcing you to have your friend return. This is an improper use of force and an act of improper detention. Therefore, the facts strongly suggest that you were falsely imprisoned.

You are entitled to recover damages from the store (because the guards were acting in the “scope and course” of their employment) for the impact upon you, including the embarrassment you suffered in front of your classmates. Given that the store security guards held you to force you to call your friends, their conduct at that point was in conscious disregard of your rights and, under California Civil Code Section 3294, it subjects them to punitive damages. 

As the manager immediately caused you to be released, it does not appear the store ratified its conduct (said it was acceptable) and whether the store would also be liable for punitive damages is doubtful unless they had a pattern and practice of acting this way.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

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