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 � 5 Factors considered in determining whether delay was unreasonable or unnecessary--Other duties of officer; delay for investigative purposes � 6 Factors considered in determining whether delay was unreasonable or unnecessary--Mental or physical condition or conduct of arrestee � 7 Factors considered in determining whether delay was unreasonable or 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

� � � E � � �

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 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 testimony concerning,, �� 17, 22 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�, reasonableness of delay, consideration on issue of,, � 6 testimony concerning,, � 23 Motivaton of arresting officer, consideration of,, � 2 Persons liable,, � 9 Physical condition of arrestee�, reasonableness of delay, consideration on issue of,, � 6 testimony concerning,, � 23 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 testimony concerning,, �� 18, 22 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 [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT

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 Key Number Digest, False Imprisonment 5. 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. [Top of Section] [END OF SUPPLEMENT] � 3. What constitutes unreasonable or unnecessary delay [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT 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 [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT 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]

� 5. Factors considered in determining whether delay was unreasonable or 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] � 6. Factors considered in determining whether delay was unreasonable or 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] � 7. Factors considered in determining whether delay was unreasonable or 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 [Cumulative Supplement]

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 police officer, both may be held liable for false taking the arrestee before a 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 private citizen, such as a store detective or other the arresting person and his principal or employer imprisonment if there is an unnecessary delay in magistrate.[FN73]

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] CUMULATIVE SUPPLEMENT 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. [Top of Section] [END OF SUPPLEMENT] � 10. Arrestee's consent to or waiver of delay [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT 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. [Top of Section] [END OF SUPPLEMENT]

� 11. Burden of proof and evidence[FN90] [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT 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. [Top of Section] [END OF SUPPLEMENT] � 12. Elements of damages: guide and checklist [Cumulative Supplement]

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

CUMULATIVE SUPPLEMENT 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 onethird 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 Key Number Digest, False Imprisonment 36. [Top of Section] [END OF SUPPLEMENT] � 12.5. Defense considerations [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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). [Top of Section] [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 [Cumulative Supplement]

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.] CUMULATIVE SUPPLEMENT 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. Q. What did [defendant] say? 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 [Cumulative Supplement] [After introduction and identification of witness] 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. CUMULATIVE SUPPLEMENT 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. Q. What did [defendant] say? 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 [After introduction and identification of witness] 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. Q. What is your occupation? 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? A. Yes, that's right. 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? A. Yes, that's 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? A. Yes, that's 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 [After introduction and identification of witness] Q. What is your occupation? 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 Imprisonment �� 101 et seq. Damages in action for false imprisonment, generally, 32 Am. Jur. 2d, False Imprisonment �� 110 et seq. 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 5 Am. Jur. 2d, Arrest � 76; 32 Am. Jur. 2d, False Imprisonment � 23. Note: 19 Hast L J 974, 985. [FN11] Halliday, 15 Clev-Mar L Rev 75, 84.

Section 2 Footnotes: [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 32 Am. Jur. 2d, False Imprisonment �� 5, 7. 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] Law Reviews and Other Periodicals 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

32 Am. Jur. 2d, False Imprisonment � 2. [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. Section 3 Footnotes: [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 5 Am. Jur. 2d, Arrest � 77; 32 Am. Jur. 2d, False Imprisonment � 25. [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. Section 4 Footnotes: [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 32 Am. Jur. 2d, False Imprisonment � 25. [FN34] Rounds v Bucher, 137 Mont 39, 349 P2d 1026, 98 ALR2d 962; Librach v Litzinger (Mo) 401 SW2d 433. [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. [FN39] Roberts v Bohac (CA5 Tex) 574 F2d 1232. [FN40] 98 A.L.R. 2d 966. [FN41] 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. [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). Section 5 Footnotes: [FN44] Law Reviews and Other Periodicals 98 A.L.R. 2d 966. Halliday, 15 Clev-Mar L Rev 75, 84. [FN45] 98 A.L.R. 2d 966. [FN46] 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. [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. Section 6 Footnotes: [FN53] Law Reviews and Other Periodicals 98 A.L.R. 2d 966. Halliday, 15 Clev-Mar L Rev 75, 84. [FN54] 98 A.L.R. 2d 966.

Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment � 25. [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. Section 7 Footnotes: [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.

Section 8 Footnotes: [FN64] 98 A.L.R. 2d 966.

Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment � 24. [FN65] Seguin v Myers, 279 App Div 690, 108 NYS2d 28. [FN66] 98 A.L.R. 2d 966.

Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment � 24. [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 32 Am. Jur. 2d, False Imprisonment � 24. Section 9 Footnotes: [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] Law Reviews and Other Periodicals 98 A.L.R. 2d 966. Note: 19 Hast L J 974, 985.

Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment �� 40, 47. [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] Law Reviews and Other Periodicals 98 A.L.R. 2d 966. Manos, 16 Clev-Mar L Rev 415, 425. [FN76] Law Reviews and Other Periodicals 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 32 Am. Jur. 2d, False Imprisonment � 32. [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 32 Am. Jur. 2d, False Imprisonment � 31. [FN83] Gorlack v Ferrari (4th Dist) 184 Cal App 2d 702, 7 Cal Rptr 699. Section 10 Footnotes: [FN84] 98 A.L.R. 2d 966.

Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment � 90. [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.

Section 11 Footnotes: [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. [FN91] 32 Am. Jur. 2d, False Imprisonment � 101. 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 Litzinger (Mo) 401 SW2d 433. [FN94] Doherty v Shea, 320 Mass 173, 68 NE2d 707. [FN95] 32 Am. Jur. 2d, False Imprisonment � 102. [FN96] 32 Am. Jur. 2d, False Imprisonment � 108. [FN97] Feliciano v Kreiger, 50 Ohio St 2d 69, 4 Ohio Ops 3d 158, 362 NE2d 646. Section 12 Footnotes: [FN98] Manos, 16 Clev-Mar L Rev 415, 426. [FN99] 32 Am. Jur. 2d, False Imprisonment � 110. [FN1] 32 Am. Jur. 2d, False Imprisonment � 111. Manos, 16 Clev-Mar L Rev 415, 426. [FN2] 32 Am. Jur. 2d, False Imprisonment � 113. 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. [FN4] Roberts v Bohac (CA5 Tex) 574 F2d 1232. [FN5] 32 Am. Jur. 2d, False Imprisonment � 113.

[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. [FN8] 32 Am. Jur. 2d, False Imprisonment � 116. Manos, 16 Clev-Mar L Rev 415, 426. [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. [FN10] Roberts v Bohac (CA5 Tex) 574 F2d 1232. [FN11] 92 A.L.R. 2d 15.

Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment � 117. [FN12] A.L.R. Library Excessiveness or inadequacy of damages for false imprisonment or arrest, 35 A.L.R. 2d 273. 32 Am. Jur. 2d, False Imprisonment � 112. � 2006 Thomson/West 26 AMJUR POF 2d 617 END OF DOCUMENT

� 2006 Thomson/West