Is false imprisonment a felony? A defense lawyer explains

Posted on January 22, 2022

It can be. Most jurisdictions say that a prosecutor can charge the offense of false imprisonment as either a misdemeanor or a felony. The decision is typically made based upon the facts of the case (including on whether the defendant committed the crime by using force or fraud) and the defendant’s criminal history.

The crime of false imprisonment is when a person detains or retrains a person without that person’s consent and without legal authority. The crime can be committed without physical force or violence.

In most states, misdemeanor false imprisonment can lead to a maximum county jail term of one year.

As to felony false imprisonment, most state laws say that the offense is punishable by up to five years in state prison.

Note that while false imprisonment is a crime, most jurisdictions also say that it is a tort that can give rise to a civil lawsuit. Possible damages that a plaintiff may recover in a civil case include:

• physical discomfort or inconvenience,
• business interruption, and/or
• damage to reputation.

What is the crime of false imprisonment?

Most jurisdictions in the United States define false imprisonment as the detention or restraint of a person that is done:

• without that person’s consent, and
• without lawful authority.[1]

The offense is also referred to as false arrest, and it focuses on the hindrance of an alleged victim’s freedom of movement and personal liberty.[2]

The restraint or detention in these cases only has to take place for a short, but reasonable amount of time and it can be done without the:

• the threat of force or bodily injury,
• use of force, and/or
• use of violence.[3]

Further, most state’s criminal laws say that a defendant can restrain a person via:

• physical barriers, and/or
• any form of unreasonable duress.

Examples of false imprisonment include:

• armed bank robbers yelling at patrons so stay motionless on the ground,
• a person locking someone else in a room without their permission, and
• police officers or law enforcement detaining a person for an unreasonable amount of time because of an alleged shoplifting act.

Is false arrest a misdemeanor or felony offense?

Criminal charges of false arrest are serious charges, and they can be filed as either a misdemeanor or a felony.

Most jurisdictions say that a district attorney can decide how to charge the crime depending on:

• the defendant’s criminal history, and
• whether the accused committed the crime by using violence, fraud, or deceit.

If the latter took place, then prosecutors are inclined to charge false imprisonment as a felony.

Misdemeanor false arrest is typically punishable by imprisonment in jail for up to one year.

Felony false arrest can lead to a maximum prison term of five years. This sentence would increase if a defendant committed the crime with the use of excessive force or if the alleged victim were a child or a senior.

Can a defendant raise a legal defense?

Defendants can challenge a false imprisonment charge by raising a legal defense that casts reasonable doubt as to whether the accused committed a crime.

Defense lawyers and criminal defense attorneys often help defendants contest false arrest charges by using the following common defenses:

1. the accused had legal authority to restrain the “victim,”
2. the alleged victim consented to the restraint,
3. the defendant was acting in self-defense,
4. the accused was a parent or legal guardian that was lawfully disciplining a child (who was the alleged victim), and
5. the accused was a store owner acting under the shopkeeper privilege.

The latter privilege is available to store owners and shopkeepers that detain a person after they have probable cause that a customer shoplifted an item.

Can false imprisonment give rise to a civil lawsuit?

Yes. Most jurisdictions say that false imprisonment is both a crime and a tort.

A “tort” is a civil wrong for which a person can sue the alleged wrongdoer in civil court.

The definition and elements of the tort of false arrest are essentially the same as the crime of false arrest. Like the crime, the civil tort consists of the nonconsensual confinement of a person without lawful authority.

In a civil suit involving false imprisonment, a victim of the crime sues the alleged wrongdoer to recover damages that the imprisonment caused.

Possible damages that a plaintiff may recover include:

• loss of time,
• physical discomfort or inconvenience,
• any resulting physical illness or injury,
• business interruption, and/or
• damage to reputation.[4]

Is false imprisonment different than kidnapping?

Yes. False arrest is a separate crime from the offense of kidnapping.

A person is guilty of kidnapping if he/she:

1. moves another person without the party’s consent, and
2. does so by means of force or fear.

Note that, unlike false arrest, a person must actually move a person, and do so using force or fear, to kidnap someone.

Kidnapping is typically a felony offense that can lead to several years in state prison.

Some states divide the crime into kidnapping of the:

• first-degree, and
• second-degree.

Further, many states impose more severe sentences for aggravated kidnapping, which is kidnapping done under special circumstances (for instance, done in combination with other crimes).

What is the law in California?

False imprisonment is a crime in California per California Penal Code 236 PC.

To convict a defendant of the crime, a prosecutor must successfully prove the following:

1. the defendant intentionally and unlawfully restrained, detained, or confined a person, and
2. the defendant’s act made that person stay or go somewhere against that person’s will.[5]

Penal Code 237 PC is the California statute that sets forth the penalties for false imprisonment. Under this section, the crime is a type of wobbler offense, meaning that it can be punished as either a California misdemeanor or a felony.

If a misdemeanor, the offense is punishable by:

• a maximum fine of $1,000, and/or
• a maximum jail term of one year.[6]

If a felony, the crime is punishable by:

• a fine, and/or
• custody in jail for up to three years.[7]

Note that California law also says that false arrest is a tort that can give rise to a civil lawsuit where an injured party can sue for damages.

[1] Reams v. City of Tucson, 701 P.2d 598 (1985).

[2] Johnson v. Jackson, 193 N.E.2d 485 (1963).

[3] Black’s Law Dictionary, Sixth Edition – “false arrest.”

[4] See, for example, Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal. App. 4th 990.

[5] CALCRIM No. 1242 – Misdemeanor False Imprisonment. Judicial Council of California Criminal Jury Instructions (2020 edition)

[6] California Penal Code 237 PC.

[7] See same. See also Penal Code 1170h PC.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.