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False Imprisonment and False Arrest

False imprisonment is illegal in Virginia, whether the plaintiff was wrongly detained by law enforcement or a private individual or entity. While Virginia law does not recognize a separate cause of action for false arrest, under Virginia law, the common law tort of false imprisonment is often referred to as false arrest.

Whether you call it false imprisonment or false arrest, the Virginia Supreme Court has defined false imprisonment as “the direct restraint by one person of the physical liberty of another without adequate legal justification.” Jordan v. Shands, 500 S.E.2d 215, 218 (Va. 1998). A defendant may defeat a claim of false imprisonment by showing an adequate legal reason for the imprison. This can include probable cause for the arrest.

Sometimes, the police go too far. Individuals are arrested without probable cause for any number of reasons. Sometimes people are arrested in violation of their First Amendment rights for taking videos or pictures of the police. Sometimes people are arrested when the police do not have a warrant. Sometimes the police conduct a search without a warrant and the resulting arrest is illegal.

Unfortunately, false arrests do happen. When the police go too far and make such arrests, they need to be held accountable. False arrests are embarrassing, harmful to reputations, and physically dangerous. They cause an injustice no one should be forced to experience.

Generally speaking, false imprisonment, including false arrest, has two elements:

  1. an intentional restriction of a person's freedom of movement without legal right; and
  2. the intentional use of force, words, or acts which the person restrained is afraid to ignore, or to which he reasonably believes he must submit.

Generally speaking, the “legal right” for law enforcement to arrest you is probable cause. Probable cause is not the same as proof that you committed a crime, but it is more that “reasonable suspicion,” a lower standard required to temporarily detain and pat down an individual.

In 2011, the Virginia Court of Appeals described probable cause in this way:

Probable cause "does not demand any showing that [the officer's] belief be correct or more likely true than false" that a criminal offense had occurred or was occurring. Delong v. Commonwealth, 234 Va. 357, 366 (1987). Thus, this Court need not find that it was "more likely true than false" that appellant was disregarding Officer Morris's signal or attempting to escape or elude Officer Morris; rather, probable cause is a "flexible, commonsense standard" that in the totality of the circumstances would warrant a "person of reasonable caution to believe" that appellant was disregarding Officer Morris's signal or attempting to escape or elude Officer Morris. Carroll v. United States, 267 U.S. 132, 162 (1925); see Jones, 18 Va. App. at 231. Furthermore, under the probable cause standard, police officers are "not required to possess either the gift of prophecy or the infallible wisdom that comes only with hindsight. They must be judged by their reaction to circumstances as they reasonably appeared to trained law enforcement officers to exist" at that time. Keeter v. Commonwealth, 222 Va. 134, 141 (1981).

Without probable cause, you should not be arrested. If you have been arrested without probable cause or your arrest was caused by an individual or corporation without lawful reason, our lawyers can help you determine if you have an action under the law.

Finally, if you believe that you might have a cause of action, you need to take action as quickly as possible. These claims are subject to time limits and some of those limits are quite short. Notice of these claims can be required before filing. It is vital to your claim that you contact a lawyer as soon as possible.