False Imprisonment and False Arrest

In addition to an arrest without probable cause constituting a constitutional violation, an individual who has been unlawfully arrested may also seek recovery in tort in Virginia through a claim of false imprisonment. 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 it 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 imprisonment. This can include probable cause for the arrest.

These cases arise in a wide variety of situations. An individually can be wrongly detained by law enforcement or by a private individual or entity. Many times, individuals are detained by retail stores due to suspicion of theft. Far too often, the individuals detained in this way are Black and held without evidence.

Police abuses also fall into this category. A police officer’s arrest of an individual without a warrant and without probable cause may constitute a violation of Virginia’s common law on false imprisonment. This also includes instances when people are arrested in violation of their First Amendment rights for taking videos or pictures of the police where the police have no reason to believe the individual they arrested is guilty of any criminal offense.

When a person’s liberty is restrained without legal justification, the responsible party, whether it is a store or the police, needs to be held accountable. An individual who is falsely imprisoned may experience a great deal of distress, embarrassment, and harm to their reputation.

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.

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 than “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). . . . [R]ather, probable cause is a "flexible, commonsense standard" that in the totality of the circumstances would warrant a "person of reasonable caution to believe" that [an individual] was [committing a criminal offense]. 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).

Proffitt v. Commonwealth, Record No. 1424-10-2 (Va. Ct. App. Nov. 8, 2011).

If you have been arrested without probable cause or otherwise physically detained by an individual or corporation without lawful reason, our lawyers can help you determine if you have an action under the law.

These claims are subject to strict time limits and action on these claims should be taken as quickly as possible. Notice of these claims can be required before filing. It is vital to your claim that you contact a lawyer as soon as possible.