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False Imprisonment: Protecting Freedom of Movement


False Imprisonment: Protecting Freedom of Movement


Battery and assault protect the right to be free of physical intrusions on the person. Trespass allows redress for intrusions on private property. False imprisonment safeguards an equally fundamental value, the right to be free of restraint on one’s freedom of movement, the right to “go freely through the world,”[1] the right not to be confined against one’s will. Physical confinement is a drastic intrusion on personal liberty, as well as a humiliating blow to a person’s sense of dignity and independence. It isn’t surprising that the tort of false imprisonment dates to the very early days of the common law.

The Elements of False Imprisonment

The law of false imprisonment in most states fairly closely reflects the formulation in the Second Restatement of Torts.

Section 35. False Imprisonment

(1) An actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and

(b) his act directly or indirectly results in such a confinement of the other, and

(c) the other is conscious of the confinement or is harmed by it.

Note that false imprisonment again requires intent, in the same sense as required for other intentional torts. Carelessness is not enough; the defendant must have acted with a purpose to cause the confinement, or with substantial certainty that his acts will cause it. Here, as with battery and assault, one may act deliberately but not intentionally. If Peterson, a zookeeper, closes up the tiger cage and goes to bed, not realizing that Stanley is still in there feeding the tigers, he has not committed the tort of false imprisonment. Although he acted deliberately, in the sense that he meant to close the door, he did not close the door with the purpose to confine Stanley, or with substantial certainty that he would. Any remedy against Peterson will be for negligence, not intentional tort.

[1] [ft] Thus the Supreme Court has held that a state ban on assisted suicide does not violate the substantive Due Process clause of the Fourteenth Amendment. Washington v. Glucksberg, 521 U.S. 702 (1997).[eft]
1.   M. Shapo, Basic Principles of Tort Law 30.

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