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III.C. "Good" Imprisonments - Exceptions to False Imprisonment Liability
  • 1 Eilers v. Coy--"The Falsely Consenting Cultist"

    Should we recognize false imprisonment in situations where the confinement is arguably for the plaintiff’s own good? Should consent excuse the defendant’s liability for false imprisonment, even if it is feigned?

    Notes: Plaintiff and his wife were members of a cult. Relatives of the plaintiff hired the defendant to abduct and deprogram the plaintiff. For five and one-half days, plaintiff was held at defendant’s deprogramming center. Security guards and handcuffs were used to forcibly restrain the plaintiff. Several days into his confinement, the plaintiff feigned consent to the deprogramming in hopes of gaining an opportunity to escape. The plaintiff finally escaped from defendant’s custody by jumping out of a car while being transported to another city for further deprogramming.

    582 F. Supp. 1093

    William EILERS, Plaintiff,
    Deborah Ann COY, Daniel Charles Graham, Robert Lewis Brandyberry, Larry Bisman, Vincent Jennings, Defendants.

    Civ. No. 4-82-1329.


    United States District Court, D. Minnesota, Fourth Division.


    March 6, 1984.


    [582 F. Supp. 1094] Lee Boothby and Robert A. Yingst, Boothby, Huff & Yingst, Berrien Springs, Mich., for plaintiff.


    William M. Schade, Somsen, Dempsey & Schade, New Ulm, Minn., Gregory F. Kuderer, Erickson, Zierke, Kuderer, Myster, Madsen & Wollschlager, Fairmont, Minn., and Xavier E. Grenas, Houston, Tex., for defendants Deborah Ann Coy, Daniel Charles Graham and Larry Bisman.


    Vincent Jennings, pro se.


    Robert Lewis Brandyberry, pro se.

    MacLAUGHLIN, District Judge.

    The plaintiff in this case, William Eilers, has moved the Court to enter a directed verdict against the defendants on his claims that the defendants falsely imprisoned him and violated his civil rights during a deprogramming attempt in 1982. Both sides have submitted briefs on the question and the Court has heard oral argument.


    After careful consideration the Court has decided as follows:


    1. Plaintiff's motion for a directed verdict on the issue of false imprisonment is granted and the Court holds, as a matter of law, that plaintiff William Eilers was falsely imprisoned without legal justification.

    2. Plaintiff's motion for a directed verdict with respect to 42 U.S.C. § 1985(3) is granted as to certain elements of the plaintiff's claim that a conspiracy on the part of the defendants deprived him of certain of his federal constitutional rights.


    The evidence in this case has established the following facts. The plaintiff William Eilers and his pregnant wife Sandy were abducted from outside a clinic in Winona, Minnesota in the early afternoon of Monday, August 16, 1982, by their parents and [582 F. Supp. 1095] relatives and by the defendant deprogrammers who had been hired by the parents of the plaintiff and his wife. The plaintiff was 24 years old at the time and his wife Sandy was 22. The couple was living on a farm near Galesville, Wisconsin and had traveled to Minnesota for Sandy's pre-natal examination.


    At the time of the abduction, Bill and Sandy Eilers were members of the religious group Disciples of the Lord Jesus Christ. There is ample evidence that this group is an authoritarian religious fellowship directed with an iron hand by Brother Rama Behera. There is also evidence that Bill Eilers' personality, and to some extent his appearance, changed substantially after he became a member of the group. These changes were clearly of great concern to members of the plaintiff's family. However, other than as they may have affected the intent of the parents of Bill and Sandy Eilers in the actions they took in seizing Bill and Sandy, the beliefs and practices of the Disciples of the Lord Jesus Christ should not be, and are not, on trial in this case.


    While leaving the Winona Clinic on August 16, 1982 the plaintiff, who was on crutches at the time due to an earlier fall, was grabbed from behind by two or more security men, forced into a waiting van, and driven to the Tau Center in Winona, Minnesota.[1] Forcibly resisting, he was carried by four men to a room on the top floor of the dormitory-style building. The windows of this room were boarded over with plywood, as were the windows in his bathroom and in the hallway of the floor. The telephone in the hallway had been dismantled.


    The plaintiff was held at the Tau Center for five and one-half days and subjected to the defendants' attempts to deprogram him. Shortly after his arrival at the Tau Center, and after a violent struggle with his captors, the plaintiff was handcuffed to a bed. He remained handcuffed to the bed for at least the first two days of his confinement. During this initial period, he was allowed out of the room only to use the bathroom, and was heavily guarded during those times. On one occasion, the plaintiff dashed down the hall in an attempt to escape, but was forcibly restrained and taken back to the room. After several days of resistance, the plaintiff changed tactics and apparently pretended to consent to his confinement.


    The defendants and the plaintiff's relatives had agreed in advance of the abduction that the plaintiff would be kept at the Tau Center for one week, regardless of whether the plaintiff consented to their actions. At no time during the week was the plaintiff free to leave the Tau Center, nor at any time were reasonable means of escape available to him. Three of the eight people hired by the parents were designated "security men." These individuals, described by witnesses as at least six feet tall and weighing over 200 pounds, guarded the exits on the floor at all times.


    On the evening of Saturday, August 21, 1982, as the plaintiff was leaving the Tau Center to be transported to Iowa City, Iowa for further deprogramming, he took advantage of his first opportunity to escape and jumped from the car in which he was riding. Local residents, attracted by the plaintiff's calls for help, assisted the plaintiff in making his escape and the police were summoned.[2]


    The evidence has also shown that within three weeks before the abduction occurred, the plaintiff's relatives had contacted authorities in Trempealeau County, Wisconsin in an attempt to have the plaintiff civilly committed. Family members have testified that they believed the plaintiff was suicidal because of a letter he had written to his [582 F. Supp. 1096] grandmother before joining the Disciples of the Lord Jesus Christ in which he wrote that demons were attacking his mind and telling him to kill himself rather than go to the Lord. Defendants' Exhibit A at 13-14. Joyce Peterson, a psychiatric social worker, interviewed the plaintiff in person on July 26, 1982. After interviewing the plaintiff and consulting with the Trempealeau County Attorney, Peterson informed the plaintiff's relatives that no legal grounds existed in Wisconsin for confining the plaintiff because he showed no signs of being a danger to himself or to others. The defendants in this case were aware of that information at the time they abducted and held the plaintiff.


    In considering the plaintiff's motion for a directed verdict, the Court is required to view the evidence in the light most favorable to the defendants and to resolve all conflicts in the evidence in the defendants' favor. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983). A directed verdict motion should be granted only when reasonable jurors could not differ as to the conclusions to be drawn from the evidence. Id.


    The plaintiff has alleged two main causes of action against the defendants: false imprisonment and conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). These claims will be discussed separately.

    A. False Imprisonment

    The plaintiff's first claim is that the defendants' conduct in confining him at the Tau Center constituted false imprisonment for which the defendants had no legal justification. False imprisonment consists of three elements:


    1) words or acts intended to confine a person;

    2) actual confinement; and

    3) awareness by the person that he or she is confined.


    Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976); Restatement (Second) of Torts § 35 (1965).


    The evidence in this case has over-whelmingly established each of the elements of false imprisonment. By their own admission, the defendants intended to confine the plaintiff for at least one week. While the defendants maintain that their purpose was to help the plaintiff, it is not a defense to false imprisonment that the defendants may have acted with good motives. Malice toward the person confined is not an element of false imprisonment. Strong v. City of Milwaukee, 38 Wis.2d 564, 567, 157 N.W.2d 619, 621 (1968); Witte v. Haben, 131 Minn. 71, 74, 154 N.W. 662, 663 (1915); W. Prosser, Law of Torts 48 (4th ed. 1971).


    There is also no question that the plaintiff was actually confined. Relying on the Minnesota Supreme Court's decision in Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980),cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981), the defendants contend that there was no actual confinement because there is evidence that the plaintiff consented to the defendants' actions, at least by the fourth day of his confinement.[3]  The plaintiff, in contrast, [582 F. Supp. 1097] has testified that he merely pretended to consent in order to gain an opportunity to escape. The plaintiff's apparent consent is not a defense to false imprisonment. Many people would feign consent under similar circumstances, whether out of fear of their captors or as a means of making an escape. But in this case, unlike the Peterson case relied on by the defendants,[4] it is undisputed that the plaintiff was at no time free to leave the Tau Center during the week in question, nor were any reasonable means of escape available to him. Under these circumstances, the Court finds, in agreement with many other authorities, that the plaintiff's apparent consent is not a defense to false imprisonment. 32 Am. Jur.2d False Imprisonment § 15 (1982); Restatement (Second) of Torts § 36 (1965). The Court therefore holds, as a matter of law, that the plaintiff has proven the necessary elements of false imprisonment.


    The next question is, given that the defendants falsely imprisoned the plaintiff, were their actions legally justified so as to preclude liability for false imprisonment? As justification for their actions, the defendants rely on the defense of necessity. They claim that the confinement and attempted deprogramming of the plaintiff was necessary to prevent him from committing suicide or from otherwise harming himself or others. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975).


    The defense of necessity has three elements.[5] The first element is that the defendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others.[6] State v. Johnson, 289 Minn. 196, 199-200, 183 N.W.2d 541, 543 (1971); People v. Patrick, 126 Cal.App.3d 952, 961, 179 Cal.Rptr. 276, 282 (1981); People v. Patrick, 541 P.2d 320, 322 (Colo.Ct.App. 1975); Restatement (Second) of Torts § 892(D) comment a (1979).


    [582 F. Supp. 1098] It is not clear that such a danger existed on August 16, 1982. The alleged threats of suicide made by the plaintiff were contained in a letter dated June 14, 1982, and that letter recounted impressions the plaintiff had had some time earlier. Moreover, Joyce Peterson, the psychiatric social worker who personally interviewed the plaintiff on July 26, 1982, concluded in her report, and reported to the plaintiff's relatives, that the plaintiff was not dangerous to himself or to others. Nevertheless, viewing the evidence in the light most favorable to the defendants, the Court will assume for purposes of this motion that the plaintiff was in imminent danger of causing physical injury to himself or to others.


    The second and third elements of the necessity defense are intertwined. The second element is that the right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975) (dictum); Annot., 92 A.L.R.2d 580 (1963). The third element is that the actor must use the least restrictive means of preventing the apprehended harm. People v. Patrick, 126 Cal.App.3d 952, 960, 179 Cal.Rptr. 276, 282 (1981); W. LaFave and A. Scott, Criminal Law 387 (1972); cf. Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980) (where religious beliefs are implicated, first amendment requires resort to least restrictive alternative).


    In this case, the defendants' conduct wholly fails to satisfy either of these elements of the necessity defense. Once having gained control of the plaintiff, the defendants had several legal options available to them. They could have:


    1) turned the plaintiff over to the police;

    2) sought to initiate civil commitment proceedings against the plaintiff pursuant to Minn.Stat. § 253B.07 (1982);

    3) sought professional psychiatric or psychological help for the plaintiff with the possibility of emergency hospitalization if necessary pursuant to Minn.Stat. § 253B.05 (1982).


    At no time did the defendants attempt, or even consider attempting, any of these lawful alternatives during the five and one-half days they held the plaintiff, the first five of which were business days. Instead, they took the plaintiff to a secluded location with boarded-up windows, held him incommunicado, and proceeded to inflict their own crude methods of "therapy" upon him — methods which even the defendants' own expert witness has condemned. Well aware that the police were searching for the plaintiff, the defendants deliberately concealed the plaintiff's location from the police.


    It must be emphasized that the Minnesota Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the basis of mental illness. Minn.Stat. § 253B.07 et seq. (1982); see generally Janus and Wolfson, The Minnesota Commitment Act of 1982: Summary and Analysis, 6 Hamline L.Rev. 41 (1983). Those procedures include examination of the proposed patient by qualified professionals, Minn.Stat. § 253B.07, subd. 1 (1982), and a judicial determination that the proposed patient is dangerous and in need of treatment, id., subd. 6. Manifold procedural protections, including the right to counsel, Minn.Stat. § 253B.03, subd. 9 (1982), are afforded the proposed patient at all stages of this civil commitment proceeding. Obviously, none of these protections were afforded the plaintiff in this case.


    Minnesota law also provides that, in situations where there is not time to obtain a court order, a person may be admitted or held for emergency care and treatment in a hospital, without a court order, upon a written statement by a licensed physician or psychologist that the person is mentally ill and is in imminent danger of causing injury to himself or to others. Minn.Stat. § 253B.05, subd. 1 (1982). The defendants in this case — unlicensed and untrained individuals — made no effort to obtain any such [582 F. Supp. 1099] statement from a licensed physician or psychologist.


    The defendants' failure to even attempt to use the lawful alternatives available to them is fatal to their assertion of the necessity defense. Where the Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the ground of mental illness, not even parents or their agents acting under the best of motives are entitled to disregard those procedures entirely.[7]


    The Court has assumed for the purposes of this motion that the defendants were justified in initially restraining the plaintiff based upon their belief that he was in imminent danger of harming himself or others. But even under those circumstances, the defense of necessity eventually dissipates as a matter of law. No specific time limit can be set, because the period during which an actor is acting out of necessity will vary depending on the circumstances of each case. In this particular case, however, where the defendants held the plaintiff, a 24-year-old adult, for five and one-half days with no attempt to resort to lawful alternatives available to them, the Court could not sustain a jury verdict in the defendants' favor on the issue of false imprisonment. Accordingly, the Court rules as a matter of law that the plaintiff was falsely imprisoned without justification. The issue of what amount of damages, if any, the plaintiff suffered from this false imprisonment is a question for the jury.

    B. Section 1985(3)

    The next claim upon which the plaintiff has moved for a directed verdict is that the defendants conspired to and did deprive him of his federal constitutional rights in violation of 42 U.S.C. § 1985(3). The Court will direct a verdict as to some, but not all, of the elements of this claim.


    A cause of action under section 1985(3) consists of the following elements:


    1) a conspiracy;

    2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws;

    3) an act or acts in furtherance of the conspiracy; and

    4) an injury to the person or property of a citizen or a deprivation of the rights and privileges of any citizen.


    Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).


    Three of these elements are clearly present in this case. By their own admission, the defendants planned and conspired to abduct the plaintiff and to hold him against his will. They committed several acts in furtherance of this conspiracy including seizing the plaintiff at the Winona Clinic, transporting him to the Tau Center, and holding him there against his will for five and one-half days. These actions were in clear violation of the plaintiff's constitutional rights, including his right not to be deprived of liberty without due process of law, seeTaylor v. Gilmartin, 686 F.2d 1346, 1358 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 [582 F. Supp. 1100] (1983), and his right to freedom of interstate travel,[8] see Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). The Court holds as a matter of law that the plaintiff has established the first, third, and fourth elements of his section 1985(3) cause of action.


    The remaining element is that the conspiracy be for the purpose of depriving the plaintiff of the equal protection of the laws. The United States Supreme Court has interpreted this element as requiring that the defendants' conduct be motivated by class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. In other words, in order for the plaintiff to recover under section 1985(3), the defendants must have taken action against him because of his membership in a group or class that is protected by that statute. The Court has previously ruled in this case that the religious group Disciples of the Lord Jesus Christ is a group protected by the statute. See, e.g., Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Action v. Gannon, 450 F.2d 1227, 1231-32 (8th Cir.1971) (en banc); Cooper v. Molko, 512 F.Supp. 563, 569 (N.D.Cal.1981); Comment, The Deprogramming of Religious Sect Members: A Private Right of Action Under Section 1985(3), 74 N.W.U.L.Rev. 229 (1979). The remaining question is whether the defendants took action against the plaintiff because of an animus toward that group or, as the defendants contend, because of a concern for the welfare of the plaintiff. The Court finds that the defendants' motivation is an issue upon which reasonable jurors could differ. See, e.g., Augenti v. Cappellini, 84 F.R.D. 73, 78 (M.D.Pa.1979). The Court therefore denies the plaintiff's motion for a directed verdict on this element of the plaintiff's section 1985(3) cause of action.

    C. Conclusion

    This will not be a popular decision. While the Court has substantial sympathy for the feelings and reactions of the parents of Bill and Sandy Eilers, this Court is sworn to uphold the law and the Constitution of the United States. If the basic rights of an American citizen are not recognized in a federal court by a federal judge, where will they be recognized?


    Based on the foregoing, IT IS ORDERED that the plaintiff's motion for a directed verdict is granted as to his claim for false imprisonment (Count IV of the Second Amended Complaint), and as to certain elements of his 42 U.S.C. § 1985(3) claim (Count I of the Second Amended Complaint) described herein. The plaintiff's motion is in all other respects denied.


    [1] After dropping the plaintiff at the Tau Center, one of the family members drove the van to a location eight miles outside of Winona and left it there.


    [2] The plaintiff's wife Sandy stayed with the deprogrammers and has not returned to the group Disciples of the Lord Jesus Christ of which the plaintiff is still a member. She has since divorced the plaintiff and has sole custody of the couple's infant son.


    [3] In Peterson, the parents of 21-year-old Susan Jungclaus Peterson engaged deprogrammers to extricate their daughter from The Way Ministry. Peterson resisted the deprogramming for two or three days, but from then on stayed with her deprogrammers willingly for the next 13 days. At the end of the 16-day period, Peterson returned to The Way Ministry, apparently at the urging of her fiance who was also a member of the group.


    Peterson then brought an action for false imprisonment against her parents, the deprogrammers, and others. After a finding for the defendants, the plaintiff appealed. Affirming the judgment for the defendants, the Minnesota Supreme Court ruled:


    We hold that when parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or psuedoreligious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.


    299 N.W.2d at 129 (footnote omitted).


    The court made clear, however, that it was not endorsing the practice of deprogramming:


    Owing to the threat that deprogramming poses to public order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the First Amendment requires resort to the least restrictive alternative so as to not impinge upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1940).


    299 N.W.2d at 129 (footnote omitted).


    [4] As the Minnesota Supreme Court noted in its opinion, the plaintiff in Peterson had ample opportunities to escape, yet willingly chose to stay with her deprogrammers:


    The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of the 16 days. During that time she took many excursions into the public sphere, playing softball and picknicking in a city park, roller-skating at a public rink, flying aboard public aircraft and shopping and swimming while relaxing in Ohio. Had Susan desired, manifold opportunities existed for her to alert the authorities of her allegedly unlawful detention; in Minneapolis, two police officers observed at close range the softball game in which she engaged; en route to Ohio, she passed through the security areas of the Twin Cities and Columbus airports in the presence of security guards and uniformed police; in Columbus she transacted business at a bank, went for walks in solitude and was interviewed by an F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did she complain of her treatment or suggest that defendants were holding her against her will.


    Peterson v. Sorlien, 299 N.W.2d 123, 128 (Minn. 1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981). In contrast, the plaintiff in this case was confined to the Tau Center, under guard, at all times and had no similar opportunities to escape.


    [5] The elements of the necessity defense in the criminal context, see Model Penal Code § 3.02, are analyzed in Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Crim. 289 (1974).


    [6] For the purposes of this motion, the Court will assume that the defendants, as agents of the plaintiff's parents, are entitled to rely on the beliefs of the parents in this regard. See United States v. Patrick, 532 F.2d 142, 145 (9th Cir. 1976) (trial court held beliefs of parents transfer to agents; issue not raised on appeal). But see People v. Patrick, 126 Cal.App.3d 952, 962, 179 Cal.Rptr. 276, 282-83 (1981) (agents must personally believe in justifiability of their actions and must "take all appropriate steps necessary to investigate the reasonableness of the beliefs held by their principals in order to convince themselves of the necessity of criminal action").


    [7] The author of one of the most thorough legal analyses of the subject of deprogramming has reached the following conclusions:


    (1) Involuntary deprogramming should not proceed unless there has been a prior judicial determination that the individual is incompetent or under mind control.

    (2) Therapy should not proceed until milder measures, including removal to a neutral environment for a period of time, have failed.


    (8) Whenever possible, deprogramming should be carried out by licensed psychologists or psychiatrists, or by lay individuals working under the supervision of a psychologist or psychiatrist.

    (9) Involuntary deprogramming should be carried out only pursuant to a court order and with periodic reporting to the court.

    (10) The court hearing that results in a deprogramming order should be accompanied by due process protection, including the right of the individual to appear, to be represented by counsel, and to present witnesses on his own behalf.


    Delgado, Religious Totalism: Gentle and Ungentle Persuasion Under the First Amendment, 51 S.Cal.L.Rev. 1, 86-88 (1977) (footnotes omitted).


    [8] The Court does not decide whether the defendants' actions deprived the plaintiff of his first amendment right to freedom of religion as that question is intimately tied up with the question of the defendants' motivation. As discussed below, the defendants' motivation is a question for the jury.


    In any event, absent state action or state involvement, a deprivation of first amendment rights is not actionable under section 1985(3). United Bhd. of Carpenters and Joiners, Local 610 v. Scott, ___ U.S. ___, 103 S.Ct. 3352, 3357, 77 L.Ed.2d 1049 (1983).

  • 2 Bright v. Ailshie--"The Mistaken Bounty Hunter"

    Should defendants be excused from false imprisonment liability when they mistakenly exercise otherwise-legal restraint on the wrong individual?

    Notes: Plaintiff’s brother identified himself as the plaintiff when arrested and used his brother’s name when obtaining a bond. After his brother absconds on the bond, a facially valid warrant was issued in the plaintiff's name. A bounty hunter apprehended the plaintiff and took him to court.

    641 N.W.2d 587
    465 Mich. 770

    Dennis BRIGHT, Plaintiff-Appellant,
    Lt. Littlefield, Sgt. Meyers, Officer John Doe # 1, Officer John Doe # 2, John Doe # 3 also known as "Eric," and Chester F. Waterhouse, Defendants,
    Dorothy AILSHIE, Tim Moore and A-Able Bail Bonds, a Missouri company, Defendants-Appellees.

    Docket No. 119111.


    Supreme Court of Michigan.


    April 9, 2002.


    [641 N.W.2d 588] Lopatin, Miller, Freedman, Bluestone, Herskovic & Domol (by Richard E. Shaw), Southfield, for the plaintiff-appellant.


    Athina T. Siringas, Detroit, for the defendants-appellees.


    Plaintiff's first amended complaint alleged defendants were liable to him under theories of assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence as a result of his being illegally arrested by a bounty hunter and taken to Missouri. In Missouri it was confirmed that the actual person who should have been sought was plaintiff's brother, who had been arrested on a drug charge there. The trial court granted summary disposition for defendants pursuant to MCR 2.116(C)(10). The Court of Appeals affirmed the dismissal, holding the existence of the facially valid Missouri arrest warrant provided authority to arrest plaintiff. We reverse the grant of summary disposition and remand for further proceedings.


    The pertinent facts are not in dispute. We borrow the Court of Appeals statement of facts:


    Plaintiff's brother Vincent Bright was arrested by Missouri police on a drug charge. Vincent identified himself as plaintiff Dennis Bright, using plaintiff's address, date of birth and social security number. Vincent entered into a bond agreement with defendant, A-Able Bail Bonds, which was issued in plaintiff's name and which Vincent signed using plaintiff's name. When Vincent subsequently absconded on the bond, an arrest warrant was issued in plaintiff's name, again using plaintiff's address, date of birth and social security number. Defendant Tim Moore apprehended plaintiff in Detroit and returned him to the Missouri court, where he was later released and the arrest warrant was [641 N.W.2d 589] amended to name Vincent. Plaintiff brought this action, alleging assault and battery, false imprisonment, intentional infliction of emotional distress and negligence. The trial court granted summary disposition to defendants, finding that the facially valid Missouri warrant provided the authority to arrest plaintiff.[1]


    The Court of Appeals affirmed. Plaintiff has applied for leave to appeal.


    The Court of Appeals held that, given probable cause, a private citizen may make an arrest for a felony committed in the person's presence or otherwise. MCL 764.16; People v. Bashans, 80 Mich.App. 702, 713, 265 N.W.2d 170 (1978). It further noted that a warrant provides probable cause for an arrest, and an arrest on a facially valid warrant is not a basis for a claim of false imprisonment. Gooch v. Wachowiak, 352 Mich. 347, 351-354, 89 N.W.2d 496 (1958). It reasoned that the facially valid warrant provided the authority needed to execute it. People v. Rowe, 95 Mich.App. 204, 208-209, 289 N.W.2d 915 (1980). The Court concluded that because the Missouri warrant was facially valid and the erroneous identification was not caused by defendants, the trial court did not err in granting summary disposition.


    This case concerns the interpretation of M.C.L. § 764.16. In construing statutes, "[t]he primary goal of judicial interpretation is to ascertain and give effect to the intent of the Legislature." McJunkin v. Cellasto Plastic Corp., 461 Mich. 590, 598, 608 N.W.2d 57 (2000). To do that we examine the "language of the statute itself." In re MCI Telecommunications, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). If the language is unambiguous, the Court applies the statute as written.


    We deal with a plainly written statute in this matter. MCL 764.16 provides:


    A private person may make an arrest in the following situations:

    (a) For a felony committed in the private person's presence.

    (b) If the person to be arrested has committed a felony although not in the private person's presence.

    (c) If the private person is summoned by a peace officer to assist the officer in making an arrest.

    (d) If the private person is a merchant, an agent of a merchant, an employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe that the person to be arrested has violated section 356c or 356d of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.356c and 750.356d of the Michigan Compiled Laws, in that store, regardless of whether the violation was committed in the presence of the private person.


    The plain language of subsection (b) provides authority for a private person to arrest another, if the other has committed a felony. The statute does not grant arrest authority where the other has not committed a felony even if the private person has probable cause to believe [641 N.W.2d 590] the other has committed a felony.[2] Notwithstanding the clarity of the Michigan statute, the Court of Appeals in Bashans incorrectly read a probable cause qualification into M.C.L. § 764.16. This may not be done. Although such authority may have existed at common law, that authority was abrogated by our Legislature in 1927. 1927 PA 175. Thus, an arrest is only justified by subsection (b) if the person to be arrested has actually committed a felony.[3] To proceed to arrest, no matter how manifest the likelihood the seized person is the felon, is outside the scope of subsection (b) if the seized person did not commit the felony.[4] In such circumstances, subsection (b) does not shield the party making the "arrest" from liability.[5] [641 N.W.2d 591] Further, the Court of Appeals opinion in Rowe, which was cited by the Court of Appeals as support in this case, does not support the lower courts' conclusions. In that case, two city police officers arrested a defendant on a warrant outside their city, but inside the county where the city was located. It was claimed that they had no jurisdiction to effect the arrest outside the city. The Court disagreed, holding that they had the statutory authority to execute the warrant anywhere in the state. The Court further held that, "Pursuant to the statutes cited, when a warrant is directed to a law enforcement officer, the warrant itself provides the authority needed to execute it." Id. at 208-209, 289 N.W.2d 915. The present case is distinguishable because it does not involve an arrest by a law enforcement officer. Thus, while a warrant may give a law enforcement officer authority to execute it, it should not be construed as extending such authority to a private person. The authority for a private person to arrest in certain limited situations comes from M.C.L. § 764.16. Under its subsection (b), authority is given only when the person to be arrested has actually committed a felony.


    Therefore, because it is undisputed that plaintiff had not committed a felony, defendants did not have authority to arrest him. The facially valid Missouri warrant did not, under these facts, provide the authority to arrest plaintiff.[6] The trial court erred in granting summary disposition. Accordingly, we reverse the judgments of the circuit court and Court of Appeals, and remand this case to the circuit court for further proceedings consistent with this opinion. MCR 7.302(F)(1).




    [1] Unpublished opinion per curiam, issued April 10, 2001, 2001 WL 690467 (Docket No. 219182), p. 1.


    [2] While numerous states have similar statutes, several are more expansive and essentially grant authority to private parties to arrest on the basis of reasonable cause. For example, Cal Penal Code 837 provides:


    A private person may arrest another:


    1. For a public offense committed or attempted in his presence.

    2. When the person arrested has committed a felony, although not in his presence.

    3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.


    [3]  It is noteworthy that the key phrase in subsection [b] is "committed a felony" (emphasis added). Of course, a felony is "committed" when a person engages in the conduct that constitutes a felony. Thus, an arrest by a private person of another person who has actually committed a felony would be valid regardless of whether the arrested person is ever tried for or convicted of the felony. In the present case, it is undisputed that plaintiff is innocent of the alleged Missouri felony underlying his purported arrest. Accordingly, we need not consider the proper allocation of the burden of proof with regard to whether a person committed a felony in a case where that is a disputed issue. Likewise, we assume without deciding for purposes of our analysis that M.C.L. § 764.16(b) provides authority for a private person to arrest for the commission of a felony under the laws of another state.


    [4] While the plain language of subsection (b) is dispositive, it is noteworthy that subsection (d) of M.C.L. § 764.16 authorizes a merchant (and certain affiliated parties) to make an arrest merely on the basis of "reasonable cause" to believe that a person has committed retail fraud in violation of M.C.L. § 750.356c or M.C.L. § 750.356d in the merchant's store. The absence of any such "reasonable cause" language in subsection (b) underscores that it means what it states in providing authority to arrest only if the person to be arrested has committed a felony.


    [5] We note that this opinion is consistent with the result and basic analysis of our recent decision in People v. Hamilton, 465 Mich. 526, 638 N.W.2d 92 (2002). In Hamilton, a city police officer stopped a vehicle outside his jurisdiction and eventually arrested the driver, the defendant in Hamilton, for the misdemeanor of operating under the influence of liquor (OUIL). It was later discovered that the defendant had two prior OUIL convictions, which led to him being charged with the felony of OUIL, third offense (OUIL-3d). However, importantly, the police officer was unaware of the prior OUIL convictions at the time of the arrest. This Court concluded that the police officer lacked authority under Michigan statutes, including the statute at issue in this case, M.C.L. § 764.16, to make the arrest for the misdemeanor of simple OUIL. Id. at 530-532, 638 N.W.2d 92. However, we also concluded that the arrest did not involve a constitutional violation under the Fourth Amendment because the police officer had probable cause to suspect the defendant committed OUIL.Id. at 533, 638 N.W.2d 92. The essential holding of Hamilton was that there is no exclusionary rule requiring suppression of evidence flowing from an arrest by a police officer that is only "statutorily illegal," but does not violate the Fourth Amendment. Id. at 532-535, 638 N.W.2d 92. Obviously, the present civil case does not implicate any concerns about suppression of evidence in a criminal prosecution on the basis of police misconduct. Accordingly, there is no conflict between the dispositive holding of Hamilton and the present opinion.


    However, Hamilton did include the following language that may warrant further explanation:


    Under M.C.L. § 764.16, a private person has the authority to make a felony arrest, but lacks the authority to make a misdemeanor arrest except in nonapplicable circumstances. "`No one without a warrant has any right to make an arrest in the absence of actual belief, based on actual facts creating probable cause of guilt.'" People v. Panknin, 4 Mich.App. 19, 27, 143 N.W.2d 806 (1966), quoting People v. Bressler, 223 Mich. 597, 600-601, 194 N.W. 559 (1923), paraphrasing People v. Burt, 51 Mich. 199, 202, 16 N.W. 378 (1883). Here, the officer only had probable cause to make an arrest for a misdemeanor, i.e., OUIL. The fact that defendant may have committed a felony, i.e., OUIL, third offense, was only discovered after the arrest. Accordingly, the officer lacked the statutory authority to make the arrest under M.C.L. § 764.16 [ Id. at 531-532, 16 N.W. 378 (emphasis added).]


    The critical point was that the police officer in Hamilton did not realize that the defendant in that case may have committed the felony of OUIL 3d. Accordingly, the officer in that case plainly did not even purport to arrest the defendant for a felony, but only for the misdemeanor of simple OUIL. Thus, M.C.L. § 764.16 did not provide authority for the misdemeanor arrest made in Hamilton. To the extent that the language from prior cases in the above quotation from Hamilton suggests that the existence of probable cause is relevant to determining whether a private person's arrest of another person for a felony is permitted by subsection (b) of M.C.L. § 764.16, it is incorrect. Rather, as explained in this opinion, the plain language of subsection (b) means that the question is whether the seized person actually committed a felony. Of course, regardless of M.C.L. § 764.16, a police officer or other state actor acting as such is constitutionally precluded by the Fourth Amendment from making an arrest without probable cause. Hamilton, supra at 533, 638 N.W.2d 92.


    [6] Defendants argue that Moore's status as a bounty hunter insulates him from liability because of alleged wide-ranging common-law powers based in part on the bail bond contract. It is not necessary to determine the extent of those powers, if any, since plaintiff was not a party to the contract.

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