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III. False Imprisonment: Taking Charge of Others

Assault and battery are broad torts: they can be used to cover many different situations, perhaps including ones in which barriers or the threat of force are used to force someone to go where he or she doesn’t want to go, or to keep a person in one place without assent. Yet tort law has evolved a more specific tort to cover that particular set of situations: false imprisonment.

What, if anything, does false imprisonment accomplish as a category that assault and battery cannot? What plausible situations could arise that would test a colloquial notion of what counts as false imprisonment, and how can we best sort those out? Are there “good” imprisonments that can come up in everyday life that should be excused from the tort’s reach?

  • 1 III.A. The Clashing of Wills

    • 1.1 Lopez v. Winchell's Donut House--"The Accused Employee Who Freely Left"

      Should a defendant be liable for false imprisonment when it did not apply force, use the threat of force, nor assert its authority to confine the plaintiff?

      Notes: Plaintiff—an employee of defendant—was suspected of “shorting” the cash register. The plaintiff voluntarily entered the back room of the store at her supervisor’s request. In the back room, the supervisor and another man questioned her regarding the alleged “shorting”. No threats of any kind were made during the interrogation, and plaintiff left the room and went home when she first decided to do so.
      1

      [466 N.E.2d 1309] 466 N.E.2d 1309

      2

      126 Ill.App.3d 46, 81 Ill.Dec. 507

      3
      Jovita (Esther) LOPEZ, Plaintiff-Appellant,
      v.
      WINCHELL'S DONUT HOUSE, a corporation, Defendant-Appellee.
      4

      No. 83-1656.

      5

      Appellate Court of Illinois,
      First District, Fifth Division.

      6

      July 20, 1984.

      7

      [126 Ill.App.3d 47] John Panici, Chicago, for plaintiff-appellant.

      8

      Hubbard, Hubbard, O'Brien & Hall, Chicago, for defendant-appellee; Frederick W. Temple, John Skapars, Chicago, of counsel.

      9
      LORENZ, Justice:
      10

      Plaintiff appeals from an order of the circuit court granting defendant corporation's motion for summary judgment. Plaintiff contends that the trial court erred in entering summary judgment against her because a genuine issue of material fact existed concerning her charge that she was [466 N.E.2d 1310] [81 Ill.Dec. 508] falsely detained and imprisoned. For the reasons which follow, we affirm the trial court's decision.

      11

      Count I of plaintiff's unverified two-count complaint alleged that plaintiff was employed as a clerk in defendant's donut shop in Woodridge, Illinois, for approximately three years; that on or about April 8, 1981, defendant, through its agents and employees, Ralph Bell and James Cesario, accused her of selling donuts without registering sales and thereby pocketing defendant's monies; and that she was falsely detained and imprisoned against her will in a room located on defendant's premises, with force, and without probable and reasonable cause, by defendant's employees. Count I of her complaint also alleged that as a result of defendant's employees' wilful and wanton false imprisonment, she was exposed to public disgrace; greatly injured in her good name and reputation; suffered, and still suffers, great mental anguish, humiliation and shock; wrongfully terminated from her employment; required to seek medical attention; all of which prevented her from attending to her usual affairs.

      12

      Defendant filed its answer on August 19, 1981, denying the material allegations of Count I of plaintiff's complaint. Further, on February 9, 1983, defendant amended its answer by filing an affirmative defense that alleged, inter alia, it was a merchant; that any questioning of plaintiff by its employees was performed only after said employees had reasonable grounds to believe that plaintiff had committed [126 Ill.App.3d 48] retail theft while working for defendant; that any alleged detention for questioning was limited solely to an inquiry as to whether plaintiff had failed to ring certain retail sales; and that such inquiry took place in a reasonable manner and for a reasonable length of time.

      13

      Defendant's motion for summary judgment on Count I of the complaint set forth the argument that plaintiff's complaint, sounding in false imprisonment and alleging that she was held against her will by her employers in a certain room of a Winchell's Donut House, was contradicted by her testimony in a discovery deposition. Defendant argued that plaintiff testified in this deposition that she had voluntarily complied with Messrs. Bell and Cesario's request to speak privately with her regarding the matter of shortages in her register on April 9, 1981. Defendant further argued that plaintiff testified that when she no longer wished to continue her conversation with her employers, she got up and went home, electing never to return to her job.

      14

      The motion included portions of plaintiff's deposition which disclosed the following. James Cesario telephoned plaintiff at her home at 4:30 p.m. on April 9, 1981, and asked her to come down to the donut shop; he did not explain his reasons for wanting her to do so. As a result of this call, plaintiff walked to the store from her home, arriving ten minutes later. Upon her arrival at the store, Cesario asked her to accompany him into the baking room, which was located at the rear of the store; Ralph Bell was also present in the room. After Cesario asked plaintiff to sit down, she indicated that they (Cesario and Bell) closed the door and locked it by putting a "little latch on." She stated that the two men told her that they had proof that spotters going from store to store had purchased two dozen donuts from her, but that her register had not shown the sale. After refusing her request to view the "proof," plaintiff stated that she was "too upset" to respond to their questioning regarding the length of time that her alleged "shorting" of the cash drawer had been going on.

      15

      She further stated that defendant's employees never told her that she had to answer their questions or face the loss of her job; never directly threatened to fire her; and made no threats of any kind to her during the interrogation. She further testified that she at no time during the interrogation feared for her safety; that she at no time refused to answer any question put to her; that there was never a point in the interrogation that she said, "I want to leave" and was prevented from doing so; and that she got up, left the [466 N.E.2d 1311] [81 Ill.Dec. 509] room and went home when she first decided to do so.

      16

      Plaintiff's written response to defendant's motion for summary [126 Ill.App.3d 49] judgment did not contradict the statements that she had made in her discovery deposition. In her affidavit filed in support of her response to defendant's motion for summary judgment, plaintiff averred that (1) she left the baking room after she began to shake, and when she felt that she was becoming ill; and (2) she was terminated from her employment by defendant.

      17

      The trial court entered summary judgment for defendant. Plaintiff appeals from that order. Count II of her complaint alleging defamation of character remains pending in the trial court.

      18
      OPINION
      19

      It is well established that summary judgment determines whether any genuine issue of material fact exists and summarily disposes of cases where no such fact exists in order to avoid congestion of trial calendars and the expense of unnecessary trials. (Loveland v. City of Lewistown (1980), 84 Ill.App.3d 190, 192, 39 Ill.Dec. 700, 405 N.E.2d 453.) The motion should be granted where the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill.Rev.Stat.1981, ch. 110, par. 2-1005(c).) In addition, discovery depositions may be used in the context of summary judgment proceedings "for any purpose for which an affidavit may be used." See 87 Ill.2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill.2d 585, 588, 328 N.E.2d 559.

      20

      In ruling on a motion for summary judgment, the trial court must construe pleadings, depositions and affidavits included therein most strictly against the movant and most liberally in favor of the non-movant. (Blaylock v. Toledo, Peoria & Western R.R. (1976), 43 Ill.App.3d 35, 37, 1 Ill.Dec. 451, 356 N.E.2d 639.) The defendant may at any time move for summary judgment in his favor for all or any part of relief sought against him. (Kusiciel v. La Salle National Bank (1982), 106 Ill.App.3d 333, 338, 62 Ill.Dec. 245, 435 N.E.2d 1217.) However, because summary judgment is a drastic method of disposing of litigation, it should be granted only when the right of the movant is clear and free from doubt. Hillblom v. Ivancsits (1979), 76 Ill.App.3d 306, 310, 32 Ill.Dec. 172, 395 N.E.2d 119.

      21

      Plaintiff asserts that the trial court erred in granting defendant's motion for summary judgment as there exists a genuine issue of material fact. She posits that she felt compelled to remain in the baking room so that she could protect her reputation by protesting her innocence to the two men, and that she left the room once she began to shake and feel ill. Additionally, she attributes her "serious emotional upset" to her feelings of intimidation that she contends were caused [126 Ill.App.3d 50] by: James Cesario's sitting directly next to her during questioning, yellow pad and pencil in hand; Ralph Bell's repeated statement that his briefcase contained proof of her guilt; and his raised voice.

      22

      The common law tort of false imprisonment is defined as an unlawful restraint of an individual's personal liberty or freedom of locomotion. (Johnson v. Jackson (1963), 43 Ill.App.2d 251, 258, 193 N.E.2d 485; Shelton v. Barry (1946), 328 Ill.App. 497, 506, 66 N.E.2d 697.) Imprisonment has been defined as "any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go." (McKendree v. Christy (1961), 29 Ill.App.2d 195, 199, 172 N.E.2d 380.) In order for a false imprisonment to be present, there must be actual or legal intent to restrain. Campbell v. Kaczmarek (1976), 39 Ill.App.3d 465, 469, 350 N.E.2d 97.

      23

      Unlawful restraint may be effected by words alone, by acts alone or both (Hassenauer v. F.W. Woolworth Co. (1942), 314 Ill.App. 569, 41 N.E.2d 979 (abstract)); actual force is unnecessary to an action in false imprisonment. (Winans v. Congress Hotel Co. (1922), 227 Ill.App. 276, 282.) [466 N.E.2d 1312] [81 Ill.Dec. 510] The Restatement of Torts specifies ways in which an actor may bring about the confinement required as an element of false imprisonment, including (1) actual or apparent physical barriers; (2) overpowering physical force, or by submission to physical force; (3) threats of physical force; (4) other duress; and (5) asserted legal authority. Restatement (Second) of Torts §§ 38-41 (1965).

      24

      It is essential, however, that the confinement be against the plaintiff's will and if a person voluntarily consents to the confinement, there can be no false imprisonment. (Fort v. Smith (1980), 85 Ill.App.3d 479, 481, 40 Ill.Dec. 886, 407 N.E.2d 117.) "Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft, * * *, is not enough; nor, as in the case of assault, are threats for the future * * *. Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress." Prosser, Torts p 11, at 45 (4th ed. 1971).

      25

      Plaintiff principally relies on the court's decision in Marcus v. Liebman (1978), 59 Ill.App.3d 337, 16 Ill.Dec. 613, 375 N.E.2d 486, for support of her position that summary judgment should not have been granted in the instant case. In Marcus v. Liebman, the court extensively examined the concept that threats of a future action are not enough to constitute confinement. (59 Ill.App.3d 337, 341, 16 Ill.Dec. 613, 375 N.E.2d 486.) There, the defendant psychiatrist threatened to have plaintiff committed to the Elgin State Hospital, and the Marcus court found that this was a present threat, [126 Ill.App.3d 51] constituting false imprisonment, as opposed to a threat of future action. The court in Marcus concluded that the lower court had incorrectly directed a verdict for the defendant, and reversed and remanded the case for trial on the question of imprisonment. The court noted that plaintiff was already voluntarily committed to the psychiatric wing of a private hospital when the defendant made the threat to commit her to a state mental hospital and reasoned, "[A]t the time the alleged threat was made plaintiff was already confined. It was certainly reasonable for the plaintiff to believe that before her release [from the private hospital], commitment procedures could have been concluded." 59 Ill.App.3d 337, 341, 16 Ill.Dec. 613, 375 N.E.2d 486.

      26

      Our analysis of the Marcus decision, as well as the other cases cited by plaintiff, does not support plaintiff's position. All of these cases are easily distinguishable from the present case, as in each, either physical restraint or present threats of such were present.

      27

      In the case at bar, we are confronted with plaintiff's testimony, given under oath, that she voluntarily accompanied James Cesario to the baking room; that she stayed in the room in order to protect her reputation; that she was never threatened with the loss of her job; that she was never in fear of her safety; and that at no time was she prevented from exiting the baking room. Her affidavit, in which she averred that she left the baking room after she began to shake and when she felt that she was becoming ill, does not place into issue material facts which she had previously removed from contention. (Fountaine v. Hadlock (1971), 132 Ill.App.2d 343, 347, 270 N.E.2d 222.) In her discovery deposition, given under oath, she stated that she "got up and left" when Ralph Bell asked her how long the cash register "shorting" had been going on.

      28

      In the tort of false imprisonment, it is not enough for the plaintiff to have felt "compelled" to remain in the baking room in order to protect her reputation (see Prosser, Torts, § 11); for the evidence must establish a restraint against the plaintiff's will, as where she yields to force, to the threat of force or the assertion of authority. (See Restatement (Second) of Torts §§ 38-41 (1965).) In the present case, our search of the record reveals no evidence that plaintiff yielded to constraint of a threat, express or implied, or to physical force of any kind. Also, absent evidence that plaintiff accompanied Cesario against her will, we cannot say that she was imprisoned or unlawfully detained by defendant's [466 N.E.2d 1313] [81 Ill.Dec. 511] employees. Finally, we find no merit to plaintiff's argument that defendant's affirmative defense constituted an admission of an unlawful restraint.

      29

      [126 Ill.App.3d 52] For the reasons stated above, we conclude that the trial court properly granted defendant's motion for summary judgment, as there exists no question of material fact in the present case.

      30

      AFFIRMED.

      31

      MEJDA, P.J., and SULLIVAN, J., concur.

    • 1.2 Parvi v. City of Kingston--"The Dropped Off Drunk"

      Can an otherwise-consented-to action become false imprisonment if the plaintiff no longer wants it?

      Notes: Police transported the drunken plaintiff to an abandoned golf course outside of the city so he could “dry out”. During the car ride to the golf course, plaintiff requested to be let out at a different location. Plaintiff was severely injured when he walked out onto the highway, still intoxicated, in an attempt to return home. At trial, plaintiff admitted that he could no longer recall the car ride.
      1

      394 N.Y.S.2d 161

      2

      41 N.Y.2d 553, 362 N.E.2d 960

      3
      Donald C. PARVI, Appellant,
      v.
      CITY OF KINGSTON, Respondent, et al., Defendants.
      4

      Court of Appeals of New York.

      5

      April 5, 1977.

      6

      [394 N.Y.S.2d 162] David M. Barnovitz, Kingston, for appellant.

      7

      Francis X. Tucker and Vernon Murphy, Kingston, for respondent.

      8
      FUCHSBERG, Justice.
      9

      This appeal brings up for review the dismissal, at the end of the plaintiff's case, of two causes of action, both of which arise out of the same somewhat unusual train of events. One is for false imprisonment and the other for negligence. The judgment of dismissal was affirmed by the Appellate Division by a vote of three to two. The issue before us, as to each count, is whether a prima facie case was made out. We believe it was.

      10

      Bearing in mind that, at the procedural point at which the case was decided, the plaintiff was entitled to the benefit of the most favorable inferences that were to be drawn from the record (Andersen v. Bee Line, 1 N.Y.2d 169, 172, l51 N.Y.S.2d 633, 634, 134 N.E.2d 457, 458; 10 Carmody-Wait 2d, N.Y. Prac., § 70:359, p. 627 et seq.), we turn at once to the proof. In doing so, for the present we rely in the main on testimony plaintiff adduced from the defendant's own employees, especially since plaintiff's own recollection of the events was less than satisfactory.

      11

      Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two poli officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi. According to the police, it was the Dugan brothers who alone were then engaged in a noisy quarrel. When the two uniformed officers informed the three they would have to move on or be locked up, Raymond Dugan ran away; Dixie Dugan chased after him unsuccessfully and then returned to the scene in a minute or two; Parvi, who the police testimony shows had been trying to calm the Dugans, remained where he was.

      12

      In the course of their examinations before trial, read into evidence by Parvi's counsel, the officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking" and showed "the effects of alcohol". They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure", transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out". This was the first time Parvi had ever been there. [394 N.Y.S.2d 163] En route they had asked to be left off at another place, but the police refused to do so.

      13

      No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway. There were no intervening fences or barriers other than the low Thruway guardrail intended to keep vehicular traffic on the road. Before they left, it is undisputed that the police made no effort to learn whether Parvi was oriented to his whereabouts, to instruct him as to the route back to Kingston, where Parvi had then lived for 12 years, or to ascertain where he would go from there. From where the men were dropped, the "humming and buzzing" of fast-traveling, holiday-bound automobile traffic was clearly audible from the Thruway; in their befuddled state, which later left Parvi with very little memory of the events, the men lost little time in responding to its siren song. For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured, Dugan was killed. (Parvi elected not to appeal from the dismissal of his cause of action against Darling, who originally had been joined as an additional defendant.)

      14
      The cause of action for false imprisonment
      15

      With these facts before us, we initially direct our attention to Parvi's cause of action for false imprisonment. Only recently, we had occasion to set out the four elements of that tort in Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314, where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged".

      16

      Elements (1) and (3) present no problem here. When the plaintiff stated he had no place to go, he was faced with but one alternative arrest. This was hardly the stuff of which consent is formed, especially in light of the fact that Parvi was, in a degree to be measured by the jury, then under the influence of alcohol. It is also of no small moment in this regard that the men's request to be released at a place they designated was refused. Moreover, one of the policemen testified that his fellow officer alone selected the location to which Parvi was taken; indeed, this was a place to which the police had had prior occasion to bring others who were being "run out of town" because they evidenced signs of intoxication. Further, putting aside for the time being the question of whether such an arrest would have been privileged, it can hardly be contended that, in view of the direct and willful nature of their actions, there was no proof that the police officers intended to confine Parvi.

      17

      Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case (Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958; Robalina v. Armstrong, 15 Barb. 247; Herring v. Boyle, 1 Cr.M. & R. 377, 149 Eng. Rep. 1126; Meering v. Grahame White Aviation Co., 122 L & T 44; see Halpern, Intentional Torts and the Restatement, 7 Buffalo L.Rev. 7; Prosser, False Imprisonment: Consciousness of Confinement, 55 Col.L.Rev. 847), Broughton, supra, 37 N.Y.2d p. 456, 373 N.Y.S.2d p. 92, 335 N.E.2d p. 313 has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d ( § 42 too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

      18

      [394 N.Y.S.2d 164] However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff's sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi's responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met.

      19

      Passing on now to the fourth and final element, that of privilege or justification, preliminarily, and dispositively for the purpose of this appeal, it is to be noted that, since the alleged imprisonment here was without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification was on the city, whose failure to have done so precluded it from introducing such evidence under its general denial (Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 312, supra; Woodson v. New York City Housing Auth., 10 N.Y.2d 30, 217 N.Y.S.2d 31, 176 N.E.2d 57).

      20

      Since the city nevertheless contends that as a matter of law a privilege to arrest was established in this case and since, as already indicated, in our view of the case there will have to be a new trial, raising the possibility of an amendment of the pleadings, we deem it appropriate to comment. The city's argument runs that a police officer is not required to arrest for drunkenness but may exercise discretion to take an intoxicated person home or to some other safe place as the circumstances dictate and that that was done here.

      21

      In Sindle v. New York City Tr. Auth., 33 N.Y.2d 293, 352 N.Y.S.2d 183, 307 N.E.2d 245, we reflected on the scope of the privileges which constitute justification. We there said (p. 297), 352 N.Y.S.2d p. 186, 307 N.E.2d p. 248 "(G)enerally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful". Consequently, it may be that taking a person who is in a state of intoxication to a position of greater safety would constitute justification. But it is clearly not privileged to arrest such a person for the sole purpose of running him out of town, or, as further proof at the trial here established, once having arrested such a person, to follow a practice of running him out of town to avoid guardhouse chores for the police whenever there were no other prisoners in the local jail. Such acts cannot be sanctioned with the mantle of the privilege of justification. A person who has had too much to drink is not a chattel to be transported [394 N.Y.S.2d 165] from one locus to another at the whim or convenience of police officers.

      22

      The Restatement of Torts 2d ( § 10, Comment d) states it well: "Where the privilege is based upon the value attached to the interest to be protected or advanced by its exercise, the privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question. Such privileges are often called conditional, because the act is privileged only on condition that it is done for the purpose of protecting or advancing the particular interest. They are sometimes called 'defeasible', to indicate the fact that the privilege is destroyed if the act is done for any purpose other than the protection or advancement of the interest in question." It follows that, if the conduct of the officers indeed is found to have been motivated by the desire to run the plaintiff out of town, the action for false imprisonment would not have been rebutted by the defense of legal justification. For, under plaintiff's theory, the false imprisonment count does not rest on the reasonableness of the police officers' action, but on whether the unwilling confinement of the plaintiff was the result of an arrest for a nonjustified purpose.

      23
      The cause of action for negligence
      24

      The Appellate Division upheld the dismissal of the negligence cause on the ground that it was not reasonably foreseeable that a person who is under the influence of alcohol will walk approximately 350 feet in the dead of night and climb over a guardrail onto the New York Thruway. Before treating with that issue, we prefer to give our attention to the more fundamental question of the basic duty owed by the city to the plaintiff in this situation, a question somewhat obscured by the jargon of negligence terminology (Green, The Duty Problem in Negligence Cases, 28 Col.L.Rev. 1014, 29 Col.L.Rev. 255).

      25

      In that connection, we do not believe it aids our analysis of the negligence count to speculate on the duty of a police officer to arrest or not to arrest intoxicated persons. Instead, we confront directly the duty of police officers to persons under the influence of alcohol who are already in their custody, as was the case here once Parvi was compelled to enter the police car. The case law is clear that even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v. Nambil Realty Co., 245 N.Y. 256, 258, 157 N.E. 129, 130; Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276; Zelenko v. Gimbel Bros., 158 Misc. 904, 287 N.Y.S. 134, affd., 247 App.Div. 867, 287 N.Y.S. 136). As Restatement of Torts 2d ( § 324) puts it, "One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or (b) the actor's discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him".

      26

      Comment g to that section makes it evident that this duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued. So it tells us that "if the actor has succeeded in removing the other from a position of danger to one of safety, he cannot change his position for the worse by unreasonably putting him back into the same peril, or into a new one."

      27

      We return now to the question of whether it was reasonably foreseeable that Parvi, who appeared sufficiently intoxicated for the police to take action, when set down in the dead of night in a lonely rural setting within 350 feet of a superhighway, whose traffic noises were sure to make its presence known, might wander onto the road. To state the question is to answer it. To be sure, much has to depend on what the [394 N.Y.S.2d 166] jury finds to have been the state of his sobriety and the nature of the surrounding physical and other circumstances. But traditionally these are the kind of matters suitable for jury determination rather than for the direction of a verdict (Prosser, Torts (4th ed), § 45, p. 290; cf. Sheehan v. City of New York, 40 N.Y.2d 496, 502, 387 N.Y.S.2d 92, 95, 354 N.E.2d 832, 834).

      28

      Finally, a word of clarification may be in order as to the legal role of plaintiff's voluntary intoxication. To accept the defendant's argument, that the intoxication was itself the proximate cause of Parvi's injury as a matter of law, would be to negate the very duty imposed on the police officers when they took Parvi and Dugan into custody. It would be to march up the hill only to march down again. The clear duty imposed on the officers interdicts such a result if, as the jury may find, their conduct was unreasonable (Fagan v. Atlantic Coast Line R. R. Co., 220 N.Y. 301, 307, 115 N.E. 704, 707; Black v. New York, New Haven & Hartford R. R. Co., 193 Mass. 448, 79 N.E. 797; see Restatement, Torts 2d, § 324, Illustration 3). For it is the very fact of plaintiff's drunkenness which precipitated the duty once the officers made the decision to act.

      29

      Accordingly, the order of the Appellate Division should be reversed, both causes of action reinstated and a new trial ordered, with leave to the defendant, if so advised, to move at Trial Term for leave to amend its answer to affirmatively plead a defense of justification to the cause of action for false imprisonment.

      30
      BREITEL, Chief Judge (dissenting).
      31

      I dissent. On no view of the facts should plaintiff, brought to causing his own serious injury by his voluntary intoxication, be allowed to recover from the City of Kingston for damages suffered when he wandered onto the New York State Thruway and was struck by an automobile. His attack is the familiar one on the good Samaritan, in the persons of two police officers, for not having, in retrospect, done enough.

      32

      The order of the Appellate Division should be affirmed, and the action stand dismissed.

      33

      On the night in question, the Kingston city police, responding to a complaint, found plaintiff Parvi and his companions in the midst of an uproarious argument behind a commercial establishment located on Broadway, in Kingston. Close by were railroad tracks, still in use by locomotives and freight trains. Plaintiff and his companion Dugan, both intoxicated, were asked if they had any place to go, and they said not. They were then taken to the police car, and informed that they would not be placed in jail on this holiday weekend, but, in accordance with their wishes, would instead be transported to a point out of the area where they could "sleep it off" without getting into further trouble. Dugan and Parvi repeatedly expressed their appreciation and gratitude at the option given them.

      34

      As the drive out of town proceeded, one of the men suggested a place where they might be left. The police officers, however, solicitous of the safety of their charges, declined this request, noting that the area suggested provided no shelter and, significantly, that the Thruway was "right there". As an alternative, the officers, with the consent of plaintiff and Dugan, dropped the men off at "Coleman Hill", the site of a former golf course, a spot often used by campers and equipped with several "lean-to" shelters. From the relative safety of this sheltered area, the two men, some time later, managed to wander onto the Thruway, over 350 feet away, where Dugan was killed and Parvi injured by passing automobiles.

      35

      On these facts, Parvi contends both that he was falsely imprisoned and that the city, through its police officers, was negligent. Neither claim withstands analysis, and both should fall.

      36

      In Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 92, 335 [394 N.Y.S.2d 167] N.E.2d 310, 313, cert. den., 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257, this court enumerated the elements necessary to sustain a false imprisonment claim: (1) intention to confine, (2) consciousness of confinement, (3) lack of consent to confinement, and (4) lack of privilege. But before those factors may even be reached, there must be evidence of a confinement. In this case, there was none, but, instead, merely an exclusion from one particular area and activity (see Restatemen Torts 2d, § 36, esp Comment b ; Prosser, Torts (4th ed), p. 42).

      37

      So long as Parvi did not remain out in public, intoxicated, creating a public nuisance, and endangering his own life, the officers had no wish to interfere with Parvi's freedom of movement. Since Parvi could suggest no suitable place where the officers might take him, the officers chose another site. Apparently, Parvi and Dugan were pleased with the choice. And it should not matter that Parvi testified, although he could recall nothing else, that he was ordered into a police car "against (his) will". (On cross-examination, he said he recalled nothing that day.) Parvi's "will" was to stay where he was, intoxicated, in public. In order to deprive him of that one choice, which the officers could do without subjecting themselves to liability for false imprisonment, the officers had to transport Parvi some place else. He was given a choice as to destination. He declined it, except for his later suggestion of an unsafe place, and the officers made the choice for him. There was no confinement, and hence no false imprisonment.

      38

      Moreover, plaintiff has failed even to make out a prima facie case that he was conscious of his purported confinement, and that he failed to consent to it. His memory of the entire incident had disappeared; at trial, Parvi admitted that he no longer had any independent recollection of what happened on the day of his accident, and that as to the circumstances surrounding his entrance into the police car, he only knew what had been suggested to him by subsequent conversations. In light of this testimony, Parvi's conclusory statement that he was ordered into the car against his will is insufficient, as a matter of law, to establish a prima facie case.

      39

      Plaintiff's negligence claim is equally without merit. The police officers had no duty to leave Parvi absolutely free from danger in any form. Instead, they owed plaintiff only a duty to exercise ordinary care (Dunham v. Village of Canisteo, 303 N.Y. 498, 502, 104 N.E.2d 872, 874). That duty was discharged by leaving plaintiff at a camping ground equipped with "lean-to" shelters and removed from the holiday bustle of the city, where Parvi had been drinking for the past two or three days. Since it was not foreseeable that Parvi, rather than "sleeping off" his intoxication, would wander away, climb over a guardrail, and be struck by an automobile on the New York State Thruway, there was no breach of duty, no negligence, and hence, no liability (see Cartee v. Saks Fifth Ave., 277 App.Div. 606, 60 101 N.Y.S.2d 761, 764-765, affd., 303 N.Y. 832, 104 N.E.2d 375). If, perchance, he was in search of more drinks, there was no chance of giving him absolute safety except by locking him up. It should not be the rule, common to an era long well past, that every drunkard must be locked up on being observed as intoxicated in public.

      40

      In removing Parvi and Dugan from the center of town, the police officers were performing a recognized public function. In his intoxicated state, Parvi, with his companions, was creating a public nuisance. It had been a long-standing practice in Kingston to transport publicly intoxicated people out of the center of town. The practice was followed in this case, and it is not, in a smaller city (population 25,544), an inherently unreasonable way of dealing with public intoxication. It avoids the humiliation and degradation to the offender, of maintaining him in jail. It is a commonplace that it is no longer acceptable, albeit it still continues, to treat the intoxicated and alcoholic in this fashion, as one does criminals.

      41

      [394 N.Y.S.2d 168] Moreover, transplanting plaintiff from the center of town to an isolated area on the outskirts was protective of plaintiff himself. While a man in an intoxicated state can always be a hazard to himself, he is much more so when located in the center of town, in the midst of city streets, railroad tracks, molesters, muggers, street vehicles, and without shelter, than he would be in an isolated area. But one may not deprive him of reasonable access, after he recovers his sobriety, to food and other necessities. Had the police placed the two men out of reasonable access to any road, the isolation would have been inhumane. And any road would under some circumstances be dangerous. At least, the Thruway was bordered by a guardrail, and the record does not indicate the distance to the other accessible roads, including the road by which they reached Coleman Hill.

      42

      Restatement, Torts 2d, defines an act as negligent when it involves a risk of harm "of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done" ( § 291). Here, the risk was slight; the police officers obviously considered safety in choosing the camping site to deposit the two men, and reasonably regarded the site as safe. More significant, by removing Parvi from town, they removed him from a place of greater danger, and halted a public nuisance as well. The police conduct, therefore, was not unreasonable under the Restatement test. (See, also, Restatement, Torts 2d, §§ 292, 293.) The same analysis applies under section 324 of Restatement, Torts 2d, dealing with the duty of one who takes charge of helpless persons, since the officers materially improved plaintiff's position by removing him from town.

      43

      Since, therefore, there was no breach of duty to plaintiff, as a matter of law, the negligence count, too, was properly dismissed.

      44

      There is hubris in the bringing of an action of this kind. Parvi is one of a pair of drinkers, derelicts perhaps, engaged in making a public nuisance of themselves in the center of a small Hudson River Valley city on a holiday weekend. The police of that city, a tiny force, are not sisters of charity or baby-sitters.

      45

      Basically, the legal issues in this case are not difficult. And the justice issues are even less so. A drunken man, a pitiable character, is found with his companions in the middle of town. Sympathetic police officers offer to take the men any where they choose, but the poor fellows have no place to go. So, rather than locking them up for a holiday weekend, the officers deposit the men in a suburban setting, where some shelter is available. The officers are thanked for their kindness. But, in the end, the efforts of the officers are to no avail, as the drunken men wander away from safety and into danger. A tragedy, certainly. A miscalculation, perhaps. But even with the aid of hindsight, the facts in this case are not the stuff on which tort liability may be premised.

      46

      Accordingly, I dissent, and vote to affirm the order of the Appellate Division.

      47

      GABRIELLI, JONES, WACHTLER and COOKE, JJ., concur with FUCHSBERG, J.

      48

      BREITEL, C. J., dissents and votes to affirm in a separate opinion in which JASEN, J., concurs.

      49

      Order reversed, with costs to abide the event, both causes of action reinstated and a new trial granted, with leave to respondent to move at Trial Term to amend its answer.

  • 2 III.B. Defining 'Confinement'

    • 2.1 Peterson v. Sorlien -- "The Unsuccessfully Deprogrammed Daughter"

      Should we regard individuals as “falsely imprisoned” when they are provided with many opportunities to escape?

      Notes: Plaintiff joined a cult while in college. As a result, her grades fell, she became increasingly alienated from her family, and she sold her car and took on a part-time job to increase her payments to the cult. Afraid for their daughter, the plaintiff’s parents took her to the house of a self-styled professional deprogrammer. For two days, the plaintiff violently resisted the deprogramming and was forcibly confined. However, over the next thirteen days, plaintiff’s demeanor changed considerably; she became “friendly and vivacious”. Subsequently, plaintiff was no longer confined by force and was free to participate in outdoor activities, take solitary walks, and even fly to another city with another former cult member who had shared her experiences in the former week. At the end of the deprogramming period, plaintiff refused to sign a waiver releasing her parents from liability for the past weeks’ actions, and returned to the cult and her fiance—who was also a member.
      1

      299 N.W.2d 123 (1980)

      2
      Susan Louise PETERSON, Appellant,
      v.
      Paul SORLIEN, Respondent,
      Norman Jungclaus, et al., Respondents,
      Michele Perkins, Respondent.
      3

      No. 48721.

      4

      Supreme Court of Minnesota.

      5

      October 24, 1980.

      6

      [299 NW 2d 125] Ranum, Quackenbush & Burke and James H. Ranum, Minneapolis, for appellant.

      7

      Gray, Plant, Mooty, Mooty & Bennett and Jeffrey R. Brooke, Minneapolis, for Sorlien.

      8

      Joseph W. Parris, Hector, for Jungclaus et al.

      9

      Wasserman & Lewis and Mark S. Wasserman, Minneapolis, for Perkins.

      10

      Heard before SHERAN, C. J., and OTIS, PETERSON, KELLY, TODD, YETKA and MAXWELL, JJ., and considered and decided by the court en banc.

      11
      SHERAN, Chief Justice.
      12

      This action by plaintiff Susan Jungclaus Peterson for false imprisonment and intentional infliction of emotional distress arises from an effort by her parents, in conjunction with other individuals named as defendants, to prompt her disaffiliation from an organization known as The Way Ministry.

      13

      At trial, the Hennepin County District Court directed a verdict in favor of defendant Paul Sorlien, plaintiff's former minister, finding the evidence proffered against [299 NW 2d 126] him insufficient as a matter of law. The jury returned a verdict exonerating Mr. and Mrs. Jungclaus and the other remaining defendants of the charge of false imprisonment; however, the jury found defendants Veronica Morgel and Kathy Mills liable for intentional infliction of emotional distress, assessing against each of them $1 compensatory damages and $4,000 and $6,000 respectively as punitive damages.

      14

      Plaintiff asserts that the trial court erred by 1) failing to grant a judgment notwithstanding the verdict on the claim of false imprisonment; 2) permitting the admission of evidence concerning her involvement in The Way and its activities; 3) instructing the jury that in assessing plaintiff's credibility it could consider whether others than plaintiff were participating in the expense of the litigation; 4) directing a verdict in favor of Paul Sorlien; and 5) denying her motion to amend the complaint to substitute the proper names of defendants previously identified as John Doe, James Roe, Jane Doe and Mary Roe and to add a new cause of action.

      15

      We find that if the trial court erred in its jury instruction which outlined the factors that could be considered in assessing plaintiff's credibility and by failing to permit the substitution of proper names for defendants otherwise identified in the complaint, these errors were not of a fundamental magnitude. In all other respects, we affirm the determination of the district court.

      16

      Viewing the evidence in the light most favorable to the prevailing defendants, this case marks the emergence of a new cultural phenomenon: youth-oriented religious or psuedo-religious groups which utilize the techniques of what has been termed "coercive persuasion" or "mind control" to cultivate an uncritical and devoted following. Commentators have used the term "coercive persuasion," originally coined to identify the experience of American prisoners of war during the Korean conflict to describe the cult-induction process. The word "cult" is not used pejoratively but in its dictionary sense to describe an unorthodox system of belief characterized by "great or excessive devotion or dedication to some person, idea, or thing." Webster's New International Dictionary of the English Language Unabridged 552 (1976). Coercive persuasion is fostered through the creation of a controlled environment that heightens the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The aftermath of indoctrination is a severe impairment of autonomy and the ability to think independently, which induces a subject's unyielding compliance and the rupture of past connections, affiliations and associations. See generally Delgado, Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment, 51 S.Cal.L.Rev. 1 (1977). One psychologist characterized the process of cult indoctrination as "psychological kidnapping." Id. at 23.

      17

      At the time of the events in question, Susan Jungclaus Peterson was 21 years old. For most of her life, she lived with her family on a farm near Bird Island, Minnesota. In 1973, she graduated with honors from high school, ranking second in her class. She matriculated that fall at Moorhead State College. A dean's list student during her first year, her academic performance declined and her interests narrowed after she joined the local chapter of a group organized internationally and identified locally as The Way of Minnesota, Inc.

      18

      The operation of The Way is predicated on the fund-raising activities of its members. The Way's fund-raising strategy centers upon the sale of pre-recorded learning programs. Members are instructed to elicit the interest of a group of ten or twelve people and then play for them, at a charge of $85 per participant, a taped introductory course produced by The Way International. Advanced tape courses are then offered to the participants at additional cost, and training sessions are conducted to more fully acquaint recruits with the orientation of the group and the obligations of membership. Recruits must contribute a minimum of 10 percent of their earnings to the organization; [299 NW 2d 127] to meet the tithe, student members are expected to obtain part-time employment. Members are also required to purchase books and other materials published by the ministry, and are encouraged to make larger financial contributions and to engage in more sustained efforts at solicitation.

      19

      By the end of her freshman year, Susan was devoting many hours to The Way, listening to instructional tapes, soliciting new members and assisting in training sessions. As her sophomore year began, Susan committed herself significantly, selling the car her father had given her and working part-time as a waitress to finance her contributions to The Way. Susan spent the following summer in South Dakota, living in conditions described as appalling and overcrowded, while recruiting, raising money and conducting training sessions for The Way.

      20

      As her junior year in college drew to a close, the Jungclauses grew increasingly alarmed by the personality changes they witnessed in their daughter; overly tired, unusually pale, distraught and irritable, she exhibited an increasing alienation from family, diminished interest in education and decline in academic performance. The Jungclauses, versed in the literature of youth cults and based on conversations with former members of The Way, concluded that through a calculated process of manipulation and exploitation Susan had been reduced to a condition of psychological bondage.

      21

      On May 24, 1976, defendant Norman Jungclaus, father of plaintiff, arrived at Moorhead to pick up Susan following the end of the third college quarter. Instead of returning to their family home, defendant drove with Susan to Minneapolis to the home of Veronica Morgel. Entering the home of Mrs. Morgel, Susan was greeted by Kathy Mills and several young people who wished to discuss Susan's involvement in the ministry. Each of those present had been in some way touched by the cult phenomenon. Kathy Mills, the leader of the group, had treated a number of former cult members, including Veronica Morgel's son. It was Kathy Mills a self-styled professional deprogrammer, to whom the Jungclauses turned, and intermittently for the next sixteen days, it was in the home of Veronica Morgel that Susan stayed.

      22

      The avowed purpose of deprogramming is to break the hold of the cult over the individual through reason and confrontation. Initially, Susan was unwilling to discuss her involvement; she lay curled in a fetal position, in the downstairs bedroom where she first stayed, plugging her ears and crying while her father pleaded with her to listen to what was being said. This behavior persisted for two days during which she intermittently engaged in conversation, at one point screaming hysterically and flailing at her father. But by Wednesday Susan's demeanor had changed completely; she was friendly and vivacious and that night slept in an upstairs bedroom. Susan spent all day Thursday reading and conversing with her father and on Saturday night went roller-skating. On Sunday she played softball at a nearby park, afterwards enjoying a picnic lunch. The next week Susan spent in Columbus, Ohio, flying there with a former cult member who had shared with her the experiences of the previous week. While in Columbus, she spoke every day by telephone to her fiance who, playing tapes and songs from the ministry's headquarters in Minneapolis, begged that she return to the fold. Susan expressed the desire to extricate her fiance from the dominion of the cult.

      23

      Susan returned to Minneapolis on June 9. Unable to arrange a controlled meeting so that Susan could see her fiance outside the presence of other members of the ministry, her parents asked that she sign an agreement releasing them from liability for their past weeks' actions. Refusing to do so, Susan stepped outside the Morgel residence with the puppy she had purchased in Ohio, motioned to a passing police car and shortly thereafter was reunited with her fiance in the Minneapolis headquarters of The Way. Following her return to the ministry, she was directed to counsel and initiated the present action.

      24

      [299 NW 2d 128] 1. Plaintiff seeks a judgment notwithstanding the verdict on the issue of false imprisonment, alleging that defendants unlawfully interfered with her personal liberty by words or acts which induced a reasonable apprehension that force would be used against her if she did not otherwise comply. Durgin v. Cohen, 168 Minn. 77, 209 N.W. 532 (1926). The jury, instructed that an informed and reasoned consent is a defense to an allegation of false imprisonment and that a nonconsensual detention could be deemed consensual if one's behavior so indicated, exonerated defendants with respect to the false imprisonment claim.

      25

      The period in question began on Monday, May 24, 1976, and ceased on Wednesday, June 9, 1976, a period of 16 days. The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of those days. During that time she took many excursions into the public sphere, playing softball and picnicking 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. If one is aware of a reasonable means of escape that does not present a danger of bodily or material harm, a restriction is not total and complete and does not constitute unlawful imprisonment. Damages may not be assessed for any period of detention to which one freely consents. See Davis & Allcott Co. v. Boozer,215 Ala. 116, 110 So. 28 (1926); Restatement (Second) of Torts § 36, Comment a (1965); 4 Minnesota Practice JIG II, 504 G-S (2d ed.1974).

      26

      In his summation to the jury, the trial judge instructed that to deem consent a defense to the charge of false imprisonment for the entire period or for any part therein, a preponderance of the evidence must demonstrate that such plaintiff voluntarily consented. The central issue for the jury, then, was whether Susan voluntarily participated in the activities of the first three days. The jury concluded that her behavior constituted a waiver.

      27

      We believe the determination to have been consistent with the evidence. See Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.1979); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); F. Harper & F. James, The Law of Torts § 3.10, at 235 (1956). Were the relationship other than that of parent and child, the consent would have less significance.

      28

      To determine whether the findings of the jury can be supported upon review, the behavior Susan manifested during the initial three days at issue must be considered in light of her actions in the remainder of the period. Because, it is argued, the cult conditioning process induces dramatic and non-consensual change giving rise to a new temporary identity on the part of the individuals whose consent is under examination, Susan's volitional capacity prior to treatment may well have been impaired. Following her readjustment, the evidence suggests that Susan was a different person, "like her old self." As such, the question of Susan's consent becomes a function of time. We therefore deem Susan's subsequent affirmation of defendants' actions dispositive.

      29

      In Weiss v. Patrick, 453 F.Supp. 717 (D.R. I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), the federal district court in Rhode Island confronted a situation similar to that which faces us. Plaintiff, a devotee of the Unification Church, brought an action for false imprisonment against individuals hired by her parents to prompt her disassociation from the church. Because [299 NW 2d 129] plaintiff's mother was dying of cancer, the church authorities permitted her to join her family for the Thanksgiving holiday. Met at the airport by her mother, she testified that she was restrained against her will in the home of one of the defendants and subjected to vituperative attacks against the church until she seized an opportunity to flee. Despite the evidently traumatic experience sustained by plaintiff, the district court found that she failed to demonstrate a meaningful deprivation of personal liberty, reasoning that "any limitation upon personal mobility was not her primary concern." Id. at 722. In so reasoning, the court underscored a parental right to advocate freely a point of view to one's child, "be she minor or adult." To assure freedom, the court observed, "the right of every person `to be left alone' must be placed in the scales with the right of others to communicate." Id. (quoting Rowan v. United States Post Office Department, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).

      30

      In light of our examination of the record and rules of construction providing that upon review the evidence must be viewed in a manner most favorable to the prevailing party, Kuehl v. National Tea Co., 310 Minn. 48, 245 N.W.2d 235 (1976), we find that a reasonable basis existed for the verdict exonerating defendants of the charge of false imprisonment. Although carried out under colorably religious auspices, the method of cult indoctrination, viewed in a light most favorable to the prevailing party, is predicated on a strategy of coercive persuasion that undermines the capacity for informed consent. While we acknowledge that other social institutions may utilize a degree of coercion in promoting their objectives, none do so to the same extent or intend the same consequences. Society, therefore, has a compelling interest favoring intervention. The facts in this case support the conclusion that plaintiff only regained her volitional capacity to consent after engaging in the first three days of the deprogramming process. As such, 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 psuedo-religious 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.[1] But 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).[2]

      31

      2. On appeal, plaintiff challenges the propriety of admissions by the trial court of evidence regarding her involvement in the activities of The Way. By charging defendants with intentional infliction of emotional distress and seeking punitive damages, plaintiff placed the state of mind of defendants at issue. For a court to award punitive damages, a plaintiff must prove that defendants acted willfully, wantonly and maliciously. Good faith is a proper defense to punitive damages, even though defendants might have been mistaken in their belief that a party was in jeopardy or that their actions were correct. Benson [299 NW 2d 130] Cooperative Creamery Association v. First District Association, 276 Minn. 520, 151 N.W.2d 422 (1967). Therefore, in determining whether defendants acted with the requisite degree of malice, the trial court considered defendants' perceptions of The Way Ministry and their fears for Susan's well-being relevant and admissible.

      32

      The ability of defendants to introduce testimony of their perception of the ministry's effect upon plaintiff must be weighed against the First Amendment admonition respecting the free exercise of religion. Although religious belief is protected absolutely from governmental regulation, religiously motivated conduct is subject to a balancing test that weighs the interest of the religious group against the state's interest in regulating or forbidding the activity. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A court may also afford the interest of the religious group less weight if it considers the belief giving rise to the conduct insincerely held, or if the practice is not central to the group's system of belief. Id.

      33

      At trial, defendants did not act as inquisitors, seeking to admit testimony regarding plaintiff's religious beliefs, but merely tried to show that their fears for Susan's physical and emotional well-being were well-grounded. To assess defendants' state of mind, the trial court admitted evidence purporting to illustrate defendants' fear that The Way's method of recruitment resembled a process of programmed manipulation devised to allay the suspicions and anesthetize the rational processes of its targets. Publication by The Way of a guide on "The ‘How’ of Door to Door Witnessing," instructing recruiters to focus on "the hungry" and on "individuals whose resistance is temporarily lowered because of loneliness, worry over exams, or other adolescent crises," suggests that a reasonable basis for defendants' fears did indeed exist. The court therefore permitted references to Susan's psychological and physical condition, the extent and manner of her participation in the program of the cult, the demands of membership, and her living conditions during the summer that she "witnessed" for the cult.

      34

      The admission of evidence for the purpose of showing good faith may have the unintended effect of prejudicing a jury by bringing out facts regarding religious belief. Aware of the potential impact of such testimony, the trial judge instructed the jury on no fewer than six occasions as to the purpose of the evidence and the context in which it could be considered and upheld objections to testimony bearing on religious belief. Since an award of punitive damages rests with the discretion of the jury, Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818 (1912), to have excluded all evidence bearing a potentially prejudicial impact would have eviscerated defendants' right to defend against the charge of intentional infliction of emotional distress. We therefore find that in an action for intentional infliction of emotional distress, when the record discloses no testimony impinging upon religious belief, the introduction by defendants of relevant evidence concerning matters that plaintiff voluntarily placed in issue, such as her religious association and defendants' state of mind, was admissible and did not violate the First Amendment admonition respecting freedom of religion.

      35

      3. Plaintiff next challenges a charge to the jury by the trial judge instructing that when assessing plaintiff's credibility, the jury could properly take into account whether The Way was maintaining or financing the law suit. Plaintiff argues that the instruction, culminating after a lengthy trial involving several causes of action, extensive discovery proceedings, a plethora of motions and a number of hearings, constituted reversible error.

      36

      In the past, this court has observed that a trial court's charge to the jury must be reviewed in its entirety, interpreting the instructions as a whole and refraining from considering isolated statements without reference to context. Thomas v. Mueller, 251 Minn. 470, 88 N.W.2d 842 (1958); Lund v. Minneapolis Street Ry., 250 Minn. 550, 86 [299 NW 2d 131] N.W.2d 78 (1957). At trial, reference was made to whether plaintiff was the real party in interest or merely a conduit through which other parties were maintaining the action. As a matter of law, the court ruled that defense inadmissible, subsequently instructing that such facts could only be considered in determining plaintiff's credibility and ascertaining appropriate damages. In otherwise instructing the jury, the trial court clearly and accurately described the torts of false imprisonment and intentional infliction of emotional distress and ruled as a matter of law that certain defenses asserted by defendants were inapplicable. The trial court also informed the jury that evidence implicating The Way could only be considered in the limited context of establishing whether defendants acted wantonly, willfully or maliciously; that inquiry, in turn, related only to the assessment of punitive damages and not to the ultimate questions of liability.

      37

      In general we believe it unwise to sanction a jury instruction providing that when a group supports a plaintiff or derives a benefit therefrom, evidence of such support can be introduced at trial relative to the question of damages. The ultimate effect of such a ruling might deter litigants from accepting the assistance of unpopular groups fearing that this evidence could affect the disposition of a case. In NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 405 (1963), the United States Supreme Court held such relationships to be modes of expression and association protected under the First Amendment. Button concerned the NAACP's practice of advising individuals during informational meetings of its willingness to commence civil rights litigation on their behalf. Challenged under a statute forbidding solicitation of legal business by an organization that retains a lawyer in connection with an action to which it is neither a party nor has a pecuniary right or liability, the United States Supreme Court found the statute unconstitutional.

      38

      The purpose of a jury instruction is to convey a clear and correct understanding of the law of the case as it relates to all the parties involved. A charge that is substantially correct is sufficient when an error has not been given such undue prominence as to obscure issues of primary significance. St. George v. Lollis, 209 Minn. 322, 296 N.W. 523 (1941); SeeGibbon Farmers Elevator Co. v. Herschmann, 160 Minn. 326, 200 N.W. 293 (1924). Therefore, although we find that the trial court may have erred in instructing that the jury could consider evidence of the cult's financial support in assessing plaintiff's credibility, because the instruction constituted a small part of an otherwise commendable exposition and did not affect the ultimate disposition of the case as evidenced by the award of $10,000 in punitive damages, we hold that the commission of the error, if any, does not merit reversal.

      39

      4. Plaintiff further challenges the decision of the trial court, charging that the court erred by directing a verdict in favor of the plaintiff's former minister, Paul Sorlien. In so doing, plaintiff attributes to Paul Sorlien a degree of participation in the events in question that bears no relation to the actual facts of the case.

      40

      The active involvement of Paul Sorlien began when he accompanied his parishioner, Norman Jungclaus, to Moorhead, Minnesota to pick Susan up at the close of her examinations and then drove them to Minneapolis to the home of Veronica Morgel. Sorlien had become concerned about Susan following conversations with her parents and was previously acquainted with Morgel by reason of an informational seminar that they both attended on the subject of religious cults. The trio arrived at the Morgel residence at approximately 7 p. m. at which time Sorlien was called away to assist a parishioner who had been transferred unexpectedly to a Minneapolis hospital. Sorlien returned at approximately 11 p. m. and consequently was unaware of the circumstances surrounding Susan's removal to the downstairs bedroom. Susan became hysterical when he walked downstairs to greet her, and he therefore immediately left the room. The next day Sorlien again entered the room and observed Susan curled up in a [299 NW 2d 132] fetal position with her fingers in her ears. Upon seeing him, Susan once again became hysterical. Sorlien attributed her hysterical reactions to her indoctrination by The Way that ministers are "adversary, part of the devil." Sorlien spent the remainder of the day visiting three parishioners in three different metropolitan hospitals. On Wednesday, Sorlien was present but not party to a conversation between Susan and another individual but later that afternoon Sorlien exchanged pleasantries with Susan and noticed that her appearance and demeanor were markedly different. On Thursday, he returned to Bird Island to make funeral arrangements for a parishioner and to teach a confirmation class. He had no other significant contacts or conversations with the Jungclauses or Susan following his departure.

      41

      Under the applicable standard recently reiterated in J. N. Sullivan & Associates, Inc. v. F. D. Chapman Construction Co., 304 Minn. 334, 231 N.W.2d 87 (1975), we find the evidence against Paul Sorlien insufficient to present a question of fact for the jury to decide, and accordingly, uphold the directed verdict of the trial court.[3]

      42

      5. As a final matter, plaintiff appeals the denial by the trial court of her motion to amend the complaint for the purpose of substituting the proper names of those previously identified in the complaint as John Doe, James Roe, Jane Doe and Mary Roe. Also included in the above motion was the further request to include an additional cause of action for civil conspiracy under 42 U.S.C. § 1985 (1976).[4]

      43

      Minn.R.Civ.P. 9.08 provides that when a litigant in his pleadings alleges ignorance as to the name of an opposing party, the opposing party may be designated by any name; after discovery of the true name, the pleadings may be amended accordingly. By identifying the parties in such manner, defendants are on notice that the complaint will be amended. Because of the perfunctory nature of the rule, we conclude that the trial court erred by failing to permit the substitution. See LaSalle Cartage Co. v. Johnson Brothers Wholesale Liquor Co., 302 Minn. 351, 225 N.W.2d 233 (1974). In respect to that part of the motion seeking the addition of a new federal cause of action, however, we find the trial court did not err. The addition of a new cause of action almost a year after commencement of the suit would have likely delayed the start of trial or prejudiced the adverse party. Leave to amend will only be granted when justice so requires. Minn.R. Civ.P. 15.01.

      44

      Neither in her brief nor in her notice of appeal does plaintiff indicate what relief she seeks as a result of this error. Because plaintiff only sought punitive damages of $10,000, for which she had already been compensated, the substitution of the remaining defendants would only have resulted in a symbolic award. Hence, under Minnesota's harmless error rule, the refusal of the trial court to take such action did not appear to affect the substantial rights of the parties. Minn.R.Civ.P. 61. We therefore hold that the failure of the trial court to permit the substitution of the true and correct name of a party joined in a complaint [299 NW 2d 133] by a fictitious name does not constitute reversible error when doing so would have resulted only in a symbolic award.

      45

      Affirmed.

      46
      PETERSON, Justice (concurring specially).
      47

      I concur in the result.

      48

      AMDAHL and SIMONETT, JJ., not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      49
      WAHL, Justice (dissenting in part, concurring in part).
      50

      I must respectfully dissent. In every generation, parents have viewed their children's religious and political beliefs with alarm and dismay if those beliefs were different from their own. Under the First Amendment, however, adults in our society enjoy freedoms of association and belief. In my view, it is unwise to tamper with those freedoms and with longstanding principles of tort law out of sympathy for parents seeking to help their "misguided" offspring, however well-intentioned and loving their acts may be. Whether or not, as the majority opinion asserts, The Way of Minnesota, Inc. is a "youth-oriented," "pseudo-religious group" which pursues its "fundraising strategy" in such a way as to inflict physical and psychological harm on its members, emphasis on this characterization beclouds the purely legal issues which are presented by this appeal.

      51

      The first of those legal issues is whether, as a matter of law, any of the defendants in this case are guilty of false imprisonment of the plaintiff. The elements of the tort of false imprisonment are (1) words or acts by defendant intended to confine plaintiff, (2) actual confinement, and (3) awareness by plaintiff that she is being confined. Blaz v. Molin Concrete Products Co., 309 Minn. 382, 244 N.W.2d 277 (1976). Any imprisonment "which is not legally justifiable" is false imprisonment, Kleidon v. Glascock, 215 Minn. 417, 10 N.W.2d 394 (1943); therefore, the fact that the tortfeasor acted in good faith is no defense to a charge of false imprisonment. Accord, Strong v. City of Milwaukee, 38 Wis.2d 564, 157 N.W.2d 619 (1968). Thus, although the majority opinion correctly concludes that evidence concerning the activities of The Way and the impact of those activities upon plaintiff may have been relevant to the question of whether defendants acted so willfully and maliciously as to justify an award of punitive damages, such evidence has little bearing on the issue of defendants' liability for false imprisonment.

      52

      The unrebutted evidence shows that defendant Norman Jungclaus, the father of the 21-year-old plaintiff in this case, took his adult daughter, kicking and screaming, to a small bedroom in the basement of the Morgel home on Monday, May 23. Norman Jungclaus admitted that she did not go with him willingly. Plaintiff curled up on the bed, plugged her ears, and cried. Defendant Perkins testified that plaintiff screamed and cried and pleaded with several people to let her go, but her pleas were ignored. This situation continued until 3 a. m. Tuesday. At one point that morning, plaintiff flew at her father, and he held her arms around her from the back, in his words, "for maybe a half an hour, until she calmed down again." Plaintiff testified that defendant Mills told her papers had been drafted to commit her to Anoka State Hospital if she continued to refuse to cooperate with the "deprogramming."

      53

      In its memorandum accompanying the order denying plaintiff's motion for judgment notwithstanding the verdict, the trial court stated:

      54

      It should be noted that there must be considerable room for doubt concerning that portion of the verdict finding that Norman Jungclaus did not participate in a false imprisonment. The evidence is unrebutted that he picked up his 21-year-old daughter Susan and took her into the basement without her permission or consent, and against her will. She remained there several days. However, Plaintiff stated that she was not seeking [299 NW 2d 134] compensatory damages against her parents, and only $1.00 in punitive damages.

      55

      In that light, judgment notwithstanding verdict as to false imprisonment would be of no significance in the matter of compensatory damages. And whether or not Mr. Jungclaus's act was done maliciously or willfully so as to justify $1.00 punitive damages is clearly a matter for determination by the jury; and not the Court. Hence, judgment notwithstanding verdict against Norman Jungclaus as to false imprisonment must be denied. On practical grounds, a new trial will not be ordered for a potential $1.00 recovery in any event.

      56

      Thus, the trial court refused to grant judgment against Norman Jungclaus because any damages awarded would be insignificant. However, plaintiff's complaint sought not only money damages but an injunction against further interference with her freedoms of religion, association, and expression. The value to plaintiff of a judgment in her favor, while not monetary, is nevertheless significant.

      57

      The majority opinion finds, in plaintiff's behavior during the remainder of the 16-day period of "deprogramming," a reasonable basis for acquitting defendant Jungclaus of the false imprisonment charge for the initial three days, during which time he admittedly held plaintiff against her will. Under this theory, plaintiff's "acquiescence" in the later stages of deprogramming operates as consent which "relates back" to the events of the earlier three days, and constitutes a "waiver" of her claims for those days. Cases cited by the majority do not lend support to this proposition. Bustamonte addressed the meaning of "voluntary consent" to the search of an automobile by police in the context of a challenge based on Fourth Amendment grounds. In Faniel the court found that an employee, who was given a ride to her home by company personnel who intended to recover unauthorized electrical equipment, had not proved an absence of lawful consent sufficient to sustain a finding of false imprisonment.[1]

      58

      Moreover, Weiss does not lend support to the majority's finding. While it is true that in Weiss the plaintiff testified that she was forcibly detained against her will, the court found her testimony not credible. Id. at 721. The court there found only that parents have the right which all citizens have to peaceably dissuade Plaintiff of her particular religious views, provided they use no form of unlawful compulsion to effect their purpose. What occurred here was simply an effort, in private, to persuade a willing listener to disavow the tenets of the Unification Church. * * *

      59

      * * * * * *

      It is clear that Plaintiff has the right to be free of any coercive attempt to speak with her * * *.

      60

      Id. at 722.

      61

      Certainly, parents who disapprove of or disagree with the religious beliefs of their adult offspring are free to exercise their own First Amendment rights in an attempt, by speech and persuasion without physical restraints, to change their adult children's minds. But parents who engage in tortious conduct in their "deprogramming" attempts do so at the risk that the deprogramming will be unsuccessful and the adult children will pursue tort remedies against their parents. To allow parents' "conviction that the judgmental capacity of their adult child is impaired by her religious indoctrination" to excuse their tortious conduct sets a dangerous precedent.

      62

      Here, the evidence clearly supported a verdict against Norman Jungclaus on the false imprisonment claim, and no reasonable basis existed for denying judgment notwithstanding the verdict. The trial court's holding in this regard should be reversed.

      63

      The second issue which particularly concerns me was the instruction by the trial [299 NW 2d 135] court that the jury could consider the fact that The Way paid plaintiff's legal bills in assessing her credibility and awarding damages. I concur with the court's holding that such an instruction is error, although in the context of this case harmless error. I write to emphasize the compelling reasons why such an instruction should not be given. First, the fact that The Way aided and encouraged plaintiff to bring the lawsuit has little to do with whether the defendants falsely imprisoned the plaintiff or whether they intentionally inflicted emotional distress on her. It is not uncommon for a layperson to talk to others and get advice before bringing a lawsuit. Nor is it uncommon for groups to provide money and other support to its members as they pursue individual causes of action. The contributions of the NAACP, which financially assists litigation aimed at eliminating racial barriers, were recognized, as the majority opinion notes, in NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed. 405 (1963). Such aid not only allows a person to exercise his or her right to seek redress through our courts, it also effectuates that fundamental underpinning of our judicial system.

      64

      In the instant case, to admit evidence that The Way paid plaintiff's attorneys fees improperly shifted the jury's attention from the nature of defendants' acts to the acceptability of The Way. Such a shift of attention could unduly prejudice plaintiff because she exercised her First Amendment right of association with an unpopular religious group.

      65

      Furthermore, that evidence was irrelevant to the motive for her claim for damages. The reason plaintiff altered the amounts of compensation sought from her parents was, according to her testimony, her belief that she had to sue for money. Only after the suit was commenced did she learn that she could sue for legal protection. Plaintiff was entitled to seek compensation from the defendants individually, all together, or in any combination. Therefore, that she chose to sue her parents for a token amount has little to do with who was paying the legal fees.

      66

      The fact that a group or others support a plaintiff and may derive some benefit unrelated to plaintiff's cause of action should not be introduced at trial and considered by the jury as it determines plaintiff's credibility and the amount of damages to be awarded. The ultimate effect can only be to deter plaintiffs and defendants from accepting assistance from groups or causes which may not be popular in our society. This would mean that in suits like the present one, plaintiffs with unpopular beliefs who cannot afford costly legal representation must forgo their rights to seek redress in our courts or utilize the courts at the risk that evidence of support from their minority religious or political group may be used to undermine all or part of their claims.

      67

      Lastly, I would address plaintiff's claim that the trial court erred in denying her motion to amend her complaint or add a new cause of action. I agree that the motion was properly denied because it was untimely, but I would not conclude, as suggested by footnote 4 of the majority opinion, that defendant parents' attempts to "deprogram" their daughter from her religious beliefs did not constitute a violation of her rights under 42 U.S.C. § 1985(3). Although one federal court has so held, see Weiss v. Patrick, 453 F.Supp. 717, 722 (D.R. I.),aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), a number of courts have reached the contrary conclusion. In Augenti v. Cappellini, 84 F.R.D. 73 (M.D.Pa.1979), for example, defendants' arguments that their attempts to deprogram their son "were motivated solely by parental concern * * * to further his physical and mental health" did not persuade the court that the "invidiously discriminatory animus" necessary for a § 1985(3) action was lacking. Id. at 78. Several other cases interpreting the legislative history of § 1985(3) have determined that the protection of the provisions does extend to religious groups. See Jackson v. Associated Hospital Service,414 F.Supp. 315 (E.D.Pa.1976), aff'd, 549 F.2d 795 (3rd Cir.), cert. denied, 434 U.S. 832, 98 [299 NW 2d 136] S.Ct. 117, 54 L.Ed.2d 93 (1977); Rankin v. Howard, 457 F.Supp. 70, 74-75 (D.Ariz. 1978); cf. Mandelkorn v. Patrick, 359 F.Supp. 692, 697 (D.D.C.1973). In reaching this conclusion, the court in Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978) observed:

      68

      While religious status may differ from racial status because it is not a congenital and inalterable trait, membership in a minority religious group, like membership in a minority racial group, has often excited the fear, hatred and irrationality of the majority. Two thousand years of human history compellingly prove that no easier road to martyrdom is found than in adherence to an unpopular religious faith. For these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of § 1985(3).

      69

      Id. at 491.

      70
      OTIS, Justice (dissenting in part).
      71

      I join in the views expressed by Justice Wahl, and particularly take issue with a rule which authorizes what is euphemistically described as "limitations upon the adult child's mobility" whenever a parent, or indeed a stranger acting for a parent, subjectively decides, without the benefit of a professional opinion or judicial intervention, that the adult child's "judgmental capacity" is impaired and that she should be "extricated" from what is deemed to be a religious or pseudo-religious cult.

      72

      The rule adopted by the majority states:

      73

      We hold that where 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 pseudo-religious 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.

      74

      We furnish no guidelines or criteria for what constitutes "impaired judgmental capacity" other than the fact that the adult child has embraced an unorthodox doctrine with a zeal which has given the intervenor cause for alarm, a concern which may be well-founded, ill-founded, or unfounded.

      75

      Nor do we specify whether the "cult" must be for a benign or a malevolent purpose. It is enough that the intervenor has reason to believe it is a cult i. e. "an unorthodox system of belief" and that at some juncture during the adult child's involuntary confinement, she "assents," that is to say, yields or surrenders, possibly from exhaustion or fatigue, and possibly for a period only long enough to regain her composure.

      76

      If there is any constitutional protection we should be slow to erode it is the right of serious-minded people, young or old, well-adjusted, or maladjusted, to search for religious or philosophical fulfillment in their own way and in their own time without the interference of meddling friends or relatives, however well-intentioned they may be.

      77

      At age 21, a daughter is no longer a child. She is an adult. Susan Peterson was not only an adult in 1976 but she was a bright, well-educated adult. For whatever reason, she was experiencing a period of restlessness and insecurity which is by no means uncommon in students of that age. But to hold that for seeking companionship and identity in a group whose proselyting tactics may well be suspect, she must endure without a remedy the degrading and humiliating treatment she received at the hands of her parents, is, in my opinion, totally at odds with the basic rights of young people to think unorthodox thoughts, join unorthodox groups, and proclaim unorthodox views. I would reverse the denial of recovery as to that cause of action.

      78

      [1]  Plaintiff in her motion for a judgment notwithstanding the verdict stated that she wished to recover only nominal damages against her parents. This court has held that a judgment for defendant will not be reversed on appeal simply to allow a plaintiff to recover nominal damages. Erickson v. Midland Nat'l Bank & Trust Co., 205 Minn. 224, 285 N.W. 611 (1939).

      79

      [2]  While we decline at this time to suggest a particular alternative, we observe that some courts have permitted the creation of temporary guardianships to allow the removal of cult members to therapeutic settings. If the individuals desire, at the end of the conservatorship they may return to the cult. Actions have also been initiated against cult leaders on the basis of criminal liability. See generally Delgado, supra, at 73-97.

      80

      [3]  At trial, plaintiff sought the production of personal correspondence between Sorlien and his bishop. The trial court denied discovery ruling that the documents sought were not reasonably calculated to lead to relevant evidence under Minn.R.Civ.P. 26.02(1). On appeal, plaintiff argues that the trial court's failure to permit discovery was mistakenly based on Minn.Stat. § 595.02, subd. 3 (1978), imposing a clergyman-penitent privilege, which plaintiff argued was not relevant to the facts of the case. While we disagree with plaintiff's characterization of the ruling of the trial court, because we deem the directed verdict proper, the issue is moot.

      81

      [4]  In respect to § 1985, a federal district court recently held that where defendant was motivated by paternal concerns for a plaintiff's health and well-being and not from the abhorrence of plaintiff's religious views, plaintiff failed to establish the existence of a class-based animus necessary to allege a violation under 42 U.S.C. § 1985 (1976). Weiss v. Patrick, 453 F.Supp. 717 (D.R.I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979).

      82

      __________

      83

      [1]  Indeed, People v. White, 53 Mich.App. 51, 218 N.W.2d 403 (1974), affirming the defendant's conviction for attempted kidnapping, held that later consent does not relate back to previous acts by defendant. Id.at 55-56, 218 N.W.2d at 405.

  • 3 III.C. "Good" Imprisonments - Exceptions to False Imprisonment Liability

    • 3.1 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.
      1

      582 F. Supp. 1093

      2
      William EILERS, Plaintiff,
      v.
      Deborah Ann COY, Daniel Charles Graham, Robert Lewis Brandyberry, Larry Bisman, Vincent Jennings, Defendants.
      3

      Civ. No. 4-82-1329.

      4

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

      5

      March 6, 1984.

      6

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

      7

      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.

      8

      Vincent Jennings, pro se.

      9

      Robert Lewis Brandyberry, pro se.

      10
      MEMORANDUM AND ORDER
      11
      MacLAUGHLIN, District Judge.
      12

      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.

      13

      After careful consideration the Court has decided as follows:

      14

      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.

      15
      FACTS
      16

      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.

      17

      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.

      18

      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.

      19

      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.

      20

      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.

      21

      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]

      22

      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.

      23
      DISCUSSION
      24

      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.

      25

      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.

      26
      A. False Imprisonment
      27

      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:

      28

      1) words or acts intended to confine a person;

      2) actual confinement; and

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

      29

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

      30

      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).

      31

      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.

      32

      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).

      33

      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).

      34

      [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.

      35

      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).

      36

      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:

      37

      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).

      38

      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.

      39

      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.

      40

      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.

      41

      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]

      42

      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.

      43
      B. Section 1985(3)
      44

      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.

      45

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

      46

      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.

      47

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

      48

      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.

      49

      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.

      50
      C. Conclusion
      51

      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?

      52

      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.

      53

      [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.

      54

      [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.

      55

      [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.

      56

      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:

      57

      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.

      58

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

      59

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

      60

      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).

      61

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

      62

      [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:

      63

      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.

      64

      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.

      65

      [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).

      66

      [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").

      67

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

      68

      (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.

      69

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

      70

      [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.

      71

      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).

    • 3.2 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.
      1

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

      2
      Dennis BRIGHT, Plaintiff-Appellant,
      v.
      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.
      3

      Docket No. 119111.

      4

      Supreme Court of Michigan.

      5

      April 9, 2002.

      6

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

      7

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

      8
      PER CURIAM.
      9

      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.

      10
      I
      11

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

      12

      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]

      13

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

      14
      II
      15

      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.

      16
      III
      17

      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.

      18
      IV
      19

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

      20

      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.

      21

      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.

      22

      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).

      23

      [641 N.W.2d 592] CORRIGAN, C.J., and MICHAEL F. CAVANAGH, WEAVER, MARILYN J. KELLY, TAYLOR, YOUNG, and MARKMAN, JJ., concurred.

      24

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

      25

      [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:

      26

      A private person may arrest another:

      27

      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.

      28

      [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.

      29

      [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.

      30

      [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.

      31

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

      32

      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).]

      33

      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.

      34

      [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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