3.20F FALSE IMPRISONMENT (FALSE ARREST) model jury charge

Civil Model Jury Charge 3.20   F.      Shoplifting (N.J.S.A. 2C:20-11) FALSE IMPRISONMENT (FALSE ARREST) model jury charge

        

         It is the law of this State that a law enforcement officer, or a special officer, or a merchant, who has probable cause to believe that a person has willfully concealed unpurchased merchandise may, for the purpose of attempting to recover the merchandise, take the person into custody and detain him/her in a reasonable manner for not more than a reasonable time.

         So, in deciding whether plaintiff was falsely imprisoned, there are two decisions you are going to have to make.

         The first is that plaintiff must prove, by the greater weight of the evidence, that defendant intentionally detained or restrained plaintiff in his/her personal liberty or freedom of movement by taking him/her into custody.

         The second, assuming you find that defendant did intentionally restrain plaintiff by taking him/her into custody, involves defendant's claim that he/she had probable cause to believe that plaintiff willfully concealed unpurchased merchandise; that the merchandise could have been recovered by taking plaintiff into custody; that plaintiff was taken into custody in order to try to recover the merchandise; and that plaintiff was detained in a reasonable manner only for a reasonable time.

         Probable cause in this regard means that the facts and circumstances known to the officer or merchant were those which would lead a reasonably cautious person to believe that plaintiff had willfully concealed unpurchased merchandise, and that he/she could attempt to recover the merchandise by taking plaintiff into custody and control.  Probable cause must be more than mere conjecture or unfounded suspicion.

         Willfully means conduct which is intentional and knowledgeable.  If plaintiff meant to conceal unpurchased merchandise and was aware that he/she was concealing the unpurchased merchandise, then his/her conduct was willful.  The fact that unpurchased merchandise was found concealed upon his/her person or among his/her belongings is evidence for consideration by you, from which you may draw an inference of willful concealment, although you are not required to do so.  If you make that inference, it becomes a factor which remains in this case for your consideration together with all of the other facts in the case.

         A detention for a reasonable time and in a reasonable manner means the amount of time and the manner that a reasonably cautious person under the circumstances would take or use in attempting the recovery of the unpurchased merchandise by placing a person into custody.

         The reasonableness of the time and manner of detention would be affected by the type and size of object allegedly concealed, the cooperation or the lack of cooperation of the person detained in effecting the recover, the place and manner in which he/she was detained, and any other factors that you might think had a bearing on the reasonableness of the time and manner of detention.

         If you find that plaintiff was intentionally restrained or confined and that the defendant lacked probable cause either to believe that the plaintiff had willfully concealed unpurchased merchandise or that the defendant could attempt to recover such merchandise by taking plaintiff into custody; or that defendant took the plaintiff into custody in an unreasonable manner or for an unreasonable time, then you must conclude that the detention was unlawful, and you should find that there was a false imprisonment.

         If you believe that the plaintiff had willfully concealed unpurchased merchandise and that he/she could attempt to recover that merchandise by taking the defendant into custody, and that the defendant took the plaintiff into custody for this purpose and that he/she detained the plaintiff in a reasonable manner for a reasonable time, then you must find that the detention was lawful.  This would mean that there was no false imprisonment.

[go on to Damages (False Imprisonment False Arrest)), Charge 8.47C]

Note TO JUDGE

Recent legislation in the sensitive area of shoplifting has further extended the citizen's authority to arrest where he/she is a merchant or the employee of a merchant.  N.J.S.A. 2C:20-11(e) states:

A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he/she can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him/her in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.

Any law enforcement offer may arrest without warrant any person he/she has probable cause for believing has committed the offense of shoplifting as defined in this section.

A merchant, who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

N.J.S.A. 2C:20-11(d) further presumes:

                 

Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

Instructions of the court should not include phrase "prima facie" in speaking of evidential impact of proof of possession (gambling paraphernalia).  State v. Ruggiero, 41 N.J. 4 (1963).

3.20E FALSE IMPRISONMENT (FALSE ARREST) model jury charge

Civil Model Jury Charge 3.20     E.      ARREST WITHOUT WARRANT FOR DISORDERLY PERSON'S OFFENSE OR BREACH OF PEACE FALSE IMPRISONMENT (FALSE ARREST)  

       1

         It is the law of this State that a person--whether a private citizen or a police officer — may arrest another person without a warrant if the arrested person has [committed what is called a disorderly person's offense] [violated a municipal ordinance involving a breach of the peace] in the arresting person's presence and if the arrested person is then taken to a judge or court clerk located in the county where the arrest took place without any unnecessary delay.

         The offense for which it was alleged that the defendant arrested the plaintiff was [a disorderly person's offense] [a violation of a municipal ordinance involving a breach of peace].  This is an offense for which an arrest may be made without a warrant.

         So, in deciding whether plaintiff was falsely imprisoned, there are two decisions you have to make.

         The first is that plaintiff must prove, by the greater weight of the evidence, that defendant intentionally detained or restrained plaintiff in his/her personal liberty or freedom of movement by arresting him/her.

         The second, assuming you find that defendant did intentionally restrain plaintiff by an arrest, involves defendant's claim that he/she had a right to make the arrest and that, after the arrest, plaintiff was taken before a judge or court clerk to obtain a warrant without any unnecessary delay.

[Here discuss facts of arrest and detention].

         If you find that there was an arrest, then defendant must prove to you by the greater weight of the evidence that the offense, for which the arrest is said to have been made, was committed in defendant's presence.  Even if you find that the offense was committed in the defendant's presence and, because of that, he/she arrested the plaintiff, you still must consider whether he/she restrained the plaintiff only for a reasonable period of time until the defendant could bring him/her to a judge or court clerk or whether he/she confined the plaintiff for a length of time that was unnecessary under the circumstances.  A reasonable time for confinement under the circumstances is the time that an ordinarily cautious person would take to bring the plaintiff before a judge or court clerk in the situation that faced the defendant.  The reasonableness of this time would be affected by the availability of the judge or court clerk, the location of the arrest, the time of day or night, the problem of confining the plaintiff, available means for reaching the judge or court clerk and any other factors that you might think had bearing on the amount of time.  If the defendant imprisoned the plaintiff for an unreasonable time, then even though the original arrest was proper, the unreasonable delay would be false imprison­ment.  If the arrest was proper and the confinement reasonable according to the rules I have explained, then you must find for the defendant.  But if you find that there was a confinement, and you find that either there was no right to make the arrest or that there was an unnecessary delay in bringing plaintiff before a local judge or court clerk, then you must find for the plaintiff.

                  [go on to Damages (False Imprisonment), Charge 3.14G]

NOTE TO JUDGE

The right of law enforcement officers to arrest without a warrant exists when a felony has been committed in his/her presence or when he/she has a reasonable basis to believe that a felony is being or has been committed, and when he/she has a reasonable basis to believe that the person to be arrested is committing or has committed the felony.  State v. Doyle, 40 N.J. 320 (1963).  See also State v. Crawley, 90 N.J. 241 (1982).  A felony corresponds to a crime for which a person may be incarcerated for more than one year in a State prison as indicated supra.

The authority for a law enforcement officer's warrantless arrest for offenses of lesser gravity than a crime is the same as for the citizen as prescribed by the statutes quoted above.  An officer may make a warrantless arrest for a disorderly persons offense supra.  he/she may also arrest a shoplifter or detain a person whom he/she reasonably believes is willfully concealing unpurchased merchandise.  N.J.S.A. 2C:20-11, supra.

A law enforcement officer further has the right to make a warrantless arrest when he/she observes a violation of the motor vehicle laws.  N.J.S.A. 39:5-25.  And he/she may make reasonable detention pursuant to his/her administration of these laws.  See Atty. Gen. F.O. 314 (1958); Pine v. Olzewski, supra.

A police officer may not only apprehend an individual for committing a disorderly persons offense but may also apprehend that individual for violating a municipal ordinance involving a breach of the peace offense.  An arrest without a warrant for a violation of a municipal ordinance may be made where the offense is committed upon view of the officer and the offender must be either a disorderly person or have committed a breach of the peace.  See State v. Hurtado, 219 N.J. Super. 12 (App. Div. 1987), reversed o.b., 113 N.J. 1 (1988).

Even when an arrest is justified, these common law and statutory rights are not licenses to exercise an unlimited detention.  A law enforcement officer may not detain a person for an unreasonable time, after arrest, without taking him/her before the nearest magistrate.  Cannon v. Krakowitch, 54 N.J. Super. 93 (App. Div. 1959).

A private citizen has the same duty as a law enforcement officer to take the arrested party before a magistrate within a reasonable time.  See State v. Ferraro, 81 N.J. Super. 214 (Cty. Ct. 1963); Nelson v. Eastern Airlines, Inc., 128 N.J.L. 46 (E. & A. 1942); Jackson v. Miller, 84 N.J.L. 189 (Sup. Ct. 1913); N.J.S.A. 2A:169-3.

If the arrest by the law enforcement officer is made with a warrant based on proper complaint being made and a hearing held before a magistrate, then an action for false arrest cannot be maintained.  Gierman v. Toman, 77 N.J. Super. 18 (Law Div. 1962); Baldwin v. Pt. Pleasant Beach and Surf Club, 3 N.J. Super. 284 (Law Div. 1949).

It is interesting to note that even if the arrest should prove illegal, a private citizen has no right to use force to resist arrest against one he/she knew or had reason to know was an authorized police officer engaged in the performance of his/her duties.  State v. Koonce, 89 N.J. Super. 169 (App. Div. 1965).  See also State v. Lawrence, 142 N.J. Super. 208 (App. Div. 1976).  In such a situation, a defendant law officer may be able to avail himself/herself of a counterclaim for assault and battery.