The ability to go where you please, when you please, is
one of the most widely cherished liberties in modern society, and one
that forms the basis for what most people think of when they think of
the word “freedom.” The idea of being confined without being able to
freely go where you choose is so troubling that it forms the basis of
one of the most serious penalties the law can impose: incarceration in a
jail or prison. The crime of unlawful restraint occurs whenever someone
illegally deprives others of their physical freedom.
Unlawful
restraint happens when one person knowingly and intentionally restrains
another person without that person's consent and without legal
justification. Though state laws differ in how they categorize unlawful
restraint crimes, they all prohibit the same kind of conduct.
- Detention.
Unlawful restraint always involves some sort of intentional detention.
You cannot commit unlawful restraint by accident, and you must intend
for your actions to result in confining someone else. However, there is
no requirement that the victim is physically placed in a cell, secure
building, or other confined area. It's enough that victims believe they
are restrained from taking action or leaving an area. The detention can
result from verbal orders, lies, or physical restraint. Violence or the
threat of violence may also be involved. If only threatened force is
used to confine a victim, the victim must have a reasonable apprehension
or fear of the threatened force.
- Unlawful. You
cannot unlawfully restrain someone if you have the legal authority to
confine the person. However, it is up to a court to determine
lawfulness. So, if you restrain someone believing that you had the legal
authority to do so, and a court later determines you did not have that
authority, you can be convicted of unlawful restraint.
- Time.
There is no minimum time requirement involved in unlawful restraint. If
a victim is confined even for a few moments, this is enough to qualify
as an unlawful restraint.
- Consent. You cannot
unlawfully confine someone who consents to the restraint. The victim
must be an unwilling participant. For example, a security guard that
asks a store customer to accompany him to the store's security area does
not commit unlawful restraint if the person agrees to accompany the
guard voluntarily.
- Escape. The confinement
involved in unlawful restraint must be complete, meaning the victim must
not be able to leave. For example, a person who can leave a confined
area by opening a door or walking away is not confined. However, the
victim must be aware of the reasonable manner of escape and be capable
of acting upon it. So, if the victim believes that attempting to escape
would result in violence or harm because of threatened violence, that
can be enough to make the confinement total even if there is an easy
route of escape.
Unlawful Restraint vs. False Imprisonment vrs. Kidnapping
It's
useful to mention that though state laws often refer to unlawful
restraint as “false imprisonment,” the term “false imprisonment” can
also refer to a civil lawsuit, which is very different than criminal
charges.
When you are charged with a crime, a state prosecutor
files charges against you accusing you of violating a state criminal
law. Being convicted of violating the law means you face fines, prison
time, or other criminal penalties. (See section on “Unlawful Restraint
Penalties,” below.)
On the other hand, if a person sues you for
false imprisonment, and wins, you will not have to face criminal
penalties because you are not being accused of committing a crime. You
may have to pay money damages if you lose a lawsuit, but you do not face
jail time, fines, or other criminal penalties.
Kidnapping is
another related crime. To be convicted of kidnapping, the defendant must
have moved the victim and then restrained him. The amount of movement
need not be great.
Unlawful Restraint Penalties
States
often differentiate between felony and misdemeanor unlawful restraint
crimes. Felony offenses involve the possibility of a year or more in
prison. Felony charges usually apply when the circumstances surrounding
the unlawful restraint exposed the victim to harm or substantial risk of
injury, or involved violence or the threat of violence. Misdemeanor
unlawful restraint usually does not have an element of physical risk to
the victim or any use of violence. However, state laws on unlawful
restraint differ significantly, as do the potential punishments
involved.
- Incarceration. For a misdemeanor
conviction of unlawful restraint, a jail sentence of less than a year is
possible, while felony convictions may impose potential prison terms of
15 years or more. In some situations, such as where the unlawful
detention victim was a child, a sentence of life in prison is possible.
- Fines. Misdemeanor
convictions of unlawful restraint typically involve fines of $1,000 or
less, while felony fines can exceed $5,000 or more.
- Probation. Probation
as a sentence for unlawful restraint is possible, but often only with
misdemeanor charges where the convicted person has not committed
previous crimes. However, even felony unlawful restraint charges may
result in a probation sentence in some situations. Probation usually
lasts at least 6 months, though one-year or longer probation sentences
are common. Someone sentenced to probation must regularly meet with a
probation officer and comply with specific orders imposed by the court,
such as passing regular drug tests and not committing more crimes. If a
person violates the terms of probation, a court may impose a jail or
prison sentence, more fines, or renew the probation term for a longer
period.
Legal Advice
Unlawful
restraint charges are very serious. Even if you've never been convicted
of a crime or believed you were acting legally, unlawful restraint
charges can result in years in prison and substantial fines. If you're
facing unlawful restraint charges, you need legal advice from an
experienced criminal defense lawyer. Only an attorney who can evaluate
your case in light of the the laws of your state can provide you with
competent advice.