Unlawful Restraint

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 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.

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