LIABILITY & LEGAL ASPECTS (Lesson 17 of 28)
Immunity for Illegal Detention/False Imprisonment/ False Arrest
Fortunately, the legislature enacted Civil Code section 47 and the California Supreme Court has interpreted the section to provide for a complete immunity (i.e., an “absolute privilege”) from civil lawsuits where the person detained is reported to the police, even if the report was erroneous and the criminal conduct did not occur! Even if the mistake leads to a false arrest, there is immunity from a lawsuit.
In one case, Hagberg v. California Federal Bank (2004) 32 Cal. 4th 39, plaintiff, Lydia Ortiz Hagberg, a Latina, visited a California Federal Bank to cash a check from Smith Barney. She presented her California driver’s license, Cal Fed ATM card, the Smith Barney check, and her Smith Barney account summary to the teller, who was also a Latina. The teller suspected that the check was counterfeit and reported it to her supervisor who immediately telephoned both Smith Barney and the Cal Fed Security manager. She was instructed to contact the police.
The supervisor then contacted the police and when asked about the identity of the plaintiff, the supervisor responded that she appeared “white – maybe Hispanic.” The police immediately arrived, took the plaintiff away from the teller window, had the plaintiff spread her legs for a pat down search, handcuffed her, and placed her under arrest. It was only then learned from Smith Barney that the check was not counterfeit. Plaintiff was released after being detained 20 minutes.
Plaintiff sued Cal Fed for false imprisonment, false arrest, slander, invasion of privacy, intentional infliction of emotional distress, negligence, and race discrimination in violation of the Unruh Civil Rights Act (Civil Code section 51). Cal Fed filed a summary judgment motion arguing that Civil Code section 47(b) provides persons who report suspected criminal activity to law enforcement with absolute immunity from tort liability. (Cal Fed also argued a Federal Statute provided it with immunity, but the court did not address this issue.) The trial court granted summary judgment in favor of Cal Fed, holding that the statutory privilege applied. The plaintiff appealed.
The Court of Appeal affirmed, holding that the reporting of criminal conduct to the police constitutes an official proceeding and Section 47(b) serves the important public policy of assuring free access to the courts. It is intended to “assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” The absolute privilege protects individuals from liability for reporting criminal conduct. Otherwise, there would a “chilling effect” on such communication, which would not be in the public’s best interest.
The Court of Appeal reasoned Civil Code section 47(b) provides an absolute privilege to a communication “concerning possible wrongdoing, made to an official governmental agency, such as a local police department, … if the communication is designed to prompt action by that entity.” With regard to the cause of action for false imprisonment, the court held that plaintiff’s claim was based on defendants’ privileged communications with the police rather than any noncommunicative conduct on defendants’ part (i.e., defendants did not physically detain or falsely imprison plaintiff).
[See, also, Mulder vs. Pilot Air Freight (2004) 32 Cal. 4th 34. Here, plaintiff was a commercial dealer in salvage material, who claimed that he was arrested by the LAPD after defendant, an employee of an air freight company, mistakenly reported to the LAPD that plaintiff was in possession of a flight recorder that had been stolen from the air freight company. Plaintiff was arrested and had to appear in criminal court numerous times until the case was dismissed. The Supreme Court held that the reporting of the case to the police entitled defendants absolute immunity from the civil lawsuit.]
IN ORDER FOR YOU TO OBTAIN IMMUNITY USING THIS PRIVILEGE, THE POLICE MUST ACTUALLY BE CALLED! In both cases, the police were called and the suspect was arrested, albeit on mistaken beliefs. Note also that you are not entitled to immunity from illegal detention and arrest if the police are not called or if the report to the police is knowingly made with malice, knowing it to be a false accusation.
THE IMMUNITY DOES NOT APPLY TO CITIZEN’S ARRESTS. In Kesmodel v. Rand (2004 DJ DAR 7730), — Cal.App.4th —, a tenant of an apartment building sued two other tenants for false imprisonment after they falsely claimed he was a “Peeping Tom” and placed him under citizen’s arrest. This followed a deputy sheriff having been called and who refused to make an arrest as the alleged misdemeanor was not committed in her presence.
The citizen tenants demanded a citizen’s arrest of the other tenant. He was then taken into custody by the deputy and jailed for 12 hours. The district attorney refused to prosecute and the case was dismissed. In the civil lawsuit that followed, a jury awarded the wronged tenant $3,500 in economic damages, $27,000 in general damages (i.e., mental anguish), and $2,000 in punitive damages.
The Court of Appeal affirmed the verdict finding that a citizen’s arrest is “conduct,” not “communication in an official proceeding,” thus providing no immunity for false imprisonment.
The lesson here is that when you make a report to the police and that results in a person’s arrest (for a felony), you are completely immune. If, however, the police do not arrest (either for lack of probable cause for a felony, or a misdemeanor was not committed in their presence), then placing a person under citizen’s arrest is done at your own peril. In other words, you are not entitled to the immunity afforded by Civil Code section 47.