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False Imprisonment, Malicious Prosecution, and Defamation

There are several torts that can arise in a premises security context. The most common are claims for false imprisonment, defamation, and malicious prosecution.

False imprisonment is defined as the restraint of one’s liberty without sufficient cause. False imprisonment exists when a person is under reasonable apprehension that, unless he willingly submits, force will be used, and he does submit to the extent that he is denied freedom of action. Significantly, it is not necessary that a person be detained in jail or placed in the custody of an officer. Nor is it essential to prove malice, ill will or wrongful intention. All that is required is a significant restriction of action caused by the store owner.

Claims of defamation most commonly occur in the premises security context when a plaintiff claims that store employees accused him or her of stealing from the store. These types of statements are considered “defamatory per se.” The issues in these cases are whether the statements were made by the store employees; whether the statements were overheard by other people; whether the statements were false; and whether the employee knew the statement was false, or failed to have a reasonable basis for believing the statements to be true.

Malicious prosecution is defined as the institution of criminal proceedings by one person against another, maliciously and without probable cause, if those proceedings ended in a manner favorable to the person prosecuted. Claims of malicious prosecution most commonly occur where a store prosecutes a suspected thief, the suspect is not convicted, and then sues the store for malicious prosecution. A plaintiff must prove that the store acted maliciously to recover. Malice exists where the controlling motive for instituting criminal proceedings is any reason except a genuine desire to see justice done, to enforce the law, or to punish the guilty.

Where a store detains a suspected shoplifter, a Virginia statute provides merchants with a privilege against claims for false imprisonment, defamation, malicious prosecution, or assault and battery, if the store had probable cause to believe that the person had shoplifted. However, a store may not detain a suspect for more than an hour. Further, if a customer activates an electronic surveillance device, and there is a sign notifying customers about the presence of such a device, then the activation of the device will be sufficient probable cause to detain the customer, as long as the store acts reasonably.