Substantial Interference With Liberty

Substantial Interference With Liberty

The knowing-restraint element asks what the actor was aware of, and the next element asks what the restraint did to the victim. Section 212.3 punishes restraint only when it is done "so as to interfere substantially with his liberty," and that clause is the textual anchor for everything in this section.¹ In this setting "liberty" means freedom of physical movement, the ability to go or stay as one chooses. Constitutional doctrine uses the same word more broadly. In Washington v. Glucksberg the Court described the liberty protected by the Due Process Clause as reaching beyond freedom from physical restraint to interests such as marriage, bodily integrity, and the upbringing of children.² The offense here uses only the narrow, physical sense, so an argument that the victim's autonomy or dignity was offended does not help the prosecution unless the victim's physical freedom to leave was actually cut off.

The adverb "substantially" screens out restraints that are real but slight. Many of the illustrations in the subsections below come from tort decisions about confinement. They show how courts reason about when a person is being held, but they are not Code authority, and the Code's word "substantially" works as an added filter on top of whatever the tort concept of confinement would demand.³ The statute gives no numerical formula for how much interference is enough. The analysis therefore proceeds by asking a short series of questions about the victim's situation, and each question gets its own subsection.

The filter exists because criminal law should not turn every blocked path into an offense. People obstruct one another constantly and harmlessly: a crowd fills a doorway, a driver stops in a lane, a relative stands in a hallway to finish a conversation. If every such obstruction counted, the misdemeanor would reach ordinary social friction, and whether a given person was prosecuted would depend on the prosecutor's mood rather than on the conduct. Tying the offense to a substantial loss of the ability to leave removes that discretion and reserves liability for conduct that actually deprives someone of liberty. A threshold with reasonably clear lines also lets people and courts judge in advance which conduct falls inside it, which is a benefit that a vague standard cannot provide.

The pair differs in a single variable, whether the victim kept a reasonable way to go elsewhere, and that variable is what the first question below develops. The second question asks how the restraint was accomplished, since force, threats, and a show of authority can each hold a person in place, and a barrier does not have to be visible to work. The third question asks where and for how long, because confinement presupposes a bounded area, and the size of that area and the length of the holding bear on how substantial the interference is. The sequence begins with the line between confinement and mere obstruction.

Confinement Versus Obstruction

The first question under the liberty element is whether the victim was held or only blocked. A person is confined when the actor compels the victim to remain where the victim does not wish to remain, or to go where the victim does not wish to go.⁵ Preventing someone from reaching one particular place does not fit that description when another route stays open, because the victim's freedom of movement has been cut off in one direction and left intact in the others.⁶ The Code's requirement that the restraint "interfere substantially with his liberty" sets the criminal threshold.⁷ The decisions in this subsection come from tort law and so are illustrations rather than Code authority. They show how courts decide whether a person was held or merely hindered, and the Code's added requirement of substantiality asks at least as much.

The standard is demanding: forcing a person to take the long way around does not meet it, while leaving no way out of where the person is, even no way out of a large space, does.⁸ The reason for drawing the line there is that a blocked path and a held body injure different interests. A person who can walk away by another reasonable route has lost a convenience, and perhaps a right of way, but still has the freedom to leave that a restraint offense protects. If every blocked path counted, the offense would have no boundary, because people obstruct one another constantly and harmlessly. A bright line between confinement and obstruction also gives courts a rule they can apply and gives everyone else advance notice of what conduct is covered.

The line has old roots. In Bird v. Jones, decided in the English King's Bench in 1845, the plaintiff wanted to walk down a public street to watch a boat race, and the defendant blocked the way but let him retreat the way he had come. The court held that so long as the plaintiff was free to go, false imprisonment could not be brought, although he might sue on a different writ for interference with his right of way.⁹ On that reasoning, imprisonment means restraint within limits set by another's will, which is more than the loss of the power to go wherever one pleases.¹⁰ Lord Denman, the Chief Justice, dissented. He asked why it matters that a person is permitted to do something else when the person is prevented from doing what the person has a right to do, and he observed that someone locked in a room is imprisoned even though a window, a stretch of water, or a circuitous route might offer a way out.¹¹ The dissent's examples point to the limit that qualifies the majority's line, and that limit is developed below.

Store examples show the majority's line at work. A shopkeeper who bars the door and refuses to let a would-be customer enter has not confined that person, who remains free to go anywhere else. A shopkeeper who blocks an exit while the customer is inside has not confined the customer either if some reasonable way out remains, so a customer who knows that a side door is open is frustrated rather than held.¹² The idea reaches beyond stores, because the offense concerns being kept in. Keeping a person out of a place is not confinement even when the person has a right to be there, and even when the place is the person's own home. A landlord who changes the lock on a tenant's apartment may have acted wrongfully, and the tenant may have other claims, but the lock has not confined the tenant.

The open route defeats confinement only while it is a reasonable one that the victim knows about. The limit has a straightforward reason. If any theoretical exit defeated confinement, an actor who locks someone in an upper room could avoid liability by pointing to the window, and the victim would have to risk injury or humiliation to prove that the restraint was real. The law therefore asks what a reasonable person could be expected to do. A drop of ten feet from a window is not a reasonable means of escape, although a window close to the ground may be one, and jumping from a moving car, even a slow one, is not reasonable either.¹³ A person also need not take a route that would offend a reasonable sense of decency or personal dignity.¹⁴ A ladder pulled away from a treehouse leaves only a jump that risks injury, so the person stranded above is confined.¹⁵

A guarded door produces the same result when it is the only door. In Buckel v. Rodrigues a security guard stood between a grocery clerk and the only door of the room where she was questioned and told her that he would decide whether she went to jail that evening, and a jury imposed liability on the security-services owner who joined in the three-hour detention.¹⁶ With no other exit, the clerk had nothing reasonable to take, and the case stands at the opposite pole from the open side door.

One fact moved the answer, which is whether a reasonable route out existed. In the first version the customer lost only a preferred exit. In the twin, the remaining route demanded a risk of injury that the law does not require anyone to accept.

Property offers a useful contrast. An illustration loosely based on Warrem v. Parrish involves station owners who told a car owner that they would keep his car. He could not drive home, yet nothing stopped him from going home some other way or going anywhere else, so he was not confined, and his remedies lie in claims such as conversion of the car or infliction of emotional distress.¹⁷ A store manager who grabs a customer's purse and tells the customer to stay while a theft is investigated stands differently, because the purse is taken to coerce the customer into staying, and the restriction on leaving works through the property.¹⁸ What matters is what the retained property is used to do. Withholding a possession leaves the person free to go, while holding it as leverage to compel staying makes departure costly enough to confine. The next subsection takes up how force, threats, and shows of authority turn pressure into confinement.

Students lose this issue when they treat a blocked route as the confinement without asking what other way out remained. Because the line turns on whether the victim had somewhere reasonable to go, the facts are best tested in order.

Force, Threats, and Shows of Authority

The preceding subsection asked whether the victim had a reasonable way out, and this one asks how the actor closed the exits. Three kinds of conduct do the closing, taken here in order: a physical barrier or direct force, a threat, and a show of authority. Section 212.3 reaches a restraint only when it is done "so as to interfere substantially with his liberty," and each kind of conduct matters because it can leave the victim without a free choice to go.²⁰ The decisions below are tort cases, so they illustrate the concept of confinement and are not Code authority, but they show what it takes to hold a person who has not been handcuffed. The law reaches beyond handcuffs because a person who submits to an apparent power is as effectively held as one who is seized, and it does not require the victim to resist and risk injury to prove that the power was real.

Begin with the barrier that does not look like one. In Whittaker v. Sandford a woman who had decided to leave a religious sect sailed home on its leader's yacht after he repeatedly assured her that she would not be detained, and when the yacht reached port he refused to furnish a boat and kept her aboard for nearly a month.²¹ The trial court told the jury that the restraint had to be physical rather than mere moral influence, but that it need not involve any hand laid on her, and the Maine court approved that instruction by comparing the yacht to a room. A person who without right turns the key in a door has committed the simplest form of imprisonment, because the walls and the locked door are physical impediments to escape. The court reasoned that the boat was the key, that by refusing it the owner turned the key, and that the "impassable sea is the physical barrier."²² The lesson is that a barrier is physical whenever it stands between the victim and the only way out, whether it is a wall, a lock, or open water, and that the actor's part in maintaining it can consist wholly of withholding the one means of leaving.

Force and barrier can also operate together. In Big Town Nursing Home, Inc. v. Newman a 67-year-old retired printer was admitted to a nursing home, and when he decided to leave, employees refused him the telephone, locked up his clothes, and caught him as he walked out and brought him back by force.²³ He was then locked in a wing of the home and strapped into a restraint chair, and he tried to escape five or six times and was caught and returned each time, until he finally got away after about fifty-one days. The Texas court of civil appeals described false imprisonment as the direct restraint of one person's physical liberty without adequate legal justification and found ample evidence to support the jury's finding that the plaintiff had been imprisoned.²⁴ With hands-on force and locked doors, the means of confinement were beyond dispute, and the only live question in such a case is whether the restraint was justified, which the unlawfulness element takes up later.

A threat can hold a person as firmly as a lock, and it does not have to be spoken. A victim who submits to an apprehension of force that a reasonable person would draw from the actor's conduct is confined even though no force is used and none is expressly threatened, so a customer accused of theft in a store aisle and warned of physical harm if she leaves is held even when the door stands open.²⁵ The threatened harm need not fall on the victim's own body. Submitting to a threat against the victim's property or against a member of the victim's family can also be a reasonable response,²⁶ and a Restatement illustration treats a threat to shoot a person's child if the person leaves the room as duress that effects an imprisonment.²⁷ The previous subsection's contrast between the seized purse and the withheld car shows where property fits: taking an item to compel the owner to stay confines, while merely keeping it leaves the owner free to go.²⁸ The law counts these threats partly for the reason given above, since the victim should not have to test the threat by risking injury. It also removes an incentive. An actor who wants to hold someone without leaving evidence of force will always prefer to imply the consequence, and if only explicit violence counted, the most careful actor would never be liable.

A show of authority works the same way when the actor presents compliance as compulsory. In Coblyn v. Kennedy's, Inc. an employee stopped an elderly shopper just as he stepped out of the store, firmly grasped his arm, and told him he had better go back and see the manager, while a second employee stood at his side and other people stared.²⁹ The Massachusetts court held that the question of restraint was properly left to the jury, reasoning that a demonstration of physical power that to all appearances can be avoided only by submission imprisons as effectively as force would, and that given the shopper's age and heart condition, a grip on his arm, and an employee at his side, he could hardly be expected to do anything but comply with what the employee called a request.³⁰ The defendant need not be an officer for the reasoning to apply: a railroad conductor who told a passenger hurt in a fall that the law required him to remain and fill out an accident statement was held liable in Whitman v. Atchison, T. & S.F.R. Co., and a filling-station attendant who asserted authority to detain a suspected thief faced a jury verdict in Daniel v. Phillips Petroleum Co.³¹ The guard in Buckel v. Rodrigues who positioned himself at the only door and told a clerk he would decide whether she went to jail that evening was asserting power of the same kind.³² The variable that matters is whether the actor presented compliance as compulsory. A store detective who tells a customer that she must come with him has probably asserted enough authority, but one who answers "no" when the customer asks whether she must come has confined no one.³³

Every one of these means has the same limit: pressure is not compulsion. A person who stays only to avoid an embarrassing scene has made a choice, and the same is true of a person who stays to clear a name, to resolve a dispute, or to avoid being reported to the police.³⁴ Employment cases apply the point consistently. An employee told that leaving the interrogation room will cost the job remains free to leave, and even a threat to call the police has not been enough, although an interrogator who repeatedly puts hands on an employee who rises to go has restrained that employee.³⁵ The reason is that these are pressures the defendant has a right to use, and choosing to remain in the face of them generally is not confinement.³⁶ An employer may discharge and may call the police, and a person who weighs those lawful consequences and decides to stay is choosing among options and is not yielding to a barrier or to force. If such choices counted, every awkward conversation and every workplace inquiry would fall within a restraint offense. Students lose this issue when they treat staying to clear one's name as proof of confinement. The customer who stays because physical restraint or the loss of a purse will follow if the customer leaves is confined, and the customer who stays because the police may be called is not.

Bounded Area and Duration

The previous subsection asked how an actor closes a victim's exits. This one asks what the closing produces, which is a limited area held for some stretch of time, and each of those two features carries its own rule. The tort concept of confinement requires that the victim's freedom of movement be limited in all directions, so a roadblock on the one route the victim wants to take does not qualify.³⁹ The requirement follows from what confinement means, which is being held within limits fixed by a will other than one's own. A restriction that leaves every other direction open sets no limits around the person. It marks a line the person may not cross, and that is the difference between a person kept from one place and a person held in one.⁴⁰

Because the harm lies in the loss of freedom to move, the area does not need walls. A person compelled to stay where he is on an open hillside with a view for miles is confined within a bounded area, since the area is simply the spot to which the compulsion confines him, and the open sky does nothing to lighten the compulsion.⁴¹ The area may also move. A victim forced into the trunk of a car is confined even though the space travels, and a victim forced to go where the actors direct, as in a carjacking, is confined for the same reason.⁴² The indignity of being held at someone else's command does not shrink because the surroundings are spacious.

The harder cases involve large areas, because enough size turns confinement into exclusion. The Restatement's comment on the area of confinement recognizes that the area may be large and need not be stationary, and it leaves the line between confinement within an area and exclusion from another area to the circumstances of each case and to the judgment of the court and jury.⁴³ Its illustration shows the confining side of that line: a person restrained by an invalid process within prison limits that coincide with the boundaries of a considerable town has been confined.⁴⁴ The decisions in the tort cases run on both sides of the line at larger scale. One federal court of appeals found Taiwan too spacious to be a bounded area, another suggested that Illinois could be a prison, and an Alaska court allowed that preventing a plaintiff from leaving Barrow could be false imprisonment.⁴⁵

The law draws a line at all because confinement is a concept of limits. If the limits recede to the edge of the habitable world, every ban on entering a place becomes an imprisonment, and the word no longer separates holding a person in from keeping a person out. That explains why a threat of harm if a person ever goes into outer space confines no one, and why wrongfully excluding a person from the United States is not false imprisonment even though the person could be said to be confined to the rest of the habitable world.⁴⁶ At the other end, a probation officer who tells a probationer that bail bondsmen will hurt him if he leaves the city has probably confined him, because the threat presses him back into a bounded area however large it is.⁴⁷ No mileage figure marks the boundary, so an answer should treat size as one of the facts that decide whether the restriction looks like being held in or being kept out.

Duration works differently. Under the tort, confinement counts no matter how short it lasts, provided it was neither consented to nor privileged and the person was conscious of it.⁴⁸ A person held for seven minutes in the open therefore has a tort claim, and the brevity bears on the amount of damages and not on liability.⁴⁹ The wrong lies in overriding a person's will to leave at all, and a damages award can be scaled to the length of the hold, so the tort has no need to screen short holds out at the liability stage.

The Code does not adopt the tort's indifference to duration as its own. Section 212.3 reaches a restraint only when it is done "so as to interfere substantially with his liberty," and that wording makes degree a separate question of proof.⁵⁰ A criminal offense needs a filter of this kind because the tort concept of confinement is broad enough to cover a stranger's grip on a sleeve held for a few moments in a crowded hallway, and a misdemeanor sanction is a heavier response than a damages award that can be adjusted to the harm. The facts that feed the filter are the ones this subsection has been sorting: how long the hold lasted, how large the area was, and how completely the victim's movement was restricted within it. The same variables shaped the outcome in Whittaker v. Sandford, where the passenger on the yacht had freedom of movement aboard but was held to be imprisoned while she was denied a boat to shore, and her damages were reduced to reflect that relative freedom.⁵¹ The Code's wording supplies the question and not a stopwatch, so an answer should argue substantiality from the facts of the stem and should not announce a minimum number of minutes as though the Code set one.

Students lose this issue when they treat the tort's indifference to duration as settling the Code's substantiality element. The tort answers whether confinement occurred, and the Code asks a second question about how serious the interference was. A short hold that satisfies the first can therefore still be argued against under the second, and a long hold that satisfies both still needs the element stated and applied.