• 2008 - False Arrest and Unlawful Detention by Private Person
  • C-11.40
    • False Imprisonment
    • Tort Liability
    • Tort Liability

  • A private person may arrest and detain another for a public offense. A "public offense" is a misdemeanor, felony, or infraction. An arrest is a detention of a person by means of physical force, or show of authority. Formal words of arrest are not required, but circumstances must exist that would cause a reasonable person to conclude that [he] [she] was under arrest or not free to leave.

     

    The law authorizes and permits a private person to arrest another [for a public offense committed or attempted in the arresting person's presence] [when the person arrested has committed a felony even when not committed in the arresting person's presence] [when a felony has been in fact committed, and the arresting person has reasonable grounds to believe the person arrested to have committed it].

     

    A private person, who is attempting to make an arrest of another, must inform the person to be arrested of the intention to arrest him, and of the cause of the arrest. These obligations are excused, however, if the person to be arrested is then engaged in the commission of the offense, or is pursued immediately after its commission, or flees or forcibly resists the person attempting to make the arrest; or, if the giving of such information would imperil the arrest.

     

    If a private person makes an arrest for the commission of a public offence [he][she] is then obligated to deliver the person arrested to a magistrate or law enforcement officer without unnecessary delay. Unnecessary delay is the failure to exercise reasonable diligence in presenting the person arrested to a magistrate or law enforcement officer. It depends on the facts of each case and what would be reasonable under the circumstances.

     

    A person who is arrested may not be subjected to unnecessary or unreasonable force, nor any greater restraint than necessary for the person's detention.

     

    In determining whether [Defendant] lawfully arrested or confined [Plaintiff], the burden of proof is on [Defendant] to show by the greater weight of the evidence that the circumstances for an arrest by a private person existed.

    • 12.1-23-08.3
    • 12.1-23-09(1)(a)
    • Haggard v. First Nat'l Bank, 8 NW2d 5, 14 (ND 1942)
    • Wishnatsky v. Bergquist, 550 NW2d 394 (ND1996)
  • Notes: Definitions for misdemeanor, infraction, and felony may need to be given. For arrests by law enforcement officers, see generally NDCC Ch. 29-06.