False Imprisonment


False imprisonment is, in simplest terms, illegally restraining someone so that they are not free to move around, or come and go as they please. There are actually very few limitations on the definition of the crime, so that even a seemingly minor or brief restraint can constitute the crime.

False imprisonment is defined by California Penal Code §236. It provides that any illegal depriving of another person's personal liberty constitutes false imprisonment. The entire Penal Code section is only twelve (12) words long. The brevity of the section leads to a very large potential for application in any number of circumstances. It is not always the case, but often when a code section is stated concisely, the way that section is applied is very broad. For example, the section does not place any minimum time requirements, such that even a momentary unlawful deprivation of a person's personal liberty can be prosecuted.

Because the application of the law is so broad, there are quite a few situations that can result in false imprisonment. Something as simple as standing in a doorway to block a person's exit from a room can constitute false imprisonment under the right circumstances. 

What is False Imprisonment:

False imprisonment is a type of crime known as a wobbler. This mean it can be charged as either a misdemeanor, or it can be charged as a felony; depending on the facts and circumstances of the offense.

Misdemeanor false imprisonment involves the unlawful (illegal) confining or restraining of a person against their will, such that their personal liberty is violated by being forced to stay or go somewhere. Deprivation of personal liberty is at the core of the offense, and whenever that is intentionally violated, the crime has been committed. This is true even if the person's personal liberty was only violated for a short period of time.

As with most crimes, the intent of the offender is an essential part of the crime. If a defendant did not intend to violate a person's personal liberty by forcing them to stay or go somewhere, then they did not commit the crime of false imprisonment. However, false imprisonment is what is known as a general intent crime. This means that the offender intended to commit the act or acts which resulted in the false imprisonment. The offender does not need to specifically intend to deprive another person of their personal liberty. They only need to intend to commit the act or acts which have the effect of falsely imprisoning someone.

Felony false imprisonment is much the same as the misdemeanor version, with one added element. To qualify as felony false imprisonment, the intentional act or acts which result in depriving some of their personal liberty must be accomplished with menace, violence, fraud or deceit.

Two of these terms, "menace" or "violence," need a little unpacking, while the other two, "fraud" and "deceit" are fairly self-explanatory.

Violence, as used for purposes of defining false imprisonment means any level of force used beyond what is reasonably needed to physically restrain a person. Any sort of physical restraining of a person involves a certain level of physical force, which can be generally understood as violent. However, for purposes of felony false imprisonment, the term violence is limited to an act or acts which go beyond what is needed to physically restrain a person.

Menace, for purposes of felony false imprisonment, is essentially the threat of physical violence or harm, used to restrain someone through fear or a desire for self-preservation. This threat can be either express or implied. An express threat would be something like, "if you walk away from me, I'm going to kill you," while an implied threat would be along the lines of brandishing a knife or other weapon while blocking a person's exit.

Specific Examples of False Imprisonment:

Misdemeanor False Imprisonment:

  • Grabbing a person by the arm when they are trying to walk away from you;
  • Locking someone in a room, or barricading the only exit to a room; or
  • Tying a person down to a bed or chair, or handcuffing someone to a large, heavy object.

Felony False Imprisonment:

  • Standing between a person and their only exit from a room, brandishing a gun and telling them they are not going anywhere;
  • Beating a person unconscious to prevent them from walking away; or
  • Telling someone if they try to leave, they or a family member will be shot, whether or not it is true.

Making a Citizen's Arrest:

There is a limited set of circumstances where a person may engage in behavior that would generally constitute false imprisonment, but not face prosecution. This, of course, is what's called making a citizen's arrest. So long as the person making the citizen's arrest is acting within the provisions of the penal code which allow for it, they will not be prosecuted for false imprisonment, or in the unlikely event that they are prosecuted; they will have a complete defense.

The provision of the California Penal Code which allows for citizen's arrests is section 837. It provides that a private individual may arrest another person under specific circumstances.

If the person being arrested committed a misdemeanor, the crime must have been committed in the presence of the person making the citizen's arrest. If the arresting person does not observe the misdemeanor being committed, they cannot make the arrest.

For felonies, the person making the arrest does not need to be present at the time the crime was committed. Rather, the arresting person need only have reasonable cause to believe that the arrested person committed a felony, and the felony crime did, in fact, occur. In other words, if the arresting person has reasonable cause to believe the arrested person committed a felony, but it turns out that no felony was actually committed (i.e., the crime was actually a misdemeanor or no crime at all) then the citizen's arrest is not valid, and not protected by the Penal Code. In this circumstance, the arresting person may actually be committing the crime of false imprisonment. 

How Does a False Imprisonment Differ From Kidnapping:

In many ways, the crime of false imprisonment is similar to that of kidnapping. However, there are some important distinctions. While false imprisonment is prohibited under Penal Code sections 236 and 237, kidnapping is prohibited under sections 207 through 210. It is important to understand the differences between the two because while the penalties for false imprisonment can be substantial, the penalties for kidnapping are, in all cases, much more severe. The most prison time a person can be subjected to for false imprisonment is four (4) years, while kidnapping can carry a sentence of life in prison without the possibility of parole.

Both offenses entail taking and holding a person against their will. Both offenses can be accomplished through physical force, or through less direct means such as threat of force or some sort of fraud or deceit. The main difference between the two comes in what happens after a person is confined against their will. If, after a victim is confined by the person committing the offense, the victim is transported a "substantial distance" without the victim's consent; then rather than false imprisonment, the perpetrator has committed kidnapping. Of course, in the case of a kidnapping, in most cases it will start out as false imprisonment, and then move onto kidnapping. So, in the case of a person being prosecuted for kidnapping, they can also be prosecuted for false imprisonment.

What constitutes a "substantial distance" is open to a certain degree of interpretation, and largely depends of the facts and circumstances surrounding a case. That said, a "substantial distance" will generally be found when a victim is transported further than is necessary to falsely imprison them. 

How Does a Prosecutor Prove False Imprisonment:

The elements of the crime of false imprisonment are fairly straightforward for both its misdemeanor and felony iterations. In both cases, the prosecutor needs to prove the following:

  1. The defendant unlawfully and with intent, confined another person (the victim,) or caused them to become restrained or detained; and
  2. The defendant made the victim, against their will, stay somewhere or go somewhere.

The only difference between felony and misdemeanor false imprisonment comes in how the defendant accomplishes the first element. If the confining, detention or restraint of the victim is accomplished through violence, fraud, menace or deceit, then the crime is a felony. if it is accomplished through any other means, it is a misdemeanor.

Penalties For Violating Penal Code Section 236, 237:

For misdemeanor false imprisonment, the penalties can be:

  1. Up to one (1) year in jail; and/or
  2. A fine of up to (not to exceed) $1,000.00; and/or
  3. Up to three (3) years of probation

For felony false imprisonment, the penalties are more severe, they are:

  1. As much as sixteen (16) months in county jail, or two (2) or three (3) years in state prison; and/or
  2. A fine of up to (not to exceed) $10,000.00; and/or
  3. Up to three (3) years probation

For felony false imprisonment, the prison time imposed can actually go as high as four (4) years, but only if the victim was an elder (age 65 or over) or a dependent adult.

Common Defenses to False Imprisonment:

False Accusation:

It is not terribly uncommon, especially in the context of personal relationships for one person to make a false accusation against another. If this happens to be the case, it can be difficult to prove, and may come down to convincing a judge or jury to take your word over that of the alleged victim. It will be up to your attorney to effectively argue that the alleged victim fabricated their story, and their client is innocent.

Lack of Intent:

False imprisonment is a general intent crime. Meaning, that the defendant only needs to intend to commit the acts which resulted in the false imprisonment, but does not need to specifically intend to falsely imprison someone. If, however, the defendant's actions resulted in an imprisonment, but they did not intend to commit those acts, then they cannot be convicted of false imprisonment. An example would be locking a room with a person inside, but the defendant did not know anyone was inside. In that case, there would be no intent to commit the crime.


There are certain activities where people consent to be restrained or imprisoned. The two most common examples are "escape room" activities and bondage. The first is where a group of people are placed in a locked room, and have to figure out how to escape. That is essentially consensual imprisonment, and cannot be prosecuted so long as the person operating the escape room does not go beyond the bounds of what the people engaging in the activity consent to. The other common form of consensual restraint/imprisonment is bondage (sexual) activity. Again, so long as the person binding their partner does not go beyond the bounds of what the bound person consents to (e.g., releasing them after the person sues their "safe word,") they cannot be prosecuted.

Citizen's Arrest:

If a crime is committed in your presence, you have the legal authority to use reasonable means to restrain and detain the perpetrator until law enforcement authorities can arrive and take the person into custody. If the crime is a felony, you do not need to witness the crime being committed, and can restrain the perpetrator using reasonable means. However, if you are mistaken about the fact that a felony was actually committed (i.e., it was a misdemeanor or no crime at all) then you are not protected by the law, and you can be prosecuted for false imprisonment.

Acting in Good Faith - Self Defense, Defense of Others:

If you have a good faith belief that a member of your family or some other person you know or meet poses an immediate and substantial danger of harm to themselves or another person (including you,) you can use reasonable means to temporarily restrain them to prevent that harm. In this case, your good faith belief that substantial harm is imminent must be reasonable under the circumstances.

Actual Case

Stan and Margaret, his wife, were arguing about Stan’s belief that Margaret was texting another man.  Stan grabbed Margaret’s phone and was standing in-between the outside door and Margaret.  There was a second door to the back of the house that Margaret had access to.  The District Attorney charged Stan with false imprisonment in that he was blocking Margaret from leaving through the front door.  A jury found Stan not guilty of false imprisonment when we argued that were a number of ways that Margaret could leave the house if she really wanted to.

 How We can Help:

We at Foos Gavin Law Firm have over 40 years’ experience in criminal defense.  I, David Foos, was a public defender for eight years, and then served as a Judicial Officer on the Sacramento Superior Court, assigned to hear misdemeanor and other cases.  In my 40 years of legal experience I have gained knowledge and fostered relationships that I bring to bear in providing you with the best possible criminal defense.  I will find all the angles and defenses in your case, and work tirelessly to achieve the best possible result for you.  Being investigated or charged with a crime is one of the most stressful situations that one can be in.  I stand ready to be your advocate and your protector in the criminal justice system.  Call our Sacramento criminal attorney for a free consultation at 916-779-3500, or reach me on the web at This email address is being protected from spambots. You need JavaScript enabled to view it..

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