So You Say You Want to be a Vigilante...

We’ve all heard the phrase “legal fiction,” but today I’d like to talk about something else: a legal fantasy. A legal fantasy is something like Bigfoot or the Loch Ness Monster--everyone has heard of it, but [almost] nobody thinks it’s actually real. And the legal fantasy I’m thinking about right now is citizen’s arrest. Though it exists elsewhere, citizen’s arrest feels so quintessentially American. There’s an evildoer in the street doing his evil, and in walks a brave citizen, a John Wayne-type. “Stop,” he says. “I’m making a citizen’s arrest.” And then our quintessentially American hero hands over the evildoer to the local constabulary and peace is restored to the town.

We all know that story, and we all think of it as just that, a story. Yet as we learned with the discovery of the ancient city of Troy in 1870, the thing about fantasies is that sometimes they turn out to be real. And citizen’s arrests are, in fact, real. They happen all the time, in every state and nearly every city in America. Just not in the way people think.

Let’s take a moment to understand what a citizen’s arrest really is. The concept likely dates back to medieval times, when governments were far smaller than today, employing far fewer agents like sheriffs and police officers. And in that setting, community order required that ordinary citizens would, from time to time, be called upon to apprehend a criminal. That detention is key to a citizen’s arrest, the word “arrest” being related to the French word “arrête,” which means “stop!” So it is an arrest, or a detention of a person, committed by a citizen. In this case we mean a private citizen as opposed to a public official, not citizen in the sense of legal immigration status. There’s no doubt that a person with a green card can conduct a citizen’s arrest.

To dig a bit further, let’s look at California’s Citizen’s Arrest statute, CA Penal Code 837:

"a private person may arrest another: (1) For a public offense committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (3) When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it."

So a private person can arrest somebody that has committed a felony, likely in her presence. But private citizens are not trained as law enforcement officers, so what if they get something wrong? What if the person did not commit the felony? What if there was a crime but it was just a misdemeanor? In these circumstances the person conducting the false imprisonment might be in huge trouble, and this is where we get into torts. Because a false citizen’s arrest looks and sounds an awful lot like a false imprisonment. A wrongly-accused person would likely have a cause-of-action against a mistaken would-be hero that conducts such an arrest. And if physical force is necessary to detain the person, assault and battery charges may also apply. Beyond tort liability, the citizen’s arrestor might also face criminal charges such as kidnapping. Perhaps this is why we relegate the concept to legal fantasy status.

But we wanted to know if that legal fantasy status is warranted. So we called the Cambridge Police Department to ask them about the particulars of citizen’s arrests. They did not know much, but they did point us to the one place where citizen’s arrests happen every single day: the shopping mall. Because nearly every day at the mall, somebody is detained for shoplifting. These detentions are usually made by mall security, people dressed an awful lot like police officers but operating with the legal authority of the private citizens described above. Shopping mall citizen’s arrests are distinct from the California statutory definition of citizen’s arrest in that the underlying crimes are often misdemeanors rather than felonies. In this instance, the mall security relies on an exception called the shopkeeper’s privilege.

The Massachusetts Shopkeeper’s Privilege statute says:

“In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant or an innkeeper, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or innkeeper or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person...was committing or attempting to commit larceny of goods for sale...it shall be a defense to such action”

That is, a person making a citizen’s arrest of a shoplifter has an affirmative defense to a tort claim of false imprisonment. So citizen’s arrests are far more common than most people realize, even if they are almost all conducted by still-trained professionals (security guards) and a fairly-narrow class of untrained citizens (shopkeepers). There are likely other groups of people that conduct citizen’s arrests, such as bounty hunters. But the bulk of citizen’s arrests likely come in the context of shoplifting.

It is fascinating to think that this legal fantasy turns out to be a legal reality, although perhaps the increasing prevalence of online shopping and rapid demise of malls will spell the end of citizen’s arrest as we [don’t] know it. And it’s amazing to know that we are all truly empowered by our government to dutifully execute an arrest if presented with the right situation.  But even though we have the right, it’s probably best to leave crime fighting to the professionals. If you don’t and you’re wrong, you just might find yourself on the wrong side of a judgement for false imprisonment.

-Ellis & Acton

The Case of the Ornery Coach

It's the last week of October, and all the traditional rites of fall seem to be in full swing. Pumpkins are making their way onto porches and leaves are [finally] starting to give up for the winter. And in the sports world, Major League Baseball is passing the baton of America's Seasonal Pastime (Non-CTE Division) to basketball. For millions of fans the true essence of basketball is not found in the NBA, where some teams intentionally lose. Instead, the heart of the game can be found in the 352 college campuses that make up the NCAA's top division. But as the season tips off, one of the most celebrated and decorated coaches in the college game's history will not be found on the sidelines. Instead, Rick Pitino, erstwhile head coach of the University of Louisville (and way before that, my beloved BU Terriers), has found himself the most prominent casualty of a bribery scandal sweeping college basketball. 

The Federal complaint hides many identities, but among all the implicated colleges and coaches, none have caught the public's attention more than Louisville and Coach Pitino. The details of Pitino's alleged transgressions are still being uncovered, but at the very least the FBI has claimed that Louisville sponsor Adidas paid $100,000 to induce star recruit Brian Bowen to choose the Cardinals over fellow blueblood programs at Texas, Michigan State, UCLA, and others. There are disputes about the degree to which Pitino was directly involved in the bribery, but it doesn't look good. At the time Bowen surprised the basketball world by choosing his program, Pitino told the press "In my 40-some odd years of coaching, this is the luckiest I've ever been." A bold statement for somebody thought to be "Coach 2" in the FBI's complaint, a person alleged to have directed Adidas to pay Bowen. It's probably also worth noting that Adidas somewhat shadily pays Pitino millions of dollars a year. 

This all seems like a great topic for This Week in Racketeering, but what does it have to do with torts? Well, following his dismissal, Coach Pitino filed a rather extraordinary federal civil complaint against Adidas in the Western District of Kentucky. The complaint alleges that Adidas did, in fact, funnel $100,000 to Bowen in order to secure his commitment to Louisville--but without Pitino's knowledge. In doing so, Pitino claims that "Adidas' outrageous and unlawful actions, and the public disclosure of those actions, have resulted in grave damage to Coach Pitino's public and private standing and reputation, causing him extreme embarrassment, humiliation, and emotional distress." 

It practically goes without saying that this scandal has damaged Pitino's public standing and reputation. But it's still saying quite a lot, given that his program has recently been shown to provide recruits with prostitutes in order to secure their commitment. The more interesting component is the allegation of intentional infliction of emotional distress. The torts-nerds among you will know that, historically, there was a bar on recovery for emotional harm. Among other things, the theory was that emotional harm is difficult to prove and easy to feign. Still, the common law has adapted over the last 100 years to recognize that there are times when emotional harm is significant and should be compensable. 

In our class, we focus on the negligent infliction of emotional distress (NEID), but here Pitino is claiming intentional infliction of emotional distress (IIED), or more specifically the slightly archaic variant, outrage. As he states in his complaint, "Kentucky recognizes the tort of outrage, which authorizes the recovery of damages from one who, by extreme and outrageous conduct, intentionally or recklessly causes emotional distress to another." Pitino states no other causes of action in his suit. 

If that sounds like a potentially weak complaint to you, Pitino's lawyers anticipated that, going to great length to explain why outrage is his only option to right perceived wrongs:

"The tort of outrage is, of course, a gap-filler, meant to apply when no other traditional tort does. And no other traditional tort appears to apply here. Adidas could not have committed an employment-related tort, because it was not Coach Pitino's employer. It could not have committed a negligent tort, because its conduct, and that of its employees, was quite deliberate. It could not have engaged in tortious interference with a contract, because it had no desire to adversely affect Coach Pitino's contracts with his employer or others; on the contrary, Adidas' financial interests were best served by keeping its actions secret, and thus having no effect on Coach Pitino's contracts. It could not have defrauded Coach Pitino, because its fraudulent actions were directed at the University of Louisville, which provided a college scholarship to an ineligible recruit. And it could not be accused of unjust enrichment, because any enrichment it gained was not at Coach Pitino's expense." (Pitino Complaint)

That's basically an entire torts course in a paragraph, listing all the reasons Adidas could not be liable for a laundry list of torts. And so all that's left is outrage, "a gap-filler" whose vagueness is apparently a feature as well as a bug. Once upon a time, Lion of the Law™ William Prosser suggested (perhaps in jest) that Intentional Infliction of Emotional Distress/Outrage be instead called "orneriness." Given the facts of the Pitino case, including his past public dalliances with scandal and alleged role and financial interest in the underlying bribery, orneriness might indeed have been a better label for his suit. This Week in Torts wishes Coach Pitino the best of luck in his future endeavors. 

-Ellis