A. [§ 3.5] Privileges Defendant May Assert

• Jurisdiction: Maryland

A. [§ 3.5] Privileges Defendant May Assert

In false imprisonment cases, the defendant may assert one of several statutory or common law privileges against the plaintiff. If the defendant is a merchant, neither the merchant nor the merchant's agents or employees are liable civilly for false imprisonment if they had probable cause to believe that the plaintiff committed the crime of theft of the merchant's property. Md. Code Ann., Courts and Judicial Proceedings II § 5-402 (2020 & Supp. 2021) (hereinafter Cts. & Jud. Proc. I or II § ___); Silvera v. Home Depot U.S.A., Inc., 189 F. Supp. 2d 304 (D. Md. 2002) ("A retail merchant with probable cause, however, has a complete defense to false imprisonment."); see also MPJI-Cv. 15:8(a). "Probable cause exists where a merchant has 'a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.'" Holmes v. Westfield Am., Inc., No. CV DKC 17-2294, 2019 WL 1200523, at *5 (D. Md. Mar. 14, 2019) (quoting Banks v. Montgomery Ward & Co., 212 Md. 31, 39 (1957)); see also § 1.48 Citation of Unreported Opinions.

Similarly, a property owner is privileged to detain a person to prevent theft or recapture property if the property owner believes that the plaintiff has taken his or her property unlawfully. See Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970); General Motors Corp. v. Piskor, 27 Md. App. 95, 340 A.2d 767 (1975), aff'd in part and rev'd in part, 277 Md. 165, 352 A.2d 810 (1976); MPJI-Cv. 15:8(c). This privilege is exercised at the property owner's peril, however, and if the plaintiff does not unlawfully have any of the property owner's property in his or her possession, the property owner is liable for false imprisonment. Great Atl. & Pac. Tea Co., 256 Md. 643, 261 A.2d 731 (1970) (citing McCrory Stores Corp. v. Satchell, 148 Md. 279, 129 A. 348 (1925)); see Caldor, Inc. v. Bowden, 330 Md. 632, 625 A.2d 959 (1993) (reiterating that probable cause is an affirmative defense to an action for false imprisonment); see also Cts. & Jud. Proc. II § 5-402 (creating the defense of probable cause for merchants in false arrest, false imprisonment, slander, and malicious prosecution actions).

If the plaintiff does not unlawfully have any of the property owner's property in his or her possession, the private party may incur liability for false imprisonment by wrongfully detaining an individual while waiting for the...