False Arrest and Imprisonment in South Carolina

To bring a claim of false arrest and false imprisonment in South Carolina the pivotal issue is whether or not the underlying arrest, or the arrest warrant, was made on the basis of probable cause.  The plaintiff carries the burden of demonstrating lack of probable cause. Thus, the question becomes, did the arresting officer have probable cause to make the arrest, and if a warrant was required did the warrant sufficiently state facts that establish probable cause needed to make the arrest? 

The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exceptions from liability and damages contained therein. S.C.. Code Ann. § 15-78-40 (Supp. 1998).

The South Carolina Court of Appeals articulates the probable cause test in Anthony Gist v. Berkeley County Sheriff's Department. “The fundamental issue in determining the lawfulness of an arrest is whether there was "probable cause" to make the arrest. Wortman v. Spartanburg, 310 S.C. 1, 425 S.E.2d 18 (1992). "Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests upon such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise." Id. at 4, 425 S.E.2d at 19. "In determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable, prudent and cautious men, not legal technicians, act." Summersell v. South Carolina Dep't of Pub. Safety, 334 S.C. 357, 365, 513 S.E.2d 619, 623 (Ct. App. 1999). The issue of probable cause is a question of fact and ordinarily one for the jury. Wortman, 310 S.C. 1, 425 S.E.2d 18.

If it is found that there is no probable cause for an arrest then one arrested without cause may bring a host of claims under the South Carolina Tort Claims Act against the arresting authority, including but not limited to the following:

  1. False Arrest and False Imprisonment;
  2. Malicious Prosecution;
  3. Negligence;
  4. Assault and Battery
  5. Excessive Force and Illegal Seizure;
  6. Negligent Hiring, Retention, or Supervision of Employees;
  7. Abuse of Civil Rights, Section 1983 Actions.​

False Arrest and Imprisonment

In order to recover under a theory of false arrest in South Carolina the plaintiff must prove: (1) the defendant caused the plaintiff to be arrested; (2) the decision to arrest was intentional; and (3) the arrest was unlawful in that it was done without probable cause. “The essence of the tort of false imprisonment consists of depriving a person of his liberty without lawful justification.” Jones v. City of Columbia, 301 S.C. 62, 64, 389 S.E.2d 662, 663 (1990).

In order to prevail on a claim for false imprisonment, the plaintiff must establish: (1) the defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful. Andrews v. Piedmont Air Lines, 297 S.C. 367, 377 S.E.2d 127 (Ct. App. 1989). False imprisonment is an intentional tort; negligence is not an element. See Jeffcoat v. Caine, 261 S.C. 75, 198 S.E.2d 258 (1973).

Restraint constituting a false arrest may be committed by words alone or acts alone, or by both, and may operate merely on the will of the individual, or by personal violence, or by both. It is not necessary that the individual be confined within a certain area, a prison, or within walls, or that he be assaulted, or even touched. The tort of false arrest does not require an actual injurious touching. It is not necessary that there should be any injury done to the individual's person, or to his character, or reputation. Nor is it necessary that the wrongful act be committed with malice, ill-will, or even with the slightest wrongful intention. Further, it is unnecessary that the act be under color of any legal or judicial proceeding. All that is necessary is that the individual be arrested without probable cause based on the acts and omissions of the defendant. Dorn v. Town of Prosperity (D.S.C. August 6, 2008).

Malicious Prosecution

The elements of a malicious prosecution claim are: (1) institution of judicial proceedings, by the defendant, (2) termination of the proceedings in the plaintiff's favor, (3) malice, (4) lack of probable cause, and (5) damage. Jordan v. Deese, 317 S.C. 260, 452 S.E.2d 838, 879 (1995).

Have you been charged with a crime or arrested without probable cause? If you believe that you have please contact an attorney immediately. Milt Stratos II is a South Carolina lawyer with experience bringing wrongful arrest and false imprisonment claims.  Contact Us today for a FREE consultation.

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