CURRENT CASE LAW
To establish this cause of action the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged (Restatement, 2d, Torts, s 35; but see Prosser, Torts (4th ed.), s 11, which rejects the requirement *457 that the plaintiff must be conscious of the confinement). The great weight of authority, including New York, recognizes the rule that neither actual malice nor want of probable cause is an essential element of an action for false imprisonment (Marks v. Townsend, 97 N.Y. 590; Malice and want of probable cause as element or factor of action for false imprisonment, Ann., 19 A.L.R. 671; Ann., 137 A.L.R. 504; 32 Am.Jur., False Imprisonment, s 27). This is in direct contrast with the elements comprising a malicious prosecution action. Broughton v. State, 37 N.Y.2d 451 (1975)
The tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation (Prosser, Torts (4th ed.), s 119; False imprisonment; liability of private citizen for false arrest by officer, Ann., 21 A.L.R.2d 643). The essence of malicious prosecution is the perversion of proper legal procedures. Thus, it has been held that some sort of prior judicial proceeding is the Sine qua non of a cause of action in malicious prosecution (Raschid v. News Syndicate Co., 265 N.Y. 1, 191 N.E. 713). Such a judicial proceeding may be either an evaluation by a Magistrate of an affidavit supporting an arrest warrant application, or an arraignment or an indictment by a Grand Jury. The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice (Prosser, Torts (4th ed.), s 119). Where the plaintiff institutes a malicious prosecution action he must plead the lack of probable cause (Malicious Prosecution—Probable Cause, Ann., 14 A.L.R.2d 264). A contrary rule would be against public policy as tending to discourage prosecutions for crime or the vindication of civil rights. Despite the clear and fundamental differences between malicious prosecution and false imprisonment, the concepts are easily intermingled in the arrest situation. Broughton v. State, 37 N.Y.2d 451 (1975)
Distinction Between Malicious Prosecution and False Arrest
The distinction between false imprisonment and malicious prosecution in the area of arrest depends on whether or not the arrest was made pursuant to a warrant. As noted in the Restatement, 2d, an unlawful detention gives rise to a cause of action for false imprisonment ‘except where the confinement was by arrest under a valid process issued by a court having jurisdiction’ (Restatement, 2d, Torts, s 35, comment A; Prosser, Torts (4th ed.), s 11). When an unlawful arrest has been effected by a warrant an appropriate form of action is malicious *458 prosecution. This distinction is critical not only because it affects the allegations and proof but also because it brings the prima facie rule into operation.
Essentially this rule recognizes the prima facie validity of actions where there has been a judicial evaluation. Accordingly, the Magistrate's consideration of the arrest warrant application will generate a presumption that the arrest was issued **315 on probable cause. However, this reasoning is not applicable where the arrest is made without a warrant. Broughton v. State, 37 N.Y.2d 451 (1975)
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THE LEGAL REQUIREMENTS IN THE STATE OF NEW YORK
REGARDING AN ACTION FOR FALSE ARREST, IMPRISONMENT
AND/OR MALICIOUS PROSECUTION
False Arrest or False Imprisonment
The action for false imprisonment/arrest is derived from the ancient common-law action of trespass and protects the personal interest of freedom from restraint of movement. Whenever a person unlawfully obstructs or deprives another of his freedom to choose his own location, that person will be liable for that interference (Restatement, 2d, Torts, s 35, comment H).
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