False imprisonment in the second degree is defined in Nebraska Revised Statute 28-315. The statute states that a person commits false imprisonment in the second degree if they knowingly restrain another person without legal authority.
Are There Exceptions to This?
First, keep in mind that the prosecutor must prove every element beyond a reasonable doubt to obtain a conviction. This means the prosecutor bears the burden of proving the accuser was actually restrained and that the accused knowingly restrained the accuser.
However, even if the prosecutor proves her case, there is an affirmative defense to the charge of false imprisonment in the second degree which generally applies to businesses. This means that under certain circumstances outlined in the statute, a person may not be guilty of false imprisonment even though they detained another individual without legal authority. State lawmakers kept in mind situations where a non-law enforcement officer was required to restrain another person for reasons of theft or criminal actions. However, one must prove the existence of certain legal criteria to establish a defense.
What are the Defenses for Being Charged with Second-Degree False Imprisonment in Nebraska?
As with all criminal cases, the first defense most lawyers consider is whether the government failed to prove any element of the offense beyond a reasonable doubt. Perhaps the accuser is falsely claiming they were restrained. There may also be a defense that even if the accuser was restrained, the accuser was not restrained by the accused but rather by someone else. There may also be a defense that the accused did not knowingly restrain the accuser.
Even if the prosecutor proves every element beyond a reasonable doubt, the defendant may still have an affirmative defense. To successfully establish an affirmative defense against charges of second-degree false imprisonment in Nebraska, one must prove certain conditions existed that would justify the restraint. Per Nebraska Revised Statute 28-315, it shall be an affirmative defense if:
- The person restrained was on or in the immediate vicinity of the premises of a retail mercantile establishment and they were restrained for the purpose of investigation or questioning as to the ownership of any merchandise.
- The person was restrained in a reasonable manner and for no more than a reasonable time.
- The person was restrained to permit investigation or questioning by a police officer, or by the owner of the mercantile establishment, their authorized employee, or agent; and
- The police officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft of merchandise on the premises.
Consider the example of the business owner who witnesses someone commit theft and restrains that person until the police arrive. The first condition the business owner must prove is that the person was restrained in the immediate vicinity of the store. This means that the business owner cannot chase after the thief and restrain him at another location.
Second, the business owner may only restrain the thief for a reasonable manner and for a reasonable amount of time. What constitutes a “reasonable” manner and “reasonable” length of time are decisions for the court. However, restraining the thief by threatening them at gunpoint would probably be unreasonable in manner.
Third, the business owner must restrain the thief for the purpose of investigation into the suspected theft.
Finally, the business owner must have reasonable grounds to believe the person restrained committed theft. These two conditions are related. They say that a business owner cannot restrain anyone for any reason. If the business owner witnesses the person commit theft, that would almost certainly constitute reasonable suspicion. However, if the business owner merely suspected the person of thievery but did not have any evidence to support their suspicion, then the store owner would have a much harder time proving that condition. Finally, the business owner must prove all four of these conditions existed to establish the affirmative defense. If the business owner restrained someone and failed to meet all the criteria, the state could convict them of second-degree false imprisonment.
What Are the Penalties for a Class I Misdemeanor in Nebraska?
Second-degree false imprisonment is a Class I misdemeanor in Nebraska. The classification of penalties for misdemeanors is found in Nebraska Revised Statute 28-106. Under the statute, Class I Misdemeanors are punishable by a maximum sentence of one year in jail and a $1,000 fine.
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What Rights Does One Have When Charged with Second-Degree False Imprisonment in Nebraska?
If someone is arrested or ticketed for second-degree false imprisonment, the first thing to remember is that they have the right to not talk to law enforcement without an attorney
present. While they may think they can explain the situation to another rational person, law enforcement may be able to use their statements against them. Everyone has the right to have an attorney present during questioning, regardless of guilt or innocence. If you are arrested for or charged with second-degree false imprisonment, do not hesitate to contact the attorneys at Berry Law.
