                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0574n.06

                                           No. 13-4502
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                        Aug 13, 2015
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

ROCIO ANANI SAUCEDO-CARRILLO;                    )
ROSA CARRILLO-VASQUEZ,                           )
                                                 )
      Plaintiffs-Appellants,                     )
                                                 )     ON APPEAL FROM THE UNITED
v.                                               )     STATES DISTRICT COURT FOR THE
                                                 )     NORTHERN DISTRICT OF OHIO
UNITED STATES OF AMERICA,                        )
                                                 )     OPINION
       Defendant-Appellee.                       )

—————————————————————————————————————
   Before: BOGGS, ROGERS, and STRANCH, Circuit Judges.

       BOGGS, Circuit Judge. In 2001, the United States issued visas to Plaintiffs-Appellants

Rocio Anani Saucedo-Carrillo and her mother, Rosa Carrillo-Vasquez. Saucedo-Carrillo and

Carrillo-Vasquez overstayed their visas. On September 13, 2009, while Saucedo-Carrillo was

pumping gas into her brother-in-law’s truck at a gas station, United States Border Patrol Agent

Bradley Shaver approached and spoke with Saucedo-Carrillo and Carrillo-Vasquez. At some

point during the conversation, Shaver called in an immigration check, asked Saucedo-Carrillo to

move her car into a parking spot, which she did, and took Saucedo-Carrillo and Carrillo-Vasquez

into custody. Shaver transported Saucedo-Carrillo and Carrillo-Vasquez to a nearby Border

Patrol station, where they were processed and released later that day.

       Arguing that this conversation and detention constituted false imprisonment under Ohio

law, Saucedo-Carrillo and Carrillo-Vasquez filed suit in federal district court under the Federal

Tort Claims Act (FTCA). The United States moved for summary judgment, arguing that the
No. 13-4502, Saucedo-Carrillo, et al. v. United States


conversation was voluntary at its inception and that Shaver did not detain the plaintiffs until

having reasonable suspicion to do so. The district court granted the motion, and the plaintiffs

appealed.

       We affirm the judgment of the district court. At the beginning of the encounter, Shaver

did not confine Saucedo-Carrillo or Carrillo-Vasquez; Shaver only confined them after the law

privileged him to do so.

                                                  I

       We evaluate the facts as articulated by the depositions of Saucedo-Carrillo and Carrillo-

Vasquez. Shaver blocked the front, but not the back, of Saucedo-Carrillo’s truck at a gas station.

While Saucedo-Carrillo pumped gas and Carrillo-Vasquez sat in the cab of the truck, Shaver

asked them a series of questions.       Saucedo-Carrillo and Carrillo-Vasquez were scared by

Shaver’s aggression and harshness, but never declined to answer any questions. In response to

one of Shaver’s questions, Saucedo-Carrillo admitted that she had overstayed her visa. After this

admission, Shaver ultimately drove Saucedo-Carrillo and Carrillo-Vasquez to a Border Patrol

station for administrative processing. This lawsuit followed under the FTCA, on a theory of

false imprisonment.

       False imprisonment requires, among other elements, confinement and absence of lawful

authority. At the beginning of the encounter, Saucedo-Carrillo and Carrillo-Vasquez were not

confined: they admit that they could have left the encounter by driving the truck in reverse, so it

would have been unreasonable for them to believe that Shaver would have prevented such an

exit. Shaver did confine them when he asked Saucedo-Carrillo to move her truck, after she

admitted that they had overstayed their visas. This admission gave Shaver reason to believe that

they were, in fact, in the United States illegally; federal law authorizes the arrest of such illegal



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


aliens, so, at the end of the encounter, Saucedo-Carrillo and Carrillo-Vasquez were not confined

without lawful authority.

                                                 A

       We review the district court’s grant of summary judgment de novo. See Rannals v.

Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001). Summary judgment should be awarded

only when “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether there exists a genuine

issue of material fact, we must view all evidence in the light most favorable to the nonmoving

party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Thus,

for the purposes of reviewing the district court’s grant of summary judgment, we assume that the

facts are as follows.

       Ms. Saucedo-Carrillo and Ms. Carrillo-Vasquez legally entered the United States with

six-month visitor visas in 2001. On September 13, 2009, Saucedo-Carrillo went into a Marathon

gas station store near Norwalk, Ohio to pay for gas for her blue Chevrolet pickup truck, parked at

the pump. Border Patrol Agent Bradley Shaver, in uniform and driving a marked Border Patrol

vehicle, made eye contact with her as she left the store. Shaver pulled into the gas station.

       Shaver parked his vehicle perpendicularly across the front of the truck in a manner that

made it impossible for Saucedo-Carrillo to pull her truck forward to leave. There was enough

room behind the truck to exit in reverse. Shaver approached Saucedo-Carrillo on foot and asked

for her ID. She gave him a Michigan driver’s license, and he next asked her for her “papers.”

She asked what “papers” he meant, and he asked her, “Are you from here?” Saucedo-Carrillo

told Shaver that her papers were at home and that she had come with a passport and a visa. He

then asked what kind of passport she came with and whether she came in on a tourist visa. He



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


next asked her about a car seat he spotted in the back of the truck, and she told him that it was for

her child, who was with a babysitter. As Shaver questioned Saucedo-Carrillo, he held onto her

license and stood less than one meter away from her.

        As Saucedo-Carrillo continued to fill the truck with gas, Shaver approached Carrillo-

Vasquez, who was still in the truck’s passenger seat. He asked her for ID, and she gave him a

dental-insurance card. He then asked her for her papers and she said that she had the same visa

that Saucedo-Carrillo had.

        Saucedo-Carrillo testified that she answered all of Shaver’s questions because she “was

afraid of him” on account of his aggression and the way that he parked his truck in front of hers.

He never touched her during the encounter and never told her that she was not free to leave or

that she had to answer his questions.

        Carrillo-Vasquez, too, said that she answered all of his questions, and said that this was

because “he was harsh. And he scared me.” “[H]is authority” and “the way he stopped in front

of us” scared her. But Shaver never touched Carrillo-Vasquez, never told her that she was not

free to leave, and never said that she must answer his questions.

        After Saucedo-Carrillo had told Shaver that she had entered the United States on a visa,

Shaver asked Saucedo-Carrillo who owned the truck. She told him that her brother-in-law

owned the truck, and that she had “asked him to put the plates in [her] name.” Shaver testified

that he found it curious that although the truck had a personalized license plate with Saucedo-

Carrillo’s name, it was not registered in her name. Shaver said he was suspicious because he

was aware that in Ohio it is illegal for an undocumented alien to register a vehicle in her own

name.




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No. 13-4502, Saucedo-Carrillo, et al. v. United States


        Shaver asked Saucedo-Carrillo if her permit to be in the United States had expired. She

replied that it had. Shaver then asked Saucedo-Carrillo to move her car into a parking spot and

she complied. He then took both mother and daughter into custody and transported them to the

Border Patrol station in nearby Sandusky. Both plaintiffs were administratively processed and

released later that day.

        On October 15, 2012, Saucedo-Carrillo and Carrillo-Vasquez filed this suit under the

FTCA. They also were named plaintiffs in a putative class-action civil-rights suit that the district

court dismissed in November 2012. Muniz-Muniz v. U.S. Border Patrol, No. 3:09 CV 2865,

2012 WL 5197250 (N.D. Ohio Oct. 19, 2012). On July 15, 2013, the United States moved for

summary judgment in this case. On October 21, 2013, the district court granted the motion.

Saucedo-Carrillo and Carrillo-Vasquez timely appealed.

                                                 B

        The FTCA waives the federal government’s sovereign immunity in limited contexts, and

“is the exclusive remedy for suits against the United States or its agencies sounding in tort.”

Himes v. United States, 645 F.3d 771, 776 (6th Cir. 2011) (citing 28 U.S.C. § 2679(a)). The

statute extends the liability of the United States to the intentional torts of false imprisonment and

false arrest committed by federal law-enforcement officers. 28 U.S.C. § 2680(h). Under the

FTCA, the United States is generally liable for the acts of its employees “in the same manner and

to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, which

means that it is liable for the payment of money damages according to the law of the place where

the act or omission occurred—here, Ohio. Before bringing an FTCA claim in court, a claimant

must present the claim to the federal agency whose activities gave rise to the injuries and allow

the agency the opportunity to settle the claim. See 28 U.S.C. § 2675. If the agency takes no



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


action or—as was the case here—denies the claim, the claimant may then bring suit in federal

district court. See 28 U.S.C. § 2675(a). Aside from a few exceptions not relevant here, jury

trials are not available to plaintiffs bringing claims against the United States under the FTCA.

See 28 U.S.C. § 2402.

                                                         C

         Saucedo-Carrillo and Carrillo-Vasquez assert that the Government is liable because

Shaver, a federal law-enforcement official, committed the Ohio intentional tort of false

imprisonment.        Under Ohio common law, false imprisonment requires (1) an intentional

confinement (2) taking place in a limited area (3) for any “appreciable time, however short”

(4) without lawful privilege and (5) against the detainee’s consent. Bennett v. Ohio Dep’t of

Rehab. & Corr., 573 N.E.2d 633, 636 (Ohio 1991) (quoting Feliciano v. Kreiger, 362 N.E.2d

646, 647 (Ohio 1977)).1

         For the purpose of analyzing this interaction, we divide Shaver’s actions by several

decision points. Cf. Bouggess v. Mattingly, 482 F.3d 886, 890 (6th Cir. 2007). The first part of

the encounter occurred prior to Saucedo-Carrillo’s admission that her permit to be in the United

States had expired. The second part of the encounter occurred thereafter. During the first part of

the encounter, Shaver did not confine Saucedo-Carrillo or Carrillo-Vasquez.2 During the second




         1
            Some Ohio courts have stated that the essential requisites for maintaining a false imprisonment claim are:
“(1) the intentional detention of the person and (2) the unlawfulness of the detention.” Hodges v. Meijer, Inc., 717
N.E.2d 806, 809 (Ohio Ct. App. 1998). But these decisions also typically consider whether lawful privilege and
consent were present. See, e.g., ibid. Ohio law thus distinguishes between the elements of actual confinement,
measured objectively, and lack of detainee consent, more subjectively determined, as different elements. We
assume, without deciding, that the interaction between Saucedo-Carrillo, Carrillo-Vasquez, and Shaver took place in
a limited area, for an appreciable time, and without the express consent of Saucedo-Carrillo and Carrillo-Vasquez.
          2
            The United States also argues that the appearance of the truck lawfully authorized Shaver to confine
Saucedo-Carrillo and Carrillo-Vasquez. Because we hold that he did not confine them, we need not consider this
argument.


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No. 13-4502, Saucedo-Carrillo, et al. v. United States


part, Shaver confined them with a lawful privilege. Because at no point did Shaver commit false

imprisonment, the United States is not liable under the FTCA.

                                                II

                                                A

       In Ohio, a plaintiff fails to establish the confinement element of her false-imprisonment

claim unless she demonstrates that a person reasonably could believe, based on the defendant’s

actions, that the defendant would interfere with her departure. For instance, when a plaintiff

claims that a law-enforcement officer falsely imprisoned her, the plaintiff fails to establish the

confinement element where “there was no evidence . . . that she would have been prevented

[from leaving] had she tried . . . .” Williams v. Franklin Cnty. Bd. of Comm’rs, 763 N.E.2d 676,

691 (Ohio Ct. App. 2001). In Williams, as here, “there was at least one additional means of

egress.” Id. at 692.

       Other Ohio decisions on the confinement element of false imprisonment similarly have

limited the definition of “confinement.” There is no false imprisonment where “there were no

words or conduct which could have induced in plaintiff . . . a reasonable belief that she could not

have departed . . . without interference” and where “[n]o hands were laid upon her nor was her

path barred.” Mullins v. Rinks, Inc., 272 N.E.2d 152, 154 (Ohio Ct. App. 1971). “[F]alse

imprisonment may not be predicated on a person’s unfounded belief that he was restrained . . . .”

Bauman v. Bob Evans Farms, Inc., No. 06AP-737, 2007 WL 96969, at *5 (Ohio Ct. App. Jan.

16, 2007). “[M]ere submission to verbal direction, unaccompanied by force or threat, cannot

constitute confinement or detention . . . .” Ferraro v. Phar-Mor, Inc., No. 98 CA 48, 2000 WL

459686, at *4 (Ohio Ct. App. Apr. 7, 2000); see also Lester v. Albers Super Mkts., Inc., 114

N.E.2d 529, 532 (Ohio Ct. App. 1952). The defendant’s failure to bar all possible means of



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


egress, especially absent a direct command not to leave, would demonstrate to any reasonable

person in the plaintiff’s situation that the defendant did not intend to confine her.3

         Here, Saucedo-Carrillo and Carrillo-Vasquez do not claim that they had no other egress.

The availability of egress prevents any factfinder from determining that Saucedo-Carrillo and

Carrillo-Vasquez could have had a reasonable belief that they were confined. So, during the first

part of the encounter, Shaver did not confine Saucedo-Carrilo and Carrillo-Vasquez.

                                                          B

         Shaver’s questioning of Saucedo-Carrillo, even about her immigration status, did not

constitute detention. So Shaver did not falsely imprison Saucedo-Carrillo and Carrillo-Vasquez

before Saucedo-Carrillo admitted, in response to his lawful question, that she had violated the

terms of her permit.

         Federal law empowers each Border Patrol agent to arrest an alien whom the agent has

reason to believe is in the United States illegally. 8 U.S.C. § 1357(a)(2). 4 We assume, without

deciding, that the Fourth Amendment limits those powers. See, e.g., United States v. Quintana,

623 F.3d 1237, 1239 (8th Cir. 2010) (“[T]he term ‘reason to believe’ in § 1357(a)(2) means

constitutionally required probable cause.”). Saucedo-Carrillo’s admission that she had violated

the terms of her permit was probable cause for Shaver to believe that she was in the United

States illegally. Taken in concert with Carrillo-Vasquez’s admissions that she and Saucedo-

Carrillo were in the United States on the same visa, it also was reasonable for Shaver to believe

         3
           The inquiry does not depend on the plaintiff’s contemporaneous subjective sense of consent to
questioning, let alone an articulation of that consent. Nor could it be otherwise. A more permissive rule requiring
affirmative consent would not reflect normal social interaction. A person free to leave is not confined simply
because another person, whom she regards as an authority, fails to ask her whether she feels confined.
         4
           The plaintiffs argue that the issue of privilege is not properly before this court because the district court
granted summary judgment on other grounds below, and therefore did not consider it. Appellant’s Reply Br. 6. We
disagree. The absence of privilege is an element of false imprisonment and this is not a case where a party is
introducing new argument on appeal—both parties have argued it before the district court and have done so again
here.


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No. 13-4502, Saucedo-Carrillo, et al. v. United States


that Carrillo-Vasquez was in the United States illegally. So federal law authorized Shaver to

detain Saucedo-Carrillo and Carrillo-Vasquez. He did not falsely imprison them after Saucedo-

Carrillo admitted that she had overstayed her visa.

                                                III

       We wish to be clear: Agent Shaver’s mere approach to Saucedo-Carrillo and Carrillo-

Vasquez was not tortious, even if it displeased them. As we have suggested, false imprisonment

does not turn on whether Shaver had probable cause to take Saucedo-Carrillo and Carrillo-

Vasquez into custody for violating immigration law because Shaver did not, at the beginning of

the encounter, take them into custody. The plaintiffs’ subjective view of the matter does not

change things. Under Ohio law, the test of actual confinement is whether the defendant actually

confined the plaintiff, i.e., whether “a reasonable person could believe that confinement

occurred.” Kalbfell v. Marc Glassman, Inc., No. 02 CO 5, 2003 WL 21505264, at *5 (Ohio Ct.

App. June 26, 2003) (holding that defendant confined plaintiff although defendant did not

threaten plaintiff with the use of force). Similarly, “ordering plaintiff to follow,” under certain

circumstances, “is sufficient to establish confinement.”      Id. at *4 (emphasis added).      But

Kalbfell, like Mitles v. Young, 394 N.E.2d 335 (Ohio Ct. App. 1978), on which it relies, differs

from the present case. In Mitles, the plaintiff’s employer accused him of committing a crime,

after which accusation a police officer “asked” him to come to the police station. Here, until

Saucedo-Carrillo admitted to having committed a crime, Shaver did not accuse either Saucedo-

Carrillo or Carrillo-Vasquez of committing one. Until that admission, he did not ask them to

move their car or, indeed, direct their movement in any way. He spoke with them while they

continued their activities: Saucedo-Carrillo pumping gas and Carrillo-Vasquez waiting in the car.




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No. 13-4502, Saucedo-Carrillo, et al. v. United States


These are the actions of a law-enforcement officer speaking with members of his community, not

one actively detaining a criminal suspect.

       That Saucedo-Carrillo may have believed herself to be confined does not demonstrate

that a reasonable person would, because we cannot assume that her belief was per se objectively

reasonable. In sum, a defendant such as Shaver is not liable for ordinary questioning that a

specific plaintiff may consider confining, but that an objectively reasonable person would not.

                                               IV

       We have reviewed the facts as presented by Saucedo-Carrillo and Carrillo-Vasquez.

Shaver saw them, parked his truck in front of theirs, stood close to them, questioned them about

their immigration history and status, and examined their identification cards. But he never

touched them, never prevented them from leaving, never told them that they were not free to go,

and never told them that they must answer his questions. He learned that Saucedo-Carrillo’s car

was, technically, her brother-in-law’s. Suspecting that she had not registered it because she was

in the United States illegally, he asked her to confirm his suspicion. When she did, he arrested

her and Carrillo-Vasquez and arranged for their same-day processing and release. They sued on

the tort theory of false imprisonment.

       Two elements of the Ohio tort of false imprisonment are at issue in this case: actual

confinement and lack of lawful authority. In Ohio, where a plaintiff had at least one means of

egress from an ordinary conversation, she was not confined. Federal law allows a Border Patrol

agent to arrest an alien if he has probable cause to believe that she is an illegal alien. Before

Shaver had reason to believe that Saucedo-Carrillo and Carrillo-Vasquez were illegal aliens, he

did not confine them. Saucedo-Carrillo’s admission provided probable cause for detention.




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No. 13-4502, Saucedo-Carrillo, et al. v. United States


Saucedo-Carrillo and Carrillo-Vasquez fail to allege facts that would establish false

imprisonment. We AFFIRM the judgment of the district court.




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No. 13-4502, Saucedo-Carrillo, et al. v. United States


       STRANCH, Circuit Judge, dissenting.             The majority opinion divides the encounter

between Agent Shaver and the plaintiffs into two parts: the period leading up to Ms. Saucedo-

Carrillo’s admission that her visa had expired and the period following that admission. I agree

with the majority’s conclusion that after that admission Agent Shaver had a lawful privilege to

detain both plaintiffs, as Ms. Carrillo-Vasquez had previously stated that she had the same visa

as Ms. Saucedo-Carrillo.      I cannot agree to affirm the grant of summary judgment to the

Government, however, because under the totality of the facts before us and the definition of

confinement under Ohio law, a reasonable trier of fact could conclude that Agent Shaver

confined the plaintiffs at the gas station well before Ms. Saucedo-Carrillo’s admission gave him

a privilege to do so. I therefore respectfully dissent.

       Here, the reviewing court “must view the facts and any inferences reasonably drawn from

them in the light most favorable to the nonmoving party,” the plaintiffs in this case. Griffith v.

Coburn, 473 F.3d 650, 655 (6th Cir. 2007). The pertinent facts are as follows.

       Upon making eye contact with Ms. Saucedo-Carrillo, Agent Shaver parked his vehicle

perpendicularly across the front of her truck in a manner that made it impossible for her to pull

the truck forward to leave, though she could have exited in reverse.           Agent Shaver then

immediately approached Ms. Saucedo-Carrillo on foot and aggressively asked for her ID. She

gave him a Michigan driver’s license, and he next asked her for her “papers,” and asked what

kind of passport she came with and whether she came in on a tourist visa. As Agent Shaver

questioned Ms. Saucedo-Carrillo, he held onto her license and stood less than one meter away

from her.

       According to Ms. Saucedo-Carrillo, Agent Shaver was “very aggressive” from the outset

and “was very harsh. It wasn’t kind at all. He was just real harsh with his questions. Where do



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


you live? How far do you live? He wasn’t kind at all.” R. 28-3, PageID# 340-41. She never

declined to answer any of his questions because she “was afraid of him” due to his

aggressiveness and the way he parked his truck in front of hers. She explained that “I thought

maybe he was going to let me go, but he didn’t let me go.” Id. at 348.

       Ms. Carrillo-Vasquez also indicated that Agent Shaver “got real aggressive with us” and

that “He wasn’t very kind. He didn’t even say hello. One is accustomed to saying hello and he

didn’t say hello. He just asked for an ID.” R. 28-2, PageID# 259-60. She, too, said that she

never declined to answer any of his questions, and said that this was because “he was harsh. And

he scared me.” Id. at 268. Though Agent Shaver never touched the plaintiffs, Carrillo-Vasquez

testified that “his authority” scared her, and “the way he stopped in front of us.” When he got

out of the car, she asked herself “Well, what did we do? What did we do?” Id.

       The Ohio intentional tort of false imprisonment requires (1) an intentional confinement

(2) taking place in a limited area (3) for any “appreciable time, however short” (4) without

lawful privilege and (5) against the detainee’s consent. Bennett v. Ohio Dept. of Rehab. & Corr.,

573 N.E.2d 633, 636 (Ohio 1991)

       Ohio courts employ an objective standard to determine whether a given set of facts

constitutes false imprisonment. “[F]alse imprisonment may not be predicated on a person’s

unfounded belief that [she] was restrained.” Sharp v. Cleveland Clinic, 891 N.E.2d 809, 814

(Ohio Ct. App. 2008). Rather, to prevail a plaintiff must demonstrate that “a reasonable person

could believe that confinement occurred.” Kalbfell v. Marc Glassman, Inc., 2003-Ohio-3489,

2003 WL 21505264, at *5 (Ohio Ct. App. June 26, 2003); accord Ware v. Shin, 2006-Ohio-976,




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No. 13-4502, Saucedo-Carrillo, et al. v. United States


2006 WL 513960, at *4 (Ohio Ct. App. March 3, 2006).5 Under Ohio law, “submission to the

mere verbal direction of another, unaccompanied by force or threats of any character, cannot

constitute false imprisonment.” Bauman v. Bob Evans Farms, Inc., 2007-Ohio-145, 2007 WL

96969, at *5 n.4 (Ohio Ct. App. Jan. 16, 2007); see also Ferraro v. Phar-Mor, Inc. No. 98 CA

48, 2000 WL 459686, at *4 (Ohio Ct. App. April 7, 2000) (same). However, the word “threat”

as used in Ferraro does “not necessarily include only an express or explicit threat.” Kalbfell,

2003 WL 21505264, at *5. An “implicit threat . . . projected through . . . circumstances

including a display of authority” can also create false imprisonment. Id.

        Kalbfell holds that implied restraint based on a security guard’s display of authority can

meet the elements of Ohio’s false imprisonment tort. Id. at *4-5. The decision upheld on appeal

a judgment in favor of a plaintiff who was mistakenly identified by store employees as a repeat

shoplifter previously banned from the premises. Id. at *1. After misidentifying the plaintiff, the

employees publicly summoned store security to the woman’s location. Id. A uniformed guard

told her to “[c]ome with me,” and escorted her to a back office by walking behind her without

touching her. Id. The guard made a phone call, which the woman believed was to the police,

and accused her of shoplifting. Id. at *5. She waited in the office for twenty minutes until a

manager told the security guard that he could not ban people from the store. Id. at *1. The guard

then apologized and the woman left the room. Id. The Ohio Court of Appeals found that a

reasonable person could believe confinement occurred under these facts.                               Id. at *5.

Distinguishing Ferraro, a case dismissed on summary judgment concerning a store employee’s

brief detention of a shopper at a checkout counter, the Kalbfell court noted that the threat of force

        5
          The Ohio rule for citations to unpublished opinions provides that “[a]ll opinions of the courts of appeals
issued after May 1, 2002 may be cited as legal authority and weighted as deemed appropriate by the courts without
regard to whether the opinion was published or in what form it was published.” Ohio Supreme Court Rules for the
Reporting of Opinions, Rep. Op. R. 3.4, Use of Opinions.


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No. 13-4502, Saucedo-Carrillo, et al. v. United States


or restraint is stronger when uniformed security is involved than when (as in Ferraro) a non-

security employee gives a customer an order. Id.

       Kalbfell found additional support for its holding in the Ohio Jury Instructions concerning

false arrest and false imprisonment. Id. at *4. The instructions define both false arrest and false

imprisonment as the “unlawful” “restraint” or “control” by one person over the physical liberty

of another, and the instructions provide that the restraint must include an “actual or implied”

“threat of force” or “display of authority.” Id. (citing former O.J.I. 309.01 (currently O.J.I.

441.01)) (emphasis added). Restraint occurs “if the words, conduct, or display of authority are

such as to cause or give rise to a fear or apprehension of force and to overcome the plaintiff’s

will.” Kalbfell, 2003 WL 21505264, at *4 (citing O.J.I. 309.01 (now 441.01)).

       Earlier Ohio caselaw also indicates that false imprisonment may include implicit threats

conveyed through a display of authority. In Mitles v. Young, the plaintiff’s employer accused

him of stealing over a thousand dollars from the business and summoned the police. 394 N.E.2d

335, 335 (Ohio Ct. App. 1978). After the employer and a police officer spoke out of the

plaintiff’s earshot, the officer approached the plaintiff and said, “Will you come with me,

please.” Id. at 337. The plaintiff agreed and the officer took him to the station and left him in a

holding cell for several hours before releasing him without charges. Id. Appealing the jury

verdict for the plaintiff on false imprisonment, the employer argued that there was no arrest

because the plaintiff had voluntarily accompanied the officer. Id. at 336. The appellate court

upheld the jury’s verdict, noting that whether the officer’s statement “was a request or a

command depends on the intonation of the officer’s voice. It is certain that one accused of being

responsible for a large money shortage by his employer would hardly be brave enough to resist

such a display of authority.” Id. at 337.



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


       The threat in question, moreover, need not be the threat of violence—a threat to a

plaintiff’s personal liberty can suffice for a jury to find false imprisonment. Ware, 2006 WL

513960, at *3. In Ware, the plaintiff set off a store’s alarm as she passed through the front door

with her purse. Id. at *1. A clerk stopped her and asked to check her purse. Id. She handed him

the purse and he found no merchandise, but when it passed through the door the alarm sounded a

second time. Id. The clerk tried to take her purse a second time, but she refused to let him and

told him to review the store’s security footage to see she didn’t take anything. Id. The clerk

replied that he would call the police, and the plaintiff said “get to dialing” because “I don’t

steal.” Id. In her deposition, the woman “explained that she felt detained because she knew if

she left the store, the clerk would have taken her motor vehicle’s license plate number, and the

police would have arrested her at her home.” Id. The police arrived about a half an hour later,

searched her bag again, and found nothing from the store inside. Id. at *2. The plaintiff was

released at that time. Id.

       With regard to confinement, the Ware court noted that a finder of fact could conclude

either that the appellant was free to go or that the clerk’s summoning of the police and attempt to

take the appellant’s purse constituted confinement. Id. at *3. With regard to consent, the court

determined that the trier of fact could conclude either that the plaintiff consented to the search

when she told the shopkeeper to “get to dialing,” or, based on the explanation given in her

deposition about fearing future arrest, that she felt she could not leave. Id. Finding that these

two issues presented a question of fact as to whether the plaintiff could have reasonably believed

she was confined in the salon, the court reversed the grant of summary judgment to the

defendant. Id. at *4.




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No. 13-4502, Saucedo-Carrillo, et al. v. United States


       Here, the majority concludes that “[t]he availability of egress prevents any factfinder

from determining that Saucedo-Carrillo and Carrillo-Vasquez could have had a reasonable belief

that they were confined.” Maj. Op. at 8. But Ohio law does not support such a per se rule:

Kalbfell, Ware, and Mitles all indicate that courts cannot dismiss a false imprisonment claim

simply because there is a physical means of egress open to the plaintiff, or because the threat to a

plaintiff’s person or liberty is implied rather than overt. The majority attempts to distinguish

Kalbfell and Mitles on the basis that Agent Shaver did not direct the plaintiffs to move anywhere

in particular before Ms. Saucedo-Carrillo’s admission. Maj. Op. at 9. But that isolated fact is

not dispositive. As we see in Ware, a plaintiff can be confined where she stands—there is no

requirement that a defendant must move a plaintiff in order to confine her. Instead, Ohio’s

objective totality-of-the-circumstances test requires consideration of all facts relevant to an event

to determine whether the plaintiff could reasonably believe she was confined.

       Viewing the facts in the light most favorable to the plaintiffs, the relevant circumstances

are that 1) Agent Shaver turned on his turn signal and pulled into the gas station immediately

after he and Ms. Saucedo-Carrillo made eye contact; 2) he parked perpendicularly across the

front of her truck, blocking off her direct exit route; 3) he immediately exited his patrol vehicle

and requested her identification in an “aggressive” manner without saying hello or anything else

first; 4) after she produced her ID, he kept it in his possession and continued aggressively asking

her targeted questions about her immigration status; 5) during this time he stood less than three

feet away from her; and 6) the manner in which he parked his vehicle and his aggressive

questioning frightened both plaintiffs.

       I do not share the majority’s conviction that “[t]hese are the actions of a law-enforcement

officer speaking with members of his community” as opposed to the actions of an officer



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No. 13-4502, Saucedo-Carrillo, et al. v. United States


“actively detaining a criminal suspect.” Maj. Op. at 10. Ms. Saucedo-Carrillo’s comment that

she “thought maybe he was going to let me go, but he didn’t let me go” reveals her

understanding that she was being detained during the stop. Considering the totality of the facts

in the light most favorable to plaintiffs, I cannot conclude as a matter of law that this was merely

an “unfounded belief.” See Sharp, 891 N.E.2d at 814. Rather, a reasonable trier of fact could

determine that Agent Shaver’s actions were a display of authority that amounted to actual or

implied restraint or control over the plaintiffs’ liberty. See Kalbfell, 2003 WL 21505264, at *4.

Accordingly, I would reverse the district court’s order granting summary judgment to the

Government and remand the case for further proceedings.




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