The Psychological and Legal ~ftermathof False Arrest and Imprisonment

Robert I. Simon, M.D.

False arrest and imprisonment can be an extraordinarily stressful psychological trauma. This is clearly demonstrated in the evaluation of forensic cases alleging false arrest and imprisonment, a review of the recent forensic psychiatric literature and reported legal cases. A clinical vignette is presented that illustrates the psycho- logical trauma and sequelae associated with false arrest and imprisonment. Psy- chiatric treatment of these individuals is discussed. A number of these cases are litigated.

False arrest and imprisonment can be neighbors. In some cases, even news- an extraordinarily traumatic event. The paper reporters and TV cameras may be author's evaluation of three cases, and a present. Following booking and mug- review of the recent forensic psychiatric ging, the victim of a false arrest may be literature and reported legal cases, placed in jail, unless bond can be posted clearly demonstrate that serious psycho- immediately and release obtained. logical impairment may follow false If immediate release is not obtained, arrest and imprisonment. These cases the false arrest victim who is often ut- are frequently litigated. terly confused and terrified must face Although no clear pattern emerges, a the dangers of jail, some of which can common scenario begins with a knock be lethal. For example, the risk of suicide on the door and the totally unexpected within the first 24 hours of incarceration confrontation with the police serving an is well known.' Moreover, approxi- arrest warrant for an alleged crime. The mately 50 percent of suicides are com- individual is summarily arrested, taken pleted within the first 24 hours of in- into custody, handcuffed and placed in ~arceration.~Fears of physical and sex- the back of a police vehicle, sometimes ual assault with the possibility of in front of distraught family and shocked contracting the HIV virus are very real. If the false arrest victim is alone in a cell, Dr. Simon is clinical professor of psychiatry and direc- fear and exhaustion may further tor, Program in Psychiatry and Law, Georgetown Uni- versity School of Medicine, Washington, DC. Mailing heighten feelings of isolation, terror, and address: 792 1 D Glenbrook Rd., Bethesda, MD 208 14. helplessness. Time sense is often lost. I want to thank Jeffrey S. Breglio for providing the legal research for this paper. Jail receiving procedures such as mass

Bull Am Acad Psychiatry Law, Vol. 21, No. 4, 1993 523 showers, delousing, being required to congregate and watch Mr. X being led wear jailhouse clothes, and inedible food away by the police. may produce a profound sense of hu- Mr. X is booked at the police station. miliation and threat to one's personal Mug shots are taken. Mr. X is forced to identity. Being unexpectedly wrenched take a group shower with other pris- from one's normal, expectable existence oners. He is deloused and given jail- and plunged into the sheer terror of im- house clothes to wear. He is allowed to prisonment without apparent reason is call his attorney. Mr. X is placed in a a highly traumatic, Kafkaesque experi- cell by himself. He begins to experience ence. This extreme, abrupt discontinuity a severe headache, an indication that his in a person's life experience is capable blood pressure is elevated. Mr. X asks of producing psychiatric disorder, par- the guard to call his physician and ticularly dissociative disorder^.^ quickly obtain his blood pressure medi- Most imprisonments following false cation from his home. By the time his physician is reached, Mr. X is having arrest do not exceed 24 hours. The error additional symptoms of dizziness, is usually discovered within that time nausea, and blurred vision. No clock is and the individual is released. Mean- visible. Mr. X loses track of time. His while, the arrest may be reported in the lawyer appears an hour after being called papers and on radio and TV. but it seems like many hours to Mr. X. The following fictional though repre- By this time, the authorities recognize sentative, vignette illustrates the psycho- that they arrested the wrong person and logical trauma and sequelae frequently release Mr. X. The officers apologize. associated with false arrest and impris- For three weeks following the arrest, onment: Mr. X experiences flashbacks and night- Mr. X, a 53-year-old corporate exec- mares of the arrest and incarceration. utive, is awakened at 5:30 a.m. by loud The flashbacks occur when someone knocking on his door. He answers the comes to the front door and knocks or door in his pajamas, finding himself con- rings the bell. Mr. X refuses to open the fronted by police who serve him with an front door, usually leaving the house by arrest warrant and immediately hand- way of the back door. Six weeks after cuff him. Mr. X is arrested for extortion the accident, Mr. X is gradually able to and attempted murder. Mr. X vehe- read the newspaper and watch televi- mently denies the charges. He is not sion. Over time, the flashbacks and allowed to call his attorney. His 17-year- nightmares abate. Mr. X is left with old son is charged with resisting an arrest residual symptoms of anxiety and when he tries to intervene on behalf of depression. his father. Mr. X's wife is left screaming Mr. X and his family begin to receive at the door. TV reporters were alerted crank calls after the false arrest incident. that the arrest would take place. TV Some former friends and neighbors shun cameras record the scene. Neighbors Mr. X and his family. Despite the fact

524 Bull Am Acad Psychiatry Law, Vol. 21, No. 4, 1993 ''You're Under Arrest!" that Mr. X is totally exonerated, he feels The clinician must be careful not to that doubt has been cast upon his good assume, however, that persons falsely character. Coworkers frequently joke arrested automatically will exhibit with him about the incident. They call symptoms of a psychiatric disorder. him by the name of the person who was Some individuals who have been subsequently arrested. Although he arrested a number of times are relatively takes the joking good naturedly, he is unshaken and familiar with the experi- constantly reminded of the false arrest ence of being jailed. In the clinical vi- and the emotionally painful conse- gnette, Mr. X's symptoms of PTSD re- quences. Mr. X's son is taunted by some mitted within three weeks of his arrest. of his peers while others support him. The DSM-111-R criteria for the diagnosis Mr. X's wife continues to feel em- of this disorder requires symptoms to be barrassed and ashamed, avoiding her present beyond one month.4 A few per- former friends in the community. Mr. sons who are falsely arrested and impris- X and his family decide to relocate to oned may show no significant symptoms another community. of psychological distress or psychiatric disorder. Others may exhibit transient Psychological Consequences psychological symptoms. Persons pre- Many individual factors determine disposed by previous psychiatric illness the psychological response of the false may show an exacerbation or recurrence arrest victim. Preexisting psychiatric dis- of prior symptomatology or even the orders, previous experiences with the development of a new psychiatric dis- criminal justice system, unresolved guilt, order. On the other hand, even predis- personal coping styles, the ability to han- posed persons may show no significant dle the helplessness and dissonance of a psychological consequences from a false bizarre personal experience ("This can't arrest alone. False arrest in combination be happening to me."), and the presence with imprisonment, however, is a highly or absence of supportive relationships traumatic experience for most people. are just a few of the factors that influence A variety of psychiatric disorders may psychiatric outcome following a false eventuate from a false arrest and incarc- arrest. The actual circumstances of the eration experience. The dissociative dis- arrest, the trauma to family members orders are by far more frequent. Post- who cannot comprehend what has traumatic stress disorder (PTSD), ad- happened, personal embarrassment and justment disorders, generalized anxiety humiliation ("treated like a criminal"), disorder, and dysthymic disorder also adverse publicity, and the incarceration arise with some frequency. A prolonged, experience itself are significant psycho- florid psychological response that in- logical stressors. The family itself may capacitates the individual points to the be so traumatized as to be emotionally likely presence of preexisting psychiatric unavailable to the arrest victim on his conditions. The exception arises when or her release. the person falsely arrested endures ad-

Bull Am Acad Psychiatry Law, Vol. 21, No. 4, 1993 525 Simon ditional psychological and physical den persons who expect to be punished abuse either during the process of arrest in some fashion. For these and other or during the actual incarceration. reasons, former friends and neighbors, Moreover, a preexisting psychiatric or sometimes even family members, react medical condition for which the person with lingering disapproval and avoid- is receiving ongoing treatment may be- ance of the falsely arrested person. It is come acute or life threatening, especially not unusual for the entire story to resur- if needed medications are unavailable or face at a later date in the media following if medical attention is not promptly ob- the arrest or trial of the person who was tained. In the clinical vignette, Mr. X's arrested subsequently. The continuing hypertensive condition dramatically publicity can reignite quiescent psycho- worsened. Headache, dizziness, nausea, logical symptoms. The family may not and blurred vision significantly compli- be able to get over its sense of embarrass- cated and amplified the traumatic stress ment and shame. Some persons who of the arrest and incarceration. have been falsely arrested decide to In addition to the acute trauma of a move away with their families in order false arrest and imprisonment, long- to start their lives over. term consequences ensue that are patho- genic themselves, prolonging the symp- Psychiatric Intervention toms surrounding the acute trauma. For The immediate management of the example, the false arrest victim may not person who is falsely arrested and in- be able to "live down" the experience. carcerated bears certain similarities to People often continue to ask questions. that of the newly released hostage vic- He or she may become the butt of jokes tim. Like hostages who have been taken or experience outright ridicule. Crank prisoner, the falsely arrested and impris- calls add to the trauma. Once news of oned person appears to need an initial the arrest appears in the newspaper, or period of psychosocial decompression even on radio and television, a humili- and protection from the media.5 Both ating notoriety is achieved. As a result, family and victims should have the op- individuals in high-profile jobs may be portunity to psychologically assimilate summarily fired. When a person is falsely the traumatic experience in a protected arrested, some neighbors, acquaintances, situation that is clinically supportive. and even friends may begin to question Lindy6 coined the infelicitous term his or her integrity, wondering whether a "trauma membrane" to describe the criminal act was committed. protection afforded by the family of the The person who is falsely arrested psychologically traumatized individual often becomes a reminder to others that from the intrusive inquiry of others. life is not safe and predictable. The As with the hostage, clinical follow-up "knock on the door" can happen to any- is important. Although the false arrest body, even in this country. False arrests incident is over, the psychological con- are particularly threatening to guilt-rid- sequences may persist for long periods

526 Bull Am Acad Psychiatry Law, Vol. 21, No. 4, 1993 "You're Under Arrest!" of time. Unlike former hostages who are ment, humiliation, and anxiety.9,'' This treated with respect or even are honored article does not discuss cases of persons as heroes on their release, the falsely involuntarily hospitalized who bring arrested persons may be treated with claims of false imprisonment. suspicion and, sometimes, even with dis- In litigation, the psychiatrist must dain. Hostages are not stigmatized be- consider a number of factors that are not cause they are viewed as being unjustly necessarily pertinent in the clinical con- imprisoned by antisocial individuals op- text. The purported injuries to the liti- erating outside of the criminal justice gant are usually damage to his or her system. The false arrest of a person by reputation and violation of civil rights. duly empowered authorities entrusted The presence of a mental disorder with protecting the public produces an should not be assumed to have occurred uncomfortable psychological disso- from the alleged false imprisonment. nance. Thus, the person who is falsely The alleged incident of false arrest must arrested may continue to be viewed with be carefully investigated. The psychia- suspicion despite his or her proven in- trist cannot rely only upon the reporting nocence. of the litigant. Employment, school. mil- Denial in the form of "business as itary, police, and other records should usual" after the person is released from be obtained as part of the forensic jail must be supportively confronted. examination. Whenever possible, other Most patients will respond to brief con- individuals who may have information servative treatment, support and "tinc- pertinent to the litigation should be in- ture of time." Acutely, the use of psy- terviewed. chodynamic psychotherapy may add The possibility of suppressed or dis- insight to injury, increasing the torted information, denial of prior diffi- psychological burdens of the patient. In- culties, or outright malingering must be sight psychotherapy may be beneficial, actively considered. Perrl found that however, for the person who develops a the diagnosis of PTSD was strikingly chronic psychiatric disorder following misused in his cases of alleged false false arrest or who experiences a recru- arrest. The precipitating event and sub- descence of a childhood trauma. sequent symptoms bore no relationship Litigation to the requirements of the current diag- nostic system. Clinicians should consider Recovery for mental distress on the proposed standards for the forensic psy- claim of false arrest or imprisonment chiatric examination of PTSD litigants.'* has been recognized for many years.' The tort of false arrest protects and vin- Conclusion dicates the individual's freedom from The experience of false arrest and im- unwarranted interference with his or her prisonment is a traumatic psychological libert~.~Damages may be awarded for stressor. Psychological symptoms vary mental injuries that include embarrass- with the actual circumstances of the

Bull Am Acad Psychiatry Law, Vol. 21, No. 4, 1993 527 Simon arrest and incarceration as well as the chiatry, Vol. 10. Edited by Tasman A, Gold- finder SM. Washington, DC, American Psy- susceptibility of the person to this spe- chiatric Press, 199 1, pp 266 1-76 cific stress. Crisis treatment approaches 4. American Psychiatric Association: Diagnos- tic and Statistical Manual of Mental Disor- should be considered initially. The as- ders (ed 3 rev). Washington, DC, American sumption that serious psychiatric se- Psychiatric Press, 1987 quelae are inevitable, however, must be 5. Simon R1: After the terrorist incident: psy- chotherapeutic treatment of former hostages. avoided. When legal claims of false Am J Psychother 4 1: 194-200, 1987 arrest and imprisonment are alleged, 6. Lindy JB: The trauma membrane and other clinical concepts derived from psychothera- multiple sources of information con- peutic work with survivors of natural disas- cerning the litigant must be reviewed as ters. Psychiatr Ann 15: 153-60, 1985 part of a credible forensic psychiatric 7. Griffin v. State 799 P2d 521 (Kan Ct App 1990) examination. Treatment and expert 8. Phillips v. District of Columbia, 458 A2d 722 roles should be kept separate.13 A high (DC 1983) 9. United Steel Workers of America v. Mil- index of suspicion must be maintained stead, 705 F Supp 1426 (D Ariz 1988) for exaggeration and malingering. 10. Kraft v. City of Bettendorf, 359 NW2d 466 (Iowa 1984) 11. Perf IN: Claims of psychiatric injury after References alleged false arrest. J Forens Sci 33:21-34, 1. Hayes LM, Rowan JR: National Study of 1988 Jail Suicides: Seven Years Later. Alexandria, 12. Simon RI: Toward the development of stand- VA, National Center for Institutions and Alt- ards for the forensic psychiatric examination ernatives, 1988 of the post-traumatic stress disorder claim- 2. Bonner RL: Isolation, seclusion and psycho- ant, in Posttraumatic Stress Disorder in Lit- social vulnerability as risk factors for suicide igation: Guidelines for Forensic Assessment. behind bars, in Assessment and Prediction of Edited by Simon RI. Washington, DC, Arn- Suicide. Edited by Maris RW, Berman AL, erican Psychiatric Press, 1993 Malatsberger JT, Yufit RI. New York, Guil- 13. Simon RI: The law in psychiatry, in Text- ford, 1992, pp 398-4 19 book of Psychiatry. Edited by Talbott JA, 3. Spiegel D: Dissociation and trauma, in Am- Hales RE, Keill SL. Washington, DC, Am- erican Psychiatric Press Review of Psy- erican Psychiatric Press (in press)

Bull Am Acad Psychiatry Law, Vol. 21, No. 4, 1993