2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 3 - Kidnapping, False Imprisonment, and Related Offenses
§ 16-5-42. False Imprisonment Under Color of Legal Process

When the arrest, confinement, or detention of a person by warrant, mandate, or process is manifestly illegal and shows malice and oppression, an officer issuing or knowingly and maliciously executing the same shall, upon conviction thereof, be removed from office and punished by imprisonment for not less than one nor more than ten years.

(Laws 1833, Cobb's 1851 Digest, p. 788; Code 1863, § 4265; Code 1868, § 4300; Code 1873, § 4366; Code 1882, § 4366; Ga. L. 1895, p. 63, §§ 1, 2; Penal Code 1895, § 108; Penal Code 1910, § 108; Code 1933, § 26-1503; Code 1933, § 26-1309, enacted by Ga. L. 1968, p. 1249, § 1.)

- Civil action for false imprisonment, § 51-7-20 et seq.

Law does not presume malice against judicial officer because the officer renders an illegal judgment, or because, in the discharge of the officer's official functions, the officer does an illegal act. Campbell v. State, 48 Ga. 353 (1873).

§ 16-5-42 is not entitled to appear before grand jury. - Justice of the peace indicted for false imprisonment under color of legal process is not entitled to the right of appearance and of being heard before the grand jury at the time the true bill is found. Campbell v. State, 48 Ga. 353 (1873).

When defendant was arrested without a warrant, a charge on O.C.G.A. § 16-5-42 was not appropriate, and the refusal to give the charge was not error. Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987).

Cited in Mastroianni v. Deering, 879 F. Supp. 1245 (S.D. Ga. 1994); Mastroianni v. Bowers, 160 F.3d 671 (11th Cir. 1998); Tesler v. State, 295 Ga. App. 569, 672 S.E.2d 522 (2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judges, § 77.

- 35 C.J.S., False Imprisonment, § 4 et seq.

- Civil liability of judicial officer for false imprisonment, 13 A.L.R. 1344; 55 A.L.R. 282; 173 A.L.R. 802.

Malice and want of probable cause as elements of action for false imprisonment, 19 A.L.R. 671; 137 A.L.R. 504.

Action for malicious prosecution or false arrest based on extradition proceeding, 55 A.L.R. 353.

Justification in action for false imprisonment by proof of existence of ground other than that on which arrest was made, or one of several grounds on which it was made, 64 A.L.R. 653.

Delay in taking before magistrate or denial of opportunity to give bail as supporting action for false imprisonment, 79 A.L.R. 13.

Malice and want of probable cause as element or factor of action for false imprisonment, 137 A.L.R. 504.

Liability for false arrest or imprisonment under a warrant as affected by mistake as to identity of person arrested, 10 A.L.R.2d 750; 39 A.L.R.4th 705.

Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.