Intentional torts - Incomplete privilege

Learning Outcomes

This article explains incomplete privilege in intentional torts, including:

• Differentiating complete, incomplete, and lost privileges across common intentional torts tested on the MBE.
• Identifying the precise scope of self-defense, defense of others, defense of property, recapture of chattels, shopkeeper’s privilege, necessity, and legal justification.
• Recognizing how excessive force, improper timing, or wrongful motive convert a complete privilege into an incomplete privilege or eliminate it entirely.
• Analyzing fact patterns in which defendants are partially protected, so that liability attaches only to unprivileged conduct or actual damages.
• Applying the rules governing private and public necessity, especially when entry is privileged but compensation for property damage is still required.
• Evaluating shopkeeper and arrest scenarios to determine when detention remains reasonable in time, manner, and force, and when it becomes false imprisonment or battery.
• Distinguishing privileges that justify the invasion itself from doctrines that merely limit damages, and articulating those distinctions in MBE-style answer choices.
• Developing a systematic approach for privilege questions: selecting the applicable privilege, defining its scope, testing each element, and allocating liability accordingly.

MBE Syllabus

For the MBE, you are required to understand privileges as defenses to intentional torts, with a focus on the following syllabus points:

• Distinguishing complete and incomplete privileges as defenses to intentional torts.
• Recognizing when a privilege is lost, exceeded, or only partially protects the defendant.
• Applying rules governing self-defense, defense of others, defense and recapture of property, shopkeeper’s privilege, legal justification, and necessity.
• Understanding the consequences of excessive force, improper motive, or acting after the privilege ends.
• Analyzing how private necessity and similar doctrines create partial liability rather than complete immunity.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A shopkeeper detains a suspected shoplifter for questioning, but uses excessive force. What is the likely legal result?
   1. Complete privilege applies; no liability.
   2. Incomplete privilege applies; liability for the excess force.
   3. No privilege applies; full liability for all aspects of the detention.
   4. The shopkeeper is immune from suit.
2. Which of the following is an example of incomplete privilege?
   1. Self-defense using reasonable force.
   2. Private necessity to protect one’s own property.
   3. Public necessity to prevent a disaster.
   4. Consent to a medical procedure.
3. If a defendant acts outside the scope of a recognized privilege, what is the most likely outcome?
   1. The privilege is lost and liability attaches to the unprivileged conduct.
   2. The privilege is expanded to cover all acts.
   3. The privilege is unaffected.
   4. The plaintiff is barred from recovery.

Introduction

Intentional torts such as battery, assault, false imprisonment, and trespass are often defended by claiming a privilege—a legal justification that makes conduct that would otherwise be tortious permissible. The bar exam frequently tests not only whether a privilege exists, but also whether the defendant stayed within its boundaries.

Key Term: Privilege
A circumstance that justifies or excuses what would otherwise be an intentional tort, such that the defendant’s conduct is legally permitted if kept within the privilege’s limits.

Many privileges are complete: if all elements are satisfied and the defendant’s conduct stays within the privilege’s scope, there is no liability. Others are incomplete or qualified: the defendant may be allowed to act in a certain way but still must pay for resulting harm or is liable when they exceed the privilege’s boundaries.

On the MBE, the key tasks are to:

• Identify which privilege is being invoked.
• Determine its exact scope (who, what, where, when, and how much force).
• Decide whether the defendant’s conduct remained within that scope or went beyond it.

Key Term: Incomplete Privilege
A defense to an intentional tort that does not fully protect the defendant from liability, either because the doctrine itself only partially excuses liability (e.g., private necessity) or because the defendant exceeded the privilege’s scope.

Complete vs. Incomplete Privilege

A complete privilege operates as a full defense: if properly invoked and not exceeded, the defendant has no liability for the privileged conduct. Examples include:

• Properly exercised self-defense using reasonable, proportionate force.
• Public necessity—destroying property to avert a serious public disaster.
• Arrest under valid legal authority with reasonable force.

An incomplete privilege either:

• Protects the defendant from liability for only part of their conduct, leaving them liable for the rest (e.g., excessive force in self-defense), or
• Protects against liability for the invasion itself but not for actual damage caused (e.g., private necessity, recapture-of-chattels trespass).

Key Term: Scope of Privilege
The range of conduct (including time, place, purpose, and degree of force) that a particular privilege permits. Conduct outside this range is unprivileged.

Key Term: Partial Defense
A defense that reduces, but does not eliminate, the defendant’s liability—for example, by excusing the technical tort but requiring payment for actual harm.

A recurring pattern: a privilege is complete so long as the defendant’s belief and response are reasonable and constrained; it becomes incomplete when the defendant goes further than the law allows.

When Privilege Is Incomplete

A privilege is incomplete or lost in several common situations:

• Excessive force
  The defendant uses more force than is reasonably necessary (e.g., deadly force in response to minor non-deadly aggression).

• Improper object of force
  The privilege protects people more strongly than property. Defense of property alone almost never permits deadly force.

• Timing problems
  The defendant acts before any threat exists, or continues to act after the threat has ended—for example, continuing to detain someone after suspicion is dispelled.

• Limited-scope privileges
  Some privileges (like private necessity or trespass to recapture chattels) are inherently qualified: the invasion is justified, but the defendant must pay for damage caused.

• Improper motive or malice
  Even within the technical bounds of a privilege, acting with spite or for a purpose unrelated to the privilege can result in loss or limitation of protection in many jurisdictions.

Key Term: Loss of Privilege
The situation where a defendant forfeits the protection of a privilege by acting outside its permitted scope—through excessive force, improper timing, or improper purpose.

Exceeding the Scope of Privilege

If a defendant goes beyond what is permitted, courts typically separate:

• The portion of conduct that is within the privilege (no liability), and
• The portion that is outside the privilege (liability).

For example, self-defense allows only reasonable, proportionate force. If a defendant facing a shove responds with a prolonged beating, they are privileged to use some force but liable for the excess.

Exceeding the scope can occur by:

• Using a greater degree of force than necessary.
• Acting for a longer duration than necessary (e.g., detaining a suspect after the need for investigation ends).
• Engaging in a privileged act in an unreasonable manner (e.g., setting deadly traps for trespassers to defend property).

On the MBE, this often appears in questions where the defendant clearly had some justification but went too far. The correct answer will often note that the privilege provides a partial or qualified defense only.

Self-Defense and Defense of Others

Self-defense and defense of others are classic examples where a privilege can shift from complete to incomplete depending on the amount of force.

Key Term: Self-Defense
A privilege allowing a person to use reasonable force to protect themselves against an actual or reasonably apparent imminent harmful or offensive contact.

A defendant may use:

• Non-deadly force when they reasonably believe it is necessary to prevent imminent harm.
• Deadly force only when they reasonably believe they face an imminent threat of death or serious bodily harm.

As long as the belief and the force used are reasonable and the threat is imminent, the privilege is complete.

The privilege becomes incomplete if:

• The defendant’s belief is unreasonable, or
• The defendant uses force that is disproportionate to the threat, or
• The defendant continues to use force after the threat has ended.

The same structure applies to defense of others: the actor may use reasonable force if they reasonably believe the third person would be entitled to use self-defense. Excessive or continued force after the danger passes results in loss of privilege for the excess.

Worked Example 1.1

[A hiker, caught in a sudden storm, breaks into a private cabin to seek shelter. The owner sues for trespass and property damage. Is the hiker fully protected by privilege?]

Answer:
No. The hiker has the incomplete privilege of private necessity. The trespass itself is privileged—no liability for the entry—but the hiker must pay for any actual damage to the property.

(Private necessity is addressed in detail below.)

Defense of Property and Recapture of Chattels

Defense of property is more limited than defense of persons.

Key Term: Defense of Property
A privilege allowing reasonable, non-deadly force to prevent or terminate another’s unlawful interference with land or chattels.

Key points:

• Only non-deadly force is permitted to protect property alone.
• Mechanical devices (e.g., spring guns) are judged by the same standard: a landowner cannot do indirectly, via a device, what they could not do directly.
• If a defendant uses deadly force solely to protect property, there is generally no privilege for that force; liability will attach.

Recapture of chattels involves a related, but distinct, incomplete privilege.

Key Term: Recapture of Chattels
A privilege allowing an owner to use reasonable, non-deadly force and limited trespass to regain possession of wrongfully taken personal property, typically only in fresh pursuit.

Important limits (and why the privilege is incomplete):

• The owner must be in fresh pursuit of someone who has wrongfully taken the chattel.
• Only reasonable, non-deadly force is allowed.
• The owner may enter another’s land to recapture the chattel if the chattel is on the land through no fault of the owner (e.g., property blown by the wind).
• This entry is privileged as to trespass, but the privilege is qualified: the owner must pay for any actual damage caused during the entry.

Worked Example 1.2

[A shopkeeper reasonably suspects a customer of theft and detains her for questioning, but continues to hold her after it becomes clear she is innocent. What is the result?]

Answer:
The shopkeeper initially has a privilege to detain, but it is limited in scope. Once the suspicion is dispelled, the privilege ends. Detention after that point is unprivileged, and the shopkeeper is liable for false imprisonment for the period of continued detention.

Worked Example 1.3

[A farmer’s tarp blows onto a neighbor’s land during a storm. The next day, the farmer enters the neighbor’s field without permission to retrieve the tarp and accidentally damages several plants. The neighbor sues for trespass and property damage. How does privilege apply?]

Answer:
The farmer has a qualified privilege to enter to recapture the chattel because the tarp ended up on the property through no fault of the farmer. The trespass itself is privileged, but the privilege is incomplete: the farmer must pay for the actual damage to the plants caused during the entry.

Shopkeeper’s Privilege and False Imprisonment

Bar exam questions often test the shopkeeper’s privilege as an incomplete privilege when the shopkeeper oversteps.

Key Term: Shopkeeper’s Privilege
A privilege allowing a shopkeeper to detain a person for a reasonable time and in a reasonable manner, based on a reasonable belief that the person has stolen or is attempting to steal goods.

Elements for a complete privilege:

• Reasonable belief that theft has occurred or is being attempted.
• Reasonable time of detention (typically only long enough to investigate or await police).
• Reasonable manner, including reasonable, non-deadly force.

The privilege is incomplete or lost when:

• The shopkeeper uses excessive force (e.g., deadly force or rough physical violence when unnecessary).
• The detention continues longer than reasonably necessary, or after the suspicion is clearly resolved.
• The detention occurs in an unreasonable place or under unnecessarily humiliating conditions.

In such cases, the shopkeeper remains privileged for any initial reasonable detention, but is liable for false imprisonment or battery for the unreasonable aspects (e.g., the excessive force or extra time).

Worked Example 1.4

[A shopkeeper reasonably believes a customer has slipped a small item into her bag. He politely asks her to step into a back room and waits ten minutes for police to arrive. During the wait, he restrains her by tightly binding her hands, causing bruises. Is he protected?]

Answer:
The shopkeeper’s initial detention (reasonable belief, short time) is privileged. However, binding the customer’s hands so tightly as to cause injury is an excessive use of force, beyond what the privilege allows. The privilege is incomplete: the shopkeeper is liable for the battery caused by the excessive force.

Necessity: Public vs. Private

Necessity justifies interferences with property to prevent greater harm. The bar exam distinguishes sharply between public and private necessity.

Key Term: Public Necessity
A complete privilege allowing a person (often a public official) to intentionally interfere with property to prevent a serious and imminent public disaster, without liability for resulting property damage.

Examples: destroying a building to create a firebreak; commandeering a vehicle to evacuate citizens from a fast-moving wildfire. When public necessity applies, there is no liability, even for substantial damage.

Key Term: Private Necessity
A qualified privilege allowing a person to interfere with another’s property interests to protect their own person or property (or that of a small number of others) from a serious, imminent harm.

Private necessity:

• Privileges the entry or interference (no liability for the trespass), but
• Leaves the actor liable for actual damage caused.

Additional limits:

• The harm must be serious and imminent, often unexpected (e.g., sudden storm). Ongoing, predictable difficulties (such as general poverty) usually do not qualify.
• The property owner may not expel the person acting under private necessity in a way that exposes them to danger; if the owner does so and harm results, the owner can be liable.

Worked Example 1.5

[A boater caught in a sudden dangerous storm ties her boat to a privately owned dock, causing damage to several pilings. The dock owner sues for trespass and property damage. What result?]

Answer:
The boater’s entry and mooring are privileged by private necessity—no liability for trespass. However, the privilege is incomplete. The boater must pay for the actual damage to the dock.

Legal Justification and Arrest Privileges

Some privileges arise from legal authority, especially in false imprisonment cases.

Key Term: Legal Justification
A privilege allowing detention or restraint when done under valid legal authority (such as a lawful arrest warrant or statutory arrest power) using reasonable force and in a reasonable manner.

Examples include:

• Police officers making a lawful arrest based on a valid warrant or probable cause.
• Statutorily authorized detentions (e.g., mental health commitments) when procedures are followed.

The privilege is complete so long as the officer acts within the authority and uses reasonable force. It becomes incomplete or is lost when:

• The officer uses excessive force (liable for battery for the excess).
• The detention is unreasonably prolonged after legal grounds cease.
• The officer detains someone outside the scope of the warrant or statute.

Worked Example 1.6

[A police officer executes a valid arrest warrant and handcuffs the suspect. The suspect does not resist. After the suspect is in the patrol car, the officer repeatedly strikes the suspect to “teach him a lesson.” How does privilege apply?]

Answer:
The officer’s initial arrest and handcuffing are privileged under legal justification. However, the later beating is not reasonably related to effectuating the arrest or ensuring safety and constitutes excessive force. The privilege is lost as to the beating, and the officer is liable for battery for that unprivileged conduct.

Exam Warning

Exceeding the permitted force, acting after the privilege has ended, or invoking a privilege that only partially excuses liability (like private necessity or recapture of chattels) will result in an incomplete privilege. On the MBE, separate carefully what conduct is privileged from what is not, and allocate liability only to the unprivileged portion or to the actual damage the qualified privilege requires the defendant to pay.

Revision Tip

When analyzing privilege, always ask: What privilege applies? What is its scope (who, what, where, when, and how much force)? Did the defendant stay within that scope? If not, identify precisely where the privilege is incomplete or lost and whether the defendant must pay only for excess force, for actual damage, or for the entire tort.

Summary

Incomplete privilege arises when a defense to an intentional tort does not fully protect the defendant. This may be because the doctrine is inherently qualified (as with private necessity and recapture-of-chattels trespass), or because the defendant exceeded a normally complete privilege by using excessive force, acting for too long, or acting with an improper objective. In such cases, the defendant may be:

• Fully protected as to some aspects of the conduct,
• Obliged to pay only for actual damage caused, or
• Liable for the entire tort once the privilege is lost.

Careful attention to the nature and scope of each privilege is essential for accurate MBE analysis.

Key Point Checklist

This article has covered the following key knowledge points:

• A privilege is complete only while the defendant’s conduct stays within its defined scope.
• Incomplete privileges either excuse the invasion but require payment of actual damages (e.g., private necessity, recapture of chattels) or protect only part of the defendant’s conduct (e.g., reasonable portion of self-defense).
• Self-defense, defense of others, and legal justification are lost or limited when the defendant uses excessive force or continues after the threat or authority ends.
• Defense of property is narrowly confined to reasonable, non-deadly force; deadly force for property alone is unprivileged.
• Shopkeeper’s privilege allows reasonable, limited detention of suspected shoplifters, but becomes incomplete when force, time, or manner are unreasonable.
• Public necessity is a complete privilege; private necessity is incomplete and requires payment for damage.
• On the MBE, always separate privileged conduct from unprivileged excess and determine whether the privilege is complete or only partial.

Key Terms and Concepts

• Privilege
• Incomplete Privilege
• Partial Defense
• Scope of Privilege
• Loss of Privilege
• Self-Defense
• Defense of Property
• Recapture of Chattels
• Shopkeeper’s Privilege
• Public Necessity
• Private Necessity
• Legal Justification