Definition
To detain means to hold, stop, or restrain a person or thing from proceeding. The term operates across several distinct legal contexts, and the legal consequence of detention turns almost entirely on which context applies.
1. Criminal/constitutional context: To detain a person is to restrict their freedom of movement, whether briefly or for an extended period. Not every police stop rises to the level of an arrest, and "detain" is frequently used to describe the intermediate category of temporary seizure — a stop short of formal arrest. This distinction carries significant constitutional weight.
2. Property/landlord-tenant context: To detain property or premises is to withhold possession from a party entitled to it. "Unlawful detainer" is the formal cause of action a landlord brings to recover possession of premises wrongfully held by a tenant after the tenancy has ended or a lease has been violated.
3. Immigration context: To detain an individual is to hold them in administrative custody pending immigration proceedings or removal. Immigration detention operates largely outside the criminal justice framework, creating a distinct body of law.
4. Goods and civil process: To detain goods is to hold them back from their owner, whether by a lien-holder, a bailee, or a government official exercising seizure authority.
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Common Language
Modern common usage (Wiktionary): To keep something or someone from proceeding; to delay; to put someone under custody; to seize goods for official purposes.
Historical common usage (Webster's 1913): To restrain from proceeding; to stay or stop; to delay. Also, to hold or keep in custody; to withhold.
The gap between common and legal meaning is subtle but consequential. In ordinary speech, "detain" often suggests mere delay — a teacher detains a student after class, a traffic jam detains a motorist. In legal usage, the word carries formal liberty and property implications. A person who has been "detained" by law enforcement has been seized within the meaning of the Fourth Amendment, even if released within minutes. A tenant who "detains" premises is subject to summary judicial proceedings. Researchers importing the casual sense of the word into legal sources will misread the stakes involved.
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Common Confusion
DETAIN vs. ARREST: These terms are frequently conflated in both popular writing and older legal sources. An arrest is a full custodial seizure with formal legal consequences — booking, charging, the right to a probable cause hearing. A detention (or investigatory stop) is a temporary restraint, often justified by reasonable suspicion rather than probable cause. The modern distinction is well-established constitutionally, but historical sources use the terms more interchangeably. Researchers working in pre-twentieth century materials should not assume the modern distinction applies.
DETAIN vs. HOLD: In immigration law, "hold" or "ICE detainer" describes a request by federal immigration authorities to a local jail to continue holding an individual beyond their release date. This is technically distinct from the act of detention itself, though the terms bleed together in practice and in commentary.
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Why It Matters in Research
The word "detain" is a jurisdictional and contextual chameleon. In a constitutional law search, it implicates Fourth Amendment seizure doctrine. In a landlord-tenant search, it is the operative word in the cause of action. In an immigration search, it triggers an entirely separate statutory and regulatory regime. Researchers who run undifferentiated searches on "detain" or "detention" across the corpus will retrieve results from all three contexts simultaneously.
Historical sources — including Bouvier's — use "detain" broadly, often without distinguishing the criminal from the civil property sense. Bouvier's entry ("to stop; to delay; to restrain from proceeding") captures the general meaning but does not flag the constitutional dimension that dominates modern criminal procedure analysis. That constitutional framework developed almost entirely in the second half of the twentieth century; sources predating that period cannot be expected to reflect it.
Jurisdictional variation matters most in the unlawful detainer context: the procedural rules for summary possession proceedings differ significantly by state, and the name of the action itself varies — some jurisdictions use "summary possession," "forcible entry and detainer," or "ejectment" for what others call "unlawful detainer." Searching only under "detain" in a state-specific property law research task may miss synonymous causes of action.
In immigration research, the voluntariness of local compliance with ICE detainer requests — and the constitutional limits on federal authority to compel that compliance — is an actively litigated area. Corpus materials on this topic may reflect law that has shifted significantly even in recent years.
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Historical Dictionary Support
Bouvier's entry is terse but accurate at the general level: "to stop; to delay; to restrain from proceeding." The citation to 55 S.W. 687 grounds the definition in case usage, though Bouvier's does not elaborate on context. The entry reflects the classical common law understanding of detain as a verb of restraint applicable to both persons and property — a neutral word that derives its legal significance entirely from what is being detained and by whom.
Webster's 1913 adds the withholding-of-property sense explicitly ("to keep back or from; to withhold") alongside the restraint-of-persons sense, and its biblical and literary examples illustrate that ordinary usage already covered both dimensions. This is useful confirmation that the word's ambiguity between persons and property is not a modern development but is embedded in the term's history.
What neither source addresses is the constitutional valence the term acquires in American law — the Fourth Amendment framework for evaluating whether a detention is a "seizure," the reasonable suspicion standard for brief investigatory stops, or the due process concerns that attach to prolonged immigration detention. Those developments are beyond the scope of historical dictionaries and must be traced through constitutional case law and statutory materials.
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Jurisdictional Note
Unlawful detainer procedure varies substantially by state. California, for example, has a detailed statutory scheme (Code of Civil Procedure § 1161 et seq.) with strict timing requirements; other states use different procedural vehicles or terminology for the same underlying action. Federal immigration detention is governed by federal statute and regulation and operates independently of state criminal detention law, though the two intersect when local jails hold individuals pursuant to ICE detainer requests.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia: Landlord-Tenant — Eviction — Summary Proceedings and Unlawful Detainer.
The Law Mind Immigration Law Encyclopedia: ICE Detainers — Legal Authority, Fourth Amendment Challenges, and Judicial Warrants.
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