Definition
Detainer has three distinct legal meanings that operate largely independently of one another. Researchers must identify which sense is at issue before proceeding.
1. WITHHOLDING OF PROPERTY. The act of keeping another person's goods, land, or other property from someone who is lawfully entitled to possession. The original taking need not have been wrongful — detainer focuses on the continued withholding, not the initial acquisition. A person who lawfully distrains cattle as a damage feasant remedy, for example, commits an unlawful detainer if the owner tenders sufficient amends and the distrainor refuses to release.
2. RESTRAINT OF PERSONAL LIBERTY. The withholding of a person's freedom of movement against their will. In this sense, detainer is closely related to false imprisonment and unlawful restraint. It may be lawful (a prisoner held under valid process) or unlawful (confinement without legal justification).
3. CRIMINAL JUSTICE / IMMIGRATION HOLD. A formal instrument — commonly called a "detainer" or "hold" — lodged by one governmental authority with another requesting that a person already in custody be held beyond their normal release date so that the requesting authority may take custody. This is the dominant modern administrative sense and encompasses both inter-jurisdictional criminal detainers (one jurisdiction requesting another to hold a prisoner) and immigration detainers issued by federal immigration authorities requesting local jails or prisons to hold individuals for potential civil immigration enforcement.
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Common Language
Modern common usage (Wiktionary): "The right to keep a person, or a person's goods or property, against his will; a type of custody."
Historical common usage (Webster's 1913): "The keeping possession of what belongs to another; detention of what is another's, even though the original taking may have been lawful. Forcible detainer is indictable at common law. A writ authorizing the keeper of a prison to continue to keep a person in custody."
The common-language definitions are not wrong, but they flatten a distinction that matters in legal research: in ordinary usage, "detainer" sounds like a simple synonym for detention or custody. In law, the term carries procedural weight — it is also an instrument (a written hold or request) with its own rules about authority, enforceability, and challenge. A researcher who treats "detainer" as a pure synonym for "detention" will miss the entire body of law governing the validity and contestability of detainer instruments.
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Common Confusion
DETAINER vs. DETENTION: Bouvier's draws the most useful distinction in the historical sources: detention describes the factual state of being held; detainer emphasizes an act done by a person — the withholding — and increasingly, the formal legal instrument accomplishing it. The terms are functionally interchangeable in older property contexts but sharply diverge in modern criminal procedure and immigration law, where a detainer is a specific administrative document with its own legal standards.
DETAINER vs. DETINUE: Closely related but distinct. Detinue is a common-law cause of action to recover specific personal property wrongfully withheld. Detainer is the act of withholding. Detinue is the remedy; detainer is the wrong. Researchers in historical sources will encounter both terms in close proximity, and Burrill explicitly connects detainer to the underlying possession dispute that detinue addresses.
UNLAWFUL DETAINER vs. FORCIBLE DETAINER: These are related but not identical. Forcible detainer involves the use or threat of force to maintain possession of real property; unlawful detainer is the broader category of wrongful withholding without force. Most modern summary eviction statutes use "unlawful detainer" as the operative label, while "forcible detainer" retains a distinct criminal or quasi-criminal character at common law.
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Recognized Forms
/SUBTYPES
FORCIBLE ENTRY AND DETAINER (FED): The combined offense — and the associated summary legal remedy — arising when a person unlawfully enters and then holds real property by force or intimidation. FED statutes are the direct ancestors of modern unlawful detainer eviction proceedings and appear throughout American and English legal history under this label.
UNLAWFUL DETAINER: The civil summary proceeding by which a landlord seeks to recover possession of real property from a tenant (or former tenant) holding over, failing to pay rent, or otherwise in breach. Codified in virtually every American jurisdiction. The proceeding is summary by design — it bypasses the delays of ordinary civil litigation to restore possession quickly.
CRIMINAL DETAINER / INTER-JURISDICTIONAL HOLD: A request by one prosecuting or corrections authority to another to retain custody of an incarcerated person for transfer or further prosecution. Governed in part by the Interstate Agreement on Detainers (IAD) among participating jurisdictions.
IMMIGRATION DETAINER (ICE HOLD): A request from U.S. Immigration and Customs Enforcement (or its predecessors) to a state or local law enforcement agency to hold a person beyond their scheduled release for up to 48 hours to allow federal immigration authorities to assume custody. The legal authority and constitutional status of these detainers — particularly under the Fourth Amendment — is actively contested in federal courts.
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Why It Matters in Research
The term "detainer" is a trap for the inattentive researcher because it performs three entirely different jobs in legal literature and those jobs have evolved at different rates.
In property and landlord-tenant research, the historical trajectory runs from common-law forcible entry and detainer to modern statutory unlawful detainer proceedings. Pre-20th-century sources will use "forcible entry and detainer" almost exclusively; post-World War II sources shift toward "unlawful detainer" as the operative term for eviction proceedings. A researcher tracking eviction law must follow both labels across the corpus. The Law Mind Property Encyclopedia entry (property_28) addresses the modern summary proceeding framework directly.
In personal liberty contexts, detainer in historical sources is bound up with habeas corpus — the writ of habeas corpus was the primary vehicle for testing the legality of a detainer. Researchers reading old English or early American sources will find "detainer" used where a modern practitioner would say "unlawful restraint" or "false imprisonment."
In criminal procedure, the Interstate Agreement on Detainers introduced a specific statutory framework beginning in the 1950s and 1960s that codified procedures for inter-jurisdictional holds. Historical sources predate this framework entirely and will not illuminate it.
The immigration detainer is the newest and most contested subtype. Historical dictionaries are silent on it because it is a creature of modern administrative practice. Researchers working in this area should not expect historical legal dictionaries to provide useful guidance — the operative questions are constitutional (Fourth Amendment seizure doctrine, anti-commandeering principles) and administrative. The Law Mind Immigration Encyclopedia entry (immigration_88) is the appropriate starting point.
One persistent trap: when historical sources refer to a "writ of detainer" or describe a "process which lies against persons in custody" (Burrill), they are referring to an English procedural instrument authorizing continued imprisonment — not the modern administrative immigration detainer. These should not be conflated.
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Historical Dictionary Support
The historical dictionaries converge on the core meaning — detainer as wrongful withholding of property or liberty — but diverge in emphasis and coverage.
Black's (both editions) leads with the property-and-liberty definition and flags the lawful-origin-unlawful-continuation distinction clearly: an initially lawful taking can ripen into an unlawful detainer through the passage of time or a triggering event like tender of amends. This point appears consistently across Rapalje & Lawrence and Black's and is genuinely useful doctrine, not just historical color.
Bouvier's offers the most precise conceptual distinction between detainer and detention — a distinction that subsequent dictionaries tend to collapse. Bouvier's observation that detainer emphasizes the act done by a person (rather than the abstract factual state) anticipates the later administrative sense of detainer as a document issued by a person or authority.
Burrill is the only historical source to note the English procedural instrument — "a process which lies against persons in custody" — and his Latin and Law French citations (detentio, detenue) confirm the term's deep roots in medieval property and imprisonment law.
Anderson's is notably terse, cross-referencing DETINERE and pointing to forcible entry and detainer without adding analytical depth. Useful mainly for confirming the peaceable-entry exception: the original entry may have been peaceable; detainer addresses what happens afterward.
None of the historical dictionaries address immigration detainers, criminal inter-jurisdictional holds under the IAD, or the Fourth Amendment dimensions of administrative holds. For anything post-1960 in the administrative or immigration context, historical dictionaries provide no guidance and should not be cited as authority.
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Jurisdictional Note
Unlawful detainer statutes vary significantly by state in their procedural requirements, notice periods, grounds for summary process, and tenant defenses. A researcher using historical sources to understand modern unlawful detainer proceedings must verify the current statutory framework for the relevant jurisdiction rather than assuming common-law or uniform rules apply. Immigration detainers present a separate jurisdictional layer: a number of states and localities have enacted laws limiting local law enforcement cooperation with federal immigration detainer requests, creating significant variation in how and whether such detainers are honored.
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Encyclopedia Cross-Reference
property_28: Landlord-Tenant — Eviction — Summary Proceedings and Unlawful Detainer (The Law Mind Property Law Encyclopedia)
immigration_88: ICE Detainers — Legal Authority, Fourth Amendment Challenges, and Judicial Warrants (The Law Mind Immigration Law Encyclopedia)
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