¶1specially concurring:
¶2I concur with the majority that the conviction of the appellant of a violation of A.R.S. § 13-1303(A) must be reversed but for a different reason.
¶3In my opinion, the referred to unlawful imprisonment statute does not provide a criminal sanction against a parent based upon the place where his or her child may be housed or confined. To the extent that a child may be endangered by his or her physical surroundings, another criminal statute, A.R.S. § 13-3619, provides a criminal sanction applicable to a parent under such circumstances. In any event, I agree with the observation in the majority opinion which condemns as reprehensible the conduct underlying the present case.
¶4My view is based entirely on the plain language of A.R.S. §§ 13-1303(A) and 13-1301(2). The former reads, “A person commits unlawful imprisonment by knowingly restraining another person.” A.R.S. § 13-1301(2) states in part: “ ‘Restrain’ means to restrict a person’s movements without consent and without legal authority .... ” (emphasis added).
¶5The phrase “without legal authority” is the controlling concept for this case. In my opinion, the phrase refers to the relation*594ship between the person restraining and the person restrained. Contrary to the majority, I do not believe that the existence of “legal authority” depends upon the “reasonableness” of the restraint. Since “reasonableness” is a factual question to be resolved by a trier of fact, the determination of what is or is not a reasonable restraint would be left to jury determination in each case without any standard by which to be guided. I do not believe this is what the legislature intended in using the phrase “without legal authority.” To the contrary, the phrase seems clearly to suggest that where a legal status exists which ordinarily will entail control or discipline, such as that of parent and child, the crime of unlawful imprisonment is inapplicable. This view appears to be consistent with the statement in Gerber, Criminal Law of Arizona, p. 183 (quoted in the majority opinion), that “whether a restraint is without legal authority is a matter of law to be decided by the court and not the jury. If the court determines that the restraint was with legal authority, there will be a directed verdict of acquittal. If the court determines that the restraint was without legal authority, no question will be presented to the jury on this issue.”
¶6For the reasons stated, I disagree with the majority conclusion that “a parent having lawful custody of a child may, under appropriate circumstances, be held to have committed the crime of unlawful imprisonment in violation of A.R.S. § 13-1303(A).” There are criminal sanctions and civil actions available in Arizona for the protection of children against the custodial parent. In my view, unlawful imprisonment under A.R.S. § 13-1303(A) is not one of them.
¶7Assuming, however, that the majority view of A.R.S. § 13-1303(A) is correct, I am unable to agree that a defense under A.R.S. § 13-1303(B)(2) has been shown. In this posture, I would disagree with the majority holding that the judgment of acquittal should have been granted.
¶8A.R.S. § 13-1303(B)(2) provides that it is a defense that:
The defendant is a relative of the person restrained and the defendant’s sole intent is to assume lawfui custody of that person and the restraint was accomplished without physical injury. (Emphasis added).
¶9In my opinion the plain wording of this provision is to give one not having present custody a defense if the physical restraint over the “victim” occurs where the defendant undertakes action to gain or acquire lawful physical custody. This appears to be directed at child custody situations arising from marriage dissolution. In any event, there is nothing in the present case to indicate that appellant’s sole intent was “to assume lawful custody.” On the contrary, she already had lawful custody, or so it appears. Therefore, I disagree that the defense has been shown and if the majority’s interpretation of A.R.S. § 13-1303(A) were correct, I would affirm the conviction.