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What is Shoplifting?
Shoplifting is the crime of stealing merchandise for sale in a retail store. To commit the crime of shoplifting, one must intend to permanently deprive the store owner or merchant of the merchandise. This is done usually by concealing the merchandise in a bag or pocket and walking out of the store without paying.
Detaining a Shoplifter: Shopkeeper's Privilege
A merchant can physically detain a suspected shoplifter, but runs the risk of being liable for false arrest, false imprisonment, malicious prosecution, excessive use of force, and/or assault if his suspicions are incorrect.
Some states have enacted laws called "Merchant or Shopkeeper's Privilege" to allow merchants to make reasonable investigative detentions of a customer suspected of shoplifting. Though such laws remain vague as to what exactly constitutes "reasonable" and "detainment", usually, the Shopkeeper's privilege allows for reasonable force and a detainment in a reasonable manner and amount of time if there is a reasonable belief that theft has occurred.
“Shopkeeper’s Privilege” is a protection against liability; i.e. the business will be shielded from lawsuits concerning false arrest, battery, or any other potential charges resulting from the detainment. The privilege is extended to businesses through the correct process of detainment, not the result. As long as the business follows the proper procedure, it doesn’t matter if the merchant was correct or not about the shoplifting. If the merchant fails to properly follow the procedure, however, the business may still be held liable.
Some guidelines a merchant can go by to minimize the potential for a false arrest claim by establishing a high degree of probable cause for the detention and arrest of a person suspected of shoplifting:
- Witness the shoplifter select, and conceal or carry away the merchandise.
- Maintain continuous observation of the shoplifter.
- Witness the shoplifter's failure to pay for the merchandise. These three steps create “probable cause”, reasonable suspicion that shoplifting had taken place.
- Apprehend the shoplifter inside or near the store.
- Usage of reasonable, non-deadly force if any force is necessary. For example, if suspect attempts to flee or resist detainment.
- Detainment lasts only as long as it takes to make a reasonable investigation.
The Limits of Shopkeeper’s Privilege
The purpose of Shopkeeper’s Privilege is to retrieve the stolen goods and to offer businesses a level of protection against shoplifting. Merchants or those acting for merchants, such as hired security, are only allowed to detain suspects, not arrest them. A police officer may arrest a suspect and move them to a prison or police station until charges are read or bail is given. Detainment means imprisoning the suspect long enough to make a reasonable investigation about the property or merchandise in question. Merchants or their representatives cannot force a confession from the suspect. Any searches performed should be curtailed to the purpose of locating the item(s).
Do I Need to Speak With a Lawyer Concerning Shoplifting Charges?
State laws vary as to the type of criminal prosecution that follows a shoplifting attempt. If you have been accused of shoplifting or the unlawful detainment of a shoplifter, you may want to seek the advice of a criminal lawyer who can advise you of the laws of your state and any possible defenses you may have.
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Last Modified: 12-28-2015 10:38 AM PST
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