Shopkeepers Privilege Law

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 What Is the Shopkeeper's Privilege?

The Shopkeeper’s Privilege is also known as the Merchant’s Privilege. This refers to the legal right of a shopkeeper or store owner to detain a suspected shoplifter on their premises for a reasonable period of time, so long as the shopkeeper has probable cause to believe that the person has stolen or is attempting to steal merchandise. This privilege is intended to balance the shopkeeper’s interest in preventing theft and the individual’s right to personal liberty.

Merchant privilege laws are derived from common law and are now codified in state statutes in the United States, each having slightly different language and specifications. These merchant protection statutes typically limit the privilege to non-deadly force and a reasonable duration of detention.

What Is the Procedure for Properly Exercising Shopkeeper’s Privilege?

The procedure for properly exercising the Shopkeeper’s Privilege generally involves:

  • Observation: The shopkeeper, or their employee, should observe the suspected individual from the time they enter the store until the alleged act of theft.
  • Concealment: The suspect must be observed concealing merchandise or somehow making it obvious that they intend to steal.
  • Continuous surveillance: The suspect must be under continuous observation to ensure that they do not discard the merchandise.
  • Apprehension past the last point of sale: The suspect must be approached and detained after passing the last point of sale without paying for the concealed item(s).
  • Reasonable time and manner: The detention must be conducted in a reasonable time and manner. It should not be physically abusive or unnecessarily long.

The level of probable cause needed to exercise the privilege is generally lower than what is required by police officers for an arrest (high degree of probable cause). While the legal standard can vary, a reasonable belief that a theft has occurred is often sufficient.

Detention does not necessarily mean that the suspected individual needs to be taken into police custody. The shopkeeper’s privilege allows for the detention of the individual for a reasonable period and in a reasonable manner for the purpose of investigation. This could include questioning the individual or waiting for the police to arrive.

Lastly, while the Shopkeeper’s Privilege is generally applied to cases of theft, it could be invoked in other circumstances where there’s a reasonable belief that a crime has been committed on the premises. However, the application may vary by jurisdiction, and the shopkeeper may be held legally responsible if the detention is found to be unreasonable or if the suspicion is found to be unwarranted. Always consult local laws or a lawyer in your jurisdiction for precise guidance.

What States Have the Shopkeeper’s Privilege?

Most states in the U.S. have some form of shopkeeper’s privilege, either derived from common law or specified in their statutory laws.

For example, in Nevada, the shopkeeper’s privilege is established by statute NRS 597.850, which allows merchants to lawfully detain suspected shoplifters in a reasonable manner and for a reasonable length of time, provided they have reason to believe the person has stolen merchandise. The privilege can also serve as a defense to certain civil claims and criminal charges, including false imprisonment and unlawful citizen’s arrest.

However, the shopkeeper’s privilege does not provide a defense to battery charges, so merchants should try to use as little force as possible in detaining the suspect​.

In California, shopkeepers can also use reasonable force to detain a shoplifter if they have reasonable cause to believe the person was shoplifting.

Can a Merchant Use This Privilege to Stop Anyone?

A merchant cannot use the Shopkeeper’s Privilege to stop anyone without a reasonable cause. This privilege allows store owners or their employees to stop and detain individuals they reasonably believe have committed or are attempting to commit theft within their premises. This requires probable cause, not just a hunch or suspicion. In other words, there must be some factual basis for believing the person has stolen or is attempting to steal.

This principle prevents arbitrary or discriminatory enforcement and respects the rights of patrons to be free from unlawful detention. The shopkeeper’s privilege must always be balanced against an individual’s constitutional rights. If the privilege is used to stop a person without probable cause or reasonable belief, it can lead to claims of false imprisonment, racial profiling, or other civil rights violations.

What if the Privilege Is Not Exercised Properly?

If the Shopkeeper’s Privilege is not exercised properly, the merchant or store owner can face several legal consequences. The individual detained may sue the store or the specific employees involved for:

  • False imprisonment: This is the unlawful restraint of a person without consent or legal justification. If a person is detained without sufficient cause or for an unreasonable length of time, it can be considered false imprisonment.
  • Assault and battery: If the detainee was physically harmed or threatened during the detention, they could have grounds to sue for assault and/or battery.
  • Intentional infliction of emotional distress: If the detention was carried out in an extremely outrageous manner or caused severe emotional distress, a claim could potentially be made for intentional infliction of emotional distress.
  • Defamation: A defamation claim could be possible if false statements were made about the individual that harms their reputation.

In addition to the potential civil liabilities, improper exercise of the shopkeeper’s privilege could also lead to criminal charges such as assault or false imprisonment, depending on the circumstances and the jurisdiction. It’s crucial that merchants and their employees are trained and understand how to exercise this privilege to avoid unnecessary legal complications properly.

Is Stopping the Shoplifting the Same as a Citizen’s Arrest?

While stopping a shoplifter under the Shopkeeper’s Privilege and making a citizen’s arrest may seem similar, they are not the same thing.

The Shopkeeper’s Privilege is a specific law that allows a merchant to detain a suspected shoplifter for a reasonable time and in a reasonable manner for investigation. The intention is to prevent theft and recover stolen goods without the need to involve law enforcement for minor instances of theft.

A citizen’s arrest, on the other hand, is a concept where a citizen can arrest another individual if they witness a felony being committed or have reasonable cause to believe that a felony has been committed. The exact laws and conditions regarding a citizen’s arrest can vary by jurisdiction. In many places, a citizen’s arrest can only be made for felonies, not misdemeanors. Therefore, most instances of shoplifting would not qualify for a citizen’s arrest.

Can the Use of Shopkeeper’s Privilege Lead to an Arrest?

It’s possible. If the merchant detains a suspected shoplifter and then contacts law enforcement, the police may arrive and make a formal arrest if they find there’s enough evidence of theft. However, the decision to arrest is ultimately up to law enforcement and the judicial system, not the merchant.

Should I Contact a Lawyer About the Shopkeeper’s Privilege?

If you have questions about the Shopkeeper’s Privilege, whether as a merchant who’s experienced theft or as a person who has been detained under this law, it would be beneficial to consult with a criminal law attorney. They can guide you through the legal implications and help you understand your rights and obligations.

You can use LegalMatch, which connects you with lawyers in your area based on the specifics of your legal case and preferences. LegalMatch can help you find a qualified attorney to assist you with your legal concerns surrounding the Shopkeeper’s Privilege.

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