Shoplifting is a major concern for most retailers, and larger retailers make a significant investment in security equipment and loss prevention personnel in order to prevent theft, to identify probable shoplifters, and to catch people who are attempting to steal merchandise from a store. While most stores do a good job of identifying probable shoplifters, and only stopping or detaining suspected shoplifters when they have adequate legal cause do to so, some stores are less careful and any store can make a mistake.
Although compliance with the following factors is not required in order for a store to detain a suspected shoplifter, or for the shoplifter to be successfully prosecuted, by following best practice guidelines a store can minimize the likelihood that it will detain somebody who has neither stolen nor attempted to steal merchandise, and avoid potential liability for wrongful detention:
Seeing the Shoplifter Approach the Merchandise: A shoplifter may claim to have entered the store with the merchandise they are alleged to have stolen, for example to complete a return. Actually observing the shoplifter near the merchandise will help the store establish that the shoplifter had the opportunity to steal the item.
Seeing the Shoplifter Select the Merchandise: If the shoplifter is observed actually removing the item from the store's shelves and placing it into a cart or bag, or concealing it on their person, it becomes more difficult for the shoplifter to later contend that they had the item in their possession when they entered the store.
Seeing the Shoplifter Conceal or Carry Away the Merchandise: Many customers will remove merchandise from a shelf, examine it, then return it to the shelf. If the shoplifter is seen removing an item and then either hiding it or removing it to a different part of the store, it becomes more difficult for the shoplifter to claim to have returned the item. In contexts where direct observation is not possible, such as fitting rooms, item counts can be used to document that a customer went into a fitting room with more items than they left behind after leaving the fitting room.
Continuously Observing the Shoplifter: A customer who appears to be shoplifting may in fact have set down merchandise in a different part of the store, perhaps because they changed their mind about the purchase or because they found another item that was more to their liking in that new location. Experienced shoplifters may realize that they are being observed by loss prevention personnel and find a location to dump the items that they were planning to steal. With constant observation, a store can be reasonably certain that the items that they believe to be in the suspected shoplifter's possession will remain in their possession at the time they intercept the suspect.
Seeing the Shoplifter Fail to Pay For the Merchandise: Even though a suspected shoplifter may objectively appear to be intent on stealing an item, may have partially or completely consumed a food item, may have removed price tags from an item or be wearing unpurchased clothing, or may have concealed the item on their person or in a bag or stroller, the suspect may profess that they fully intended to pay for the item before they left the store. Once the shoplifter passes the point of purchase, either having purchased other items or without making any purchase at all, it becomes much more difficult for them to argue that they intended to pay.
Approaching the Shoplifter Outside of the Store: Once the shoplifter leaves the premises with unpurchased merchandise, it becomes extremely difficult to dispute that they intended to steal the unpaid items.
While a store's following best practice guidelines will help ensure the successful prosecution of shoplifters, the guidelines exist in part to minimize the possibility of civil liability. A store's failure to follow proper procedure may cause it to be the target of a civil lawsuit by a wrongly detained customer based on theories such as battery or unlawful detention. At the same time, it is not necessary to follow best practices in order to secure sufficient evidence to support the conviction of somebody who is actually caught attempting to steal merchandise.
Each state has different laws pertaining to shoplifting. In some states, a customer's concealment of merchandise of itself creates a presumption of intent to steal, and it can be very difficult for a shoplifting suspect to avoid conviction even if they were detained the moment after they removed an item from a store shelf and (for example) placed it into their pocket or purse instead of a shopping basket or cart. Carrying merchandise past the point of purchase is compelling evidence of intent to steal, and criminal convictions routinely occur even when a shoplifter is detained before stepping outside of a store.
Every state has passed a law that grants some level of immunity to retailers that exercise reasonable care when they identify and detain a shoplifter, so as to minimize the chance that a store can be sued for detaining an actual shoplifter or acting in good faith upon facts that would make a reasonable person believe that a suspect had shoplifted merchandise. The specifics of the laws vary, but they usually allow for a reasonable amount of physical contact to restrain and detain a suspected shoplifter, and for the shoplifter to be detained for a reasonable amount of time in order to establish whether shoplifting occurred and to summon the police.
In order to help retailers recover money lost to shoplifting, including the cost of their loss prevention programs, states have passed laws permitting retailers to issue a demand for compensation, or civil demand, to suspected shoplifters. These demands usually allow the merchant to recover the value of merchandise that was not recovered or could not be resold, an additional charge that is often based upon a multiple of the value of the merchandise stolen, as well as certain collection costs or attorney fees. A civil demand is independent of any criminal prosecution, and payment of the money will not result in the dismissal of a pending criminal charge.
A common concern raised by parents, and sometimes by teenage shoplifters themselves, is whether the store has the right to detain underage shoplifters, or to detain them and question them about their actions without informing their parents of the detention. Merchant immunity laws do not distinguish between adults and minors.
While a store should exercise caution not to wrongly detain a minor, when a merchant has reasonable cause to believe that shoplifting occurred they may take appropriate action to stop and detain the suspect, investigate their suspicion and summon the police, even if the suspect is a minor.
State civil demand laws often allow a store to demand restitution from a minor's parents after they catch a minor shoplifting.
A retailer should consider that it could be sued as the result of any detention for shoplifting. People accused of shoplifting may accuse a store of defaming them, publicly embarrassing them, injuring them during apprehension and detention, false arrest, sexual impropriety, unlawful detention (false imprisonment), extortion, negligent hiring and retention of underqualified or potentially dangerous staff....
A store can to a lot to minimize the risk of a lawsuit by:
- properly screening, training and supervising its staff,
- implementing and enforcing best practice guidelines,
- using surveillance video to document the proper treatment of a suspect during apprehension and detention, and
- minimizing any period of detention by promptly involving the police or releasing suspects against whom no criminal charges will be pursued.
A store should never imply that a suspect can avoid a criminal charge by paying a fine.
Once the police are summoned, and conduct an independent review of the evidence, a decision by the police to press charges or by a prosecutor to authorize charges will make it difficult to impossible for a suspected shoplifter to sue a retailer based on a claim that the retailer lacked probable cause for the stop and detention. An exception might arise when the detention is unreasonably long, perhaps due to the failure of loss prevention staff to contact the police within a reasonable time after detaining the suspect.
As should go without saying, the manner of the detention and the conduct of any searches of a suspect create the possibility of a claim of mistreatment or misconduct.
Stores should be very careful about what physical contact is permitted between its loss prevention staff and a suspected shoplifter, whether in relation to the force used to stop a suspected shoplifter from leaving the premises or parking lot, or in whether, how and where any subsequent search is to be performed and who conducts the search.
Stores have faced significant liability following accusations of excessive force in their detention of shoplifters, including wrongful death claims where a suspect has passed away during an encounter with LPs or a forcible detention.
For a search of a suspect's person, it will often be most appropriate to wait for a police officer to arrive and perform any search. Care must be taken to avoid accusations of sexual misconduct.
The most common reasons that store might be sued for wrongful detention of a shoplifter relate to a store's carelessness in identifying and accusing the suspect. That is, the store's employees fail to properly observe acts that create reasonable suspicion of shoplifting, unreasonably detain somebody without sufficient evidence of criminal activity, or continue to detain a person who they no longer suspect of shoplifting.
For example, a customer might enter the store and have what a loss prevention officer (LP) believes to be store merchandise in her purse or pocket, but when detained it turns out that the item isn't even carried in the store's inventory. The LP is unlikely to be able to substantiate that he followed proper procedures to create probable cause for the detention.
Refusing to Concede Error
An LP can worsen the situation by continuing to insist that the customer stole merchandise and refusing to release her, even though his stated reason for stopping her has proved to be a mistake.
In one noteworthy case, a minor was in a store with friends who were caught shoplifting. All of the minors were detained, but upon review of the evidence and surveillance tapes the first minor was determined not to be involved. The police, summoned by the store, also reviewed the evidence and concurred with that finding. The store issued a civil demand to the minor they had already determined to be uninvolved, and attempted to have the minor prosecuted when the demand was ignored. The store ended up having to pay a substantial amount of money based on theories of malicious prosecution and extortion.
A retailer may create problems for itself if it presents a civil demand to a suspected shoplifter and indicates that they won't charge the shoplifter if the amount of money they demand is paid on the spot. Where the accusation against the shoplifter is weak or made in error, the store may find itself sued for extortion and wrongful detention.