Calif. shopkeeper's privilege to stop suspected shoplifters is limited

March 05, 2014 (Press-News.org) Calif. shopkeeper's privilege to stop suspected shoplifters is limited

Article provided by Heller LaChapelle, APC
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Everyone has heard horror stories about innocent people detained by store security personnel on suspicion of shoplifting, sometimes receiving personal injurywhen roughed up in the process. In California, however, the traditional "shopkeeper's privilege" or "merchant's privilege" to do so is carefully spelled out by state statute and shoppers whose rights are violated by security guards going too far in their efforts to stop theft may have legal remedies.

While shoplifting is obviously a major expense for retailers, their treatment of suspects must be reasonable under the circumstances and compliant with the law.

The California civil shoplifting law

The California civil shoplifting law, ironically in the Penal Code, in addition to the criminal penalties for "petty theft involving merchandise," also establishes a merchant civil recovery lawsuit against shoplifters; defines the limits of customer treatment in detention; and provides a merchant defense against shopper suits for improper detention.

Civil suits and demand letters

Under the statute, a retailer may sue an adult or emancipated minor who "has unlawfully taken merchandise" for civil damages in the range of $50 to $500, plus costs. If the stolen item can no longer be sold, the shoplifter is liable for its retail value.

The Wall Street Journal has reported on a widespread practice by retailers of sending letters to suspected shoplifters demanding money to keep the stores from suing the shoppers in civil actions like that allowed by the California law. Apparently, the problem is that many intimidated, fearful consumers will just pay what is asked rather than give up the time and expense of fighting back, even when they are innocent of the shoplifting charges.

Indeed, the California law only allows such a suit when the defendant "has unlawfully taken merchandise," which is different than only being suspected of doing so. The Wall Street Journal also describes a pattern of some stores making such demands without the true intent to sue anyway.

Security personnel limits

The California civil shoplifting law also carefully spells out what retailers may and may not do in a suspected shoplifter detention:
-The merchant must have probable cause that the shopper was trying to or did shoplift.
-The merchant may ask for the item back.
-If the shopper refuses to surrender the item, and there is probable cause, the merchant's authorized personnel may conduct a "limited and reasonable search" for the merchandise.
-The suspect's clothing may not be searched, only "packages, shopping bags, handbags or other property in the immediate possession" of the shopper.
-If the item is recovered or surrendered, the merchant may ask for proof of identity, but may not require it.
-A "peace officer" may search the person after taking custody of the suspect.

Legal remedies for suspected shoplifters

Any Californian who has experienced an improper search in store detention, including one involving injury or improper restraint, should discuss with an experienced California personal injury attorney potential legal remedies such as a personal injury lawsuit to recover money damages, potentially for physical injuries, defamation, false imprisonment, false arrest, assault, battery, emotional distress, medical expenses and more.

Further, should the victim of such a detention receive a demand letter from the store asking for money in exchange for the retailer not suing the shopper or making other financial threats, a lawyer can advise the consumer how to respond and whether other legal rights exist. Depending on the circumstances, the store's action may constitute fraud or an unfair business practice, or violate consumer protection laws.