A defense against legal action from suspected shoplifters - retailers and tips on handling shoplifters - Column

Discount Store News, Nov 4, 1996 by Duncan MacDonald

Every day, store owners and their employees are caught between two competing goals: (1) vigilantly protecting their stores and their property from shoplifters and (2) avoiding exposure to legal action by customers falsely accused and detained by overly vigilant store associates.

Fortunately, California law provides some guidelines in this area that also merit close scrutiny by merchants and their lawyers. More importantly, merchants should incorporate the following principals into their policies, procedures and employee training so as to limit potential liability and, it is hoped, to avoid some legal disputes altogether.

In general, California law requires that merchants only detain and accuse shoplifters when they have "probable cause" to believe the customer has stolen or is currently stealing merchandise.

What is "probable cause?" Although there is no crystal clear definition, there are a few general rules of thumb. First, store associates must generally have some legitimate basis to believe that the customer has stolen or is in the process of stealing. A customer seen putting something in his or her bag and walking out without paying would clearly constitute probable cause.

Similarly, if display merchandise disappears after one particularly customer examines it, that too would likely establish probable cause. Suspecting a customer solely because of his age, appearance, race or ethnicity is not sufficient. A store may not legally detain a customer for his or her theft during a prior visit.

Generally, associates should also act reasonably and professionally with all customers, including suspected shoplifters. The employee should politely--but firmly--state the suspicion and ask the customer if she has paid for all of her merchandise.

The associate may take the necessary time to complete his or her investigation, but customers should not be detained for excessive periods of time. It is good practice when speaking with the suspect customer to speak in discrete tones.

Physical force should not be used at all if it can be avoided. If some contact is required, it should be kept to a minimum. Gently escorting a customer by the elbow back into the store is usually acceptable.

If a customers asks if he is under arrest, the associate should answer "no," but add that the store is "detaining" him to investigate a suspect theft.

The associate may request that the customer voluntarily return the merchandise. Under California law, an associate may inspect items held in plain view by the customer for the purpose of ascertaining ownership. Authorized store personnel may also conduct a limited and reasonable search of packages, shopping bags handbags and other property in the immediate possession of the suspect.

An associate may not search the suspected shoplifter's person or clothing. If a merchant believes the shoplifter has hidden merchandise, the merchant should ask that the merchandise be turned voluntarily and, if the suspect refuses, detain him until the polite arrive.

If a customer legitimately claims that she simply forgot to pay, or if she voluntarily returns (or pays for) the merchandise, the store may not want to prosecute. The store should carefully choose those people whom it wishes to prosecute.

By properly training associates, merchants can significantly reduce the risk of costly legal action by customers who, in the exercise of vigilance, have been wrongly accused and detained.

Duncan MacDonald's practice in civil litigation focuses on merchant's rights and trade law. He is an associate with the San Francisco law firm of Gutierrez & Associates.