Frequently Asked Questions (FAQ)
We get a lot of great e-mail questions from retail store managers, loss prevention staff, shoplifters, parents, and from the media. We posted some of the questions and answers here for your benefit.
The punishment for theft varies from state to state based on the charges filed, the value of the merchandise, prior convictions, and age of the person arrested. This is a life-altering matter that your friend should take seriously by hiring a criminal defense attorney and get legal advice on how to properly defend himself in court.
Store security obviously has a different story and believes that you intended to steal the batteries. They could be mistaken. Your options now are to appeal to the store manager to review the allegation and overrule store security or be prepared to defend the charge in court with the aid of a competent attorney. Be sure to obtain evidence of your prior battery purchase and witnesses to back up your story.
In some states, concealment alone completes the crime of theft (shoplifting) regardless of whether you changed your mind or not. Concealment of merchandise completes the specific intent necessary for the criminal charge. Most stores will not detain you if they see you dump the stolen merchandise, but you cannot count on this. Seek advice for an attorney for legal advice.
Yes, you can sue for almost anything including false arrest and false imprisonment. Before you rush out to hire a civil attorney, hire a criminal defense lawyer first for legal advice and deal with the criminal charge against your son. Investigate objectively whether your son had any awareness of the planned theft and if his version is totally accurate. More importantly, consider the message you are sending to your son by blaming the store for the bad behavior of a group of his friends. I would also be concerned about the group your son hangs around with and what other trouble might befall him.
5. My 17-year-old daughter was detained for shoplifting, handcuffed, and taken to the back room. She was later released by store security. Can I sue the store for false arrest, excessive use of force, and false imprisonment?
Yes, you can sue for almost anything including false arrest, excessive use of force, and false imprisonment. Before you think about filing a lawsuit however, shouldn’t you learn if your daughter actually committed a crime or not? Retail stores will sometimes release persons lawfully detained for shoplifting once they have recovered their merchandise. Usually the store will obtain a written admission from the shoplifter first and release them with a warning never to return to the store. This practice is lawful in many states and reduces the case load in the courts as well as time away from the job for store security. See Shoplifting False Imprisonment for more details.
No! Store customers have a reasonable expectation of privacy in places like dressing rooms and restrooms. It is unlawful to have surveillance inside those private areas. However, retail stores can closely monitor what a customer takes in and out of dressing rooms and can base a shoplifting detention on merchandise missing from the count. See Shoplifting Probable Cause for more details.
No! Most states allow in-store detentions as long as the elements of the crime of theft are complete. However, most large retail chains have a policy to make detentions outside of the store, if possible, to remove any doubt as to the intent to shoplift.
8. I have been fired from my job as a store cashier and charged with the crime of shoplifting because I sold merchandise to a friend using my employee discount. How can I be charged with shoplifting…is this legal?
Although this is an unusual criminal charge to be filed against an employee, under these circumstances, it is still a crime to conspire with another to take merchandise from a store with paying the full sale price. Abuse of an employee discount can be cause for termination if the benefit is abused. I’ve seen employee violations like this charged as burglary, embezzlement, conspiracy to commit theft, and fraud in different jurisdictions. I suggest seeking legal advice from a competent criminal attorney. See my webpage on Employee Theft for more information.
Exit bag checks are a store rule…not a law. Ordinarily, customers are not legally bound to comply with store rules. However, many private membership stores have language in the fine print of the application requiring members to show a receipt upon exit as a condition of membership. My advice is to cooperate with these exit bags checks knowing that the store is making a radial attempt to reduce inventory losses. If you still disagree with the pratice, don't shop in the store or become a member. See my webpage on Exit Bag Checks for more details.
These exit alarms are part of the store Electronic Article Surveillance (EAS) inventory system to reduce theft loses. Merchandise is tagged with small sensors that are supposed to be deactivated at the point of sale. Alarm activation usually means one of four things: 1) concealed merchandise is being stolen, or 2) an item was not deactivated correctly at the point of sale, or 3) an active sensor is brought in from another retailer, or 4) the EAS Antenna is malfunctioning. The store cannot tell for certain which event was true in your case. Most stores have a policy of having a cashier (not security) ask the customer to cooperate in checking to see if an EAS tag was not deactivated properly. This search must be voluntary unless probable cause exists to believe that a theft has occurred. This tag search practice, if done professionally, will locate the active tag and/or stolen merchandise without fanfare. I recommend a little tolerance and have a understanding that the store has to take this radical security measure to reduce its inventory loses. Obviously, the demeanor of both parties makes a big difference in the awkwardness of this transaction.
It depends on the totality of the circumstances. Most shopping centers create “rules of conduct” for customers to make the shopping experience enjoyable and safe for everyone. The act of sitting on a bench is not a serious event…heck, husbands can spend hours on the bench waiting for their wives to finish shopping. Some people just like to people-watch. However, the rule of time limits on benches might be applied to groups of persons causing a disturbance, men leering a women or children, or teenagers attracting a crowd, making too much noise, or blocking the aisle.
Since shopping centers are private property, the owners or their agents can ban certain customers for the mall for violating reasonable mall rules. By doing this they invoke the state trespass laws that makes it a crime for the unwanted customer to remain on or return to the premises. This practice may become discriminatory if the rules are unreasonable or are applied in an inconsistent or unfair fashion that tends to target federally protected classes of people. Check with a discrimination attorney for legal advice. See my webpage Shopping Center Trespass Warnings for more information.
12. Two weeks ago, I was detained for switching a price tag from $395 to $45. I was banned from the store, and released, but today I received a letter demanding that I pay the store $150. This seems like extortion, can I still be arrested if I don’t pay?
You committed a felony and should be nervous for being caught. Usually, the store will call the police while you’re still in custody if it’s their intention was to arrest you. However, it is still possible to arrest you two weeks later, but it sounds like the store was satisfied by recovering the item, identifying you, and now making a civil demand for money.
In California, a civil demand by a merchant is allowed by law (490.5f Penal Code) to reimburse the store for having to hire people to catch you. I helped draft the language of this law over 25 years ago. No, it's not extortion. I suggest that you pay this amount promptly and be thankful that you don't have a felony conviction and are not in jail.
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