False Arrest Claims
A retail store makes a choice when it decides to apprehend and arrest those who attempt to steal their merchandise. Making that choice creates a legal responsibility of doing it correctly. This involves the proper hiring, training, and supervising those who make shoplifter apprehensions and arrests. In the retail loss prevention profession, the possibility of falsely accusing and detaining a customer for theft is a business reality that must be addressed.
In the United States, citizens value their civil liberties and constitutional rights and don't appreciate submitting to unlawful seizure and search. Because of this, there has been a legal trend of suing the retail store anytime a customer is wrongfully accused of shoplifting. In recognition of this, the retail security and loss prevention industry have developed six universally accepted steps to minimize the potential for a false arrest claim.They are:
- You must see the shoplifter approach the merchandise
- You must see the shoplifter select the merchandise
- You must see the shoplifter conceal, convert or carry away the merchandise
- You must maintain continuous observation of the shoplifter
- You must observe the shoplifter fail to pay for the merchandise
- You must apprehend the shoplifter outside the store
If these six steps are followed, false arrest situations and subsequent lawsuits will be almost nonexistent. These six steps were designed to establish a high degree of probable cause for detention and arrest of a person suspected of shoplifting. If one of these steps is skipped, the chance for false arrest increases proportionately. If two or more steps are skipped, the store personnel are acting recklessly towards customers and are exposing the store unnecessarily to liability and false arrest claims. Remember, state law may not require this high degree of care for criminal prosecution.
The word "false arrest" is very distasteful to the retail industry, so it has created several alternate words to describe the event. Less offensive words are used instead like "non-productive detention" or "unproductive stop" or "investigative detention". All of these words have been used in place of false arrest so not to seemingly admit liability. Whatever the terminology, if you stop a customer that is not holding stolen merchandise, you have the potential for a false arrest claim.
Many states have enacted legislation to protect the merchant from such false arrest claims by allowing the store to make "investigative detentions" of a customer suspected of shoplifting. In these jurisdictions, the law allows certain latitude or "merchant's privilege" if the merchant has a reasonable belief that a customer has stolen merchandise. In many jurisdictions, law allows the merchant to detain a customer for a reasonable time, and in a reasonable manner, for the purpose recovering the stolen merchandise or for summoning the police.
The problem with these statutes is that they are vague as to what "reasonable" means and what the word "detain" means. Some merchants have overly relied on this statutory language to protect them from lawsuit only to discover later that it would not relieve them of liability.
In most jurisdictions, a reasonable belief that someone has shoplifted does not include a stranger’s observation and report. Customers are often unreliable in what they report and it is considered unreasonable to detain and accuse someone of theft based solely on a customer observation. Besides, the customer and shoplifter could be working together to set up the store for a false arrest claim. Untrained sales associates can also be unreliable in their observations. Many store chains do not allow apprehensions on the word of a sales associate alone.
While detaining someone, you must do so in a reasonable manner. Tackling and injuring a customer in the parking lot over suspected petty theft might be deemed excessive, especially if no other means of detention were attempted first. Detentions must also be for a reasonable time period. Holding someone for three hours while you investigate a check, credit card, coupon, or refund fraud attempt is excessive. Some jurisdictions have a problem with police response times that may take over two hours to respond to your store. This business reality must be factored into the store policy of detaining shoplifters or releasing them after recovering the merchandise.
Hiring & Training
The best way to limit false arrest situations is hiring, training, and supervising competent staff. It is usually considered negligent management to have a policy of apprehension and arrest of shoplifters if the store personnel have no training on how to do so correctly. It is also negligent management if you fail to supervise loss prevention staff and their reports that indicates violations of company policy, violation of the civil rights of customers, or use of excessive force.
Use of Force
It is usually considered negligence if a store employee uses excessive force when apprehending a suspected shoplifter. It requires special training to understand how to routinely apprehend shoplifters while only using minimal force. Tackling, punching, and verbal abuse of shoplifters are never acceptable. Excessive or unreasonable use of handcuffs, leg restraints, chokeholds, or pain compliance holds are also inappropriate when dealing with those suspected of retail theft.
You run the risk of a false arrest claim when you:
- Don’t observe the customer approach a display
- Don’t observe the merchandise being selected from the display
- Don’t see the merchandise being concealed, carried away or converted (i.e. eaten etc)
- Don’t maintain continuous observation and the shoplifter dumps the item
- Don’t watch the check stand and verify the non-payment of the item
- Don’t detain the shoplifter outside the store (or at least past the last register)
- Don’t detain only the person directly responsible for the theft
To avoid other related claims:
- Approach from the front (so the shoplifter doesn’t think you’re a robber)
- Have at least one witness of the same sex present at all times
- Have at least one more backup than the number of shoplifters
- Clearly identify yourself as the store representative or security officer
- State the reason for the detention and ask for the item back
- Don’t be afraid to immediately disengage and apologize if you make a mistake
- Listen for spontaneous utterances (i.e. "I forgot to pay for it")
- Closely escort the shoplifter to a private office
- Do not chase the shoplifter through the store
- Always be polite and professional even if the shoplifter is not
- Do not use excessive force (i.e. double lock handcuffs)
- Do not make threats or exchange insults
- Accommodate reasonable medical and handicap requests
- Process the arrest swiftly according to store policy
- Save, tag, and photograph the stolen merchandise as evidence
- Cooperate with the police and appear in court, if necessary
For More Information:
- Shoplifting Articles
- Shoplifting: Facts
- Shoplifting: Probable Cause
- Shoplifting: Detention & Arrest
- Shoplifting: False Imprisonment
- Shoplifting: Excessive Use of Force
- Loss Prevention Exit Bag Checks
- Employee Theft