Shopkeeper's privilege

The privilege to detain, although recognized in many jurisdictions, is not as broad as a police officer's privilege to arrest.{{cite web|title=Cervantez v. J.C. Penney Co., 595 P.2d 975, 982 & n.5 (Cal. 1979)|url=https://scholar.google.com/scholar_case?case=9559415024528178754|website=Google Scholar|accessdate=6 November 2017}} If the shopkeepers exceed the bounds of this privilege and make an arrest, the lawfulness of their action will be determined by the jurisdiction's rules governing arrest by a private citizen. The shopkeepers' privilege is for the purpose of investigation only; if, after reasonable detention and investigation, the shopkeepers mistakenly conclude that the suspects are guilty and have them arrested, the shopkeepers may become liable for these acts just as they would have been had they committed the acts without undertaking a prior detention and investigation.{{cite journal|title=The Protection and Recapture of Merchandise from Shoplifters|journal=Northwestern University Law Review|date=1952|volume=47|page=90|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/illlr47&div=14&id=&page=|accessdate=6 November 2017}} Statutes in many states have modified and in some cases broadened the common law privilege, for example, by expressly permitting detention of the suspect until the police arrive.{{cite web|title=Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871, 876 (N.Y. 1972)|url=https://scholar.google.com/scholar_case?case=11995369245140909433|website=Google Scholar|accessdate=6 November 2017}} In other cases, case precedent has provided shopkeepers with similar tools.{{cite web|title=Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539 (Sup. Ct., Tex., 1998)|url=https://scholar.google.com/scholar_case?case=17159519265033714409|website=Google Scholar|accessdate=6 November 2017}} The practical effect of these extensions is to give the shopkeeper the same privilege as a police officer to make an arrest on reasonable grounds.{{cite web|title=People v. Jones, 393 N.E.2d 443, 445 (N.Y. 1979)|url=https://scholar.google.com/scholar_case?case=12640126213220744237|website=Google Scholar|accessdate=6 November 2017}}; {{cite web|title=State v. Hughes, 598 N.E.2d 916, 918 (Ohio C.P. 1992)|url=https://scholar.google.com/scholar_case?case=12141474160248748812|website=Google Scholar|accessdate=6 November 2017}}

This privilege has been justified by the practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon their suspicion and risking a false arrest.See § 120A {{cite book|title=Restatement (second) of Torts|date=1965|publisher=American Law Institute|isbn=0314012710|url=https://books.google.com/books?id=J642AQAAIAAJ|accessdate=6 November 2017}}

The privilege for the most part is to be able to return the stolen goods by determining ownership. The shopkeeper may not force a confession. The shopkeeper's privilege does not include the power of search.William L. Prosser, Proceedings of the 34th Annual Meeting of The American Law Institute, 1957 A.L.I. PROC. 283 (remarks of Mr. William L. Prosser, Reporter) Some courts, however, have expanded this original common law privilege to also include the detention of criminal trespassers: "[t]he detention and removal of a criminal trespasser is an essential power of any shopkeeper or other property owner[.]"{{cite web|title=Durante v. Fairlane Town Ctr., No. 05-1113, 201 F. App'x 338, 342 (6th Cir. Oct. 18, 2006) (unpublished)|url=http://www.opn.ca6.uscourts.gov/opinions.pdf/06a0773n-06.pdf|website=United States Court of Appeals for the 6th Circuit|accessdate=6 November 2017}}

In seeking to avail themself of the shopkeeper's privilege, the proprietor or agent thereof must ensure:

1. The investigation is conducted near or on the premises; the detention itself should be effected either on the store premises or in the immediate vicinity thereof. The privilege likely would not apply to after-the-fact questioning of a suspected thief who had left the store's property. While the common law does permit the owner of goods acting on fresh pursuit to use reasonable force to recapture their goods from one who actually took them wrongfully, in doing so the property owner acts at their own peril.See § 101, 103, {{cite book|title=Restatement (second) of Torts|date=1965|publisher=American Law Institute|isbn=0314012710|url=https://books.google.com/books?id=J642AQAAIAAJ|accessdate=6 November 2017}} Moreover, the investigation must be to determine ownership of the property, not to force a confession.{{cite web|title=Moffatt v. Buffums', Inc., 69 P.2d 424 (Cal. Dist. Ct. App. 1937)|url=https://scholar.google.com/scholar_case?case=15536485097427307188|website=Google Scholar|accessdate=6 November 2017}}
2. The shopkeeper has reasonable grounds to suspect the particular person detained is shoplifting.
3. Only reasonable, nondeadly force is used to effect the detention. Such force being justified when the suspect is in immediate flight or violently resists detention.
4. The detention itself lasts only the time necessary to make a reasonable investigation of the facts. Fifteen minutes may be too long where all that is necessary is to ask the cashier whether the detainee has paid.

In cases where a shopkeeper fails to satisfy the aforementioned requisite conditions, they lose the privilege and may face liability under local criminal statutes and civil torts. However, so long as these conditions are established, the shopkeeper is immune from liability for false arrest, battery, etc., even when it is discovered after the investigation that the person detained was innocent of any wrongdoing.{{cite journal|last1=Christman|first1=Steven M.|last2=Mark|first2=Jillian M.|title=Guidelines on Dealing With Suspected Shoplifters|journal=New York Law Journal|date=19 May 2014|url=https://www.law.com/newyorklawjournal/almID/1202655685175/|accessdate=6 November 2017}}

The common law shopkeeper's privilege has been superseded in most states by so-called shoplifting statutes, or merchant's statutes, that allow merchants, their employees, and their agents to detain suspected shoplifters for: the investigation of merchandise or property ownership, the recovery of unpurchased merchandise or property, and the summoning of a police officer.Robert A. Brazener, Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 A.L.R. 3d 998 (1973)

• Retail loss prevention

Category:Retail processes and techniques

Category:Theft

Category:Security

Category:Tort law

Category:Retailing-related crime