Shopkeeper's privilege

In many jurisdictions of the United States, the courts recognize a common law shopkeeper's privilege, under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as he has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 22, at 142 (5th ed. 1984).

Limits

The privilege to detain, although recognized in many jurisdictions, is not as broad as a police officer's privilege to arrest. Cervantez v. J.C. Penney Co., 595 P.2d 975, 982 & n.5 (Cal. 1979). If the shopkeeper exceeds the bounds of this privilege and makes an arrest, the lawfulness of his action will be determined by the jurisdiction's rules governing arrest by a private citizen. Id. The shopkeeper's privilege is for the purpose of investigation only; if, after reasonable detention and investigation, the shopkeeper mistakenly concludes that the suspect is guilty and has him arrested, he presumably becomes liable for these acts just as he would have been had he committed them without undertaking a prior detention and investigation. Comment, The Protection and Recapture of Merchandise from Shoplifters, 47 NW. U. L. Rev. 82, 90 (1952). (It should be noted that statutes in many states have broadened the common law privilege by expressly permitting detention of the suspect until the police arrive. Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871, 876 (N.Y. 1972). The practical effect of this extension is to give the shopkeeper the same privilege as a police officer to make an arrest on reasonable grounds. People v. Jones, 393 N.E.2d 443, 445 (N.Y. 1979); State v. Hughes, 598 N.E.2d 916, 918 (Ohio C.P. 1992))

Rationale

This privilege has been justified by the very 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 his suspicion and risking a false arrest. Restatement (second) of Torts § 120A cmt. a (1965).

Purpose

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).

Requirement

The conditions to the privilege to detain for investigation are as follows:

# Investigation on or near 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. (The common law does permit the owner of goods acting on fresh pursuit to use reasonable force to recapture his or her goods from one who actually took them wrongfully, but in doing so the property owner acts at his or her own peril. See Restatement (second) of Torts §§ 101, 103 (1965).) The investigation must be to determine ownership of the property, not to force a confession. See Moffatt v. Buffums’, Inc., 69 P.2d 424 (Cal. Dist. Ct. App. 1937).
# Reasonable suspicion: The shopkeeper must have reasonable grounds to suspect the particular person detained.
# Reasonable force only: reasonable, nondeadly force may be used to effect the detention. Use of force is justified when the suspect is in immediate flight or violently resists detention. Restatement (second) of Torts § 120A cmt. h.
# Reasonable period and manner of detention: The detention itself may be for 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. Restatement (second) of Torts § 120A cmt. f (1965).

A detention can be accomplished under this privilege by means which restrains the suspect party from removing himself from the place or premises where the suspected action or crime occurred, including the use of reasonable force.

If one of the conditions is not satisfied the shopkeeper loses the privilege and may be held liable under local criminal statutes and civil torts.

Note: Reasonable mistake protected: Where 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.

Note: 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. See 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).


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