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In our first edition of legal corner, we would like to review some of the basic concerns that a retailer must deal with in trying to stop shoplifting. One of the most important aspects in apprehending a shoplifting suspect, is to make sure that the loss prevention agent actually saw the suspect take the item or switch the price tag on the item itself. This observation can be done by actual physical observation or by camera. If the loss prevention agent has lost sight of the suspect, you are at risk if you stop the suspect and he or she does not possess the item any longer, due to the fact that they either dumped the merchandise or gave it to someone else while they were out of the agent's view. For example, a few years ago an agent of a major retailer lost sight of an individual whom the agent had observed walking with merchandise in a suspicious manner. Unfortunately, as the agent observed the suspect leaving the store, he lost track of the suspect for a few seconds. During that brief time, the suspect abandoned the merchandise before exiting the store. The agent, believing the suspect still had the item in his possession, subsequently stopped the suspect in the store parking lot.

The agent properly identified himself as security and told the suspect that he suspected him of taking merchandise without paying for it. The suspect told the agent, that he did not have any merchandise and had put the items back near the register. Had the incident ended at that point, nothing more would have come of the episode but the agent did not believe him and ordered him back into the security office. When the suspect refused, the agent handcuffed the suspect and took him back to the office. Of course the suspect had nothing on him and because the agent did not follow the basic rule of keeping a suspect in sight at all times, and assumed the suspect still had the item when he passed all points of purchase, his action wound up costing the retailer thousands of dollars in a lawsuit filed by the suspect.

Handcuffing of a suspect should be used only in extreme circumstances, i.e., where the suspect is violent or has tried to evade detention once he has been contacted by loss prevention agents. Even in these situations, one must be careful how the suspect is handcuffed. You might be right in handcuffing a suspect, but if the suspect is injured in the process, it can cost you.

We have all heard stories where a suspect is handcuffed to the wall or table for a long time. If you are in an area where the police are going to take over 30 minutes to come and get the suspect, we would suggest that you make sure that the suspect's wrist is not being injured, i.e., the handcuffs are not on too tight and that you provide water and try to make the suspect comfortable. No one is saying that you are to coddle this individual, however, you have to keep in mind that the suspect will almost certainly tell a lawyer that he was mistreated while being detained.

A retailer does not have to be one hundred percent certain that a suspect that has been detained did in fact shoplift an item. Many states have what is called a "shopkeepers privilege" which allows a retailer to detain a suspect if the retailer reasonably believes that a shoplifting incident occurred. However, should you have problems when investigating a suspected shoplifting incident you need to be alert as to the time such an investigation is taking. For example, the Courts in West Virginia have found that the length of detention is a factor that the court will look at to determine if the stop is valid or if the "shopkeepers privilege" applies. The court ruled that a detention over 30 minutes is too long.

We would also suggest that your security office have cameras in them so that the events of the investigation are recorded. This can only help you in any subsequent litigation if the stop is reasonable from the beginning.

While a majority of the states permit a loss prevention agent to search a suspect's person and possessions, do not assume that every state permits such actions. If it does not, and you proceed with the search and the ultimate arrest of the individual, there is a possibility that the criminal case will not be able to go forward. This would result in the suspect being released and once again, the possibility of a lawsuit for false arrest.

The civil demand statutes in most of the states are not "either /or" statutes. In other words, you can bring a civil action against the individual suspect and also proceed with criminal prosecution. In those states where a retailer must decide either to proceed civilly or pursue criminal charges, this provision is usually clearly expressed in the statute as it is in, for example, Tennessee's recovery statute. However, the Appellate Courts in Montana and Nebraska, have held, that if the store seeks a civil penalty and criminal prosecution and the suspect has in fact paid the "civil demand", then double jeopardy applies and he cannot be criminally prosecuted.

The "Civil Demand" statutes that the states have passed, were designed to help the merchants recover the cost for the apprehensions as well as for the damage to the merchandise. They were also developed with the hope that the penalties imposed will act as a deterrent. We are aware, that the professional thief will not be deterred by the penalty. However, the individual who gets caught the first time will think about it in the future, especially if the shoplifter is a minor whose parents will be civilly liable for the demand amount.

The money received is not to be considered an increase in profits. In fact, in some states, the Attorney General has specifically indicated that the money received by the merchants should be earmarked for the loss prevention department and should be used to off set the cost of the security personnel as well as the equipment.

Neal C. Tenen, Esq.

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