Most states, if not all, have enacted what is commonly called a Merchant's Privilege statute. The statutes were enacted to grant merchants and their employees (or their agents) the right to detain suspected shoplifters and grant them protection from lawsuits, provided the merchant has followed the requirements. The language is different in every state, but it generally requires that the detention be based on probable cause that the person detained committed a theft; the detention was for investigative purposes; the detention was for a reasonable amount of time; and the detention was done in a reasonable manner.
The issue is that the various Merchant Privilege statutes fail to spell out what is probable cause, just how far the merchant can go in investigating, what is a reasonable time and what is a reasonable manner. This is for the individual courts to decide when a Plaintiff files a lawsuit claiming the merchant failed to follow the tenets of the Merchants Privilege statute.
Although not all-encompassing, here is a list of points retailers should consider regarding litigation avoidance:
- Never make a "bad" or questionable stop.
- Never make a false arrest.
- Never injure a customer.
- Never assault a customer.
- Never improperly search a customer.
- Never fail to investigate a suspect's claim of innocence.
- Never fail to document.
- Never fail to admit errors in dealing with shoplifters.
- Never fail to apologize when in the wrong.
This may sound like a long list of things not to do, but I have seen all of these points appear in security-related civil litigation cases against retailers.
These words bear repeating: "The best way to avoid a lawsuit is to keep it from being filed; the best way to encourage a lawsuit is to pretend no wrong occurred and/or try to cover it up."
Curtis Baillie, CSC, is president of Security Consulting Strategies LLC. He is a member of the International Association of Security Consultants (IAPSC) and a frequent contributor to SecurityInfoWatch.com.