The Negligent Detention of Shoplifters


I’d like to share a case of Negligent Detention by a major retailer of two “suspected shoplifters” that took place over two years ago. Of course, I’m not naming the subjects or retailer involved, but can tell you this case was settled, in favor of the plaintiffs, for a very sizeable sum of money and could have been avoided if the retailer’s agents and management staff had use an ounce of common sense. I’ve written extensively on the topic of Litigation Avoidance and this case points directly to what went wrong and how it could have been avoided.
First off, every state has what is called a “Merchant Detention” or Shopkeeper’s Liability” statute. The state in which this detention occurred has a particularly strong statute that allows a retailer to stop and question suspected shoplifters biased on “probable cause.” Probable cause, as defined by most states, is the retailer has reasonable suspicion to believe the suspect has taken merchandise belonging to the retailer. That is a very simplified definition and readers should determine what constitutes probable cause in their respective state.
Some of the facts surrounding this case are:

1.      This occurred on a busy weekend just before school was to open.

2.      The retailer had three Loss Prevention Officers on duty at the time of occurrence.

3.      The retailer had a detailed Loss Prevention Manual that contained very specific actions to be taken when apprehending a suspected shoplifter, and

4.      The Loss Prevention Officers had all received training, which was documented in their personnel folders.

The “suspects” are family members who traveled to the store (about 25 miles from their home) to shop, as the retailers did not have a store in their immediate shopping area. After spending approximately, one hour shopping in the store the suspects presented their selections to a cashier who proceeded to ring the merchandise and remove the Electronic Security Tags from the merchandise. The shoppers paid for the merchandise and proceeded to exit the store through the EAS system. The system was activated and the suspects were asked to return so the Loss Prevention Officer (LPO) could check their purchases. The LPO determined that one article still had the EAS tag on it and they were directed to a register where the tag was removed. While passing through the EAS detector the system again triggered an alarm. Once again the shoppers returned to the LPO and it was determined that another article had an EAS devise on it. Once again, the scenario was repeated and again as they passed through the detector the alarm went off.

After the third activation, the shoppers asked that all of the merchandise in the bags be checked against their sales receipt. When the retailer did this, they determined there were three items in the bag that had not been rung up by the cashier and several items still had EAS devices on them. The senior LPO was called to the check stands and after being apprised of what had happened, asked the shoppers (now suspects) to follow them to an office. Once in the office the suspects were told to sit down and were immediately asked what was their relationship with the casher who rang-up their merchandise. They both replied that they did not know the cashier and this was their first time in the store. The LPOs (now there were two in the office with one guarding the door) again (repeatedly) demanded to know how the suspects knew the cashier. This tactic when on for about one-hour and fifteen minutes. Threats of prosecution were made by the store security and when one of the suspects protested, store security threatened to handcuff him, a fifteen-year-old minor. The LPO continually “played” with the handcuffs while the suspects were in the office. The adult suspect asked for their phone so they could call the police and store security repeatedly denied the request. The suspect asked security to call the police and that request was also denied.
The suspects also repeatedly asked for security or a manager to question the cashier to determine if there was a connection with them. The senior LPO finally left the office and questioned the cashier whose response was she didn’t know the suspects. While at the register, the Head Cashier told the LPO that this was the cashier’s first day on the registers where she was allowed to ring customers without supervision and she had caught the cashier ringing merchandise without removing the EAS tags and in fact had failed to ring some of the customers’ merchandise.
At this point, the suspects had been detained in the office about two hours and you would think they would have been immediately released, their purchase properly recorded, apologized to by the Store Manager and given some sort of minor compensation (gift certificate) for their inconvenience – but that was not the case. The LPO took the cashier to another office, questioned her further and took the time to write up a violation notice, all while the suspects were detained and guarded in another office.
Only after this were the suspects released. They were never apologized to and when they asked for the name of the senior LPO and the store manager they were told, “it’s none of your business” and were asked to immediately leave the store. They still wanted the merchandise and the Head Cashier properly rang the sale, removed all of the remaining EAS tags, and then summarily escorted out of the store.

Other interesting facts about this case include, 1)  During the discovery it was determined, through the stores records, 2) the cashier was a new hire and had only completed a few days of the retailer's mandatory five-week cashier training program and, 3) the senior LPO had been disciplined before by another retailer for a like situation. The retailer, in this case, knew this when the LPO was hired.
I share this case as it points out that by using a little commonsense this entire situation could have been avoided. The Plaintiff’s attorney hired me in this case and when I talked with the Plaintiff she repeatedly told me all she wanted at the time this occurred was an apology from the manager, but he refused to talk to her at the time. Let’s see here….. an sincere apology or a major 6-figure settlement what would you have done?