Large scale retailers in California continually face the threat of a civil lawsuit for money damages in response to their efforts to prevent shoplifting in their stores. However, two California statutes establish separate privileges so that in most circumstances the retailer cannot be held liable for money damages if later sued for assault, false imprisonment, infliction of emotional distress and/or violation of civil rights.
A. California Penal Code Section 490.5
Retailers have a qualified privilege to detain a suspected shoplifter. Penal Code section 490.5(f) contains the statutory privilege that allows retailers to detain for a reasonable time a suspected shoplifter for the purposes of conducting an investigation, including the use of a reasonable amount of non-deadly force to effect the detention of the suspected shoplifter. The qualified statutory privilege also allows the retailer to make a limited and reasonable search of bags or packages in the possession of the suspected shoplifter. The retailer’s conduct is privileged provided they have probable cause to believe the suspect was shoplifting.
i. Reasonable Time
A 20 minute detention of a suspect in the process of stealing was a reasonable time when done to detain him until police arrived. Collyer v. Kress, 5 Cal. 2d 175, 176 (1936). Time periods are held reasonable when the detention is done to stop a theft in progress or contemporaneously to investigate a suspected theft. On the other hand, a five hour detention in a closed office to coerce a confession, from a store employee suspected of theft, was unreasonable.
The practical effect of the reasonable time period is to require retailers to promptly investigate and release the suspect or turn them over to police. Once the retailer has detained a suspected shoplifter and then summoned the police, it is our opinion that the court will find reasonable the amount of time that elapses until the police arrive. The significant issue is how soon after the detention does the retailer call the police.
ii. Use of Non-Deadly Force
In detaining a shoplifter, the merchant may use a reasonable amount of non-deadly force to either protect themselves, prevent the shoplifter from escaping, or prevent damage to property.
In Jones v. K-Mart, 50 Cal. App. 4th 1898, 1901-02 (1996) plain clothes store LPS agents followed plaintiff out the front of the store and said “excuse me” to gain his attention two times and each time Plaintiff turned but continued to walk away. When the LPS agents caught up to plaintiff they grabbed him by the arms and asked him what he did with the items from the store. The agents stated they suspected plaintiff of stealing and were going to search him. Plaintiff identified a cassette tape and was pat searched. Once the agent started to handcuff plaintiff, plaintiff violently resisted. Four to five additional staff members assisted in subduing plaintiff and in the process plaintiff’s shirt was torn off, he was punched in the face and neck, placed in a choke hold and thrown against a vehicle. In dicta the appellate court confirmed that K-Mart successfully asserted the merchant’s privilege and accordingly, used reasonable non-deadly force.
The practical effect of the requirement for use of non-deadly force depends upon the facts of each case. If a detained suspect becomes violent and physical then use of reasonable non-deadly force to restrain and control them appears to come within the ambit of the statutory privilege. If a suspect is not physically resisting then using physical force beyond holding them by the arm is unreasonable. Arm holding and escorts are a safe harbor when detaining a shoplifting suspect.
iii. Investigate in Reasonable Manner
During the time of detention, any items which a retailer has probable cause to believe were illegally taken and which are in plain view, may be examined to determine ownership. Under Penal Code section 490.5(f)(3), a retailer may request the suspect voluntarily surrender any item taken. If the suspect refuses to surrender such item then the retailer may conduct a limited and reasonable search to recover such item. The retailer’s conduct is privileged to inspect only packages, shopping bags, handbags or property in the suspect’s immediate possession with them while detained. Cervantez v. J.C. Penney, 24 Cal. 3d 579, 586 (1979). The statutory privilege does not extend to the retailer searching clothing a suspect is wearing.
iv. Probable Cause
Probable cause is not a question of fact for the jury but a question of law for the court to decide, to be determined by the circumstances at the time of detention. Collyer v. Kress, 5 Cal. 2d 181 (1936). The issue is whether there is probable cause to believe the suspect was attempting to shoplift. Probable cause was found in the following circumstances: (a) when store employees see suspect take merchandise and put it into an overcoat. Id. at 176; (b) observing suspect on camera for 10-15 minutes follow other customers, disappear into a back room reserved for employees only, and realization suspect committed purse theft hours earlier. In re Leslie H., 169 Cal. App. 3d 659; (c) store security guard observed suspects walk from department to department picking up items then looking behind and side to side, suspects took tools into display shed and closed door, suspect exited shed with additional bag. Cervantez v. J.C. Penney, 24 Cal. 3d 579, 586 (1979); (d) store LPS agent observed plaintiff enter store, untuck his shirt, handle various items, and exit the store walking in front of checkout counters without passing cashiers. Jones v. K-Mart, 50 Cal. App. 4th 1898, 1901-02 (1996).
A retailer will meet the probable cause standard when they rely on eyewitness reports or surveillance to substantiate a suspect’s taking store merchandise or other suspicious conduct.
B. California Civil Code Section 47
If the allegations of false arrest/imprisonment, etc. against a retailer arise out of actions taken by a police department after an employee calls them, then the retailer’s actions are absolutely privileged under Civil Code section 47. The practical effect of the privilege means that as long as the report is made to police, regardless of whether correct or incorrect, the actions of the retailer are completely privileged and no civil liability can stem from them.
This privilege was confirmed in the Court of Appeal decision of Hunsucker v. Sunnyvale Hilton Inn, 23 Cal. App. 4th 1498, 1503-04 (1994). In Hunsucker, the absolute privilege applied when an employee, albeit mistakenly, reported criminal activity to her manager who then reported it to police. The police arrested Mr. Hunsucker and handcuffed him in the hotel room for approximately 30 minutes. The police then realized they had made a mistake as to Mr. Hunsucker’s identity and confirmed that there was no criminal activity. Plaintiff sued the hotel for false imprisonment, assault and battery, and deprivation of civil rights. Notwithstanding the seriousness of the actions taken by the police department against plaintiff ( a completely innocent individual), the court held that the communication by the hotel manager to the police was absolutely privileged and no civil liability could flow from it. The court concluded that the importance of free and open access to the police to report suspected criminal activity outweighed the occasional harm that might befall an individual.
We have successfully argued the absolute privilege under Civil Code section 47 both at the demurrer and motion for summary judgment level on behalf of several of our clients including a situation where plaintiff was arrested and ultimately spent 24 hours in jail before being charged with a felony theft offense. The police ultimately concluded that they had charged the wrong person, however, the store’s communication to the police regarding the suspected shoplifting was held to be absolutely privileged.
Although battling shoplifting and suspected criminal activity can be a minefield for a retailer, following simple basics will provide a safe harbor and prevent civil liability. Our office is always available for further consultation and assistance on these issues. Please don’t hesitate to call us if we can help you in any way.