False Arrestfalse Imprisonment By Store Merchant
In my last post I discussed false arrest/false imprisonment by law enforcement officers from a state law perspective. In a later post I will discuss false arrest/false imprisonment viewed from a federal civil rights perspective. Today, however, the focus of my discussion will be on false arrest/false imprisonment cases when someone is accused by a store merchant of shoplifting, otherwise known as “retail theft.”
Florida has a retail theft statute §812.015 which defines retail theft as the “taking possession of or carrying away of merchandise, property, money, or negotiable documents; altering or removing a label, universal product code, or price tag; transferring merchandise from one container to another; or removing a shopping cart, with intent to deprive the merchant of possession, use, benefit, or full retail value.” This statute is part of Florida’s criminal code but contained within the statute is an immunity provision for both the merchant (and law enforcement officers) that will be raised when the merchant (or law enforcement officer) is sued in a civil action for false arrest/false imprisonment. See F.S. 812.015(3)(a)-9(c).
This immunity provision provides that if the merchant has probable cause to believe that a retail theft has occurred or that there has been an unlawful use or attempted use of any antishoplifting or inventory control device countermeasure, the merchant can take the offender into custody for the purpose of attempting to recover the merchandise or for prosecution without fear of being criminally or civilly liable for false arrest or false imprisonment. Note though, that the merchant’s claim that it had probable cause to make the stop and detention of the suspected shoplifter is tempered by the statute’s additional requirements that the stop of the suspected shoplifter be done in “a reasonable manner” and only “for a reasonable length of time.” Further, the merchant must immediately call a law enforcement office to the scene. Invariably, however, the merchant errs and is subject to suit because its “loss prevention” employees did not have probable cause to make the stop, the stop was not done in a reasonable manner nor for a reasonable length of time, and/or, a law enforcement officer was not immediately called to the scene.
In one of the more egregious alleged shoplifting cases that I have handled, an elderly woman had tried on a pair of sunglasses at a well-known retail store and forgot to take the glasses off her head as she paid for other items and exited the store. She was confronted in the parking lot by the store’s loss prevention agent who instead of politely asking my client to return to the store to discuss whether she forgot to pay for the sunglasses, immediately handcuffed her and dragged her back into the store in front of on-looking customers. He brought her to a back room where she sat handcuffed as he interrogated her without immediately calling a law enforcement officer to the scene.
In the end, an innocent mistake made by my client resulted in the store paying a confidential settlement to her lient because of its poorly trained and overzealous employee’s actions.