In law, the shopkeeper’s privilege is a legal principle that grants certain rights and protections to store owners or employees when dealing with suspected shoplifting or theft on their premises. It allows them to detain or hold an individual reasonably suspected of shoplifting in order to investigate the incident or involve law enforcement authorities.
Words you need to know
Probable Cause: Evidence that leads to a reasonable belief that a person has committed or will commit a crime.
Confine / confinement: To keep (someone or something) within limits: to prevent (someone or something) from going beyond a particular limit, area, etc: to keep (a person or animal) in a place (such as a prison). https://www.merriam-webster.com
Shoplifting: Entering an open business intending to commit the crime of petty theft.
Shoplifter: Someone who steals goods from a shop.
What is the Shopkeepers’ Privilege?
The privilege gives storekeepers the ability to stop a person suspected of stealing from their store. Without this privilege, they would simply be left powerless and have to allow a suspected shoplifter to walk out of their store un-challenged.
A shopkeeper who reasonably believes that the plaintiff (suspected shoplifter) has stolen or is attempting to steal something from the shop may detain the plaintiff in a reasonable manner for a reasonable amount of time to investigate. https://www.law.cornell.edu
The privilege also extends to store security staff and their agents.
It allows the shopkeeper some authority to act on their suspicions, even if they end up being wrong.
Key Points:
- Detention of suspected shoplifters: Shopkeepers have the right to detain an individual if they have reasonable grounds to believe that the person has engaged in or attempted to commit theft or shoplifting on their premises. The purpose of detention is to allow the shopkeeper to investigate the situation and protect their property.
- Reasonable suspicion: The shopkeeper’s privilege is based on the concept of reasonable suspicion. This means that the shopkeeper must have a genuine belief, based on objective facts and circumstances, that the individual has committed or is about to commit theft or shoplifting. Mere hunches or discriminatory profiling are not sufficient grounds for detention.
- Reasonable force and duration: While exercising the shopkeeper’s privilege, store owners or employees are generally allowed to use reasonable force to detain the suspected shoplifter. However, the level of force used must be proportionate to the circumstances, and excessive force is not permissible. The detention should also be for a reasonable duration and should not extend beyond what is necessary to investigate the situation or involve the appropriate authorities.
- Contacting law enforcement: If a shopkeeper detains a suspected shoplifter, they typically have the right to contact law enforcement authorities and turn the individual over to them. The decision to involve the police may depend on local laws and store policies.
- Protection from legal liability: The shopkeeper’s privilege provides some legal protection to store owners or employees against claims of false imprisonment or assault when acting in good faith and within the boundaries of reasonable suspicion and force. However, it is important for shopkeepers to act responsibly and in accordance with applicable laws to avoid any unnecessary legal complications.
- Variances in laws: It’s important to note that the shopkeeper’s privilege may vary in its scope and application depending on the jurisdiction and specific laws in place. Different jurisdictions may have specific requirements or limitations regarding the shopkeeper’s privilege, so it is advisable to consult local laws or seek legal advice for precise information in a particular area.
Reasonable Grounds / Probable Cause
Suspicion of theft is not enough. Reasonable grounds (also known as probable cause), require three main steps as evidence for a reasonable suspicion of shoplifting:
- Witness the shoplifter select and conceal or carry away the merchandise.
- Maintain continuous observation of the shoplifter.
- Witness the shoplifter fail to pay for the merchandise.
Duration
The shopkeeper cannot hold a suspect for hours. A reasonable amount of time is generally considered to be the amount of time it takes for the police to arrive or to carry out a reasonable investigation.
Location
The shopkeeper cannot chase the suspected shoplifter around the town and then detain them. They can only apprehend the shoplifter inside or near their store.
Force
The shopkeeper’s privilege allows a store owner to use a reasonable amount of nondeadly force on the detainee that is necessary to:
- Protect themselves
- Prevent the suspects escape from the property.
The storekeeper must not use force to detain the person unless the suspect is trying to harm the shopkeeper or run away and then they can only use reasonable, non-deadly force if necessary. Otherwise, they will face charges of assault and battery (see: https://makemeclever.com/assault-and-battery-the-main-differences/ )
Whether the force used was reasonable will be decided by a judge based on the facts of the case.
Confinement
The storekeeper must find a way to keep the suspect on the premises without force or arrest. Suspects must not be kept in confined areas as this can lead to claims of false imprisonment.
A store owner can do two things while the suspect is in detention:
- Examine the items he suspects are stolen
- Conduct a search.
1. Examine items
During detention, a merchant may examine any items that:
- They have probable cause to believe were unlawfully taken, and
- That are in plain view.
The purpose of the examination is to determine who legally owns the items.
2. Conduct a search
The storekeeper can ask the suspect to hand over the items they have reasonable cause to believe the suspect attempted to steal.
If the suspect refuses, the storekeeper is permitted to carry out a limited search to recover items.
The storekeeper cannot search the clothing of the person being detained but can search the suspects:
- Packages
- Bags
- Other property in their immediate possession.
Merchants are private citizens and do not need a search warrant. If stolen items are found during the search the storekeeper must call a law enforcement agency to come to the store to issue a citation or conduct an arrest.
False Imprisonment
This is defined as ‘the unlawful violation of the personal liberty of another.‘ The storekeeper’s privilege is a valid legal defense to the crime of false imprisonment however, if the shopkeeper fails to do satisfy any of the rules above, they may face charges of false imprisonment, assault, and battery.
Citizens Arrest
The storekeeper’s privilege is different from making a citizen’s arrest. A citizen’s arrest is made by a citizen who has no official authority to do so and is not an authorized law enforcement personnel. In most countries and states, arrest by a private citizen is against the law. Only police or other authorized authority can arrest the suspect.
The shopkeeper’s privilege strikes a balance between protecting the rights of store owners to safeguard their property and deterring theft, while also ensuring that individuals are not unfairly detained or subjected to excessive force. It is designed to allow for reasonable interventions in suspected shoplifting incidents while respecting the rights and safety of all parties involved.
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