Security Personnel At A Retail Establishment Cannot Lawfully Incarcerate An Individual

Interviewer: Are law prevention people and store personnel allowed to hold you  I mean like police power? If they want to stop you can you just say, ‘leave me alone’ and walk out?

Ben Kelsen: They don’t have police powers. They can ask you to step into an office, ‘step over here please and stay over here’. But they’re not allowed to do an arrest per se. Most of the time though people don’t walk out, and it’s usually not a good thing because then it just exasperates the situation. The other thing you have to be very careful about – and this unfortunately has happened way too many times is that a very high percentage of the people involved in the criminal justice system are involved because of the drug issue.

Drug Addiction Can Cause An Individual To Shoplift and Try To Satiate Their Addiction By Selling The Stolen Merchandise

One of the things that’s frequently happens is that there are things; for example certain types of baby formulas which are very expensive, people will try to steal, they’ll shoplift those, and they can sell them on the street for a significant amount of money, enough to buy drugs or a fix or whatever. And I had one case not long ago which is – in my mind it’s really unfortunate – where a young man who unfortunately suffers from a terrible addiction was trying to steal baby formulas to be able to sell, was leaving the store and the store manager stops him and said, ‘Excuse me young man but I think you’ve been trying to steal something’ and the kid panicked and pushed past the store manager. That changes the whole thing from being a shoplifting, to a robbery. And with an assault.

Physical Contact In The Event Of a Shoplifting Offense Can Aggravate Charges To a Robbery

So now instead of just simply looking at a shoplifting charge, he’s now looking at a robbery charge. So depending on how the store personnel speak to you, most people would probably say – if you come over to them and you’re supposed to react to authorities this way right? ‘Excuse me ma’am could you please come with me?’ and they’ll follow the person to the office and they’ll go it there right? Other people will say, ‘I’m not stopping. ‘‘Well we reserve the right to inspect your bag’. Now they can ask you to stay still, or they can keep you in one place to call the police, for a short period of time. But they can’t restrain you physically, they can’t handcuff you, they can’t do things like that. So most people just say, ‘Oh I should stay here? Okay, no problem’ instead of saying ‘Listen you know what? Here’s your stuff. Bye’. And on occasion store security might hold on to them and if there’s questions they’ll go as far as store security is allowed to go. Are they allowed to basically hold your arm and say, ‘please stand still’? Are they allowed to Taser you?

There’s questions within the law depending on what they’re allowed to do and how far they can go. But the worst thing that a person can do shove past somebody and run out, because the minute you make physical contact you’re now opposite from just being a simple theft to a robbery. And the young man that I mentioned a few moments ago is now doing four years in state prison for robbery and assault.

It Is Important Not To Make Physical Contact With Store Management If Confronted With An Allegation of Shoplifting

Unfortunately in his case because this was not a first offense, he’s had a drug problem in the past and he committed this offense while on probation, it exasperated the situation. But what I’m saying is a fact and while that case might not be the prime example, in theory if you were to push somebody and hurt that individual – like you shove the guy down to the ground as you’re running out – and they get a repercussion or they get a cut, or they get something, that could be a problem. You suddenly elevated a simple shoplifting to now, an assault. And if you pushed somebody it’s a simple assault. IF you punch them, or you knock them over, or you have something in your hands and you hit them with something, now you may be talking about aggravated assault.

So people really have to be careful about it – I mean they shouldn’t be stealing to begin with but past that, you’ve just got to really be careful when you’re confronted with somebody from the management, of how you react to that.