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Shoplifting - Procedural Innovations

merchants detention immunity statutes

Perhaps more significant than the changes in the substantive law of theft are the procedural provisions authorizing merchants and their employees to detain suspected shoplifters. These statutes, such as that in Illinois (720 ILCS 5/16A-5, A-6 (1999)) take the form of specific provisions authorizing detention on reasonable grounds and providing merchants and their employees immunity from civil liability to a person so detained. Some states permit searches of a suspected shoplifter. The Iowa statute requires, however, that unless made with the permission of the suspect, the search be made under the direction of a peace officer (Iowa Code Ann. § 808.12 (1999)).

In addition to authorizing detention of suspected shoplifters, the statutes usually provide immunity from civil liability from a person so detained, either in general terms or with reference to such specific actions as slander, false arrest, false imprisonment, and unlawful detention (Note, 1971, pp. 836–837). The statutory immunity will depend on the existence of reasonable cause to detain the suspect and the reasonableness of the detention under all the circumstances, including time, manner, and place of detention (Comment, 1973b, pp. 162–165). Worthy of specific note is Michigan's statute, which does not provide complete immunity to the merchant even for reasonable detentions (Mich. Compiled Laws Ann. 600.2917 (1999); Bonkowski v. Arlan's Department Store, 383 Mich. 90, 174 N.W.2d 765 (1970)). While the merchant will not be liable for damages "resulting from mental anguish" nor for "punitive, exemplary or aggravated damages," compensatory damages may be awarded. Thus, if the person detained can show actual injury or monetary loss resulting from the merchant's action in arresting or detaining him, he will be able to obtain compensation for such injury or loss.

Despite the proliferation of such statutes designed to deter shoplifting and provide protection to merchants, shoplifting continues to increase. The statutes have apparently not been fully effective in motivating merchants and their employees to initiate action against suspected shoplifters.

It seems likely that shoplifting will continue to be a substantial problem for merchants unless the public comes to recognize it as a crime of serious economic consequence. Perhaps the most effective means of dealing with the problem is a combination of approaches designed to make the public more aware of the costs of shoplifting and the likelihood of prosecution and conviction. Under such a multilevel approach the law will have a role to play, but so will efforts at public education and private measures by merchants to deter and detect retail theft.

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