By Patricia A. Patrick and Shaun L. Gabbidon
This study of false-arrest lawsuits shows companies the security procedures and policies that are most likely to land them in court.
With thousands of shoplifting incidents occurring every year, merchants must be able to pursue legitimate efforts to detain and prosecute shoplifters, but they must also have policies and procedures in place to ensure that their efforts will not result in lawsuits for false arrest that could ultimately cost the company much more than the theft. The first step toward an effective policy is for companies to understand what causes false-arrest lawsuits and which types of cases result in the largest damage awards against a company.
The conventional wisdom among many in the security profession is that regardless of how security officers act, shoppers are opportunistic and will file lawsuits against retailers at the slightest provocation. However, evidence suggests that this is not the case. The authors conducted a review of 235 state-level lawsuits against retailers for false arrest in the United States between 1960 and 2004. The analysis shows that nearly all the suits were filed for justifiable reasons and that the suits were based more on the circumstances surrounding the incidents than on the depth of the retailers' pockets. This article discusses the motivations for the false-arrest suits and the basis for the damage awards.
Of the 235 cases studied, 63 percent were brought by shoppers who had been arrested for shoplifting, but had not actually shoplifted. In other words, more than half of the shoppers were arrested for shoplifting but were not caught in the act or found with stolen merchandise. Instead, they were arrested based only on the suspicion of shoplifting.
Proof of actual shoplifting existed in only 34 percent of the cases. The remaining 3 percent of the cases did not reveal whether shoplifting had occurred or not.
All of the lawsuits examined in this study involved shoppers who alleged false arrest. But the shoppers filing suit also cited a variety of other charges, including assault, battery, false imprisonment, malicious prosecution, and unlawful detention.
Shoppers most frequently brought lawsuits against retailers immediately after they were acquitted at trial for shoplifting or immediately after the shoplifting charges against them were dropped. And those cases most often involved some charges of mistreatment during the investigation.
Acquittal. Of the 235 cases studied, 47 percent of the shoppers sued after they were acquitted at trial or the retailers had subsequently dropped the charges. This finding suggests that if retailers have weak cases or lack hard evidence, it is best not to have the suspects arrested. And if a company does go forward with prosecution, it should invest the resources required to help the prosecutors make a convincing case.
Mistreatment. Twenty-six percent of the 235 shoppers sued because of the way they were treated during their investigations. Allegations of mistreatment included excessive force, battery, and sexual abuse.
In 21 percent of the cases, plaintiffs were physically abused, and the abuse was often egregious. For example, one private security officer killed a male youth by striking him in the head during the investigation. Other plaintiffs were assaulted, sexually abused, or strip-searched by private security officers. Not surprisingly, this type of misconduct by employees often results in large judgments against the retailer (see damage awards section).
Other issues. Though acquittals and mistreatment were the major motivators for most plaintiffs, other factors sometimes led to lawsuits. For example, five percent of the shoppers alleged that they had been victims of racial profiling.
A fairly large number of shoppers alleged malicious prosecution, but the courts found evidence of a setup by store personnel in only 1 percent of the total cases.
Five percent of the cases involved arrests of groups of people shopping together, where only one shopper in the group had taken something. This type of arrest almost always prompted a lawsuit by the persons not holding the stolen merchandise at the time of the arrest.
Three percent of the shoppers sued on a legal technicality that did not relate to anything done by security personnel. For example, some of the shoppers sued to challenge other evidence, such as drugs or weapons taken by the police at the time of the arrest and offered as evidence at trial. Other shoppers challenged instructions given by the judge or statements made by opposing counsel.
Of the 235 lawsuits filed against retailers, approximately one-third resulted in damage awards to the shoppers. Nine percent received nominal awards less than $5,000; 10 percent received between $5,000 and $50,000; 6 percent received awards between $50,001 and $300,000; and 2 percent of the plaintiffs received awards greater than $300,000. The amount of the award in another 2 percent of the cases was not disclosed.
Shoplifters. A few of the substantial awards went to people who had actually taken items. For example, in one case, an Arkansas woman was seen leaving a national discount-merchandiser with a 59-cent pen partially concealed in her pocketbook. She was acquitted at trial when she claimed that she had forgotten to pay for the pen. The jury awarded her $21,000 in damages because the security officers had failed to follow the retailer's established procedures for the detention, interrogation, and prosecution of shoplifters.
The retailer's policy manual required the interrogation of suspected shoplifters and stated that when store personnel observed what appeared to be shoplifting, an interrogation had to be conducted to help the interviewer decide whether the shopper had actually stolen something or had simply forgotten to pay for the goods.
If the interrogator determined that the shopper forgot to pay, then the shopper was to be released. The manual also said that store personnel could not conclude that shoppers were guilty of shoplifting simply because they were found in the possession of concealed unpaid merchandise.
At trial, the store manager said he was not familiar with these procedures and that he always prosecuted suspected shoplifters and left the issue of guilt up to the court. The court found that the store manager had grounds to stop the woman for questioning but that he should have used her explanation to help decide whether he should bring charges against her for shoplifting. He did not do that. Instead, he proceeded on automatic pilot without regard for company rules.
In another case, a Minnesota man received $12,000 in damages after being convicted of petty theft. Private security officers caught him scraping prices off merchandise in a local hardware store with a utility knife that he had apparently brought into the store for that purpose.
Nonetheless, the jury believed the man was entitled to an award to compensate him for the pain and suffering caused by the actions of a private security officer, who restrained him while attempting to gain custody of the knife.
The jury found that the officer used unreasonable force on the 73-year old man, who had warned the officers during the incident that he had a heart condition. The retailer in this case was also charged with detaining a citizen against his will because the private security officers did not intend to deliver the man to a police officer. Under Minnesota law, store personnel can detain shoppers only when detention is based on probable cause and the sole purpose of the detention is to deliver the suspect to a sworn law enforcement officer. Under state law, the suspect must be informed by store personnel of the reason for the detention.
In this case, the security officers testified that they had detained the suspect with the intention of having him sign a confession and letting him go. Since the security officers had not detained the man with the intention of handing him over to the police, the jury also found the officers guilty of unlawful detention.
In another case, private security officers watched an Oregon man slip a $4.99 wrench into a wrench set and pay only for the set. The officers approached the man as he was leaving the store and asked him about the wrench. When they did so, they immediately noticed that he was carrying a gun in a belt pouch. One of the officers grabbed the man's right arm and cuffed him.
The man was led to a security room at the back of the store where he was frisked and questioned for 30 minutes until the police arrived and the man was arrested. At trial the man testified that he forgot to pay for the wrench.
One of the security officers testified that when he approached the man on his way out of the store, his intention was to formally charge the man with a crime, to detain him until the police arrived, and to gain a written confession from the man that could be used in court against him.
The man was acquitted of the shoplifting charge and subsequently sued the retailer for battery and malicious prosecution. A jury awarded the man $40,000 in compensatory damages and $40,000 in punitive damages for battery. The court found that the officers made an error by failing to let the man explain his possession of the unpaid wrench, instead proceeding directly to calling the police and filing charges.
Nonshoplifters. Most of the damages were awarded to shoppers who had not shoplifted. Many of these damage awards were due to actions that the court found disregarded the suspects' civil rights. (Although private security officers in most states cannot be charged with violating a citizen's civil rights, as police officers can be, the courts will not tolerate egregious violations of such rights.)
In one case, a Nebraska woman received a $29,000 damage award because a salesclerk who had been working at the store for only a month failed to ring up both pieces of a two-piece outfit purchased by the shopper. When the case went to trial, the clerk admitted that she rang the garment up incorrectly and failed to help resolve the matter when it occurred. Instead, she watched the private security officer charge the woman with shoplifting.
At trial, the suspect testified that she tried to explain the situation to the security officer, but the officer would not listen. The suspect also said that she felt as though she was not allowed to leave the security room. The private security officer confirmed that the suspect was not free to leave. The officer admitted that she would have chased the suspect had she tried to run.
The court found that the retailer lacked probable cause to detain the suspect, detained the suspect in an unreasonable manner, and held the suspect for an unreasonable amount of time. The court also found the retailer guilty of malicious prosecution because the security officer failed to investigate the matter fully, led the arresting police officer to believe that she had investigated the matter, and failed to turn over the suspect's version of the event to the prosecutors.
In another case, an Arizona man was awarded $550,000 after two private security officers detained him for allegedly shoplifting a wrench from a national retailer. He even produced receipts for all the merchandise in his possession; however, the security officers were not satisfied and searched his car. Nothing was found, and the man then became involved in an altercation with the arresting police officer and was injured.
The man subsequently sued the retailer and prevailed on claims of assault, invasion of privacy, and malicious prosecution. Private security officers cannot search a suspect's car without his or her consent.
In another recent case, two private security officers working in an Ohio-based national department store believed that two girls had shoplifted a pair of shorts. When the girls were unable to show the officers where in the store they had laid the shorts, the officers called a female security officer working for another store in the mall for her assistance in the matter.
Based on the male officer's request, the female officer searched one of the girls in a private room with the door closed and with no witnesses. Nothing was found on the girl, and the retailer did not file shoplifting charges. However, the girl's family subsequently sued the retailer.
At trial, the girl's mother testified that her daughter developed an eating disorder from the incident because the officers had drawn attention to her protruding belly, saying they thought the goods were concealed under her shirt. The jury awarded the family more than $267,000 because the private security officers violated store policies during the detention of the girls.
In addition to losing sight of the girls on the CCTV surveillance system, the officers failed to ask sales personnel to look for the merchandise on the sales floor, and they failed to have the girls' parents present during the questioning. Additionally, during some of the investigation, the girls were questioned on the sales floor where shoppers could witness the interrogation, which was also in contravention of store policy. Finally, the court found that the officers disregarded the shopper's civil rights when they had one of the girls searched.
In some cases, the store policies were poorly crafted and ignored shoppers' civil rights. For example, a Rhode Island woman was held and as a condition of her release was asked to sign a confession by the private security officer investigating a possible shoplifting incident. The retailer's standard consent form stated that the shopper acknowledged taking merchandise without paying for it and that if the shopper signed the release form, she would be permitted to leave the premises. The shopper sued for false imprisonment, false arrest, and extortion.
At trial, the shopper testified that in addition to the language on the consent form, the private security officer told her twice that she could not leave the premises unless she signed the consent form. He also looked through her pocketbook without her consent. The jury found that the retailer coerced the shopper into signing the consent form and that it ignored her civil rights when an officer searched her purse.
The jury awarded her an undisclosed damage award. The judge explained that retailers can ask suspected shoplifters to sign statements waiving their rights to bring civil actions in exchange for the retailer dropping the criminal charges, but retailers cannot detain people in exchange for their signed confessions.
Malicious prosecution is another costly category. In one case, an Indiana woman entered a large department store to return three sweaters that she had previously purchased. She carried the sweaters in a department store bag, but she did not bring the receipts along because the sweaters still contained the store tags, and she knew the store would allow an exchange without the receipts. However, instead of returning the sweaters immediately, the woman browsed through the store. She was eventually apprehended by two undercover private security officers and led to the store security office.
During the apprehension, the woman dropped a blouse that she was intending to buy. One of the security officers picked up the blouse and placed it in her shopping bag along with the three sweaters.
In the security office, the officers emptied the woman's shopping bag and her purse, and found the three sweaters and the blouse. The woman said that she could produce receipts for the three sweaters, but the officers ignored her protestations. They called the police and had the woman arrested on shoplifting charges.
The woman was acquitted of the charges and subsequently sued the retailer for false imprisonment, malicious prosecution, and defamation. At trial, the court found that the officers lacked probable cause to have the woman arrested. The trial further revealed that the security officers had manufactured evidence against the suspect.
The officers admitted that they had apprehended the shopper to please their boss. The officers had just received a pep talk where their boss had said, "Let's get something going" and "stir something up." Within 30 minutes of hearing this, the officers apprehended the shopper. They said that they wanted to effect an arrest of a shoplifter while their boss was still on the premises.
The jury awarded the shopper more than $1.3 million in actual and punitive damages. The retailer appealed the $1 million punitive damage award on the grounds that it was excessive, but lost the appeal.
In an Oklahoma case, a cashier accused a mother and her two daughters of grabbing 11 pairs of jeans and running from the store. Based on the testimony of the cashier and her ability to identify the girls in a photo lineup, the private security officers had the suspects arrested at their home.
At trial, another customer, whose receipt showed that she was at the checkout counter at the time of the alleged theft, testified that she did not see anything out of the ordinary, such as someone running out of the store. Upon hearing the charges against them, the suspects produced alibis indicating that they were not in the store at the time. The cashier ultimately admitted that she made the whole thing up. The women were found not guilty, and they subsequently filed a civil action against the retailer.
The jury awarded the shoppers $67,000 for malicious prosecution and intentional infliction of emotional distress. The court also found the retailer guilty of not providing the suspects with the information necessary to allow them a full and fair opportunity to litigate their case. The lack of opportunity was based on the false testimony of the cashier and the retailer's failure to turn over all relevant evidence to the suspects.
Overzealous security officers can be an expensive proposition for a retailer. For example, an Ohio juvenile went into a local sporting goods store to purchase a hunting vest. The store's private security officers saw the boy use a pen to change the price tag on a hunting vest and then purchase the item. The officers confronted the boy outside the store and asked him to join them in the security office. The boy complied, but later attempted to run from the officers. The officers pursued the boy, who fell down a flight of stairs in his attempt to get away.
One of the officers testified that the boy lost his footing when the officer attempted to grab the boy on the stairs. The boy testified that the officer pushed him down the stairs, then pulled him up by the hair, drew his fist back to hit the boy, and said, "don't ever try to run from me again."
The store filed charges against the boy for shoplifting; a juvenile court found the boy not guilty. The boy's father filed charges against the retailer for false arrest, unlawful detention, assault, battery, and malicious prosecution. The family prevailed on all counts and was awarded $70,500 in damages.
In another case, two private security officers working in a local New Jersey supermarket said that they witnessed an adult male put two packs of vitamins in his coat pocket. The security officers claimed that when the shopper realized the officers had witnessed the theft, he stashed the vitamins on a display rack. The shopper was arrested and the matter went to trial.
The shopper claimed that he never concealed merchandise and that the incident caused him to develop an anxiety disorder. The court acquitted the man, and he subsequently sued the retailer. The jury gave him a $171,500 damage award because the officers did not have probable cause to have the man arrested.
According to store policy, the security officers were required to go back to the display rack and retrieve the vitamins. They were entitled to take the man into custody to determine whether he had concealed other merchandise that they had not witnessed him take, but the court said that once the officers determined that the man was not holding store merchandise, the incident could not be considered shoplifting, because the man had returned the goods of his own volition, and there was not a completed offense. In sum, the court found the retailer liable, because it lacked probable cause to have the man arrested.
The violation of store policies often results in damage awards. For example, in one case, a regional store manager chased a juvenile female into the parking lot of a small discount merchandiser because she believed that the girl had stolen a pair of underwear. When the manager got close enough, she grabbed the girl by the underwear and attempted to pull her back into the store by her panties. The girl's mother sued the store and received a $75,000 compensatory award.
The jury's damage award was based largely on the fact that the retailer's store manager violated a store policy and had never received any formal training regarding the handling of shoplifting incidents, even though part of her regular duties included traveling to other stores for the purpose of training store employees on how to handle shoplifting incidents. The retailer had a manual stating that under no circumstances should an employee touch a shoplifter or leave the store to pursue a suspected shoplifter.
The plaintiff also received a $100,000 punitive damage award, but it was overturned on appeal. The punitive damages were reversed because the store manager made a conscious decision to violate the retailer's express policy. The retailer was lucky because this was one of the few cases in this study where the punitive damages were overturned. Ordinarily, judges have not reduced the amount of jury awards.
These cases show the high cost of poor policies. To minimize the probability of a lawsuit and to guide the actions of private security officers, retailers must first establish store policies regarding the way incidents should be handled, and they must then ensure that store personnel are trained on those policies. As illustrated by these cases, store policies must respect shoppers' civil rights and, once established, they must be followed by employees or they will be used against the retailer in a court of law.
Patricia A. Patrick, CFE (Certified Fraud Examiner), is a doctoral student at the School of Public Affairs at Pennsylvania State University, in Middletown, Pennsylvania. Shaun L. Gabbidon, Ph.D., is a professor with the Criminal Justice Program at the university.