THE MCMILLIAN LAW FIRM - PASSIONATE AND AGGRESSIVE LEGAL REPRESENTATION FOR INJURED PERSONS OF CHARLESTON, SC
In today's article, I am going to explore a scenario that appears, at least through my observations and anecdotal evidence, to be occurring on a more frequent basis. That scenario is how many calls I receive now from people, particularly from parents of children, about the hard-handed tactics of retail stores in their loss prevention efforts. In layman's terms, the aggressive and draconian tactics used by retail chains against persons suspected of theft, and just how many times the retail store gets it wrong when they accuse someone of theft.
I want to specifically focus in on the tactics and recent episodes of loss prevention by national retail stores against minors. I have recently taken on two cases involving this specific scenario. Logic would dictate that retail stores would tread lightly into the waters of accusing a minor of theft. However, as available evidence and recent court decisions show, retailers are often very aggressive in their accusations and actions against minors and many times, parents are not aware of what is happening until the event has come and gone.
POSSIBLE LEGAL ACTIONS AVAILABLE AFTER YOUR CHILD IS FALSELY ACCUSED OF SHOPLIFTING
The first disclaimer to make here is that simply because your child has been accused of stealing when in fact they didn't is not, in and of itself, a grounds for a civil lawsuit. Seeking a civil recovery for a false claim of shoplifting against anyone, particularly a minor, is very fact sensitive and includes several considerations. The most common questions to ask in determining whether a tort has been committed against a minor accused of shoplifting is:
- What did the store employee actually see
- What was the child doing while in the store
- How was the child kept on the premises by the store employee
- Was the child threatened
- Was the child touched
- Did the store follow its own policies
- Was law enforcement called
To answer these questions and how they apply to any practical real world situation we must first look at South Carolina law and the available causes of action for a victim of a false accusation of shoplifting.
SOUTH CAROLINA LAW OF TORTS
I. False Imprisonment and “Shopkeeper's Privilege”
The most common civil tort claim that comes from a false accusation of shoplifting is "false imprisonment." The fact pattern that gives rise to this is based upon a person being accused of theft and then a store employee or employees preventing the accused party from leaving the store and "holding" them at the store against their will.
In South Carolina, False Imprisonment is defined as "the deprivation of one's liberty without justification". Caldwell v. K-Mart Corp., 306 S.C. 27, 410 S.E.2d 21 (Ct. App.1991). In order to recover under a theory of False Imprisonment, the complainant must establish:
- The Defendant restrained him;
- The restraint was intentional; and
- The restraint was unlawful. Andrews v. Piedmont Air Lines, 297 S.C. 367, 377 S.E.2d 127(Ct.App.1989).
The tort of false imprisonment does not require an actual injurious touching. False imprisonment may be committed by words alone, or by acts alone or by both, and by merely operating on the will of the individual, or by personal violence, or by both. (emphasis added) Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 317 S.E.2d 748 (Ct.App.1984).
So in summary, a false imprisonment of an individual by a store employee can occur by an intentional restraint on movement that is unlawful. In the specific context of children, this restraint is often done by verbal threats in addition to any possible physical restraint.
To counterbalance the civil tort of false imprisonment, specifically in the context of shoplifting, the South Carolina General Assembly created a statutory privilege, which protects merchants who reasonably suspect patrons have committed shoplifting in their establishments. It is commonly referred to as the “Shopkeeper's Privilege. Specifically, South Carolina Code Ann. § 16-13-140 provides:
In any action brought by reason of having been delayed by a merchant or merchant's employee or agent on or near the premises of a mercantile establishment for the purpose of investigation concerning the ownership of any merchandise, it shall be a defense to such action if: (1) [t]he person was delayed in a reasonable manner and for a reasonable time to permit such investigation, and (2) reasonable cause existed to believe that the person delayed had committed the crime of shoplifting.
The central consideration in the “Shopkeeper's Privilege” revolves around the “reasonable cause” requirement. The key element in the defense is the existence of reasonable cause to believe the person detained committed “the crime of shoplifting.” The law of this state is that the phrase “reasonable cause,” as set out in South Carolina Code Ann. § 16-13-140, in fact means “probable cause” so that probable cause must have existed to believe the person delayed had committed the crime of shoplifting.
“Probable cause” is defined as “a good faith belief that a person is guilty of a crime when this belief rests on facts that would induce an ordinarily prudent and cautious person, under the circumstances, to believe the person is guilty of a crime.” Probable cause involves the existence of such facts or circumstances as would excite the belief of a reasonable mind – acting on facts known to the merchant – that the person delayed had committed the crime of shoplifting.
In practical application, the standard of "reasonable cause" is usually supported when the merchant or store employee witnesses acts by the customer that support strongly the conclusion that a crime was committed. What types of acts are those? The most common is that the store employee witnesses the customer conceal an item in either a pocket, a purse, or a backpack. Secondly, usually reasonable cause us supported if after a concealment is witnessed the customer makes an attempt or appears to be trying to leave the premises.
It goes without saying that the success of any claim for false imprisonment rests upon the attorney's ability to prove that reasonable cause did not exist to detain the minor in the store. How do we prove a lack of reasonable cause? Usually, store employees are either in no position to see if an item was concealed or, more often, the store employee will admit they did not see concealment of an item.
II. Assault and Battery
The simple legal theory of assault is the action of threatening someone with a physically harmful and/or offensive contact or touching. The common law doctrine of battery is the fulfillment of an intent to assault by succeeding with the harmful or offensive contact.
The practical occurrence of an assault and battery upon a minor who has been accused of shoplifting occurs in two specific instances: one, when a store employee attempts to or does physically restrain a person from leaving the store, and two, when the store employee attempts or performs a search of a person prior to the arrival of law enforcement.
The South Carolina Court of Appeals identified what the standard for assault and battery is in the context of an alleged juvenile shoplifting incident in the case of Jones v. Winn Dixie Greenville, Inc., 318 S.C. 171, 456 SE2d 429 (Ct. App. 1995). Jones was a case involving an alleged shoplifting by a 14 year-old African American male by a Manager of a Winn Dixie grocery store. Jones went to the general merchandise aisle where he stopped and spoke with a friend and picked up a package of shoe inserts. As Jones was talking with his friend, Winn-Dixie's store manager approached Jones and asked whether he could be of any assistance. The store manager took the shoe inserts from Jones and, after Jones responded he did not need any assistance, the manager returned the inserts to him. The manager then walked away.
Once Jones finished talking to his friend, the manager followed him around the store. Jones testified he became nervous and put the shoe inserts on another aisle. The manager admitted he lost sight of Jones several times and at no time did he see Jones conceal the shoe inserts. Nevertheless, the manager approached Jones again as Jones was walking up an aisle with one hand behind his back. The manager asked Jones to show him the shoe inserts and Jones explained he had placed them on another aisle. The manager then escorted Jones out of the store.
Jones testified that once they were outside the store, the manager began cursing and threatening him. The manager then grabbed Jones by the arm and led him back inside the store and into the store's public restroom. The manager closed the bathroom door, then told Jones to take down his pants, which Jones did. The manager was standing in front of the door. Jones testified he complied with the manager's request because he was scared and nervous and did not know what to do. Finding no evidence of any stolen merchandise, the manager allowed Jones to pull his pants back up and walked him out of the bathroom.
In the Jones opinion, the South Carolina Court of Appeals states the following:
The battery occurred when Watson [manager] thereafter grabbed Jones' arm and escorted him back into the store. Even if Watson had taken no further action against Jones, Jones could have recovered damages for assault and battery. Watson, however, did take further injurious action against Jones when he escorted Jones into the bathroom, stood with his back to the door and compelled Jones to pull down his pants before allowing him to leave.
The clear implication of the Court of Appeals in Jones is that the intentional tort of assault and battery not only includes the threat of physical force and the actual act of an offensive touching upon a minor by a store employee, it also includes any acts that a minor is compelled to do under the threat of loss freedom of movement and the cloud of the allegation of theft.
III. Breach of Store Loss Prevention Policy
In more cases than not, what we find when we take on these cases is not only has the store employee committed acts against the minor that are in violation of South Carolina Tort Law, but the store employee has breached the store's own internal policies for handling suspected shoplifters. The internal policy of many retailers is that once a shoplifter is suspected, the role of the store employee is to observe and report to law enforcement. I will admit that this statement is a simplification of the protocol of many retailers, but in essence the standard is to observe a theft, observe if the thief is leaving the premises, and involve law enforcement immediately in the apprehension. This passive protocol has become very prevalent with national chain stores. Incidents involving false accusations of shoplifting include the shooting of an alleged shoplifter by a store employee in Texas in 2017 (that resulted in a murder charge), a shooting of a suspected shoplifter by a store employee in Louisiana in 2009, or the killing of a suspected homeless shoplifter by a store manager in Chicago in 2010. Due to the rash of incidents involving the use of force and violence against shoplifters by store employees, the trend nationally is to observe, report, and get law enforcement involved as quickly as possible.
A central question we always attempt to answer in any case we take on in this context is whether the store employee received proper training in loss prevention. Furthermore, did the store employee follow the proper procedure as defined by his/her employer.
IV. Additional Legal Theories
When a person is accused of shoplifting, in addition to the major legal theories discussed above, there also exists the possibility for claims for slander and false arrest, to name a few. I will address these theories in a separate article since my primary focus for this article is to address the specific time in the immediate aftermath of a minor being approached and stopped by a store employee for suspected shoplifting.
THE MCMILLIAN LAW FIRM
DEDICATED TO SERVING FAMILIES OF INTENTIONAL TORT VICTIMS IN CHARLESTON, SC AND THE SOUTH CAROLINA LOWCOUNTRY
As an attorney with experience in tort actions and the claims processes of national retailers, I will take all necessary steps to protect your rights and earn just compensation for you and your loved ones due to an unfortunate set of events. Through my efforts, I can bring about much needed financial relief to the innocent victim of a slanderous accusation. Being a small firm allows you to have direct access to your lawyer during this entire process, with open lines of communication as we work together towards a viable solution to your specific case.
Being an experienced personal injury attorney, I know where the courthouse is and will not be afraid to call the any party to the mat in front of a judge and jury if necessary.
If you or a loved one has been victimized due to the negligent or intentional acts of another in Charleston, Summerville, Mount Pleasant, James Island, West Ashley, Goose Creek, Moncks Corner, North Charleston, or any of the other fine communities of the Low Country, and need to meet with an experienced personal injury lawyer, please contact me to set up your free case evaluation today. Let me you. I am serious and I am here for you! Contact The McMillian Law Firm today @ 843-900-1306