Many states have created merchant detention statutes (“detention statutes”) in an effort to protect retailers. These merchant detention statutes were created to protect retailers from exposure to civil liability associated with detaining suspected shoplifters provided the merchant meets the conditions of the applicable statute. Due to space constraints, in this article we will not be able to address the question of what is a reasonable manner of detention or other issues that may arise regarding the detention of theft offenders.
While merchant detention statutes provide some guidance regarding the detention of suspected shoplifters, the various state statutes do not address or are not consistent with each other as to the amount of time that is considered reasonable to detain an individual suspected of stealing from a store. Because of the litigious nature of our society and due to the various questions not addressed or inconsistent in the detention statutes, many retailers have decided to set more stringent policies than listed in detention statutes for detaining suspected shoplifters to help minimize potential civil liability. What exactly constitutes a reasonable length of time?
Some state statutes permit a retailer to detain a suspected shoplifter for the purpose of contacting law enforcement and having the suspected shoplifter placed into custody.[1] However, many of these states still require that the suspected shoplifter be detained for a reasonable amount of time.[2] Other states allow the retailer to detain the suspected shoplifter for the period of time needed to await the arrival of law enforcement or to surrender the suspected shoplifter to a peace officer or local law enforcement.[3] While the wording of many of these statutes help provide some guidance to retailers when detaining suspected shoplifters, it would prove helpful for these statutes to contain an exact time or at least an acceptable range for what would constitute a reasonable length of time. Luckily, there are some statutes which actually do provide a time frame. Some state statutes have very stringent requirements which allow for as little as thirty minutes for detainment while other more liberal statutes allow for as long as two hours for detainment.
Detention statutes in Maine, Montana and West Virginia protect retailers that detain for a reasonable amount of time to investigate the suspected shoplifting incident so long as the detainment does not exceed thirty minutes.[4] The detention statute in Louisiana allows a retailer to detain a suspected shoplifter for questioning so long as the investigation does not exceed sixty minutes.[5] However, should the retailer have reasonable cause to believe the person committed theft; the retailer reserves the right to detain the suspected shoplifter for arrest by a peace officer.[6] Minnesota’s detention statute allows a retailer to detain a suspected shoplifter for no more than one hour unless the retailer is waiting to surrender the suspected shoplifter to a peace officer or a minor’s parent/guardian. In this instance, the suspected shoplifter may be detained until the peace officer or the parent/guardian of the minor child has arrived and accepted custody of the suspected shoplifter.[7] Rhode Island allows a retailer to detain a suspected shoplifter until a police officer has been summoned to the premises; however, in no instances shall this period of time exceed one hour.[8] Virginia allows for a retailer to detain a suspected shoplifter for a time not to exceed one hour.[9] Also, in Virginia, if notice is visibly posted at each store exit which informs the patrons of the presence of anti-shoplifting devices, a person can be stopped when an electric article surveillance device is activated. [10] However, such detainment shall only be for the amount of time that is needed to make an inquiry into the circumstances relating to the activation of the device.[11] Lastly, Indiana allows a retailer a reasonable amount of time to investigate the suspected shoplifting incident and release the suspected shoplifter to law enforcement so long as the detainment does not exceed two hours.[12]
When a retailer is unsure as to what would constitute a reasonable amount of time, generally, a safe method would be to consider the reasonableness of the detention as well as the facts and circumstances relating to the suspected shoplifter’s incident.[13] However, without being provided with specific parameters, it is sometimes difficult for a retailer to determine what exactly would constitute a reasonable length of time. For these reasons, it is important for retailers to develop and implement standards that meet the most stringent of detention statutes and to collectively urge state legislatures to expand the time frame for what is to be considered a reasonable length of time for detentions to clear up ambiguities in the various detention statutes and to provide retailers greater legal protections when making theft apprehensions.
[1] Del. Code Ann. tit. 11, § 840; Fla. Stat. § 812.015
[2] Id.
[3] See N.H. Rev. Stat. Ann. § 627:8-a; Tenn. Code Ann. § 40-7-116; Conn. Gen. Stat. § 53a-119a
[4] Me. Rev. Stat. tit. 17, § 3521; Mont. Code Ann. §46-6-506; W. Va. Code § 61-3A-4
[5] La. Code Crim. Proc. Ann. art. 215
[6] Id.
[7] Minn. Stat. § 629.366
[8] R.I. Gen. Laws § 11-41-21
[9] Va. Code Ann. § 8.01-226.9
[10] Id.
[11] Id.
[12] Ind. Code § 35-33-6-2
[13] Guijosa v. Wal-Mart Stores, Inc., 6 P.3d 583, 591-93, 101 Wash. App. 777 (2000) aff’d, 32 P.3d 250, 144 Wash. 2d 907 (2001)