Dear Sir:
I am a male, 17 years old. Recently I was subject to being detained for
shoplifting when I was innocent and I would like your opinion about it.
WHAT HAPPENED
I was shopping at a large retail store that sells everything from food to
television sets. After paying for my items at a checkstand I proceeded to
the exit. An alarm sounded as I went through the first exit door. I looked
around, but no employee seemed to be around so I proceeded out the second
door.
I was overtaken in the parking lot by a uniformed store security guard who
asked me to stop. She told me to remain calm and asked me to keep my hands
in plain sight. She then explained that she had responded to the exit alarm
and asked to look into my bag to check my receipt. I felt that I had
nothing to hide so I agreed. To my great surprise she found an item which
was not listed on my receipt, one of two CD’s I bought. I explained that
this must have been a mistake by the checker or that something was wrong
with the register and I offered to pay for it. She told me that she would
have to investigate further and asked me to accompany her back to the
security area where “we can talk about this further.” By this time I was
getting scared and I did not want to go with her. We argued about this for
a minute or two, not in a loud way, but with me saying that this was
unnecessary, I could pay for the CD or give it back, and her saying
I would have to accompany her back to
the security area where a decision as to what to do would be made. I even
offered to pay her cash on the spot for the CD which was less than $20. At
that point she stated that she was not going to argue with me any longer and
she was going to escort me back to the security area. She took me by the
arm, above the elbow, grasping my hand with her other hand and kind of
turning my hand around and back on itself. She asked me to please come
along with her quietly. I can’t say that the way that she held me hurt, but
I felt that it would if I resisted. I went with her without resisting.
She took me back inside the store, down a hall and into a private office and
sat me down on a stool. She then called someone on the phone and a male
employee came in. She had me get up again while he did a “pat down”, which
she said was “for my safety and your safety.” She then asked me to produce
identification and I handed over my wallet. By this time I was very
frightened. I wanted to call my mother on my cell phone and get her advice,
but the guard said I could not do that now. I was already upset and shaking
like a leaf. Not being allowed to call my mother was too much for me and I
protested at this. The security guard told me to calm down but I couldn’t
help starting to cry. At that point she told me that “for my safety and
your safety” I would have to be restrained. She then proceeded to handcuff
my hands behind my back and again sat me down on the stool, telling me to
“take some deep breaths and relax”.
That was very difficult to do under the circumstances
but it did help me regain some control, although I kept blinking back tears.
The male employee said that he had something else he had to take care of and
asked the guard if she needed him to stay. She said that would not be
necessary and he left. She then proceeded to do her investigation. She
made a list of everything in the bag, took a photocopy of my learner’s
permit, and photographed me. She was able to identify the checker from the
receipt and she called the checker in for an interview. The checker said
that she checked everything I put on the counter. The guard also viewed a
surveillance video of the checkout stand. I did not get to see the video
from where I sat, but I think it must have shown that I did nothing wrong
because afterwards she told me that she would release me without charges if
I paid for the CD and signed a statement that said I had removed an item
from the store without paying for it and promised never to return. By this
time all I wanted was for this to be over with and to be allowed to
go home so I agreed. She then wrote up some papers, took the handcuffs off of me, and had me sign the
statement. The papers did not say anything about a checker’s mistake or
anything like that, but I was afraid to argue with her so I signed. All of
this took maybe 30 to 45 minutes.
I expected to be able to leave then but she told me that because I was a
minor she would have to release me to a responsible adult. I protested at
this because I had understood that she had promised to let me go and I was
not even planning on telling my mother about it. The guard told me that I
was getting visibly upset again and that I should take some more deep
breaths and calm down or she would have to put me in handcuffs again. I
felt helpless and I tried to calm down as much as I could. She then called
my mother at work, who had to make arrangements to leave early and come down
and get me. I had to wait about another hour and 15 minutes. When my
mother came the guard had the male employee come back in and sit with me
while she talked to my mother in another room. She then escorted my mother
and me out to the parking lot and I was finally allowed to go home.
The guard gave my mother a copy of the statement I had signed and also a
copy of the guard’s report. The report pretty much tells what happened but
does not say anything about the video having cleared me. My mother is angry
with me and thinks the whole thing is my fault. I have told my mother my
side of the story but she believes that I did steal from the store and was
lucky to “get off lightly.” She also has told me that even if I was
innocent I had behaved badly with the guard, “got what I deserved”, and have
hopefully “learned my lesson.”
MY QUESTIONS
I have read lots of stuff on the Internet. I have some questions.
1. I have read that the security person should actually see you take and
conceal something to have “probable cause”. In my case that did not
happen. Was the security guard acting unlawfully when she detained me?
2. If the guard did not have probable cause, would I have had the legal
right to run away or fight back when she detained me?
3. When I explained that there must have been a mistake and offered to pay
for the item, shouldn’t that have been the end of it?
4. If the guard had probable cause to detain me, was it legal for her to
take me by the arm and lead me back to the security area?
5. Was it legal for the “pat down” to be done? I don’t see how that was
necessary for anybody’s safety.
6. Was it legal for the guard to handcuff me? Do you have any idea why she
did this?
7. What chance would I have of successfully suing the store for false
arrest or something like that?
(2ND EMAIL) I noticed that the report the guard gave my mother says that I was involved in "accidental stealing". So, doesn't that mean that I am right and that the guard concluded I didn't intentionally steal, that it was all a mistake? I still think that the video should have cleared me. I have been arguing with my mother about this but she says that "accidental stealing" means I am a thief and could be prosecuted. I don't understand this.
I RESPONDED TO GARY WITH THIS EMAIL:
Hi Gary-
I am sorry that I couldn't respond to you sooner, but my computer was down
for a week and I just logged on to find 34 new emails! So, I am working on
getting through them all.
Anyways, I have read your story and I have to say that I am quite
disappointed with the way this situation was handled. First of all, let me
just start by notifying you that I am by no means an expert in this the
field of Law or Criminal Justice. I am not a Lawyer. However, I have been
working retail Loss Prevention for the past 9 years and also have a Criminal
Justice Degree. So, from that knowledge and training, I will offer you my
take on this situation and answer your questions to the best of my ability.
Let me start by saying that the alarms, or Checkpoint Antennas located at
the front of the store are in my field considered to be nothing more than a
deterrent to theft and occasionally a nuisance too. They serve a purpose of
keeping the honest people honest and nothing more. When the alarms sound,
they are only about 50% accurate in detecting merchandise that was not paid
for. The reason for this is, is because a number of things cause false
alarms. A lot of items in other stores that customers pay for come with
tags built into them by the manufacturer. Some of these popular "Source
Tagged" items included wallets, purses and jackets. Anyways, an alarm
sounding should be dealt with nothing more than a customer service
approach. For example, "How are you sir, you have activated our inventory
control system can I please check your purchase for items not rang up?"
Once an item was discovered, as in your case, you should simply have been
allowed to pay for the item or give it back. You should never have been
brought to the security office for an investigation unless, as you
mentioned, the Security Staff had observed you take and conceal the items or
make some attempt to leave the store without paying KNOWINGLY. And now, I
am sure you would like to know why that is...... the reason is, is because
the store has the burden of proof in Criminal Court to prove you guilty
beyond a reasonable doubt that NOT ONLY you left the store without paying
for the merchandise (which you did), BUT ALSO, that you had intended to
deprive the store permanently of the said merchandise. The intent portion
can only be proven if they saw you take the merchandise and conceal it in
the bag. It can't be proven if you put the cd up on the conveyor belt.
There is no intent to steal. That would make it the cashiers fault.
That makes what happened to you an unlawful detention, or as we call it in
my field, a "bad stop". Case in point, you should not have been detained in
the office. You should been offered the opportunity to pay for the
merchandise or leave it there and management could simply follow up with the
cashier and inform them that they failed to ring up an item.
So, now I will move on to your other questions. I have already established
that the guard did make a bad stop. Although, she did in fact do that,
you DO NOT have the legal right to resist or flee the scene. Plus, that
would also make you look guilty. You did the right thing by cooperating
with security although it probably doesnt feel like it in your case. The
reason you cannot resist the security staff is because regardless of whether
they are right or wrong, the law states that if a retail merchant or
security agent has reasonable grounds to believe that a theft has occurred
they have the right to detain you and use reasonable force if necessary to
take you into custody for investigation purposes.
So, in answer to your next question, LEGALLY the guard could use force to
bring you back into the store.
Once I bring a shoplifter to the office, I always do a pat down search on
all subjects. This is for safety purposes and she is allowed to do that to
ensure that you dont not have any weapons on you or objects that you could
use to resist with if you become angry. Believe me I could tell you
numerous stories of times that I wish I had done a pat down and found out
that a suspect had a weapon on them that could jeopardize my safety.
When guards feel they're safety may be at risk and are trained to do so,
they are authorized to handcuff a suspect. From your story, I don't
understand handcuffing a person who was crying unless you were making the
guard feel that you might jump up and start a fight. In which case, she
would have no other recourse than to handcuff you. However, most companies
that I know of, including the one that I currently work for would say that
anybody who is handcuffed automatically is arrested.
On to your last question, would you have success in filing a law suit in
this matter. I would say the answer is yes. But I would suggest consulting
an attorney for that if you wanted to. Besides Suing though, have you tried
calling the Corporate Office of this company? They might offer you
something for this to avoid a law suit. I would definitely consider that as
an option too. You definitely deserve some serious apologies though because
from the sound of things, you were terribly mistreated.
I did receive your second email and to answer your question, THERE IS NO
SUCH THING AS ACCIDENTAL THEFT. That is an oxymoron. If I was the agent
that detained you in this case, (excuse the expression) but I would be
kissing your butt right now and apologizing for the false detention.
Good luck to you and I hope that this email helps you with understanding
things. I will probably post your story and my response to my website for
others to read as well. If this bothers you, please let me know.
Thanks,
Jeff Anders
Webmaster, LPspy.com
GARY'S FINAL EMAIL RESPONSE TO ME:
Dear Jeff:
Thanks so much for your response. It helps loads to understand this
better. It may sound silly, but one of the things that was bothering
me a lot was that I didn't stand up for myself very well. I am almost
relieved to know that it was better not to resist at all. To tell you
the truth, if I had resisted she probably could have clobbered me
anyway.
I have a little bit of distance on this now and it is not as upsetting
as it was 2 weeks ago. I am not planning on trying any legal action.
Mom is not supportive of me in this mess and I don't want to make
things worse at home. Again, though, understanding what happened
helps a lot.
Feel free to post what I sent you on your website. Besides my Mom,
sister, and the store no one else knows about this so it is not like
it is going to embarrass me to anyone I know.
Thanks again.
Very truly yours,
Gary
