The shopkeeper’s privilege is a privilege given to merchants to detain a suspected shoplifter on or near store grounds. The merchant must have probable cause for detaining the suspect, and can only detain, or hold, the alleged shopkeeper for a reasonable amount of time and in a reasonable manner.

Many states allow merchants, including their store security team, a privilege when trying to prevent the theft of items from the store. These are often referred to as shoplifting statutes, or merchants’ statutes.

Shopkeepers must be careful in exercising the privilege, in order to avoid the alleged shoplifter claiming that they were falsely imprisoned, falsely arrested or otherwise improperly treated.

What is the Procedure for Properly Exercising Shopkeeper’s Privilege?

Some guidelines a merchant can go by to minimize the potential for a false arrest claim by establishing a high degree of probable cause for the detention of a person suspected of shoplifting:

  • Witness the shoplifter select, and conceal or carry away the merchandise.
  • Maintain continuous observation of the shoplifter.
  • Witness the shoplifter’s failure to pay for the merchandise. These three steps create “probable cause”, reasonable suspicion that shoplifting had taken place.
  • Apprehend the shoplifter inside or near the store.
  • Usage of reasonable, non-deadly force if any force is necessary. For example, if suspect attempts to flee or resist detainment.
  • Detainment lasts only as long as it takes to make a reasonable investigation. Suspects should not be kept in confined areas. This can lead to false imprisonment claims.

Can a Merchant Use this Privilege to Stop Anyone?

No. The merchant can only detain someone if there is reason to believe the individual attempted to or actually committed theft. The theft must occur on store property. In order to use this privilege, the merchant must:

  • Conduct an investigation on or near the premises. The detention of the suspect should also be on or near the premises;
  • Only use non-deadly, reasonable force to detain the suspect. The use of force is only justified if the suspect violently resists or immediately flees the scene; and
  • Only detain the suspect long enough to conduct a reasonable investigation into the alleged shoplifting.

What if the Privilege is Not Exercised Properly?

Those responsible for exercising the privilege should be cautious that they follow proper procedure. This includes having probable cause to detain a suspect, as well as questioning/detaining the suspect only for a reasonable time and in a reasonable manner.

If the alleged shoplifter is treated incorrectly, according to the privilege, they may accuse the store and its employees of false imprisonment or false arrest, and sue them in civil court.

The store should also be certain that they are not racially profiling when they accuse alleged shoplifters. A victim of racial profiling may sue for discrimination.

Is Stopping the Shoplifting the Same as a Citizen’s Arrest?

No. A citizen’s arrest occurs when an individual detains another because the citizen has actually seen the detainee attempt to or actually commit a crime. The detainee is detained until police arrive to make an official arrest. The criminal act could be any crime, including shoplifting.

If another customer in the store spotted the shoplifter, and then attempted to arrest/detain them, then that would be considered a citizen’s arrest.

Can the Use of Shopkeeper’s Privilege Lead to an Arrest?

Yes, if the merchant has enough facts, they can call law enforcement to make an arrest. When an arrest occurs, the suspect is taken into police custody.

From there, they will take you to the local station and process you. You will await a bail hearing and will be notified when you appear in court for your trial.

However, it is also possible for the owner to simply request you return the items in exchange for not calling the police. Shopkeepers also have the right to ban certain customers from the store.

Should I Contact a Lawyer About the Shopkeeper’s Privilege?

If you have exercised the shopkeeper’s privilege and have been accused by the alleged shoplifter, then you may want to contact a local criminal attorney.

If you believe you were wrongfully treated due to shopkeeper’s privilege and were falsely held against your will, then you may want to contact an attorney to find out your rights.