Magazine article Security Management

An Arresting Policy

Magazine article Security Management

An Arresting Policy

Article excerpt

Department stores, shopping malls, and other retail venues sometimes permit security personnel to detain suspected criminals, but in doing so they create the potential for false arrest lawsuits. The price tag for such mistakes can be high. A review of recent jury verdicts in false arrest cases reveals that awards typically exceed $100,000 - even in instances where a plaintiff was held for less than twenty-four hours. In Gardner v. Bloomingdales, one of the highest punitive jury awards, a New York court awarded a plaintiff $1.5 million after he was detained at a Bloomingdales store for six hours. Retailers can reduce their risk by studying the laws governing false arrest claims and crafting policies to comport with those laws. Retailer rights in this legal arena are based in large part on what is known as the "shopkeeper's privilege."

A powerful shield against false arrest charges, the shopkeeper's privilege derives from common law. Under this theory, a shopkeeper can reasonably detain and question an individual if the shopkeeper has a justified suspicion that an illegal act - such as theft - has taken place on the property. The suspect need not ultimately be found to have committed a crime for the detention to be judged proper. But the detention must be found to have been warranted, reasonable, and consistent.

From the point of view of the party bringing false arrest charges, the necessary inquiries are whether there was a deprivation of liberty without the person's consent and, if so, whether such deprivation was without any legal justification.

Detention. The first step in applying the shopkeeper's privilege defense is to determine whether a detention actually occurred. According to common law, detention need not consist only of physical restraint; it may arise out of words, conduct, gestures, or even threats, as long as the detainee believes that he or she is not free to leave the premises. Generally, the plaintiff must prove that the defendant intended to confine him or her; that the plaintiff was conscious of the confinement; that the plaintiff did not consent to the confinement; and that the confinement was not otherwise allowed by law - such as in detainment at sea.

Probable cause. Also at issue in a false arrest case is whether there was probable cause to warrant the detention. In Carcone v. Senpike Mall Co. (1993), for example, three twelve-year-old boys were lingering near a shopping center's fence at the rear of the property - a location that was prone to vandalism. While attempting to detain one of the youths, a mall employee put his hand on one of the boys. All three children were put into a security vehicle and taken to the security office where they were questioned, photographed, and released to their parents. The parents of the boys then sued the mall for false arrest and battery.

During the trial, the judge noted that the boys had not done any harm but had merely been in an area that the mall considered off limits even though no signs were posted. The court found that the touching of the boy was battery though the contact was minimal. Placing the youths in the truck and transporting them to the mall was unreasonable, ruled the court. And photographing and detaining the boys was also inappropriate. The court stated that under the circumstances, the proper action would have been to take the youths' names or drive them home to their parents. The court concluded that the youths had not yet committed a crime, making the detention improper.

Reasonableness. The detention must also be deemed reasonable. In determining reasonableness, juries often consider factors such as the detainee's physical surroundings, any physical contact, and the type and level of any threats. In Gortanez v. Smitty's Super Valu (Arizona Supreme Court, 1984), two youths were falsely accused of stealing a 59-cent air freshener after paying for other merchandise in the store. An off-duty police officer working as a security officer apprehended the youths at their car. …

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