Wednesday, September 5, 2007

Know Your Rights!

For some reason I feel like I need to comment on the recent story in the news about the guy who refused to allow clerks at his local Wal-Mart or whatever store it was, to check his bag and receipt before leaving the store.

It’s very easy to dismiss people as being too sensitive if they feel degraded or dehumanized upon being asked to submit to such a search. But the fact is, security or “loss prevention” personnel are often overzealous in their pursuit of potential shoplifters. Further, they are often quite ill-informed as to the parameters of their authority. Customers who are equally quite ill-informed of their own rights may be easily intimidated into submitting to searches when they do not need to.

The simple legal fact of the matter is that no personnel or security officer in any department store or shopping mall has any legal right to detain, restrain or direct your action in any way other than to remove you from the premises. This they can do only by calling the police, who then may do the actual physical ‘ejecting’ from the premises. Even if witnessed or filmed shoplifting, no loss prevention employee has the legal right to restrain you. However, if they have evidence that you are indeed shoplifting they can and will call the police and attempt to keep you in the store until the police arrive, even though legally they do not have the authority to do this.

Unless ‘deputized’ by an appropriate law enforcement agency, such as a sherriff’s department for example, loss prevention personnel or security guards are there merely to observe and record alleged crimes and to then apprehend or detain the suspect as much as possible without actually tackling you and handcuffing you. Despite having no authority to physically detain anyone, many security and LP employees will do just that. Generally, neither the security guard or the victim is aware that this is a gross overstepping of legal boundaries. You can actually press charges against someone for assaulting or menacing you if this happens.

In my own experience, I can recall an incident that took place at the Cobleskill Fair a number of years ago, where a fair security guard got my attention and directed me to come with him to an undisclosed location where he wanted to “ask me some questions”. Apparently I fit some description of a perpetrator of recent acts of vandalism or some other such thing. Anyway, I felt no need to comply with the request of this individual and turned and walked away. Then, I noticed he was chasing me, so I decided to run from him. Why not? This person has no legal right to question me or take me anywhere. By the way, at the time I was a minor (I was 12!).

So after a few seconds I decide to stop running and give this guy a piece of my mind. But before I could turn around he tackled me to the ground and proceeded to forcibly restrain me. He then picked me up off the ground and continued to restrain me in a headlock! A twelve year old in a headlock, can you imagine! Finally, my mother notices this situation and basically goes ballistic on this guy.

At the time, I didn’t really know what the legal issues involved were, but my parents insisted that we file a police report with the Cobleskill Village police, which we did. Hesitantly, the police took a report and agreed to file a charge of menacing against this security guard.

We were actually in the process of moving out of the area, so we didn’t really follow through on the charges, and I’m not actually sure if the guy ended up actually getting cuffed or just ticketed. But the point is, such an unsanctioned use of force by overzealous security guards or loss prevention personnel is illegal, and if you press the issue you can get justice.

There is also an element of profiling inherent in many of these cases. You know minorities and young people (especially young people dressed differently) are going to be profiled and picked on more than others. This makes this all the more egregious!

My suggestion is that people inform themselves of what their rights actually are. If you’re walking out of Wal-Mart and an employee requests to inspect your bag and see your receipt, just tell them no thanks and keep walking. They have no legal authority whatsoever to forcibly inspect your person or property. Would it be a whole lot easier to simply submit? Would you be avoiding a whole lot of drama and commotion by just giving it? Yes, but take it from me, there is a real sense of satisfaction derived from telling these people to fuck off. I guess it is the part of me that never grew out of my headstrong and rebellious teen years, but it still feels pretty damn good. And hey, there’s always the chance that some idiot will try and tackle you and ya might just get a lawsuit out of it if you’re lucky.


Anonymous said...

Thanks for the great post!

Anonymous said...

It's good to know your rights if you are being unfairly detained.

At the same time, what are store managers to do when faced with shoplifters?

Sean Thomaston said...

Retailers have a seemingly limitless amount of options to "prevent" shoplifting. The key word here though is "prevent". Anti-theft devices, store cameras, as well as a host of store layout and design options can help to provide an atmosphere that thwarts potential shoplifters. Plus, they can have security guards in every aisle for all I care. Just don't expect me to take them seriously if they ask to see my receipt or check my bag. I've personally seen assistant managers at Wal-Mart run after shoplifters who have tried to run after setting off the door alarm. This is totally stupid. If that manager lays a hand on an individual he is exposing the store to all kinds of liability. For what, a 20 dollar video game?

Anonymous said...

You should always be zealous in protecting your Rights; having said this, research for yourself what those Rights are. I do not condone over zealous store personnel violating the Rights of anyone, nor should they jeopardize life for property,

I would suggest the writer of this post read NY General Business Law 218 and NY Criminal Procedure Law 120, 140, NY Penal Law 35.25, 35.30(4), to name a few of the laws involved.

Cooperation will keep the merchant and the accused from entering in to a situation that is dangerous to anyone. I have written articles and procedures to be followed by retail establishments that require a “preventive” technique vs. detention based on dollar value of the item(s) involved in the larceny; this does not discount the dollars lost annually to shoplifting that are simply the “$20” thefts added together. Might I suggest you examine someone walking up to you and removing your wallet from your pocket to take a $20 bill; would you show no resistance? Or do you think human nature and self preservation may kick in and you will attempt to stop this person?

We have become a lawsuit happy nation, and it is the misinformed individuals who tie up our courts and cost tax payers millions of dollars annually. This I also do not condone…

Sean Thomaston said...

"Might I suggest you examine someone walking up to you and removing your wallet from your pocket to take a $20 bill; would you show no resistance? Or do you think human nature and self preservation may kick in and you will attempt to stop this person?"

Actually, self-preservation would probably tell me that it's not worth getting stabbed or shot for 20 bucks.

I'm certainly not going to stop random passersby and request to inspect their wallets to see if they indeed did steal money from my wallet, and that's what the stores are doing when they ask to see your bags upon leaving.

"We have become a lawsuit happy nation, and it is the misinformed individuals who tie up our courts and cost tax payers millions of dollars annually. This I also do not condone…"

No, it is the juries who award large sums of money to complainants that has thousands of people (who are quite well-informed) thinking that they're going to hit the lawsuit lottery, which they very well may.

If you don't condone this, tell the retail businesses you consult for to stop hiring wanna-be cops to chase down and tackle kids for stealing batteries.

Anonymous said...

A shopkeeper or agent of a shopkeeper (in your case, a security guard) has the right to detain someone they suspect of shoplifting. It's called Shopkeeper's Privilege and is covered under the tort laws of most states. The security guard did have the legal right to ask you for your receipt and the legal right to detain you when you refused to comply. Check your state laws for the details.

Sean said...

While the information in the above post is essentially correct, I would still stand by my initial recommendation that you never under any circumstances submit to questioning, detention or search by a security guard or other store personnel.

Here's why. Yes, a security guard has the legal right to detain you temporarily until the police arrive, a right which is either covered under the common law "shopkeeper's privilege" or is actually superceded by state laws which in some cases expand these powers, however, they do so at their own peril. Which bascially means you have as much right to resist them. In other words, you as a private citizen do not have the responsibility to differentiate between a security guard who is chasing you and some street thug who wants to mug you. You have the right of self-defense.

Secondly, such statutes do not give shopkeepers or security guards the right to search you. But most of the time they will try to do this, potentially opening themselves up to liability. So again, it is in your interest to provoke them as much as possible in the hope that they will overstep their legal boundaries.

Further, in order for a private citizen to detain you there must be "reasonable suspicion" of theft or other wrongdoing and they can only use "reasonable force" to detain you and must not exceed a "reasonable time and manner of detention". While state statutes vary on these provisions, most apply to some degree or another.

Since you can never be held liable for resisting detention or questioning by a private party, and may in fact cause the private agent of shopkeeper to run afoul of one or more privisions of state law in the process of pursuing you, I maintain that it is in one's best interest to...make the fuckers chase you.