In California, a retailer may hire employees to detect, apprehend and arrest suspected shoplifters. Traditionally, retailers hire "officers" to wear uniforms in order to deter crime and assist in the apprehension and arrest of suspected thieves. Security "agents" (sometimes referred to as "asset protection agents" or "loss prevention agents") are generally employed to work undercover on the sales floor to detect and apprehend suspected shoplifters. A statute enacted many years ago (California Penal Code § 490.5) permits the retailer and their agents to stop and detain suspected shoplifters whenever there is probable cause to believe the person stopped has attempted to take or has unlawfully taken merchandise from the store's premises. This same statute protects the retailer and their agents from civil liability so long as they have acted with probable cause, and the detention was in all other respects reasonable. This code section is commonly referred to as the "merchant's privilege."
However, it is not terribly uncommon for an overly zealous shoplift agent to apprehend someone without adequate cause or use more than that force necessary to effect the detention. The law only permits the agent/security officer to use a reasonable amount of non-deadly force to apprehend and detain suspected law breakers. Once the amount of force crosses this line or the detention is longer than is reasonably necessary, the store and its employees may be held liable for damages.
The damages that can be recovered are often determined by the actions of the store employees. For example, where physical restraints are used (such as handcuffs) or there is a physical altercation of some sort, the amount of damages awarded is likely increased. Additionally, if the retailer elects to criminally prosecute the suspected shoplifter (who is in reality innocent), the merchant's privilege does not apply beyond the detention, and damages may be awarded for false arrest and/or malicious prosecution.
Beyond the damages already mentioned, the victim of security misconduct may be able to pursue a claim for a violation of California Civil Code § 52.1 and/or §43, which reads in part as follows:
....every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.
There are a host of civil claims that may be brought to vindicate the rights of those falsely detained or arrested by store security agents and officers. The laws in California operate to protect the store owners to an extent, but also to ensure the innocent are fairly compensated when their rights have been trampled.
Compensation for the victims of security misconduct should be an important concern for all Californians. When a security officer or agent acts outside the bounds of the law, they and their employer should be held accountable. An Orange County trial lawyer with experience at handling such cases can make a fair assessment of these claims. Mr. Ralph has more than 19 years of experience handling personal injury cases, including just this type. He can be reached at 714-919-4415 for a FREE CONSULTATION.
Does the California law protecting retailers and their agents, at least in a limited fashion, seem fair?
- This posting should not be construed as legal advice or an opinion on the merit of any particular matter. A consultation is the best way to obtain an assessment of your potential case.