• Home
  • Security Consultant
  • Expert Witness
  • Articles
  • Podcast
  • Media Interviews
  • Contact

Crime Doctor

Making Places Safe

Shoplifting False Arrest – How Retailers Reduce Liability for Bad Stops?

January 30, 2023 Chris McGoey

Shoplifting false arrest is very distasteful, so the industry has created several alternate words to describe the event like “non-productive detention” or “unproductive stop” or “investigative detention”. If you wrongfully stop a customer that’s not holding stolen merchandise, you’re at risk for a false arrest claim.

Shoplifting False Arrest Claims

A retail store makes a choice when it decides to apprehend and arrest those who attempt to steal its merchandise. Making that choice creates a legal responsibility for doing it correctly. This involves proper hiring, training, and supervising those who make shoplifter apprehensions and arrests. In the retail loss prevention profession, the possibility of falsely accusing and detaining a customer for theft is a business reality that must be addressed.

In the United States, citizens value their civil liberties and constitutional rights and don’t appreciate submitting to unlawful seizure and search. Because of this, there has been a legal trend of filing a lawsuit against a retail store anytime a customer is wrongfully accused of shoplifting. In recognition of this, the retail security and loss prevention industry has developed six universally accepted steps to minimize the potential for a shoplifting false arrest claim.

They are:

  1. You must see the shoplifter approach the merchandise
  2. You must see the shoplifter select the merchandise
  3. You must see the shoplifter conceal, convert or carry away the merchandise
  4. You must maintain continuous observation of the shoplifter
  5. You must observe the shoplifter fail to pay for the merchandise
  6. If required, you must apprehend the shoplifter outside the store

If these six steps are followed, false arrest situations and subsequent lawsuits will be almost nonexistent. These six steps were designed to establish a high degree of probable cause for the detention and arrest of a person suspected of shoplifting. If one of these steps is skipped, the chance of false arrest increases proportionately. If two or more steps are skipped, the store personnel are acting recklessly towards customers and are exposing the store unnecessarily to liability and false arrest claims. Remember, state law may not require this high degree of care for criminal prosecution.

The word “false arrest” is very distasteful to the retail industry, so it has created several alternate words to describe the event. Less offensive words are used instead of “non-productive detention” “unproductive stop” or “investigative detention”. All of these words have been used in place of false arrest so as not to seemingly admit liability. Whatever the terminology, if you stop a customer that is not holding stolen merchandise, you have the potential for a false arrest claim.

Shoplifting False Arrest – The Merchant Statute

Many states have enacted legislation to protect the merchant from such false arrest claims by allowing the store to make “investigative detentions” of a customer suspected of shoplifting. In these jurisdictions, the law allows certain latitude or “merchant’s privilege” if the merchant has a reasonable belief that a customer has stolen merchandise. In many jurisdictions, the law allows the merchant to detain a customer for a reasonable time, and in a reasonable manner, for the purpose of recovering the stolen merchandise or for summoning the police.

The problem with these statutes is that they are vague as to what “reasonable” means and what the word “detain” means. Some merchants have overly relied on this statutory language to protect them from lawsuits only to discover later that it would not relieve them of liability.

Shoplifting False Arrest – Unreliable Eye Witnesses

In most jurisdictions, a reasonable belief that someone has shoplifted does not include a stranger’s observation and report. Customers are often unreliable in what they report and it is considered unreasonable to detain and accuse someone of theft based solely on a customer observation. Besides, the customer and shoplifter could be working together to set up the store for a false arrest claim. Untrained sales associates can also be unreliable in their observations. Many store chains do not allow apprehensions on the word of a sales associate alone.

Shoplifting False Arrest – What is a Reasonable Detention?

While detaining someone, you must do so in a reasonable manner. Tackling and injuring a customer in the parking lot over suspected petty theft might be deemed excessive, especially if no other means of detention were attempted first. Detentions must also be for a reasonable time period. Holding someone for three hours while you investigate a check, credit card, coupon, or refund fraud attempt is excessive. Some jurisdictions have a problem with police response times that may take over two hours to respond to your store. This business reality must be factored into the store policy of detaining shoplifters or releasing them after recovering the merchandise.

Shoplifting False Arrest – Hiring & Training LP Agents

The best way to limit false arrest situations is to hire, train, and supervise competent staff. It is usually considered negligent management to have a policy of apprehension and arrest of shoplifters if the store personnel have no training on how to do so correctly. It is also negligent management if you fail to supervise loss prevention staff and their reports that indicate violations of company policy, violations of the civil rights of customers, or use of excessive force.

Shoplifting False Arrest – Use of Force

It is usually considered negligence if a store employee uses excessive force when apprehending a suspected shoplifter. It requires special training to understand how to routinely apprehend shoplifters while only using minimal force. Unreasonable tackling, punching, kicking, or verbal abuse of shoplifters is never acceptable. Excessive or unreasonable use of handcuffs, leg restraints, chokeholds, or pain compliance holds is also inappropriate when dealing with those suspected of retail theft.

You run the risk of a false arrest claim when you:

  • Don’t observe the customer approach a display
  • Don’t observe the merchandise being selected from the display
  • Don’t see the merchandise being concealed, carried away, or consumed
  • Don’t maintain continuous observation and the shoplifter dumps the item
  • Don’t watch the check stand and verify the non-payment of the item
  • Don’t detain the shoplifter outside the store (or at least past the last register)
  • Don’t detain only the person directly responsible for the theft

To avoid other related claims:

  • Approach from the front (so the shoplifter doesn’t think you’re a robber)
  • Have at least one witness of the same sex present at all times
  • Have at least one more backup than the number of shoplifters
  • Clearly identify yourself as the store representative or security officer
  • State the reason for the detention and ask for the item back
  • Don’t be afraid to immediately disengage and apologize if you make a mistake
  • Listen for spontaneous utterances (i.e. “I forgot to pay for it”)
  • Closely escort the shoplifter to a private office
  • Beware that the shoplifter might run, collide and injure other customers
  • Do not chase the shoplifter through the store or at busy store entrances
  • Always be polite and professional even if the shoplifter is not
  • Do not use excessive force (i.e. double-lock handcuffs)
  • Do not make threats or exchange insults
  • Accommodate reasonable medical and handicap requests
  • Process the arrest swiftly according to store policy
  • Save, tag, and photograph the stolen merchandise as evidence
  • Cooperate with the police and appear in court, if necessary.

Learn More about Premises Liability Litigation

Download the 115-page eBook written by Security Expert Chris E. McGoey

  • Security Expert’s Guide to Premises Liability Litigation
  • Evaluating Crime Foreseeability and Inadequate Security Cases

Chris McGoey has authored a tremendous practical guide about premises liability litigation for attorneys, security consultants, risk managers, landlords, law enforcement, and business operators.

“You won’t find a better book on this subject!”

If you’re a trial lawyer, you simply “Must Read This Book”

  • 115 pages 8.5 X 11″ — Instant Download (PDF) – Revised 2023.
    Copyright © 2009 – 2023 Aegis Books, Inc.

Click the Buy Now button. Pay via PayPal or Credit-Debit Cards

Instant Download  $25   –   

  • Online Orders are Secure via PayPal Server
  • Unconditional Money-Back Guarantee
    • Biography of Chris E. McGoey
    • Testimonials from a few clients
    • Speaking Engagements
    • Media Interviews
    • Premises Liability Litigation Book
    • Retain Chris as a Security Expert Witness
    • Chris McGoey Blog Article Index
    • Crime School Podcast Episode Index

    Contact Security Expert Chris E. McGoey

    Jonesborough, Tennessee

    951-461-8950

    Chris@CrimeDoctor.com

    Premises Security Expert; Premises Liability Security Expert; Service area: Eastern and southern USA, Tennessee, North Carolina, South Carolina, Virginia, West Virginia, Missouri, Kentucky, Illinois, Indiana, Ohio, Pennsylvania, Georgia, Alabama, Arkansas, Mississippi, Louisiana, Florida. After 39 years of serving California, Nevada, Arizona, Washington.

    Tagged With: loss prevention, shoplifting

    About Chris McGoey

    My biography spans 53 years of studying, evaluating, and developing security plans worldwide. I'm a habitual skeptic, a chronic people watcher, a golf fanatic, and a relentless traveler.
    Email | Twitter

    Related Posts You May Like

    • Security Guards Excessive Force – During a Retail Shoplifter Detention
    • Shopping Center Trespassers – How to Warn Detain or Arrest Trespassers
    • Retail Loss Prevention – Profession and Practices to Preserve Profit
    • Shoplifting Facts – What Does Theft at Retail Stores Really Cost Us?
    • Shoplifting Probable Cause – 6 Steps to Reduce False Arrest Claims
    • Shoplifting Detention – How Retail Stores Detain a Suspected Shoplifter?

    Premises Liability eBook

    Premises Liability Book

    Podcast Reviews

    • Great information and insight
      June 13, 2018 by djpoland from United States

      I have been listening to this podcast now for several months. It is one of the best sources of information concerning crime, security, and ways of making your home and business safe. Keep up the good work. Thank you for all you do to help so many people. DJ in Scottsburg, IN

    • Interesting, provocative, relevant and riveting
      July 29, 2017 by Lindapre from United States

      This is a very valuable service and I appreciate this high level of expertise to keep me knowledgeable, safe and sound. Everyone should subscribe and stay well-informed. Thanks Chris!

    • 10 reasons why burglars might choose your home
      July 28, 2017 by binwoodside from United States

      I am not one of those people who believes there is a bad guy behind every bush but Chris offers good advice that can be very useful to all of us. His tips can prevent us experiencing a home robbery due to our own carelessness. It amazes me that people use social media to advertise their absence from their homes. There are plenty of other points of carelessness Chris describes that also advertises to burglars. His voice is easy to understand and listen.

    • Educational eye-opening strategies for crime prevention
      October 22, 2015 by taylor826 from United States

      He pretty much covers the gamut of high-risk scenario from personal safety to commercial property security. He provides insights to how criminals could perceive potential victims as vulnerable. I don't own commercial property or a business, but the security best practices he outlines which mitigate potential crimes in multiple industries, also increases my awareness to avoid such businesses/locations that don't implement those policies. You don't want to be in the wrong place at the wrong time.

    • Excellent content
      July 1, 2015 by Ken Burgin from Australia

      Chris has been the ‘crime doctor’ for many businesses over the years - not much he hasn’t seen and fixed! Great to have his expertise coming to us directly through his podcast interviews. Highly recommended!

    • Crime School Radio is a Winner!
      June 18, 2015 by Liquor License Advisor from United States

      As a security expert, Chris McGoey was and continues to be a trailblazer. First, his informative website and book. Now this convenient, cutting-edge and educational podcast. Chris has an uncanny knack for knowing just what the world needs. With this show, he delivers vital information on safety and security in plain language that everyone can benefit from.

    • Helpful Content for Retail and LEO
      May 21, 2015 by StandardOfTruth from United States

      Chris is an industry expert with real world experience. It is also refreshing to hear a security podcast with crystal clear audio and presented in a professional way.

    • Fantastic! Informative and relevant.
      May 13, 2015 by isntrocketscience from United States

      I have seen Chris McGoey several times as a security expert on TV so I was curious to hear his Crime School podcast. As expected the podcast provides valuable information for keeping us safe and useful ideas for everyday life. I plan to listen to every episode. Keep 'em coming Chris.

    • Home Security Safe Room
      May 13, 2015 by TimInArizona from United States

      Outstanding! Very thorough. I would like to see police departments link to this audio as part of their crime prevention education of their citizens.

    • Great show about crime and loss prevention
      May 12, 2015 by CrimeRx from United States

      A great resource for new and veteran crime prevention practitioners. I have subscribed so I won't miss and episode.

    Chris E. McGoey CPP, CSP, ICPS, CAM
    McGoey Security Consulting
    Jonesborough, Tennessee
    951-461-8950
    Chris@CrimeDoctor.com

    Copyright © 2023 - Aegis Books, Inc and Chris E. McGoey - All Rights Reserved -

    Terms of Use  |  Disclaimer  |  Privacy Policy