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Shoplifting is a form of larceny, a taking and carrying away of the property of another with fraudulent intent—traditionally, intent permanently to deprive the true owner thereof. Since the goods taken are items held for sale, the intent to deprive involves an intent to obtain the goods without paying for them or without paying the full price, for example, by changing the marked price. As a form of larceny under traditional American statutes, shoplifting is a misdemeanor or a felony depending on the value of the property taken. In most cases shoplifting will be a misdemeanor, since American statutes make larceny a felony only if property of substantial value is taken. In a few states, all shoplifting offenses are felonies (Note, 1971, p. 866).
Application of The Law
The application of the law of larceny to shoplifting requires proof of wrongful taking. In order to prove that the taking was with fraudulent intent, must store personnel wait until the subject has left the store without paying for the goods, or is concealment of the goods or failure to pay at the place where the goods would normally be paid for sufficient? The problems of proof are compounded by the risks to merchants who act on unfounded suspicion. Under the law of many American jurisdictions, even an honest attempt to arrest on reasonable grounds may be wrongful if no misdemeanor was in fact committed by the person arrested. A customer wrongfully accused or unlawfully detained or arrested may have a legal claim to compensation for slander, false arrest, or false imprisonment. Additionally, more and more people are becoming (rightly) concerned about the injustices of ‘‘racial profiling’’ in shoplifting, where store employees use race as a primary heuristic for suspicion (Austin). A substantial judgment against a store that has acted improperly poses great financial risks for the merchant (Keeton and Prosser).
Changes in Substantive Law
Most states have responded to the substantive and procedural problems by enacting special shoplifting statutes (Comment, 1973a, pp. 312– 314). The substantive difficulty of proving fraudulent intent and the wrongfulness of the taking of possession is sometimes resolved by a provision making concealment of merchandise or similar acts criminal. Thus, the New Jersey code of criminal procedure (N.J. Stat. Ann. tit. 2C: 20–11 (1999)) defines shoplifting to include purposely concealing merchandise offered for sale with the intention of depriving the merchant of such merchandise without paying for it. The New Jersey code also defines other essentially preparatory acts as shoplifting when done with the requisite intent: altering or removing any label or price tag, or transferring merchandise from the container in which it is displayed to any other container. Such conduct indicates an intent to deprive and constitutes an exercise of wrongful dominion over the merchant’s property even though the taker has not yet left the merchant’s premises or the area in which it would be appropriate to pay for the goods. Indeed, the statutes of a number of states recognize a presumption of intent to deprive from concealment of merchandise.
Perhaps more significant than the changes in the substantive law of theft are the procedural provisions authorizing merchants and their employees to detain suspected shoplifters. These statutes, such as that in Illinois (720 ILCS 5/ 16A-5, A-6 (1999)) take the form of specific provisions authorizing detention on reasonable grounds and providing merchants and their employees immunity from civil liability to a person so detained. Some states permit searches of a suspected shoplifter. The Iowa statute requires, however, that unless made with the permission of the suspect, the search be made under the direction of a peace officer (Iowa Code Ann. § 808.12 (1999)).
In addition to authorizing detention of suspected shoplifters, the statutes usually provide immunity from civil liability from a person so detained, either in general terms or with reference to such specific actions as slander, false arrest, false imprisonment, and unlawful detention (Note, 1971, pp. 836–837). The statutory immunity will depend on the existence of reasonable cause to detain the suspect and the reasonableness of the detention under all the circumstances, including time, manner, and place of detention (Comment, 1973b, pp. 162–165). Worthy of specific note is Michigan’s statute, which does not provide complete immunity to the merchant even for reasonable detentions (Mich. Compiled Laws Ann. 600.2917 (1999); Bonkowski v. Arlan’s Department Store, 383 Mich. 90, 174 N.W.2d 765 (1970)). While the merchant will not be liable for damages ‘‘resulting from mental anguish’’ nor for ‘‘punitive, exemplary or aggravated damages,’’ compensatory damages may be awarded. Thus, if the person detained can show actual injury or monetary loss resulting from the merchant’s action in arresting or detaining him, he will be able to obtain compensation for such injury or loss.
Despite the proliferation of such statutes designed to deter shoplifting and provide protection to merchants, shoplifting continues to increase. The statutes have apparently not been fully effective in motivating merchants and their employees to initiate action against suspected shoplifters.
It seems likely that shoplifting will continue to be a substantial problem for merchants unless the public comes to recognize it as a crime of serious economic consequence. Perhaps the most effective means of dealing with the problem is a combination of approaches designed to make the public more aware of the costs of shoplifting and the likelihood of prosecution and conviction. Under such a multilevel approach the law will have a role to play, but so will efforts at public education and private measures by merchants to deter and detect retail theft.
- AUSTIN, REGINA. ‘‘A Nation of Thieves: Securing Black People’s Right to Shop and to Sell in White America.’’ Utah Law Review (1994): 147– 177.
- BLANKENBURG, ERHARD. ‘‘The Selectivity of Legal Sanctions: An Empirical Investigation of Shoplifting.’’ Law and Society Review 11 (1976): 109–130.
- ‘‘Shoplifting Law: Constitutional Ramifications of Merchant Detention Statutes.’’ Hofstra Law Review 1 (1973a): 295–314.
- ‘‘Shoplifting: Protection for Merchants in Wisconsin.’’ Marquette Law Review 57 (1973b): 141–169.
- Comment ‘‘Stopping and Questioning Suspected Shoplifters without Creating Civil Liability.’’ Mississippi Law Journal 47 (1976): 260–277.
- HUBER, BARBARA. ‘‘The Dilemma of Decriminalisation: Dealing with Shoplifting in West Germany.’’ Criminal Law Review (1980): 621–627.
- KEETON, W. PAGE, and PROSSER, WILLIAM Prosser and Keeton on Torts, 5th ed. St. Paul, Minn.: West, 1984.
- LUNDMAN, RICHARD. ‘‘Shoplifting and Police Referral: A Reexamination.’’ Journal of Criminal Law and Criminology 69 (1978): 395–401.
- ‘‘The Merchant, the Shoplifter, and the Law.’’ Minnesota Law Review 55 (1971): 825– 869.
- ‘‘Merchants’ Responses to Shoplifting: An Empirical Study.’’ Stanford Law Review 28 (1976): 589–612.