Introduction
The first weekend of April 2008 was a very good weekend. Finals were soon approaching and just having finished writing an appellate brief of behemoth proportions I was in desperate need for a break. Hopping on a plane to Las Vegas, I soon found myself forgetting my day to day troubles and basking in euphoria, hotly anticipating all the fun things I was going to do. I met up with my girlfriend who was already there ahead of me and we ended up going to the Fashion Show, a big in-door mall with lots of clothing stores and a big food court.
Long story short, I’m waiting outside Express while my girlfriend is inside trying some things on. I’m leaning with my back against the railing (I was on the second floor), calmly looking around at things and out of the corner of my eye I see a security guard wearing a white uniform with a patch on the left shoulder denoting what private security company he works for.
The security guard strolls past me and I don’t think anything of it until he suddenly stops and turns to face me. I’m still leaning against the rail, very relaxed, and I look at him – and he’s looking right at me.
Security Guard: “Good afternoon.”
Erick: “What’s up?”
SG: “You having a nice day today, sir?”
E: “Yes, I am.”
At that moment an employee from inside Express comes walking out to us. The Express employee is waving his hands in the air, saying, “No, no, that’s not him. That’s not him.” The security guard doesn’t apologize to me or anything and just turns around and follows the Express employee into the store.
Minutes later, the security guard comes out of the store and I’m assuming he’s done whatever it is the Express employee asked him to do and is now going to leave. Not the case. Instead, he walks over to where I’m standing and just stands there with his back to me, occasionally turning around to glance in my direction. This guy is making it real obvious that he has an interest in me and does not move for minutes on end. I fold my arms across my chest in a subtle psychological display that I’m not buying any of his dogging techniques and continue to just lean against the railing. Minutes pass like an eternity.
Finally, my girlfriend comes out of the store, walks up to me and we start talking. The security guard finally gets the hint that I’m not suspicious and starts to walk away. (Apparently, standing outside a department store with a clear, plastic shopping bag with only one item in it with the sales receipt clearly visible qualifies me as a suspicious character.)
But what if…?
What if the security guard felt he had enough probable cause to detain me based on the suspicion that I stole something? And what if this incident had happened in California? Could I have done anything?
The Theory of False Imprisonment
False imprisonment is an intentional tort, i.e., the person who falsely imprisons you is doing it with the intention of causing a harmful or offensive consequence or desiring the consequence of his actions to occur. In California, the tort of false imprisonment is defined by courts “as (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hospital (2000) 80 Cal.App.4th 485, 496 [95 Cal.Rptr.2d 316].) It is also defined in the California Penal Code as “the unlawful violation of the personal liberty of another.” (Pen. Code, sec. 236.) And lastly, false arrest is also considered false imprisonment. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 735 [85 Cal.Rptr. 281]; Collins v. San Francisco (1975) 50 Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)
Security Guards have no greater duty to uphold the law than the average citizen does; therefore, they do not hold the same status as police officers. (People v. Crowder (1982) 136 Cal.App.3d 841, 844 [186 Cal.Rptr. 469].)
Security Guards & the Shopkeeper’s Privilege
If charged with false imprisonment, a security guard (along with his company and the owner of the premises that hired the security company) can raise a particular type of defense known as the Shopkeeper’s Privilege. This privilege grew out from various common law jurisdictions that gave merchants the right to detain and investigate suspected shoplifters and thieves. Under this privilege, if charged with false imprisonment the merchant could raise this defense as long as the investigation of the suspected shoplifter’s person was conducted reasonably within a reasonable amount of time. In California, this privilege has been codified into statute:
“A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.” (Pen. Code, sec. 490.5, subd. (f).)
Security Guards & Probable Cause
If a security guard has probable cause that you stole an item from the owner of the premises then they will use that suspicion to detain you, search you and hand you over to the police. Probable cause is the pivotal point in the Shopkeeper’s Privilege and is the basis for any detention, arrest and search performed by a private security guard on your person. Courts have generally recognized this fact and are reluctant to impart any general definition of it, and rightfully so. What can be said of probable cause is that it is a matter of law, i.e., a decision best left to a judge based on the totality of the evidence submitted rather than letting a jury decide. The opinion of the Supreme Court of California, in Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 181 [54 P.2d 20], said of probable cause in a case involving a suspected shoplifter:
“What is probable cause, as has been often announced, is not a question of fact for the jury, but one of law for the court, to be decided in accordance with the circumstances at the time of the detention, unhampered by the outcome of the charge against the plaintiff of the public offense or by the conclusions of the trial court.”
The opinion of the Collyer court on this subject was rendered in 1936 and still stands to this day and has not yet been overturned. Penal Code section 490.5(f)(7), the statutory equivalent of the Shopkeeper’s Privilege, gives equally ambiguous boundaries on the requirement of probable cause:
“In any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.”
One of the more concrete examples of probable cause arose in Sacramento County in 1963 in a department store that sold various items where a private security guard witnessed the plaintiff place a wrench into his pocket. When the plaintiff went to pay for the items he had not produced the wrench but paid for everything else. After the purchase the plaintiff walked towards another portion of the store and the security guard walked up to the plaintiff and questioned whether he paid for all his items. After some more questioning the plaintiff produced the wrench and was asked to accompany the security guard where he signed a statement stating he did not pay for it. The plaintiff then filed action in Superior Court for false imprisonment where the court ruled in favor of the defendant with a summary judgment. The plaintiff appealed to the Third District Court of Appeal of California where the decision was affirmed: “A storekeeper, ‘on probable cause to believe a theft has been committed, may Detain the suspected person for a reasonable time, to conduct an investigation in a reasonable manner.’ The trial court correctly concluded that ‘probable cause’ was so clearly shown no triable issue in this regard existed. Appellant does not seriously seem to contend otherwise.” (King v. Anderson (1966) 242 Cal.App.2d 606, 609 [51 Cal.Rptr. 561].)
Parting Words
So, in answering my original questions of what would have happened to me if this had occurred in a California shopping mall and I had been detained, what could I have done? With only the law I’ve discovered thus far my only hope of defeating the defendant’s use of the Shopkeeper’s Privilege on the merits would have been to plead their lack of probable cause.
Given my facts stated above and the totality of the circumstances my argument would have revolved around the following:
- First of all, I will stoutly claim that I did not steal any items from the store and had made only one purchase that day from another store.
- The security guard did not witness me stealing any items.
- The Express employee specifically told the security guard that I was not the person he had been summoned for.
- The security guard knew after he exited the clothing store that I was not the person suspected of shoplifting.
- Knowing that I was not a person of interest anymore his detainment of me and the subsequent search would have to be based on his “reasonable” belief that I may have or was going to steal something. This would have entailed a search of the shopping bag that I had on my person.
- The only bag I was holding had one item in it, a shirt purchased from MetroPark, wrapped in paper and held in place by a MetroPark sticker. The MetroPark shopping receipt was in the bag and clearly visible; their plastic shopping bags are brown but translucent enough to allow anyone with normal vision a clear and unobstructed view of what is inside from a reasonable distance and certainly from the distance between me and this security guard.
- Unless I was able to steal only one item from Express, fool the employees into thinking that someone who looked similar to me had performed the crime, take the stolen item, wrapped it in another store’s wrapping paper with their sticker, in their bag, and forge another store’s sales receipt to cover my crime, then perhaps the security guard’s reasons for detaining me might hold water. I must have also been capable of having all of these items conveniently nearby for just such an occasion. This would have required planning and procurement of a substantial nature. And all this for just one item.
I have a firm suspicion that my claim would go forward and defeat their 490.5(f) defense. What damages I could be awarded range from actual and compensatory to lost wages, mental anguish (depending on the circumstances), humiliation and punitive, however each jurisdiction will handle this differently than others. (Cause of Action against a Retail Store or Its Employees for False Imprisonment or False Arrest of Suspected Shoplifter, 24 COA.2d 2.)
693 F.Supp. 851, 856.)