Department store security authority

[DragonFire]

Both my brother-in-law and myself had separate run-ins with department store security people over the Holidays (Kmart and Walmart).

I bought a DVD and the clerk didn't take off the security tag so the alarm at the door went off. The checked my reciept, removed the tag and let me go. I was a little offend when the security women asked "did you steal this?" in a loud voice, but then did have much to say when I produced the reciept.

My brother-in-law had a worse situation. He bought a pair of work boots from a guy on Ebay, and they set off the alarm. Security told him they "knew" he stole something and if he just gave it back they'd let him go. They finally tracked it to the boots, and luckily he had worn them a few days so they didn't look brand new and they believed his story.

I was carrying at the time, and while I knew I didn't have anything to really worry about, it also went through my mind that these people were not going to search me, and were not going to get anywhere near my pistol. I'm not sure I had this all worked out at the time, but my basic plan was to simple and calmly tell them I wasn't going to leave, but I also wasn't going to cooperate with anyone but the police. I'd tell them that if they wanted to call the police I'd wait for them, but if not, I'd be leaving. No searches, no going to the back room, no discussions, nothing.

Would that have been a good plan? Would it have worked? So ego and good customer relations aside, what rights do store security people have in situations like this? What can they try to make me do?

 

[carebear]

Up here I believe they can attempt to either hold you for police or ask you leave (trespassing).

 

[R.H. Lee]

You can't be searched by other than a sworn LEO, and then only if you're under arrest.

 

[Sindawe]

IANAL, but as far as I understand the law, store employees can detain an individual who is suspected of theft until sworn LEOs arrive. This may also subject the store employee and the Corp. to legal liability should the detainment be in the end unjustified.

Searching UseNet shows many long thread about similar (but not exactly the same) circustances at various Computer Retailers a few years ago. The retailers halted their suspicious ways shortly there after.

I had a like run in with a national grocery chain that had instituted a policy of demanding self checkout customers sign a receipt after the business transaction was approved and completed by the customers bank. Said store employee laid hand on my property and refused to release them until directed to do so by his manager. Complaints to chain Corp. did not produce a satisfactory response, so grocery chain no longer enjoys my patronage or my money.

 

[Flyboy]

My understanding is that they have no right to detain you; therefore, if they attempt to hold you against your will, they are committing false arrest. I have heard stories of people who have been detained, and have chosen to swear out complaints against the relevant employees; I don't know the veracity of those stories (read 'em on the internet, so it must be true, right?), nor did I hear the outcome of the complaint. It seems to make sense, though; if you're not committing a crime, they have no power to make a citizen's arrest because, well, no crime was committed. If somebody decided to make an issue of it, I'd reach for my cell phone while he did so and call the police myself; better to take the initiative, I think.

If the clown tried to search my while carrying, well, that would be another issue. I don't know just how far I'd resist. I'd probably try to move so as to avoid any contact, if he reached for me. I would almost certainly deflect his hand if he reached near my gun. I would not advise him I was carrying, or make any threatening moves. Rest assured, if he did touch me, particularly near my gun, I'd swear out a battery complaint, and I'd be on the phone with my attorney discussing the possibility of filing suit against the company. No, I'm not one of those sue-happy types, I'm just getting sick and tired of being treated like a criminal, and I believe companies should be held responsible for the actions of their employees, when the employees are acting in their official capacity. (Just yesterday I got $20 knocked off of my phone bill because the droid at the call center quoted me the wrong number, even after I specifically asked if it was an absolute, final tally.)

Normally, though, I just ignore them. I know I'm not stealing anything; if they want to make an issue of it, let them call the cops. I bought a vacuum at Target about a month and a half ago. Walked right past the kid searching bags. He asked "may I see your receipt?" I answered "no thanks." He replied, a little more stridently, "Sir, I need to see your receipt." I replied "No, you don't," and walked out. Nobody followed, and I didn't beep the alarm, so I guess he just let it go. In any case, I don't care; I've done nothing wrong, and I have nothing to prove.

On a related note, is anybody else getting sick and tired of this "prove to me that you're innocent" crap? The inventory tags are bad enough, but looking through my bags and verifying against the receipt? Sorry, bubba, that dog don't hunt.

 

[larry_minn]

The wife laughs when she read this. I tend to go past the receipt checkers at Sam's. Same for other stores even if buzzer goes off. Just keep on walking like I have no idea and let them TRY to catch up to me. (I am a rather slow walker) Had one catch up when I had stuff in trunk on a winters night. She decided to take my word that I had a receipt at ~30' (I did) and went back inside.
Once you pay it is YOUR stuff. Grab the box and give them back their cart and walk.

 

[wprebeck]

I'm sure it varies state to state, and being that you don't live here in KY, this isn't much help, but...

The statute says that:
433.236 Detention and arrest of shoplifting suspect.
(1) A peace officer, security agent of a mercantile establishment, merchant or merchant's
employee who has probable cause for believing that goods held for sale by the
merchant have been unlawfully taken by a person may take the person into custody
and detain him in a reasonable manner for a reasonable length of time, on the
premises of the mercantile establishment or off the premises of the mercantile
establishment, if the persons enumerated in this section are in fresh pursuit, for any
or all of the following purposes:
(a) To request identification;
(b) To verify such identification;
(c) To make reasonable inquiry as to whether such person has in his possession
unpurchased merchandise, and to make reasonable investigation of the
ownership of such merchandise;
(d) To recover or attempt to recover goods taken from the mercantile
establishment by such person, or by others accompanying him;
(e) To inform a peace officer or law enforcement agency of the detention of the
person and to surrender the person to the custody of a peace officer, and in the
case of a minor, to inform the parents, guardian, or other person having
custody of that minor of his detention, in addition to surrendering the minor to
the custody of a peace officer.
(2) The recovery of goods taken from the mercantile establishment by the person
detained or by others shall not limit the right of the persons named in subsection (1)
of this section to detain such person for peace officers or otherwise accomplish the
purposes of subsection (1).
(3) Any peace officer may arrest without warrant any person he has probable cause for
believing has committed larceny in retail or wholesale establishments.


Oh, and Riley:
Don't know where you got your info about only sworn officers searching/etc, but that's just not true. TSA (at the airport) is a perfect example. They (the TSA employees) are by no means any type of sworn officer. But, they're searching you, aren't they? That's because it's a condition of going into the secure area of the airport. Other such examples exist, but that's a pretty good one, I'd think. And, lest you think they ARE sworn, take a guess as to why they have to call the local police to make an arrest....

 

[SMMAssociates]

As an old rent-a-cop, I've been on both sides of this one....

The "checkers" at Wal-Mart or Best Buy are generally just kids. I try to figure out the "exit" procedures and stay with or ahead of them. It doesn't hurt.... Usually they want to see the receipt, or a piece of special tape or something like that. PITA, but it only takes a second.

Had a funny one many years ago. I bought something or other at a local "big box", and they used the "tape of the day" method. I headed out and completely forgot that they were hiding Security people in the sno-cone booth in the doorway. Kid hollers: "Sir!" and I remembered. I flipped the box around and he said "Sorry...." Damned heavy box, but....

Locally, if Security is an off-duty LEO, you can get into a world of hurt if you give him any problems, and OH residents with CHL's are required to notify the Officer if we're carrying. This should apply to Private Security - the law's a little fuzzy - too. (If the place is posted you shouldn't be in there.)

Some years back a Reserve Deputy was murdered by the brother of a prisoner he was transporting. The defense tried to make the case that the Deputy wasn't an LEO to avoid the Death Penalty. The Courts, in a rare display of non-activism, suggested he put his Will in order.... This would apply to any sworn LE, which includes all municipal LEO's and much of the Private Security world. (Off the top of my head, if the Security Officer isn't armed, he/she is probably not sworn. But it might be better not to test that.)

I just go with the flow. It's a PITA.... I would not submit to a body search without LE, but if they want to look at the receipt or in the bag, what does it hurt?

 

[Mark in California]

Retail Trade

This type of work is called "Retail Trade" in the industry.

It is very Law Suite prone area of security. If done correctly, you have followed the subject from picking up a item until he/she leave the store. In California you can arrest. If you make a arrest you may secure and search for your own protection and remove any weapons from their person. Just do not make any mistakes on a arrest or you will be in court for big bucks.

If they can not talk to you, what may then do. Theft if a very big problem and to stay in business they must do something about it.

I also carry, and have also have set off alarms. If push came to shove I would stay were I was and demand that the police be called. If need be I would start shouting I was being kidnapped and to call the police. Better yet call the police on your cell phone and report a violent crime in progress, I would not want to be the one to who stopped someone from making emergancy call to the police for help. A confused police officer is justly likely to detain everyone involved. Throw in a legally carried firearm and you are going to have police asking question of everyone.

One last thing, when you are carrying a weapon you may not indulge in any ego. If someone spits in your face you need to turn around and leave. You can not get into a fight, and god forbid draw on them. You just need to be anywhere else.

 

[Flyboy]

Locally, if Security is an off-duty LEO, you can get into a world of hurt if you give him any problems

I'll agree to that, if and only if I have some way of knowing he's an LEO. Dude in a security uniform, with no official credentials displayed? He's not a cop until he tells me so. At that point, I advise him I'm carrying, but not before. In fact, in this state (OK), open carry is illegal, so if I declare that I'm carrying to other people, they might take it as a threat, and I can get into other interesting problems that way. Beyond that, though, is the fact that I can't tell a cop on sight (uniform and badge notwithstanding); I'll be happy to cooperate with the police (insofar as I'm required to do so, anyway), but I don't owe some minimum-wage flunky so much as the time of day. I try to be courteous when I decline to be searched, but it's just that--courtesy, not a deference to authority.

but if they want to look at the receipt or in the bag, what does it hurt?

It hurts my pride. It's an insult to me, and to my character, to have somebody come up to me and insist on pawing through my belongings on the theory that I might be a criminal. That goes double when there are inventory alarms, and I didn't trigger them. If you have no articulable reason to believe I've done something wrong, then you have no business rummaging through my personal effects. If I trigger the alarm, that's one thing; I usually try to get that cleared up, but most of the time the greeter/security person just waves me through when it goes off, usually with a "yeah, it does that all the time." Actually, now that I think of it, that's kind of annoying, too: getting probable cause from a device you know to be miscalibrated. Bottom line is, I know I'm not a thief, and (fortunately) I don't have to prove anything to anybody. The burden of proof is on the accuser. If he wants to make a case of it, let him take it to the cops. I'll be happy to show the officer my receipt, let him count items, what have you. But I don't owe the store anything, save for an appropriately-valued sum of money in exchange for the goods I'm purchasing. They didn't make any statement that subjecting myself to search was a condition of shopping at their store; they don't get to set such terms after the exchange is completed.

 

[WT]

DragonFire - New York statutes allow merchants to detain you and use necessary force to do so if they believe you are a shoplifter.

 

[ctdonath]

Not sure what NY law actually says, but I do have an anecdote...

Was standing near the door of a large bookstore. Someone walked out, and the alarm went off.

Clerk #1 to #2: "What should I do?"
Clerk #2: "Is he outside?"
Clerk #1: "Yes."
Clerk #2: "He's off our property, so we can't do anything."

Make of it what you will.

 

[SIGarmed]

What the store people can do is sort of a matter of state law.

For instance in California any person can effect a private person arrest via CA Penal code 837 for an offense committed or attempted in their presence. You don't even need to be a citizen just a private person.
Most security guards over here don't have acting police powers.

837. A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not
in his presence.
3. When a felony has been in fact committed, and he has reasonable
cause for believing the person arrested to have committed it.

There are two elements to a theft and I'm pretty sure it doesn't change much from place to place.

1.) Asportation

2.) Intent

So if that happened to me here they would need for me to show that I removed the object and then my intent, then prove it in court. If they detain me and they can't justify it then they may be in violation of my fourth amendment right.

If they arrest you in California they can search you for their own safety because it is allowed by law. They can even restrain you for their own safety. It may be similar in your state.

Check your state laws or seek legal counsel.

 

[HankB]

A while back, there was a story here (or maybe at The Firing Line) about a guy that had his arm grabbed by a door drone at WalMart. The grabber ended up being fired and acquired a criminal assault record, WalMart paid $$$ to the grabbee to make things go away. The upshot was they need some probable cause to stop you - lacking sworn eyewitness testimony or surveillance tape that you put merchandise under your coat or something, establishing PC is pretty much hopeless.

I've never encountered a uniformed, sworn peace officer as a door checker, but I HAVE encountered some door drones who were more than mildly annoying. Once I was at a local computer retailer, and purchased something. (Darned if I remember what.) Checkout lines were long, so when I was leaving the store, there was NO WAY I was going to wait in yet another line to have my receipt checked when there were 30 people ahead of me and only ONE checker. One S-L-O-W checker. So I simply walked by.

The door drone said "Sir, I have to check your receipt"

I held it out and said, "So check it!"

He said "You have to stand in line!!"

I said "No I don't . . . and anyone who does just because YOU say so is stupid!"

With that, I walked out . . . followed by, as far as I could tell, all 30 people in line.

 

[OpenRoad]

One last thing, when you are carrying a weapon you may not indulge in any ego. If someone spits in your face you need to turn around and leave. You can not get into a fight, and god forbid draw on them.

Funny how if it's a police officer you spit on they call it assault. Double standard anyone? If somebody does spit in your face that is assault.

 

[Mark in California]

Ccw

Try explaining to a court that you shot someone for spitting on you. Worse yet, you get in a pushing match and your weapon comes lose and you get shot with it.

If you carry a weapon you will be held to a higher standard. You have to be protecting your life. As hard as it is to accept you can never be seen as a Aggressor. You also can not allow yourself to be decoyed, who is watching your back and what story will the tell the authorities if they are call.

 

[secamp32]

In NYS

security guards are not sworn (unless he is an off duty police or peace officer). A security guard can make a citizens arrest is he believes that you committed a crime and you in fact committed the crime. That means if he does a citizens arrest and you didn't commit a crime he and the store are open to major liability.

 

[Big Gay Al]

In most states, any unwanted contact, including being spat upon, is considered at least an assault. Now, if someone spits on me, I'm not going to draw my gun and shoot them, but I'm not going to just walk away either. They've assaulted my person, and I'm going to do what I can to see them go to jail, or at least make sure they get the attention from law enforcement that they so richly deserve.

 

[Nehemiah Scudder]

On the flip side...

The stores kinda do need some kind of security. I used to work at Wal-Mart and would find evidence of shoplifting all the time. (cut up packaging mostly)

I remember they had a security firm come in to test the security with teams of shoplifters. By the end of the night they had close to 60 grand worth of merchandise out of the store without getting caught.

I'm sure that a person could make a living doing that professionally, with returns usally not refused to a customer.


BTW I'm pretty sure where I am they can detain you until the cops come.

 

[buffdriver]

Another former Loss Prevention story...

In California, you had to have two components for a shoplifting charge (PC 487, petty theft, or PC 459, felony burgulary): "selection" and "concealment". The store or it's employees had to see both components take place in order to stop someone. The concealment was commonly established in dressing rooms where Bob Q. Criminal would take in three pairs of levis and come out with one. A check of the fitting room after Bob left had to be made to establish whether or not Bob had the Levis hidden on his person. This partucular store's policy was to always wait until the perp was outside the building. A ligitimate stop was covered by law, however an unlawful detainment (bad stop) immediately opened the store to lawsuit. The chain I worked for would trip over themselves to compensate the victim of a bad stop, and usually the Loss Prevention dude got a big wrist slap or just fired. The cost of defending lawsuits far far outweighed the cost of 1 or 2% shortage by theft. So it went, unless you were absolutely 100% sure, the BG walked out the door, sometimes with the merchandise in plain sight. :banghead:

 

[WT]

Here's a link to the Cheektowaga, New York Police Dept. It deals with the prevention of shoplifting and what a merchant can do.

http://www.cpdny.org/CrimePrevention/howto.html


FWIW, Cheektowaga is famous for its Thruway exit.

 

[Zach S]

I just go with the flow. It's a PITA.... I would not submit to a body search without LE, but if they want to look at the receipt or in the bag, what does it hurt?

I feel the same way, if the alarm goes off. Otherwise they have no reason to suspect me of anything, and I'm walking by.

I've only been checked once. At Best Buy I think, it may have been Circuit City. A tag on one of the CDs I picked up didnt get de-activated, luckily I only had a few. He put the CDs in the doorway, alarm sounded again, then he looked to see that all of them were on the reciept, they were, so I left, setting the alarm off a third time. Those things are annoying.

I used to have a watch that would set them off. It was tagged on the backplate. The alarm would sound when I went in and left. It took a little while to figure out *** was going on... Oddly enough, I never got stopped.

 

[Moondoggie]

I'm with HankB as a matter of practice.

Transfer of ownership of goods occurs at the point of sale. In other words, when I give them my money, the merchandise becomes my property. I am not required to prove that I paid for my purchases as a precondition to exercising my freedom to leave their establishment. IF an employee has real probable cause to believe that I've stolen something, then they can exercise whatever lawful authority the local jurisdiction provides for. By "real probable cause" I mean an actual observation of me concealing merchandise. Failure of their employees/equipment to deactivate anti-theft tags is not my problem. Store employees going through my pockets or otherwise searching my person just isn't gonna happen. I've had this happen a couple of times and just kept on walking and ignored store personnel. They can record my license # and call 911 if they want. Once an old guy @ WalMart just grabbed my cart without comment when the thing beeped and jerked it over to the corner of the foyer before he started rifling thru our bags. He got fired on the spot and I got a $250 gift card with abject apologies from the mgr.

Standing in line to be validated by a minimum-wage teenager before being "allowed" to leave = Sheeple!

The store's quality control issues regarding their checkers, especially @ Sam's Club is NOT my problem.

 

[macavada]

I agree, but the difference with Sam's is that you signed a membership agreement. It isn't a regular public establishment open to all who wish to enter. Since it is a private club, members are submitting to their rules for the priviledge of shopping at their stores. Just a thought.

 

[SMMAssociates]

About 33 years ago, give or take, I found myself working loss prevention in a supermarket in a bad area. I thought they were insane asking me to come in uniform, but wth, I needed the money.

When I got there and checked in, the manager explained that they didn't want me to actually catch anybody unless it was absolutely necessary. They wanted the visibility.

I'm about 6'1" (about 6'6" with an eight-point hat) and about 250 pounds at the time. Before I could get to the manager I found sixpacks of beer in the cosmetics aisle, expensive "gourmet" cans of food next to the cereal, and a frozen turkey in produce....

Another time, in plain clothes, I wandered around the store for more than a half hour before anybody noticed me. (I checked in with the manager first, though. No sense in them calling the PD.)

IMHO, loss prevention is everybody's business. Shoplifting keeps prices up.... If the alarm goes off, I'll stop and take care of it. If there's a checker at the door (which I'll see on the way in), he/she will get whatever cooperation I can give in terms of checking my packages. I didn't have to shop there, and I know that the deterrent effect can help. They'll need LE to do a body search, though....

Around here, off-duty LEO's usually work in uniform, with a radio. Once in a while you'll see them in soft clothes, too. They're going to get a very quick response if they call for backup. Rentals (like me) don't get that kind of response, and have to be a bit more polite. The "better" stores don't have detectors, and prefer plainclothes loss prevention people, but you'll often see uniformed LE wandering around, too.

Back in the 70's, before OH changed it's "Blue Laws" to allow Sunday sales of about anything, I worked in uniform on Sunday afternoons in an upscale furniture store. The idea was that you could come in and walk around, but not buy. Great gig.... I fell in love with a sofa (needed one at the time) until I noticed the $800 price tag. Walk around, sit by the door, whatever. I was "window dressing" to prove that nobody was spending any money, and to discourage theft of some of the odds & ends used for "decor" - paintings, wall stuff, etc. Unfortunately, OH changed the laws and....

The real problem with places like Best Buy is that the checkers are teens (or barely older than that), and that there are a lot of small items in the store that are easy to steal. The RF tags are about as good a solution as is possible. You're going to run into an idiot once in a while, but I'd just as soon not cause problems. Not a sheeple thing - I just don't care to make waves. Nobody forced me to shop there....

If you get an idiot, though, call the manager. Or the PD. We're all supposed to carry cellphones....