STANDARD DISCLAIMERS APPLY: You are not my lawyer, I am not your client, this is all hypothetical (happened on a sitcom), blah blah blah.
An attractive young woman* is in a retail store, looking for a hard-to-find gift for her little cousin. Just as she approaches the gift to take it off of a shelf, another shopper (a young man) picks up the very last one. The woman’s first plan was to use her, uh, charms to sweet-talk the guy out of it (as evidenced by her unbuttoning her blouse a little bit), but the guy (oblivious to the young woman’s presence) answers his cell phone and is obviously gay, so that plan is out. Seeing another young man in an employee shirt, the young woman re-readies her charms and somehow manages to get him to give her his shirt (this takes place off-camera). The woman approaches the shopper, in the borrowed employee’s shirt, and volunteers to “help” him by taking his goods to the front of the store while he continues shopping; he agrees and goes off in search of more goods. The woman grabs the gift and heads off to pay for it, while the shopper who originally had it is oblivious.
I don’t think the young woman can be charged with theft, as the gift was the property of the store until someone paid for it. I also don’t think that impersonating a retail employee is a crime, at least not in California, where this took place. Does did this woman do anything illegal, or was she just conniving?
*The young woman is supposed to be 16-17, but the actress who portrays her is at least 19 or 20, so it’s not squicky of me to say she’s attractive. So there!
WAG here, but this is an interesting question! I would also suppose that the item is still legally property of the store until it has been paid for - otherwise you could take something off the shelf and walk off with it and not be guilty of theft yourself! Law dopers - does a person that has taken something off the shelf but hasn’t paid for it have some personal property interest in the item that is not the right of ownership, but is a personal property right nonetheless?
It seems like it might be on the edge of fraud, but given that she still had to pay retail price for the item, can she be said to have gained from the deception?
There’s possibly an argument for some kind of fraud, depending on exactly how the statue was written. She obtained something of value (the opportunity to buy the last item) through misrepresenting herself as a store employee when she wasn’t.
Not the OP, but the shopper could try to make an argument in a civil action against the store for breaching some kind of implied contract or something (remember, it was the store employee’s actions that allowed the young woman to get the item). [Though I think the shopper might have better luck by just asking store managers/executives to make things right, rather than going through the courts].
The employee is certainly guilty of a fireable offense, if not a criminal one.
Maybe it could be argued that the intention of the young man was the purchase (and therefore ownership) of the item, and that he was defrauded of this opportunity by deceptive and dishonest means.
It was an opportunistic appropriation of a vulnerable person through undue influence or exploitation, so that may be the basis for a charge of identity deception. It was this that allowed the woman the “theft of service” that would have concluded the transaction making the young man the owner of the gift.
It appears that her intention was to “obtain” the item through dishonest means (i.e she didn’t just ask to have the last item because she desperately needed it as a gift) so this could be arguably defined as “theft.”
With identity deception proven, a good lawyer may be able to have her charged with “theft by deception.”
Or not. Since IANAL, I would either make a very good one, or a very, very bad one.
You would have to know how the possible crimes were defined in the relevant jurisdiction to answer this question. Without knowing the definitions of all possible variants of larceny, fraud, etc., set out in the penal code, it is impossible to discuss.
If this happened in Virginia, a zealous prosecutor might charge the woman with violation of Va Code § 18.2-178, which provides in pertinent part:
(emphasis added)
Notice that this does not require the property taken to be the property of the person it was taken from. Indeed, once you take an item off the shelf, even though you don’t own it, your possessory interest in it is superior to everyone else’s except the store. If I run up and grab it from you, I am committing theft, even though you don’t own it yet.
But is there such a possessory interest at all? Can I take a big-screen TV off the shelf at Best Buy and then mortgage my “right to purchase merchandise” interest in it to you for a $50 loan?
I think she is actually 22 years old, but she really looks like a 16 or 17 year old kid 99% percent of the time, but once in a while, when the camera angle is right or her wardrobe is more mature, you can tell that she’s an adult.
These facts sound most akin to the tort (which is not a crime, but can land you in court) of tortious interference with a prospective business relationship. This article provides a nice summary of Illinois law on the matter. In short, the elements are:
Note that “interference” is the operative concept, and it is something a good deal more blameworthy than perfectly legitimate and acceptable competition. Whether the behavior described above is interference or not is the question. Trickery usually isn’t favored, but is it sufficiently odious to be transformed into a tort?
I hasten to add that this is all theoretical and one would have to be a lunatic to actually institute a lawsuit (although, plainly, such lunatics there are in the world).
The problem I see with charging the woman with any kind if crime is that since the empoyee gave her his shirt, the employee allowed this to happen. The young woman could be said to be acting as an employee, or on the behalf of an employee.
By allowing this to happen it was (indirectly) the employee’s decision to sell the product to the woman instead of the man. Since a business can choose to do business whith whomever they choose, I don’t see that the guy has any recourse.
IANAL, but “I watched Matlock in a bar last night. The sound wasn’t on, but I think I got the gist of it.”
I don’t think so. Is it reasonable to believe that a store employee has authority from the company to order you to hand over an item that someone else picked up with no good reason other than she showed some cleavage? Does anyone think that Wal-Mart, for example, would approve of such a policy?
If not, then it’s not reasonable to assume that the employee is acting within his authority and is not an agent for that transaction. It would be like if the McDonald’s clerk emptied the register into your take away bag. You would know that he didn’t have the authority to do that and you (and him) would be on the hook for the theft.
This pretty much nails it. The key issue is the “reasonable expectation of…” in number 1. There would be no doubt that the girl was willfully & deliberately being deceptive.
No, this wouldn’t hold up. She would not be acting with any authority what-so-ever, unless the employee was a manager with authority to hire/fire and could say that he had essentially hired her there on the spot. However, that would then mean that they were both guilty of the above deception. In fact, now the two of them could be charged with conspiracy to commit fraud, which I think is criminal not civil. Also a business most definitely **cannot **pick & choose who it does business with. If they’re open to the public it is a crime for them to arbitrarily discriminate between two customers like that.
Is ther shirt-swap the key part of this? How about if the young man had put the item in his trolley [shopping cart] and wandered off to find more items. If the young woman had just taken the item from the trolley would that also count as straight theft under the reasoning in this thread, or was is the fact she employed “trickery” that’s significant?
Sure they can. What they can’t do is discriminate based on protected attributes. Like race or religion. Otherwise, they get to do business however they want.
Beat me to it. The very question I was about to ask. If crime it still be she surely has a far better defense: “I assumed the unattended trolley was one of those you sometimes see in stores, with various discount items piled in.”
Then getting back to the OP, the woman shows off some cleavage and the clerk in a futile attempt to score with her takes the item from the man. Protected class violation based on gender?