It’s a little over eight minutes, but basically his take is that he thinks a defense has a reasonable argument.
He went and looked at various statute in some states on how to determine the value of theft, and one statute stated that it was what the products were offered for sale.
His take is that the sale price is the price that people off the street would pay for the product, so that should be the value. (4’ 15" into the video)
Here’s a potential wrinkle: What if, instead of saying “Widgets 50% off”, the store had said “Widgets, buy one get one free!”? For an ordinary customer, those two sales are close to identical (assuming that widgets are the sort of thing you’d ordinarily be buying two or more of at a time), but the prosecution could apply that the BOGO sale didn’t apply to the thief at all, since he didn’t meet the condition for qualifying the sale, having never bought one.
I’m not sure how persuasive statutes form other states should be in interpreting Colorado’s statute (Colorado has its own statute for determining value—it’s perplexing that he did this video, but then admits he couldn’t find Colorado’s statute, it’s not that hard).
It seems like what one would really need to do, in no particular order, is (1) see how the statute (which he really should have found if he was going to do a video like this, seeing as he’s supposed to be an attorney and all) has been interpreted by higher courts in Colorado, (2) find states with similarly worded statutes and see how their highest courts have interpreted relevant terms, (3) try to find if disputed terms are defined elsewhere in Colorado law, be it case law or statute, possibly in areas outside of criminal law such as contract law or consumer protection, and (4) see if there’s any legislative history behind the law in question and if that might explain how relevant terms should be interpreted.
At minimum, though, that lawtuber really should have found Colorado’s statute if he wanted to be seen as a credible source of legal information. And he should have done at least (1), IMHO, if he really wanted to distinguish himself. I may get around to doing (1) if I have time, but then I’m not putting out videos to half-a-million subscribers.
No reply to the OP, but just some historical context - British laws of the 18th century put a very low threshold on the value of goods that could be stolen to count as grand larceny - a mandatory capital [death sentence] offence. The threshold was a shilling - which was a few hours’ pay for a skilled person.
In response, juries consistently undervalued the goods stolen. There were lots of thefts of 11 pence worth of cloth, flour, handkerchiefs, or they agreed to a lesser charge that did not carry a hanging penalty. In the 1820s the laws eased off with greater reliance on imprisonment or transportation.
ISTM there is a fundamental problem with a law which draws such a sharp line in punishment for the same offense. A penny one way or another can have massive consequences for the accused. That does not seem appropriate.
The problem with that is that getting rid of that sharp lines causes other problems . BTW it’s usually not exactly “the same offense” - it’s often divided into two offenses of “grand larceny” and “larceny” or “petit larceny” . Colorado does it a little differently in that theft is divided into four subsections depending on the value of what is stolen with different grades of crime and different punishments . If there were a single offense of larceny , with no difference based on either the value or the nature of the item stolen * that would mean stealing a candy bar constitutes the same offense as stealing a new car and should be subject to the same punishment. And you can’t really have a range in which it could go either way, where under $1000 is a misdemeanor, over $2000 is a felony and in between can go either way because laws just aren’t written that way - you might have multiple grades of theft but there’s always going to be a sharp line between a misdemeanor and a felony . Because one of the things that we want in the law is for people to be able to know in advance which crime they are committing rather than saying “You stole $1500 of stuff - might be a misdemeanor might be a felony. All depends on what the DA charges you with.”
* Sometimes stealing a car is automatically a felony, even if it’s only worth $200 and it usually takes a value of $1000 to be a felony.
The NYTimes article did say the defense lawyer used the term “fair market value” in his argument. It also did not mention that they planned to appeal the jury conviction, so possibly ASL is right, it’s pretty much established law. (Or they haven’t decided to appeal yet).
I always understood that the obligation of an insurer is to return the insured to the same (or as nearly as is reasonable) state they were in before the insurable incident.
In the case of a theft from a shop, it’s “reasonable” to assume that the shop will replace the item at the wholesale price, although that may not always be possible. For example, the stolen item may have been part of a job lot, or subject to a bulk discount so that a one-off would cost more (to the store) than the original stolen item.
As I said earlier, the “value” of anything is whatever the two parties involved agree it is.
Right - I can insure something with a policy that will pay the actual cash value , which takes depreciation into account or I can buy a policy that will pay the replacement cost. Neither of those will apply automatically to a crime - it may be that the law is written to determine the actual cash value but if that’s impossible to determine , it’s the replacement value unless the stolen item is a car or an ATM which automatically makes it a felony and so on.
Not true. A retailer can also make a claim for loss of profit. My minor step daughter and a neighbor were caught shoplifting at a Macy’s, it was about $500 worth of stuff. Mine and most states have laws that allow retailers to make claims for civil restitution. The attorney for Macy’s sent a demand letter for the stolen items, the values listed were the suggested retail value. If not paid in 30 days my then wife would be sued for for that amount plus attorney fees. We sent off a check for that amount and never heard from Macy’s again. The neighbor, an adult, did not pay her demand letter and was sued. Besides the suggested retail value of the merchandise, they wanted a few thousand in attorney fees plus a few hundred dollars for loss of merchantability of the stolen items. Found out that loss of merchantability means that stolen items must be held by the retailer and cannot be sold till the time that all criminal and civil actions are completed. My then wife and I paid $250 for the step daughter’s penalties, the neighbor ended up losing the civil case and had to pay over $3500.
Interesting. If reimbursed for the wholesale value of the item the retailer can purchase another one from their supplier and sell it for the same profit. However, it’s not really that simple since the store can’t necessarily purchase the same item at the same wholesale price, or even sell one at the same price once the matter is resolved. So it makes sense under the right circumstances to allow the store to recoup their lost profit and not have to go through the entire process of sales to get it. The fact that a law was broken is probably a factor. I wonder if the same idea would hold if someone accidently broke an item in the store and they wanted compensation for that.
A theft (or damage of merchandise) might also run a store out of stock on some item, leaving them in a position where customers want to buy from them but can’t. That’d be another situation where the store really is out the retail cost, not just the wholesale cost.
Through my own negligence, I lost a half-dozen photographs loaned to my by an extended family relative. I had had them copied and color-adjusted so the copies looked better than the originals, but I lost the originals.
The relative filed a judgment against me for a monetary value of $2000, and that’s what the judge ruled. I suspect there was some case law or legal precedent around that might have shot that amount down, but it would have cost me more to hire an attorney to represent me.
These were not ‘stolen’ from my point of view, but I don’t think the relative ever bought my story that I had actually screwed up and lost them.
The judge also ruled that my house was to be searched to recover them. Uh. . . yeah.
Many years ago I was investigating a used car salesman who was alleged to be involved in drug dealing. He was also supposed to be up to some funny stuff related to the dealership, a “buy here, pay here” place. We were able to determine that both his Mercedes and his girlfriend’s BMW had fake VIN plates. They both were displaying dealer license plates. The combined book value of the cars (which were stolen) was $100,000, well over the $75,000 threshold to make it a fairly serious crime. The respective insurance companies had paid the original owners for the loss. It turns out that once the claim has been paid, the car only get a “junked” or salvage title (I don’t remember which) if ever recovered. This lowered the value of the cars substantially and he got off with a slap on the wrist. BTW, the cars were in excellent condition. We couldn’t prove he stole them, only that he possessed them so the value at the time of the theft didn’t matter.
BTW, he was creating fictitious documents for his customers in order to get financing but no one seemed to care. The down payment covered what he paid for the car and everything after that was gravy. We never made a drug case but he went out of business shortly afterwards. The guy was slimy.
Yeah, the dealio on those places is that they sell to people they know cant make the payments. The Down covers the actual cost. Then they repo, and in a fake auction, they buy the car back for pennies. The poor buyer is out the down payment and no car.
That seems pretty far-removed from what the law normally considers their bailiwick.
The state also has an interest in the sales taxes the retailer could collect if only they’d advertise more and increase their sales volume. Or have nicer employees, or …
The law generally doesn’t chase second and third order effects. And especially not speculative second and third order effects.
Except failure to advertise isn’t a crime. Larceny (or theft), however, is. So it just circles back to what is the value of the thing being stolen? How does one determine such a thing?
Anyway, California (which is not Colorado or any other state) has decided sales tax is part of the fair market value of an item:
Uh. . . yeah.