The black-letter law says:
There does not appear to be an exception for routinely ignoring the alarm.
Probable cause is not a high burden to meet.
In that case, however, SHE was guilty. This difference might not be important if the police are doing the apprehension (resisting arrest is a separate crime), but the store employee is a civilian. For cops probable cause constitutes as a ticket to act and do their job. For civilians, it gives certain very limited rights in case an offense has been comitted. It does not make civilians into police officers.
The reason for this is symmetry. A civilian trying to apprehend me by using force because he has probable cause gives me probable cause that they are intending harm. If I actually did steal, they can detain me. If I didn’t, they can’t. It’s their gamble. It’s kind of “Who started the fist fight?” type of deal, since most likely the first punch could’ve missed, but the person on the receiving end of it is suddenly defending himself and has a right to use force.
Again, I’m pulling this out of my ass, I’m not a lawyer, etc. etc.
Look at it this way.
If you are right and I am wrong, what prevents cops from using civilians to get around miranda and such laws? Just have a civilian do the arrest and they are suddenly immune from the 4th amendment. Doesn’t sound right.
Nor is it right.
Plenty of case law establishes that if a civilian is acting at th behest of law enforcement, then law enforcement’s rules apply.
For example: I decide that my neighbor is probably a drug user. So I wait until he leaves the house, sneak over and break in his back door. I find a huge stash of contraband. I back out and call the police, reporting exactly what I saw.
The police obtain a search warrant based on my report, they search the home, find the contraband, and arrest my neighbor. The evidence against him is admissible.
As opposed to: the police suspect a person of drug dealing, but have no proof. So they ask a civilian to go break in his back door and check it out. Even if drugs are found, the initial search is done at the behest of the police, the civilian was acting as a police agent, and the fruits of the search are inadmissible.
Or, to put it simply, I am right and you are wrong.
By the way: I am a lawyer, and I have practiced criminal law. This is GQ, a forum devoted to factual answers to questions.
“Pulling [answers] from [your] ass” is not really the best practice in GQ. It’s much better to have actual citation to case or statutory law.
#1) Because a cop searched me and found I had no stolen merchandise on me.
#2) To cover his ass for his own incompetence.
However, let’s assume that in the struggle I paralyze the store dick from the neck down for the rest of his life. Let’s also assume that the judge in the civil suit rules as you suggest above, in the store’s favor. While the store doesn’t have to pay me civil damages, they are gonna have to pay some serious legal bills defending the case. PLUS, the huge worker’s comp claim of that unfortunate store dick. Now, does it not make good business sense for the store to have a policy that the security employees never struggle with a customer?
I once knew a guy who worked as security in a large store. The store had a VERY CLEAR policy that the store security people never put themselves in physical danger. The way he saw it, it made sense for the store just to let the customer get away with it that time. On the logic that because the store dicks knew exactly what the shoplifting customer looked like, that shoplifter would never come back. Much better for the shoplifter to go to a competitor where he wasn’t recognized and try and steal there.
As I mentioned above, I know of several stores that do not have this policy; Com. v. Brooks involved the store loss prevention officer from Hecht’s department store located at Chesterfield Towne Center mall. Your theory seems to be inconvienently contradicted by the facts.
Have a link to the security policies of these stores? I’ll concede that I have no links to support my position. Since I doubt a significant number of retailers have made their security policies publicly available, actual facts here may be scarce.
Except that the events in the criminal case HAPPENED. The loss prevention officer physically confronted and detained the suspected shoplifter, resulting in a fight and the LPO being dragged eight to ten feet by car.
How is the policy of the store relevant to the question of what the law permits?
The guys with guns don’t even need evidence of a crime for there to be probable cause. In Nevada, if a cop thinks you might be dangerous, he can legally shoot and kill you. All he has to do at the coroner’s inquest is say “I thought he might become dangerous to myself or others” and he walks away.
So, in Nevada at least, I would think that as long as the store thinks you stole something, they can shoot, er, detain you.
IANAL (but I love figuring out all the acronyms on these forums lol)
Bo
With respect to the Barlow case, all he has to do is ensure that you are carrying a shiny, black jar in your waistband, and, when you are stopped, make a grab at the shiny metal object in your waistband instead of showing the officer your hands… yep, that’s all that has to happen.
I’m sure you left out that part just by accident.
I meant with respect to the PERRIN case.
In the Barlow case, the inquest did not say that the officer could simply walk away - it found that he acted negligently, and the city ultimately settled a huge civil suit against him. Probably forgot to mention that too, eh?
You have a valid point. Hmm…
http://www.courts.state.va.us/opinions/opncavwp/0898012.doc
(WARNING: .doc file)
In that case, Brooks wasn’t even accused of shoplifting. The alleged shoplifter was one Juanita Williams, a friend of Brooks. When the LPO attempted to arrest Williams, Brooks drove her car at the LPO, hit him, and then ran over him. I’m not sure the court was basing the ruling on what the LPO was permitted to do. Rather, it was an issue of whether it is legal to run over a LPO when they are atempting to detain a friend for allegedly shoplifting.
I offered that case to you to show that the LPO acted with force to restrain a shoplifter. Period:
That shows a store employee attempting to detain a suspected shoplifter, and using physical force to do so, ultimately pulling the shoplifter out of the car. I never said Brooks was the shoplifter.
In this case, would the police also arrest you for breaking and entering?
They certainly could.
There is no rule that says they have to, but they certainly could.
If the drug user pressed charges against you, how would this hold up?
I think the biggest problem wiht me breaking into my neighbors place would be that it would actually make it harder for the police because they could not guarantee that the crime scene had been tampered with by me. Wasn’t this one of the pillars of the von Bulow case?
Sorry, I guess I can’t make any categorical claim about what constitutes probable cause… but in the absence of a specific statue like Virginia’s, and considering the high false positive rate of these alarm systems, as any consumer can attest to, it seems to me that a store relying on an alarm to make an arrest is making a very poor business decision in the face of a potential lawsuit.
Aside from that, I’ll echo a question that others have asked about what exactly “detention” is. Many states seem to have laws allowing merchants to detain a suspected shoplifter, but does that extend to use of force? What if a guard uses force to stop me, and I respond in self-defense? Do I have some legal obligation to comply with their detention?
Nobody has to “press charges,” and depending on the circumstances, the drug user might not even be a witness.
If you told the cops that you broke in, for instance, that’d pretty much be it. They’d say, he said he broke in, and he gave us this nice map of the layout of the place, so that proves he was in there.
Would they prosecute you? Well, now that’s another story.
And of course, if you told the cops that you were in there with the neighbor’s permission, it’d be your word against the neighbor’s.