Shoplifting is a problem that all retailers have to face. As is the all-too-common threat that the retailer is falsely imprisoning the alleged thief while identifying them and notifying law enforcement officials of the suspected crime. Thankfully, Maine law protects retailers during this “detention” phase, so long as the retailer follows the process described by statute. See 17 M.R.S. § 3521.
Most states have enacted statutes that permit retailers to detain suspected shoplifters. Generally, the best way to avoid civil liability for false imprisonment is to act reasonably during the detention (e.g., be respectful of the suspect and do not mistreat them), and to keep the time that the person is detained to a minimum.
Before a retailer can even detain a person suspected of shoplifting, the retailer must have probable cause to believe the person is shoplifting. This begins with careful observation of the person the retailer or its employees believe to be stealing. If the retailer does not personally observe the suspect take the item, but instead receives a tip from another shopper or an employee, the retailer should verify the information provided before acting.
Once the store owner, manager, supervisor, or loss prevention associate has observed an individual whom they believe to be concealing merchandise taken from the store, they are entitled to detain that person on the store premises. When the retailer confronts the suspect, the retailer and its employees should calmly and professionally question the suspected shoplifter and explain why he or she is being detained. During this confrontation and the following detention period, tempers may flare, and both sides may be easily provoked. It is critical that the retailer and its employees maintain a professional attitude, refrain from unnecessarily embarrassing the suspect, and avoid any use of excessive force in subduing the suspect.
The purposes of this detention are limited, and retailers should take care not to exceed the scope of the protections provided by statute. Those purposes are:
• to require the alleged thief to provide identification;
• to verify that identification;
• to inform law enforcement of the detention and hold them until law enforcement arrives; and
• to take possession of, and hold, the item or items taken by the alleged thief until law enforcement arrives.
If the person suspected of shoplifting is a minor, then the purpose of the detention also includes notifying law enforcement or the minor’s parents or guardian of the alleged crime.
Once law enforcement or the minor’s parents or guardian arrives, the retailer must surrender the suspect to the officer, parent or guardian and end the detention, and must also surrender the item or items taken to the custody of law enforcement.
Where some states indicate that the time of the detention must only be “reasonable,” Maine law is more specific, and requires that any detention last no longer than 30 minutes. While the statute provides up to a half-hour, the retailer should end the detention as soon as possible. If the retailer determines that the suspect did not in fact steal anything from the store, the retailer no longer is allowed to detain the suspect (as they no longer have probable cause to believe the person stole from the store), and should release him or her immediately.
Similarly, the retailer should not prolong a detention in an attempt to obtain a confession from a suspect or to coerce the suspect into signing a document supposedly releasing the store from liability for the investigation and detention. Once law enforcement arrives, the retailer should immediately end the detention and transfer the suspect to the custody of the law enforcement officer.
Knowing when and how to confront a shoplifter can be difficult and stressful, and the sad fact is that you will not be able to completely eliminate shoplifting, no matter what safeguards you put into place.
But, by following the protections afforded by Maine law, and educating your employees accordingly, retailers should be able to detain suspected thieves and recover stolen merchandise without having to fear that they will be held civilly liable for falsely imprisoning those individuals.