Merchant Detention Statutes: What is Considered a Reasonable Detention?

Posted by on Jul 20, 2011 in Legal Corner | Comments Off on Merchant Detention Statutes: What is Considered a Reasonable Detention?

As a follow up to last week’s article by Michelle Gomez which discussed the length of time that is considered reasonable under states’ merchant detention statutes, this article will focus on what actions are considered reasonable during a detention. All of the statutes are similar in that they allow a merchant to detain a person in a reasonable manner when the merchant has reasonable cause to believe that the person has or is attempting to unlawfully take merchandise from the premises. But what does “in a reasonable manner” mean exactly? Some states give us guidelines. Below are a few examples.

States such as Kentucky, Utah, Indiana, Tennessee and North Dakota provide a list of what actions are reasonable during a detention. These include requesting the person to identify himself, verifying the identity, determining whether the person has unpurchased merchandise in his possession, informing law enforcement and informing the parents if the person is a minor.

While most states permit a reasonable search upon the person, certain states only allow a search of items in plain view. In Montana, the merchant can only search the person’s coat or other outer garments and any package, bag or other container. In California, only packages, shopping bags, handbags or other property in the immediate possession of the person may be searched. The search cannot include any clothing worn by the person. Wisconsin does not permit a search against the person’s will and Iowa only allows a search if the person consents and requires that the search be performed by someone of the same gender.

Some statutes also discuss the type of interrogation that is allowed during a detention. Neither Minnesota nor Wisconsin allows the person to be interrogated against his will. In Connecticut and Rhode Island, the merchant can ask for the person’s name and address, but no other information can be elicited from him until the police have taken the person into custody.

Whether the detention must be performed on the premises or whether it can be performed off the premises is also addressed in many statutes. In Indiana, Virginia and Utah, the detention can occur on or off the premises, but off the premises only if such detention is pursuant to an immediate pursuit of such person. States such as Kansas and North Carolina permit a detention on the premises or in the surrounding vicinity. Many states like Rhode Island require that the detention be made on the premises.

A few statutes have more unusual rules. New York does not allow a merchant to fingerprint the person. Rhode Island allows a merchant to request the person to sign a statement waiving his right to bring a civil action arising from the detention in return for a signed statement from the merchant waiving its right to bring criminal charges based upon the shoplifting. Additionally, in Nevada, a merchant is not immune from liability under the statute unless notice is posted that the merchant may detain a person who is reasonably believed to have wrongfully taken merchandise for the purpose of recovering the property.

Merchant detention statutes have been put into place to protect the merchant’s actions during a detention. So long as the merchant acts in “a reasonable manner” and for a reasonable amount of time, according to the respective state statute, the merchant will have a specific statute helping to shield it from civil liability, adding to its arsenal of protection if a person claims wrongful detention, infliction of emotional distress, false imprisonment, etc. arising from a shoplifting stop.

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