The difference between a civil claim and a criminal claim and the fact that there can generally be either a civil or criminal claim or both simultaneously stemming from the same incident is hard for many people who are caught shoplifting to understand. Most are familiar with the criminal procedure: when you break the law, the police are called and you’re arrested. You then are given a court date, are required to appear in front of a judge and, if found guilty, are sentenced. However, few shoplifters realize that they could also be pursued civilly.
Whenever a person commits, or attempts to commit a theft, that action may be considered both a crime and a civil tort. The retailer may request the state to file criminal charges and/or it may choose to take civil action seeking damages. While the criminal matter is used as a form of punishment, the civil action is designed to work as a deterrent to future theft as well as to shift the tremendous cost of theft and the resulting security costs from the honest consumer (through higher retail prices) to the offenders who are creating the problem. The civil action is separate from and independent of any criminal action that may or may not have been taken. So even if criminal charges are pending and regardless of the outcome of the criminal matter, the retailer may still make a civil penalty request pursuant to state statute.
The majority of states have statutes and supporting case law which specifically allow for a civil matter to be pursued regardless of whether or not there is a criminal matter. For example, Florida case law states that a crime victim is entitled to pursue both a criminal restitution award and a civil damages award as long as the amount of restitution is set off against any subsequent independent civil recovery.[i] New York’s statute states, “A conviction or a plea of guilty for committing larceny is not a prerequisite to the bringing of a civil suit, obtaining a judgment or collecting that judgment under this section.”[ii] Similarly, Indiana case law states that in order to impose civil liability under its statute which governs damages for property loss caused by a criminal act, it is not necessary for defendants to be convicted in a criminal case.[iii]
It is important for those who are stopped for shoplifting to understand that the decision to pursue a civil claim is typically made at the corporate level, not the store level. While store personnel documents the theft incident and has the authority to decide whether or not to call the police, it is generally the corporate office which determines whether civil damages will be requested. Therefore, if store personnel choose not to call the police for one reason or another, it does not necessarily mean that that is the end of the matter. For this reason, it is essential for store personnel to make the shoplifter aware that, though the police were not called, the retailer may still make a request for civil statutory damages pursuant to state statute. If the shoplifter has been educated about the process and notified of the possibility of receiving a civil settlement offer, it can only help the retailer when making civil settlement requests as the shoplifter will not be surprised by the request and will be more likely to settle rather than fight the civil claim.
[i] State v. Hitchmon, 678 So.2d 460
[ii] McKinney’s General Obligations Law § 11-105(7)
[iii] Porter County Cable Co., Inc. v. Moyer, N.D.Ind.1983, 624 F.Supp. 1