What do you think of this false arrest case?

If I were on the jury, I’d be inclined to be sympathetic, but probably not inclined to award much to your client. What did she lose, besides ‘face’? As I’ve always understood it, if you are with a shoplifter you are generally treated as a shoplifter (no matter how unfair). I was actually stopped once when neither myself or my friend had actually stolen anything. It was awful, but not worth suing over.

Now, if she lost work wages, required medical treatment or therapy to overcome harm, I’d probably award those damages. Other than that, I don’t see a reason for compensation.

Hmm. First thought: No “LP officers” better try to “get the upper hand” on me!

Yes, I’d be very sympathetic as a juror.

Seems like being with someone who is admitting to stealing but not implicating the friend, should be grounds to question the friend for a bit, but not grounds to detain them against their will unless they had other evidence (like they had a videotape or someone saying they saw that person take something). I think neither the LP’s have any grounds to cuff or hold beyond a simple investigation, given there is no evidence the client was part of the theft, only suspicion. The client should have been released, never cuffed. It seems very ordinary for someone to be shopping and not know a friend is shoplifting, so I see no reason why the LP’s or police should presume the other person was also stealing. If the client offered to let them inspect her things and nothing stolen was found, then even more so.

Then I think not only is there no evidence the client was stealing, there’s also no particular benefit to molesting the other person.

Damages though, hmm. Well I remember being told that false arrest is a serious thing one does not want to do, so I’d expect there to be consequences. Personally, I feel a bit of outrage that store owners may try to overpower shoppers even if they have no evidence, and I don’t think this case gives any evidence of that against the client. I think an innocent shopper should be allowed to resist a false citizen’s arrest, and any damages from resulting fracas would be the LP’s or store’s responsibility. I think there should be some punitive damage awarded to the client paid by the store. The police too should have released her for lack of evidence – if the store implied they had a case against her, then the store should be punished again; if the police just failed to realize there was no evidence, they should pay her an apology fee or something. The woman should be compensated for her lost time, any expenses or lost income to her or people inconvenienced by her absence, and whatever the going rate for emotional distress and humiliation and anything inhospitable that she may have suffered in jail.

I think that the store’s doubt of your client’s credibility was reasonable, if not terribly kind. The Wanted board at my store tells of many instances of shoplifting, one of which involved a tag team: one stands watch while the other would hide merchandise, and then they switch. It would not be terribly far-fetched for the store to think that your client was involved in a similar setup.

Zaku – Thanks for your reply. To provide a bit more detail:

I won’t be able to see any video unless I file the lawsuit first. The store won’t give it up voluntarily. However, I don’t think it will be meaningful in this case. This was a “fitting room” shoplifting incident. The two young ladies tried on various clothes, going in and out of the dressing room, as we ladies do. Along the way somewhere the friend came out with a few less items than she had taken in, which is probably what alerted store security. The fact that the DA dismissed the case pretty much implies there was nothing on video or any eyewitness testimony to implicate the client.

As for the police, the way it works here, they don’t really investigate shoplifting cases or evaluate the evidence. The store wants to charge somebody, they get charged and the police figure “Let the DA and the court sort it out later.”. Not ideal, I know, but that’s pretty much the way it is.

The store is guilty of false imprisonment. Anyone who disagrees with me is incapable of logical thought processes.

I lead a Diversion group in which the District Attorney refers first time non-violent felony (theft under $500) offenders. Many in my group did not commit the crime themselves, they were there when the incident occured. It’s typical that she would be held for the crime.

Sucks, though. How are the LP people supposed to know that she was innocent? When she moved as if to leave, I understand their reaction- there is a process. Your client should have just done as requested then she could have filled out her statement and done what she needed to do. I would not have sympathy for her. But I think she could get a lot out of my group when it comes to decision making! (we also discuss decisions made about who you associate with)

KhiaKarma – The purpose of this survey is not to argue the law so I will limit my remarks. I note, however, that the legal issue is not, “How are the LP people supposed to know that she was innocent?” That’s rather dangerously close to the idea of “guilty until proven innocent.” The legal question is, “Did they have probable cause to detain her?” The phrase “probable cause” means a reasonable belief – not just a reasonable suspicion – that my client – not anyone else – committed a crime. If they don’t have that, they are not supposed to detain at all, let alone forcibly detain.

Having said that, my purpose here is to gather typical reactions to the facts. Your answer helps in giving me that information. Thank you.

@semblance I am not a lawyer. If you explain it that well in court, as you just did. Then even a wee lil citizen, like me, might be convinced….

I am big fan of proof and evidence. I must admit to a reasonable doubt on this one. I am curious why you are polling a mock jury for a case that is not going to trial (because the charges were dropped as I understood your statements).

If this is for future use for similar situations, I do have a sense of guilt by association. The “bait and switch” described above is not unusual. The place where you would win me over would be the sizes on the clothing. If they are interchangeable between the two parties, nothing new is learned, but if the admitted thief is a size 20 and your client is a size 12 and the clothes are one or the other or both, that would get my attention and would prove the case if there was a disparity that pointed toward your client’s lack of participation.

The age of the client and her general dressing style would also count in my mind. If she is a red head and the stolen clothing favored green, for example (vs. pink or red), and the size thing doesn’t help me, then I think I would be inclined to be more suspicious.

Age or size disparities between the two suspected parties relative to the specific stolen items would hold the biggest weight for me I think. For those who are wondering about the age thing, if the client is 80 and the stolen item were more racy, it wouldn’t completely add up in my mind.

If you are taking her case to sue the store on the other hand, anything that would immediately help me see that your client would not have selected the items in question would help.

I agree with @Nullo Having spent 13 years in retail, I know of tag-teams. I also know of accomplices. There definitely was reasonable reason to detain her, as she was with the friend, in the same area, and, therefore, could have either helped, watched out for, or known of the theft.

I do not know law, but I would think that if you are with someone that is stealing, and you are aware of it, you have a duty to report them. If you do not, you are just as guilty as they are.

The night in jail was uncalled for.The store had the right to check her bags, but when they found nothing the call to police should have only been about the friend. There was no probable cause that your client had stolen anything. That’s the way I see it as a juror.

@Keysha – I was not there of course and I can’t read my client’s mind, but as best as I can determine there isn’t any evidence that my client knew her friend was stealing. With fitting room thefts from retail stores there isn’t really any way to know unless you are sharp enough to observe that someone enters with say, four items and exits with three. Generally that takes experience and training.

Thanks, though, for your answer. I’m looking for typical reactions and your answer helped, as have all of the other answers.

What actual purpose could it serve to lock up your client for a night? Why couldn’t the police just take her information and use that to file the charge? Seems preposterous. If you file charges, will the store people need to be detained in prison over night too? How about if I accuse them of something random, can I get them to stay a night in jail and have them have no just recourse against me?

I would not be sympathetic to the client. She was an accessory to the crime, so i think the night in jail was called for. She most likely knew that her friend was stealing clothing.

I do not mean to be rude in any way, but if you are really a lawyer… shouldnt you KNOW what to do, plus you have “people” you have to talk to this about… and especially if you are a lawyer, isnt it sort off illegal to be telling us the information about these women? some type of private, lawyer to client laws? i dont know, i mean i could be wrong and sound rude, but just wondering.

-@Kayak8 – Interesting angle. You suggest an inference of guilt would arise primarily if my client had a personal profit motive. I think many others just assume that there is sufficient motive because one friend helps another. I don’t personally agree with that either, but that’s not the point here. Thanks for your observation.

@Zaku – Spending a night in jail when charged with even a minor crime is not unusual, particularly if the crime occurs later in the day and the defendant can’t be brought before a judge until the next day. I am not saying that happens everywhere, or that it is good policy, but it is not uncommon in this jurisdiction and I believe it happens in many other jurisdictions as well. Some areas have wised up, of course, and have realized that this only increases the cost of operating the criminal justice system.

@Afos22 – She is only an “accessory to the crime” if she knew about it and aided and abetted the commission of it. Yours seems to be a pristine guilt by association point of view. Iteresting. Thank you for sharing.

@niks1112 – Your response was not rude, just uninformed. Perhaps this will help.

You are confusing knowing what to do in a legal sense versus evaluating a case in terms of whether it is worth bringing. Yes, I know the law and legal remedies. Based on the evidence as I have it now it appears that the store loss prevention agents acted properly with respect to the thief, but improperly with respect to my client. Unless some other evidence shows up later in discovery, such as a video or an eyewitness implicating my client (which, as I have explained, is unlikely) there is little doubt that the client will “win” in a technical legal sense if a case is filed and if it goes to trial. However, if a jury is not sympathetic to her position and rather outraged at the store, there is little hope of substantial damages being awarded. Unless one is a rich plaintiff who wants to file a lawsuit based on principle, these kinds of cases have to have some economic payoff or they can’t be brought, as a practical matter. The whole purpose of my question was to elicit common reactions to my client’s plight. People on a jury are likely to have a similar range of reactions. That is something I cannot “know” without asking. Lawyers have historically used various methods of gathering opinions when evaluating cases in the past. I’m just trying it out on the Internet.

And no, breach of confidentiality is not an issue. For one thing the client consents. Further, nothing has been said about her name, the area, or even the store.

Hmm. It occurs to me that if you did file a suit and could see the lack of evidence, that even if there were no worthwhile damages, you could try to settle with the shop’s parent corporation on an agreement not to publicize what they did. I’m not generally litigious but I am pissed off by bullies and tyrants, and a shop that will sent innocent people to jail with no evidence… I would want to get back at them, either by having them compensate me, or by publicizing what they did. I guess it strikes a chord with me because it’s incorrectly abusing some innocent woman.

Also it is interesting that I was just speaking with a woman who shoplifted something trivial as an experiment and was not caught and was considering going back and confessing. I thought she may as well when she was telling me about it, but hearing this story and the surrounding laws and practices that seem to exist, I would mention this example to anyone considering confessing to shoplifting unless caught.

@Zaku – If you have any way of getting back to the woman who was thinking about confessing you will do her a real service if you ask her to please, please not do that. She would “probably” not be prosecuted, but she certainly could be and she would have no defense if that happened. She would likely be banned from the store and have her name entered into the national retail theft database. The latter would keep her from ever working in retail. There is an even chance she could get a civil demand from the store, which might – quite legally – say that she has to pay them several hundred dollars for the thef of a $2 item.

If she is feeling guilty and needs to do penance she can always do some volunteer work for a few hours, but for heaven’s sake she is just plain crazy if she voluntarily confesses. Without making any conclusions, I observe that the woman you referenced might have a psychological problem. Some people shoplift to act out a desire for attention, even though they try not to get caught. Offering yourself up as a sacrifice by voluntarily going back and confessing could further the same process.

Thanks for your other comments. However, stores can be pretty hard ass when it comes to settlement and they probably wouldn’t worry much about publicity for this kind of case. If you cannot impress them that you are likely to sting them at trial, it is pretty darned hard to get a good settlement.

Thanks semblance. I will let her know! She’s actually extremely sane, but not yet aware of the details of the insanity in the system.

I think most people will feel that if they were shopping together, they both knew what was going on. No sympathy.

@Keysha – Forgive me for being sexist, but I am surprised from your profile that you are a woman. I would think any woman who has spent an afternoon shopping for clothes with a friend would understand that one person could easily be hiding clothes taken into a fitting room while the other knows nothing about it.

I take it that you believe in the presumption of guilt rather than innocence, regardless of the fact that the law is otherwise. An interestingly rigid point of view, and certainly worth noting when evaluating a case. Thanks again for your answer.

It’s because I am a woman that I can say this. I’m sorry, but when you have two girlfriends in fitting rooms, we tend to chat and show off, and know exactly what each other tries on.

You asked what jurors would think. I’m just telling you as a woman, one that is beyond 30, and one that has been in the retail business for many years, that I would assume she knew, and not find the store at fault. Did the store demand she be held overnight? Or did she simply get turned over to the police as a possible shoplifter, the police get told what happened, and let them take it from there.

I do know the store could not have ordered the police to do any particular thing. They can only stop them, confine them, and give them to the law. Then they decide whether to prosecute or not.

Is she allowed back in the store? That would be pertinent to me, as many stores will simply ban a first-time shoplifter.

@Keysha – My purpose here isn’t to argue. You’ve given me your opinions as a person from the retail industry and I appreciate that. However, since you are inviting discussion, I will indulge. Besides, this thread is about petered out by now I suspect so I won’t be influencing anyone much by what I say.

For one thing, you seem to be assuming that this is a kind of group fitting room where there are several changing stalls in a shared space, like Macy’s for example. However, lots of stores aren’t like that. This store had single stall fitting rooms, so they wouldn’t have been together all the time.

I agree with the chat and show off, as I love to indulge in that myself, but otherwise your experience is different from mine. Even in stores with shared fitting room stalls I’m not in the company of the person I shop with all the time. Some of the time I am out hunting and not in the immediate company of my friend or friends. It only takes a moment to stuff a dress or other garment into a handbag or shopping bag. I certainly don’t try to keep count of what the person I am shopping with brings in or out.

On the question of whether the store makes a decision about being jailed, the answer to that can vary from legal jurisdiction to legal jurisdiction. In some states retail stores are actually given power to lay charges directly. In the state where this happend that is not the case. However, as I stated elsewhere, as a practical matter the police in this jurisdiction do not perform any kind of investigation or evaluation of the evidence. If the store wants to book them it calls the police, someone makes out a complaint, and off they go to be booked. Someone booked late in the day can’t be taken before a judge until the next morning, so staying in jail is very common unless it is already full with violent offenders. So, technically the store does not “decide” whether someone is taken to jail or held overnight and the store does not order the police to do anything, but the store loss prevention (LP) people know the drill and know pretty much exactly is going to happen to the suspect if they call the police on them. So, if the LP agents did not have probable cause to detain my client, they are responsible for what happened.

As to the decision to prosecute criminally, that is ultimately up to the DA, not the store or the police. As I said, the thief pled guilty and the charges against my client were dismissed so the DA didn’t think he had a good case.

As to being allowed back into the store, of course not. The store gave her a store ban, which is pretty much automatic. If she goes back in for any reasoon she would be subject to arrest and conviction for criminal trespass. However, I do not see whay that would be pertinent in your mind to the question of whether the store errred in detaining her and turning her over to the police in the first place. There is no doubt here that the LP agents thought she was a shoplifter so of course they gave her a store ban. They also entered her name in the national retail theft database. The store’s legal departmet sent her a civil demand – which I advised her not to pay – for several hundred dollars. However, none of that has anything to do with whether she should have been detained in the first place. The question there is: “Did they have a reasonable belief that she was a thief?”

I am disappointed, but not surprised, that so many are willing to jump to the conclusion that she was a thief simply because she was with someone else who was. This kind of willingness to make quick judgments for expediency’s sake in place of a dispassionate evaluation of the evidence is, I would observe, one of the reasons we don’t live in one of those nice sci-fi worlds you reference in your profile but increasingly seem to be moving in the direction of an Orwellian one.

Since charges against your client were dropped, shouldn’t the theft database be required to remove her name or include the information that the charges were dropped, or else be guilty of lying about her in a negative way?

I wonder if the sampling here is selecting for people who care about the issue. I’m sort of hostile toward retail authority by nature (and am now kind of bothered about it, in an amused way, hehe).

I love your last paragraph, semblance.

This is for everyone who assumes she is guilty because she was with the shoplifter. One time me and a friend of mine went in a store together. We both bought and paid for several items. When we were a couple of miles down the road he started pulling all kind of stuff out of his pockets. He even had a couple of steaks stuffed down his pants. At that point you could say I was an accessory after the fact, but at the time he was shoplifting I had no idea that he was doing it.

@Zaku – Thank you for your compliment.

You also ask a good question. However, i don’t believe that there is any tie in between a criminal conviction – or even a criminal prosecution – and any of the national retail theft databases. A large percentage of shoplifters – about half, I have heard – who are caught are never charged but I also understand that their names get entered into a national retail theft database. Also, circumstances being what they are, the store would probably be reluctant to try to change a prior entry at the risk of that looking like an implied admission of fault. Unfortunately, once a mistake is made there is a lot of momentum towards perpetuating it in this somewhat crazy legal system we live in.

You may be right about this kind of question at this site self selecting for people who care about the process. Still and all, it is a fascinating window into different persons’ thought processes.

I’ve never been all that good on the authority issue either. However, don’t be too hard on the retail industry or loss prevention personnel. Most of them are just trying to do a legitimate, albeit unpleasant job. I really don’t blame them one bit for stopping actualy shoplifters, including situations where they use reasonable force, handcuff people, etc. Shoplifting is an enormous problem. I have read estimates that something like close to 2 million people a year get caught shoplifting every year in the USA and that only reflects the ones who get caught. Most shoplifters get caught, on average, only once out of 49 times. So, if the stores don’t do something about it they become doormats for petty thieves. Following the rules, though, is important. This case seems to be an aberration, which is why, of course, I am evaluating it.

@beancrisp – Thank you for your story. What you have described is quite common. It often takes a personal experience like that to make people understand how easily this can happen.

It would be quite a stretch to say you were an accessory after the fact. From your description the theft had been completed and the “get away” from the crime scene accomplished with no one in hot pursuit. So, in my opinion you were innocent.

I hope that you have been wise enough never to shop with that person again.

I can only say I wouldn’t necessarily be unsympathetic to your client but… who would you be filing the complaint against exactly? The store and/or it’s LP employees? The police? The conduct of the store’s LP employees and the fact that she was arrested and spent the night in jail are really two separate issues. The LP people aren’t necessarily responsible for her night in jail. The police made the decision to arrest her. If both parties were acting in accordance with the law I’m not sure I would feel your client was entitled to any compensation. Unfortunate and unpleasant things happen to people sometimes, sadly; she was in the wrong place at the wrong time paid a price for it in having an unpleasant experience, but if all the parties acted within their rights and within the law then that would be kind of that for me. She might just need to pick herself up, dust herself off and move on from this one; and perhaps think a good, long while about choosing her friends more wisely.

@lillycoyote – I don’t expect you to have read all the posts, but on the notion that the loss prevention personnel are not responsible for the jail time and the fact that criminal charges were brought, here is a comment of mine from a few posts up the line:

”[T]he police in this jurisdiction do not perform any kind of investigation or evaluation of the evidence. If the store wants to book them it calls the police, someone makes out a complaint, and off they go to be booked. Someone booked late in the day can’t be taken before a judge until the next morning, so staying in jail is very common unless it is already full with violent offenders. So, technically the store does not “decide” whether someone is taken to jail or held overnight and the store does not order the police to do anything, but the store loss prevention (LP) people know the drill and know pretty much exactly is going to happen to the suspect if they call the police on them. So, if the LP agents did not have probable cause to detain my client, they are responsible for what happened.”

You may not agree with that personally, but the evidence would show those facts and theere would be jury instructions consistent with my statement that the LP agents are responsible for what happened later. They set the ball rolling, so to speak.

As to defendants who could be liable here, they would be the LP agents individually – particularly the one who put her hands on my client and forced her into handcuffs – and the store which employed them. As a matter of tactics it may or may not be best to name the LP agents individually. The store is responsible for their actions whether or not they are named individually as defendants in the case. It is possible that the city which employed the police could be held liable, but that is a much more dificult case for several legal and practical reasons.

As for chosing friends wisely, I understand your point and I even warned another poster here on this thread not to shop with a friend who steals. However, very few people realize how widespread this problem is. I have read things by people who claim to have statistics about this and it is estimated that over ten percent of the population are shoplifters, and I believe that they are talking about people who have done it more than once. You probably have been in stores many times yourself with people who shoplift, whether or not they did it in your company.

Thanks for your opinion. All of these reactions are valuable to me..

My initial problem is with the police. It seems like they detained, arrested, and charged her without any actual evidence other than being friends with a shoplifter (which I don’t think is admissible, but I’m not a lawyer). However, once you posted that they banned her from the store and put her in the database, then my feelings are that she should sue them and I would probably side with her. I know that these stores are just trying to make it in this cruel, harsh world; I know that shoplifting is a huge problem – but at the end of the day, it goes against the very spirit (if not the letter) of “innocent until proven guilty” which I see as one of the cornerstones of what this country and it’s legal system were founded upon.

The answer to your question will turn entirely on what evidence defense profers. The entire defense, hence the reactions of the trier of fact, will turn on justifying the actions of the LP. If there is insufficient justification for the actions of the LP, the trier will be sympathetic to your client.

Also, I care more about any future issues she’ll have from being in the database and being barred from the store (as well as any kind of government database, records, whatever) than that she had a crummy day – it sucks, but it’s also probably an unavoidable part of our justice system. However, they can make sure it doesn’t continue to hurt her.

I’m with @papayalily. Now that I know her name has been entered into the database, I do think they have harmed her. It seems akin to slander to me, to declare her a thief without any evidence of a theft on her part.

@augustlan YES! Slander.

@semblance I’m not sure if you’re still following this thread, and need feedback or not, but I felt like chiming in. In terms of anger I might feel as a juror, I think it has a fair bit to do with what store it was. I feel like I might be more sympathetic to a mom & pop store than a mega-corp that should have properly-trained loss prevention personnel. Rationally, I know this is wrong, but you’re looking to understand our emotional responses, and that’s how mine would go.

Also, science says that my ability to identify/sympathize with the defendant will largely depend on her age, race, level of attractiveness etc. Sucks that we’re wired that way, but we are. Also, does she seem like an innocent girl who got totally screwed over by an asshole corporation and is suing for damages because the company deserves to suffer the way they made her suffer? or is the client trying to “milk the system” because they’re a lowlife that just happened to not get caught this time? Those are the irrational/subjective factors that will probably play pretty heavily on the damages I would award.

this question hits home with me and answers are interesting. I was arrested for shoplifting. Was shopping had purchased nurmerous items and went into dressing room to try more things on. In the process of taking things out of my bag a blouse was inadvertently placed ontop of the paid items. I have a serious illness (brain tumor) and have problems with memory. The clerk had a phone call from LP stating I didnt’ have the same number of items exiting the dressing room as when I went it. I had no knowledge of it and they obviously didn’t tell me. After exiting the store they took me to LP and interrogated me and arrested me for retail theft even after I offered to pay for the 9.00 item. I was past due on my lifesaving medication and they refused to let me seek medical help or call my spouse. I suffered stroke sometime that day due to the stress of being handcuffed and arrested. I am elderly and have no previous record. The state dropped all charges and exonerated me. I am litigating the case for false arrest and intentional infliction of harm. When does logic come into play and when is an honest mistake just that, a mistake? I don’t think this was an offense that required handcuffs and jail and refusing medical care.

@sophielover That sounds just awful. Some common sense and decency would go a long way.