Tag Archive for 'shopkeeper’s privilege'

Shoplifter Choked to Death by Employee, No Criminal Charges Expected

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It’s time to play pretend! You’re an employee at a large drug store chain. Your job is probably pretty boring. Suddenly, you see someone grab an item of the shelf, look around, and then put it in his pocket. Sensing an opportunity to break the daily monotony, you give chase. What do you do if you catch up to the shoplifter?

If you answered “keep the suspect in a choke-hold until he dies,” (also reported here) you better hope you live in Chicago, because at least one person who did this very thing is not being charged with any crime whatsoever, at least not yet.

Now, shopkeepers do have a privilege to detain suspected thieves for a reasonable amount of time, and generally avoid any civil or criminal liability. This is known, appropriately, as the “shopkeeper’s privilege.” This privilege, however, has some significant limits. While the law does recognize a person’s right to use some force to defend their property, the amount of force used must be reasonable. Also, lethal force is only ever justified to defend oneself (or another person) against death or serious bodily injury, and is never justified when only property is at stake.

Of course, any act of theft is indefensible. However, in a civilized society, most people don’t view the theft of a tube of toothpaste (which is what this shoplifter had taken) as something for which a person deserves to die. The reasons why the police and District Attorney have not sought criminal charges against the employee are not clear, and, frankly, are hard to imagine. After all, according to descriptions of the event, the shoplifter repeatedly yelled that he couldn’t breathe while the employee (likely not trained in detention methods) held him down.

At the very least, this appears to be a clear cut case of voluntary manslaughter, which is generally defined as the intentional killing of a person under severe provocation. Whether or not stealing a tube of toothpaste counts as “adequate provocation” is, to say the least, debatable. However, catching a person in the act of robbery is traditionally viewed as a sufficient provocation to mitigate murder to manslaughter.

Academic debates about the exact criminal nature of this act aside, one has to wonder what this says about our culture and legal system. First of all, who would possibly think it’s a good idea to chase a shoplifter in the first place? Obviously, nobody likes to be stolen from, and shouldn’t abide theft, but everyone needs to pick their battles. While most shoplifters are not habitual criminals, some of them are. When you give chase to a shoplifter, you have no clue who you’re dealing with – the person could be armed, or otherwise willing to fight (and possibly injure) their pursuer to get free.

Furthermore, there’s always the chance that the pursuer will inadvertently injure the shoplifter (which is apparently what happened here), and face a lawsuit. Even if a court finds that the pursuer’s actions were justified, is a $3 tube of toothpaste really worth all that risk? Not to mention the fact that, as an employee, it’s not even your property that’s being stolen.

For these reasons, and many others, the vast majority of retailers have strict “no-chase” policies, under which regular employees are absolutely prohibited to chase suspected shoplifters. And in most of those stores, even the security guards are directed to give up the chase once the suspect leaves the store’s property.

Generally, writing off the stolen item as a loss and reporting the incident to the police is far easier and cheaper than dealing with the potential consequences of self-help.

This is likely to be borne out in the present case. Even if the authorities never charge the employee criminally, the family of the victim is almost certainly going to sue the employee, and, more importantly, the employer, for the shoplifter’s death.

Of course, whether or not they’ll succeed is another issue. While this case, based on what we know from the news stories, seems pretty clear-cut, there are a few obvious wrinkles in it. First of all, you can only sue an employer for the actions of an employee if the wrongful conduct was within the employee’s “scope of employment.” Given the fact that the employer has much deeper pockets, any significant recovery in cases like this usually hinges on that question.

In this case, it seems like a close call. After all, the employer will likely point out that they have a strict no-chase policy with respect to shoplifters, and that the employee, therefore, acted of his own accord. If accepted this argument would probably defeat a lawsuit under a theory of vicarious liability.

However, the fact that the employee thought that his actions were a good idea in the first place might indicate that the policy was not made clear to him, and as a result, he may have come to believe that his conduct was within his scope of employment. While this might not support a vicarious liability theory, it would be very helpful if the plaintiffs argued that the company was negligent in its hiring or training of this employee.

Whatever the result, this employee seriously miscalculated if he thought he was doing his employer a favor by chasing down this shoplifter. Of course, he almost certainly didn’t intend to kill the shoplifter when he gave chase, but the fact remains that that’s what happened. Even if no lawsuits are brought (which is unlikely), the negative publicity alone will cost the company far more than the value of the items the shoplifter took. Combine that with the likely lawsuits, and you’re suddenly looking at a huge amount of money.

This simply goes to show that, while one’s actions may seem morally justified (the part about attempting to stop a thief, not the part about killing him), the legal consequences can sometimes seriously outweigh any benefit they might bring. This may seem unfortunate, or even unjust, but a case as stark as this illustrates why such arrangements are often necessary: consider the value of a human life, and compare it to that of a tube of toothpaste. Obviously, a human life is more valuable.

We have a legal system for many reasons, but one of them is to avoid situations like this. A word to the wise: unless your physical safety is under direct and immediate threat, you probably shouldn’t resort to any form of self-help. If your property is stolen, you should do whatever you can to avoid injury, and then notify the authorities. Being stolen from is infuriating, but it’s not worth getting seriously injured, sued for millions of dollars, or having a death on your conscience.

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