Written by Aaron R. Winston
Last Updated: January 9, 2024 11:07am CST
Store owners and their customers have certain rights and responsibilities to balance.
For storeowners, these include how they handle suspected shoplifters (someone who steals goods from a store while they pretend to be a customer).
This balancing act between the customers’ and storeowners’ rights has a unique law addressing it in the United States known as the shopkeeper’s privilege.
It’s a recognized common law concept, allowing store owners or their employees to detain anyone they suspect might be trying to shoplift their goods.
They have to follow the applicable legal guidelines, though. It makes for an uncomfortable tightrope walk situation.
The law tries to protect the storeowner’s property rights on one hand while not infringing on the customer’s personal freedoms on the other (extra tricky since most states have their own shoplifting rules).
We wrote this guide to dig into the ins and outs of the shopkeeper’s privilege law.
So, whether you are a store customer who values your rights and personal space or a business who wants to closely monitor and protect their products from theft, this FAQ resource is for you.
Let’s get started!
What Is Shopkeeper’s Privilege?
Shopkeeper’s privilege is a recognized law that gives U.S. store owners the legal authority to detain suspected shoplifters. The law intends to protect stores from theft while being careful not to lead to unfair detentions of customers.
It allows store owners to lawfully prevent a suspected shoplifter from leaving the store’s premises for a reasonable amount of time for the purpose of investigation if they have cause to have reasonable belief the customer has already stolen property or attempted to do so.
Shopkeeper’s Privilege Law Video
To say the least, this is easier said than done and is not a situation stores want to be in (even if their suspicions of shoplifting are correct).
For starters, how would a store employee have reason to suspect someone is trying to steal in the first place?
Suspicion of Shoplifting
At its core, the most classic examples of shoplifting involve someone attempting to leave a store with merchandise without paying for it.
Shopkeeper’s privilege becomes a factor when a storeowner or their employee notices someone trying to steal merchandise (trying to sneak out without paying).
Can stores detain shoplifters? Yes, storeowners and their workers are allowed to detain and search someone they have reasonable grounds to suspect of shoplifting to investigate whether they are right about the person trying to steal from them.
One significant detail linked to this privilege is the time a suspect is held.
Reasonable Period of Time
The law requires that the detainment be as short as possible and occur within the shop.
It limits the duration a storeowner is permitted to detain the accused shoplifter for how long it should reasonably take to confirm or remove their suspicions and, if appropriate, for the police to arrive after calling them about the alleged store theft.
The detainment can be done for investigative purposes only and generally involves brief questioning and searching of the suspect for merchandise on their persons.
The moment a storeowner realizes that the suspect was not shoplifting, they are required to release them.
Holding the suspect any longer than strictly necessary is too long and could be considered false imprisonment of the now-cleared suspect.
It’s important to remember that even with the extra rights provided by the shopkeeper’s privilege law, store owners and their employees aren’t police or law enforcement officers with the authority to arrest.
Use of Physical Force
Can a store employee physically detain a shoplifter? Yes, store owners and employees can use reasonable physical force to hold a suspect in detention.
However, it must always be a non-deadly force and only when reasonably required by the circumstances to keep things under control.
Racial Profiling Is Not Cause For Reasonable Suspicion
Another crucial limit placed on the shopkeeper’s privilege law is that racial profiling can’t be used as a cause to justify invoking it.
Store owners are firmly told not to let bias guide their thinking when they suspect theft. This part of the rule aims to ensure all shoppers are treated equally and helps protect people’s rights.
Unfortunately, this is often not the case.
A recent study commissioned by Sephora, a multinational cosmetics retailer, shows that racial bias is a significant issue in retail.
The study states that 2 out of 5 retail shoppers report having personally experienced unfair treatment on the basis of race or skin color.
53% of black shoppers reported having personally experienced unfair treatment due to their race or the color of their skin.
Stores need a good reason to detain someone they suspect of shoplifting, and the color of a person’s skin is not one.
Using this privilege on a whim or baseless suspicions can put the store owner in legal trouble (criminal, civil, or both).
So, you see, the shopkeeper’s privilege law gives sellers additional power they need to protect their business from theft-related losses and has limits to protect the rights of in-store customers.
Example: Shopkeeper’s Privilege
Unfortunately, it is a known fact that shoplifters steal merchandise, such as cosmetics (i.e., lip gloss) and small toys (i.e., Pokemon cards), from big stores like Wal-Mart.
They attempt to hide unpaid items in their purses or clothing pockets they are wearing and try to leave the store without getting caught by a store clerk. Shopkeeper’s privilege gives retailers a defense to this.
If a store worker suspects a customer of stealing, they can invoke the shopkeeper’s privilege. We will use the following made-up anecdote involving an alleged shoplifter to illustrate how the events typically unfold:
- A customer slips a small piece of merchandise they do not plan to pay for in their pocket while they think no one is looking and are out of view from any store security cameras recording.
- An employee is looking and spots the customer place the item in their pocket.
- The customer begins to walk towards a store exit.
- The store employee becomes increasingly suspicious that the customer is shoplifting when they see them head to leave the store premises without paying.
- Before the customer, now a suspected shoplifter, can exit, the employee prevents them from leaving by blocking the entrance and telling them to stop.
- Generally, for larger stores, the alleged shoplifter will be brought to a back room for detainment, where they will be questioned and inspected by loss prevention security for store property.
- If the store owner or loss prevention officer finds stolen items on your person or in your belongings, they will likely contact the local police department and press shoplifting charges (they are allowed to let you go and do not have to call law enforcement). It’s up to the police officers to decide whether to arrest.
The Role of Probable Cause
Probable cause is a critical factor when it comes to the shopkeeper’s privilege. It serves as the justification for detaining suspected shoplifters.
This concept stems from the Fourth Amendment, which guards against unreasonable searches and seizures. But what does “probable cause” mean in the context of shopkeeper’s privilege?
Probable cause suggests that there is sufficient justification based on known details to think an offense has been committed.
In other words, if a store owner sees someone slipping an item into their pocket without paying, they have probable cause to detain that person under the shopkeeper’s privilege.
As per Cornell Law School, think of the store owner as being similar to a judge determining probable cause – they must make their decision based on available evidence (the suspect’s actions) before making a decision (detention).
This principle helps balance two key interests: On the one hand, retailers need tools like shopkeepers’ privileges to protect their property rights; on the other hand, customers should not be arbitrarily detained.
The requirement for probable causes acts as a safeguard against misuse of power by store owners. Therefore, suspicion alone is not enough to justify an action by a store owner.
Just because someone appears suspicious doesn’t mean they can be detained and searched.
Complexities in Criminal and Tort Law
Now that we know what a shopkeeper’s privilege is, it’s clear that store owners have some unique rights that give them more power than a private citizen’s arrest.
Even though they are allowed to question individuals who they have reason to believe are shoplifters, it’s a tricky balance.
The Legal Consequences of Abusing Shopkeeper’s Privilege
Store owners must respect the legal rights of the shoplifting suspects they’re holding, known as detainees, regardless of their own store policies.
Using this privilege correctly means they have to be fair and just.
False Imprisonment Is a Crime and Intentional Tort
If a store owner holds a suspect in detention longer than needed to fulfill the purpose of investigation, they are committing the crime and intentional tort of false imprisonment. Depending on the state, it can be a felony or misdemeanor charge.
Can You Sue For False Imprisonment?
Yes, you can for false imprisonment. Unlawful detainment can open the door for the shoplifting suspect to sue the store for money in a civil lawsuit for the tort wrongdoing made against them.
Store owners are not allowed to use more physical force than is reasonable to detain suspected shoplifters.
What’s considered an unreasonable amount (“excessive force”) will change depending on the situation. It’s a gray area that has the potential for serious legal consequences.
Store Owners: Seek Legal Advice From a Retail Law Attorney
With all these details, store owners should consider being proactive by having a free initial consultation to receive some legal advice from an attorney who specializes in retail law.
They can help them know what they can do to protect themselves legally in future situations and give their employees proper training.
Doing so can provide clarity on what constitutes a reasonable length of time and reasonable manner in enforcing shopkeeper’s privilege and how to properly conduct a citizen’s arrest.
One mistake on the part of a store owner or employee can lead to criminal charges against them.
That’s why it’s imperative to know what’s what when it comes to probable cause and be respectful if you must detain someone.
Doing so can provide clarity on what constitutes a reasonable length of time and reasonable manner in enforcing shopkeeper’s privilege and how to properly conduct a citizen’s arrest.
Store owners may also consider putting up a disclaimer and warning signs.
It’s an excellent way to let the customers and employees know about the store’s theft policy and how it deals with shoplifters.
Although store disclaimer signs posted on the wall don’t count as waivers and won’t absolve stores of liability, they can act as a deterrent and give extra protection against legal hassles for the store and property owner.
The deterrent and theft prevention factor is also why many homeowners nail Beware of Dog signs to their property fences, as their concern is the threat posed by trespassers and burglars. For store owners, the threat of shoplifting has them concerned.
This is also the case for “You Break, You Buy” signs commonly seen in gift shops.
Openly educating customers and workers using signs strengthens the store’s legal defense by showing that it’s committed to doing things by the book.
It shows the company strives to maintain ethical policies and prevent discriminatory enforcement of the “shopkeeper’s law.”
At the end of the day, shopkeepers’ privilege gives store owners the chance to protect their goods, but you’ve got to be extra careful about how that power gets used.
Knowing the possible criminal and civil legal problems is vital in preventing any legal issues from happening.
Shopkeeper’s Privilege by State
Shopkeepers’ privilege laws can sometimes get muddled because laws vary from state to state. The common law concept is not uniformly applied across all states.
Each state has unique shoplifting laws and interpretations of retail theft, leading to some notable differences.
For example, how the California penal code sees things might not match how a court in another state sees it.
Businesses with locations in different areas must understand the reasonable cause laws where their stores operate and not only where the headquarters is.
So, even if the shopkeeper’s privilege is a good tool for retailers, it comes with a load of responsibilities. Consulting with legal professionals can help make sense of its roots in common law and criminal law.
That can help store owners look after their shop and respect people’s rights, all while sticking to the book according to the penal code and courts.
Shopkeeper’s Privilege Law In North Carolina
In North Carolina, the shopkeeper’s privilege statute explicitly gives the store owner or employee the right to detain a suspected shoplifter if they have probable cause. It goes on to define “concealment of merchandise” as a misdemeanor offense.
However, shoplifters in North Carolina can be guilty of a Class H Felony if they get caught using something like an aluminum-lined purse or wearing a lead-lined t-shirt to prevent setting off antishoplifting or inventory control devices when attempting to leave the store.
California Shopkeeper’s Privilege
In contrast, California law about shopkeeper’s privilege is more detailed about the different establishments where shoplifting can occur.
It includes special provisions for public libraries and for how owners should deal with people attempting to record the screen in their movie theater.
The California Penal Code allows for the detention of suspected shoplifters. It provides specific conditions, like needing probable cause and ensuring that the confinement length does not extend past a reasonable period.
Shopkeeper’s Privilege Laws In Florida
Florida has extensive shopkeeper’s privilege laws that include details about what is considered reasonable cause to detain someone for shoplifting.
For instance, antishoplifting devices activating when someone attempts to exit a store are grounds for reasonable cause in Florida.
Shopkeeper’s Privilege Texas
Does Texas Have a Shopkeeper’s Privilege Law? Yes, Texas does have a shopkeepers’ privilege law. Title 6, Chapter 124 of the Civil Practice and Remedies Code gives the “privilege to investigate theft” to anyone, not just stores. The rule states the following:
A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property.
As of September 1, 2023, Section 1 of the act can be cited as the Kevin Kolbye Act.
Other Factors of Merchant Protection Statutes
The Texas law requires merchants to either notify law enforcement of the suspected offense or offer the accused shoplifter the opportunity to complete a theft education program.
This option is nearly impractical due to the long list of imposed requirements that merchants must comply with.
Real-World Implications of Shopkeeper’s Privilege
The effects of shopkeeper’s privilege are felt daily in retail. What implications does this have in the retail world on a practical level? Let’s break it down.
On a typical day, shopkeepers use their privilege to deter theft, ensuring customers respect store policies. It gives them the confidence to confront suspicious activities without immediate legal backlash.
That can also lead to tense customer interactions, especially when suspicions prove unfounded. Customers might feel wronged or embarrassed after being detained erroneously.
Shopkeeper’s privilege empowers employees at all levels. Whether it be a cashier or manager, they can act against suspected thefts without waiting for law enforcement intervention.
Awareness of this principle guides retailers as they craft store policies about handling potential thieves. The balance is tricky: deterring crime while maintaining an inviting shopping environment is no easy task.
The real-world implications aren’t always positive, though; misuse has led to lawsuits where shoppers claimed wrongful detention or racial profiling—a reality many retailers face today.
Shoplifting cases can be complex, especially when it comes to understanding the concept of shopkeeper privilege. Although the law gives shopkeepers extra power and authority over the customers in their stores, it still has limitations.
That’s all the more why it is crucial for anyone involved in a shoplifting case, especially those facing criminal charges, to know their legal standing and get proper representation.
Consult a Shoplifting Attorney
The first step is finding a lawyer who specializes in retail theft cases. Not all lawyers and law firms have experience with this type of law, so you need someone well-versed on your side.
You can use resources like the American Bar Association’s Find Legal Help tool to find an attorney near you.
Once you talk to them, you should ask potential lawyers about their track record of handling similar cases. How many have they won? What were the outcomes?
When facing charges related to shoplifting, knowledge is power. Familiarize yourself with local laws regarding shopkeepers’ privileges, as these vary from state to state.
An effective criminal defense attorney will help explain how these laws apply to your situation and what defenses may be available.
Critics of Shopkeeper’s Privilege Law
Critics of the law argue that misuse of shopkeepers’ privilege could lead to racial profiling or other discriminatory practices by retailers. Statistics show this as well.
So, if you believe your rights were violated during detainment or arrest due to alleged shoplifting, you may be able to sue the store owner in the form of a civil lawsuit.
Strict Liability of Employers
Strict liability laws give people the power to hold business owners responsible for the harmful actions done by employees while on the job.
So even if the employee went against store policy, the store owner can still be held accountable to pay for injuries and damages, such as pain and suffering.
Solution To Long Litigation: Apply For Legal Funding
When you are an injured victim of unlawful detention and excessive force by being wrongfully suspected of shoplifting without reasonable grounds, more often than not, you are put in a position where you need to sue.
By filing a personal injury claim, you aim to be compensated for your financial loss, and you likely have fewer funds in your bank account now due to the tort made against you.
Even the strongest of lawsuits are far from being instant winners. It’s likely to take many months to even a few years to resolve, leaving you at a deficit until then.
Medical bills, lost wages, and other unexpected expenses add up and can add a lot of stress and make you fear that there is no end in sight.
It’s understandable that you may find yourself as a plaintiff in a financial lurch, which is where we at Express Legal Funding can come in and help.
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About the Author
Aaron Winston is the Strategy Director of Express Legal Funding. As "The Legal Funding Expert," Aaron has more than ten years of experience in the consumer finance industry. Most of which was as a consultant to a top financial advisory firm, managing 400+ million USD in client wealth. He is recognized as an expert author and researcher across multiple SEO industries.
Aaron Winston earned his title "The Legal Funding Expert" through authoritative articles and blog posts about legal funding. He specializes in expert content writing for pre-settlement funding and law firm blogs.
Each month, tens of thousands of web visitors read his articles and posts. Aaron's thoroughly researched guides are among the most-read lawsuit funding articles over the past year.
As Strategy Director of Express Legal Funding, Aaron has devoted thousands of hours to advocating for the consumer. His "it factor" is that he is a tireless and inventive thought leader who has made great strides by conveying his legal knowledge and diverse expertise to the public. More clients and lawyers understand the facts about pre-settlement funding because of Aaron's legal and financial service SEO mastery.
Aaron Winston is the author of A Word For The Wise. A Warning For The Stupid. Canons of Conduct, which is a book in poetry format. It consists of 35 unique canons. The book was published in 2023.
He keeps an academic approach to business that improves the consumer's well-being. In early 2022, Aaron gained the Search Engine Optimization and the Google Ads LinkedIn skills assessment badges. He placed in the top 5% of those who took the SEO skills test assessment.
Aaron's company slogans and lawsuit funding company name are registered trademarks of the United States Patent and Trademark Office. He has gained positive notoriety via interviews and case studies, which are a byproduct of his successes. Aaron R. Winston was featured in a smith.ai interview (2021) and a company growth case study (2022).
In 2023, Aaron and Express Legal Funding received accolades in a leading SEO author case study performed by the leading professionals at WordLift. The in-depth data presented in the pre-settlement funding SEO case study demonstrate why Aaron Winston maintains a high-author E-E-A-T. His original writing and helpful content continue to achieve unprecedented success and stand in their own class.
Aaron was born in Lubbock, TX, where he spent the first eight years of his life. Aaron attended Akiba Academy of Dallas, TX.