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Retail Shrink and the Shopkeeper’s Privilege

The retail industry in Texas and throughout the nation has a growing problem with what is known as retail shrink. This shrink amounts to the discrepancy between what the retailer has on its books and what it actually has in terms of merchandise for sale. The difference can be attributed to theft, shoplifting, fraud, or book-keeping error. According to Forbes, this shrink amounted to almost $47 billion in 2019. Shoplifting plays an outsized role in this ongoing problem with retail shrink.

The Shopkeeper’s Privilege

Shoplifting tends to occur when there is not a police officer at hand to address the issue, and this fact has led many states to invoke what is known as shopkeeper’s privilege. (What to Do If You Are Accused of Shoplifting) This phrase means that if a store owner reasonably believes that a customer is attempting to steal something from the business, he or she has the privilege of detaining the suspect – for a reasonable amount of time and in a reasonable way in an effort to investigate the matter further. One mechanism for invoking this shopkeeper’s privilege is installing receipt checkers at the door who check customers’ purchase receipts against the items in their bags. While customers are not required to show their receipts (except in membership stores like Sam’s Club), refusal may amount to a reasonable cause for detaining the customer (under suspicion of shoplifting).

Overly Zealous Store Owners

Store owners have every right to be concerned with shoplifting, but this does not give them the right to invoke their shopkeeper’s privilege in a manner that is overzealous – or unreasonable. Such actions can include any of the following:

  • Assault (Assault vs. Self-Defense in Texas)

  • Defamation

  • Negligence

  • Negligent supervision

  • Malicious prosecution

  • False imprisonment

  • Intentional infliction of emotional distress

The most common charge, however, is false imprisonment. If a store fails to proceed within specific parameters in their attempts to detain individuals for suspected shoplifting, it can face charges of false imprisonment, which includes the following elements:

  • Willful detention of the suspected shoplifter – This involves detention via threats, violence, or anything else, including even words alone (that credibly inspire fear in the suspect) that restrain the suspect from removing himself or herself from the situation.

  • Without the suspected shoplifter’s consent – This means the suspect did not consent to the detention in question.

  • Without the authority of law – This means that the shopkeeper must have either a warrant to detain the suspect or that the facts involved must amount to probable cause. The essence of this matter is whether the store owner acted reasonably under the given circumstances.

Do Not Wait to Consult with an Experienced Killeen Criminal Defense Attorney

If you face shoplifting charges, bringing your most robust defense is crucial, and criminal defense attorney Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, has vast experience successfully guiding cases like yours toward optimal outcomes. We are on your side, so please do not hesitate to contact us online or call us at 254-501-4040 for more information today.

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