Article by Julieta Chiquillo, Dallas County Reporter, published on DallasNews.com on 11/30/2018
After he and a friend were recently wrongly accused of shoplifting at a Frisco mall, Ro Lockett shared his frustration on camera.
“This is how it happens in America, people,” said Lockett, who is black.
The incident has raised eyebrows about the employee’s behavior; Lockett has alleged the sports goods store employee singled him out because he’s black. (The store hasn’t responded to that allegation).
But the laws in some states — Texas included — allow store workers to detain and search customers based on “reasonable” suspicions of shoplifting, which is a lower bar than what is required of police to make an arrest.
There’s even a term for it: shopkeeper’s privilege.
In Lockett’s case, a police officer had stopped him and his friend, who is white, after an employee at the sporting goods store Finish Line alleged they had filched $600 worth of items. The video showed the employee rifling through the men’s shopping bags as the fathers watch in handcuffs, flanked by police. The men were uncuffed minutes later after producing receipts.
What happened to Lockett and his friend “can happen to anybody,” said Dallas criminal defense lawyer James Whalen, who isn’t representing the detained men “It doesn’t take much for someone to accuse you.”
Here’s what you should know about what Texas stores can do to people they suspect of shoplifting.
- Texas law allows store employees to detain you if they “reasonably believe” you stole something.
What is “reasonable” is subjective, but Whalen said store employees’ suspicions should be based on more than just a hunch that a customer is acting strangely.
“They just have to be able to articulate, ‘I saw them take something off the shelf; I saw them conceal it, and based on that, I believe they were trying to steal something,'” said Whalen, who often represents people accused of theft and other crimes.
Brandon Kibart, Lockett’s friend who was also detained at Stonebriar Centre, told KXAS-TV (NBC5) that a Finish Line employee said some hoodies had gone missing after the men left the store.
The legal standard to detain a shoplifter is less strict than what is required from police to make an arrest, said Kevin Lawrence, the longtime executive director of the Texas Municipal Police Association.
“It’s obviously something less than ‘probable cause,’ and probable cause is very often described as just 51 percent, 60 percent, 70 percent certainty,” said Lawrence, a former police officer for the city of Seabrook near Houston.
Store workers usually call police, who then have to figure out on the spot whether the workers’ suspicions are reasonable, Lawrence said.
Lawrence said handcuffing suspects — as officers did with the two men at the Frisco mall — is a reasonable and prudent action by police while they investigate.
But Tailim Song, an attorney for the Frisco shoppers, said the handcuffs were not necessary because shoplifting isn’t a violent crime and his clients weren’t a flight risk. Lockett’s children were also at the scene.
Frisco police have said they’re reviewing the incident.
- Store employees can detain you for a “reasonable” amount of time.
Again, what is reasonable? The law doesn’t specify, though some courts have leaned on a 1998 decision from the Texas Supreme Court that said a 10-to-15-minute detention is acceptable. In that case, a Walmart security guard stopped a woman he suspected of stealing a bag of peanuts.
State law also gives store workers who detain shoplifting suspects permission to “investigate ownership of the property.”
Lawrence said “there’s nothing inappropriate” about an employee going through bags to see if something was in fact stolen. “The officer is not going to know,” he said.
And oftentimes, retail workers have already recovered lifted merchandise by the time police arrive, Lawrence added.
The Frisco shoppers’ attorneys said shopkeeper’s privilege doesn’t apply to the Finish Line incident because, in their view, store staff acted unreasonably. For one, an employee couldn’t have seen the men swiping merchandise since they didn’t steal anything, Song said.
Song also alleged an employee had followed his clients to several stores, and that a store manager had inspected the men’s shopping bags once before the video was recorded.
“Our clients were on the scene and observing this and feeling humiliated and distraught,” the attorney said.
- Retail stores generally advise workers to avoid force.
Texas law doesn’t require store workers to be right about their shoplifting suspicions — only that the way they detain the suspects must be done in a “reasonable manner.”
“With loss prevention officers, my experience has been usually they say, ‘Hey, you need to come with us,’ and most people will acquiesce, and they walk back to the loss prevention room and keep them there,” Whalen said. “Sometimes they can handcuff them [until police arrive].”
In New York — another state that has shopkeeper’s privilege — an appeals court sided with a Sears security guard who broke the leg of a man who stole a boom box. The guard tackled the thief from behind without warning.
The court ruled the shoplifter failed to testify that he would’ve heeded a warning to stop. The court also credited the guard for not using any more force once the shoplifter hit the ground.
“Given these circumstances, the non-deadly force used by the guard in apprehending a fleeing shoplifter was reasonable as a matter of law,” reads the 2001 ruling.
In 2007, Walmart paid a $750,000 settlement to the family of shoplifting suspect who suffocated as store employees held him down in the parking lot of a Houston-area store. His death was ruled a homicide, with methamphetamine toxicity listed as a contributing factor, the Houston Chronicle reported.
Companies increasingly have let suspects go if they resist detention, according to Loss Prevention Magazine, an industry publication.
“The most effective way to control the situation is to approach and speak with confidence and authority, and to remain professional and non-threatening,” Jac Brittain, the magazine’s editorial director, wrote in a recent article. “The goal is to have no physical contact with the shoplifter at all.”
- Experts say you should “comply now, complain later.”
Whalen and Lawrence — the attorney and the former cop — agreed that the best strategy for people accused of shoplifting is to cooperate with authorities, like the men in the Frisco incident.
“Assist them with the investigation,” Lawrence said. “Once they’re done, if you believe the officer or anybody else has wronged you, then go through the appropriate channels to file your complaint.”
In the Frisco case, Lockett and Kibart complied and posted the video to YouTube. The video stirred up outrage, and the Collin County chapter of the NAACP released a statement saying, “we are concerned that this is another case of ‘existing while black.'”
A spokeswoman for Finish Line didn’t return a call Wednesday seeking comment on the Frisco incident or the company’s loss prevention policies.
While the Frisco confrontation might spook some holiday shoppers, Lawrence said store workers usually don’t make faulty accusations.
“The retail workers, the loss prevention officers, overwhelmingly they’re getting it right,” he said.
Article originally published on DallasNews.com on 11/30/2018