As patrons it is difficult for many of us to imagine a shopping experience interrupted or made uncomfortable by the retailer following us around the store or even detaining us upon suspicion of some sort of illegal activity. However, this scenario happens occasionally when managers of retail establishments become frustrated with loss in their stores due to theft and begin to single out various sects of the community in an effort to curb the loss to the business. Georgia does provide some protection for retailers to conduct an investigation into the possible theft or other criminal activity with certain limitations.

O.C.G.A §51-7-60 entitled “Preclusion of recovery for detention or arrest of persons suspected of shoplifting under certain circumstances” provides a clear guideline for retailers to follow in order to avoid exposure to liability. Per that statute, the owner, operator, agent or employee of a mercantile establishment may detain, arrest or cause to be detained any person reasonably thought to be engaged in shoplifting without liability as long as:

  1. the person being detained conducted him or herself in such a manner as to cause a man of reasonable prudence to believe that the detained person was committing the offense
  2. the manner of the detention or arrest and the length of time during which such person was detained was reasonable under the circumstances.

The “reasonable person” is used throughout various legal disciplines to provide an objective standard to evaluate different circumstances on a case by case basis. To that end, there is no set time period or manner in which an individual may be detained which would automatically trigger a violation and result in a false arrest or false imprisonment action. Large retail stores such as Wal-Mart, Target, Sears, and Macy’s all have sophisticated monitoring systems in place and a security team whose sole responsibility is to prevent theft. Depending on the type of surveillance in place, loss prevention departments may have captured the crime on video and contacted authorities by the time the suspect has made it to the point of sale. This to can be a double-edge sword in that it may also exonerate an individual who has been improperly detained. Needless to say the quality of evidence gathered is big factor in determining the reasonableness of the detention.

Regardless of the evidence against a detained person or lack thereof, a merchant may still be liable if the manner of the detention is unreasonable. Examples of this includes a case where the manager of a store admitted that he made no attempt to verify the plaintiff’s explanation of his actions giving rise to the suspicion. In that case the jury determined that the manager acted unreasonably in allowing the plaintiff to remain handcuffed and immobilized in the back room of the store and initiating prosecution of the shoplifting charge for which he was never convicted. Colonial Stores v. Fishel, 160 Ga. App. 739 (1981) In Jackson v. KMart 851 F.Supp. 469 (1994) the court stated that the person being detained should not be subjected to gratuitous and unnecessary indignities during the course of a detention.

The determination in any false arrest or imprisonment case where a retailer or merchant is involved naturally hinges on whether there was a detention. A detention is defined as an arrest, confinement or detainment and need not consist of physical restraint. In fact, a detention may arise out of words, acts, gestures, or the like which induce a reasonable apprehension that force will be used if the plaintiff does not submit, and it is sufficient if they operate upon the will of the person threatened.

If you or someone you love has been subjected to false imprisonment or false arrest caused by the conduct of a loss prevention officer or security guard of a retailer or merchant, contact Douglasville Personal Injury Lawyers immediately for a free case evaluation. Our false arrest/ false imprisonment lawyers are available to assist clients throughout Douglasville, Atlanta, Lithia Springs, Hiram, Austell and Villa Rica.