Keywords

extortion; false arrest; false imprisonment; loss prevention; retail security; verdict

What happened?

A customer, accompanied by her two young children, opened a bag of candy, store merchandise, to pacify her children during a lengthy delay while a sales associate attempted to locate an item in the stock area. When the purchase of the big-ticket item was concluded, the sales associate assisted the customer by pushing the item out of the store in a shopping cart. Once outside, the customer was detained for the theft of the candy by a loss prevention (security) agent, escorted back into the store, and, in the office, was obliged to sign an admission of theft before she could leave.

Who was being sued, and why?

Major Stores, Inc., its officers, store management, and loss prevention agents were sued for false arrest, false imprisonment, and extortion.

Who was involved?

Where did it happen?

Major Stores, Inc. is a chain of discount stores with a front-end checkout configuration, similar to check stands in a supermarket. Three departments—electronics, jewelry, and the pharmacy—have their own cash registers. This store was located in a suburban neighborhood of a major metropolitan area.

How did it happen?

Joelle Crane picked up both children at their daycare center and decided to make a quick stop at the store to purchase her husband a portable television set for Father’s Day. She had seen the ad and the price was compelling. The sales associate, Bob Burkhart, said to her, “You’re fortunate, madam, this is the last set we have. It was on display, so I’ll have to get the original carton and accessories … it’ll only be a couple minutes.”

“Thank you,” she said, as she looked over at the two toddlers who now sat happily on the floor. “Oh, no, no, babies … the floor’s dirty. Don’t sit there. Mommy will be done in just a couple minutes and we’ll go home.”

Tina started to cry, “I want to go now.”

“Me, too, mommy. I don’t like it here and I’m hungry,” said her brother.

The mother gave a wan smile, “In a minute, the man will bring us daddy’s present and we’ll go home. Don’t you want me to get daddy a present?”

“Uh- huh,” they both chimed in.

“But I’m hungry,” repeated Danny, “and I want to go home.”

“Me, too,” echoed Tina, who intentionally plopped back down on the floor and started to cry softly.

Bob came back to the counter and said, “I’m so sorry, I can’t find the power pack to the set. Please bear with me, and I’ll find it.”

“Please!” pleaded Joelle, now concerned that the children were becoming overtired and the delay was starting to wear on them. Danny started whimpering and the two couldn’t be quieted or consoled.

Joelle saw a display of packaged candy hanging on a rack across the aisle and thought such a treat might pacify the children until she could conclude her transaction. I’ll just take the candy and pay for it when I pay for the television, she thought. She removed the package of candy, priced at 79 cents, and the children calmed down with the treat.

Bob reappeared, asked for more time, sounding quite frustrated with his inability to locate the battery, and again disappeared. After more delays Bob finally presented the complete boxed set and, even though almost all sales are made at the checkout stands, major purchases such as this are transacted in this big-ticket department to accommodate the customer.

Bob recorded the sale, but didn’t know about or include the 79-cent candy package. By that time, Joelle had forgotten about the candy and was pleasantly surprised to hear she didn’t have to stand in line at the cashier stations at the front of the store. Upon completing the sale the Bob said, “Thank you so much for your patience, Mrs. Crane. Please allow me to carry your purchase to your car.”

He placed the carton in the shopping cart, along with both children. They bypassed the checkout stands and passed by the store’s door greeter. Not far from the door, much to Bob’s surprise and certainly to the agitation of Joelle, Harry Glickman stopped them and, after identifying himself as an agent of the loss prevention department, asked Joelle, “Didn’t you forget to pay for something?”

“I don’t think so,” she answered, puzzled by the question.

“Does the word ‘candy’ ring a bell?”

She looked dazed, then spoke, “Oh my, yes. I’m sorry. I completely forgot about the candy. I’m so sorry.”

“Well, we’ll give you a chance to fix that, if you’ll simply follow me please,” and they all returned to the store, pushing the basket. They passed the checkout area where Joelle could pay for the candy and continued, much to her distress, because the children were starting to become restless again. They reached the rear of the store and entered into the security office.

“Why do I have to pay here,” she asked, “instead of at the registers in front?”

Ignoring her question, Harry asked for her identification. “Why do you want my identification for me to pay for the candy?” she asked, mystified by the events. Harry held out his hand, expecting the identification. Joelle opened her purse and placed her driver’s license in his hand, mostly out of wanting to expedite this matter as quickly as possible.

“Mrs. Crane,” commenced Harry, “all I require from you is your signature on this form, admitting the theft, and we’ll let you go on your way.”

“Theft?” she gasped. “What theft?”

“Theft of the candy,” replied Harry calmly. “We call it theft when you eat our merchandise and don’t pay for it. What do you call it?”

“I call it a mistake, that’s what I call it, and I take great exception, sir, to you suggesting I stole anything. I’m not signing any form that states I stole anything. I want to pay for the candy and leave immediately. My children are tired, I’m tired, and I’m leaving. Where do I pay?”

Harry was not moved, “Mrs. Crane, you don’t understand. You either admit you failed to pay for the merchandise or I’ll have no choice but to call the police.”

“This is outrageous! Let me use your phone to call my husband.”

“You may not call anyone. Either you sign this admission or I must call the police. And let me point out, Mrs. Crane, if you force me to call the police, they’ll have to take your children to the juvenile unit for their protection and safekeeping.”

Mrs. Crane broke into tears, and, upon seeing how upset their mother was, the children also started crying.

“My God, what’s this all about over some candy?” She turned to Bob, who was stunned by the events unfolding before him, but was speechless.

“This can’t be. I can’t sign something that isn’t true. I didn’t try to steal anything. Please, let me call my husband.”

Harry refused the request again, and, in the clamor, crying, and near-hysteria, Joelle signed the form so she could leave with her children.

Prior to the confrontation outside the store, Greta Voorhees, a relief cashier, had noticed the well-groomed woman with her two little children in the appliance section on her way to the employees’ lounge. She even thought to herself how hard it is to shop with such little children. She should have those tikes in daycare, if you ask me, she thought to herself. After visiting with coworkers and polishing off a soda, she returned to the front, and there was the same customer. Now the kids were crying. Yeah, see, she confirmed to herself. Then, to her surprise, she saw the woman walk over to a candy display fixture, remove a bag of candy, open it, and give each child some of the candy. Bet she forgets to pay for that candy, she thought, and then, of all people, there was the loss prevention agent, Harry, coming around the corner.

“Harry,” she said, “quick, let me show you a lady who has our candy in her hand that she just took off the rack.”

Sure enough, Harry could see what Greta was reporting. “How do I know she didn’t pay for it?” he asked.

Greta responded, “Man, I watched her. She walked right to the fixture and took it. How could she pay back there?”

That question sounded reasonable to Harry.

“Watch her,” Greta said. “I’ll bet you she doesn’t pay for it.”

Harry took up the challenge, deciding to maintain constant surveillance to see if the customer was going to pay for the candy or not. A short time later the customer dropped the now-empty cellophane candy bag into a trash container, and Harry recovered it as evidence.

Only big-ticket items could be recorded at the terminal in the electronics department, so Harry knew the lady had to go to a front checkout stand to pay for the candy. She didn’t; instead, she and the sales associate bypassed that area as they left the store. This wasn’t a risky or complicated matter. The customer admitted outside she hadn’t paid for the candy; that’s simple theft. All he had to do to satisfy company policy was to obtain her written admission, which released the store from any liability, and she could leave. To his amazement, the customer wouldn’t admit to the language on the preprinted form that read: “… removed the merchandise from the store without paying for it.”

He shook his head, “Good grief, the merchandise was in her children’s stomachs. What was so wrong with the language in the preprinted form? Clearly our merchandise is in the kids’ stomachs and it left the store without being paid for.”

All he wanted to do was get the release so he could release them. He ignored, forgot, or was never trained in the use of discretion and reasonable good judgment that can be exercised in extraordinary circumstances.

Assessment of security policies and procedures

The store’s basic policy for detaining a customer for shoplifting stipulated the agent was to personally witness the theft and that all customers were to be referred to the police. If there was any compelling reason for not calling the police, such as one’s health or age, the accused shoplifter could be released if he or she signed a pre-printed admission form.

Harry didn’t understand this policy, nor was he properly and adequately trained. He violated Major Stores’ detention policy in a number of ways, starting by taking the word of another employee rather than witnessing the “theft” himself. Properly-trained retail loss prevention agents are taught not to detain on someone else’s word; professional agents must actually witness the theft before taking action. Indeed, most “bad stops” are based on the word of a third party. There’s an old adage in retail loss prevention and security, “If you didn’t see it, it didn’t happen.”

Store policy regarding the disposition of shoplifters was in keeping with industry-wide practice—that is, referring detainees to the police or, under certain circumstances, releasing shoplifters after obtaining an “admission and release” form. It’s only logical that if you detain a person for shoplifting and he or she admits it, the store has no liability. In this case, Harry had an admission of guilt, but a refusal to accept the language on the admission form. Policy didn’t address these circumstances, and the company failed to give Harry guidance on dealing with this foreseeable set of circumstances.

My assessment

My assessment, summed-up in both my deposition testimony and testimony from the witness stand during trial, was as follows:

Store personnel had every right to stop this customer and ask her to return to the store to pay for the candy. If the store felt some form of release was necessary, then a simple handwritten statement stating she inadvertently forgotten to pay would have been sufficient. She could have paid and that would have concluded the incident. If she still refused to even sign a brief statement, the receipt generated by a cash register (if allowed to pay) would be a form of documentation and that, coupled with a statement from the sales associate who witnessed all this, would have sufficed.

This loss prevention agent didn’t handle the matter in an appropriate or acceptable fashion. His threat to have the customer jailed and have her children taken from her if she refused to sign an admission of theft was clearly a form of extortion. Security personnel cannot, and never should, make any promises or threats in obtaining admissions or any other form of cooperation from a person accused of theft.

The verdict

I was later informed the jury was outraged over the agent’s threat to have Mrs. Crane’s children taken from their mother over the candy, which she didn’t take with criminal intent. They saw that as wholly unreasonable and mean-spirited. They considered the agent’s behavior extortion and punished the store with a whopping award heard throughout the retail industry.

This was yet another case in my long career where a store’s security or loss prevention agent’s egregious treatment of a customer accused of shoplifting outweighed the serious issue of theft from a store.

This very case was one of several which prompted me to write the book Shoplifters vs. Retailers… The Rights of Both.*