By Morley Swingle

Businesses and merchants are often confronted with the question of how much force they may use to detain or arrest shoplifters or other thieves who have committed crimes at the business. Since the question of how the merchant should react can arise in a split second and since the actions the merchant takes can have long-lasting consequences, the employees of the business should try to plan in advance how they will handle these situations.

Missouri law (Section 537.125) provides protection in the form of immunity from civil suits to merchants who detain shoplifters. As long as the merchant has "reasonable grounds or probable cause" to believe that a person has committed or is committing a theft from the store, the merchant may detain such person in a "reasonable manner and for a reasonable length of time for the purpose of investigating whether there has been a wrongful taking of such merchandise or money."

"Probable cause" is a well-known legal concept. Probable cause to arrest exists where the facts and circumstances within the arresting officers' knowledge are sufficient to warrant a prudent person in believing that the suspect has committed or is committing an offense.

What constitutes "reasonable grounds or probable cause" in the shoplifting context?

2. Other customer reporting to the store employee that he saw the suspect concealing merchandise could amount to probable cause, and justifies a detention of the suspect. But, if the information turns out to be incorrect and an innocent person is detained, the merchant could be civilly liable if his actions were not reasonable. Thus, the store employee should always try to get the name of any person who is claiming to have witnessed a theft. You may need them in court later for your own protection.

3. The merchant does not need to let the suspect get out of the store in order for probable cause to exist. The act of concealing unpurchased merchandise provides probable cause. Thus, a stop may be made in the store or outside the store. The case will be somewhat stronger and easier to prosecute, though, if the suspect leaves the store without paying for the concealed items.

4. Other customer says the suspect is "acting suspicious." This vague report would not, all by itself, amount to reasonable grounds to detain. The store employee should use this tip as a starting point for further investigation.

What if the suspect tries to flee or attacks the merchant who is attempting to detain him? How much force may the merchant use when detaining a thief?

The key word, once again, is reasonable. The shoplifter detention statute (537.125) points out that the merchant may detain the suspect in a "reasonable manner" for a "reasonable length of time."

Another statute (563.041) provides that a person may use "physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be the commission or attempted commission by such person of stealing" or property damage. Deadly force, however, may not be used merely to protect property from being stolen or damaged. The use of deadly force will be discussed in following paragraphs.

The citizen's arrest statute (Section 563.051) applies to shoplifting and stealing cases. It states that a person acting on his own account may use physical force to effect arrest or prevent escape only when and to the extent such is immediately necessary to effect the arrest or to prevent escape from custody of a person whom he reasonably believes to have committed a crime and who in fact has committed such crime. Deadly force is not usually going to be justified by a person making a citizen's arrest.

Again, the word reasonable appears. The merchant should always use the minimum amount of force necessary to detain the suspect. Minimize! Minimize! Minimize!

One significant difference between a police officer making an arrest and a private citizen making an arrest occurs if it turns out the person was innocent. An officer has immunity for using a reasonable amount of force in making an arrest he reasonably believes is lawful. If it turns out that the person was innocent, the officer still has immunity for using the force. A private citizen, however, may use physical force to arrest only when he reasonably believes the suspect committed a crime and the person had in fact committed such crime. Thus, if it turns out the suspect was innocent, the private citizen will be civilly liable for the force used.

An officer or citizen making an arrest may use deadly force to prevent the escape of a fleeing felon only when he has probable cause to believe that the suspect poses a threat of death or serious physical harm to the officer (citizen) or to others. The United States Supreme Court made this ruling in Tennessee v. Garner, 471 U.S. 1 (1985).

In Tennessee v. Garner, police responded to a burglary call at night. When they arrived, a woman on her porch pointed to a neighbor's house and reported hearing breaking glass. Moments later, the burglar was seen fleeing. The officer ordered the burglar to stop, but he didn't. The burglar got to a fence and began climbing. The officer fired one shot, hitting the suspect in the head and killing him. Stolen property was found in the suspect's pockets. The United States Supreme Court ruled that the Tennessee statute allowing officers to use deadly force on any fleeing felon was unconstitutional and that absent probable cause to think this burglar posed a threat of death to the officer or to anyone else it was improper to shoot him.

The Supreme Court pointed out that in the old days, under English Common Law, it was proper to use deadly force to arrest for any felony because most felonies were punishable by the death penalty. The logic was simple: the horse thief will hang for the crime, anyway, so you might as well shoot him off the horse. Also, if the thief got away from the local law enforcement officers in the age prior to telegraphs, telephones, television, planes, trains and automobiles, the chances were good that he would never be caught. Nowadays, it is harder for the criminals to get away.

The Supreme Court made a value judgment and decided to limit the use of deadly force:

It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead . . .

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

471 U.S. at 11.

Similarly, Missouri's citizen's arrest statute (563.051) points out that a private person may use deadly force to effect an arrest only:

1. In self-defense; or

2. When he reasonably believes deadly force to be authorized under the circumstances and he is directed to do so by a law enforcement officer; or

3. When he reasonably believes the use of deadly force is immediately necessary to effect the arrest of a person who at that time and in his presence committed a murder or another class A felony (such as armed robbery, first degree assault, or forcible rape); or

4. When he reasonably believes the use of deadly force is immediately necessary to effect the arrest of a person who at that time and in his presence is attempting to escape by use of a deadly weapon.

Deadly force is lawful in self-defense according to Missouri statute (563.031) only when reasonably necessary to protect oneself against death, serious physical injury, rape, sodomy or kidnapping.

If a merchant uses excessive force in trying to make a citizen's arrest, he may face problems of two sorts.

A person, for example, who shot and killed an unarmed fleeing shoplifter would probably be successfully prosecuted for second degree murder.

A person who fired at a fleeing armed robber, missed the robber, but hit an innocent bystander, would probably be successfully sued civilly by the bystander or the bystander's next of kin. This is not an infrequent occurrence. Law journal articles have been written telling lawyers how to handle such lawsuits. See "Liability of Private Citizen or His Employer For Injury or Damage to Third Person Resulting From Firing of Shots at Fleeing Criminal," 29 A.L.R. 4th 144 (1984). The article includes cases where a person whose window was shot out by a merchant shooting at a fleeing felon successfully sued the shooter for the resulting emotional distress.

As a general rule, it would be better for local merchants to arm themselves with cameras instead of guns. When thieves have run out of the store and are getting into their get-away vehicle, it would be more useful for the merchant to photograph the thieves, the car, and its license plate, rather than firing a gun at the thieves or into the air. If a merchant is going to arm himself with a weapon, he should at least be familiar with the law that allows him only to fire the weapon if the person he is shooting at presents a threat of death or serious physical injury to him or to someone else.

* MISSOURI DETENTION OF SHOPLIFTER STATUTE

* MISSOURI CITIZEN’S ARREST STATUTE

* MISSOURI USE OF FORCE BY POLICE STATUTE

* MISSOURI SELF-DEFENSE STATUTE

* MISSOURI PROPERTY-DEFENSE STATUTE