词条 | Shopkeeper's privilege |
释义 |
LimitsThe privilege to detain, although recognized in many jurisdictions, is not as broad as a police officer's privilege to arrest.[2] If the shopkeeper exceeds the bounds of this privilege and makes an arrest, the lawfulness of his action will be determined by the jurisdiction's rules governing arrest by a private citizen. The shopkeeper's privilege is for the purpose of investigation only; if, after reasonable detention and investigation, the shopkeeper mistakenly concludes that the suspect is guilty and has him arrested, the shopkeeper may becomes liable for these acts just as he would have been had he committed them without undertaking a prior detention and investigation.[3] Statutes in many states have modified and in some cases broadened the common law privilege,[4] for example, by expressly permitting detention of the suspect until the police arrive.[5] In other cases, case precedent has provided shopkeepers with similar tools.[6] The practical effect of these extensions is to give the shopkeeper the same privilege as a police officer to make an arrest on reasonable grounds.[7] RationaleThis privilege has been justified by the practical need for some degree of protection for shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper would be faced with the dilemma of either allowing suspects to leave without challenge or acting upon his suspicion and risking a false arrest.[8] The privilege for the most part is to be able to return the stolen goods by determining ownership. The shopkeeper may not force a confession. The shopkeeper's privilege does not include the power of search.[9] Some courts, however, have expanded this original common law privilege to also include the detention of criminal trespassers: "[t]he detention and removal of a criminal trespasser is an essential power of any shopkeeper or other property owner[.]"[10] Requisite conditionsIn seeking to avail themself of the shopkeeper's privilege, the proprietor or agent thereof must ensure:
In cases where a shopkeeper fails to satisfy the aforementioned requisite conditions, he or she loses the privilege and may face liability under local criminal statutes and civil torts.[4] However, so long as these conditions are established, the shopkeeper is immune from liability for false arrest, battery, etc., even when it is discovered after the investigation that the person detained was innocent of any wrongdoing.[13] Statutory analogsThe common law shopkeeper's privilege has been superseded in most states by so-called shoplifting statutes, or merchant's statutes, that allow merchants, their employees, and their agents to detain suspected shoplifters for: the investigation of merchandise or property ownership, the recovery of unpurchased merchandise or property, and the summoning of a police officer.[14] See also
References1. ^See § 22, at 142, {{cite book|last1=Prosser|first1=William Lloyd|title=Prosser and Keeton on the law of torts|date=1984|publisher=West Publishing Co.|isbn=0314748806|edition=5|url=https://books.google.com/books?id=J-MpAQAAMAAJ|accessdate=6 November 2017}} 2. ^{{cite web|title=Cervantez v. J.C. Penney Co., 595 P.2d 975, 982 & n.5 (Cal. 1979)|url=https://scholar.google.com/scholar_case?case=9559415024528178754|website=Google Scholar|publisher=Google|accessdate=6 November 2017}} 3. ^{{cite journal|title=The Protection and Recapture of Merchandise from Shoplifters|journal=Northwestern University Law Review|date=1952|volume=47|page=90|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/illlr47&div=14&id=&page=|accessdate=6 November 2017}} 4. ^1 {{cite web|last1=Larson|first1=Aaron|title=False Imprisonment and Unlawful Detention|url=https://www.expertlaw.com/library/personal-injury-and-torts/false-imprisonment-and-unlawful-detention|website=ExpertLaw|accessdate=6 November 2017|date=12 August 2017}} 5. ^{{cite web|title=Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871, 876 (N.Y. 1972)|url=https://scholar.google.com/scholar_case?case=11995369245140909433|website=Google Scholar|publisher=Google|accessdate=6 November 2017}} 6. ^{{cite web|title=Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539 (Sup. Ct., Tex., 1998)|url=https://scholar.google.com/scholar_case?case=17159519265033714409|website=Google Scholar|publisher=Google|accessdate=6 November 2017}} 7. ^{{cite web|title=People v. Jones, 393 N.E.2d 443, 445 (N.Y. 1979)|url=https://scholar.google.com/scholar_case?case=12640126213220744237|website=Google Scholar|publisher=Google|accessdate=6 November 2017}}; {{cite web|title=State v. Hughes, 598 N.E.2d 916, 918 (Ohio C.P. 1992)|url=https://scholar.google.com/scholar_case?case=12141474160248748812|website=Google Scholar|publisher=Google|accessdate=6 November 2017}} 8. ^1 2 See § 120A {{cite book|title=Restatement (second) of Torts|date=1965|publisher=American Law Institute|isbn=0314012710|url=https://books.google.com/books?id=J642AQAAIAAJ|accessdate=6 November 2017}} 9. ^William L. Prosser, Proceedings of the 34th Annual Meeting of The American Law Institute, 1957 A.L.I. PROC. 283 (remarks of Mr. William L. Prosser, Reporter) 10. ^{{cite web|title=Durante v. Fairlane Town Ctr., No. 05-1113, 201 F. App'x 338, 342 (6th Cir. Oct. 18, 2006) (unpublished)|url=http://www.opn.ca6.uscourts.gov/opinions.pdf/06a0773n-06.pdf|website=United States Court of Appeals for the 6th Circuit|accessdate=6 November 2017}} 11. ^See § 101, 103, {{cite book|title=Restatement (second) of Torts|date=1965|publisher=American Law Institute|isbn=0314012710|url=https://books.google.com/books?id=J642AQAAIAAJ|accessdate=6 November 2017}} 12. ^{{cite web|title=Moffatt v. Buffums’, Inc., 69 P.2d 424 (Cal. Dist. Ct. App. 1937)|url=https://scholar.google.com/scholar_case?case=15536485097427307188|website=Google Scholar|publisher=Google|accessdate=6 November 2017}} 13. ^{{cite journal|last1=Christman|first1=Steven M.|last2=Mark|first2=Jillian M.|title=Guidelines on Dealing With Suspected Shoplifters|journal=New York Law Journal|date=19 May 2014|url=https://www.law.com/newyorklawjournal/almID/1202655685175/|accessdate=6 November 2017}} 14. ^Robert A. Brazener, Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 A.L.R. 3d 998 (1973) 4 : Retailing|Theft|Security|Tort law |
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