It’s hardly asking too much of law enforcement officers to understand and obey the laws they’re sworn to enforce. So, it’s with more than a little frustration and outrage that I report two incidents where police ignored the law and ordered shoppers to show their receipts before allowing them to leave Walmart stores.
Widespread and increasingly controversial, the practice of store employees checking customers’ receipts post-purchase is legal only if it’s voluntary. Merchants cannot detain someone suspected of shoplifting without meeting the necessarily high legal burden of probable cause or reasonable suspicion (depending on your state). Some customers find receipt checks and bag searches offensive and routinely decline the inspections.
On Saturday, a woman bought a microwave from Walmart Supercenter 605 in Savannah, Ga. and was prevented from leaving after she politely refused a store greeter’s request to check her receipt. Managers were summoned, and she asked repeatedly if she was suspected of shoplifting. They replied she wasn’t, but insisted that they see her receipt, as it’s store policy to verify all unbagged purchases.
The woman, who identified herself as Hayden on the Standuptowalmart.com message board, called police, informed them she was being detained illegally and asked for charges to be filed against the assistant managers who prevented her from leaving.
In direct defiance of Georgia law, police allegedly took the store’s side.
“The police said I was on private property and that I had to abide by their policy,” Hayden wrote.” I asked if I had to abide by their policies and be subject to assault and unlawful detention, even if it violated the law and the officer said yes.”
This private property notion is a red herring. The merchant’s privilege law in Georgia allows stores to detain customers if they have a “reasonable belief” that a theft has occurred. Admittedly, this language is much weaker and more permissive than most states’ shoplifting statutes, but as the managers emphatically denied that Hayden was suspected of stealing, it’s clear that they didn’t have legal authority to detain her.
Because of the high legal liability of a false arrest — mistakenly detaining a customer who hasn’t stolen — responsible loss-prevention experts advise stores to approach shoplifting suspects only if they’ve witnessed a theft or concealment of merchandise and have maintained continuous surveillance to ensure the would-be thief didn’t have a change of heart and replace the pilfered product.
In Berwyn, Ill., a town alderman was arrested and charged with disorderly conduct after he allegedly scuffled with an off-duty Chicago Police officer working as a Walmart security guard. Michael J. Phelan refused to hand the guard his receipt and tried to leave the store. Security guard Louis Jones identified himself as a cop, demanded to see the receipt and blocked Phelan’s exit.
Jones handcuffed Phelan and took him to the ground when he resisted, according to an account of the incident on the news Web site My Suburban Life.
Phelan insisted that store managers show him the posted policy informing customers that receipts would be checked. Employees declined to provide any written policies.
The alderman was scheduled to appear in court on the disorderly conduct charge Nov. 5, but the hearing was delayed because Walmart did not immediately provide surveillance video that Phelan requested. Phelan has hired an attorney and is confident his rights will be vindicated in court.
In their zeal to decline door checks, many customers mistakenly cite the Fourth Amendment’s protection from unreasonable search and seizure. The Fourth Amendment only applies to government officials, not private citizens — when a greeter or security guard detains you without cause, he’s doing so unlawfully, but he’s not violating your constitutional rights.
In this case, however, Jones broke the state law and the Fourth Amendment. By identifying himself as a cop and acting in the capacity of a sworn law enforcement officer — making an arrest — he stopped being a private citizen and took on the role of a government agent even though he was off-duty.
This case should be a slam-dunk for Phelan’s defense and a resounding reminder to insistent door guards and grabby greeters everywhere to keep their hands to themselves.
2 Comments
November 11, 2008 at 4:08 pm
Welcome to the police state. PAPERS PLEASE
November 12, 2008 at 4:23 pm
Wow, you’re really the go-to guy on this receipt check business. I’ve been reading up on it this morning, and thinking I should bone up a little on exactly what _Minnesota_ law says, before I go playing Retail Revolutionary too much more.
Nice work – and nice to see I’m not the only one who thinks there’s something Troubling about Americans automatically complying with this practice.