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June 22, 2010

Should we laud or lament self-help and shaming sentences for shoplifters?

Today's New York Times has this fascinating article, headlined "Stores’ Treatment of Shoplifters Tests Rights," about a kind of corporate punishment for shoplifters that has being imported to New York City from China.  The full article is a worth reading, and this start provides a window into all the interesting legal issues the piece raises:

The A & N Food Market on Main Street in Flushing, Queens, has an almost entirely Chinese clientele.  The inventory includes live eels, turtles and frogs, frozen duck tongue and canned congee.  These goods, like products sold in every neighborhood of the city, attract their share of shoplifters.  But A & N Food Market has an unusual way of dealing with the problem.

First, suspected shoplifters caught by the store’s security guards or staff members have their identification seized.  Then, they are photographed holding up the items they are accused of trying to steal.  Finally, workers at the store threaten to display the photographs to embarrass them, and to call the police — unless the accused thieves hand over money.

“We usually fine them $400,” said Tem Shieh, 60, the manager, who keeps track of customers on 30 video monitors in the store’s surveillance system.  “If they don’t have the money, then we usually hold their identification and give them a chance to go get it.”

The practice of catching suspected shoplifters and demanding payment is an import from China, several experts in retail loss prevention said, where there is a traditional slogan that some storekeepers post: “Steal one, fine 10.”  Whether this practice is legal in the United States is open to interpretation.

New York State law allows “shopkeepers’ privileges” that fall somewhere between the prerogatives of the police and a citizen’s arrest.  The law also details “civil recovery statutes,” by which retailers may use the threat of a civil lawsuit to recover substantial settlements for even minor thievery.  But threatening to report that someone has committed a crime can be considered a form of extortion.

Neither the Police Department nor the Queens district attorney’s office said any complaints about the practice had been received.  But its critics argue that the accused shoplifters are deprived of basic civil rights and the usual assurances in public legal proceedings, like the right to a lawyer and freedom from coercion, and are not being held by adequately trained security officials with proper oversight.

“If a store owner says he’ll call the police unless you pay up, that’s extortion, that’s illegal,” said Steven Wong, a community advocate in Chinatown, sitting in his office above a restaurant on Chatham Square.  “And putting up pictures in public, calling someone a thief who has never even been formally charged, that’s a violation of their civil rights.”

June 22, 2010 at 11:59 AM | Permalink

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“If a store owner says he’ll call the police unless you pay up, that’s extortion, that’s illegal”

They aren't restricting involvement of the police in the process, but rather allowing a civil penalty rather than a criminal one. If they said "Pay up or we'll break your knees." that'd be a different matter.

Posted by: NickS | Jun 22, 2010 12:46:14 PM

Do you want to eliminate shoplifting or do you want full employment for government workers?

This method works, and should apply to petty crimes and torts. For example, a worker pinches the bottom of a vile feminist at work. She should slap his insolent face, and be protected from prosecution herself. She should not be allowed to take down the innocent employer through ruinous, pretextual litigation. The real aim is lawyer plunder not to end bottom pinching, since litigation does not end it, a smart slap does.

The people objecting in this article are thievin' lawyer rent seekers.

If the shoplifter is being falsely accused, then shaming is unfair. The falsely accused should be able to cane the shop owner. He should be able to sue the shop owner for lost business. For example, the allegation causes a $40,000 legal bill before a licensing board, the shop owner should re-imburse the falsely accused. To effectively deter shoplifting and falsely allegations of shoplifting.

Posted by: Supremacy Claus | Jun 22, 2010 2:52:24 PM

Whoa, whoa, whoa. We have several issues in play here, most notably the deprivation of "due process." Not to mention the fact that the store would have incredible incentives to pursue such shakedowns, if they felt their bottom line was being threatened. As someone involved in sex offender issues from a legal and media standpoint, the arena of "naming and shaming" is our main issue. Such laws are only the start of other laws that are based more on emotional response than for rational, systematic process.

And to the poster who said "Pay up or we'll break your knees" not being ok, but "Pay us 10 times what you ("allegedly?") stole or we will shame you" is alright? The only difference is the type of extortion, but the process is exactly no different.

In addition, the criminal justice system ostensibly puts the offender on notice that future crimes will result in significantly greater penalties. But if offenders pay the 400 bucks or whatever to the store owner, then the offender effectively can go somewhere else to do his crime, without a dent on his record. I won't get into semantics, but stick with the generalities: Such crimes, if not curtailed from an official process such as prosecution and sentencing, sometimes escalates into other, more serious crimes with greater consequences.

Six of one, half a dozen of another perhaps, but all in all, I side with the Constitution on this issue.

Posted by: Eric Knight | Jun 22, 2010 5:57:59 PM

I do agree that the shaming aspect (hanging photographs, etc) is not a good idea and should be ended. I was thinking of more "Pay us a fine or we call the cops." Or they can handle it like the way speeding tickets in Montana were handled once upon a time. Call a cop, have them write a ticket. If you want to plead guilty, pay $100 immediate fine. If not, show up in court. If you've done this before, it becomes a criminal act.

Posted by: NickS | Jun 23, 2010 8:00:34 AM

Let's think this through: the store owner is not a government actor, so I'm not sure how due process applies. The shoplifter has been accused of both a crime and a tort (theft and conversion). There is certainly no requirement that an action be filed before settlement negotiations begin and there is no legal requirement that a civilian swear out a warrant for any offence he believes himself to be a victim. If the store owner puts up a picture alleging that the person portrayed committed a crime, that would be slander per se if it is a false allegation and the person is free to bring an action in the civil court to defend his name. I don't see a problem here.

Posted by: Ala JD | Jun 23, 2010 11:24:08 AM

Ala JD said,

"If the store owner puts up a picture alleging that the person portrayed committed a crime, that would be slander per se if it is a false allegation and the person is free to bring an action in the civil court to defend his name."

By definition, the allegation IS false UNLESS it is pursued through criminal complaint, and a civil complaint would easily win in most cases based on precedent. While vigilante justice is considered more emotionally satisfying to most people, it is just as proportionally vague, because it neglects the tools law enforcement has at its disposal to assist constitutional justice.

Look, I may be tempted to do what the shop owner is doing at certain times. That's feeling human. And I agree that stronger values need to be promoted at the family and community level to proactively prevent the mindset that allows for such crimes in the first place. But in general, a store has far more to lose than to gain by playing the "shaming" angle. Certainly, the spirit of the Constitution is thwarted in such instances.

Posted by: Eric Knight | Jun 23, 2010 12:51:18 PM

Ala JD has it right (roll tide!)--only exception I would take with his/her analysis is that the store isn't saying that the person "committed a crime," but rather than the person is a "thief." If the person in fact stole something, he is a thief regardless of whether he is charged or not--that is not slander. And because the store is private, it is not subject to constitutional strictures (except, of course, for the prohibition of slavery or indentured servitude).

Any possibility of "shakedowns" during hard times, in my opinion, is practically nonexistent. If people are subject to intentional "shakedowns" to make an easy buck, they will not only be able to sue, but get punitives with it--likely putting the store out of business if not through damages, then through reputation.

Posted by: Res ipsa | Jun 23, 2010 5:33:09 PM

It is also human to protect one's economic interest in the form of lazy government sinecures for lawyers. The conflict of interest invalidates all masking lawyer arguments about Constitution, rule of law. Lawyers making these arguments are just thieves and bunko artists. The lawyers need to get shopkeepers to make those arguments against interest.

It is a matter of degree. Can we handle our own colds, or should we hire a pulmonary specialist examine and handle every sniffle? The medical system would collapse from this overuse. Worse, the people on a respirator who do require a specialist could not get one. If the infraction or crime has a low level of damage, it has to be handled by the public in self-help. If pulmonary specialists argued that only they should handle the common cold, they would be recognized and lambasted for their self-dealing, rent seeking and and coercive methods.

Posted by: Supremacy Claus | Jun 23, 2010 5:33:42 PM

In our location a similar practice is being done in a few stores, it is quite effective, the pictures shown will make would be shoplifters think twice before committing a crime. I never heard any issues about this practice as being illegal or against one's rights. It has been practiced for several years already. I am even considering it for my store, along with my loss prevention devices from brackley-industries. BTW I am a store owner.

Posted by: James | Jun 28, 2010 6:07:22 PM

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