Shoplifting is a form of larceny, a taking and carrying away of the property of another with fraudulent intent—traditionally, intent permanently to deprive the true owner thereof. Since the goods taken are items held for sale, the intent to deprive involves an intent to obtain the goods without paying for them or without paying the full price, for example, by changing the marked price. As a form of larceny under traditional American statutes, shoplifting is a misdemeanor or a felony depending on the value of the property taken. In most cases shoplifting will be a misdemeanor, since American statutes make larceny a felony only if property of substantial value is taken. In a few states, all shoplifting offenses are felonies (Note, 1971, p. 866).
Application of the law
The application of the law of larceny to shoplifting requires proof of wrongful taking. In order to prove that the taking was with fraudulent intent, must store personnel wait until the subject has left the store without paying for the goods, or is concealment of the goods or failure to pay at the place where the goods would normally be paid for sufficient? The problems of proof are compounded by the risks to merchants who act on unfounded suspicion. Under the law of many American jurisdictions, even an honest attempt to arrest on reasonable grounds may be wrongful if no misdemeanor was in fact committed by the person arrested. A customer wrongfully accused or unlawfully detained or arrested may have a legal claim to compensation for slander, false arrest, or false imprisonment. Additionally, more and more people are becoming (rightly) concerned about the injustices of "racial profiling" in shoplifting, where store employees use race as a primary heuristic for suspicion (Austin). A substantial judgment against a store that has acted improperly poses great financial risks for the merchant (Keeton and Prosser).
Changes in substantive law
Most states have responded to the substantive and procedural problems by enacting special shoplifting statutes (Comment, 1973a, pp. 312–314). The substantive difficulty of proving fraudulent intent and the wrongfulness of the taking of possession is sometimes resolved by a provision making concealment of merchandise or similar acts criminal. Thus, the New Jersey code of criminal procedure (N.J. Stat. Ann. tit. 2C: 20–11 (1999)) defines shoplifting to include purposely concealing merchandise offered for sale with the intention of depriving the merchant of such merchandise without paying for it. The New Jersey code also defines other essentially preparatory acts as shoplifting when done with the requisite intent: altering or removing any label or price tag, or transferring merchandise from the container in which it is displayed to any other container. Such conduct indicates an intent to deprive and constitutes an exercise of wrongful dominion over the merchant's property even though the taker has not yet left the merchant's premises or the area in which it would be appropriate to pay for the goods. Indeed, the statutes of a number of states recognize a presumption of intent to deprive from concealment of merchandise.
Perhaps more significant than the changes in the substantive law of theft are the procedural provisions authorizing merchants and their employees to detain suspected shoplifters. These statutes, such as that in Illinois (720 ILCS 5/16A-5, A-6 (1999)) take the form of specific provisions authorizing detention on reasonable grounds and providing merchants and their employees immunity from civil liability to a person so detained. Some states permit searches of a suspected shoplifter. The Iowa statute requires, however, that unless made with the permission of the suspect, the search be made under the direction of a peace officer (Iowa Code Ann. § 808.12 (1999)).
In addition to authorizing detention of suspected shoplifters, the statutes usually provide immunity from civil liability from a person so detained, either in general terms or with reference to such specific actions as slander, false arrest, false imprisonment, and unlawful detention (Note, 1971, pp. 836–837). The statutory immunity will depend on the existence of reasonable cause to detain the suspect and the reasonableness of the detention under all the circumstances, including time, manner, and place of detention (Comment, 1973b, pp. 162–165). Worthy of specific note is Michigan's statute, which does not provide complete immunity to the merchant even for reasonable detentions (Mich. Compiled Laws Ann. 600.2917 (1999); Bonkowski v. Arlan's Department Store, 383 Mich. 90, 174 N.W.2d 765 (1970)). While the merchant will not be liable for damages "resulting from mental anguish" nor for "punitive, exemplary or aggravated damages," compensatory damages may be awarded. Thus, if the person detained can show actual injury or monetary loss resulting from the merchant's action in arresting or detaining him, he will be able to obtain compensation for such injury or loss.
Despite the proliferation of such statutes designed to deter shoplifting and provide protection to merchants, shoplifting continues to increase. The statutes have apparently not been fully effective in motivating merchants and their employees to initiate action against suspected shoplifters.
It seems likely that shoplifting will continue to be a substantial problem for merchants unless the public comes to recognize it as a crime of serious economic consequence. Perhaps the most effective means of dealing with the problem is a combination of approaches designed to make the public more aware of the costs of shoplifting and the likelihood of prosecution and conviction. Under such a multilevel approach the law will have a role to play, but so will efforts at public education and private measures by merchants to deter and detect retail theft.
See also Police: Private Police and Industrial Security; Theft.
Austin, Regina. "A Nation of Thieves: Securing Black People's Right to Shop and to Sell in White America." Utah Law Review (1994): 147–177.
Blankenburg, Erhard. "The Selectivity of Legal Sanctions: An Empirical Investigation of Shoplifting." Law and Society Review 11 (1976): 109–130.
Comment. "Shoplifting Law: Constitutional Ramifications of Merchant Detention Statutes." Hofstra Law Review 1 (1973a): 295–314.
Comment. "Shoplifting: Protection for Merchants in Wisconsin." Marquette Law Review 57 (1973b): 141–169.
Comment "Stopping and Questioning Suspected Shoplifters without Creating Civil Liability." Mississippi Law Journal 47 (1976): 260–277.
Huber, Barbara. "The Dilemma of Decriminalisation: Dealing with Shoplifting in West Germany." Criminal Law Review (1980): 621–627.
Keeton, W. Page, and Prosser, William L. Prosser and Keeton on Torts, 5th ed. St. Paul, Minn.: West, 1984.
Lundman, Richard. "Shoplifting and Police Referral: A Reexamination." Journal of Criminal Law and Criminology 69 (1978): 395–401.
Note. "The Merchant, the Shoplifter, and the Law." Minnesota Law Review 55 (1971): 825–869.
Note. "Merchants' Responses to Shoplifting: An Empirical Study." Stanford Law Review 28 (1976): 589–612.
FRANKEL, LIONEL. "Shoplifting." Encyclopedia of Crime and Justice. 2002. Encyclopedia.com. (May 30, 2016). http://www.encyclopedia.com/doc/1G2-3403000249.html
FRANKEL, LIONEL. "Shoplifting." Encyclopedia of Crime and Justice. 2002. Retrieved May 30, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3403000249.html
Shoplifting is the practice of stealing merchandise from retail establishments. Unfortunately, shoplifting is a serious and persistent problem for most retailers. The results of an annual National Retail Security Survey were reported in the St. Louis Post-Dispatch. They found that shoplifting cost retailers an estimated $10 billion annually and that 30 percent of these losses are the result of organized retail crime. These professional shoplifters are of concern to retailers because they tend to steal higher priced items or work from the inside, through employees. Nonetheless, the fact that 70 percent of shoplifting losses result from unorganized stealing means that attempts to stop these losses must focus on both professional as well as casual shoplifters. Among the most commonly stolen items are tobacco products, athletic shoes, brand-name clothing, small appliances, jewelry, leather goods, and food items.
The costs of shoplifting are many. Most obvious of these costs are the losses suffered by retailers. The inventory lost to shoplifters is only part of the retailer's costs. They also absorb the costs of increased security measures and higher legal expenses associated with prosecuting the thieves. But shoplifting also costs the community in which it takes place by affecting store location decision. Stores in high-theft areas will often relocate and in so doing they end up contributing to the deterioration of these troubled areas. Finally, shoplifting costs consumers in terms of higher priced goods. "The cost [of shoplifting] is very high," said business professor Ed Mazze in Providence Business News. "It cuts into the profit margin of the retailer and is paid for by the consumer. It requires stores to invest in more complex security devices."
The first step for retailers hoping to reduce their losses to shoplifting is to create a strong antitheft policy and publicize it among customers and employees alike. In preparing a policy, it is important to note that deterring theft is usually less expensive than apprehending and prosecuting thieves. In addition, retailers must be familiar with the shoplifting laws in their states, particularly in light of recent incidents involving the assault of alleged shoplifters by store security guards. Some states require individuals to exit a store before they can be accused of shoplifting, for example. Experts suggest that small business owners consult with local police or their insurance company to obtain assistance in setting up an antitheft program.
In order to address the problem of employee theft, retailers can use integrity questionnaires and conduct reference checks when hiring new employees. In addition, software solutions exist to help retailers detect point-of-sale errors and fraud. Another way that small retailers can help prevent shoplifting is to buy merchandise from established sources. In many cases, professional shoplifters steal from major retail chains and then resell the merchandise to small, local stores. A good rule of thumb is that if you are able to buy merchandise less expensively than a big chain, then it is probably stolen merchandise.
Retailers have a number of security measures available to them to help deter potential shoplifters. A good place to start is by training employees to recognize and report suspicious behavior. Visible security measures are another valuable way to deter shoplifters. Security gates in doorways, security cameras in obvious locations, and uniformed security guards patrolling the store are all strong deterrents. Many retailers choose to reduce the temptation to steal by putting items that have high theft rates behind counters or giving them electronic article surveillance (EAS) tags. These methods have drawbacks, however, because limiting customer access to items reduces sales, while applying antitheft tags to items is labor intensive.
A relatively new weapon in the fight against shoplifting is the use of source tags. A source tag is a type of EAS tag that is applied by the manufacturer—usually inside the container or packaging—rather than by the retailer. The usage of source tags is growing, particularly in the areas of health and beauty aids and over-the-counter drugs. Some source tags can be used for both security and inventory control. In the future, the technology might even be used for tracing stolen merchandise that is resold to other stores. "Source tagging helps us provide our valued customers with low-cost products and the perpetual inventory they are looking for," Tom Coughlin, CEO of Wal-Mart USA, told Hallie Forcinio in Pharmaceutical Technology. "It allows us to enhance sales and focus our resources on how we can better serve our customers."
Feldstein, Mary Jo. "Retailers Turn to Technology to Thwart Bogus Returns." St. Louis Post-Dispatch. 14 December 2005.
Forcinio, Hallie. "Electronic Article Surveillance—Source Tag to Smart Tag." Pharmaceutical Technology. October 2000.
Mavromatis, K. Alexa. "'Tis the Season—to Shoplift." Providence Business News. 27 November 2000.
"Protect High-Risk Items from Shoplifters." Chain Store Age Executive with Shopping Center Age. June 1998.
Seigel, Larry J. Criminology With Infotrac. Thomson Wadsworth, 2005.
Wilson, William. "Being Prepared Is the Best Strategy Against Shoplifters and Robbers." Discount Store News. 3 April 2000.
Hillstrom, Northern Lights
updated by Magee, ECDI
"Shoplifting." Encyclopedia of Small Business. 2007. Encyclopedia.com. (May 30, 2016). http://www.encyclopedia.com/doc/1G2-2687200536.html
"Shoplifting." Encyclopedia of Small Business. 2007. Retrieved May 30, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-2687200536.html
Theft of merchandise from a store or business establishment.
Although the crime of shoplifting may be prosecuted under general larceny statutes, most jurisdictions have established a specific category for shoplifting. Statutes vary widely, but generally the elements of shoplifting are (1) willfully taking possession of or concealing unpurchased goods that are offered for sale (2) with the intention of converting the merchandise to the taker's personal use without paying the purchase price. Possession or concealment of goods typically encompasses actions both on and outside the premises.
Concealment is generally understood in terms of common usage. Therefore, covering an object to keep it from sight constitutes concealment, as would other methods of hiding an object from a shop owner. A shopper's actions and demeanor in the store, her lack of money to pay for merchandise, and the placement of an object out of a retailer's direct view are all examples of circumstantial evidence that may establish intent.
Shoplifting costs businesses billions of dollars every year. To enable store owners to recoup some of their losses, most states have enacted civil recovery or civil demand statutes. These laws enable retailers to seek restitution from shoplifters. Criminal prosecution is not a prerequisite to a civil demand request. Typically, a representative of or attorney for a victimized business demands a statutorily set compensation in a letter to the offender. If an offender does not respond favorably to the civil demand letter, the retailer may bring an action in small claims court or another appropriate forum.
To forestall any allegations of coercion, many companies initiate civil recovery proceedings only after the shoplifter has been released from the store's custody. It is a criminal offense to threaten prosecution if a civil demand is not paid. Moreover, if a store accuses a customer of shoplifting and the individual is acquitted or if a store makes an erroneous detention, the store may face claims of false imprisonment, extortion, defamation, or intentional or negligent infliction of emotional distress.
Sennewald, Charles A., and John H. Christman. 1992. Shoplifting. Boston: Butterworth-Heinemann.
"Shoplifting." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (May 30, 2016). http://www.encyclopedia.com/doc/1G2-3437704037.html
"Shoplifting." West's Encyclopedia of American Law. 2005. Retrieved May 30, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437704037.html
shop·lift·ing / ˈshäpˌlifting/ • n. the criminal action of stealing goods from a shop while pretending to be a customer. DERIVATIVES: shop·lift v. shop·lift·er / -ˌliftər/ n.
"shoplifting." The Oxford Pocket Dictionary of Current English. 2009. Encyclopedia.com. (May 30, 2016). http://www.encyclopedia.com/doc/1O999-shoplifting.html
"shoplifting." The Oxford Pocket Dictionary of Current English. 2009. Retrieved May 30, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O999-shoplifting.html