I can personally attest to the abuse of the civil demand process featured in the Wall Street Journal this week.
A mother of three makes a Sunday afternoon trip to the local Big Box retail store. It’s her afternoon away from the hectic pace of caring for three kids ranging from 5 to 14 years old. She wanders aimlessly through the store inspecting items, selecting some and returning others to shelves before moving on. Like all persons entering a retail store, in the back of her mind, she knows there are cameras all over the store, but they are not a matter she is concerned about. Her mind is focused on one thing: relaxation.
She shops the store regularly and always uses the self-scan checkout aisle. Her purchase is moderate and includes items from various departments of the store. As she is scanning items, the bagger at the end of the conveyor belt is being less than careful with her produce; she is distracted. To further complicate matters, she can feel a migraine coming on. She calls her husband and asks him to come to pick her up due to impending nausea. As she pushes her cart out the sliding glass doors her world is turned upside down.
A man grabs her by the arms and orders her to accompany him. She pulls away frightened and stands her ground. The man identifies himself as a loss prevention officer for the Big Box Store and orders her to follow him or risk arrest by law enforcement. He says she has stolen items from the store. She pulls out her receipt and offers up her bag, but the man refuses her overture again demanding he follows her. Now a second man has arrived and the two of them gesture back into the store. They make clear leaving is not an option.
The woman is escorted into a tiny room with monitors, no windows and inadequate ventilation. Her captors interrogate her for nearly two hours. She repeatedly complains of her migraine. Her phone rings as her husband has arrived, but they refuse her access to the phone. Over and over again she is called a thief and each time she denies the allegation. She is accused of stealing a picture frame at first, but they find no frame on her person or in her bags. The men then review her receipt and find it contains no evidence of the purchase of blueberries yet she has blueberries in her bag. Blueberries worth $3.65. The men continue to berate her and pressure her to admit theft now of the blueberries. She offers to pay for them. She swears she scanned them and demands to see the video. Sure enough, the video demonstrates her scanning the blueberries, but they refuse to relent.
Because she refuses to admit a theft she didn’t commit and because she refuses to sign a contract promising to pay the store $60.00 in “restitution”, she is arrested and taken to the local jail. She is accused of theft. She hires counsel. The offer from an over-zealous prosecutor is a plea to the charge and go to jail. Her attorney demands to see the video of the incident. Even the loss prevention officer’s report acknowledges its existence. When pressed, the store claims the video is “lost”. Without the video, the prosecutor’s case is done and he dismisses begrudgingly.
After the criminal case is dismissed, the woman receives a letter from a law firm in Florida. The letter demands the woman pay the big box store $300.00 or risk being sued for that and more. The letter also threatens arrest by law enforcement. The woman goes back to her attorney. Her attorney calls the firm and they threaten suit. A counterclaim is threatened and eventually, the firm backs down.
The woman has had her first (and hopefully only) experience with a “civil demand”. Ohio Revised Code 2307.61 permits recovery of damages for retail stores regardless of criminal prosecution. Frequently, the statue is used by loss prevention officers to coerce confessions out of unsuspecting victims (“if you sign this paper and admit you stole it we’ll just make you pay $50 and we won’t call the police”) and those coerced confessions are later used to coerce guilty pleas to theft offenses in criminal court.
The reality is the Big Box stores have little to no interest in pursuing a claim against a citizen for less than $1,000.00. They realize they are unlikely to collect the money and, in many cases, the loss prevention officer engaged in the illegal seizure of the alleged shoplifter, so the store is subject to civil liability as well. These civil demands are no more than legalized extortion.
If you have been accused of shoplifting, you have the right to an attorney. Anyone can walk into a store and accidentally forget to scan an item. Absentmindedness is not a crime. The days of store managers reviewing these incidents on a case by case basis are over. Loss prevention officers are generally peace officer academy dropouts with a chip on their shoulders. A loss prevention officer will not read your rights to you, but they will use your statements against you. If you are approached by loss prevention, demand an attorney and make no statement other than to demand to see video evidence of the alleged theft. Then, call an experienced criminal defense attorney like those at The Law Office of Brian Jones. We have handled hundreds of allegations of shoplifting and know how to force the Big Box stores to prove their allegations.