TexasCHLforum.com

ScottDLS wrote:
Really? Where does it say in law that a LPO can assault me to effect a "detention" and I lose my justification for resistance up to and including "force". Shopkeepers civil privilege.....?? Law says I can even resist an arrest (by a real LEO) if more force is require used than necessary. Reasonable....? I think its not reasonable when I didn't steal anything.

One it's not assault if it's within the law. Two I don't get the whole "but if it's unnecessary" thing. I am saying that within the law a merchant can stop you. Like a police officer can stop or arrest you and you start talking about if a cop assaults you? What does one thing have to do with the other? I'm talking about what a store legally can do under very narrow circumstances and you go off and bring in situations that are not those circumstances to say I'm wrong? No I'm not, you guys just don't want to bother understanding what is being discussed. Look if you steal people can use force to stop you. Why you think a store can't goes into the realm of the bizarre as far as I'm concerned. The "shopkeepers privilege" law actually codifies that common law right. In addition courts in Texas have said that a merchant's right to stop someone is not based on the guilt of the person but the reasonability of the detention. Kind of like when a cop arrests you it doesn't matter if you're guilty but if they have PC. It can be reasonable to stop you even if you didn't steal anything and it has been repeated numerous times in this thread.

Cedar Park Dad wrote:

No no no.
This is a CHL board. The question arose as to the issue related to having a CC and an event occurs. I wanted to know what the right method of handling this would be. Frannkly other than you indeed making it sound like the local stop and rob has the power of Spetznatz you've not been helpful (other than making me want to go into a brick and mortar place even less than I do now).

So far I've only gotten what I came with - aka : demand an LEO be called.

So again, whats the best plan of action here?

I wasn't trying to be helpful I was trying to talk about the law. And thats absurd the problem is people aren't really reading what I writing. If someone is stealing from me I can stop them. What is Spetsnaz about that? If they fight while I'm doing that then I can use force. If I end up cuffing then, or otherwise restraining them I would be crazy not to remove weapons that I know about. All those things are basic common law rights. That is all we are discussing.

Cedar Park Dad wrote:

If I caught you shoplifting. You tried to flee than fought. If I won you would end up cuffed. Your gun would be removed. You would be arrested for theft and assault charges. You may face extra charges for doing so armed. And in Texas assault on a uniformed Security Officer, if the is who stops you, gets bumped up one degree from a class A misdemeanor to a felony charge. Oh and I did post some backing for the search thing my last post.

And what if they don't flee or fight, but demand an actual LEO be called?

I doubt there is a lot of case law about CHLs and shoplifting. Generally speaking absent violence there should never be any cuffing. Technically the merchant doesn't have to wait for police to investigate but I have trouble seeing any circumstance where they would rather fight and disarm someone rather they just call the cops when someone is willing to stay there till the cops come. If they don't want to wait then theoretically they may be work it so they end up disarming you but then they are betting they can explain it to a court so the court thinks it's a good idea. Such a thing is possible but likely?
Who knows. There isn't any hard and fast rules just decisions that courts have made over the years. Different courts can make different calls as to what is reasonable. I don't think any of these possibilities are likely but I would hate for someone to make decisions based on bad info.

Cedar Park Dad wrote:

patterson wrote:Still don't see what the big deal is,if detained and your innocent it will soon come to light

The initial issue is specifically can they attempt to search you and take your weapon if you are a CHL.

Like there is some exemption because you are a CHL? Now as soon as they take your gun they assume a huge liability but under the right circumstances....

Cedar Park Dad wrote: Please show the statute that says they are allowed to search. You have not. Remember the law is not permissive, its restrictive. Absent an affirmative grant under the law the default is battery (or whatever the Texas version of that is called) plus other nifty charges like unlawful detention for any physical touching, threat of touching, search, and confiscation depending on the fact pattern.
Please show the statute that says they can handcuff you. So far you have not.
Please show the statute that says they are allowed the equivalent of a Terry search. So far you have not.


The "reality check" is if you try to cuff a CHL and then illegally search them and then illegally take their weapon, civilly its not going to go well for you. Criminally it may not go well for you either.

You are wrong. Detain is the language of the law allowing shopkeepers privilege. It has to have been posted a dozen times already. And this has to looked at in the context of the event. Merchant is acting within the law to stop someone to investigate theft. If that person does not resist then there is no justification to handcuff. If they resist then the merchant can use force . The amount of force depends on the amount of resistance but if there is enough resistance then they can cuff the suspect. Then there is the separate but parallel ability to perform a citizens arrest. Basicly if nothing else you have the old fallback use of force to prevent assault. If the individual is combative or violent one can use force to stop them and cuffs can be applied to restrain the suspect. I think you would be more likely to get hit by lightning, unless you routinely go around shoplifting stuff, than to have anything like this happen to you. But people seem to think that what they "think" somehow matters. It doesn't. If I caught you shoplifting. You tried to flee than fought. If I won you would end up cuffed. Your gun would be removed. You would be arrested for theft and assault charges. You may face extra charges for doing so armed. And in Texas assault on a uniformed Security Officer, if the is who stops you, gets bumped up one degree from a class A misdemeanor to a felony charge. Oh and I did post some backing for the search thing my last post.

Keith B wrote:

EEllis wrote:

Cedar Park Dad wrote:

EEllis wrote:

ralewis wrote:
Yes. I think a pat down crosses the line. I would strenuously object to a pat down or search and demand law enforcement be called. Seems that unless you see a badge, the approach ought to be to treat any physical contact as a possible assault and evaluate your options accordingly.

You would be sitting in cuffs and you think objecting to a pat down matters? The seizure of your person is much bigger that any issue with a search. They can lawfully do one and you think somehow the other would be off limits?

Yes again please show the criminal statute where a non LEO can search you.

What cause of action do you think you will have against them if they do search you? They are allowed to search for stolen items, that's the investigation part, but a weapons check would be different. Honestly tho all references I've made to searching were the equivalent to a Terry Search, which is a quick check for weapons only, after someone has been forcibly detained and cuffed. You're not arguing with the handcuffing part of it but a quick pat of your pockets after they cuffed you is crossing the line? What logic is that? What cause of action do you think you could purse if they did? Is there any court anywhere going to say ok to cuffing but must leave suspects gun in his holster? Reality check here!

I'm gonna step in here. A shop keeper has the right to detain you, and if you comply with the request, then that is fine. BUT, they cannot use physical force. If someone wants to walk on out, and a shop keeper physically places their hands on the person, then the customer would have very heavy grounds for an assault charge. The only way the store personnel might get away with a physical detention is if the suspect actually did steal an item and the prosecutor refuses to pursue charges against the shopkeeper or personnel. Even then, the person probably would be able to win a civil suit against the store.

That simply isn't backed up by law.

A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property.
privilege to investigate theft . tex. civ. prac. & rem. code § 124.001 (2009)

There is no privilege if a merchant were prohibited from any use of force. That would mean they couldn't put up an arm to prevent someone from leaving thus it requires the merchant to be able to use reasonable force.

Not to mention that one can always use force to prevent theft so.............

Oh and by the way separate from this issue. Those that wanted legal precedent for searches, well here you go.

when a store employee has probable cause to arrest a person for shoplifting, the employee may do so and make a “contemporaneous search” of the person and the objects within that person's control.   See Raiford v. The May Dep't Stores Co., 2 S.W.3d 527, 531 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Cedar Park Dad wrote:

EEllis wrote:

ralewis wrote:
Yes. I think a pat down crosses the line. I would strenuously object to a pat down or search and demand law enforcement be called. Seems that unless you see a badge, the approach ought to be to treat any physical contact as a possible assault and evaluate your options accordingly.

You would be sitting in cuffs and you think objecting to a pat down matters? The seizure of your person is much bigger that any issue with a search. They can lawfully do one and you think somehow the other would be off limits?

Yes again please show the criminal statute where a non LEO can search you.

What cause of action do you think you will have against them if they do search you? They are allowed to search for stolen items, that's the investigation part, but a weapons check would be different. Honestly tho all references I've made to searching were the equivalent to a Terry Search, which is a quick check for weapons only, after someone has been forcibly detained and cuffed. You're not arguing with the handcuffing part of it but a quick pat of your pockets after they cuffed you is crossing the line? What logic is that? What cause of action do you think you could purse if they did? Is there any court anywhere going to say ok to cuffing but must leave suspects gun in his holster? Reality check here!

Abraham wrote:Achtung!

These folks don't realize that Shop Keepers Privileges allow them to be detained/strip searched/interrogated/ and generally mistreated in any manner the shop keeper so desires or so we've been informed...oh, and it doesnt matter if they're innocent.

Innocence has nothing to do with what S.K.P. allows.

"Sieg heil!"

That is absurd and no where have I seen anyone say that but you.

ralewis wrote:
Yes. I think a pat down crosses the line. I would strenuously object to a pat down or search and demand law enforcement be called. Seems that unless you see a badge, the approach ought to be to treat any physical contact as a possible assault and evaluate your options accordingly.

You would be sitting in cuffs and you think objecting to a pat down matters? The seizure of your person is much bigger that any issue with a search. They can lawfully do one and you think somehow the other would be off limits? That make zero sense. Again if the store owner is acting within there is no legal justification for you to use force at all.

E.Marquez wrote:

Cedar Park Dad wrote:

EEllis wrote:

Cedar Park Dad wrote: So now you're claiming an LP can effect a search and attempt to disarm you. Ok no thats clearly battery on a person.

Do we really have to keep going over the same thing? No they can't just stop random people but they can stop you if they do so to prevent theft and their actions are "reasonable". There are some examples in the thread of what courts have found reasonable. One was a guy going into HEB with a bag unseen by security. He then left with the bag he came in with and set off the inventory control alarm. He was stopped and held while the store investigated. They found that he didn't have anything of the stores and let him go. He sued and had his case dismissed because his detention was found to be legal. You see that they stopped, held, and searched him right? Yep legal, at least in the correct circumstances.

Stopping is not searching. You do realize that right?

Nor is it disarming, assaulting or any of the other nonsense some keep dreaming up can, might, could happen to a citizen that is mistakenly stopped, and requests law enforcement be called.

Stopped yes, of course, and if stopped then Law enforcement is called (Id be the one calling), while "suspect" is "detained", LP is, will , should be satisfied at that point, job well done.
Then we have a few folks standing around glaring at each other or smiling and chatting..until LEO arrives, 90 sec later and depending on how the LP handled the situation, all walk away happy, or not.

Show me a single case where an innocent person (like one of us would be, you know the demographic group we have been talking about ) was mistakenly suspected of shop lifting, stopped by LP because they were "reasonably" sure that bulge under a shirt was store property, tackled, disarmed, searched against his will by LP, and the courts supported that under "Shop Keepers Privilege"

You're setting up a make believe scenario and saying if I can't find the exact same real case then my statements are incorrect. That isn't how it works. I think you have it right how you think it should go down but what if instead of staying someone tries to leave and resists or even attacks the employees? At that time a merchant can use force to stop someone. If they do and LP end up handcuffing someone, which does happen, then what? So far everything is nice and legal but somehow a pat down crosses some make believe line?

Cedar Park Dad wrote: So now you're claiming an LP can effect a search and attempt to disarm you. Ok no thats clearly battery on a person.

Do we really have to keep going over the same thing? No they can't just stop random people but they can stop you if they do so to prevent theft and their actions are "reasonable". There are some examples in the thread of what courts have found reasonable. One was a guy going into HEB with a bag unseen by security. He then left with the bag he came in with and set off the inventory control alarm. He was stopped and held while the store investigated. They found that he didn't have anything of the stores and let him go. He sued and had his case dismissed because his detention was found to be legal. You see that they stopped, held, and searched him right? Yep legal, at least in the correct circumstances.

treadlightly wrote:This kind of situation rattles me. I do not shoplift, as I'm sure can be said of virtually anyone interested in or currently holding a CHL (mine's in the works).

Bad things can happen with a little momentary lapse, though. Once I got to my car and realized the 24 pack of water on the bottom shelf of the grocery cart hadn't been scanned at the cash register. Of course, I skedaddled back in, explained my oversight, and paid for what I got.

What if I were carrying, and what if a loss guy had decided to make an example of me?

If he bumped into me he might find a perfectly concealed handgun. I would not want to hand a loaded gun to someone I didn't know. I'll comply with whatever a police officer requests, but even then there's a risk. Guns don't generally get into trouble when they stay in the leather.

For the loss prevention folks, I think the best is be polite and calm. If the situation doesn't resolve itself with a chuckle, call 911. If I'm being manhandled and can't use my own cell phone, I'd scream bloody murder for someone to call 911, and I'd try to protect my gun from potentially untrained hands without drawing it.

In matters of mere embarrassment and not fear of my life I would never suggest the use or threat of force. But what if I have a case of water I stupidly forgot to pay for, and some guy is coming after me with a baseball bat?

A terrible conundrum I hope never to face.

If they come at you with a bat before even talking to you it's obviously going to an unreasonable action and as such wouldn't have the protection of shopkeepers privilege. Heck to be reasonable they would almost have to ask you first, in my opinion anyway, to stop before they could use force. But to address your initial statement, legally speaking your concern has no legal bearing on what a merchant can legally do. Trying to MAKE someone comply when you are in a custodial situation is, in my opinion, a bad idea. Mind you putting cuffs on a person who stops and indicates that he will wait for the cops would be risky for an LP, security, merchant, what have you. I would be shocked if it happened without something else being involved. If it did happen and they cuffed you can you think of any way that it would be a good idea for whoever cuffed you to leave you sitting there with a gun? I mean if they did it illegally they should be screwed no matter what so lets just assume it was legal and they had good cause to restrain you. How could they do anything but disarm someone at that point in time? Not to do so would be negligent in my opinion.

E.Marquez wrote:

EEllis wrote:And just to prove it here is a link to a page listing a appeals case where a claim of false imprisonment was denied by the appeals court.
http://causeofactionelements.blogspot.c ... epers.html" onclick="window.open(this.href);return false;

Cruz and the other HEB employees had a reasonable basis for believing that [Plaitniff] was attempting to steal store merchandise. The shopkeeper's privilege does not require that the person detaining another confirm or refute the detainee's claims regarding the merchandise, nor does it prevent the suspected shoplifter from being held for a reasonable time in order to deliver him to the police. Resendez, 962 S.W.2d at 540; see also Tex. Civ. Prac. & Rem. Code Ann. § 124.001; Tex. Crim. Proc. Code Ann. art. 18.16 (granting to any person privilege to detain person suspected of theft and deliver them to peace officer).

So go tell the appeals court how they got it wrong. Me? I'm just telling people the legal precedent not what I "think" it should be.

No place in that court decision does it support what your poorly attempting to claim.

NEXT

What that shopkeepers privilege is about the reasonability of the action not guilt? Yes it does, right there in bold. Here is another case. http://www.swlearning.com/blaw/cases/re ... ntion.html" onclick="window.open(this.href);return false;

And just to prove it here is a link to a page listing a appeals case where a claim of false imprisonment was denied by the appeals court.
http://causeofactionelements.blogspot.c ... epers.html" onclick="window.open(this.href);return false;

Cruz and the other HEB employees had a reasonable basis for believing that [Plaitniff] was attempting to steal store merchandise. The shopkeeper's privilege does not require that the person detaining another confirm or refute the detainee's claims regarding the merchandise, nor does it prevent the suspected shoplifter from being held for a reasonable time in order to deliver him to the police. Resendez, 962 S.W.2d at 540; see also Tex. Civ. Prac. & Rem. Code Ann. § 124.001; Tex. Crim. Proc. Code Ann. art. 18.16 (granting to any person privilege to detain person suspected of theft and deliver them to peace officer).

So go tell the appeals court how they got it wrong. Me? I'm just telling people the legal precedent not what I "think" it should be.

And by the way in theory it would go both ways. If you are found to have taken something but the merchant over does it, the big case was a store catching someone and holding them without letting them have water, then they can be held liable even if you are guilty.