Mall security and right to physically detain you

[EEllis]

Thus my question. A lot has been said about "resisting" a store keeper's detention and searches and Mr Ellis has suggested that doing so, even if the proprietor was wrong would likely be criminal. If said store owner approaches under "reasonable" suspicion but hasn't said something to the effect of, "Sir, I need you to stop. We need to check your bags because of "X, Y Z" reason," and lays hands on you first or just impedes your exit, then would it not be reasonable for the person being "accosted" at this point to "reasonably" believe they are being harassed or otherwise threatened?

I can point to two incidents in my own life where it turned ugly quickly and the LP in one instance was injured. Came up behind me, said "Stop." and put his hand on my shoulder. Once he was down and I had control we got the cops involved and even after he explained why he approached me, I was asked if I wanted to prefer charges. I did not.

My understanding only of course but the legal question is simply if the "LP" is acting under authority of law or not. IF they are then there is no justification for use of force to resist them. Since the only restriction is reasonableness all you can go by is what you think a judge might decide. The fact of guilt in theory means nothing when considering if someones actions were reasonable. That being said you have what is supposed to happen and what actually occurs. If the actions a "LP" takes are legal than someones reactions however understandable shouldn't matter. Of course you could make the argument that your actions were justified because of your belief that you were assaulted and just trying to protect yourself. In that case if you were not stealing, because I bet the cops did check that out with you right, you might be successful in court but if you were found stealing I doubt that would pass. And then of course you have the difference between what the cop might think and what the court might do and what the law says. In very few cases is the law black and white. I remember years ago talking to an attorney who said most of his business wasn't did they "do" it or not, but what it was they did. Meaning facts were reasonable clear but what crime fit those facts was the big argument.

[screaminz2002]

I think the real point here is a stores loss prevention policy. No one is going to hire a private security guard who is going to physically detain you and hand cuff you over merchandise of almost any value. Everyone realizes this is not a money saving endeavor. If you are stopped there is a 100% chance you stole something that someone witnessed with 100% certainty. Still, even with this, the chances of someone jumping on your back are almost nil. I know of someone who did and was fired for the incident. He was the loss prevention at kmart and knew better. Even if convicted in today's world the pos would probably still win a civil suit over the ordeal. I would bet the stories you read of this happening do not reflect the policy of that store and the person was fired with any charges being dropped. I am to lazy to research this and I am sure someone can prove that wrong. I can guarantee that it's the exception and not the norm for your standard retail chain.

[Dragonfighter]

<SNIP>
I can point to two incidents in my own life where it turned ugly quickly and the LP in one instance was injured. Came up behind me, said "Stop." and put his hand on my shoulder. Once he was down and I had control we got the cops involved and even after he explained why he approached me, I was asked if I wanted to prefer charges. I did not.

<SNIP> In that case if you were not stealing, because I bet the cops did check that out with you right, you might be successful in court but if you were found stealing I doubt that would pass. And then of course you have the difference between what the cop might think and what the court might do and what the law says. In very few cases is the law black and white. I remember years ago talking to an attorney who said most of his business wasn't did they "do" it or not, but what it was they did. Meaning facts were reasonable clear but what crime fit those facts was the big argument.

Well, that kind of ties it up in a neat little bow, seems like what is legal from a "reasonableness" standard leans in favor of the retailer. In my case it was pretty clearly he didn't like my looks, big with heavy red beard and biking leathers (if he could see me now, LOL). He tried to convince the cops that he saw me put something in my pocket but could neither articulate the what or the where. The cops in turn asked me my name, looked at I.D. and made some crack about the security guy needing to pick his targets a little more carefully.

The irony is, if he had said something to me, I would have worked with him. I am a nice guy, until I'm not.

Thanks for fleshing that out for me.

[EEllis]

Well, that kind of ties it up in a neat little bow, seems like what is legal from a "reasonableness" standard leans in favor of the retailer. In my case it was pretty clearly he didn't like my looks, big with heavy red beard and biking leathers (if he could see me now, LOL). He tried to convince the cops that he saw me put something in my pocket but could neither articulate the what or the where. The cops in turn asked me my name, looked at I.D. and made some crack about the security guy needing to pick his targets a little more carefully.

The irony is, if he had said something to me, I would have worked with him. I am a nice guy, until I'm not.

Thanks for fleshing that out for me.

In the case you describe it would seem that it wasn't reasonable that the LP tried to stop you. He didn't know what you stole, where it was, doesn't sound like he had any other factor like a inventory alarm or anything else. He was just fishing. That is not reasonable under Texas law and thus a merchant receives no protection under the law. I would say that the law does lean towards the merchant giving them a bit more protection but it also give them enough rope to hang themselves. When wrong a merchant faces real and significant financial consequences. Also the cops are a major factor in the actions of security and LP types. You have the law and then you have what the cops are likely to do when they show up. The two are not always the same thing. There are cops and deps who are death on anyone but police handcuffing anyone for any reason and refuse to acknowledge that there exists such a thing as a citizens arrest. Others will allow security to arrest or detain for violations that they cannot legally arrest for. Trespass for example. Simple trespass is not a breach of the peace so it should not be a arrestable offence. You can remove someone but not seize them under Texas law. (This would be in a open area situation. If they jumped a fence or broke something to access an area then it's a different story) You will find that some departments have no problem with arresting people security grab for trespass and others or more likely to arrest the security officers. To make things worse it can vary between sheriff officers and other departments in the same county and even depending on the locations inside a jurisdiction or officers on a force. It's a complicated world and the law is sometimes something one finds after spending much time and money in court.

[Dragonfighter]

<SNIP>
It's a complicated world and the law is sometimes something one finds after spending much time and money in court.

I think I'm using this one.

[ScottDLS]

Do we have a legal cite? Of the amount of force that may be used to detain/arrest by a non-LEO and when it crosses into assault. And likewise when my resistance to such becomes a crime? Chapter & section please?

First off you can believe what you want but the demands that people cite chapter and verse to support a point come off a bit abrupt to me. I'm not trying to single you out ScottDSL as many people do so and personally I would take a "I would like/love/enjoy/hope/what have you/ to know the cite" better than a demand to produce which is so common.

The issue isn't is there some set amount of force where if you use more than a certain amount it crosses into assault. It crosses into assault when it becomes unreasonable and that is something that gets judged by a court. If a court believes that a store stopped someone "with authority of the law", in this case the shopkeeper's privilege, then there is zero justification for any use of force that can be considered criminal. There is no "resisting shopkeeper's privilege" or anything crazy like that but simply speaking there is no justification for any use of force against someone who's actions are legal. If a merchant uses to much force then they are no longer considered to be acting under "authority of law" because the texas code (Tex. Civ. Prac. & Rem. Code Ann. § 124.001) requires them to be reasonable and excessive force is unreasonable. So there is no hard and fast "line". If the merchant can convince a judge that stopping you was reasonable than any force you use can be considered criminal.

Well as you have said I don't see where it is a crime to resist "detention" under (Tex. Civ. Prac. & Rem. Code Ann. § 124.001). It only allows the shopkeeper to be "privileged" to detain me. If I am not, in fact, committing a felony, then they have no grounds to "arrest" me. Therefore, I see no obligation for me to assent to being detained. If I resist being detained, by walking away or breaking the grasp of a LPO, or refusing to put my hands together to be cuffed, I am hard pressed to see how that rises to assault.

If he uses a club or firearm to attempt to effect the detention, I will argue in court that it is "unreasonable" (i.e. deadly), hence unlawful force, and would react with same. For this I would rely on PC 9.31/9.32 as my justification. But alas, none of this shall ever occur because I have yet to hear of someone being forcibly detained for refusing a receipt check...

I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

[EEllis]

Well as you have said I don't see where it is a crime to resist "detention" under (Tex. Civ. Prac. & Rem. Code Ann. § 124.001). It only allows the shopkeeper to be "privileged" to detain me. If I am not, in fact, committing a felony, then they have no grounds to "arrest" me. Therefore, I see no obligation for me to assent to being detained. If I resist being detained, by walking away or breaking the grasp of a LPO, or refusing to put my hands together to be cuffed, I am hard pressed to see how that rises to assault.

Great then if they try to add another charge I'm sure you telling the DA, and spending 1500 on your attorney, will make all the difference.

If he uses a club or firearm to attempt to effect the detention, I will argue in court that it is "unreasonable" (i.e. deadly), hence unlawful force, and would react with same. For this I would rely on PC 9.31/9.32 as my justification. But alas, none of this shall ever occur because I have yet to hear of someone being forcibly detained for refusing a receipt check...

The discussions about the legality of receipt checks and the ability of merchants to detain are separate discussions on this thread. While failing to show receipts shouldn't be cause for a stop if there are other factors then showing a receipt could eliminate and doubt and without showing receipt then it would then be reasonable for the merchant to stop you. So you really think so LP guy is going to start beating you or threaten to shoot you because you passively resisted being stopped but it's moot because they wouldn't stop because of a receipt? Here's a clue, they wont be stopping you just for the receipt. It will because you came from a different part of the store, had packages or bags that were not standard, set off the inventory alarm, or other things like that. To you they were just asking for a receipt. To them they gave you a chance when they already had reason to stop you and you said "No Thank You".

I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

To bad the courts and several hundred years of common laws disagree.

[ScottDLS]

...
I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

To bad the courts and several hundred years of common laws disagree.[/quote]


You have yet to cite the law, court cases, or common law which excuse the forcible (criminal) detention by the shopkeeper. That's why I originally asked for the Texas PC cite... to which you raised the civil shopkeepers privilege. You then discuss other factors other than a receipt check which may justify a (civil) detention, but not an arrest. Still believe I have a 9.31/9.32 justification to resist a forcible detention with equal or appropriate force. My guess is it would end like for Dragonfighter... or more likely with me walking away.

LPO's don't have the LEO authority for a "Terry" stop/search, and the merchant privilege in Texas law appears civil, vice criminal, so I don't agree that it excludes the 9.31/9.32 defenses to resist a criminal assault. Also typically common law cannot contradict "black letter" law (i.e. written law) and court cases are only relevant to the extent that they are appellate interpretations of current applicable written or common law. This would seem to exclude the authority of "several hundred years...." of such, since Texas has only existed for 168 years or so.

Then again, a sitting Governor can get indicted for vetoing a bill... and a ham sandwich can get indicted by a criminal grand jury...for being a sandwich I guess. I'm also scared to death about the proverbial "ride" so I will in the future fall to my knees and meekly offer my receipt when questioned by Sam's LP

[Cedar Park Dad]

...
I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

To bad the courts and several hundred years of common laws disagree.

You have yet to cite the law, court cases, or common law which excuse the forcible (criminal) detention by the shopkeeper. That's why I originally asked for the Texas PC cite... to which you raised the civil shopkeepers privilege. You then discuss other factors other than a receipt check which may justify a (civil) detention, but not an arrest. Still believe I have a 9.31/9.32 justification to resist a forcible detention with equal or appropriate force. My guess is it would end like for Dragonfighter... or more likely with me walking away.

LPO's don't have the LEO authority for a "Terry" stop/search, and the merchant privilege in Texas law appears civil, vice criminal, so I don't agree that it excludes the 9.31/9.32 defenses to resist a criminal assault. Also typically common law cannot contradict "black letter" law (i.e. written law) and court cases are only relevant to the extent that they are appellate interpretations of current applicable written or common law. This would seem to exclude the authority of "several hundred years...." of such, since Texas has only existed for 168 years or so.

Then again, a sitting Governor can get indicted for vetoing a bill... and a ham sandwich can get indicted by a criminal grand jury...for being a sandwich I guess. I'm also scared to death about the proverbial "ride" so I will in the future fall to my knees and meekly offer my receipt when questioned by Sam's LP [/quote]

[EEllis]

...
I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

To bad the courts and several hundred years of common laws disagree.

You have yet to cite the law, court cases, or common law which excuse the forcible (criminal) detention by the shopkeeper. That's why I originally asked for the Texas PC cite... to which you raised the civil shopkeepers privilege. You then discuss other factors other than a receipt check which may justify a (civil) detention, but not an arrest. Still believe I have a 9.31/9.32 justification to resist a forcible detention with equal or appropriate force. My guess is it would end like for Dragonfighter... or more likely with me walking away.

LPO's don't have the LEO authority for a "Terry" stop/search, and the merchant privilege in Texas law appears civil, vice criminal, so I don't agree that it excludes the 9.31/9.32 defenses to resist a criminal assault. Also typically common law cannot contradict "black letter" law (i.e. written law) and court cases are only relevant to the extent that they are appellate interpretations of current applicable written or common law. This would seem to exclude the authority of "several hundred years...." of such, since Texas has only existed for 168 years or so.

Then again, a sitting Governor can get indicted for vetoing a bill... and a ham sandwich can get indicted by a criminal grand jury...for being a sandwich I guess. I'm also scared to death about the proverbial "ride" so I will in the future fall to my knees and meekly offer my receipt when questioned by Sam's LP

You're mixing issues up. The 124 civil directly relates to the criminality of a stop. I even discussed this exact point. If a merchant were to detain per 124.001 then they are acting "with authority of the law" and as such their actions are not criminal. Since their actions are not criminal you can't use then as a justification for use of force to resist them. I have posted cases, others have done so also. You don't believe then fine but you have been given the info. The Terry search, not stop, come after being detained and honestly how anyone can complain about that small weapons check for safety when the person would of been "seized" at that point is a bit confusing. As far as Dragon goes it appears that the LP wasn't operating under 124 so his stopping DF was illegal. If it were a legal stop then DF would have criminally assaulted the LP agent.

I'm not advocating, I'm not stating a preference, I'm basically just passing along what I think the law is in Texas on this issue. It's pretty clear cut to be honest.

[mrrooster2u]

Well if one hasn't stolen anything, I would refuse to hand my gun over to store security. I would insist on the police being called. If store security refused to call police and refused to allow me to call the police, then things could possibly get really ugly if they tried to swarm me. Hopefully they would allow for the police to be called and be satisfied with me waiting with them until the cops arrived.

[EEllis]

Well if one hasn't stolen anything, I would refuse to hand my gun over to store security. I would insist on the police being called. If store security refused to call police and refused to allow me to call the police, then things could possibly get really ugly if they tried to swarm me. Hopefully they would allow for the police to be called and be satisfied with me waiting with them until the cops arrived.

The fact of the theft is not significant to the legal right for the Merchant to detain you. It is if the actions are "reasonable" or not. Honestly people seem to be making up some pretty bizarre circumstance just to say "if they did this they I would ....". The only reason your gun would matter is if they already had to use force to stop and detain you. If in that case you decided to fight or god forbid use your gun then, unless the Merchants actions were totally unreasonable, you are in a jackpot. If they ask you to stop and wait for the cops and you do so then why and how would they even know you had a gun? You would wait for the cops and then they would take your gun while the situation is being resolved.

[ScottDLS]

...
I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

To bad the courts and several hundred years of common laws disagree.

You have yet to cite the law, court cases, or common law which excuse the forcible (criminal) detention by the shopkeeper. That's why I originally asked for the Texas PC cite... to which you raised the civil shopkeepers privilege. You then discuss other factors other than a receipt check which may justify a (civil) detention, but not an arrest. Still believe I have a 9.31/9.32 justification to resist a forcible detention with equal or appropriate force. My guess is it would end like for Dragonfighter... or more likely with me walking away.

LPO's don't have the LEO authority for a "Terry" stop/search, and the merchant privilege in Texas law appears civil, vice criminal, so I don't agree that it excludes the 9.31/9.32 defenses to resist a criminal assault. Also typically common law cannot contradict "black letter" law (i.e. written law) and court cases are only relevant to the extent that they are appellate interpretations of current applicable written or common law. This would seem to exclude the authority of "several hundred years...." of such, since Texas has only existed for 168 years or so.

Then again, a sitting Governor can get indicted for vetoing a bill... and a ham sandwich can get indicted by a criminal grand jury...for being a sandwich I guess. I'm also scared to death about the proverbial "ride" so I will in the future fall to my knees and meekly offer my receipt when questioned by Sam's LP

You're mixing issues up. The 124 civil directly relates to the criminality of a stop. I even discussed this exact point. If a merchant were to detain per 124.001 then they are acting "with authority of the law" and as such their actions are not criminal. Since their actions are not criminal you can't use then as a justification for use of force to resist them. I have posted cases, others have done so also. You don't believe then fine but you have been given the info. The Terry search, not stop, come after being detained and honestly how anyone can complain about that small weapons check for safety when the person would of been "seized" at that point is a bit confusing. As far as Dragon goes it appears that the LP wasn't operating under 124 so his stopping DF was illegal. If it were a legal stop then DF would have criminally assaulted the LP agent.

I'm not advocating, I'm not stating a preference, I'm basically just passing along what I think the law is in Texas on this issue. It's pretty clear cut to be honest.

You are missing my point. The 124.001 detention is "lawful" in the sense that I can't claim (use of force justification) against kidnapping or the (unlawful) detention as the crime.

However, I don't see the examples of the level of force that may be applied by the shopkeeper to "detain" me, particularly if I am not committing the as crime. There is even a justification in 9.31 for using force to resist an "arrest" by a Peace Officer, if more force than necessary was used.

The shopkeeper's privilege to is not lawful authority to arrest someone, so I don't see where I lose any of my justifications for forcible resistance if they assault me in effecting the detention. And they are going to have to assault me in order to prevent me from just walking to my car...in the Sam's example. Seems they ought to just call the police and (falsely) report my theft and let the real cops sort it out.

[EEllis]

However, I don't see the examples of the level of force that may be applied by the shopkeeper to "detain" me, particularly if I am not committing the as crime. There is even a justification in 9.31 for using force to resist an "arrest" by a Peace Officer, if more force than necessary was used.

The shopkeeper's privilege to is not lawful authority to arrest someone, so I don't see where I lose any of my justifications for forcible resistance if they assault me in effecting the detention. And they are going to have to assault me in order to prevent me from just walking to my car...in the Sam's example. Seems they ought to just call the police and (falsely) report my theft and let the real cops sort it out.

If their actions are legal you have no justification for the use of force. If your actions just end up being suspicious enough then they can detain you and your innocence does not allow you protection for any assaults you commit. The merchant does have legal protection for use of force as long as their actions are "reasonable". I don't get how that is complicated. I do understand you don't like the idea but that is the law. Nothing we are talking about here will change that. And again you committing the crime has no effect on the "shop keepers privilege". The merchant just needs their actions and beliefs to be "reasonable" to detain you. They get to use "reasonable" force. What is reasonable? Well it's what a court says it is and it can be different in almost any court. I will say that there is even a Texas case where a guy died as a result of being grabbed and held by a merchant and the actions were ruled as reasonable under Texas law so ......

If you fight LP or store employees when they attempt to detain you, then you are betting that their actions will be found as unreasonable. Otherwise you can be held, charged, found guilty, of assault even if you never took anything. Now if the cops, a court, etc, don't think it's reasonable then your fine.

[Abraham]

"Otherwise you can be held, charged, found guilty, of assault even if you never took anything."

For defending yourself when innocent of any wrongdoing?

Yeah, sure...

So, you think the merchant can employ "police state tactics" because even when it's discovered that you the customer were found not guilty, the merchant can with impunity assault you anyway because the merchant has carte blanche to assault you without recourse? The merchant has overarching/special police powers according to you.

Baloney!

When the police falsely arrest and detain innocent people, are you aware of the large sums awarded when sued by the innocent?

Merchants aren't exempt from this action taken by the innocent...