aSSOCIaTIONS IN aCTION

Risks from Shoplifter Apprehensions: Part II

by Lisa LaBruno

Lisa LaBruno leads the asset protection offerings in the areas of loss prevention, retail crime, workplace safety, disaster recovery, operational audit, research, and benchmarking for the Retail Industry Leaders Association. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs, and more than 100,000 stores, manufacturing facilities, and distribution centers domestically and abroad. LaBruno can be reached at 703-600-2024 or lisa.labruno@rila.org.

In the last issue I identified some of the more popular causes of action typically filed by shoplifters turn plaintiffs, dissected the merchant detention statute (aka shopkeeper’s privilege) that can act as a defense for retailers, and discussed the risk of brand damage in the context of external apprehensions. This article will focus on two other “favorite” claims of plaintiffs—malicious prosecution and defamation—as well as best practices that can help minimize liability and consequential brand damage.

Malicious Prosecution and Defamation

To prevail on a claim for malicious prosecution and defamation, a plaintiff must prove each of the elements identified below: ■ Malicious Prosecution—Plaintiff must prove (a) the retailer commenced a criminal proceeding against plaintiff, (b) the proceeding terminated in plaintiff’s favor, (c) an absence of probable cause, and (d) the retailer was motivated by malice or improper motive. ■ Defamation—Plaintiff must prove (a) the retailer made a statement about plaintiff, (b) the statement was published or communicated, (c) the statement was false, and (d) the statement tarnished the person’s reputation.

The merchant detention statute is generally not a defense to a malicious prosecution claim, and it is never a defense to a defamation claim. However, retailers can take steps to mitigate risk.

As a general concept, it is useful to develop policies or best practices designed to rebut specific elements of civil causes of action. For example, the judge presiding over plaintiff’s civil claim against a retailer for malicious prosecution may find as a matter of law that the underlying shoplifting case “terminated in plaintiff’s favor” after the LP professional failed to appear in criminal court, and the charges were dismissed against plaintiff without adjudication. A policy requiring LP professionals to monitor their criminal cases and appear in court when noticed or face disciplinary action for their failure to appear could result in fewer criminal case dismissals, thereby mitigating civil exposure on a malicious prosecution claim.

An LP department with a robust external apprehension program can expose their company to the risk of civil liability and consequential brand damage. As an LP professional you should strive to do your part to mitigate that risk every time you approach an external subject.

Malicious Prosecution Best Practices. Other policies or best practices that can help disprove the elements of a malicious prosecution claim include the following: ■ Conduct a thorough investigation and follow-up on any reasonable explanations offered by the subject to justify his actions. ■ When practical, defer to law enforcement’s assessment regarding the weight of the evidence when determining whether to file criminal charges. ■ Don’t misrepresent, mischaracterize, or exaggerate the evidence. ■ A decision to refer a case to law enforcement should be based solely on the evidence, free of prejudice and bias and not based on any grudge or other ill-motive against a subject. ■ Refer to law enforcement only those subjects whose guilt can be proven beyond a reasonable doubt. ■ Prepare for all criminal court hearings, appear in court when required, be professional, and testify truthfully. ■ Immediately disclose to police/prosecutor exculpatory evidence (evidence tending to prove innocence) and request a dismissal of charges when warranted by any newly discovered evidence.

■ If you made a mistake in your investigation, own up to it immediately. Don’t make matters worse by trying to cover your tracks.

Minimizing Exposure to Defamation Claims. You can also do your part to minimize exposure to defamation claims by following some fundamental guidelines: ■ Be as discreet as possible when engaging with a subject. ■ Take reasonable steps to prevent situations from escalating. ■ Escort the subject out of public view as quickly as possible. ■ Minimize the use of handcuffs. ■ Do not parade the subject through the store. ■ Maintain the subject’s privacy to the extent possible. ■ Discuss the case only with those having a need to know.

Mitigating Risk

An LP department with a robust external apprehension program can expose their company to the risk of civil liability and consequential brand damage. As an LP professional you should strive to do your part to mitigate that risk every time you approach an external subject.

From a corporate perspective a good start is to have policies in place and a comprehensive training program that addresses the elements of the causes of action most commonly initiated by individuals apprehended for theft.

From an individual perspective, if you act with integrity, demonstrate respect for others, and exercise restraint, you will do your part to mitigate risk.

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