Shoplifting is a common and costly problem for retail merchants. In particular, merchants and their attorneys struggle with the question of how to handle an individual suspected of shoplifting. Within the past few years, the media has paid particular attention to merchants’ treatment of suspected shoplifters. This comes in the wake of an uptick in so-called “flash mobs” of teenage shoplifters, and of accusations of retail outlets engaging in so-called “consumer racial profiling.”1 Although these are extreme examples, there is undoubtedly some confusion about the rights of a merchant who suspects a customer of shoplifting, and the rights of a consumer who is detained or questioned on such suspicions.
New York has armed shopkeepers with particularly strong defenses by codifying the shopkeepers’ privilege in the General Business Law, Section 218, Defense of lawful detention. Moreover, pursuant to the General Obligations Law, Section 11-105, Larceny in mercantile establishments, a shopkeeper has the right to collect damages from an individual who commits larceny in the amount of “the retail price of the merchandise if not recovered in merchantable condition” plus, an additional penalty of five times the retail price of the merchandise.2 A merchant has this right regardless of whether the shoplifter has been convicted or pleaded guilty to larceny.3
