Criminal Shoplifting Can Lead to Civil Penalties

Stealing merchandise from a retailer is a crime in every state. Oklahoma considers the act of shoplifting "petit larceny" if the value of what is taken is less than $1000.00. Theft is considered "grand larceny" if the value of the goods is $1000.00 or greater. Offenders risk fines and imprisonment if they are convicted, but merchants - whose annual losses from shoplifting and employee theft are almost $50 billion dollars - have another weapon at their disposal to punish individuals suspected of stealing from them.

Laws in all 50 states now give merchants the right to recover the value of the merchandise and, in some states, additional penalties. Oklahoma, for instance, allows a merchant to recover the value of the merchandise taken along with court and attorney's fees. Aggrieved companies can also seek exemplary damages, which are punitive in nature, of at least $50 and as much as $500.

Given the losses merchants suffer each year, few people are going to object to laws targeting shoplifters, but the issue of civil penalties is much more complex than it might seem.

Large retail companies successfully lobbied state governments to pass legislation allowing retail stores to compel individuals accused of shoplifting to pay for the merchandise in addition to other penalties. Civil penalties were touted as another weapon in the fight to stem the losses suffered by merchants victimized by shoplifting.

Every state permits a merchant to recover its actual damages, which is usually the value of the merchandise. Forty-nine states and the District of Columbia authorize the collection of a civil penalty ranging from $50 to in excess of $1,000.

For people with limited incomes and financial resources, the money sought by retailers can be impossible to pay. Stop and think about the situation for just a moment: those individuals who are shoplifting most likely do not have the funds to pay for the goods, let alone any associated civil penalties. Only Oklahoma allows a person the opportunity for community service instead of a payment.

According to a report in The New York Times, Walmart and other retail companies have been aggressively enforcing their rights under state laws to recover civil penalties. The Times story notes that the law firms hired by Walmart pursue the civil remedy even in cases in which criminal charges were either never filed or were filed and dismissed. The result is that a person who has not been convicted of shoplifting or theft is still subjected to demands for civil penalties from a retailer.

I can tell you from personal experience representing larceny charges that my clients normally receive a demand letter from a law firm, sometimes in-state and sometimes out-of-state, regardless of whether the charges were filed or dismissed. The demand letter usually requests a payment of approximately $100.00, with the caveat that the payment itself will not necessarily save the person from facing criminal action. If and when you ever receive such a letter, make sure and contact an attorney for appears merchants may be getting carried away.

In fact, this year the attorney general in Indiana took Walmart to task for the manner in which it handled suspected shoplifting in its stores in his state. Individuals suspected of shoplifting were being detained at the store to obtain contact information and were told they must pay for an anti-shoplifting education program.  

The attorney general objected to the detention of people at the store without the police being contacted. State law, according to the attorney general, authorizes detention of a person suspected of shoplifting only to await arrival of the police and for no other purpose. Telling people they had to participate in a program or be prosecuted was not allowed. Walmart subsequently discontinued the practice in Indiana.

Some individuals have gone to court to challenge merchant's efforts to collect civil penalties. This process has had mixed results. Consequently, as I always say, get legal assistance if you are facing a legal situation. Don't wing it. As I mentioned earlier, Oklahoma residents who receive letters from law firms claiming to represent merchants and demanding to recover civil penalties should seek legal advice from an attorney. Oftentimes, it might only take a letter from your lawyer to put an end to the demands.

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