1114147Prof. Laura KillingerFirm #10Draft Closed MemorandumOctober 8, 2012

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11141471114147

MEMORANDUM

To: Laura KillingerFrom: 1114147Date: October 8, 2012Re: Robin Jacobs False Imprisonment Claim

Question Presented

Can Robin Jacobs recover for false imprisonment against Jason Shuman, the Barclay’s

Department Store security guard, for escorting her to a downstairs storeroom and keeping her

there for approximately 20 minutes while he inspected her bags after a security tag inadvertently

left on one of her purchases triggered the store’s antishoplifting alarm?

Brief Answer

Probably not. Georgia statute protects merchants from liability when they detain a person

in a reasonable manner and for a reasonable time if the person’s behavior is such that it creates a

reasonable suspicion that the person is shoplifting. While Ms. Jacobs’s behavior could not have

caused a reasonable suspicion, another statute provides that reasonable suspicion is established

per se if the subject triggers an antishoplifting alarm. Since her detention was within the bounds

of what courts have called reasonable in similar cases and was based on a reasonable suspicion,

it was lawful and most likely not a recoverable false imprisonment.

Facts

While shopping with her eight-year-old daughter, Ellen, Ms. Jacobs purchased several

items at Barclay’s Department Store. The cashier inadvertently left an antishoplifting tag on one

the items. On her way to the exit, Ms. Jacobs stopped to speak with a client and Ellen began to

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play near the antishoplifting sensor, which was marked by signs announcing its presence. Ms.

Jacobs reached out to restrain Ellen, causing her shopping bag, with the still-tagged item inside,

to pass in front of the sensor and trigger the alarm.

Jason Shuman, the store security guard, ran over and evidently asked to see Ms. Jacobs’s

purchase receipt. She was unable to produce it immediately because her handbag contained a

large number of items. Mr. Shuman directed Ms. Jacobs to follow him, led her to a downstairs

storeroom, and closed the door to the room behind them.

Once in the storeroom, Mr. Shuman asked Ms. Jacobs to empty her shopping bag and

handbag on a table. He located Ms. Jacobs’s purchase receipt and verified the contents of the two

bags against it. He found the still-tagged item, removed the security tag, apologized, and allowed

Ms. Jacobs to depart. Ms. Jacobs described Mr. Shuman’s manner as “gruff” and stated that she

was very embarrassed by the incident.

Discussion

When Mr. Shuman escorted Ms. Jacobs to the storeroom, he detained her, but his actions

were protected from liability because he had a reasonable suspicion that she was shoplifting and

he conducted the detention in a reasonable manner and for a reasonable amount of time. Any

detention that is unlawful, regardless of the duration or manner, is false imprisonment. Lord v. K-

Mart Corp., 340 S.E.2d 225, 227 (1986) (construing Ga. Code Ann. § 51-7-20); Colonial Stores,

Inc. v. Fishel, 288 S.E.2d 21 (1982). However, a customer cannot recover for false imprisonment

against a store or its employees when, based on a reasonable suspicion that the customer is

shoplifting, they detain the customer in a reasonable manner and for a reasonable amount of

time. Ga. Code Ann. §§ 51-7-60, 51-7-61 (2012). Because recovery is barred, such detentions are

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implicitly lawful. Lord, 340 S.E.2d at 227. Thus, if Mr. Shuman did not detain Ms. Jacobs, she

cannot recover for false imprisonment. If he detained her, but the detention was protected by

statute, then it was lawful and she cannot recover for false imprisonment. In order to prevail, Ms.

Jacobs will need to show that (I) Mr. Shuman detained her; and (II) the detention was not lawful

because (A) Mr. Shuman’s suspicion of her was unreasonable, (B) he did not detain her in a

reasonable manner, or (C) he detained her for longer than was reasonable.

I. Mr. Shuman detained Ms. Jacobs

Mr. Shuman detained Ms. Jacobs by giving her the impression he would use force to

restrain her if she did not follow his directions. Detention occurs even when force is not used, but

the defendant’s behavior would inspire fear or give a reasonable person the impression that force

would be used if detention is resisted. Abner v. W.T. Grant Corp., 139 S.E.2d 408, cited with

approval in Lord, 340 S.E.2d at 227. See also Mitchell v. Walmart Stores, Inc., 477 S.E.2d 631

(1996). In Mitchell v. Walmart Stores, Inc., the court considered the plaintiff detained from the

moment a store security guard seized her bag until an examination of her bag was complete, even

though the guard did not use any force to continue the detention after the initial contact and

conducted the examination in public with no physical restraints. 477 S.E.2d at 633.

Mr. Shuman did not touch Ms. Jacobs, so no force was used in detaining her. However,

by running over to the antishoplifting device and directing Ms. Jacobs to accompany him in what

she describes as a gruff tone of voice, he behaved in a way that would give a reasonable person

the impression that he might use force if his directions were disobeyed. Furthermore, when he

led Ms. Jacobs and her daughter into the downstairs storeroom, a non-public portion of the store,

and closed the door behind them, he went well beyond the public, open inquiry the court ruled a

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detention in Mitchell. Id. When he told her to accompany him to the storeroom, Mr. Shuman

detained Ms. Jacobs.

II. Mr. Shuman’s detention of Ms. Jacobs was lawful

Because Mr. Shuman had a reasonable suspicion that Ms. Jacobs was shoplifting and

subsequently detained her in a reasonable manner and for a reasonable duration, his actions were

protected by Georgia statute and therefore lawful. A store and its employees are protected from

false imprisonment liability if (A) the plaintiff behaved in a manner that would lead a person of

reasonable prudence to suspect that she is shoplifting, (B) the detention is conducted in a

reasonable manner, and (C) for a reasonable amount of time. Ga. Code Ann. §§ 51-7-60, 51-7-

61.

A. Mr. Shuman had a reasonable suspicion

Ms. Jacobs provided Mr. Shuman with a per se reasonable suspicion when she triggered

the store’s antishoplifting alarm. Employees’ suspicions are normally considered reasonable

when the plaintiff exhibits characteristics typically associated with shoplifters. Lord, 340 S.E.2d

at 226 (construing Ga. Code Ann. § 51-7-60). However, even if the plaintiff exhibits no other

suspicious behavior, employees’ suspicions are reasonable per se if the plaintiff triggers an

antishoplifting device that is well-marked by signs. Mitchell, 477 S.E.2d at 633 (construing Ga.

Code Ann. § 51-7-61).

In Lord, the court cited the store’s policy instructing employees to “…watch for persons

who were wearing unseasonable clothing, carried large purses, constantly looked around to see if

they were being observed, [or] acted in a nervous manner or became upset if approached,” and

held that it was reasonable to suspect that a woman who exhibited several of these characteristics

was shoplifting. 340 S.E.2d at 226. In Fishel, the court accepted the reasonableness of the

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guard’s suspicion, which was based on the mistaken impression that the plaintiff had secreted a

bottle of aspirin in his pocket. 288 S.E.2d at 21. In Mitchell, however, the court held that a

security guard had a reasonable suspicion of a woman who merely triggered an antishoplifting

sensor. The court reasoned that it did not matter that the alarm was triggered by a security tag a

store employee had negligently left on one of the plaintiff’s purchases, holding that

“[d]efendant's right to detain is lawful once the device is automatically activated.” 477 S.E.2d at

633 (quoting Estes v. Jack Eckerd Corp., 360 S.E.2d 649).

Ms. Jacobs’s behavior does not appear to have been as suspicious as that of the plaintiffs

in Lord or Fishel. She was engaged in a stationary conversation with another customer at the

time of the incident and not showing any of the typical characteristics of a shoplifter. However,

like the plaintiff in Mitchell, Ms. Jacobs triggered the store’s antishoplifting alarm, which was

well-marked by signs announcing its presence. Although the plaintiff in Mitchell was exiting the

store, while Ms. Jacobs was stationary when she triggered the alarm, the court’s definitive

holding in Mitchell indicates that in all circumstances, when a plaintiff triggers an antishoplifting

alarm, she automatically establishes reasonable suspicion. Thus, it does not matter that she was

not exiting or that the cashier negligently left the tag attached to a purchase. The mere fact that

Ms. Jacobs triggered the alarm was sufficient to render Mr. Shuman’s suspicion technically

reasonable.

B. Mr. Shuman detained Ms. Jacobs in a reasonable manner

Mr. Shuman conducted the detention in a reasonable manner. If a store detains a

customer for the purpose of inquiring into whether or not the customer is shoplifting, and does

not subject the customer to unnecessary indignity or force, then the manner of detention is

reasonable for the purposes of §§ 51-7-60 and 51-7-61. See Fishel, 288 S.E.2d at 23; Mitchell,

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477 S.E.2d at 633. In Fishel, the court held that the detention was unreasonable because neither

the manager nor the security guard made any attempt to verify whether the plaintiff had actually

shoplifted and that the security guard used excessive force when he handcuffed the plaintiff to a

metal container. 160 Ga. App. at 740, 288 S.E.2d at 23. In Mitchell, on the other hand, the court

held that the manner was reasonable because, despite what the plaintiff described as his “…gruff,

rude, loud behavior…” and the embarrassment she suffered, the guard used a minimum of force,

did not accuse her of shoplifting, and detained her only in order to verify whether or not she had

shoplifted. Mitchell, 477 S.E.2d at 631, 633.

Unlike the guard in Fishel, Mr. Shuman did not use force and, like the guard in Mitchell,

he never accused Ms. Jacobs of shoplifting. As the court explained in Mitchell, embarrassment

alone is not enough to render detention unreasonable and Mr. Shuman does not appear to have

done anything to deliberately increase the amount inherent in the situation. Although the

storeroom Mr. Shuman used for the inquiry was similar to the back office the guard used in

Fishel, rather than the public inquiry the guard conducted in Mitchell, courts have not ruled on

whether inquiries need to be conducted in any particular location. There are a number of

reasonable possible explanations for Mr. Shuman’s decision to escort Ms. Jacobs to a location

out of the public eye, potentially including a desire to protect her from further embarrassment.

Finally, Mr. Shuman did not detain Ms. Jacobs until after she proved unable to immediately

present a receipt and, upon locating the receipt while in the storeroom, he confined his efforts to

verifying her purchases against it. Both of these factors indicate that the detention was conducted

for the permissible purpose of inquiring into whether or not Ms. Jacobs was shoplifting.

Therefore, Mr. Shuman detained Ms. Jacobs in a reasonable manner.

C. Mr. Shuman detained Ms. Jacobs for a reasonable amount of time

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Mr. Shuman did not detain Ms. Jacobs for an unreasonable amount of time. Store

employees detaining customers under the Georgia antishoplifting statutes must do so for only a

reasonable amount of time, but the statutes do not define a specific permissible time limit. §§ 51-

7-60, 51-7-61. Courts have not drawn a specific line either, having held only that in order to be

reasonable, a detention must be temporary and last only so long as is required to complete an

inquiry. Lord, 340 S.E.2d at 227 (citing U.S. Shoe Corp. v. Jones, 255 S.E.2d 73); Fishel, 288

S.E.2d at 23; Mitchell, 477 S.E.2d at 631. Since the defendants in Fishel never conducted an

inquiry, no amount of time would have been reasonable for their detention of the plaintiff. 288

S.E.2d at 23. In Mitchell, on the other hand, the court held that the 10 to 15 minutes for which

the plaintiff was detained was reasonable, even though the guard never specifically informed the

plaintiff that she was free to go at the end. 477 S.E.2d at 633.

Unlike the manager in Fishel, Mr. Shuman immediately commenced his inquiry by

asking Ms. Jacobs to produce a receipt. Furthermore, he specifically released Ms. Jacobs as soon

as his inquiry was complete and, even though the inquiry took 20 minutes instead of the 10-15

minutes cited in Mitchell, it took no longer than was required to conduct a review of the contents

of Ms. Jacobs’s bags. Therefore, the duration of Ms. Jacobs’s detention was reasonable for the

purposes of the antishoplifting statutes.

Mr. Shuman detained Ms. Jacobs but the detention was lawful because detained her

based on a reasonable suspicion, in a reasonable manner, and for no longer than was reasonable.

Conclusion

Ms. Jacobs probably cannot recover damages from Mr. Shuman for false imprisonment.

Georgia statute protects merchants from liability when they detain customers reasonably

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suspected of shoplifting in a reasonable manner and for a reasonable time. Mr. Shuman did

detain Ms. Jacobs, but because Ms. Jacobs triggered an antishoplifting alarm and created a per se

reasonable suspicion of shoplifting and because he detained her in a reasonable manner and for a

reasonable period of time, he did so lawfully and Ms. Jacobs probably cannot recover for false

imprisonment.

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