In Orellana v. Macy’s Retail Holdings, Inc., 2016 Slip Op 31206(U) (Sup. Ct. N.Y. Cty. June 27, 2016), the court preliminarily enjoined Macy’s “from demanding payment of civil penalties from individuals suspected of shoplifting while they are in Macy’s custody.”
This case addresses the intersection between two sections of New York law: General Business Law § 218 (the so-called “shopkeeper’s privilege”), and General Obligations Law § 11-105 (which authorizes the collection of civil penalties from suspected shoplifters).
In granting plaintiff’s preliminary injunction request, Judge Mendez wrote:
Here, Macy’s treads on a thin line between permissible and impermissible behavior when it implements the power it has been given under the statutes. Defendant has taken the authority granted to it under GBL § 218 to detain an individual for shoplifting, and has combined that with the authority it is given under GOL § 11-105 to collect civil penalties from an individual suspected of shoplifting. These statutes as allegedly applied by defendant are being used as a double edged sword, instead of a shield. A suspected shoplifter is given no opportunity to otherwise object, have a hearing, or receive guidance from counsel before signing a confession to shoplifting, and/or agreeing to pay civil penalties because the civil penalties, are being demanded at the time the individual is under detention by Macy’s.
The irreparable injury occurs when an unsuspecting consumer that may have moved between floors or departments, as the Plaintiff alleges to have done here, is then taken into custody and detained by a loss prevention officer on suspicion of shoplifting. This consumer is detained, and possibly coerced into signing a confession to obtain her release, together with being forced to pay civil penalties or agree to pay civil penalties immediately before being released. The issue is not whether or not Macy’s can demand civil penalties from suspected shoplifters; a mercantile establishment is clearly empowered to do so under the statute. The problem lies when this demand for payment is made while the consumer is being detained. An individual without knowledge of his rights and suspected of shoplifting may be forced into signing a confession for shoplifting and into signing a promise to pay a civil penalty when he may not be guilty of the crime, in the hopes that if he just signs the confession and the promise to pay the penalties demanded he can be released from Macy’s detention.
Not only does this prove problematic, but it appears that Macy’s is acting way beyond the scope permitted for a private actor under GBL §218. GBL §218, as stated above, was to provide an affirmative defense to any civil action for false imprisonment brought by an individual detained for shoplifting. The statute states that this private actor can detain a suspected shoplifter for a reasonable time and in a reasonable manner, and more specifically a ” .. .’reasonable time’ shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise … ” However, Macy’s is not just taking the time to allow the suspected shoplifter to make or refuse to make a statement. It appears that Macy’s is detaining, investigating, eliciting a confession and recovering civil penalties at the time the suspected shoplifter is in Macy’s custody, and then instead of releasing the individual, continuing to detain them and pursue criminal punishment. This is not what is contemplated under the statute and these actions by Macy’s, a private actor, go beyond what the legislature envisioned when it enacted GBL § 218 and GOL §11-105
The court discussed proposed legislation to GBL § 218, which includes amending the statute to reflect that a “reasonable time” is “not to exceed one hour, except for extraordinary circumstances.”