The following entry contains the Black Letter and Comments a and b to § 37 of Tentative Draft No. 5, Chapter 3. Privileges, Topic 4. Arrest and Prevention or Termination of Crime, from Restatement of the Law Third, Torts: Intentional Torts to Persons. The full draft contains additional Comments and Reporters’ Notes.

This project was on the 2020 Annual Meeting agenda before the Meeting was cancelled due to COVID-19. Accordingly, this text has not been considered by the membership of The American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. This supplement may be revised or supplemented prior to consideration by the membership in May 2021. If you are interested in obtaining a copy of this or any other Section of this project, please contact us.

§ 37. Merchant’s Privilege

An actor is privileged to use force against another for the purpose of investigating a potential theft or knowing nonpayment for goods or services, the purpose of recapturing personal property, or the purpose of facilitating the arrest of a person suspected of theft or knowing nonpayment, if:

(a) The actor is a merchant or a merchant’s agent or employee;

(b) The actor reasonably believes that the other

(1) has wrongfully taken, or is attempting to take, merchandise from the merchant’s premises; or

(2) has wrongfully failed to make due payment for personal property purchased on those premises or for services rendered there;

(c) The actor uses force against the other on, or in the immediate vicinity of, the actor’s premises, in a reasonable manner, and only for the time reasonably necessary for investigating the matter, for recapturing the property, or for facilitating the other’s arrest; and

(d) The actor does not use deadly force, i.e., force intended or reasonably likely to cause death or serious bodily harm, as defined in § 20(h).

 

Comment:

a. History. This Section is based on Restatement Second, Torts § 120A. The privilege articulated here has traditionally been called either the shopkeeper’s privilege or the merchant’s privilege.

b. Rationale and relationship to other privileges. The principal justification for the privilege stated in this Section is to protect the actor (a merchant, or the merchant’s agent oremployee) from the following dilemma. In the absence of this privilege, if the actor reasonably believes that a person within the store is a shoplifter who is in the process of removing goods from the actor’s store without paying for them, the actor must either permit the suspected person to walk out of the premises without effective legal recourse or arrest the person, at the risk of liability for false arrest if the theft could not be proven. The merchant’s privilege is designed to permit the merchant to take reasonable steps to prevent theft without fear of tort liability.

In many cases, a merchant might also be privileged by the provisions in §§ 35 and 36 of this Topic, which recognize privileges to arrest or to terminate or prevent crime. However, this Section provides merchants with certain protections not afforded by these other Sections. First, this Section privileges the use of force with regard to thefts that do not rise to the level of felonies, to which §§ 35 and 36 are primarily limited. Second, this Section privileges an actor who acts on the basis of reasonable but mistaken beliefs. By contrast, § 35 and 36 do not always provide a privilege to an actor who makes a reasonable mistake about the facts relevant to the privilege. Third, §§ 35 and 36 privilege the use of force only for the purpose of arrest or preventing or terminating crime. By contrast, this Section also privileges a merchant’s use of force for the purposes of investigation of a theft or of the recovery of personal property.

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Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

Jennifer Morinigo

The American Law Institute

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