Civil Model Jury Charge 3.20 F. Shoplifting (N.J.S.A. 2C:20-11) FALSE IMPRISONMENT (FALSE ARREST) model jury charge
It
is the law of this State that a law enforcement officer, or a special officer,
or a merchant, who has probable cause to believe that a person has willfully
concealed unpurchased merchandise may, for the purpose of attempting to recover
the merchandise, take the person into custody and detain him/her in a
reasonable manner for not more than a reasonable time.
So,
in deciding whether plaintiff was falsely imprisoned, there are two decisions
you are going to have to make.
The
first is that plaintiff must prove, by the greater weight of the evidence, that
defendant intentionally detained or restrained plaintiff in his/her personal
liberty or freedom of movement by taking him/her into custody.
The
second, assuming you find that defendant did intentionally restrain plaintiff
by taking him/her into custody, involves defendant's claim that he/she had
probable cause to believe that plaintiff willfully concealed unpurchased
merchandise; that the merchandise could have been recovered by taking plaintiff
into custody; that plaintiff was taken into custody in order to try to recover
the merchandise; and that plaintiff was detained in a reasonable manner only
for a reasonable time.
Probable
cause in this regard means that the facts and circumstances known to the
officer or merchant were those which would lead a reasonably cautious person to
believe that plaintiff had willfully concealed unpurchased merchandise, and
that he/she could attempt to recover the merchandise by taking plaintiff into
custody and control. Probable cause must
be more than mere conjecture or unfounded suspicion.
Willfully
means conduct which is intentional and knowledgeable. If plaintiff meant to conceal unpurchased
merchandise and was aware that he/she was concealing the unpurchased
merchandise, then his/her conduct was willful.
The fact that unpurchased merchandise was found concealed upon his/her
person or among his/her belongings is evidence for consideration by you, from
which you may draw an inference of willful concealment, although you are not
required to do so. If you make that
inference, it becomes a factor which remains in this case for your consideration
together with all of the other facts in the case.
A
detention for a reasonable time and in a reasonable manner means the amount of
time and the manner that a reasonably cautious person under the circumstances
would take or use in attempting the recovery of the unpurchased merchandise by
placing a person into custody.
The
reasonableness of the time and manner of detention would be affected by the
type and size of object allegedly concealed, the cooperation or the lack of
cooperation of the person detained in effecting the recover, the place and
manner in which he/she was detained, and any other factors that you might think
had a bearing on the reasonableness of the time and manner of detention.
If
you find that plaintiff was intentionally restrained or confined and that the
defendant lacked probable cause either to believe that the plaintiff had
willfully concealed unpurchased merchandise or that the defendant could attempt
to recover such merchandise by taking plaintiff into custody; or that defendant
took the plaintiff into custody in an unreasonable manner or for an
unreasonable time, then you must conclude that the detention was unlawful, and
you should find that there was a false imprisonment.
If
you believe that the plaintiff had willfully concealed unpurchased merchandise
and that he/she could attempt to recover that merchandise by taking the
defendant into custody, and that the defendant took the plaintiff into custody
for this purpose and that he/she detained the plaintiff in a reasonable manner
for a reasonable time, then you must find that the detention was lawful. This would mean that there was no false
imprisonment.
[go on to Damages (False Imprisonment False
Arrest)), Charge 8.47C]
Note TO JUDGE
Recent legislation in the sensitive area of
shoplifting has further extended the citizen's authority to arrest where he/she
is a merchant or the employee of a merchant.
N.J.S.A. 2C:20-11(e) states:
A law enforcement officer, or a special officer,
or a merchant, who has probable cause for believing that a person has willfully
concealed unpurchased merchandise and that he/she can recover the merchandise
by taking the person into custody, may, for the purpose of attempting to effect
recovery thereof, take the person into custody and detain him/her in a
reasonable manner for not more than a reasonable time, and the taking into
custody by a law enforcement officer or special officer or merchant shall not
render such person criminally or civilly liable in any manner or to any extent
whatsoever.
Any law enforcement offer may arrest without warrant
any person he/she has probable cause for believing has committed the offense of
shoplifting as defined in this section.
A merchant, who causes the arrest of a person for
shoplifting, as provided for in this section, shall not be criminally or
civilly liable in any manner or to any extent whatsoever where the merchant has
probable cause for believing that the person arrested committed the offense of
shoplifting.
N.J.S.A. 2C:20-11(d) further presumes:
Any person purposely concealing
unpurchased merchandise of any store or other retail mercantile establishment,
either on the premises or outside the premises of such store or other retail
mercantile establishment, shall be prima facie presumed to have so concealed
such merchandise with the intention of depriving the merchant of the
possession, use or benefit of such merchandise without paying the full retail
value thereof, and the finding of such merchandise concealed upon the person or
among the belongings of such person shall be prima facie evidence of purposeful
concealment; and if such person conceals, or causes to be concealed, such
merchandise upon the person or among the belongings of another, the finding of
the same shall also be prima facie evidence of willful concealment on the part
of the person so concealing such merchandise.
