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Retail Theft Victims and the Criminal Exception

Annually, retailers lose billions of dollars due to theft. In 2010, global retail shrinkage totaled $107.284 billion with shoplifting being the largest contributing factor. As a result, retailers have invested $26.823 billion towards preventative measures including increased security personnel costs, investments in video surveillance systems and various EAS loss control devices.

All US states have come to realize the huge impact of shoplifting to the retail industry and have enacted civil statutes to help deter future theft incidents and to help make the victim retailers “whole.”  Almost all of the state statutes provide retailers a right to recover civil (penalty) damages in addition to actual damages for shoplifting incidents thereby adding to the common law and providing a component of punishment to their civil recovery statutes. However, this has not always been the case. Instead, some states have restricted the victimized retailers’ rights.

Generally, injured victims have both criminal and civil remedies available to them for redress. However, some states restrict retailers’ rights of access to the courts.

For instance, in Michigan and Wyoming retailers are required to file a police report prior to sending a statutory civil damages request pursuant to each state’s respective statute.

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In North Dakota, a merchant may not request any statutory civil damages and/or civil restitution until the completion of the criminal case.

In Virginia, if a person is arrested, a statutory civil damages request cannot be made until the person is convicted under Virginia Code Annotated Section 18.2-103.

New Mexico also requires a conviction under its shoplifting statute as a prerequisite to civil liability.

In Tennessee, a retailer must receive consent from the District Attorney General for the local county prior to making a statutory civil damages request “in lieu of” criminal prosecution.

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In South Carolina, a merchant may not subsequently file criminal charges after a statutory civil damages request has been made.

In West Virginia, if the criminal court orders a defendant to pay a criminal penalty which is equal to amount requested as statutory civil damages (penalty), the request for statutory civil damages must be discontinued.

Lastly, while the New Hampshire statute raised the additional civil damages liability from $200 to $400, if a store chooses to enter into the statutory settlement agreement instead of opting to pursue a civil statutory damages claim in civil court under subsection III, the retailer could be precluded from pursuing prosecution.

For these reasons, it is important for retailers to collectively urge state legislatures to remove these types of restrictions from their civil theft statutes and to also include employee theft incidents and theft of cash within the various statutes’ reach so that retailers can have greater rights and remedies available to combat retail theft from employees and shoplifters.

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3. Michigan Compiled Laws Section 600.2953 and Wyoming Statutes Section 1-1-127

4. North Dakota Century Code Section 51-21-05

5. Virginia Code Annotated Section 18.2-104.1

6. New Mexico Statutes Annotated § 30-16-21

7. Tennessee Code Annotated Section 39-14-144

8. South Carolina Code Annotated Section 15-75-40

9. West Virginia Code § 61-3A-5

10. New Hampshire Revised Statutes Section 544-C:1

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