Intentional torts such as theft require a finding of intent. However, at times, a finding of intent can be difficult to prove. Generally, it requires a retailer to prove that the alleged shoplifter possessed the mental state necessary to commit theft at the time of the incident.1 Absent a reasonable determination of intent, the retailer can potentially be at risk to exposing itself to various liabilities, including false imprisonment, malicious prosecution, defamation and slander.
It is due to this difficult determination that many retailers sometimes choose to err on the side of caution and refrain from detaining a suspected shoplifter. So how can a retailer make a reasonable determination that the suspected shoplifter possesses the intent to commit theft when it is nearly impossible to determine a person’s state of mind? Many states allow for a presumption of intent. This article focuses on those states with shoplifting laws that make it easier for retailers to determine whether the suspected shoplifter had the intention to commit theft by allowing intent to be presumed under certain circumstances.
A presumption allows a specific fact to be deemed a reasonable assumption when the fact is based upon the existence of other known or proven facts.2 In states where a presumption is allowed, a retailer has the right to make the assumption that an alleged shoplifter possesses the required mental state to commit theft based upon the existence of other known facts that would give rise to that conclusion. For example, shoplifting laws in some states allow for intent to be presumed as soon as the person exhibits one of the common signs of shoplifting: he or she conceals unpurchased merchandise.3 Arizona and Arkansas allow for the appropriate mental state to be presumed if the person conceals unpurchased merchandise. Nevada permits a presumption of intent if the retailer observes the person concealing merchandise while on its premises and Oklahoma gives rise to that same presumption if the person is observed concealing unpurchased merchandise either on or off its premises.4
Other states allow for a presumption of intent when the suspected shoplifter has concealed merchandise either on his person or on another person. Delaware and New Mexico allow the retailer to presume intent when the person willfully conceals unpurchased merchandise on or within the belongings of his person or another person either on or outside the premises of the store.5
Certain states such as Mississippi allow for a presumption of intent to apply to the person who actively conceals merchandise as well as the person who acts in concert with the principal offender.6 Other states require that the person not only conceal merchandise but also pass all points of purchase or exit the store. North Dakota gives rise to a presumption of intent when the person is observed concealing merchandise on or within the belongings of his person or another person and subsequently passing the last point of sale without making any attempt to pay for the concealed merchandise.7
When a retailer is unsure as to whether the suspected shoplifter has the intent to commit theft, generally, a safe course of action is to consider all of the facts and circumstances surrounding that particular incident.8 While simply concealing merchandise may not always give rise to a presumption of intent, it will at least give a retailer reasonable grounds to detain the suspected shoplifter in a reasonable manner and for a reasonable length of time for the purpose of investigating whether or not a theft did in fact occur.
- See Black’s Law Dictionary 369 (3rd pocket ed. 2006)
- See Black’s Law Dictionary 558 (3rd pocket ed. 2006)
- ARIZ. REV. STAT. ANN. § 13-1805; ARK. CODE ANN. § 5-36-102
- NEV. REV. STAT. § 597.850; OKLA. STAT. tit. 22, § 1343
- DEL. CODE ANN. tit. 11, § 840; N.M STAT. ANN. § 30-16-22
- MISS. CODE ANN. § 97-23-93
- N.D. CENT. CODE § 51-21-02
- Guijosa v. Wal-Mart Stores, Inc., 6 P.3d 583, 591-93, 101 Wash. App. 777 (2000) aff’d, 32 P.3d 250, 144 Wash. 2d 907 (2001)
This article was originally published in 2011 and was updated March 21, 2017.