Retail Security Use of Force Expert Article

The forensic evaluation of “use of force” for retail security guards will consider a variety of factors relevant to the circumstances of the incident. Factors including state and local laws, company policies, and the actions of the plaintiff or defendant leading up to and during the conflict can all potentially influence what constitutes an appropriate and reasonable response by security professionals.

In this article, police practices & security expert, Mark Meredith examines retail security standards through the lens of a hypothetical scenario. 

Security Use of Force Expert Witness Investigations

Retail Security Use of Force

Example Scenario

Two uniformed, unarmed security guards working for a large retail chain in a high-crime area watched as a patron picked-up display items and concealed them on their person. The security guards continually watched the shoplifter while in the store and did not see him relinquish the concealed items. 

The shoplifter walked past several open cash registers without attempting to pay for the concealed item(s) and towards the store exit. However, before exiting the store, the two uniformed security guards confronted the shoplifter and demanded the items back. The shoplifter became belligerent and assaulted one of the guards. After assaulting the security guard, the shoplifter attempted to flee the store, still possessing the stolen items. 

At this moment, the security guards need to determine their course of action. Do the security guards forcefully detain the shoplifter or disengage? What level of force would be reasonable for the security guards to utilize? 

To understand a proper security guard response to this situation, a security expert must examine multiple factors.

State Laws for Retail Security

One of the first steps in examining the security guards' response to this situation would be to look at state law. Numerous states have Shopkeepers Privilege or Merchant statutes that allow uniformed security guards or plain clothes loss prevention agents to temporarily stop or "detain" a suspected shoplifter.

A detention is not considered an arrest. Detention allows the security guard to temporarily stop the suspected shoplifter to conduct an investigation into the alleged theft. Once the suspect is detained, security can either ask the suspect to return the stolen merchandise, or place the suspect under citizen’s arrest for the crime and contact the local police.

Under the Shopkeeper Privilege or Merchant Statutes, security guards must establish probable cause before detaining a suspected shoplifter. These statutes also provide the retail store with limited liability protection if the detention is based on good faith and probable cause to believe a theft was, in fact, committed. 

To meet the Shopkeeper Privilege or Merchant Statutes, security guards must generally establish six elements:

  1. See the shoplifter approach  store merchandise. 
  2. See the shoplifter select store merchandise. 
  3. See the shoplifter conceal or carry away the store merchandise. 
  4. Have a constant visual observation of the shoplifter while in the store. 
  5. See the shoplifter fail to pay for the store merchandise at designated cash registers 
  6. The security guard can approach the shoplifter either inside or outside the store to detain them. 

If all six elements are met, the Shopkeeper Privilege or Merchant Statutes allows security guards to "detain" a shoplifter either to retrieve the stolen merchandise or to place the shoplifter under citizen's arrest and call the local police department. The Shopkeeper Privilege (or Merchant Statutes) also allows a security guard to use reasonable force to detain or place the suspected shoplifter under citizen's arrest or in defense of themselves or others.

Some states also dictate the amount of force a retail security guard can use. For example, the Texas Penal Code in part states:

"A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." 

Often states have licensing requirements that must be met for security guards. Click here a complete list of states requiring licensed security guards. The state of California enacted Assembly Bill 229 as of January 1st, 2023, which defines the use of force for security guards and mandates training for all security personnel in the proper and reasonable use of force. 

County or City Ordinances for Private Security

Along with states, some counties and cities have specific laws relating to security guards. An example is Providence, Rhode Island, which requires all security guards to be licensed and trained through the Police Department. The Providence Police Department conducts criminal background checks and certifies security training programs for security guards. 

Industry Standard for Security Use of Force

A security guard, like any citizen, has the right to defend themselves (or another person). As such, the force used by a security guard to defend themselves, or another, or to retrieve stolen property needs to be reasonable and proportionate to the force used against them. The best way to understand what would be considered reasonable and appropriate security use of force is to examine the Use of Force Continuum.

The Use of Force Continuum is best described as a set of objectively reasonable guidelines that the security guard can use to determine what level of force is appropriate for the circumstances. These levels can range from security officer presence and verbal commands to, control holds, chemical agents, offensive strikes against the suspect and ultimately to deadly force.

A security guard must choose the level of force based on the totality of the circumstances known at the time. Considerations could include the nature of the crime (misdemeanor, felony), and whether the shoplifter is known to be violent, among other factors.

Retail Store Policies & Procedures

The retail store's policies and procedures regarding shoplifters and their retail security use of force also should be examined. A retail store should have policies and procedures regarding the detention of shoplifters, which may include only detaining shoplifters who steal items above a specified dollar amount. The store may have policies and procedures that prevent security from chasing a suspected shoplifter, if force can be used, or what type of force can be used to detain a suspect shoplifter.  

Most state laws and industry standards lay out the steps a security guard should adhere to  when detaining a suspected shoplifter. Additionally, some state laws and industry standards dictate the type and amount of force a security guard can use based on the totality of the circumstances.

Guard Training & Post Orders

The forensic investigation of a security use-of-force case will likely consider any training received by the security guards while employed by the retail store. If the state requires retail security to be licensed, the training manual from that licensing course should be reviewed. A forensic evaluation would consider documentation that identifies the security guard’s duties and responsibilities as outlined by either the store’s management or the retailer’s corporate policies. This may include documentation of Post Orders, additional training received from other security jobs, or on the job training the security guard received while employed at the store.

In the original scenario, the security guards used several levels of the Use of Force Continuum against the shoplifter, causing significant injury to the shoplifter. After arresting the shoplifter, the guards retrieved the items they observed the shoplifter steal. 

To determine if the security guards’ use of force against the shoplifter was reasonable and appropriate, an expert would need to understand state laws, city or county laws, industry standards, the store policies and procedures, the security guards’ training, licensing, and other information known at the time of the incident. 

Security Expert Witness Investigations

Former police officers, retired FBI agents, and professors of forensic science all contribute to the impressive capabilities of our law enforcement practice. Our forensic experts are often tasked with reviewing the actions of police, forensic investigators, and security professionals. Our experts have received the highest levels of training and have done the work at every level of law enforcement.

For more information, visit our Police Practices & Security page or submit an inquiry.

Featured Expert

Mark Meredith, Police Practices & Premises Security Expert

Mark Meredith

Police Practices & Premises Security Expert
Mark Meredith has a diverse background in law enforcement and security spanning more than 25 years. Throughout his career, Mark has worked with police agencies, the Department of Homeland… read more.

Related

View All Articles

Retail Loss Prevention: Shoplifting 101

By John Hassard
Expert Article

In this article, loss prevention and security expert, John Hassard M.SC., LPC, CFE, CPP, provides an introduction to loss prevention and the strategies that retailers use to control shrink, while…

Video Evidence: Forensic Analysis of Surveillance Systems & Footage

By John Hassard
Expert Article

Forensic analysis of CCTV video evidence is potentially broader than scrutinizing the visible elements in a recording. System analysis can often be used to identify other relevant video files,…

Police Use/Non-Use of Body Worn Cameras

By Mark Meredith
Expert Article

The use/non-use of Body Worn Cameras (BWCs) by law enforcement may be called into question in a broad range of civil and criminal disputes. In this article, police practices expert Mark Meredith…