Gortarez v. Smitty's Super Valu, Inc
In Gortarez v. Smitty's Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807 (1984), the supreme court reviewed the history of the shopkeeper's defense.
In that case, two suspected shoplifters had been confronted by a security guard. Id. at 100-01, 680 P.2d at 810-11.
The guard placed one of them, Gortarez, in a choke hold, injuring him. Gortarez sued the guard and the store.
The supreme court reversed the trial court's directed verdict for the defendants and held that the jury should determine whether the detention had been undertaken for a proper purpose and in a reasonable manner. Id. at 104-05, 680 P.2d at 814-15.
The supreme court explained that, under the common law, there was no "shopkeeper's privilege" to arrest or detain a suspected thief because the privilege of a private citizen to arrest a misdemeanant was limited to crimes involving a breach of peace, which did not include shoplifting. Id. at 102, 680 P.2d at 812.
Although a limited privilege might have permitted an owner in fresh pursuit of a thief to use reasonable force to recapture a chattel, the owner would be liable for any damages if he was mistaken about the facts, and "the force privileged must have been reasonable under the circumstances, and not calculated to inflict serious bodily harm.
Ordinarily, the use of any force at all would not be justified until there had been a demand made for the return of the property." Id.
The court acknowledged the "developing, common law 'shopkeeper's privilege,'" codified in A.R.S. 13-1805, which provides in part:
"A merchant, or his agent or employee, with reasonable cause, may detain on the premises in a reasonable manner and for a reasonable time any person suspected of shoplifting . . . for questioning or summoning a law enforcement officer." Gortarez, 140 Ariz. at 102, 680 P.2d at 812, quoting former 13-1805(C)
The court emphasized that such a privilege only applied to a detention accomplished in a reasonable manner and noted that "the use of force is never privileged unless the resistance of the suspected thief makes the use of such force necessary for the actor's self-defense." Id. at 104, 680 P.2d at 814, citing Restatement (Second) of Torts 120A cmt. h (1965).