Shopkeeper Privilege Arizona

The Arizona common law originally did not recognize a shopkeeper's privilege. See Gortarez v. Smitty's Super Valu, Inc, 140 Ariz. at 102, 680 P.2d at 812. And, even after that privilege developed, the law in Arizona has always been that the use of force in the face of wrongful conduct--even if that conduct may be categorized as criminal--only relieves a defendant of liability to the extent that the force used was reasonable. An injured party may bring an action for damages arising out of allegedly unwarranted or excessive force, and any disputed facts or inferences to be drawn from undisputed facts in such a case must be resolved by a jury. See id. at 104, 680 P.2d at 814. 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) (emphasis in Gortarez). 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).