Riley Wright: What Type Of Misdemeanor Is Shoplifting?

Shoplifting offenses are fairly common, but that doesn’t mean shoplifting crimes aren’t taken seriously. Every state’s penal code includes provisions that apply to shoplifting (usually under the umbrella of theft or larceny statutes), and penalties can be harsh — especially when the dollar value of the merchandise is high, or the offender has a criminal record. Shoplifting is typically defined more broadly than the simple removal of merchandise from a store without paying for it. However successfully leaving the store with unpaid merchandise is not the sole, defining characteristic. Intent to steal suffices to be charged with shoplifting (or retail fraud) for things like:

• altering a price tag

• removing (or even just trying to remove) security tags and other theft-prevention

• “secreting” an item on your person while still in the store (putting merchandise in your pocket or purse), and

• removing an item from its packaging and concealing it in or among other merchandise.

How Shoplifting is Charged and Punished

In many states, shoplifting is charged and punished as a theft or larceny offense usually as a petty theft or the state’s lowest-level theft offense if the value of the merchandise stolen falls below a certain threshold ($500, for example). Other states do differentiate between shoplifting and standard theft offenses for purposes of charging and sentencing, and may treat shoplifting less severely than other theft offenses (i.e., as an infraction rather than as a misdemeanor). As the dollar value of the stolen merchandise increases, so does the seriousness of the criminal charge that will result from a shoplifting offense from infractions (in some states) to misdemeanors, to low-level and mid-level felonies.

Civil Liability for Shoplifting

In addition to any criminal penalties stemming from a shoplifting offense, every state has a civil law under which any person who commits shoplifting can be held civilly liable to the store owner (or the owner of the merchandise) for money damages stemming from the incident. And in almost every state, the parent or legal guardian of a minor who commits shoplifting may also be on the hook for money damages although a few states require that the parent or guardian knew or should have known of the minor’s proclivity toward shoplifting. And in other states, where the parent or legal guardian is on the hook, the ceiling for the monetary penalty is lower than it would be for an adult shoplifter.

These statutes may require that, before filing a civil suit, the store owner make a written demand for payment (and that the demand go unmet). And in most states, the civil case may proceed regardless of whether criminal charges are ever filed in connection with the shoplifting incident. Every state’s shoplifting civil liability law is different and you can click on the links at the end of this article for details on the law in your state — but financial liability might include payment or repayment of:

• the full retail value of the item stolen, if not returned in sellable condition

• the store owner’s other financial losses resulting from the theft

• an additional civil penalty, usually based on a formula that includes the value of the merchandise stolen (i.e. “an additional penalty of $500 or two times the value of the merchandise, whichever is greater”), and

• repayment of the store or merchandise owner’s court costs and reasonable attorneys’ fees.

In many states, a person accused of committing a shoplifting offense will be charged with a more serious crime (and/or face a stiffer punishment) if there is evidence that the offense was part of a shoplifting “spree” or organized series of thefts from retail establishments. Some states call these schemes “retail theft rings,” especially when they include the illegal resale of the stolen items. “Shoplifting” generally refers to the theft of merchandise from a store or place of business. Shoplifting is a type of larceny, which simply means taking the property of someone else without their permission, and with the intent to permanently deprive the owner of the property taken. Though states may punish shoplifting under their general larceny or theft statutes, many states have enacted statutes to specifically address shoplifting. States may refer to the crime by different names, including “retail theft” and “concealment of merchandise.”

Elements of Shoplifting

Each state’s laws vary, but generally shoplifting offenses include two basic elements:

• Willfully concealing or taking possession of items being offered for sale; and

• The intent to deprive the items’ rightful owner (typically the store) of possession of the items, without paying the purchase price.
Crucially, this means that in most states, one can break shoplifting laws without attempting to get out of a store with stolen goods. Simply concealing merchandise, inside or outside the store, will often be enough. One must have the intent to take the item from the store; however, many states consider the act of concealing merchandise to be evidence of intent. In addition to hiding an item to avoid paying for it, shoplifting laws also make it illegal to take actions to avoid paying the full purchase price for an item. This can include altering price tags, manipulating merchandise, and putting goods into different containers or packaging to avoid paying all or part of the purchase price.

Severity of Shoplifting Charges

Like charges for other types of theft, the severity of shoplifting charges generally depends on the value of the goods involved. If firearms, explosives or incendiary devices are shoplifted, the severity of charges increases in many states. States laws often include a range of charges, and can allow prosecutors discretion in deciding which charges to pursue in a given case. In many states, the range of shoplifting charges runs from a low level “infraction,” to misdemeanor, up to differing degrees of felony charges. In some states, any shoplifting offense will be charged as at least a misdemeanor. Often, the prosecutor will be able to choose between multiple levels of charges. Prior criminal convictions, specifically prior theft convictions, regularly play a large part in the prosecutor’s decision of which charge to pursue. In some states, prior theft convictions automatically result in a more severe charge. Typically, infractions result in a fine. Depending on the state, misdemeanor charges may result in jail time (less than one year), probation and/or a fine. Felonies may result in a longer jail sentence, probation and/or a larger fine. State laws vary widely in the severity of shoplifting charges. In some places, any shoplifting offense may result in a jail sentence.

In-Store Detention of Shoplifters

While there is such thing as a citizen’s arrest, private citizens generally may not legally hold people against their will. Doing so opens the door to civil and even criminal liability for false imprisonment. However, many states have enacted statutes specifically authorizing stores and their employees to detain suspected shoplifters in certain circumstances. These laws serve to protect the stores from lawsuits claiming false imprisonment or false arrest. Though these laws vary, store owners and their employees generally are allowed to detain an individual when they have probable cause to suspect shoplifting. However, any such detention of a suspected shoplifter must be reasonable in length and manner. Detentions without probable cause, for an unreasonable amount of time, or in an unreasonable manner may leave the store open to liability for false imprisonment and possibly other claims. What constitutes probable cause to suspect shoplifting comes down to case by case specifics.

Mere suspicion typically will not suffice. Most states require that the store or its employees have evidence which would lead a reasonable person to believe that shoplifting had occurred or was in progress. If the store bases its detention of a suspected shoplifter on information from a non-employee informer, that informer must have a reasonable basis for suspecting shoplifting. Whether a detention is considered unreasonable is determined on a case by case basis, but there are factors that can nudge the detention into unreasonable territory quickly. The three most common factors are the length of detention, the purpose of the detention, and the force that was used. A excessively long detention continued for the purpose of securing a confession or a release of store liability, or the use of excessive force would be considered unreasonable under many states’ laws. An unreasonable detention could leave the store and its employees open to liability for false imprisonment and possibly other claims, such as assault or battery.

Sometimes shoplifting is referred to as “petty theft” or “fourth-degree theft.” These are very minor crimes, usually punishable only with a fine. However, this is true only when the value of the stolen item is small, such as:

• Costume jewelry

• A pack of gum

• One or two items of off-the-rack clothing

• Small electronics like a flash drive

These small items may make the crime seem small as well. But it is the dollar value of the item that determines the charge, not its size. States differ in the exact value that elevates shoplifting to a felony, although it is typically between $50 and $500. New Jersey sets the upper limit for a minor offense at $200, and the Florida theft statutes create a tiered system where generally theft of $100 or less is a second-degree misdemeanor, while stealing merchandise valued between $100 and $300 is a first-degree misdemeanor. Anything of greater value is a felony.
This means that some of the small items listed above could result in felony shoplifting if they are of high value, such as:

• Designer jewelry

• Designer clothing

• An iPhone

• A pocketful of mp3 players

In some states, a second conviction is a mandatory felony regardless of the value of the item stolen.

Possible Sentences for Shoplifting Charges

Sentencing for a shoplifting conviction depends on the severity of the charges. For misdemeanor charges most states set punishments of up to one year in jail and a relatively small fine, often not more than $500. The exact sentence can depend on the class of misdemeanor and the existence of prior convictions. Juveniles are often eligible for lighter sentences than adults. Felony shoplifting charges are much more serious, with the potential for several years in prison and several thousands of dollars in fines. For example, a third-degree felony in Florida is eligible for up to five years in prison and a $5,000 fine. Even a light sentence for a shoplifting conviction will result in a criminal record unless you can get it sealed or expunged, which is not possible in all states. Having a criminal record can make things difficult for the rest of your life, especially when trying to get a job or obtaining some professional licenses.

If you have been charged with shoplifting, it is important to understand the possible consequences and to talk with an experienced criminal defense attorney as soon as possible. Your lawyer can discuss your options and might be able to help you get the charges dropped, reduced or deferred, especially if it’s the first offense. Depending on factors such as a defendant’s criminal history and the value of property stolen, shoplifting is not always the same as “petty theft.” Petty theft is a term used to describe theft crimes involving smaller amounts of stolen property. At Ascent Law, LLC, our theft lawyers have extensive experience handling all types of shoplifting cases, including the most serious allegations.
Shoplifting offenses may include the following:

• Misdemeanor Theft: Misdemeanor theft is the most common charge prosecuted in cases of shoplifting. These offenses can include Class C, B, and A misdemeanors that are prosecuted in accordance to the value of property stolen.

I. Class C misdemeanor – theft of property valued at less than $50.

II. Class B misdemeanor – theft of property between $50 and $500.

III. Class A misdemeanor – theft of property between $500 and $1,500.

• State Jail Felony Theft: If the value of property stolen is between $1,500 and $20,000, you can be charged with a state jail felony, which carries penalties that include imprisonment in a state jail between 6 months and 2 years, and / or fines up to $10,000.

• Felony Theft: Felony theft in the first, second, or third degree are the most serious theft charges one can face. While they are not exceedingly common in shoplifting cases due to the value of property stolen, they can be charged in cases where an alleged shoplifter stole multiple times from a retailer, or stole items of significant worth.

I. Third Degree Theft – stolen property ranging from $10K – $100K

II. Second Degree Theft – stolen property ranging from $100K to $200K

III. First Degree Theft – stolen property ranging from $200K or more