The Shopkeeper’s Privilege: Penal Code Section 490.5

When a security officer, or any other person for that matter, unlawfully detains another person, he or she may be held both civilly and criminally liable for such conduct. This means that the person who was unlawfully detained may file a lawsuit against the security officer, his/her employer, and the business at which the security officer was working.

In a civil action, False Imprisonment occurs when:

  1. the person was in custody,
  2. there was an unnecessary delay in releasing the person,
  3. the person did not consent to the delay,
  4. the person was harmed, and
  5. the security guard’s actions were a substantial factor in causing harm to the person. (California Civil Jury Instruction 1407.)

False Imprisonment can occur even when the person detained has only been detained for a short period of time.

False Imprisonment does not require physical detainment, nor does it require that the security officer to bring the person into a locked office. Every time you stop a person for any appreciable length of time, and the person reasonably believes that he or she is not free to leave, that is a detainment which may be deemed a false imprisonment (assuming it was unjustified).

Of course, the suspect would have to show that he or she suffered some form of harm as a result of the detainment. However, the harm suffered by the person detained could be psychological harm, which may be proved merely by the suspect’s own testimony.

False Imprisonment is usually alleged when a person is detained and then brought into a back office for more thorough questioning. However, as discussed below, shopkeepers and their agents (including security officers) can obtain complete immunity from a claim of false imprisonment provided that they meet the requirements of the Shopkeeper’s Privilege. For this reason, it is critical that the security officer write in his/her report or log as much information as possible regarding the detention, including the reason and purpose for the detention, how long the detention lasted, and whether the suspect consented to the detention.

Witnesses are always helpful with respect to establishing the privilege. This will help ensure that the person detained does not fabricate stories of what occurred during the detention, including allegations of battery, torture, or sexual assault. If at all possible, make sure that someone else (another security officer, a store manager, etc.) is present during the detention.