Insights

The following is for informational purposes only and is designed to help provide information regarding some common questions regarding false imprisonment civil law in Wisconsin. The content of this site is not intended as legal advice. If you encounter a situation involving a false imprisonment, you should contact an attorney.

Have you been wrongfully accused of shoplifting in Wisconsin?

You are shopping at one of your favorite stores, trying on clothes and going in and out of the fitting room. After trying on some items, you decide to purchase one of the items and leave the rest of the merchandise in the fitting room. You pay for the item and exit the store. However, immediately after exiting, you are approached by a security guard. You know that you did not steal anything, but suddenly you are being accused of retail theft. “You need to come back inside with me,” you are told. “I saw you take three items into the fitting room and then only pay for one,” he says. The security guard then walks you back to an office, explains that the missing items aren’t in the fitting room, and tries to get you to admit to stealing.

Can a store do this? Is it legal?

It depends. Generally, a merchant can question someone it reasonably believes has attempted to steal. In cases of suspected retail theft, merchants are protected by what are called “shopkeeper immunity” or “merchant’s privilege” laws. Most states have a version of such a law. In Wisconsin, for example, a merchant “who has reasonable cause for believing” someone has shoplifted can “detain” the suspected shoplifter “in a reasonable manner” and “for a reasonable length of time.” Wis. Stat. Sec. 943.50(3). So what is “reasonable” in this situation? Again, it depends.

In terms of believing you stole merchandise, “reasonable cause” is often referred to as “probable cause.” The question is not whether you actually stole the merchandise. Rather, the question is whether the retailer had probable cause—a reasonable basis—to suspect that a theft occurred. Merely suspecting you stole merchandise because of the color of your skin, how you are dressed, or because you brought a large bag with you into the store is not sufficient. If the merchant does not have probable cause, it cannot detain you.

In addition to having probable or reasonable cause, merchants must detain and question you “in a reasonable manner” to be protected by the statute. Merchants can only detain and question you for a limited amount of time. Five minutes, for example, is more reasonable than two hours. The manner of detention must be reasonable too. Merchants cannot search you or your belongings without your permission, cannot refuse to let you make a phone call, and cannot prevent you from leaving the premises. Additionally, merchants cannot touch or verbally abuse you.