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Shoplifting: The civil demand letter.

Posted by attorney Terri Leary

If you are caught shoplifting in Massachusetts, you will face two separate consequences:

First, it is likely that you will receive a "civil demand" for "damages" the store has suffered from your act. This may sound odd to you, especially if the merchandise was recovered before you ever left the store, but our laws allow merchants to make this demand.

In Massachusetts, the current law says that merchants who have been the victim of shoplifting are entitled to claim $50 to $500 above the actual damages (stolen or damaged merchandise) from the person who caused the damages. That means that if you are caught shoplifting, you are likely to receive a demand from the store or its representative for some monetary amount, and it is up to the store to decide just how much to claim. Some attorneys advise that, regardless of the amount demanded, the shoplifter not agree to pay the civil demand. In order to recover the amount, they rationalize, the store must have their attorney file a lawsuit in court and sue you for the demanded amount. Depending on the value to the store, this may be counter-productive. However, as with other types of collections cases, a merchant that is a frequent target for shoplifters can group several unpaid demand letters and file duplicate paperwork for each, bringing the accused shoplifters to court all on the same day, paying standard hourly rates for an attorney to address numerous suits at once.

The second consequence is criminal liability. When you are caught shoplifting, you may either be arrested or summonsed to court. If you are arrested, you will be charged with a crime and become a defendant in a criminal case. This is most likely when the value of the goods is over $250, which is a felony, but may happen with a theft of any value.

Often, if the value of the goods was less than $100, you will not likely be arrested, but may still be summoned to a clerk-magistrate's hearing. The purpose of the hearing is to determine whether to charge you with a criminal offense such as larceny under $250, a misdemeanor. The first time you are charged with a crime, the state creates a permanent criminal record, personalized just for you. From the point where you are arraigned, you will have a Probation Central File (PCF) number assigned to you, which will then show that at some point in your life, you were charged with a crime, no matter what the eventual result is. There are ways to "seal" your record, but the fact that you have one will always exist. Criminal penalties range from fines to jail time to prison time.

These two consequences, one civil and one criminal, are related. By paying the store's demanded amount, you are basically admitting responsibility, and that admission may be used by the prosecutor in seeking a criminal conviction. On the other hand, if you pay the demand and appear in a clerk's hearing, the clerk may be less inclined to issue the criminal charge and bog down the court system with shoplifting cases when the matter has been rectified civilly. Shoplifting cases are often dismissed because restitution has been paid. Therefore, as with other types of cases, the facts of each case are somewhat unique and should be analyzed by an attorney for the best outcome.

A bill currently pending before our legislature (Bill H.409) attempts to modify the current law in regard to shoplifting. It changes the way that merchants may attempt to recover damages from accused shoplifters. The merchant is limited to the actual damages (unrecovered or damaged merchandise), plus $50.00. The merchant may only attempt to recover higher damages if he has sought and obtained a judgment in civil court for a greater amount or if the accused has been convicted of criminal charges. While this bill sounds as though it would limit offender liability, it may actually encourage merchants to cooperate more fully with the police in seeking criminal convictions. By utilizing the criminal justice system, merchants could conceivably avoid the costs of civil litigation and recover the higher claim by demanding restitution.

If you have been accused of shoplifting, you should consult with an attorney before signing any forms for store personnel or security guards. Threats by the loss prevention personnel can be intimidating, but since they are not law enforcement officials, their intimidation is their only real power. Most merchants have a policy of reporting every incident, so signing documentation serves no purpose for you and provides additional evidence for the store. Your best defense in this situation is to listen respectfully, but make no statement of admission or defense. If and when you receive the civil demand, you should discuss it with your attorney so that she can advise you on the proper course of action.

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