MEMORANDUM OF LAW

To: Supervising Attorney

From: Sandra Black, Paralegal

Date: June 22, 2010

Case: Duran v. Shoptown

Re: False Imprisonment

Statement of Assignment

I have been assigned the task of answering the legal question if there is a possibility that Mrs.
Duran will prevail in a false imprisonment claim in response to shoplifting allegation made by
the store’s security guard.
Issue

Under Statutory Law: Kan. Stat. Ann. § 21-3424, Criminal Restraint. (a) Criminal restraint is
knowingly and without legal authority restraining another person so as to interfere substantially
with such person's liberty. (b) This section shall not apply to acts done in the performance of
duty by any law enforcement officer of the state of Kansas or any political subdivision thereof.
(c) Any merchant, or a merchant's agent or employee, who has probable cause to believe that a
person has actual possession of and has wrongfully taken, or is about to wrongfully take
merchandise from a mercantile establishment, may detain such person on the premises or in the
immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the
purpose of investigating the circumstances of such possession. Such reasonable detention shall
not constitute an arrest nor criminal restraint.

Brief Answer

Qualification. No. In the case of, Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d
257 (1993), “Martin Melia filed suit seeking compensatory and punitive damages against Dillon
Companies, Inc., (Dillon) upon allegations of false imprisonment and malicious prosecution.
The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200. The
trial court additionally imposed punitive damages of $20,000. Dillon appeals, contending the
trial court erred in not granting its motion for directed verdict. We agree and reverse the
judgment of the trial court.”

Statement of Facts

The store’s security guard saw Janet Duran place a bottle of nail polish in her coat pocket as she
was shopping. Ms. Duran took the polish from her pocket and put the polish back. She attempted
to leave the store after she paid for her items when the guard stopped her and took her to the
manager’s office. The guard advised her that he was detaining her for shoplifting. The store
manager searched her purse and ordered Ms. Duran to empty her pockets. She willingly
complied with the request. The store manager searched her purse and did not find the polish. The
manager asked her to leave the store immediately following the search.

Analysis

Storeowners, managers, employees, and security officers have limited rights when detaining a
person reasonably suspected of shoplifting. Detention is limited to the premises or immediate
vicinity. An investigation of the incident must also take place within a reasonable manner and
amount of time.

There are three elements involved in false imprisonment: (1) confinement (2) restraint without a
means of escaping and (3) there must be harm or injury caused by the confinement or detention.
Malice is not an element included in the tort of false imprisonment. However, if it can be proven
by a plaintiff, punitive damages, compensatory damages, or nominal damages can be awarded.

Jane Duran’s detention meets the confinement element but she was not restrained or held against
her will by the security officer or store manager. There was no harm or injury caused by the
detention and store personnel conducted an immediate investigation. The nail polish was not
found on Ms. Duran after the search and the manager asked her to leave immediately after the
store investigation was completed. While the accusation and detention may have been
embarrassing, there was no harm or injury caused by the actions of the store employees such as
prosecution or loss of wages.

According to the case law in Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257
(1993), the court evaluated Melia's false imprisonment claim under the provisions of K.S.A. 21-
3424 which is the controlling statutory law in the case. The court clarified the statute:

"(1) Unlawful restraint is knowingly and without legal authority restraining another so as to
interfere substantially with his liberty.

(3) Any merchant, his agent or employee, who has probable cause to believe that a person has
actual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandise
from a mercantile establishment, may detain such person (a) on the premises or (b) in the
immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the
purpose of investigating the circumstances of such possession. Such reasonable detention shall
not constitute an arrest or an unlawful restraint.

Although 21-3424 is a criminal statute, the merchant's defense set forth in subsection (3) is
applicable to civil actions for false imprisonment” as established in the case of Alvarado v. City
of Dodge City, 238 Kan. 48, 60, 708 P.2d 174 (1985). The appellate court overturned the trial
court’s judgment and directed verdict against Dillion based on the probable cause factor.
The crucial factor in reasonably suspecting Ms. Duran for the crime of shoplifting and the
detention is probable cause. This factor is applicable to both police officers and shopkeepers.
Probable cause for the shoplifting was justified when the security guard observed the plaintiff
place a bottle of nail polish in her pocket, which is consistent with Section 3 of the statutory law
as clarified by the appellate court in Melia.

Conclusion

The detention was legal under the statute and case law. There was enough probable cause for the
security officer to detain Ms. Duran because he had a reasonable belief to do so by his
observation, which was in the scope of his employment with Shoptown.

Recommendation

A false imprisonment case will most likely not prevail due to the strong “probable cause” factor
of detention cited in the case law examples. The case will most likely not prevail under statutory
law due to the legality of detaining a person on the store premises or vicinity for a reasonable
suspicion of a criminal act.