18-4-407. Questioning of person suspected of theft without liability.

Statute text

If any person triggers an alarm or a theft detection device as defined in section 18-4-417 (2) or conceals upon his person or otherwise carries away any unpurchased goods, wares, or merchandise held or owned by any store or mercantile establishment, the merchant or any employee thereof or any peace officer, acting in good faith and upon probable cause based upon reasonable grounds therefor, may detain and question such person, in a reasonable manner for the purpose of ascertaining whether the person is guilty of theft. Such questioning of a person by a merchant, merchant's employee, or peace or police officer does not render the merchant, merchant's employee, or peace officer civilly or criminally liable for slander, false arrest, false imprisonment, malicious prosecution, or unlawful detention.

History

Source: L. 71: R&RE, p. 429, 1. C.R.S. 1963: 40-4-407. L. 2001: Entire section amended, p. 512, 1, effective July 1.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 18-4-407 is similar to former 40-5-31, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Section protects inquiry as to shoplifting. This section affords a degree of protection to one who, acting in good faith and upon probable cause based upon reasonable grounds, questions another for the purpose of ascertaining whether or not the person thus questioned is guilty of shoplifting. J. S. Dillon & Sons Stores Co. v. Carrington, 169 Colo. 242, 455 P.2d 201 (1969).

Such protection is not restricted to situations where person stopped has actually committed the offense of shoplifting. J. S. Dillon & Sons Stores Co. v. Carrington, 169 Colo. 242, 455 P.2d 201 (1969).

Actions of store are not actions of state. The statute permitting the detention of suspected shoplifters by the store management merely grants a license under state law to detain a suspect; it does not invest the individual with the authority of state law. The statute is intended merely to license a shopkeeper to undertake self-help to protect his property; it does not vest him with the authority of the state. The actions of the storekeepers in pursuit of their own personal interests cannot be considered to have been taken under color of state law under the civil rights act. Warren v. Cummings, 303 F. Supp. 803 (D. Colo. 1969).

The phrase "Such questioning of a person" can only mean the questioning of a person for the purpose of ascertaining whether or not he is guilty of shoplifting. J. S. Dillon & Sons Stores Co. v. Carrington, 169 Colo. 242, 455 P.2d 201 (1969).

Reasonable grounds to stop and question is issue of law. The issue as to whether the defendant's agents in stopping the plaintiff and questioning him acted in good faith and upon probable cause based upon reasonable grounds posed an issue of law which should have been resolved by the trial court under an appropriate instruction to the jury. J. S. Dillon & Sons Stores Co. v. Carrington, 169 Colo. 242, 455 P.2d 201 (1969).

Reasonableness of actions thereafter is issue of fact. The issue as to whether its agents, even though they had the right to stop and question the plaintiff, thereafter acted in a reasonable manner, which they must also do if they are to be given protection afforded by this section, was a genuinely controverted issue of fact which was properly one to be resolved by the jury. J. S. Dillon & Sons Stores Co. v. Carrington, 169 Colo. 242, 455 P.2d 201 (1969).

In action by shopper, who had been detained as a suspected shoplifter, for false imprisonment and slander, whether, under the statutory privilege relied on by the defendants, the manner and extent of the investigation and detention of the shopper were reasonable and whether there was probable cause to detain him were questions of fact. Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842 (1975).