Memorandum

Memorandum

To:                  New Associates                                                                                       Privileged & Confidential

                                                                                                                                                     Attorney Work Product          

From:             Senior Attorney

Date:               April 1, 2021

Re:                   Incident at Save-A-Lot Store on November 22, 2019

                                                                                                                                                _____________________________

            Our client, Save-A-Lot, Inc., owns and operates a number of variety stores, which are commonly referred to as Save-A-Lots. On November 22, 2019, an incident occurred at one of the stores. Walter Smith, whom Save-A-Lot employs as a security guard, detained a customer that he suspected of shoplifting. Save-A-Lot is now concerned because the customer, whose name is Molly Holt, has brought an action for false imprisonment.

            We were able to ascertain additional facts about the incident.  The complete facts as we know now are these:

Smith was wearing his regular outfit for working as a security guard: Save-A-Lot polo shirt with the store’s logo on the front and with the word “security” printed on the back, dark trousers, and dark shoes. Smith also works as a police officer for the City of Lakeland, but he was not on duty and he was not armed. He also did not have anything with him identifying him as a police officer.

Shortly before noon, Smith observed Holt behaving in a manner that caught his attention. She entered the store and seemed to be hurriedly moving about, picking up small items, looking around, and then replacing them. She seemed nervous. These actions—moving around quickly, picking a lot of things up and putting them down, seeming to be in a rush, and looking nervous—are, to Smith, all indicators of a possible shoplifter. As a result, he decided to pay close attention to her.

When Smith saw Holt head for the door but then veer towards the jewelry section, he watched from a discrete distance as she tried on several necklaces. At one point he noticed that she had at least four or five necklaces around her neck. He then saw her take all but one of the necklaces off and quickly head for the door. Smith did not recall Holt having a necklace on when she arrived, so he quickly followed her.

As Holt left the store, Smith called out “Miss, Miss,” but she did not stop. Smith took a few quick steps, and tapped Holt on her right shoulder blade to get her attention. Holt stopped, whirled around with a stricken look on her face, and said what sounded like “What” but it was not clear and sounded a bit strange.

Smith does not recall precisely whether he identified himself as a security guard.  Smith does recall saying “please come with me young lady.”  Holt seemed upset, but she complied and accompanied Smith to the designated office for shoplifting inquires.  Smith walked behind Holt and directed her to the office by touching her elbow once or twice.  The office is probably about 10 by 16 feet, and is near to and visible from the sales floor.

In the office, Smith asked Holt whether she had forgotten to pay for the necklace.  She claimed it was hers, but conceded it was a gift and may have been purchased from a Save-A-Lot.  Smith asked for the necklace and Holt provided it to him for inspection.  Smith then said it looked like a Save-A-Lot necklace and asked to look at her purse.  Holt handed Smith the purse.  Smith found no merchandise or merchandise label in the purse.  Although, he did ask for her driver’s license and after gaining her permission, he copied it and returned it with the purse.

Smith then took the necklace and went to look for the jewelry sales clerk who was unavailable as she was on a half-hour break.  Another sales clerk was available, and Smith could have asked this sales clerk about the necklace, but the sales clerk was not really “assigned” to the jewelry department, and Smith decided to wait for the jewelry sales clerk to get back from her break.

Smith returned the necklace back to the office, placed it on the desk and advised Holt it would be a few minutes.  Smith does not recall if he asked her to stay where she was, but she did not ask whether she could leave.

Smith returned to the sales floor to await the clerk.  During this time, Holt peered out of the office door occasionally and Smith may have raised his index finger once or twice to indicate it would be a few more minutes.  Upon the clerk’s return from her break thirty minutes later, Smith returned to the office, took the necklace and confirmed the necklace was from Save-A-Lot but learned that it was no longer in the store’s inventory.  Smith then returned the necklace to Holt, apologized for the misunderstanding, and advised Ms. Holt she was free to go.  In total, Ms. Holt was in the office for about forty-five minutes.

Please draft an office memo on the likely outcome of Holt’s claim for false imprisonment including our client’s defense of shopkeeper’s privilege.  Our best argument under false imprisonment looks to be the issue of confinement.  If that fails, we should be able to argue shopkeeper’s privilege.  Therefore, focus your memo on those two issues. 

You already have Kalbfell v. Marc Glassman, Inc., which details the elements of false imprisonment including how the courts decide confinement.  You also have the shopkeeper’s privilege statute.  Please add Stoffel v. Big Bear Stores Co. and Hodges v. Meijer, Inc., to your analysis.  These cases should help clarify the courts’ analysis of key elements of shopkeeper’s privilege including probable cause and reasonable manner and time.  All three cases and the shopkeeper’s privilege statute are available on Canvas.  The complete Memo is due by 5pm on Monday, May 3, 2021.