Eco-Friendly Shopping, Shoplifting Charges and Personal Injury Claims: Tis the Season

A recent case from the New Mexico Court of Appeals is good reading for both merchants and shoppers with the coming holiday shopping season. The case of Holguin v. Sally Beauty Supply illustrates some basic “do‘s and don‘ts” of holiday shopping.

The case stemmed from the use of one of the “eco-friendly” bags that have become so popular these days. Ms. Holguin was shopping at Sally Beauty Supply with her eco-friendly bag. While doing so, she put merchandize in the bag and headed to the counter to ask some questions. Before she could get there, the assistant manager stopped her, accused her of shoplifting, and detained her until the police arrived. Upon refusal to sign a “no trespass” statement and admit guilt, Ms. Holguin was arrested.

It is not clear from the record, but apparently the criminal shoplifting charges were never filed or the charges were dismissed resulting in a personal injury lawsuit against Sally Beauty Supply for “false imprisonment, false accusation of shoplifting, and false and malicious abuse of prosecution.”

The district court judge dismissed the action on the grounds that merchants have a qualified privilege to detain a shopper when they believe the shopper willfully concealed merchandise under NMSA §30-16-23 and therefore were immune from suit.

The New Mexico Court of Appeals framed the issues as follows:

“(1) whether a customer who places merchandise into a reusable, personal canvas shopping bag, without more, has “willfully concealed” merchandise; and (2) whether a statutory presumption of intent applicable to a criminal prosecution for shoplifting also applies to the merchant‘s conditional privilege.”

Unlike the district court, the Court of Appeals answered in the negative to both these questions resulting in a reversal of the district court‘s grant of summary judgment. The case was then appealed to the New Mexico Supreme Court where certiorari was denied making this case the law for now.

The statute in question, NMSA § 30-16-23 states that if merchant has:

“probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it, or has willfully concealed merchandise… the merchant may…take the person into custody …Such taking into custody or detention shall not subject…merchant to any criminal or civil liability.”

The Court engaged in a lengthy discussion on the meaning of the terms probable cause, intent to convert (steal), and willfully conceal. The Court stated plainly that the burden is on the merchant to show probable cause at the time of the customer was detained.

The Court recognized that in self-serve stores as most stores are today, there are countless situations where merchandise might be concealed without the intent to steal. As such, simple concealment is not enough. The burden is also on the merchant to show the person concealed the merchandise with the intent to steal it.

The Court acknowledged that under the criminal law of shoplifting, there is a presumption of intent to steal once the merchandise is concealed. However, this is a mere presumption and it is left for the jury to decide. In any event the Court ruled that the statutory presumption of intent under the criminal shoplifting statute did not apply to a merchant‘s qualified privilege and immunity under NMSA §30-16-23.

The Court stated that whether the merchant has met the burden of proving probable cause is determined by the totality of the circumstances. In this particular case, the totality of the circumstances did not suggest that requisite intent to support summary judgment. The court basically said that this issue should be decided by a jury and not by the court on summary judgment.

In light of the prevalence of eco-friendly shopping bags, which presumably are for shopping, there are likely to be a number of such encounters during the holiday season. Both merchants and shoppers should proceed with due care in light of this decision. After all, there are significant risks for both.


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