United States: Make Crime Pay: How A Shoplifting Plaintiff's Criminal Defense Strategy Can Affect A Future Civil Action

Last Updated: April 5 2018
Article by M. Waite Thomas

Consider the following factual scenario: A national retail and/or grocery business suspects that one of its customers is shoplifting. That business undertakes an investigation into the underlying facts and concludes that there is enough evidence to stop and question that customer. After questioning, the business is convinced that the customer was actually shoplifting or in the process of shoplifting, calls the police, and files a citizen’s arrest. The police take the customer to jail, and legal proceedings begin. The customer hires a criminal defense attorney and waives the preliminary evidentiary hearing before the Magistrate. His or her attorney then obtains a dismissal from the local, elected solicitor – presumably not on the merits but through local contacts. That customer then files suit against business for malicious prosecution and false arrest.

What is the business to do in this scenario? Some businesses have unspoken policies to not call the police, even in blatant shoplifting cases, so as to mitigate the risk of a future lawsuit. The incentive to avoid these types of lawsuits is especially prevalent in Georgia, where there have been a number of eye-watering verdicts in the last ten years. In these circumstances, however, there is a little known way to fight back.

Normally, the major issue in cases of false arrest and malicious prosecution claims is: Was the defendant reasonable in believing he or she had probable cause to initiate the arrest of the plaintiff? If so, there is no liability and the case should be resolved through dispositive motions. If it is uncertain, the issue will go to a jury. Yet, questions of reasonableness are typically reserved for a jury. Brown v. Winn-Dixie Atlanta, Inc., 194 Ga. App. 130 (1989). 

In, Georgia courts have found that where a plaintiff chooses to have his or her criminal matter bound over to state court before a preliminary hearing on the evidence, that voluntary binding over constitutes prima facie evidence of probable cause. “The waiver of preliminary hearing by appellant in the criminal prosecution for shoplifting is tantamount to a finding by the magistrate that there is sufficient cause to believe appellant guilty, thereby giving rise to a prima facie establishment of probable cause for appellant's arrest and prosecution for shoplifting.” Garmon v. Warehouse Groceries Food Ctr. 207 Ga. App. 89 (1993) (emphasis added). At which point, the plaintiff can no longer rest on his or her pleadings to establish lack of probable cause but would be required to “point to specific evidence giving rise to a triable issue” thereof. Id. 

In Garmon, the plaintiff quickly selected a can of tobacco and put it in his pocket. 207 Ga. App. 89,  90. He shopped with his wife for an additional forty-five minutes. Id. The couple checked out, purchasing sixty-eight dollars of groceries. Id. The plaintiff never removed the tobacco can from his pocket during the check-out process. Id. Management confronted the plaintiff. Id. He apologized, stated it was a mistake, and offered to pay for the item. Id. Regardless, the store initiated his arrest. In his initial appearance before the magistrate, the plaintiff immediately requested that the criminal case be bound over to the state court for a trial by jury. Based on these facts, the trial court granted summary judgment against the plaintiff’s claims of false arrest and malicious prosecution. 

On appeal, the Georgia Court of Appeals affirmed summary judgment. In a unanimous opinion, the panel noted that, “the magistrate did not conduct an evidentiary ‘investigation,’ within the meaning … but bound appellant, pursuant to the latter's request, forthwith to the state court for trial by jury. This procedural tactic by appellant constituted the waiver of any preliminary examination by the magistrate. And the better view appears to be that the waiver of a preliminary examination by a person charged with a crime is prima facie evidence of probable cause the same as if defendant had been duly committed by the magistrate following an evidentiary investigation or hearing. That is, the waiver of preliminary hearing by appellant in the criminal prosecution for shoplifting is tantamount to a finding by the magistrate that there is sufficient cause to believe appellant guilty, thereby giving rise to a prima facie establishment of probable cause for appellant's arrest and prosecution for shoplifting. .” Id. at 94.  Based on this reasoning, the Court held as a matter of law that the store was reasonable in detaining and initiating the plaintiff’s arrest. 

The change is subtle but extremely important. In other words, this shift is not a presumption that the store proprietors were reasonable in believing there was probable cause. This is a presumption of actual probable cause. Essentially, when a criminal defendant waives his or her right to preliminary evidentiary hearing, that criminal defendant acknowledges that there was probable cause for his or her arrest, and civil defendant can use this admission as a sword against a plaintiff in a later lawsuit initiated on the same set of facts. Therefore, in malicious prosecution and false arrest civil lawsuits, it is imperative to investigate the details of the plaintiff’s criminal case – even if that plaintiff obtain an unqualified dismissal. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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