What Is the Shopkeeper’s Privilege?
As recently discussed in our blog, New York has cracked down on retail theft. In some cases, shopkeepers have taken matters into their own hands to protect their business. In many cases, shopkeepers have used security guards and other theft-deterring strategies. They can also detain those who have stolen or have attempted to steal from their stores. Under the shopkeeper’s privilege, shopkeepers and their employees may be allowed to detain suspected shoplifters under certain conditions.
Defining the Shopkeeper’s Privilege
Where a retailer or his or her employees suspects that someone has committed a theft or larceny, they may detain the suspect on the premises for a reasonable period of time to conduct their investigation or call authorities. To invoke the privilege, the shopkeeper must have cause to believe that the suspect committed or attempted to commit a theft or a larceny from the business.
For the shopkeeper’s privilege to apply, the investigation must occur on or near the store’s premises. In cases where the belief of the shopkeeper that a theft occurred is not reasonable, the privilege to detain the suspect may not be applicable. Further, if there is an extended period of time where the suspect is detained based on the facts, the privilege may also not apply. Generally, this may be until the police arrive. The shopkeeper and his or her employees must not use deadly force to detain the suspect.
Law Codifying the Shopkeeper’s Privilege
Under General Business Law § 218, shopkeepers may raise the shopkeeper’s privilege as a defense in some civil suits. This is called the “defense of lawful detention.” Pursuant to that statute, a shopkeeper who is sued for “false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, or invasion of civil rights” may raise their privilege as shopkeeper as a defense. In their defense, they can state that the suspect “was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning” and there were “reasonable grounds to believe that the person so detained was guilty” of a larceny.
If a shopkeeper doesn’t exercise the privilege properly, they can face legal consequence. In those cases, the suspect may sue the store and the employees involved. For example, the suspect can claim assault, false imprisonment, defamation, and intentional or negligent infliction of emotional distress. In extreme cases, the shopkeeper may be charged criminally.
References:
- New York General Business Law § 218, Defense of lawful detention. Available at: https://www.nysenate.gov/legislation/laws/GBS/218 (last accessed Oct. 2, 2025).
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