A reporter at Slate magazine posted an extremely interesting and important piece of reporting today about a new trend in retail: using a private company to offer “alternatives” to prosecution to accused shoplifters. The article is very worth a read, but the short version is this: if you are accused of shoplifting by the loss prevention officer, they’ll tell you that they can either call the police or refer you to this company, CEC, who will charge you $320 to take their “educational” class. The retailer then gets a portion of this fee as “restitution” for their loss. There are large chain retailers with locations here in the South Bay area which reportedly have agreements with this company. Whether or not the specific locations here in this area use the company’s services is unclear. However, it is a serious concern.
What is so shocking about this story is that the practices this company is engaged in sound remarkably like extortion under California law. Penal Code section 519 makes it clear that threatening to report a crime to the police in order to obtain property (i.e., $320) from an individual is actually a crime, namely, extortion. In this state, you simply can’t make a conditional threat to report someone to the police (“I’ll report you if you don’t give me…”) You can either call the police, or not call the police. Demanding a payment is not an option. In fact, as between petty theft and extortion, one could absolutely make the case that extortion is the more serious offense.
Undoubtedly this company has an army of lawyers dedicated to ensuring that all communications are worded with the sort of extreme caution necessary to avoid technically making any extortionist threats. There are probably ways in which the whole arrangement is described that conspicuously avoid running into the legal definition of extortion. Then again, perhaps not—and even if the company is giving clear directions to security guards and loss prevention officers about exactly what and what not to say, it’s quite doubtful those ground-level employees follow directions that closely. Nobody could reasonably expect the average loss prevention officer or private security guard at the store level to understand the importance of the subtle nuance of language needed to avoid actually committing a criminal act.
The company’s own executives, quoted in the story, don’t do the company any favors when it comes to avoiding straying into the area of extortion. As the article explains:
CEC executives emphasized that not one of the 20,000 people who have gone through their program were coerced into doing so. “It’s all voluntary,” Huntsman told me. “If someone started to take the course and paid for it—if they change their mind and they want to get their day in court, we’ll refund their money and put the case back in the retailer’s hands. They’ve got multiple opportunities to step back from this.”
But this seems to imply that the company makes it clear that the alternative to completing their course is having the matter reported to the criminal justice authorities. Take our course, or we’ll make sure you have your day in court? That still sounds like extortion under California law. Obviously, one doesn’t get a day in court unless the crime is reported to the police. The threat of reporting is undeniably implied.
Of course, there’s also a difference between the technical letter of the law and the way the ordinary person accused of shoplifting might understand the threat. The average person will understand the choices presented: pay up, or we call the cops. Even if there are “magic words” which can be used to phrase this in a way which isn’t technically extortion, people still can, and will, feel extorted.
Bottom line: if you suddenly find yourself accused of shoplifting in and around Torrance, and you are confronted with an offer like this, please, don’t become the victim of extortion yourself. An experienced lawyer such as myself can and will help protect your rights. Also, if you have been confronted by this company and have gone along with it in the past, our office would still very much like to know about your experience—please feel free to give us a call.