Gortarez v. Smitty's Super Valu, Inc.
680 P.2d 807 · Arizona Supreme Court · 1984
Facts
Ernest Gortarez, 16, and Albert Hernandez, 18, visited Smitty's. Gortarez picked up a 59-cent vaporizer and asked to pay for it at the front of the store. A clerk, Robert Sjulestad, found this suspicious and followed them, concluding they left without paying for the item. Sjulestad informed security guard Daniel Gibson and assistant manager Scott Miller that the two had "ripped us off." Gibson, Miller, and two other employees confronted Gortarez and Hernandez in the parking lot as they were about to enter their car. Gibson seized Hernandez, put him against the car, and searched him without asking for the item or stating what he was looking for. Gortarez protested loudly, then pushed Gibson, who responded by putting Gortarez in a choke hold until he stopped struggling. The vaporizer was later found in a basket at an unattended check-out stand, and the cousins were released. Gortarez required medical treatment for injuries from the choke hold.
Procedural history
Plaintiffs sued Smitty's and Gibson for false arrest, false imprisonment, and assault and battery. The trial court directed a verdict for the defendants on the false imprisonment and false arrest counts. The assault and battery count went to the jury, which returned a verdict for defendant Gibson. The court of appeals affirmed the trial court's decision by memorandum. Plaintiffs then petitioned this court for review.
Issue
Did the trial court err in directing a verdict for the defendants on the false imprisonment and false arrest claims by finding, as a matter of law, that the shopkeeper's privilege applied? Did the trial court err by refusing to instruct the jury on the necessity of withdrawal for the self-defense claim regarding the assault and battery count?
Holding
Yes, the trial court erred in directing a verdict on the false imprisonment and false arrest claims because there were questions of fact regarding the purpose and manner of the detention. Yes, the trial court also erred in denying the requested jury instruction on withdrawal for the self-defense claim. The case is reversed and remanded for a new trial on all counts.
Rule
The Arizona shopkeeper's privilege (A.R.S. § 13-1805) allows a merchant with reasonable cause to detain a person suspected of shoplifting on the premises in a reasonable manner and for a reasonable time for questioning or summoning a law enforcement officer. Reasonable cause is a threshold requirement, but the detention must also be for a proper purpose and executed in a reasonable manner, with the use of force generally not privileged unless necessary for self-defense against resistance. For self-defense, if the defendant provoked the other's use of force, the defense is not justified unless the defendant withdraws or communicates intent to withdraw, reasonably believing they cannot safely withdraw.
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