Judge Douglas Stoddard, a District Court Judge in Natick, Mass. has enjoined Macy’s from demanding that shoplifters pay a $500.00 civil fine to Macy’s when they are caught by the store. Massachusetts General Laws Chapter 231, Section 85R-1/2 states that shoplifters “. . . shall be liable in tort to the merchant for damages for not less than fifty nor more than five hundred dollars. . .” Many stores claim that this law means that a shoplifter owes the store $500.00 if they are caught by the store. The stores are wrong. The law means that if the store sues shoplifters in court a judge may award civil damages of up to $500.00. Macy’s has no right to collect $500.00 until after a Judge awarded them damages.
Macy’s had a practice of detaining shoplifters and telling them that “if they paid the $500 fine, they would not be civilly sued in court and some said they were told they would not be arrested.” In some cases, people paid the $500.00 and were then turned over to the police who arrested them. When the cases came before Natick District Court, Judge Stoddard learned of the practices of the store and issued an injunction against the store.The Judge stated “I’m not sure if I have the legal authority to do what I’m doing, but I believe I do have the power to right what’s wrong. I don’t think I’m asking for much.”
What Macy’s was doing was not only wrong, it was criminal. Massachusetts is a common law state. This means that crimes exist that were created by English judges before the American Revolution. Some of these crimes are still in existence. Macy’s actions constituted the common law crimes of compounding a crime and misprision of a crime. In addition, their actions also constituted the statutory crime of extortion.
Compounding a crime occurs when a person enters into an agreement for one person to pay money in exchange for an agreement to not prosecute the crime. In Massachusetts only the District Attorney or the Attorney General can agree that a crime won’t be prosecuted. Any other person who agrees that a crime won’t be prosecuted is committing a criminal act. If Macy’s accepts money and agrees that a shoplifter won’t be prosecuted then Macy’s has committed the crime of compounding.
If Macy’s, having agreed that a crime shall not be reported to the police fails to report the crime then they have committed the crime of misprision of a crime. Every citizen has the duty to report crimes to the government. In our society we don’t prosecute people who merely fail to report crimes. However, if a person has received money and then fails to report the crime then they may be prosecuted for misprision. Compounding is the crime of making the agreement not to prosecute. Misprision is the act of failing to report the crime.
When Macy’s asked for money in exchange for not prosecuting the shoplifter, they committed the crime of extortion. The elements of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone’s person or property (4) with intent to extort money. Mass.G.L. c. 265, § 25. This means that Macy’s committed three separate and distinct criminal acts. When they asked form money the committed extortion. When they agree to not prosecute they committed compounding of a crime. If they took the money and then failed to report the shoplifter they committed the crime of misprision.
When settling a civil case that has the potential for criminal charges, parties want to eliminate the ability to be criminally prosecuted. This can’t be done without violating criminal laws. When I have encountered this problem in my practice I have agreed to a “gag order” as part of the settlement. A gag order typically states that neither party can talk about the facts of the case or the settlement without creating civil penalties. However, I always include language that states that the gag order shall not apply if there is a duty to disclose the information including, but not limited to, disclosure to law enforcement officials. This exception means that the gag order does not violate any criminal laws. An attorney who understands the common law crimes should always include language of this nature.
Macy’s practice of demanding a civil penalty without a judgment from a court should cease immediately. Since the cost of going to court is more than the potential $500.00 recovery this means that it is unlikely that any shoplifters will ever pay the civil penalty. However, it also means that Macy’s will stop violating criminal laws.