Miracle on 34th Street: Manhattan Judge Stops Macy's from Coercing Civil Fines from Shoplift Detainees

Imagine that you are shopping at Macy’s department store in midtown Manhattan, which until recently was the world’s largest department store.  You are holding some merchandise that you took from a rack, but rather than pay at the nearest cash register you take an escalator to another floor to visit another department, intending to pay later.  Or, worse, for the first time in your life, you have a momentary lapse in judgment and intend to walk right right out if the store without paying for the merchandise.

Once you change floors inside Macy’s or attempt to exit onto the street, you are cornered by a team of loss prevention security guards because they suspect that you committed the crime of shoplifting. You are led to a back security room and searched. You are scared, but a loss prevention officer tells that everything will be fine, the police will not be called and you will not be arrested. Although you are detained in room inside the bowels of Macy’s, you are told that there is nothing to worry about. That is, if you sign a confession and agree to pay a civil penalty immediately and another penalty later. You think it over and do what any reasonable person would do in that situation: you sign a confession that you were shoplifting—whether or not you actually intended to steal anything—and agree to the penalties.

Before the ink on your signed confession and agreements to pay civil penalties is dry, Macy’s loss prevention does the exact thing that the promised not to do if you confessed—they call the police and have you arrested. And, your confession—the one that was gained from coercive behavior and a false promise—is used against you in your prosecution by an Assistant District Attorney in Manhattan.


Miracle on 34th Street.
Miracle on 34th Street.

This despicable practice went on in the world’s second-largest retail store in the middle of New York City until Manhattan Supreme Court Justice Manuel Mendez ordered that Macy’s cease “demanding, requesting, collecting, receiving or accepting any payments” from suspected shoplifters. In the case of Orellana v. Macy’s Retail Holdings, the plaintiff was detained for shoplifting in a scenario similar to the one described above. Under New York State law, retail stores like Macy’s may detain people that they suspect of shoplifting. Here’s where the problematic part that led to the Justice’s decision begins, Macy’s, like all other retail stores are empowered under state law to seek a civil penalty of up to five hundred dollars from those who are detained for shoplifting.

The Justice in Orellana v. Macy’s Retail Holdings, found fault with combining the powers under the two state laws, the detention of person on suspicion of shoplifting and a simultaneous demand for civil damages. As stated in Justice Mendez’s decision:

“These ‘private actions’ taken by Macy’s is like an assembly line of putting suspected shoplifters through the criminal system. It begins with Macy’s detaining the individual based on their loss prevention officer’s “reasonable” grounds to believe shoplifting has occurred, a confession being elicited and a demand for payment being made, and then continuing to detain the individual until they are arrested by police and charged with a crime. It ends with these suspected shoplifters having to incur legal costs in defending the criminal charges.”

After a person is arrested for shoplifting in Macy’s, arraigned and criminal case is pending against, then come the letters from Macy’s civil lawyers demanding that people fork over a civil penalty of five hundred dollars. In the case of Macy’s as noted in the Orellana v. Macy’s Retail Holdings decision, the Law Offices of Palmer, Reifler and Associates typically sends such demands.Other times the letter demanding the payment comes from The Law Offices of Michael Ira Asen, P.C. Some people pay out of guilt. Others pay out of fear of lawsuit.  (The reality is that a judicial proceeding to recover the five hundred dollars would like cost significantly more money.)

As a prosecutor in Manhattan I often heard about the practices of Macy’s loss prevention staff.  When I received the case paperwork, defense attorneys were quick to explain—and for good reason—that their client’s confession was coerced.  Well, no more, at least in Manhattan and for the time being. Justice Mendez issued an injunction baring employees of Macy’s from demanding civil payment while people are detained.

Justice Mendez’s decision and injunction only goes so far. It applies to Macy’s―in Manhattan. But there are dozens more Macy’s around the state. Neither does the decision apply to the many other department stores or other retail establishments whose loss prevention staff armed with the same deplorable tactics.   

To address practices like that of Macy’s the a bill is pending in the state legislature that would bar the exact action that Justice Mendez enjoined, combining detention with an agreement to pay of a civil penalty conditioned on a person’s release. For far too long the state statute regarding civil recovery for shoplifting has been abused by retailers. It is time for Justice Mendez’s miracle to extend well beyond 34th Street to all corners of New York.




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