MEMORANDUM

To: Professor Stevenson

From: Carlos Daniel Campos
Date: April 21, 2024
Re: Philip Pimento – File No. 2024-750

QUESTION PRESENTED

Under Kentucky law, which allows a person to claim false imprisonment against a store,

could Mr. Pimento and Mona Pimento establish all the necessary elements needed to assert false

imprisonment and avoid shopkeeper’s privilege under the circumstances performed by Officer

Koo, who is the security guard of Better Buys’ store, when they were leaving the store?

BRIEF ANSWER

Likely yes, Mr. Pimento and his mother could establish the necessary elements for a false

imprisonment claim but could not avoid shopkeepers’ privilege under the actions of Better Buys’

security guard. False imprisonment is defined as “any deprivation of the liberty of the plaintiff

by the defendant, or any detention of him for however short a time by the defendant without the

plaintiff's consent and against his will, whether it was by actual violence, threats or otherwise,

constitutes an arrest.” Great Atlantic & Pacific Tea Co. V. Smith, 136 S.W.2d 759, 767 (Ky. Ct.

App. 1939). In Pimento’s situation, there was a deprivation of liberty by the store. However, the

shopkeepers’ privilege, is fulfilled because the detention was lawfulbut the officer established

probable cause for the detention.

STATEMENT OF FACTS

On March 1, 2023, Mr. Pimento went shopping for dinner at Better Buys with his 95-

year-old mother, Mona Pimento. They entered the store and started to pick up everything from

their shopping list, which was extensive. Then, they entered the line for checkout behind other
two customers. Mr. Pimento began placing items on the conveyor belt for scanning. Tired from a

long day, Sammy the cashier scanned the groceries, she was tired and by accident ignored the

three packs of gum that Mona had placed on the conveyor belt moments earlier.

After the food was bagged and loaded into the Pops cart, he and Mona went to their car.

Suddenly, Officer Koo, the store's security guard, approached them with an accusatory tone. "Sir,

you need to come back inside with me," Koo asserted, Mr. Pimento inquired, "Why? What did I

do?" Koo responded claiming that the store alarms had triggered when Pops exited, suggesting

unpaid items in his cart. In addition, Koo expressed his suspicion due to Mr. Pimento entering

with reusable grocery bags. Then Mr. Pimento and Mona followed Koo back into the store. In a

back room meant for employees, Koo had them sit down, leaving the grocery cart outside.

Frustrated and aware of waiting loved ones at home, Mr. Pimento protested, "You can’t keep me

here. I didn't steal anything."

Despite Mr. Pimento’s plea, Koo advised that he had to be patient, proceeding to explain

that resistance wouldn't help. As they waited, Mr. Pimento requested water for Mona, who

needed it for her heart medicine. Officer Koo, without a word, left the room. The wait extended

to 35 minutes while Koo questioned Sammy about the incident. Sammy, oblivious to the

oversight, insisted she had scanned every item on the cart. Officer Koo proceeded to watch the

security tapes, upon reviewing, Koo discovered Sammy's error and subsequently permitted Mr.

Pimento and Mona to leave, removing the unscanned gum from the cart. In her statement, Mona

expressed confusion, stating she didn't believe they had done anything wrong and that she had

experienced chest palpitations during the detention.

In Officer Koo's statement, he admitted that he was surprised at the alarm and that he also

admitted that he forgot to post a notice about its use. He pointed out the abundance of reusable
bags and a cartful of groceries as factors raising suspicion. Koo clarified that he sought to

prevent customers from leaving with stolen merchandise but acknowledged Sammy's lack of

cooperation during the inquiry as a way of justifying the duration of the detention.

DISCUSSION

1. False Imprisonment

The court will very likely find false imprisonment.

“Any deprivation of the liberty of plaintiff by defendant, or any detention of him for

however short a time by defendant without the plaintiff's consent and against his will, whether it

was by actual violence, threats or otherwise, constitutes an arrest.” Id. “To constitute the injury

of false imprisonment, there are two points requisites: (1) The detention of the person, and (2)

the unlawfulness of such detention.” Id.

In Great Atlantic & Pacific Tea Co., the court held that there was false imprisonment

because there was detention by the appellant. Id. The detention for any brief time without

consent and against the plaintiff’s will, constitutes false imprisonment. Id. The first requisite to

constitute false imprisonment was accomplished in the time Vaughn (the store manager) held the

plaintiff’s wrist and bag before stepping out of the store. Id at 763. After, the plaintiff’s mother

alleges that she was detained by him against her will. Id. Among that, when Vaughn searched

publicly her bag, he found nothing, and the plaintiff went home. Id. After, the plaintiff’s mother

said that “she could not sleep at night, and it has bothered her all the way through." Id. The court

concluded that there was false imprisonment because the plaintiff was held against her will and

there was no reason to be detained. Id.

This is like Pimento’s situation because the security guard held Mr. Pimento and his

mother for a time, established as thirty-five minutes. Same as the previous case, because the
security guard wanted to be sure that they were not shoplifting. Also, it is similar because there

were damages to the detained people. In Great Atlantic & Pacific Tea Co., the plaintiff could not

sleep through the night. Id. In Pimento’s situation, his mother felt heart palpitations in her chest

and felt dizzy during the time they were detained. On the contrary, in this situation, some items

were not paid for, even though it was not their fault because the cashier did not scan the items,

the security guard found the gum in the bag. This is not like Great Atlantic & Pacific Tea Co.,

because in this case, the manager did not find anything in the plaintiff's bag. Also, the security

guard asked Pimento and his mother to follow him to a special room to do the research, which

would not constitute against their will. But it was an arrest because they were in the room

deprived of their liberty.

The court will very likely find false imprisonment because there was an arrest for

Pimento and his mother for a period, and the articles found on the bag that were not paid was not

their fault, but the cashier’s fault for not scanning the items.

2. Shopkeeper’s privilege and peace officer

A peace officer, security agent of a mercantile establishment, merchant, or merchant’s

employee who has probable cause for believing that goods held for sale by the merchant

have been unlawfully taken by a person may take the person into custody and detain him

in a reasonable manner for a reasonable length of time, on the premises of the mercantile

establishment or off the premises of the mercantile establishment. Ky. Rev. Stat. Ann. §

433.236 (LexisNexis 2024)

 According to Kentucky statute, shopkeepers have privilege on detention and arrest of

shoplifting suspect, but to constitute and establish the privilege, the following elements must be

proven: (1) probable cause (2) lawfulness, (3) improper evidence.

3. Probable Cause

The court will likely find probable cause in this case.

"In order to maintain an action for false arrest and imprisonment, or malicious

prosecution, the burden is upon the plaintiff to show that the defendant acted both maliciously

and without probable cause." Consolidated Sales Co. v. Malone, 530 S.W.2d 680, 682. (Ky. Ct.

App. 1975).

In Consolidated Sales Co. the court held that Glenda Routon suspected that Miss

Kimbrough had concealed some articles of infant apparel on her person. Id. at 683. In this case,

Glenda Routon observed Miss Malone in the baby department and thought that she was carrying

baby clothing on her arm. Id. at 682. The suspicious action came through when Miss Kimbrough

went several times to Miss Malone, who was in the shoe department with her two daughters. Id.

The two persons were meeting and separating and meeting again. Id. After the constant

meetings, Miss Kimbrough gradually disappears, being found on her way toward the store exits,

where Glenda makes a quick inspection trip through the shoe department looking for some laid

articles left down and finding nothing. Id. The court found that because there was no evidence

suggesting otherwise, the case should be submitted to the jury only on the question of probable

cause. Id. at 683. Previous judgment was sustained by the facts raised by Glenda Routon who is

the guard in question, and the testimony made by her.

 In this case, Mr. Koo noticed the alarm being used in the store. After he heard the alarm

of the store, he saw Pimento and his mother walking out of the store with a cart full of groceries

and reusable bags. This is similar to Consolidated Sales Co. because of the activation of the

alarm in the store. This alarm arises immediately suspicious activity in the store, leading Mr.

Koo to think of shoplifting activity. Also, the store provides plastic bags for the groceries

purchased in the store, and the fact of having reusable bags overall with the alarm activation

could sustain probable cause for this case. This fact raises the possibility of the court finding

probable cause in this case. Therefore, false arrest and imprisonment would not be maintained

because the actions were not malicious or without probable cause. However, the fact of having

reusable bags and walking out of the store in calm could sustain reasonable doubt.

For that reason, the court will likely find probable cause in this case because there was an

alarm activation, but the use of the reusable bags and the manner (which will be discussed in the

next section) probably could not constitute a suspicious activity to arise detention.

4. Lawfulness Detention

The court will very likely find a lawful detention in this situation.

“While KRS 433.236 authorizes a merchant's security agents or employees to detain an

individual suspected of shoplifting, this statute doesn’t provide the merchant or its employees

with a license to manhandle or browbeat a child in an attempt to discover if he has unlawfully

taken merchandise from the premises.” Wal-Mart v. Mitchell, 877 S.W.2d 616, 618 (Ky. Ct.

App. 1994). “However, we hold that reasonable minds could differ as to whether her detention

was ‘in a reasonable manner for a reasonable amount of time.’" Birdsong v. Wal-Mart Store, 74

S.W.3d 754, 759 (Ky. Ct. App. 2001).

 “A peace officer … may take the person into custody and detain him in a reasonable

manner for a reasonable length of time, on the premises of the mercantile establishment.”

§433.236. To determine if in this case, the detention was in a reasonable manner, we will focus

on Wal-Mart. In that case, the court held that the actions of Jackson and Landers could constitute

a non-reasonable manner to detain Blackburn. Blackburn (Mitchell's son) claimed that while they

were in the parking lot Jackson (assistant manager) grabbed him by the arm and tried to put his

hand in Blackburn’s pants. Wal-Mart v. Mitchell, 877 S.W.2d at 617. He also testified that

Jackson and Landers (assistant manager) grabbed his arms and took him, against his will, to a

room in the rear of the store. Id. Once there, Jackson closed and locked the door and started

interrogating and intimidating him for approximately thirty minutes. Id. Last Jackson released

him only after the boy began to cry and complain of feeling sick. The court in this situation

analyzed Blackburn's testimony and agreed that Jackson’s conduct was unreasonably intrusive,

insulting, and humiliating. Id. at 619.

The previous facts help to determine a parameter of a reasonable manner for detention in

Pimento’s situation. Wal-Mart is not similar to Pimento’s situation. According to the statement

of Mona Pimento, the security guard stopped them and told them that they had stolen something,

leading them to a back room in the store. This is quite similar to Mr. Koo's statement when he

states that he yelled out to them, and they stopped. After, he asked them to follow him to the

back of the store. Because the statements do not mention any mistreatment or abuse in any sort

of manner, the court would very likely find that the detention was made in a reasonable manner.

However, is necessary to determine if it was made in a reasonable length of time. For that reason,

Birdsong will help to clarify that question.

 In Birdsong, the court held that reasonable minds could differ as to whether her detention

was for a reasonable amount of time. Birdsong, 74 S.W.3d at 759. In this case, after a Sensor

Matic inventory and theft control device set off a sensor alarm, McWilliams, an employee, asked

the customers to exit again. Id. at 755. The only customer who triggered the sensor alarm a

second time was Birdsong. Id. McWilliams then checked Birdsong’s shopping bags a second

time and asked to exit the store a third time, and the sensor alarm was activated again. Id. at 756.

After, McWilliams called Brown, a supervisor, who took Birdsong’s purse through the exit door,

and the sensor alarm was activated for a fourth time. Then, Brown contacted Dallas, the store’s

assistant manager, and was asked to come to the front of the store. Id. After Dallas was contacted

by Brown, it took him fifteen minutes to arrive at the front of the store. When Dallas arrived,

Birdsong suggested to search in her purse, but he declined and told her that she was free to leave.

Id. In this case, Birdsong claims that she was detained for approximately forty-five minutes, but

Wal-Mart claims that the entire episode lasted no more than thirty minutes. Id. at 758. The fact

that there is a gap of fifteen minutes in the claims, the court does not focus his attention on the

time, but he focuses the analysis on the material fact of false imprisonment of an unpurchased

merchandise possession. Id. at 759. Most detentions for shoplifting do not take more than thirty

minutes, according to Wal-Mart and Birdsong. Therefore, it could be argued that the reasonable

time could be no more than thirty minutes.

This is similar to Pimento’s situation. Mona’s statement does not mention the length of

time of the detention, but according to Pimento, it was around thirty-five minutes. According to

Mr. Koo’s statement, the detention did not last more than twenty-five minutes. Therefore, the

court will very likely find that the detention was made in a reasonable length of time.
 The court will very likely find a lawful detention in this situation because the facts

presented and the statements made by Pimento’s mother and Officer Koo, constitute that was in a

reasonable manner and in a reasonable length of time.

CONCLUSION

Mr. Pimento and Mona did establish the necessary elements for a false imprisonment

claim against Better Buys. However, to claim injury based on false imprisonment, is necessary to

be an unlawful detention, which finally concludes that it was a lawful detention. Therefore, the

court will very likely find false imprisonment because there was an arrest for Pimento and his

mother for a period, and the articles found on the bag that were not paid was not their fault, but

the cashier’s fault for not scanning the items. Also, because there is a shopkeeper’s privilege in

§433.236, the court will likely find probable cause in this case because there was an alarm

activation, and this constitutes a suspicious activity for carrying unpurchased elements out of the

store. Contrary, the court would very likely find that the detention was made in a reasonable

manner because Mr. Pimento and his mother agreed on returning to the store in order to execute

the search on the items and the detention was without any violence or threats. Finally, the court

will very likely find a lawful detention in this situation, because the facts presented and the

statements made by Pimento’s mother and Officer Koo, constitute that was in a reasonable

manner and in a reasonable length of time, although there is a gap of ten minutes between Mr.

Pimento’s statement and Koo’s statement, the length of time did not exceed the thirty-five

minutes being a reasonable length of time for a detention without any delays thru the process.