BP BHEAD INT H

AN ACT Relating to use of force against shoplifters; amending RCW 4.24.230; adding a new section to chapter 9A.16 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 9A.16 RCW to read as follows:

It is the policy of this state to protect human life. While employees and private security officers employed by mercantile establishments have a lawful right to detain or apprehend persons who reasonably are suspected of theft or shoplifting, the use of force in those circumstances is unlawful if it is not reasonable or moderate under all the facts and circumstances. In no case may force be used when the property at issue has a retail value under five dollars.

A trier of fact may, but is not required to, infer that the following actions are unreasonable when used by employees and private security officers employed by, or whose employer has a contractual relationship with, a wholesale or retail store or other mercantile establishment to detain or restrain persons suspected of theft or shoplifting: (1) Interfering with a suspect's breathing; (2) striking a suspect with a closed fist; (3) pulling a suspect's hair; (4) kicking a suspect while he or she is in a prone position; (5) placing fingers or other objects in a suspect's eyes; (6) using or threatening to use a firearm, a dangerous weapon defined in RCW 9.41.250, or other weapon, instrument, or thing likely to produce bodily harm; (7) using or threatening to use a "stun" or "tazor" gun; (8) using or threatening to use an "aerosol tear gas device"; or (9) doing any other act that is likely to cause and that does cause bodily harm greater than transient pain or minor temporary marks. This list is illustrative of unreasonable actions and is not intended to be exclusive.

Nothing in this section limits a person's right to use force on a shoplifting or theft suspect when that force is otherwise lawful and necessary for purposes of self-defense. Violation of this section precludes the use of the statutory defense in RCW 9A.16.080 and precludes imposition of a civil penalty under RCW 4.24.230.

Sec. 2. RCW 4.24.230 and 1987 c 353 s 1 are each amended to read as follows:

(1) An adult or emancipated minor who takes possession of any goods, wares, or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller, and with the intention of converting such goods, wares, or merchandise to his own use without having paid the purchase price thereof shall be liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed one thousand dollars, plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars, plus all reasonable attorney's fees and court costs expended by the owner or seller. A customer who orders a meal in a restaurant or other eating establishment, receives at least a portion thereof, and then leaves without paying, is subject to liability under this section. A person who shall receive any food, money, credit, lodging, or accommodation at any hotel, motel, boarding house, or lodging house, and then leaves without paying the proprietor, manager, or authorized employee thereof, is subject to liability under this section.

(2) The parent or legal guardian having the custody of an unemancipated minor who takes possession of any goods, wares, or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller and with the intention of converting such goods, wares, or merchandise to his own use without having paid the purchase price thereof, shall be liable as a penalty to the owner or seller for the retail value of such goods, wares, or merchandise not to exceed five hundred dollars plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars, plus all reasonable attorney's fees and court costs expended by the owner or seller. The parent or legal guardian having the custody of an unemancipated minor, who orders a meal in a restaurant or other eating establishment, receives at least a portion thereof, and then leaves without paying, is subject to liability under this section. The parent or legal guardian having the custody of an unemancipated minor, who receives any food, money, credit, lodging, or accommodation at any hotel, motel, boarding house, or lodging house, and then leaves without paying the proprietor, manager, or authorized employee thereof, is subject to liability under this section. For the purposes of this subsection, liability shall not be imposed upon any governmental entity, private agency, or foster parent assigned responsibility for the minor child pursuant to court order or action of the department of social and health services.

(3) Judgments, but not claims, arising under this section may be assigned.

(4) A conviction for violation of chapter 9A.56 RCW ((~~or RCW 9.45.040~~)) shall not be a condition precedent to maintenance of a civil action authorized by this section.

(5) An owner or seller demanding payment of a penalty under subsection (1) or (2) of this section shall give written notice to the person or persons from whom the penalty is sought. The notice shall state:

"IMPORTANT NOTICE: The payment of any penalty demanded of you does not prevent criminal prosecution under a related criminal provision."

This notice shall be boldly and conspicuously displayed, in at least the same size type as is used in the demand, and shall be sent with the demand for payment of a penalty described in subsection (1) ((~~of [or]~~)) or (2) of this section.

(6) The unreasonable use of force to detain or apprehend a person suspected of theft, conversion, or shoplifting in violation of RCW 9A.16.110, is a bar to the recovery of any of the civil penalties set out in this section. The suspect's conviction for violation of chapter 9A.56 RCW or an equivalent local ordinance has no relevance to whether recovery of the civil penalty is barred due to unreasonable force. A conviction for assault or homicide or unlawful imprisonment or any other offense under Title 9 or 9A RCW is not a condition precedent to barring recovery of a penalty because of unreasonable force.