Common scenario — heroin addict rolls into Walmart and rolls out w/ $200 worth of DVD’s and games. Loss Prevention waits until he is past the point of purchase and orders him to stop. Addict drops the goods and keeps on walking. LP takes him down. During the take down, one of the LP guys claims some “physical harm” during the “flee” (scrape, bump, pulled calf muscle — It’s hard not to cause some physical harm to an overweight, retired cop picking up some hours at Walmart.) The “physical harm” in a case I just resolved was, literally, a scrape on the right pinkie of one of the LP guys.
Case just went from misdemeanor theft to F2 Robbery. Probation to prison. Treatment just went out the window.
In 2005, the Ohio Supreme Court reasoned that the force does not have to be inflicted in furtherance of a purpose to deprive another of property. State v. Thomas (2005) 106 Ohio St.3d 133, 2005-Ohio-4106. FWIW — Franklin County Court of Appeals just issued a decision citing Thomas. (State v. Collins), 10AP-835, 6/16/11, Todd Barstow for the defense.
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I don’t believe it is unreasonable to think that Walmart (and other big box retailers) Loss Prevention cops know that any harm of any kind at any time equals an F2. Just as we know narcotics detectives set up sting operations w/in vicinity of a juvenile and/or with an amount exceeding bulk amount.
Sentencing entrapment? Although with private actors (like Walmart’s LP) such an argument is even more of a non-starter than sentencing entrapment arguments when the government is in charge of the meet and amount in a CI operation.
The primary problem that I see is that Robbery (when it should be theft) takes Intervention off the table. Not to mention the dramatic increase in penalties.
It is certainly ripe for corporate abuse.