## Facts

- A 16-year-old, Ernest Gortarez, Jr., and his cousin, Albert Hernandez, shopped at a Smitty’s store.
- In the automotive department, Hernandez bought a power booster; Gortarez picked up a 59-cent vaporizer and asked to pay for it at the front checkout, and a clerk agreed but suspected he might not pay.
- The two walked through the store and exited through an unattended checkout aisle.
- The clerk alerted an assistant manager and store security officer Daniel Gibson, who pursued and stopped the youths in the parking lot.
- Gibson immediately began physically searching Hernandez without first explaining what he sought; Hernandez denied taking anything and did not resist.
- Gortarez protested Gibson’s treatment of Hernandez; a struggle followed between Gibson and Gortarez.
- Gibson applied a chokehold to Gortarez and maintained it even after Gortarez stated he had left the vaporizer inside the store.
- A store employee confirmed the vaporizer was where Gortarez said it was, and the youths were released.
- Gortarez later received medical treatment for injuries and sued for false arrest, false imprisonment, assault, and battery.

## Issues

1. Whether defendants were entitled to judgment as a matter of law on false arrest/false imprisonment under Arizona’s shopkeeper’s privilege, including whether there was reasonable cause and whether the detention was for a reasonable time and in a reasonable manner.
2. Whether the jury was properly instructed on self-defense and use of force for the assault and battery claim in light of the asserted shopkeeper’s privilege.

## Decision

- The Arizona Supreme Court reversed the directed verdict for defendants on the false arrest and false imprisonment claims and remanded for a new trial on those counts.
- The court set aside the defense verdict on assault and battery and remanded for a new trial due to erroneous self-defense/use-of-force instructions.
- The court held the evidence did not establish, as a matter of law, that defendants had reasonable cause or that the detention complied with statutory limits.
- The court held that the reasonableness of the detention and of the force used (including the chokehold) presented fact questions for the jury.

## Legal Principles

- Arizona’s shopkeeper’s privilege (A.R.S. § 13-1805) is a limited exception to liability for false imprisonment and is construed narrowly.
- The privilege requires: (1) reasonable cause to believe the person shoplifted; (2) detention on the premises; (3) detention for the purpose of questioning and/or summoning law enforcement; and (4) detention for a reasonable time and in a reasonable manner.
- “Reasonable cause” is an objective standard; where the facts permit differing conclusions, reasonable cause is for the jury, not the court, to decide.
- A merchant’s privilege to detain does not authorize excessive force; whether force is reasonable depends on the circumstances and is commonly a jury question.
- Jury instructions must distinguish lawful detention authority from broader self-defense concepts and must clearly limit any use of force to what is objectively reasonable under the asserted privilege.

## Conclusion

The court required a new trial because the shopkeeper’s privilege did not justify removing the false imprisonment and false arrest claims from the jury on this record, and because faulty instructions risked excusing excessive force under an improperly expanded view of the privilege.


Gortarez v. Smitty's Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807 (Ariz. 1984)