943.50 Retail theft; theft of services.

(1) In this section:

(ad) “Merchandise" includes a service provided by a service provider.

(ag) “Merchant" includes any “merchant" as defined in s. 402.104 (3) or any innkeeper, motelkeeper or hotelkeeper.

(am) “Service provider" means a merchant who provides a service to retail customers without a written contract with the expectation that the service will be paid for by the customer upon completion of the service.

(ar) “Theft detection device" means any tag or other device that is used to prevent or detect theft and that is attached to merchandise held for resale by a merchant or to property of a merchant.

(as) “Theft detection device remover" means any tool or device used, designed for use or primarily intended for use in removing a theft detection device from merchandise held for resale by a merchant or property of a merchant.

(at) “Theft detection shielding device" means any laminated or coated bag or device designed to shield merchandise held for resale by a merchant or property of a merchant from being detected by an electronic or magnetic theft alarm sensor.

(b) “Value of merchandise" means:

1. For property of the merchant, the value of the property; or

2. For merchandise held for resale, the merchant's stated price of the merchandise or, in the event of altering, transferring or removing a price marking or causing a cash register or other sales device to reflect less than the merchant's stated price, the difference between the merchant's stated price of the merchandise and the altered price.

3. For a service provided by a service provider, the price that the service provider stated for the service before the service was provided.

(1m) A person may be penalized as provided in sub. (4) if he or she does any of the following without the merchant's consent and with intent to deprive the merchant permanently of possession or the full purchase price of the merchandise or property:

(a) Intentionally alters indicia of price or value of merchandise held for resale by a merchant or property of a merchant.

(b) Intentionally takes and carries away merchandise held for resale by a merchant or property of a merchant.

(c) Intentionally transfers merchandise held for resale by a merchant or property of a merchant.

(d) Intentionally conceals merchandise held for resale by a merchant or property of a merchant.

(e) Intentionally retains possession of merchandise held for resale by a merchant or property of a merchant.

(f) While anywhere in the merchant's store, intentionally removes a theft detection device from merchandise held for resale by a merchant or property of a merchant.

(g) Uses, or possesses with intent to use, a theft detection shielding device to shield merchandise held for resale by a merchant or property of merchant from being detected by an electronic or magnetic theft alarm sensor.

(h) Uses, or possesses with intent to use, a theft detection device remover to remove a theft detection device from merchandise held for resale by a merchant or property of a merchant.

(1r) Any person may be penalized as provided in sub. (4) if, having obtained a service from a service provider, he or she, without the service provider's consent and with intent to deprive the service provider permanently of the full price of the service, absconds and intentionally fails or refuses to pay for the service.

(3) A merchant or service provider, a merchant's or service provider's adult employee or a merchant's or service provider's security agent who has reasonable cause for believing that a person has violated this section in his or her presence may detain, within or at the merchant's or service provider's place of business where the suspected violation took place, the person in a reasonable manner for a reasonable length of time to deliver the person to a peace officer, or to his or her parent or guardian in the case of a minor. The detained person must be promptly informed of the purpose for the detention and be permitted to make phone calls, but he or she shall not be interrogated or searched against his or her will before the arrival of a peace officer who may conduct a lawful interrogation of the accused person. The merchant or service provider, merchant's or service provider's adult employee or merchant's or service provider's security agent may release the detained person before the arrival of a peace officer or parent or guardian. Any merchant or service provider, merchant's or service provider's adult employee or merchant's or service provider's security agent who acts in good faith in any act authorized under this section is immune from civil or criminal liability for those acts.

(3m)

(a) In any action or proceeding for violation of this section, duly identified and authenticated photographs of merchandise which was the subject of the violation may be used as evidence in lieu of producing the merchandise.

(am) For the purpose of sub. (4m), evidence that a person sold by means of the Internet merchandise that is similar to the merchandise that is the subject of a violation under sub. (1m) (a), (b), (c), (d), (e), or (f), within 90 days before the violation, is prima facie evidence of the person's intent to sell the merchandise by means of the Internet.

(b) A merchant or merchant's adult employee is privileged to defend property as prescribed in s. 939.49.

(4) Whoever violates this section is guilty of:

(a) Except as provided in sub. (4m), a Class A misdemeanor, if the value of the merchandise does not exceed $500.

(bf) A Class I felony, if the value of the merchandise exceeds $500 but does not exceed $5,000.

(bm) A Class H felony, if the value of the merchandise exceeds $5,000 but does not exceed $10,000.

(c) A Class G felony, if the value of the merchandise exceeds $10,000.

(4m) Whoever violates sub. (1m) (a), (b), (c), (d), (e), or (f) is guilty of a Class I felony if all of the following apply:

(a) The value of the merchandise does not exceed $500.

(b) The person agrees or combines with another to commit the violation.

(c) The person intends to sell the merchandise by means of the Internet.

(5)

(a) In addition to the other penalties provided for violation of this section, a judge may order a violator to pay restitution under s. 973.20.

(b) In actions concerning violations of ordinances in conformity with this section, a judge may order a violator to make restitution under s. 800.093.

(c) If the court orders restitution under pars. (a) and (b), any amount of restitution paid to the victim under one of those paragraphs reduces the amount the violator must pay in restitution to that victim under the other paragraph.

History: 1977 c. 173; 1981 c. 270; 1983 a. 189 s. 329 (24); 1985 a. 179; 1987 a. 398; 1991 a. 39, 40; 1993 a. 71; 1997 a. 262; 2001 a. 16, 109; 2011 a. 110, 174.

A merchant acted reasonably in detaining an innocent shopper for 20 minutes and releasing her without summoning police. Johnson v. K-Mart Enterprises, Inc. 98 Wis. 2d 533, 297 N.W.2d 74 (Ct. App. 1980).

Sub. (3) requires only that the merchant's employee have probable cause to believe that the person violated this section in the employee's presence; actual theft need not be committed in the employee's presence. State v. Lee, 157 Wis. 2d 126, 458 N.W.2d 562 (Ct. App. 1990).

Reasonableness under sub. (3) requires: 1) reasonable cause to believe that the person violated this section; 2) that the manner of the detention and the actions taken in an attempt to detain must be reasonable; and 3) that the length of the detention and the actions taken in an attempt to detain must be reasonable. An attempt to detain may include pursuit, including reasonable pursuit off the merchant's premises. Peters v. Menard, Inc. 224 Wis. 2d 174, 589 N.W.2d 395 (1999), 97-1514.

Shoplifting: protection for merchants in Wisconsin. 57 MLR 141.