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The new frontier of Tennessee shoplifting and theft cases is appearing in Knox County

Posted November 9, 2015 - Felony Cases, Shoplifting

I recently read a story on-line that could have a profound impact on Tennessee shoplifting cases.  Knox County has declared a war on shoplifters by authorizing the use of felony burglary charges in cases where shoplifters return to the scene of their prior shoplifting activities.  The Knox County District Attorney’s office reasoned that these aggressive measures will prevent repeat offenders and act as deterrence.  In essence, they will stamp out repeat shoplifting in Knox County, Tennessee.

Opponents of this new policy criticize the measure because they see the courts acting as a de facto collections agency for the large box retailers.  They further argue that this is not in harmony with the Tennessee burglary statute because it is not what the Legislature intended and will surely get overturned in the appellate courts.  Opponents argue this is not responsible policy and a waste of taxpayer money.

A public defender in Knox County argued that most shoplifting charges are a result of poverty and/or drug addiction.  Due to these reasons, the new policy will not act as deterrence and only strap petty thieves with felony charges.  These felony charges will have an unjust impact on the offender’s life.  These measures will result in greater penalties than the legislature intended when they drafted Tennessee’s theft of property laws.  Offenders will be denied jobs, credit, the right to vote, the right to bear arms, and forever be labeled as a felon.  It was never the intent of the legislature to pursue felony charges for a misdemeanor offense.

What is the Knox County District Attorney’s rationale?

Large retailers who are the target of shoplifters have created “no trespass lists” which essentially ban shoplifters from returning to their stores.  If they return to these no trespass properties, they will face criminal trespassing charges regardless of their intent to return.  By merely walking onto store property, they are breaking the law by criminally trespassing.  Like shoplifting, criminal trespass is a misdemeanor charge.  Probation, fines, and court costs are the typical punishment for both shoplifting and criminal trespass.  A history of shoplifting can result in the offender serving jail time in the local jail but this is usually reserved for the serial offender.  However, none of these cases have ever been charged as a felony charge-burglary of a business.

The burglary of a business is a felony that carries a minimum two-year jail term and a maximum jail term of twelve years.  Historically, the burglary of a business involved a person who broke into a store with the intent to steal and not someone who shoplifted after being banned from the store.  Knox County is arguing that a shoplifter banned from a store is essentially burglarizing the retailer because they do not have the owner’s consent to legally be on the premise.  This has never been the law.  The Knox County District Attorney’s position is creative but it flawed.  It is a legal fiction at best. 

Burglary statutes historically have been drafted and designed to distinguish between petty thieves and actual felony acts.  They have drawn a clear line in the sand that clearly makes it worse to break into a closed store verses trespassing and later stealing. One action has always been a misdemeanor and the other a felony.  By rewriting around this distinction, the courts are assuming the role of the legislature.  I think it is inappropriate for the courts to assume such a role.  That power is clearly vested in the elected officials in Nashville-not the Knox County courts.  This is just some food for thought.  Take it for what it is worth.

-Lee Martin is a nationally recognized DUI and criminal defense attorney.  He provides premier legal services by limiting his caseload exclusively to DUI and criminal matters.  Lee knows how to build a solid defense strategy for your upcoming court date.  Let Lee Martin be your choose as your Nashville area criminal defense lawyer.   If you have pending charges, give him a call at 615-345-1988.

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