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Old July 25, 2013, 01:04 PM   #1
Spats McGee
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Detained by merchant?

Since I started carrying, I have made an effort to run through as many possible interactions involving carrying as I can. Why? Because I like to have a plan. I don't like the thought of having a situation arise in which I have absolutely no clue how I'm going to handle it. Naturally, situations like muggings, home invasions, etc. are (by their very nature) surprises. However, I do plan for those situations in which planning is at least possible, like how to respond to LE if I'm stopped for a traffic violation, or how to handle the police if I'm ever (Heaven forbid) involved in a SD shooting.

Last Saturday, a situation came up (with no bad consequences, thankfully) for which I had never even considered a plan of action. I thought that I would put this situation in front of the wise inhabitants of TFL and get y'all's thoughts on it. So here it is: Mrs. McGee and I were out last Saturday morning doing our "Saturday morning rat-killin'." That means recycling, grocery shopping, etc. I was carrying, naturally. After she and I paid for our groceries, of course, we left the store. Our grocery store has those thingamabobs that have flashing lights on top to keep folks from stealing unpaid-for merchandise. They look sort of like metal detectors, but I guess they're RFID detectors? We had paid for everything, but the lights went off, anyway. I stopped and waited for some kind of personnel to respond, but nobody came over. Apparently, those things go off with some regularity, even when you're not stealing stuff.

As we walked to the car, loaded it, etc., I began to wonder how to handle the situation if it happens again. Some stores use off-duty, but certified LE, to handle their security. While I have some reservations about the authority of the police to disarm me, the grocery store lobby is really not the time or the place to argue that point. OTOH, if I were approached by store security, or maybe a clerk or manager, then I'd be faced with a different kettle of fish. Under Arkansas law, a person engaged in conduct giving rise to a presumption that he or she intended to shoplift may be detained by a merchant, an employee of the merchant, or a law enforcement officer. When an anti-shoplifting device is triggered by a person, that person may also be detained. This is known as the "merchant's privilege," if memory serves. If the detection device were to be activated and I were approached by an employee, I don't see myself arguing over the detention. I wouldn't care for it, but I'd wait patiently (assuming there wasn't some other emergency to which I had to attend).

For reference, here's the statute:
Quote:
(a)(1) A person engaging in conduct giving rise to a presumption under § 5-36-102(c) may be detained in a reasonable manner and for a reasonable length of time by a law enforcement officer, merchant, or merchant's employee in order that recovery of a good may be effected.

(2) The detention by a law enforcement officer, merchant, or merchant's employee does not render the law enforcement officer, merchant, or merchant's employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

(b)(1) If sufficient notice has been posted to advise patrons that an antishoplifting or inventory control device is being utilized, the activation of an antishoplifting or inventory control device as a result of a person's exiting an establishment or a protected area within the establishment constitutes reasonable cause for the detention of the person so exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator.

(2) Any detention under subdivision (b)(1) of this section shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the antishoplifting or inventory control device or for the recovery of a good.

(3) A detention under subdivision (b)(1) of this section by a law enforcement officer, merchant, or merchant's employee does not render the law enforcement officer, merchant, or merchant's employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

(c) As used in this section, “antishoplifting or inventory control device” means a mechanism or other device designed and operated for the purpose of detecting the removal from a mercantile establishment or similar enclosure or from a protected area within a mercantile establishment or similar enclosure.

(d)(1) Upon probable cause for believing a suspect has committed the offense of shoplifting, a law enforcement officer may arrest the person without a warrant.

(2) The law enforcement officer, merchant, or merchant's employee who has observed the person accused of committing the offense of shoplifting shall provide a written statement that serves as probable cause to justify the arrest.

(3) The accused person shall be brought immediately before a magistrate and afforded an opportunity to make a bond or recognizance as in other criminal cases.

Ark. Code Ann. § 5-36-116 (West)
The questions are:
1) What to do if the manager/employee asks me to empty my pockets? My CHCL is in my pocket, and if I'm waiting on police to arrive, I'd prefer to keep that in my possession, as CCing without that is (at least considered to be) illegal.

2) I'm under no legal duty to inform a store manager or store security that I'm carrying, and I certainly wouldn't want it to sound like a threat if I did so inform, but . . . if they do ask me to empty my pockets and I decline, I could simply say "no, thank you." OTOH, I could simply explain that I decline to do so until LE arrives. As a 3rd option, I could explain that I do have a CHCL and I will only hand over same to a LEO. (I'm not real keen on Door #3 here.)

3) Assuming that the manager does somehow figure out that I'm carrying, I wouldn't be altogether too surprised if he or she asks me to surrender the gun. Now THIS causes me some heartburn. As mentioned above, if a LE asks me to hand it over, that's one thing. Having a store manager or store security (private, not off-duty LE) tell me to hand over my gun . . . not comfortable with that at all, having no earthly idea about that person's training, safety level, etc. With LEOs, I at least know they've had some training with firearms, and handle them regularly.

4) The question then becomes, if I decline and store security decides that they really need to disarm me (seems much more likely than a manager doing it), what then? Hand it over, or fight? The statute quoted above makes no reference to the merchant or an employee disarming me, so I do not see any way they have a right to do so. However, I really have no desire to explain to a judge how the situtation got to the point that I had to shoot a store security guard who was investigating me for allegedly shoplifting.

What say you, TFL?
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Old July 25, 2013, 01:20 PM   #2
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You have a receipt, don't you? Lead with that.
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Old July 25, 2013, 01:22 PM   #3
Spats McGee
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Well, yes, I had a receipt, and that's a good point.
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Old July 25, 2013, 01:22 PM   #4
kraigwy
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I also pocket carry.

I think if I was detained (we don't have that law here) I would politely tell the store personal that I have a revolver in my pocket, I would refuse to hand it over to him, but if he wanted to call the police I would temporarily let the officer hold my revolver while they did any legal search they thought was necessary.

Side note: I don't know how those detectors work, always wondered if my revolver would set them off.

I have had the alarms go off and I always walked back into the store and tell the clerk, and offer to show them my receipt for what ever I bought. I've never had one check me any farther, they just normally say "that's OK, don't worry about it, they go off all the time".
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Old July 25, 2013, 01:33 PM   #5
Jen-from-IL
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Detained by merchant?

My take on this is ONLY a LEO has the authority to search. Private security or store management can detain, but I do not believe they can force you to 'empty your pockets'. All that should be happening is a call to the local LEO and they will handle the situation.

Just my take. I could be completely wrong.
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Old July 25, 2013, 01:33 PM   #6
Seaman
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Michigan law states that if approached by a police officer you must proclaim your CPL, (and I have done so).

I do not proclaim to store staff or anyone else.

And yes, I have had the exit gate alarm go off on more than one occasion. I just hand the receipt to store staff and they locate the offending item (which they verify has been paid for) and send me on my way.

Smiles all round.

Just leaving now for some afternoon shopping, with a S&W 22-4 (primary) and a PPK (BUG).
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Old July 25, 2013, 01:39 PM   #7
ClydeFrog
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Don't sweat the small stuff...

In the late 1990s, when I got my first CC permit(yes a small slip of paper from the county Sheriff with my color ID photo stapled to it, ), I took my big 96D .40S&W into a local CVS drug store.
The red lights flashed & a loud alarm went off. I had my .40 in a Aker Comfort Flex rig under my leather jacket.
I asked a store mgr what was wrong. He just smiled & said the alarms were broken, no problems.
I laughed & said I thought this set it off, showing the grip of my 96D pistol.
The manager smiled again & said; "oh, no your fine".

If you have a problem & have a concealed weapon on you, Id just ask for a sworn LE officer to get there, then you can take it from there. Either get a atty or speak to the officer(s) & resolve it.

When I was a kid, my mom had a security agent chase her out of a Jamesway dept store all over a spray can of deodorant. That was a huge mess.

CF
PS: FWIW, many major chains in 2013 have do not pursue SOPs. Walmart by policy does not allow LP officers to touch or detain subjects.
There are online clips of bold crooks who dash out of stores with high value items because no one will stop them.
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Old July 25, 2013, 01:48 PM   #8
Brian Pfleuger
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The questions are:
Quote:
1) What to do if the manager/employee asks me to empty my pockets? My CHCL is in my pocket, and if I'm waiting on police to arrive, I'd prefer to keep that in my possession, as CCing without that is (at least considered to be) illegal.
I would politely refuse and state that I would wait for LE to arrive, if they so wish.

Quote:
2) I'm under no legal duty to inform a store manager or store security that I'm carrying, and I certainly wouldn't want it to sound like a threat if I did so inform, but . . . if they do ask me to empty my pockets and I decline, I could simply say "no, thank you." OTOH, I could simply explain that I decline to do so until LE arrives. As a 3rd option, I could explain that I do have a CHCL and I will only hand over same to a LEO. (I'm not real keen on Door #3 here.)
I would not inform the store employee of anything. I would simply do as explained in 1

Quote:
3) Assuming that the manager does somehow figure out that I'm carrying, I wouldn't be altogether too surprised if he or she asks me to surrender the gun. Now THIS causes me some heartburn. As mentioned above, if a LE asks me to hand it over, that's one thing. Having a store manager or store security (private, not off-duty LE) tell me to hand over my gun . . . not comfortable with that at all, having no earthly idea about that person's training, safety level, etc. With LEOs, I at least know they've had some training with firearms, and handle them regularly.
I would absolutely refuse and I would advise them that I was calling 911 at that point. They have the power to detain you. They have no authority to touch you or anything you own for any reason. "Detain in a reasonable manner" does not include handcuffs or any physical restrain for an otherwise cooperative person, IMHO.

Quote:
4) The question then becomes, if I decline and store security decides that they really need to disarm me (seems much more likely than a manager doing it), what then? Hand it over, or fight? The statute quoted above makes no reference to the merchant or an employee disarming me, so I do not see any way they have a right to do so. However, I really have no desire to explain to a judge how the situation got to the point that I had to shoot a store security guard who was investigating me for allegedly shoplifting.
It's hard for me to imagine it getting to this point and I really don't have an answer for that scenario. I agree that it's theoretically possible but I don't know how it would be handled in a way that was likely to have any kind of immediately positive outcome. I suppose I would comply, all the while making it clear (loudly if necessary) that they had no legal authority to touch me or anything I own and certainly not to disarm me.
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Old July 25, 2013, 01:53 PM   #9
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Nothing will de-escalate the situation like a receipt. Emptying your pockets should never enter in any situation outside of grade school.
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Old July 25, 2013, 01:53 PM   #10
Spats McGee
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Thank you for all of your input.

"Show receipt & let 'em look in the bags" seems like a good starting point, followed by:
Quote:
Originally Posted by Brian Pfleuger
I would politely refuse and state that I would wait for LE to arrive, if they so wish.
I was kind of thinking that this would be my course of action if further detained, but like I said, I wanted to bounce it around here.
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Old July 25, 2013, 02:55 PM   #11
deepcreek
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I would tell them "Do not touch me.." "call the police while I wait"

I would find a cash register at customer service and go their to wait because I know it will have a camera. I would also record the interaction on my phone if I had the technology.
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Old July 25, 2013, 03:20 PM   #12
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I have had an alarm go off at Walmart twice, but it's been quite a while ago. Both times I went to the nearest employee and showed them my receipt and bag and asked what the problem was. Both times the checkout person had failed to deactivate the detection device. If it had happened a third time, I would have demanded to see the manager and told him or her I was really tired off this.

I believe that stores fear being sued for falsely accusing a shopper more than they fear that that same shopper walking out with something. They may review the security tapes after you leave, but they are not going to ask what's in your pockets.
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Old July 25, 2013, 04:06 PM   #13
Frank Ettin
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Several posts have mentioned the Eric Scott matter. Those posts have been deleted. That situation is far more complex and very different from the sort of situations that Spats McGee is talking about in the OP. Therefore, Eric Scott is off topic in this thread.

If someone is interested in the sad Eric Scott story, it was discussed in this thread. It will not be discussed here.
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Old July 25, 2013, 04:39 PM   #14
teeroux
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I always imagined a similar senario except that a loss prevention agent would notice the bulge of my holster and gun and think I was concealing items.
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Old July 25, 2013, 05:41 PM   #15
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This is the sort of thing that gets the folks on here going on, but one way to think about it is to ask what you would do if you weren't carrying. And why you should do anything different.

Those detectors are not metal detectors; they are RFID detectors and should not react to anything but a chip in the merchandise. False alarms almost always result because the store clerk forgot to remove the chip. All you need do is show the receipt for the goods, let them remove the chip and leave.

If a store employee insists that he/she is going to search you, simply refuse, and ask that police be called. If you offer no physical resistance and they physically hold you, beat you, or search you by force, you can come into a nice piece of change in court or in a settlement.

If you make a big fuss about the fact that you are carrying, it might be taken as a threat, which would not be good.

I have had the experience of having the chip detector go off when I left a store because the checkout clerk forgot to remove it. I was carrying, legally, as a LEO, but none of the store employees ever knew it, nor did I use my badge and ID. I simply let them take the bag and remove the chip, and I left.

Jim
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Old July 25, 2013, 06:02 PM   #16
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I have some friends who work Walmart security. They have no authority to do much anything. They follow, observe, report to police. They are employed by another firm to insulate Walmart from lawsuits if they do something wrong. Walmart cannot be sued, because they don't get their paycheck from Walmart. If they follow a suspect they must WALK. Running after a suspect could lead to them, or the suspect running into other shoppers.

This is their employers policy, but I would doubt any store employee or even manager has any legal right to detain anyone. Much less search them.
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Old July 25, 2013, 06:15 PM   #17
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I was once stopped outside a grocery store due to the metal detector going off.

A petite lady came outside and asked if I had my receipt and could she look in the bag.

Of course I was, and am, a 5th dan blackbelt, Krav Magaist, boxer, IPSC/IDPA competitor, student of many a defensive gun course, and packing a Glock 26.

So, in my best Michael Caine English accent, I told her I most certainly do have my receipt, showed it to her and allowed her to look in the bag.

And I say yes old man the contents matched! Then went on my way.

I've even walked up to lady cops who were marking tires of the cars parked and asked them what were they doing. Had good conversations with them to.

And once two city detectives came to my house and were walking back to their car just as I drove up. They approached me and and asked if I was Deaf Smith (well sort of asked that.) I surely told them I was and asked what the problem was. Well it turned out one of the guns I bought from a pawn shop turned up to be stolen! They needed to return the gun to the owner. So I invited them into my house!

They were kind of taken aback by that but, hesitantly, they came in. I had to lock up my two attack Chihuahuas and had them sit down and we talked. I even offered them a drink. We even talked about some people we both knew.

So I got the gun, put the original grips back on after taking them off another gun (in their presence and that gun was loaded) and gave it to them after signing some paperwork. Not only were they quite polite but we got along well. And yes, I was packing.

And do not worry guys, the pawn shop refunded my money to! So it all worked out.

It's amazing what you can do if you are polite, treat them with respect, and look them in the eye when talking to them at least here in Texas!

Deaf
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Old July 25, 2013, 06:24 PM   #18
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I don't have anything to add that hasn't already been stated but I do want to thank you for this thread. I too try to have "what if's" preplanned to an extent but this is plausible and had never crossed my mind before. I can say I would not surrender my firearm to anyone other than law enforcement under any circumstances ever nor is it anyones concern that I am carrying in the first place since I'm following all applicable laws, however if brandishing my reciept didn't work and they attempted to detain me I would attempt to remain calm and nonthreatening, remain on camera and wait for a LEO to arrive. Most thiefs don't pull a reciept out if they get busted by an anti theft device I would imagine. I think even telling them that you have a firearm could be misconstrued as a threat and possibly get messy.
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Old July 25, 2013, 06:38 PM   #19
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At my usual grocery store and my closest Home Depot, those alarm things go off all the time. Sometimes an employee looks up and waves to the person saying "Go ahead, they've been going off all day". Some times I've seen customers come back in and say "Doesn't anyone care that I set the alarms off?". I can't think of a time when I've seen an employee ask for a receipt or to look in the bag.


I used to moonlight in uniform at a Wally's in Arkansas. Essentially I stood at the exit door and said hi to the people exiting. The "undercover" store security, not an LEO, if witnessing a shoplift, would follow and not lose sight of the suspect. Then they'd all arrange a stop once the suspect exited. They explained it to me as they had to keep the suspect in sight once they saw them shoplift. And they had to wait till they got outside in case the suspect claimed they put it in their pocket but were still planning to pay for it. I don't know if that was the statute in AR or Wally's policy.

Store security didn't physically restrain or search. That was my job if necessary. They had some kind of script they read from stating that it was Wally's who was placing them under arrest and turning them over to the custody of the city police department.


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Old July 25, 2013, 07:22 PM   #20
wayneinFL
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Quote:
You have a receipt, don't you? Lead with that.
This happened to me in Atlanta. Cop stopped me outside Wal-mart when the machine beeped. Rudest SOB police officer I have ever dealt with.But I had no merchandise on me, had not bought anything, and obviously had no receipt. So, what do you do then?
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Old July 25, 2013, 07:37 PM   #21
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Various things can see those devices off. I had an electronic card key for the building my office was in, an that used to set the alarm off.
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Old July 25, 2013, 08:00 PM   #22
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I just keep the recipt in my off hand. Sometimes the demagnitizer does not get the full charge off of the anti theft device inside of the merchandise. Also sometimes the clerk fails to deactivate the device as well.

It is a little piece of white plastic in the packaging.

At the local Walmart I have had that thing go off many times. The door greeter looks at the recipt I hand them, and then turns the anoying racket maker off.
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Old July 25, 2013, 09:00 PM   #23
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I think their is some over analyzing here. When the thing goes off which it does sometime, just show them the receipt. Why would they "detain" if you have a receipt. Every time I have been in this situation I show them the receipt, they look in the bag and your on your way. But if they did in fact go the extra mile and ask me to empty my pockets, I would politely tell them that I am legally carrying, and if they push the issue we could go someplace out of view of the public and take care of the matter and I would want to see a manager. But odds are it would never reach that point.
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Old July 25, 2013, 09:16 PM   #24
40-82
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Your worst case scenario is not going to be a manager or security personnel from a large store, but a small business owner who has been hit hard by shoplifting. Showing a receipt might not help that much because he may believe that in addition to the purchases on your receipt that you have hidden some of his merchandise on your person. Being well dressed, articulate, and the appearance of affluence might not help either because as I am certain you are aware sometimes people shoplift items they could easily afford to buy. Add to that you are likely to be dealing with an angry person who feels wronged and has little understanding of the legal limits of his position, a situation ripe for going south quickly.

You don't won't him to touch you or search you, and you don't want to mention that you have a gun. If you can you want to call law enforcement and explain very calmly that you're not going anywhere, and he'll have every opportunity to explain his case to the law enforcement officers with all of the evidence he believes present intact. He will probably be satisfied with your agreement to wait for law enforcement officers to show up. If he isn't satisfied, then you have to decide whether to trust your well being to his sense of proportion. He could very well believe that his suspicion of your guilt justifies a physical assault. Any action you take to defend yourself is very subject to misinterpretation. Even eye witnesses may not help you that much. In order to preserve the physical sanctity of your person, you may find yourself holding the store owner at gun point as you wait for law enforcement personnel to arrive. I don't think I have to tell a practicing attorney what an uphill fight to win the war of perceptions that will be in the eyes of the arriving officers or possibly a jury at some future date.

That's life. Sometimes we round the next corner and find ourselves faced with an extraordinarily complex situation that we have to resolve in seconds that has no good solution and will hang over us for the rest of our lives.
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Old July 25, 2013, 10:06 PM   #25
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the exit scanners do make mistakes at times. Here, I know of several LEO that work part time as loss prevention, or either full time loss prevention and part time LEO.

Basically be polite, show the receipt if asked (always make sure you have one) and if its anything more its a choice to ask for law enforcement if you or the store rep decide so. Keep in mind many chains have cameras all around and there may be a loss prevention person videoing you the entire time if they pick up on something unique to cause them to watch you.

To me carrying ccw in this circumstance isn't an issue, as if it were posted at entry a person could turn around and not enter.

Quote:
Originally Posted by Spats
3) Assuming that the manager does somehow figure out that I'm carrying, I wouldn't be altogether too surprised if he or she asks me to surrender the gun. Now THIS causes me some heartburn. As mentioned above, if a LE asks me to hand it over, that's one thing. Having a store manager or store security (private, not off-duty LE) tell me to hand over my gun . . . not comfortable with that at all, having no earthly idea about that person's training, safety level, etc. With LEOs, I at least know they've had some training with firearms, and handle them regularly.
To be honest. While I appreciate your view on law enforcement have some base level of training, I am constantly reminded ad nauseam about how everyone and anyone in the general population except law enforcement is trained to handle firearms. My opinion would be to wait until LE arrive and then hand it over if asked.

As to your 4th point. Its doubtful the store will try to restrain you physically due to liability. They may ask you to wait for the police and its your call. If you don't they can follow you out write down a tag number etc. If you do stay, just have basic chit chat "im tired of all this rain we are having" etc... No need to muddy the waters so to speak.
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