Shenkley V. Tabuena

A. Defendant Mark Schenkly detained Mr. Flynn in an unreasonable manner because he poked him in the back with a bat, called him names, and denied him access to water and to his phone.

Defendant Mark Schenkly did not detain Mr. Flynn in a reasonable manner because he used unnecessary force and abusive methods to coerce Mr. Flynn’s detainment. A shopkeeper is never permitted to use force to detain to a suspect. Gortarez, 680 P.2d at 814. The only exemption from this rule exists when the suspect is resisting the shopkeeper's request to remain or the force is necessary for purposes of self defense. Even in such a case, the force used by the shopkeeper must be reasonable under the circumstances and not calculated to inflict serious bodily harm.
In Gortarez, the shopkeeper, along with two other employees, approached the suspects in the parking lot as they were getting into their car. While there was some dispute as to the facts, one of the suspects testified that he saw one of the employees push the other suspect up against the car and search him. Although the employee did not ask the suspect for the item he was suspected of stealing, nor tell the suspect what it was that he was looking for, the suspect did not resist. The Supreme Court of Arizona held that the trial court erred in its finding of reasonable manner of detention. Id. at 815. In its reasoning, the Court pointed to the facts that there was no request for the suspect to remain, no inquiry was made as to whether the suspect possessed the vaporizer, the suspect did not resist or attempt to escape, and the nominal value of the item. The Court noted that the evidence adduced likely would have supported a finding that the manner of detention was unreasonable as a matter of law, and held that at best, there was a question of fact. Id. at
Evidence that the shopkeeper denied the suspect access to basic necessities may also support a finding that the detainment was not carried out in a reasonable manner. For example, in the Koepnick case, the suspect was approached by store employees in an unlit area of the parking lot which led him to believe the two were trying to “hustle” him. While one employee blocked the suspect’s path, the other grabbed his shopping bag, took the wrench from the bag, and waved it at him. Koepnick, 762 P.2d at 617. The mistreatment continued when the employees pushed the suspect around and refused his requests to use the telephone and to get a drink of water. The Arizona Court of Appeals upheld the trial court’s denial of the shopkeeper’s motion for a directed verdict on the issue of reasonableness of detention. Id. at