Civil Demand Letters vs. Criminal Charges for Retail Theft in Wisconsin

Being stopped by loss prevention at a major retailer like Walmart, Target, or Kohl's can be an incredibly frightening experience. After the incident, you will likely receive a threatening letter from a law firm representing the store, demanding that you pay a specific amount of money. This is known as a civil demand letter. At the same time, you might also receive a notice to appear in court for criminal charges or a municipal citation. Understanding the critical difference between the civil demands of a private company and the criminal penalties enforced by the State of Wisconsin is the first step in protecting your future. Because navigating both a civil claim and a criminal case is complicated, you can easily find an experienced criminal defense lawyer in our US Lawyers Catalog to evaluate your situation.

Understanding the Civil Demand Letter

Under Wis. Stat. § 943.51, a merchant who suffers retail theft has the right to sue the accused individual in civil court. Even if the merchandise was recovered in perfect condition, the law allows the retailer to demand the retail value of the items lost, plus exemplary damages of up to three times the value of the goods (not to exceed $500, or $300 for minors), and attorney fees. Retailers send these demand letters as an aggressive collection tactic to recover the costs of their loss prevention departments.

Ignoring a Civil Demand Letter

Many people wonder what happens if they simply throw the civil demand letter in the trash. Generally, if you ignore the letter, the retailer will send a few follow-up letters with escalating threats. However, it is very rare for a major retailer to actually file a civil lawsuit in small claims court for $200 to $500, because paying their own lawyers to litigate the case costs more than they would recover. Still, ignoring it carries some risk of being sued, so you should always discuss this strategy with a local attorney before making a decision.

Does Paying the Demand Stop Criminal Charges?

This is the most dangerous misconception in retail theft cases. No. Paying the civil demand does not stop the criminal prosecution. The retailer does not have the authority to press or drop criminal charges in Wisconsin; only the local prosecutor, such as the Milwaukee County District Attorney's Office, Milwaukee or the Dane County District Attorney's Office, Madison, can do that. If you pay the civil demand, the state can still charge you with a crime, and some prosecutors might even try to use your payment as an admission of guilt.

Shopkeeper's Privilege in Wisconsin

If you were detained at the store, you might wonder if the security guards had the legal right to hold you against your will. Under Wis. Stat. § 943.50(3), the state recognizes the Shopkeeper's Privilege. This law allows a merchant or their security employee to detain a shopper if they have reasonable cause to believe the person stole merchandise. However, the detention must be done in a reasonable manner and only for a reasonable length of time to call the police or verify identification. This standard was strongly upheld in the precedent Hainz v. Shopko Stores, Inc., 121 Wis. 2d 168 (WI Court of Appeals 1984). If a loss prevention officer used excessive physical force or held you for hours in a back room, your attorney might have grounds to file a civil rights lawsuit against the store or suppress evidence gathered during the illegal detention.

Ordinance Violation vs. Misdemeanor Shoplifting

If the police were called, the outcome largely depends on the value of the items and your prior record. For minor offenses (usually under $50 or $100), police in cities like Green Bay or Kenosha might just issue a municipal citation (a ticket). An ordinance violation is not a crime; it is similar to a speeding ticket and will not result in a permanent criminal record, though you still have to pay a fine in municipal court.

However, if the police refer the case to the District Attorney, you could be charged with a Class A Misdemeanor for retail theft of merchandise valued at $500 or less. This is a real crime that carries up to 9 months in jail and a $10,000 fine. The case will be heard in a circuit court, such as the Milwaukee County Circuit Court, Milwaukee or the Brown County Circuit Court, Green Bay. To resolve these charges, your lawyer may use Form CR-227, Wisconsin, Circuit Court, Plea Questionnaire/Waiver of Rights to negotiate a deferred prosecution agreement.

What to Do Next (Step-by-Step)

If you are facing the dual threat of a civil demand and criminal charges, follow these steps to protect yourself.

Step 1: Do Not Speak to Loss Prevention or Police

If you are detained, politely state that you will not answer any questions without a lawyer. Do not sign any confessions or trespassing notices without reading them carefully, as loss prevention will use your written statements against you in court.

Step 2: Keep the Demand Letter, But Wait

Keep the civil demand letter for your records, but do not immediately mail a check. Bring the letter to your defense attorney. Your attorney will advise you on whether it is safer to ignore the letter or negotiate a settlement that includes an agreement from the retailer not to push for criminal prosecution.

Step 3: Appear at Your Court Date

Never miss a court date. If you receive a summons for municipal or circuit court, you must appear, or the judge will issue a warrant for your arrest. Your defense attorney will attend with you to plead not guilty and demand the store's security footage.

Expected Costs & Timeline

The cost of fighting retail theft charges depends on whether the case stays in municipal court or moves to criminal court.

Municipal citations are usually resolved within 30 to 60 days. If you are charged with a misdemeanor in a Wisconsin Circuit Court, the legal process of discovery, pre-trial conferences, and negotiating a dismissal or plea agreement can take anywhere from 3 to 6 months.

Frequently Asked Questions (FAQ)