IL Supreme Court settles shoplifting-as-burglary debate
In July 2014, Darren Johnson and another man entered the Rock Falls Walmart, placing two backpacks on top of a coin counting machine in the vestibule on their way into the store. Inside, they gathered some items of clothing and then, without paying for the clothing, returned to the vestibule, retrieved the backpacks, and loaded the clothing into the backpacks. They repeated this process a second time. A customer called the police, and Johnson was stopped outside of the store. Johnson admitted stealing the clothing, telling the police it was for his daughter.
Johnson was convicted of burglary in that he had, “without authority, knowingly entered” Walmart with the intent to commit a theft therein. On appeal, he challenged whether his act of shoplifting could be prosecuted as burglary as opposed to retail theft. More specifically, Johnson argued that the Supreme Court’s recent decision in People v. Bradford, 2016 IL 118674, which held that shoplifting could not be prosecuted as “burglary-by-remaining,” also extended to “unlawful-entry burglary” and precluded all shoplifting-as-burglary prosecutions.
The Supreme Court disagreed. In Bradford, the court had declined to extend the limited authority doctrine defined in People v. Weaver, 41 Ill. 2d 434 (1968), to “burglary-by-remaining.” The limited authority doctrine provides that the authority to enter a business building or other building open to the public extends only to those who enter with a purpose consistent with the reason the building is open. In Weaver, the defendant exceeded his limited authority where he was found in a laundromat, in possession of $50 in coins, as well as tools to open the vending machine located near where he was standing. Because Weaver’s entry with the intent to steal coins from the vending machine was not consistent with the purpose of the laundromat’s being open to the public, his entry was without authority and his burglary conviction could stand.
In Bradford, the defendant had been convicted of burglary for remaining in an open retail store without authority and with the intent to commit theft. On appeal, the court concluded that application of the limited-authority doctrine to burglary-by-remaining would have been unworkable because it would have been difficult to define what a person must do, and for how long, to be considered to be “remaining” without authority. It also would have converted almost all retail thefts to burglary.
Similar concerns are not presented by application of the limited authority doctrine to shoplifting prosecuted as unlawful-entry burglary. In such cases, it is the individual’s intent at the moment of entry that must be proved to show that a defendant exceeded his or her limited authority. The court concluded that it is difficult to prove a person’s intent at the time of entry, and therefore it is more probable that the vast majority of shoplifting prosecutions will remain as retail theft.
The majority also looked to the legislative history surrounding the enactment of retail theft and concluded that it did not show any intent to do away with prosecution of shoplifting as unlawful-entry burglary. Retail theft was enacted as a means of combating shoplifting. Had the legislature intended to abrogate the Weaver rule, it should have amended the burglary statute itself. Justice Theis authored a dissent, joined by Justice Neville, reaching an opposite conclusion largely based upon legislative history. The dissent noted that the retail theft statute was enacted to discourage specific conduct— shoplifting—and to punish that conduct with a proportionate penalty. While burglary is often accompanied by the potential for a violent confrontation, shoplifting rarely is. The dissent concluded that there is no justification for punishing a shoplifter as a burglar and would have construed the statutes accordingly.