By Darren Smith, Weekend Contributor

I have noted over the years a trend to punish victims of crime. Yes, victims of crime. Punishment of property owners who’s buildings are tagged with graffiti, people who have had firearms stolen and then they were used in crimes, and now it is shopping carts stolen from retailers that have led to the City of Federal Way, Washington to pass an ordinance punishing the victims, the store owners, for having their shopping carts stolen.

While there does exist some limited case law in that a victim cannot be a suspect concurrently, ordinances such as this lead me to believe that the legislature should establish laws mandating that crime victims have a right not to be prosecuted as a result of being crime victims.

In a press release, the City Council of Federal Way announced its pending legislation regarding shopping carts that are stolen from retailers:

City to regulate abandoned shopping carts and curb blight

An ordinance designed to help curb the problem of abandoned shopping carts strewn throughout the city was passed by the Federal Way City Council during the Dec. 4 meeting.

For many years, the City has provided a retrieval service of abandoned shopping carts for free. The work was afforded through a volunteer program comprised of retired police officers and city-owned equipment. However, the age of the volunteers coupled with the amount of work has far exceeded the ability of the City to continue the program.

Unfortunately, shopping carts are being left abandoned across the city at increased numbers, which has become an issue of blight and public safety. The proposed ordinance establishes incentives for retailers to prevent shopping carts from leaving their property, and it imposes fines when shopping carts are retrieved by the City and left unclaimed.

“We will no longer tolerate the blight of shopping carts littering our streets,” Mayor Jim Ferrell said. “We have an obligation to keep our streets clean. We will be working with our retailers and our residents to help accomplish that goal.”

The proposed ordinance was drafted after input from area retailers over two meetings and based on research of neighboring city ordinances related to abandoned shopping carts.

The steps of the proposed ordinance are as follows:

• The City of Federal Way will pick up abandoned shopping carts along rights-of-way, City-owned properties, and, when given permission, private properties.
• Carts are then taken to a recovery location
• The City then contacts the retailers of the abandoned carts and informs them that the City will hold the carts for 14 days.
• Retailers may pick up their abandoned carts, but will be charged a fee of $25 per cart.
• If carts are not retrieved by the retailer, the City takes them to a salvage yard where for disposal an additional $25 fee will be imposed.

In its first year of removing shopping carts, 2010, Federal Way Police Department volunteers removed more than 1,200 carts. This year, they are on track to remove about 2,000.

Shopping carts can cost between $75 to $400, and it is estimated that the volunteer-based program has saved retailers about $2.25 million over the course of eight years, according to Brian Davis, Community Development director.

“Area retailers know that this problem is a public nuisance and presents various potential safety and health hazards here in Federal Way,” Davis said. “We’re grateful that they have been receptive and willing to come to the table to talk about solutions during the course of us generating this proposed ordinance.”

The ordinance will take effect on Jan. 7.

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To understand this problem more completely, one needs to look to the existing state law regarding shopping cart theft.

RCW 9A.56.270 Shopping cart theft

(1) It is unlawful to do any of the following acts, if a shopping cart has a permanently affixed sign as provided in subsection (2) of this section: (a) To remove a shopping cart from the parking area of a retail establishment with the intent to deprive the owner of the shopping cart the use of the cart; or (b) To be in possession of any shopping cart that has been removed from the parking area of a retail establishment with the intent to deprive the owner of the shopping cart the use of the cart.

(2) This section shall apply only when a shopping cart: (a) Has a sign permanently affixed to it that identifies the owner of the cart or the retailer, or both; (b) notifies the public of the procedure to be utilized for authorized removal of the cart from the premises; (c) notifies the public that the unauthorized removal of the cart from the premises or parking area of the retail establishment, or the unauthorized possession of the cart, is unlawful; and (d) lists a telephone number or address for returning carts removed from the premises or parking area to the owner or retailer.

(3) Any person who violates any provision of this section is guilty of a misdemeanor.

I remember when this statute came into force. Ordinary theft statutes were held not to be applicable to the carts and so a specific statute was enacted. Unfortunately the legislature watered the law down to such a degree by the signage requirements the law is essentially unenforceable. Each shopping cart must have the labeling required or else the law cannot be enforced against the thief.

Thirty years later, through lack of enforceability the problem of shopping carts has again come to the attention of lawmakers. Tired of the scourge of shopping carts marauding about the city, the council has instead chosen to punish the retailers for their stolen property.

I have never seen an ordinance that punishes people for theft like this ordinance.  Essentially it forces the victim to pay for the crime. Twenty Five dollars in each case of theft. It also seems rather open ended in that someone could steal many carts from a retailer in order to have them punished by the city.  Plus, what happens if there are multiple independently owned franchises that use shopping carts labeled identically: how can the city prove direct ownership? And then there is the question about abandoned property.

In practice, what incentive is there for the retailer to label their shopping carts? If it is stolen, the retailer victim will be punished due to the cart having the owner’s label or brand thereon. But to complete the required elements of the state shopping cart theft statute much labeling as stated above shall be affixed to the cart to make the theft enforceable. Retailers are now caught in a bind.

Punishing the victim: It’s the Federal Way.

By Darren Smith

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