OMG…you are one of them. I think it is implied that security had SOME reason to believe that she committed theft. I think we can pretty safely say that he just didn’t decide to do a random search (unlike the TSA). IF, for arguments sake, he WAS doing a random search, then he would be subject to disciplinary action and he and the store would be liable for illegal search and seizure under the US Constitution. However, I refuse to believe that in this scenerio, he is THAT moronic.
He will need to articulate WHAT behavior the suspect exhibited that CASUED him to believe a crime had been committed (again, TERRY VS. OHIO). Since he is not here to ask, we must assume there was cause and effect. Otherwise, why is this even a discussion?
BTW…loss prevention guides??? Every store is going to have different policies.
You answered your own question when you posted your link. I am not sure how many stores make ARRESTS of suspected shoplifters. I would venture to guess they merely DETAIN them and wait for police to arrive. They never have the authority to SEARCH the detained person without that detained persons expressed consent. As I stated previously, at some point, SOMEONE would need to check the suspected shoptlifters bag (99.99999999…% of the time, this would be police). For arguments sake, if the officer felt he had no grounds to search the detained persons bag, the officer could seize the bag as evidence and obtain a warrant.
The store is always liable for the actions of their personnel when the employee is acting under ‘good faith.’ Good faith is a measure that the employee is conforming to behavior that is expected from his employer. This is why lawsuits of police officers always include their department and the city or county in which they work in.
I think the debate is missing the larger point. Why on earth would it ever get to this point? Why would it ever result in violence? I remember I had been accused of shoplifting cologne a long time ago. Security observed me with the said cologne in my hand while browsing the store. At some point, they no longer saw it in my hand and (for some reason) believed I had concealed in on my person. What had truely happened was that while I was walking around, decided not to buy the cologne and set it on a nearby shelf. As I was walking out, I was approached by security and accused of theft. I had a bit of a laugh and agreed to empty my pockets. They quickly realized their error and apologized profusely. They contacted their supervisor and advise him of the error and he apologized as well. People make mistakes. I realize that they were acting in ‘good faith’ and were just trying to do their job. I felt no reason to make it my payday or to kick them in their privates.
What kind of world do we live in where any accusation, however small, is a personal threat to our liberty and we must resort to violence? No wonder our children are heading off to school with bulletproof backpacks! Its because their parents (people like those who have posted to this thread) are too quick to back violence or retaillitory behavior. Shame on you.
Responding to the OP, I have/had several friends empoyed as security staff in more than one company (Securicor, Group 4, a bank, a supermarket) in the UK, and trying to stop a guard inspecting your bag by pulling it away and/or pushing their hand away would usually be met with a stern look and sterner words.
A kick to the nuts would be responded to with several of the nearby employees (and some further away, using a coded message over the intercom/speaker system if you ran) ‘apprehending’ the member of the public and/or stopping the assault. The police would be called at this point, as a matter of course, and they’d press charges 99 times out of 100 against the customer. The guards are subjected to verbal and physical assault all to often and have to be quite clear on the message they give to the general public.
Yes I agree the guard was clumsy in drawing blood when grabbing the poster’s arm, but kicking them in the nuts was stupid. :smack:
Not really. How does the Constitution apply to the actions of the store or its employees?
Two different animals there. The store is liable for the torts of its employees under a respondeat superior theory, but under federal law respondeat superior doesn’t apply to municipalities for the torts of its police officers. There has to be a heightened showing that the officers caused a constitutional violation due to a policy or practice of the department. Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).
I can think of some reasons. The accused could be the wrong color, from the wrong side of the tracks, or otherwise fulfill someone’s stereotype of a “criminal type”. The store employee may be immature, insecure, ignorant of the law, and afflicted with testosterone poisoning. I’ve encountered that type of person too many times, both as store employees and as police officers, in areas where hiring and training standards were minimal or nonexistent.
I was also falsely accused of shoplifting. Instead of an apology, I received threats of violence from the store employee, both before and after he had completed an illegal search and found nothing. Instead of apologizing, his manager banned me from the store, since I must have done something wrong and was a troublemaker.
That sounds like bullshit self-defense course stuff to me. Most real SD courses teach you to appropriately evaluate the situation and avoid violence, not walk around on hair-trigger ready to attack.
In any event, the store guard can be charged with two counts of being a douchebag (1. grabbing the bag and 2. choosing store security guard as profession in the first place ), the penalty generally being an asskicking.
Of course the customer has also violated several counts of being a dumbass
arguing with the store guard about his “rights”. Yes it is a nusance. So is swiping my badge in the morning or having the bomb sniffing Labrador stare at me funny like I was made of tennis balls. Get over yourself.
setting himself up to possibly be beat down by the security staff and/or arrested by the cops
effectively being unable to shop in that store again
I beg to differ. The respondeat superior theory is a generally regarded legal rule, not case law. It is a broad encompassing theory that case law in bourne under. Specific to police officers, case law has provided qualified immunity ( Harlow v. Fitzgerald, 457 U.S. 800) for those officers who acted with good faith. Those that exceed their athority leave themselves open to tort claims under color of law viololations or charges of official misconduct (Daugherty v. Ellis).
Do not confuse a criminal suit with a civil tort claim. Anyone can sue anybody for anything in civil court. Case in point, Allen Ray Heckard who attempted to sue Michael Jorden for $52 million “for defamation and permanent injury” – plus $364 million in “punitive damage for emotional pain and suffering”, plus the SAME amount from Nike co-founder Phil Knight, for a grand total of $832 million. Why? Because Allen Ray Heckard claimed to look like Michael Jorden. Read any Stella Award for more (http://www.stellaawards.com).
One last point:
The security guard did nothing CRIMINAL by snatching the bag. Even if it did draw blood. The shopper however, would be CRIMINALLY LIABLE for assaulting him in return. I think any jury in the country would find it hard to believe that having your bag taken from you after being accused of shoplifting would NOT constitute a justifiable reason to lash out in self defense. I would absolutely arrest the shopper for assault or at least harassment for attacking the employee. They would also be liable for any damages the employee suffered as a result of the shoppers attack.
One may also bring in the rule of mutual combat to reduce the culpability of the shopper. This is not the case however (Hudson v. Craft) as by the text, the shopper RETALIATED against the security guard.
You “beg to differ” with a ruling of the U.S. Supreme Court? What specifically are you disgreeing with? Municipalities aren’t liable for police misconduct under federal law the same way a store is liable for an employee under respondeat superior. As I said, two different animals.
Also, what do you mean by a “generally regarded legal rule” not being “case law,” and how does that bear on municipal liability and respondeat superior under federal law?
Qualified immunity refers to state officials being sued in their individual capacities. When a police officer is sued in his official capacity, the municipal liability standard of Monell applies. Hafer v. Melo, 501 U.S. 21, 25 (1991). None of that has anything to do with what we’re discussing, though.
You can sue the devil if you can get him served. See, e.g.,U.S. ex rel. Mayo v. Satan and his Staff,
54 F.R.D. 282 (W.D. Penn. 1971). What the heck does that have to do with anything?
And again, how does the Constitution apply to the actions of the store or its employees?
pravnik, it appears you argue for the sake of arguing. I beg to differ with your assumption that they are two different animals. Respondeat superior in and of itself is not case law. Much the same as the choice of evils isn’t case law (People v. Brandyberry). It is a rule in which courts use to measure degree of culpability. While these “measures” are used in civil and criminal courtrooms, they are weighed differently.
Your ASSUMPTION that respondeat superior doesn’t apply to municipal agencies is both correct and incorrect. My statement was to the effect that in CRIMINAL court, the matter at hand would be color of law or official misconduct violations (AS I STATED EARLIER). Since color of law and official misconduct does not apply to the general public, respondeat superior is used. It has the same effect and standard with respondeat superior holding that the PRIVATE EMPLOYER is responsible for the employees behavior rather than a GOVERNMENT AGENCY. I take it your arguement is geared more towards semantics. Thus, you argue for the sake of arguing.
How can someone be found NOT GUILTY of murder, but liable in a civil wrongful death lawsuit (remember OJ Simpson)? If a police officer was acting in good faith when he shot and killed a suspect, he may be found NOT GUILTY in criminal court. In civil and federal court, he and his agency may be sued by the surviving family. Although the officer is named personally in the suit, qualified immunity protects his assests. While the surviving family may collect a settlement from the agency, they can not collect any money from the officer. I would like to see any precedent in court that allowed a summary judgement against an employee of a private company when that employee acted without malice and within the scope of his duties.
Okay, think about the next step, when you’ve decided you’ve got to react. It’s not bullshit; it’s normal training. Do I have explain all the crap leading up to the moment of decision. I stand by what I said, but I also stand by what you said, up to the point the decision to react is made.
If a store employee – wearing an authoritative-looking uniform or not – grabbed something from me without permission and drew blood as a result (simple assault, blood or not) I can only assume he has no respect for the law and I will feel justified in defending my property under the circumstances. I don’t mean lethal force, but justifiable force. I might get arrested, but no jury will convict me. There’s no constitutional issue about search and seizure here, it’s a private business. What does matter is the limit of pseudo-police* powers, the laws of assault, and the right to defend oneself.
Since I’m the one who brought up lethal force, I just wanted to clarify that it wasn’t really to suggest that it would be appropriate in the OP’s case. I figured as long as I was going to summarize Texas law, I might as well do the whole spectrum - from the thread of force all the way up to lethal force.
FWIW, every training course I’ve ever attended stressed the importance of avoidance, de-escalation, and - if possible - retreat. I think that if a store employee assaulted me I’d get away from the employee if I could, even if it meant leaving my purchase behind. The whole live to fight another day thing. After I was out of immediate “danger” I’d phone the police and go back to claim my purchase, and, if warranted, press charges. Most probably, though, I’d just ask for my money back and not do business with that store again.
You keep saying this, and it makes no sense. Respondeat superior is a common law theory of vicarious liability.
Sigh.
“On the other hand, the language of 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor - or, in other words, a municipality cannot be held liable under 1983 on a respondeat superior theory.” Monell, 436 U.S at 691.
That’s the thing about law, there’s a lot of sematics. Meanwhile you keep ignoring this question; when you said:
How would the store be liable for illegal search and seizure under the U.S. Constitution?
This is exactly the type of person who walks into a grocery store, walks through the yellow signs that say, “Caution, wet floor”, slips, falls, and then trys to sue the store. Balthisar from Michigan, you can NOT use a self-defese cop-out to RETALIATE against a perceived authority figure when they are attempting to prevent a crime they believe to be perpetrated by you. You will lose that one in court everytime.
Where I come from, ALL private security personnel are required to be certified by the state who gives them limited police authority. As such, an illegal search of someone’s person would fall under the US Constitution.
Most courts have concluded that absent some agency relationship, licensing by the state isn’t enough to make a private security guard subject to Fourth Amendment restrictions, usually quoting United States v. Jacobson, 466 U.S. 109, 113 (1984) (The Fourth Amendment is inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”) See, e.g., People v. Taylor, 222 Cal.App.3d 612, 621 (1990) (Even in a criminal prosecution, the action of a private security guard in searching an individual is not subject to the proscriptions of the Fourth Amendment unless the private security guard “may fairly be said to be a state actor.”); People v. Chastain, 733 P.2d 1206, 1214 (Colo. 1987) (private security guard’s seizure of a defendant was not the action of a government agent because the guard was not acting at the behest of the government and was not otherwise receiving instructions from state officials.) It’s possible your jurisdiction is in a very small minority, but I’d want to see the law on that point.
Of course, that still doesn’t address how the store is liable for illegal search and seizure under the U.S. Constitution.
Geez pravnik, you just don’t get it do you??? Your reference to United States v. Jacobson delt with plain view seizure. An exception to the general requirement of a valid search warrant to legitimize a search or seizure. “A search implies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view.” 193 N.E. 202, 203. Thus, it is not a search for an officer to observe or hear something by one of his natural senses, 474 F. 2d 1071, nor when common means of enhancing the senses such as a flashlight, 422 F. 2d 185, or binoculars, 319 N.E. 2d 332, are used. But the use of such devices may be so intrusive as to constitute a search in the case of a high-powered telescope, or x-ray machine, 495 F. 2d 799. See LaFave, Search and Seizure §2.2 (3d ed. 1996). For a plain view seizure to be reasonable the officers must satisfy two requirements: first, there must be legal justification to be in the position in which seizable property is observed; secondly, it must be immediately apparent that the item is subject to seizure. 110 S.Ct. 2301, 2308.
What we are talking about here is the authority under which the security guard can “seize” the suspected shoplifter and evidence of the crime. Please read Tyhesha Lemon v. State of Indiana and the Sept. 6, 2007 edition of the NY Times (http://query.nytimes.com/gst/fullpage.html?res=9903EFD71238F934A25755C0A9659C8B63) and I think you may get a clearer picture of what I have been trying to tell you the entire time.
Under the Tyhesha Lemon v. State of Indiana ruling, the court ruled that the private security guard was not wrong for using the force he felt necessary to make an arrest of Lemon who he attempted to apprehend for trespass. The facts of this particular case however, also justified Lemon’s reaction to her preceived unreasonable force. What this case highlights with respect to the case that started this thread is that the security guard was within his right to confinscate the shoplifters bag, even if it drew blood. The culpability of the shoplifters subsequent relalitory or resistive behavior however, would need to be determined on a case by case basis.