Wal-Mart "security forces" kill shoplifter

[SJRTX]

Not sure where this belongs-but definitely interesting.

Wal-Mart "security forces" kill shoplifter
http://www.chron.com/cs/CDA/ssistory.mpl/front/3301862

Answers sought in death outside Wal-Mart
Man accused of theft begged to be let up from hot pavement, witness says
By ROBERT CROWE and S.K. BARDWELL
Copyright 2005 Houston Chronicle

A man suspected of shoplifting goods from an Atascocita Wal-Mart — including diapers and a BB gun — had begged employees to let him up from the blistering pavement in the store's parking lot where he was held, shirtless, before he died Sunday, a witness said.

An autopsy for the man, identified as Stacy Clay Driver, 30, of Cleveland, was scheduled for Monday, but officials said results probably would be delayed by a wait for toxicology tests.

Driver's family, as well as one emergency worker, are questioning company procedure, including whether Wal-Mart workers administered CPR after they realized he needed medical attention.

When Atascocita Volunteer Fire Department paramedics arrived, Driver was in cardiac arrest, said Royce Worrell, EMS director. Worrell said Monday he heard from investigators that Wal-Mart employees administered CPR to Driver, but he was not sure that happened.

"When we got there, the man was facedown (in cardiac arrest) with handcuffs behind his back," Worrell said. "That's not indicative of someone given CPR."

Wal-Mart employees referred calls to the Harris County Sheriff's Department, where homicide detectives are investigating the death.

"We're just not able to provide any comment at this time ... ," said Christi Gallagher, spokeswoman at Wal-Mart's headquarters in Bentonville, Ark.

Jim Lindeman, a lawyer representing Driver's family, said the family is devastated. "We're waiting to learn the results of the Sheriff's Department investigation," he said.

No charges have been filed. "The determining factor will be the (autopsy) report in whether we go forward with any charges," said Lt. John Martin, Sheriff's Department spokesman.

Driver lived in Cleveland, where his parents own a small business, Lindeman said. Driver was a master carpenter with a 2-month-old son and was about halfway through taking flying courses to get his pilot's license, Lindeman said.

Employees told investigators Driver had walked out the store with a package of diapers, a pair of sunglasses, a BB gun and a package of BBs, Martin said.

Lindeman said otherwise. "It's our belief he was not shoplifting," he said.

Houston lawyer Charles Portz was outside the store at 6626 FM 1960 East when employees chased Driver into the parking lot Sunday afternoon.

Portz said three employees caught Driver, who twisted and turned until his shirt came off and he broke free and ran.

"They chased him right past me," said Portz, who followed the chase, then saw four or five employees hold Driver on the ground. Driver was pleading with them to let him up, Portz said. "The blacktop was just blistering," he said.

The high temperature at Bush Intercontinental Airport Sunday was 96 degrees.

Portz said one of the Wal-Mart employees had Driver in a choke hold as other employees pinned his body to the ground.

"He was begging, 'Please, I'm burning, let me up,' " Portz said of Driver. "He'd push himself up off the blacktop, like he was doing a push-up.

"About 30 people were saying, 'Let him up, it's too hot,' " Portz said. He said another employee brought a rug for Driver to lie on, but one of those holding Driver said he was fine where he was. "After about five minutes, (Driver) said, 'I'm dying, I can't breathe, call an ambulance,' " Portz said.

Employees struggled with Driver before he was handcuffed, Martin said.

"There was a struggle, and when they finally succeeded after getting him detained in handcuffs, he continued to struggle," Martin said.

After Driver was handcuffed, Portz said one employee had his knee on the man's neck and others were putting pressure on his back.

"Finally the guy stopped moving" and the employees got off him, Portz said. "They wouldn't call an ambulance.

"I looked at him and said, 'Hey, he's not breathing,' but one guy told me (Driver) was just on drugs. I told them his fingernails were all gray, and finally they called an ambulance."

Martin said investigators have no indication that Driver was intoxicated.

He also said a review of surveillance tape showed that nine minutes had elapsed between the time employees "got (Driver) under control and the time EMS showed up."

Worrell said paramedics arrived two minutes, 19 seconds after they received the call. Paramedics performed CPR on Driver en route to Northeast Medical Center Hospital, where he was pronounced dead.

Store employees told investigators Driver entered the store with an item marked with a sticker indicating it had been paid for, then switched the sticker to a more expensive item and tried to leave with it.

[Baytown]

DON"T STEAL STUFF!!

I will also say that we have started giving a class on positional asphysiation. (I have no idea how to begin spelling that by the way.) It is very real and is a problem.

Glenn

[AOPAPilot]

DON"T STEAL STUFF!!

I will also say that we have started giving a class on positional asphysiation. (I have no idea how to begin spelling that by the way.) It is very real and is a problem.

Glenn

Nobody deserves to die for shoplifting. Also, who are you teaching the asphyxiation class to? Hope it comes with a free CPR class cause to be honest with you that does not sound like a great idea (former Paramedic)

[gigag04]

Nobody deserves to die for shoplifting.

I don't think many would disagree. However, noone would have to worry about being killed by security forces if they dont get involved with them in the first place. I think that was the point being made.

That said, I want to reiterate, I don't think shoplifters deserve to die either.

-nick

[Baytown]

Shoplifting is not a capital offense, but this is a very good lesson to obey the law. Noone would be dead had he kept his hands off what did not belong to him. If, when attempting to get away, he caused pain or discomfort to any of the employees, the act was a robbery, not shoplifting. Again, it is a shame, but he could have done a lot to avoid it.

No CPR in the class, we were taught what to do to avoid the situation. Ex, getting the prisoner into a sitting postion if they are cooperative, or at least on their back, trying to avoid putting weight on the back of the prisoner, etc...

Glenn

[stevie_d_64]

I little late getting in here today...

I saw this story this morning, and thought this might be a topic of dicussion here today and I was right...hehehe

I also think this was a little over kill...Walmart seems to be excelling at confronting shoplifters and other suspects aggressively these days...And its getting more and more confrontational, accusatory, and physical...

If thats the new company policy for its Loss Prevention personnel, then they'd better get the word out, and not rely on stories like this to invite all sorts of retaliatory legal action taken against them...

Not that I give a rats in the first place...

Sad that it cost someone their life in the process...

I am sure I am correct in a small way that if this was a commisioned L.E.O. that had put this person into custody and they died, that officer would be on a long walk down a short pier at the lake...

Having used to work in retail (during the lean years) The "home improvement" company I worked for had a non-confrontational policy for "everyone" in the stores, in regards to shoplifters and other types of exploitive crimes...It rubbed a few people wrong to think they couldn't confront and detain a suspected thief...And I found myself sometimes telling people who felt that way...

"Hey, its not your stuff to begin with, why risk it???"

I had heard that while you are in custody, legally you are under the "protection" of that arresting officer, until you are processed at the "pokey", or released by lawful authority...

In that time, they are required to maintain your physical health and safety...If not, they are liable for any harm that comes to you...To paraphrase what I had heard...

These Walmart LP people are wannabes...And that is what is going to hurt them and the company worse now...

As much as I hate to see it cost the life of this thief...I do think the people involved, and the company in general are ripe for a lawsuit...And I think its worth it in this case...

If the guy had not died, then of course it would be different...

But those Walmart people had the means to prevent the death for such a petty crime...

But this is just my opinion...

[SJRTX]

Well, the way I see it, once he was reasonably restrained(handcuffed w/hands behind his back) he still had two guys on his back and third kneeling on his neck. On top of that he had his shirt off and was face down on hot asphalt. They should have sat him up, and with one guy at each arm, and a third infront of him, I doubt he would have gone anywhere.

To me it looks like they got a little excited and went overboard. The guy complained he couldnt breathe and that he was burning up several times. I know I would have a hard time breathing with 3 guys on top of me and hands behind my back. So they decided to play cop(most likely without any formal training) and now they will have to pay for it-possibly in the form of negligent homicide charges...

[KBCraig]

I believe Wal Mart will (and should) cough up some big bucks on this, and criminal charges against the LPs aren't out of the question.

I make it a point to be friendly and polite with store personnel when I'm shopping. I also make it a point to ignore requests to see my receipt as I'm leaving. (One exception is Sam's Club, where purchases aren't bagged, and 100% of the receipts are checked. It's still irritating, though.)

Wal Mart puts little ol' grannies in the undesirable position of accusing people of stealing. I smile politely and keep walking, because they're just thrust out there with no training. I've ignored, "Sir? Sir? Sir!" all the way to my car; they couldn't possibly be calling after me, because I've done nothing wrong.

If one of them steps in front of me, they are likely to face the Wrath of Me. I once bought a case of beer at the express line on a slow day, in the direct line of sight of the greeter 15 feet away. I've got a toddler in one arm, a case of beer in the other, and the receipt in my wallet (debit card, yanno). She said, "Sir, I need to see your receipt!" I said, "No, you don't," and kept on walking. I expected to hear feet pounding behind me, but never did.

As I understand Texas law, a store detaining someone better be darn sure they're right, or they can face charges of unlawful restraint. At the least, they need a specific articulable reason to believe you're in possession of stolen merchandise. Lawyers and LEOs, feel free to correct me. :D

Stores that treat customers like thieves tend to attract more thieves. If there's one house on the block with burglar bars, that's the one that will be burgled. I've seen convenience stores on opposite corners, one that's open to customers, and the other where the clerk is behind glass; guess which gets robbed? It's an odd bit of human psychology.

Kevin

[Texasdoc]

Well I have been stoped by the Wal-mart Gestapo in Austin about 3 years ago. there thing went off and the manager and 3 others chased to me my truck and one grabed my Gun side and then yelled out "he has a gun " the other one pulled a Asp and started like he was going to remove my Gun from under my Tucked in Shirt. when the 2nd one got my shirt up and was reaching for it I then Pulled it and placed then a Gun point and with the other hand dailed 911 on my Cel. After about 4 minute APD got there and palced all of use at gun point. after about 15 minutes they released me and told the Wal-mart Gestapo to be more careful as it could of me construded as a Attack and I might of used deadly Force to stop it.


After I got home I call the main office and the Manager adn the other 3 where moved to a new store somewhere else .

My advice to all is becareful as they well try and get your Gun is you are carrying Legal.

Paul

[KBCraig]

I've what-iffed that scenario, and decided that unless it's a uniformed police officer, I will protect my gun and myself and hope they have the sense to not push it.

You also did exactly the right thing by immediately dialing 911. Always establish yourself as the aggrieved party.

I'm curious whether the employee carrying the ASP was a commissioned security guard. If not, he was UCW. And if I remember the statute correctly, if he was in plain clothes, even if he was commissioned, then he was UCW. Don't quote me on that, though.

Kevin

[tehlump]

Well I have been stoped by the Wal-mart Gestapo in Austin about 3 years ago. there thing went off and the manager and 3 others chased to me my truck and one grabed my Gun side and then yelled out "he has a gun " the other one pulled a Asp and started like he was going to remove my Gun from under my Tucked in Shirt. when the 2nd one got my shirt up and was reaching for it I then Pulled it and placed then a Gun point and with the other hand dailed 911 on my Cel. After about 4 minute APD got there and palced all of use at gun point. after about 15 minutes they released me and told the Wal-mart Gestapo to be more careful as it could of me construded as a Attack and I might of used deadly Force to stop it.

WOW!

That's an amazing story. I'm glad everything turned out OK, it could have easily turned bad.

What happened during the 4 minutes between when you drew your weapon and when APD arrived? What was said?

[Bubba]

Naw, he didn't need killin for theft, just cut hand off.


About the incident in Austin, WOW that could have gotten ugly quick. IMHO those door alarms are a worthless problem. I've never set off the ones in Walmart, but years ago I did set one off entering and leaving a Target store. They didn't seem to care when I was entering, but leaving a kid approached me, stopped and looked up at me, then left without sayning anything. Good for him, I didn't want to have to make an off duty arrest for his stupidity :)

[txinvestigator]

I've what-iffed that scenario, and decided that unless it's a uniformed police officer, I will protect my gun and myself and hope they have the sense to not push it.

You also did exactly the right thing by immediately dialing 911. Always establish yourself as the aggrieved party.

I'm curious whether the employee carrying the ASP was a commissioned security guard. If not, he was UCW. And if I remember the statute correctly, if he was in plain clothes, even if he was commissioned, then he was UCW. Don't quote me on that, though.

Kevin

A person on premises under his control can carry a club, unless his PRIMARY responsibility is to act in the capacity of a security guard to protect persons or property, then he must be commissioned, in a distinctive uniform and the club in plain view.

Be aware of this:

From the Civil Practices Act;


§124.001. Detention.

A person who reasonably believes that another has stolen or is
attempting to steal property is privileged to detain that person in a
reasonable manner and for a reasonable time to investigate ownership
of the property.

Code of Criminal Procedure
Art. 18.16. Preventing consequences of theft.

Any person has a right to prevent the consequences of theft by
seizing any personal property that has been stolen and bringing it,
with the person suspected of committing the theft, if that person can
be taken, before a magistrate for examination, or delivering the
property and the person suspected of committing the theft to a peace
officer for that purpose. To justify a seizure under this article,
there must be reasonable ground to believe the property is stolen, and
the seizure must be openly made and the proceedings had without delay.

Those theft alarms going off have been held to be "reasonable grounds"

[Charles L. Cotton]

Be aware of this:

From the Civil Practices Act;


§124.001. Detention.

A person who reasonably believes that another has stolen or is
attempting to steal property is privileged to detain that person in a
reasonable manner and for a reasonable time to investigate ownership
of the property.

I agree and this is the issue that will give Wal-Mart a big problem and why I think they will be settling this matter for a big, but undisclosed, amount. The Houston 1st Court of Appeals has ruled on the "privilege" in CRPC 124.001 with the following operative language:

There are three components to the shopkeeper's privilege: (1) a reasonable belief a person has stolen or is attempting to steal; (2) detention for a reasonable time; and (3) detention in a reasonable manner.

So little is known about all of the facts of this incident, there is no way to determine whether elements (1) and (2) were met, but I think it will be extremely difficult to convince a jury that the suspect was detained "in a reasonable manner." Remember also, this is a privilege that may or may not be available to the defendant. If it is not, it doesn't mean that the family of the deceased will prevail in a wrongful death lawsuit; that requires proof of other elements. That said, if the evidence proves detention was unreasonable, then that same evidence will, in all likelihood, prove negligence on Wal-Mart's part.

There are other issues that come into play that posters have already pointed out. Were the security people properly trained? (If so, they must have ingored their training!) There were unbiased, unrelated witnesses who have said some very critical things on camera, such as "I told them he wasn't breathing," "he was gasping for air," "I told them he was burning on the hot asphalt with no shirt on," etc.

I would not want to defend this suit.

Shoplifting is a major problem and costs consumers over a $billion every year. Stores must have the legal right to protect their property. However, when a shop owner chooses to do more than ask a person to come back to the store, or get the license number of their vehicle, and resorts to the use of force, then they had better do so in a reasonable manner. (Yes, I know many thieves will ignore a request to return and turning in a license number of a shoplifter is useless, but that’s the dilemma facing store owners.) If you mechanically asphyxiate someone, which was apparently the case here, then you have a big problem; it’s an even bigger problem if you did so while they were in cuffs.

Regards,
Chas.

[SJRTX]

I have heard that Walmart virtually never settles lawsuits like this, that they fight every single one, and will appeal the decision for years, and basically spend a fortune so that the plaintiffs will never see a dime. If thats the case whats a person supposed to do when Walmart screws up? No contingency lawyer is going to fight with them that long, and most people dont have the money to stay in the fight with them.