Keywords

asphyxiation; court trial; excessive use of force; mistrial; jury trial; shoplifting; theory of liability

Faratoom v. City University

The plaintiff, Karim Faratoom, is an employee of the university and manager of the central computer system. He arrives late one morning due to traffic congestion and parks illegally in front of the academic building housing the central computer network. The computer network must be up and running for the entire academic community at 7:00 a.m. and it’s now 7:10 a.m.

He runs in, activates the system, and runs out only to find a campus policeman has just finished immobilizing his vehicle with a Rhino Boot, a heavy metal device attached to one wheel that prevents a driver from moving his or her vehicle. Karim, in his anger and frustration, kicks the Rhino Boot; words are exchanged, an argument ensues, and the campus officer wrestles Karim to the ground and handcuffs him. In the process, Karim’s shoulder is injured. Karim is arrested and transported to the city jail. The matter is later dismissed in the municipal court. A civil action was filed against the university and officer on the grounds of false arrest, false imprisonment, and excessive use of force.

The plaintiff counsel’s research identified me as an experienced campus police administrator, called me, and we discussed the case on the phone. After he explained the incident, he asked if I would assist as his expert. I agreed and was retained by counsel for the plaintiff.

During the trial, I testified on direct examination Karim should never have been arrested and jailed. The issuance of a parking citation would have been warranted, but the officer went too far and had no grounds to handcuff and arrest the plaintiff.

On cross-examination the attorney for the university asked if I believed people should be arrested if they committed crimes, as a general proposition.

“Yes, of course,” I answered.

“Then why are you telling the jury Mr. Faratoom should not have been arrested?”

“Because he didn’t commit a crime, he committed a parking infraction.”

“He most certainly did commit a crime sir,” responded the attorney. “He committed the crime of vandalism and destruction of property by kicking the university’s equipment.”

I partially rose from the witness chair on the stand, leaned over the rail, and while pointing at the very Rhino Boot that had been brought in as evidence and was lying on the floor in front of the jury, stated, “The arrest report reflects Mr. Faratoom was wearing tennis shoes when booked into the city jail. I submit to you, a man could kick that 50-pound iron device all day while wearing tennis shoes and not even scratch it, let alone destroy it. He did not vandalize or destroy any property, and he should never have been physically put on the ground, should not have been arrested, and certainly should never have been jailed.”

All eyes were fixed on the iron Rhino Boot.

The jury found for the plaintiff, who was subsequently compensated by the university.

James v. Quickway Markets

Elmer James, an elderly resident of a retirement home, walked three blocks to the store for cigarettes early one morning. Only one register was open and no other customers were there. He approached the cashier from the main aisle that runs parallel to the front of the store, informing him he wanted a pack of Pall Mall cigarettes.

Cigarettes were no longer displayed behind the cashier as in times past. The cashier knew the price of one pack, accepted the money, and gave Elmer change and the receipt. The two briefly exchanged small talk, and the cashier directed Elmer to the newly installed plastic cigarette cases along the front end of the grocery store.

“Just get your Pall Mall’s from the case, Mr. James.”

Elmer walked away from the register toward the cigarette cases and, at that very moment, a store security agent entered the store behind Elmer and noticed him walking toward the other set of entrance doors. The cigarette cases were to Elmer’s left. The agent saw Elmer stop, approach the cases, lift the plastic door, remove a pack of cigarettes, place the package in his shirt pocket, and continue out of the store. The agent believed he had just witnessed an act of shoplifting.

Arrests for shoplifting require six steps (conditions):

The agent, satisfied he had a shoplifting situation, followed Elmer outside, interrupted his progress, and asked him to surrender the package of cigarettes. Elmer had a hearing problem and, startled by the thought this stranger was trying to rob him of the cigarettes, he refused and abruptly turned away while reaching in his pocket. He was thrown to the ground. Later it was discovered that the fall to the ground broke two of Elmer’s ribs.

While being escorted back into the store, the sole cashier recognized Elmer and asked what was happening. When told, the cashier informed security Elmer had indeed purchased the pack and had been told to go select his brand from the display case.

In this case, two defendants were named in the lawsuit, the store and a security firm that provided security agents. I was retained by both defense firms. During the pretrial deposition and while under oath, I was asked if I faulted either defendant. I did. I testified I faulted the store for selling an item when the merchandise wasn’t at the register, for sending the customer to fetch his purchase after the transaction, and for failing to keep the plastic cases containing cigarettes locked at all times, as specifically required by the municipal code. Those failures greatly contributed to the event. The store’s attorney (my attorney) cringed, but he knew this was coming; it simply meant I sank the store, my own “client.”

With respect to the other defendant, the security firm providing the security agent, I testified I did not fault the actions of the agent, including the use of force, because there was evidence Elmer attempted to pull a knife from his pocket to defend himself, and the agent was acting in self-defense. Further, the agent, following the industry standards and based on his observations, believed he was lawfully engaged in overcoming resistance by a person who had just committed a crime.

The matter settled without going to trial.

Garcia v. Grand Lion Hotel and Casino

Leon Garcia was a recovering alcoholic, but convinced his wife a weekend at the high-end Grand Lion Hotel and Casino would be an appropriate celebration for their anniversary, and he promised not to drink. While at the gaming tables, he did drink and got drunk. Leon was considered a “high-roller” because of his large wagers. Mrs. Garcia had to pull her husband away from the blackjack table to go get something to eat. She knew food would help him sober up. They were comped a free meal to the nicest steak house in the hotel.

During the meal, Leon ordered and drank wine. In his state of intoxication he became loud and obnoxious, including crunching on and swallowing escargot shells, which was so revolting that customers were leaving and refusing to pay for their meals. The maître’d and waiters were unable to quiet Leon, so security was called and two plainclothes security supervisors responded.

Mrs. Garcia, equally disgusted with her husband, left and went to their room, commenting as she departed, “He’s your problem now.”

Leon was seated in the middle of a half-moon-shaped booth. With loud profanities he refused to listen to or comply with the security officers. They decided to pull the table out so they could seize him and escort him out of the restaurant and to his room, a common courtesy extended to guests. However, the table was anchored to the floor and they couldn’t pull it out to reach him. Shortly, a waiter walked by carrying a bottle of wine; Leon thought it was his order and scooted out to chase down the waiter. Instead, he ended up in the hands of the security officers. Leon would not cooperate, and, eventually, force was required to remove him from the restaurant. In that process he violently resisted, and the ensuing struggle took all three to the floor and he was handcuffed. He was escorted to a service elevator, taken to the security office, and placed in a security holding room used for detainees pending arrival of the police. In the room, because of his violence, the cuffs were left on.

The holding room was constantly monitored by a CCTV camera. Officers watched him refuse to sit on the chair. Leon laid and rolled on the floor, moaning and complaining he was in pain. Local police responded and observed Leon in his drunken state, and instructed the security officers to keep Leon handcuffed until a police transportation van could swing by and take him to jail. Mrs. Garcia phoned the security office to determine what was happing. She was asked to come to the security office and calm down her husband and take him to their room. She refused. They informed her they were willing to bring him up to the room but she said she didn’t want him in his drunken state. They said he could end up in jail. She stated, “So be it,” and informed them to be cautious because he was a diabetic.

In an abundance of caution, paramedics were called. Before they arrived, Leon said his chest hurt. Paramedics arrived, checked him, and asked him about the pains, which he said were no longer present. The paramedics left. Police eventually returned and took him to the city jail.

Mrs. Garcia arrived in the morning, arranged for a bail bond, and Leon was released. Once outside, he started vomiting blood. Mrs. Garcia took him to the nearest hospital, where it was determined he was experiencing a serious heart attack. Eventually he had a heart transplant, following a massive heart failure.

The Garcias sued the hotel for falsely arresting him, using force to arrest him, for keeping him in handcuffs while in the small detention room, and for not providing him with prompt medical care.

I served as the hotel’s expert witness and testified that the security officers’ conduct was in keeping with custom and practice in the industry, that each act was in appropriate response to the situation, and the entire event was in direct response to Leon’s unreasonable state of intoxication. I told them I had spent hours watching the CCTV monitor looking for any act or conduct by the officers that was unreasonable or even disrespectful and found none.

Interestingly, the jury concluded the security officers’ conduct was proper but, nonetheless, awarded a substantial amount of money to Leon because of his huge expenses for a heart transplant. The law does not allow that. A defendant cannot be required to pay compensation unless that defendant is responsible for the damages. The hotel was not liable, and therefore there was a mistrial. A new trial was set.

Two years later the entire case was retried before a different jury, this time in the U.S. federal court, and the jury found for the hotel.

Hickham v. The Municipal Zoo

Three young men had been celebrating and drinking beer all night. Just before daylight they decided to go to the park next to the zoo, climb one of the huge trees there, and watch the sunrise.

While up in the tree they made loud monkey sounds, frightening the gazelles in a pen adjacent to the zoo’s perimeter. The gazelles, in the immediate vicinity of the row of trees, became alarmed and, in a crazed frenzy, started running and jumping, risking injury to themselves and each other. Their keeper, also alarmed, called the zoo’s security office, reporting someone in the trees along the edge of the zoo was creating loud sounds and frightening the animals in his area. Security arrived in the general area and, while waiting quietly, identified the location of the tree, among all the trees, by the noise the men were making. The armed security officer noted the plastic cups with beer sitting around the base of the tree, looked up, and saw the men. The officer shouted for them to come down. Two came down without incident, but the third, Bobby Hickham, lost his footing and fell, landing on the tree’s exposed root system, causing lifelong paralysis. He sued the zoo claiming the armed officer’s fierce shouting was menacing, causing great fear, and because he was frightened he lost his footing. The plaintiff’s primary criticism was the presence of the officer’s gun, claiming that if the officer had not been armed, Bobby wouldn’t have been so fearful and could have maintained his composure. The gun, coupled with the stern vocal command by the security officer, was a form of excessive use of force.

I was the zoo’s security expert witness. I visited the site, measured the distance from the ground to the branch on which the defendant was seated while holding his beer, and inspected the appearance of the security officer in question. I shared with the court that, in my opinion, there was nothing untoward about the officer or his appearance with the weapon in its holster, and stated that because of the distance up in the tree, the officer had no option but to shout to be heard, especially to be heard over the noise these three intoxicated men were making.

Every trial is either a court trial or a jury trial. This matter was a court trial because the plaintiff had waived his rights to a trial by jury. The judge ruled in favor of the zoo.

Johnson v. Dandy Markets

Dandy Markets’ assistant store manager, Gene Fillmore, was seated in his car in the parking lot in front of the store, eating his lunch. The market was the anchor store in a relatively small strip shopping center that contained a beauty salon, dry cleaners, real estate office, shoe repair shop, camera shop, and liquor store. The market also sold liquor. The market was on the east end of the row of stores, and the liquor store anchored the west end.

As Gene comfortably lounged in the front seat, listening to his car radio with a sandwich in hand, he observed a black man walking eastbound directly in front of the market carrying four gallons of whiskey, of different sorts, two on each shoulder. His fingers were gripping the glass handles on the large bottles’ necks.

Gene had not observed this man exit the market through its westernmost doors, so he didn’t know if the man had even been in his store or not, but there was no question in his mind he was witnessing a shoplifting incident. He immediately jumped out of his car and shouted at the man to stop. Gene testified he had every intention of arresting the man for the theft of the whiskey, despite the fact he hadn’t observed a theft. The mere presence of the man and whiskey being carried in this unusual fashion told the experienced grocery manager the culprit had simply snatched the bottles from the display shelf and walked right out the door.

Gus Johnson, the man with the whiskey, was startled by Gene shouting in the parking lot. He dropped the four bottles on the sidewalk, all breaking, and commenced running eastbound. He turned at the corner of the store with Gene in pursuit. The store’s receiving dock was located on that side of the store. A tractor and trailer were backed up to the dock and several store employees were sitting on the dock eating their lunch. The young employees on the dock were startled to see Johnson running toward them with Gene in hot pursuit, so they jumped to the ground to assist the store manager. Gus was clearly trapped, so he dove under the trailer. A number of legs were sticking out on both sides of the trailer as the men grappled with Gus and finally pulled him out and got him up on his feet. Gus started screaming, “That was my whiskey and you scared me and made me drop ’em,” all the while tugging and trying to twist free.

Gene shouted for one of the dock employees to call the police while the other employees got Gus up onto the dock and took him to a bale of used cardboard, by the bailer, and laid him face down. Three of the men laid on Gus to keep him pinned down pending the arrival of the police.

The police arrived in a relatively short period of time and promptly ordered the men off of their prisoner. Gus didn’t move; he was dead. He had died of positional asphyxia, starved of oxygen because of the weight of the employees on his back.

I was retained by the law firm representing Gus Johnson’s survivors. In my view the excessive use of force theory of liability was a “no brainer.” For three husky, healthy young men to lie on a 50-year-old man of thin stature was unnecessary and excessive. Indeed, such weight on any man or woman would produce the same results—asphyxia.

The store attempted to mitigate their liability with the position they were trying to restrain a shoplifter, and even if they hadn’t witnessed the actual crime, the circumstances of the event provided sufficient probable cause he had stolen the whiskey and any prudent man would have reacted as did the store.

But did Johnson steal the whiskey from the Dandy Market? My examination of the facts, almost a year after the event, revealed the broken bottles were never recovered; the bar codes were never scanned; no inventory was taken that day that could have reflected a shortage or no shortage; no cashiers were interviewed as to their knowledge of a sale; no register tapes were examined in an effort to locate a sale; and no effort was made to determine if the store at the end of the mall had any losses, sales, or memory of Gus Johnson.

True, no security agent was on duty in that store that day, but a loss prevention investigator should have been dispatched from the corporate offices to piece together a clearer picture. That wasn’t done.

The general rule in the retail industry is if you didn’t see it, it didn’t happen. Indeed, there are six steps that serve as guidelines for shoplifting detections, as outlined earlier in this chapter.

The jury concluded no crime could be established, consequently the detention of Gus Johnson was unlawful and the method of restraining him was unnecessary, unlawful, and excessive use of force. The Johnsons’ suit prevailed and the family was compensated.

Washington v. Clouse and Fine’s Department Stores

Following church, Sonjia Washington and her mother, father, and two little brothers went to Fine’s to exchange a dress. They were followed by a close family friend driving her own car. The women made the exchange on the main floor of the store while Mr. Washington and the two boys rode the escalator downstairs. Following the exchange, Sonjia, her mother, and the family friend browsed the various departments on that main floor. In the normal course of events, Sonjia was picked up by a security camera as she approached the costume jewelry department, a historically high-theft area. The camera was being monitored by loss prevention agent Becky Schmidt. Schmidt observed Sonjia select an inexpensive, expandable bracelet with colored stones and slip it on her left wrist. Sonjia then left the department wearing the bracelet and located her mother. Schmidt could see the nine-year-old girl showing her mother the bracelet. Mrs. Washington appeared to look at her daughter’s wrist and then went about her shopping. It was apparent there was a brief discussion between the two of them.

Sonjia returned to the jewelry department and looked at other items, but did not remove or return the bracelet to its former display fixture. She left that area still wearing the item and joined the family friend, browsing through other goods.

Mr. Washington and the boys returned to the main floor about the time Schmidt radioed her partner, Jeanie Custer, and informed her she had what appeared was going to be a shoplifting incident. Schmidt requested Custer stand by the parking lot exit doors for possible assistance if needed. Three male loss prevention agents also working in the store heard Schmidt’s call on their radios, and, although not requested to assist, decided they too would stand by in the area of the exit, just in case.

The Washington family briefly met; the father and two boys immediately left the store and headed for the family car, parked about seven parking spaces out in the lot once you crossed the rather wide driveway that separated the sidewalk and stores from the lot. Mr. Washington had no knowledge of his daughter wearing a bracelet belonging to the store.

The ladies, including Sonjia, followed, but walked much slower, engaging in conversation as they crossed the wide driveway. Midway across that driveway, they were confronted by Schmidt, who had left her monitoring station and came to the main floor to deal with the problem. She interrupted the ladies conversation by saying, “Excuse me, ma’am (addressing Mrs. Washington), but your daughter is wearing a bracelet she didn’t pay for.”

The mother turned to her daughter and in a loud voice said, “What in the world are you doing with this? This ain’t yours. Shame on you,” and she pulled the bracelet from her daughter’s wrist. Mrs. Washington started to hand it to Schmidt, but it fell on the pavement.

As this moment, Mr. Washington had just put the two boys in the back seat of the car and got in the driver’s seat. He heard, or thought he heard, his wife’s raised voice.

Custer was standing behind Schmidt when Schmidt informed Mrs. Washington, “I’m sorry ma’am, but your daughter will have to return to the store with us,” to which the mother, now louder than before replied, “What for? You all got your bracelet, you know my name because of the purchases I made, and you ain’t taking my daughter nowhere!”

Mr. Washington couldn’t help but hear his wife now and, alarmed, started to get out of the car to go investigate what was going on.

The three male agents, more or less “hovering” in the background and watching this event unfold, had moved close to the Washington’s car and, seeing the father starting to head back to where the “arrest” was being made, blocked Mr. Washington’s path, asking him, “Where do you think you’re going?”

By now Schmidt had grabbed Sonjia’s arm to escort her to the store and Mrs. Washington, a large woman, pushed Schmidt away from her daughter. Custer stepped in and she also got pushed away by Mrs. Washington, who now was shouting for them to get away from her and her daughter.

Mr. Washington, with no idea as to the nature of the trouble, and intent on getting to his wife and daughter, attempted to push through the three men blocking his way and a scuffle ensued, resulting in all four men going to the ground. Mr. Washington struggled to get the men off him and to respond to the continued shouting some 80 feet away. One of the loss prevention agents got Mr. Washington into a chokehold around his neck and the other two continued to lay on top of him to immobilize him so he couldn’t get up.

The shopping center security and police responded to the scene based on a radio call for help from Schmidt. Customers were now gathering around to watch the event.

The first police officer on the scene found the pile of men. One of the loss prevention agents said their “suspect” was “playing possum.” The officer instructed them to let loose and get up. Mr. Washington was not conscious. Paramedics were summoned. Mouth-to-mouth resuscitation failed to bring Mr. Washington around, and he was pronounced dead upon arrival at the hospital. The coroner’s report reflected Mr. Washington had died as a result of asphyxiation.

A summarization of the event would be as follows: the plaintiff’s (Mrs. Washington) nine-year-old daughter shoplifted without the knowledge of her parents. Store detectives stopped the girl while walking with her mother out to the car in the lot. The father had walked ahead and wasn’t present when the mother and girl were stopped. He heard the commotion and started to return. Mr. Washington was intercepted by three more store agents. He struggled and was choked to death.

I was retained by counsel representing the surviving family and testified in deposition as to my opinions, which were critical of the store, including:

The matter settled prior to trial.