In torts class, we often discuss the limitations placed on the protection of property under the common law. While many states have passed controversial Castle Doctrines or “Make My Day” laws and others have extended such privilege to use lethal force to cars or workplaces (under Make My Day Better laws), the common law does not allow people to use force calculated to cause serious bodily injury or death in defense of property. Many stores instruct employees not to use physical force with shoplifters for that reason or to try to stop armed robberies (including cases where stores have fired such heroes). It appears that a security officer is out of job after a scuffle with an alleged shoplifter caused the middle-aged suspect to have a heart attack and die outside of a Walmart.
Walmart employees and a security guard confronted the man in the store parking lot who reportedly shoplifted two DVD players. When the police arrived in Dekalb County, Georgia, they found the man was unresponsive and bleeding from the nose and mouth.
One of the employees had reportedly placed the man in a choke hold.
Walmart appears to have fired the security officer and put two employees on paid leave. Dianna Gee, a Walmart spokeswoman, said “[n]o amount of merchandise is worth someone’s life. Associates are trained to disengage from situations that would put themselves or others at risk.”
That is the view of the common law. However, the common law allows one to grab someone stealing property and try to retrieve it. If the person then resists, the case can change from defense of property to defense of self. Self-defense and defense of others have far greater ranges in the level of permissible violence. Indeed, you can use lethal force if you reasonably fear for your life. In this case, the employees could argue that they use commensurate levels of force not in the protection of property but in the protection of themselves or others.
With the level of violence or insanity during Black Friday sales, it is surprising that more such incidents do not occur. However, it is usually the customer-on-customer violence that makes the annual event so repulsive for many citizens.
It will be interesting to see if the man’s family sues despite the report that he was found with the stolen items. For Walmart, the cost of such litigation is too costly in comparison to the merchandise. This is why “strike suits” are so successful where companies settle for a few thousand dollars rather than incur litigation costs. Walmart would prefer to avoid such costs even in the face of blatant shoplifting as a cost of doing business.
Source: NBC
Gene, You just agreed w/ me on who really pays. Basta. Let’s get back to the subject.
rafflaw, You’re correct. I’m pretty familiar w/ both Walmart and Target loss prevention. Target has a well trained staff and a surveillance system that is state of the art. Local and Federal police often take video of crimes in the community that is unclear to Target. As a jesture of good will, they have their experts work on the video for free. It’s great pr so cops are more responsive when Target needs them… win/win. The system was set up by a retired FBI guy and the training for staff is rigid. Walmart was more of a hodge podge loss prevention from my dealings. That was more than 6-7 years ago. I would say maybe they improved by not vis a vis this disaster.
Tsk, tsk tsk.
Resorting to the ol’ ad hominem again I see. You really have a problem when people don’t take what you say as gospel. You keep displaying your ignorance and hiding behind pitifully weak ad hominem, nick. I don’t mind. Really. I thought you’d learned that lesson already though. Apparently not. I think your little fits when proven wrong are funny. Anything that makes you look more like a jackass devoid of cogent argument makes me giggle.
But back to the argument proper, SFB.
And what do you think is indemnifying your losses on commercial insurance policies, big man? Who pays for that, eh?
You do.
It’s your own damn money and that of others who paid into the risk pool (minus administrative costs and profits for the third party insurer). A shared risk pool and a private risk pool work the same way the only difference is one has risk distributed across many contributors to the pool where the only risk in a private pool goes to those who pay for it: just like a regular risk pool but with one (or a few) participants. In other words, the only difference between a commercial risk pool and a private risk pool is distribution of risk – indemnification still happens and the losses are not out of pocket. They are compensated for their loss. That Wal-Mart can afford to finance their own risk pool does not negate the insurance effect of self-insurance. Their losses were covered.
Now come on and try to insult me again, monkey boy.
I could use another chuckle at your expense.
Or here’s an idea . . . you could try to prove that my description of how self-insurance works is wrong.
Good luck with that.
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OS,
I didn’t mention it because heartbreak and disappointment are not covered by healthcare insurance. 😀
Is bleeding from the nose and mouth consistent with a heart attack? If not, it was probably directly due to excessive force. Walmart should pay.
The best way to avoid this Wal-Mart black friday hunger games is to refuse to shop at Wal-Mart. The alleged perp died while in the custody and control of Wal-Mart employees or independent contractors retained by Wal-Mart. What he did or didn’t steal is irrelevant once they restrained him. Don’t they have a duty to safely restrain him while waiting for the police to arrive?
“…although the knife wielding psycho was left without a mark. Better that than being stabbed though.”
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Gene, no external marks, but you neglected to mention possible internal injuries–or organ failure.
Wow! It’s all theory all the time from a man w/ no experience. You do realize that “insurance will pay for it” is a moron’s view. Because, no..YOU will pay for it w/ higher premiums. If me admitting that self insured Walmart gets compensated WITH THEIR OWN MONEY, then you win. Wow!!! And, ala insurance, you will pay for any shoplifting loss w/ higher prices. The consumer always takes it in the ass from corporate America, lets agree on that and move on for chrissakes.
nick,
Apparently you don’t understand what self-insured means in the context of a multi-billion dollar corporation. Self-insurance works just like purchased insurance as a risk management method in which a calculated amount of money is set aside to compensate for the potential future loss. If self-insurance is approached as a serious risk management technique like it is in a venture like Wal-Mart, money is set aside using actuarial and insurance information and the law of large numbers so that the amount set aside (much like an insurance premium) is enough to cover the future uncertain loss. So they were compensated for their loss, albeit from a self-created risk pool. The savings to the company for doing it this way is primarily related to administrative costs and profits paid for when using commercially purchased insurance.
Now don’t go off on a rant simply because you are wrong again.
True, OS. It’s really not like they show on professional wrestling at all. Standing directly behind someone while they flail about uselessly? Most of those guys would catch a flurry of elbows to the kidneys and have some broken toes for their efforts against a skilled attacker. Probably flipped too. Grabbing someone trained from behind is a trickier proposition than most would think. Unless you grapple the body with the legs from behind, the choke hold attack – like any attack – creates openings for counter attacks. Even then, they could still do damage to your legs and forearms. I got some nasty scratches on my forearms for my efforts although the knife wielding psycho was left without a mark. Better that than being stabbed though.
Self insured means they receive no compensation as they would if they were insured. It’s an uncompensated loss. Again, it’s a MINOR point.
To expand on Gene’s comment. If the person administering the choke hold accidentally grabs the wrong person, they may find themselves on the kidney transplant list, or worse.
Self insured is still insured.
The point was indemnification for loses were in place.
Gene, I did work for a law firm that handled Walmart civil litigation cases. They are self insured up to varying amounts[6 figure and more]. So, the “insurance will cover it” doesn’t apply here. I am not saying in anyway what happened here is legit..it’s not. It’s a minor point but one that should be understood. Please don’t go into a rant, it’s minor.
You’ll notice that Jesus didn’t kill some guy swiping a few shekels from the money changers in the Temple.
And of course it goes without saying that someone stealing a couple of hundred dollars worth of consumer electronics from a multi-billion dollar corporation insured against such losses needs to die for his transgression at the hands of a minimum wage cop wannabe employed by said multi-billion dollar corporation.
“Since when does a choke hold cause one to bleed from the nose and mouth…”
They don’t when properly administered. However, they do require some training and skill to use and they are not for use against any but an intractable opponent intent on harming you, not some guy trying to get away with stolen goods. But as Frankly points to, a choke hold is inherently dangerous and not the first line of action in constraint, but rather a last option. I know this from experience. I had to use one on a knife wielding assailant one time after disarming them and even though trained and well practiced on the move, once the person went limp my immediate response was to check their vitals to make sure I had not accidentally killed them. And I know what I’m doing from years of training. They were fine, but it was a situation where the person simply would not stop attacking even once disarmed because they were not in their right mind. It was not my first choice but rather my last choice in course of action. A choke hold is not a toy and I find it very frustrating about “professional wrestling” that they regularly mimic doing things to one another in the ring that would kill someone in real life and I suspect our erstwhile superhero in this case did indeed pick up this idea from watching “rassslin'” where it is regularly depicted as no big deal and a dramatic way to end a match. Far from being a toy, a choke hold is a potentially lethal martial arts technique when misapplied as this case illustrated. The neck is one of the most vulnerable if not the most vulnerable area on the body. By the reference to blood, I’d be interested in hearing what the autopsy has to say. It sounds like there may have been damage to the trachea and/or esophagus and possibly the hyoid bone which is indicative of a choking rather than a “choke hold”. A choke hold when properly administered applies no pressure on the trachea or esophagus but rather to the carotid artery and the jugular vein on the sides of the neck briefly depriving the brain of oxygen and causing unconsciousness. “Choke hold” is a bit of a misnomer.
Heart Attack!?!?! Not a shooting or severe beating?! Then simply assumption of risk by the thief! RIP
I think that using that minimal amount of force is not grounds for a suit. If they had strangled him to death, that would be different obviously. If one gets into a fist fight and one of the persons has a heart attack, will that make his opponent a murderer? I hardly think so. If this guy had been in a wheelchair, or on oxygen, then a suit might have merit, but absent any outward sign of disability, and his fighting back, this is a California type suit that might win there, but will not impress most jurors in GA. They have more common sense.
Someone at the funeral home will steal his ring and watch just before the bury the casket. Turnabout is fair play. Once a thief always a thief. It must have been some good choke hold. By the way, DVDs are not worth stealing.
It was probably some Pat Robertson tract in DVD.
AY – When it is administered by an untrained cop wannabe with no idea what the hell he is doing while he runs an image of Van Damme movies through his head.
Even for trained police officers choke holds are not recommended.
I don’t know if a mans life is worth just a couple of grand….
Raff,
Since when does a choke hold cause one to bleed from the nose and mouth….
Another reason to not shop at Wal-Mart. A choke hold? Why not give employees tasers and make it a cleaner kill.