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Use of Force in Wal-Mart LP Homicide Case

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  • Use of Force in Wal-Mart LP Homicide Case

    Use of force at issue in Wal-Mart case
    A grand jury will decide if the retail giant was justified in acting against shoplifting suspect


    By ROBERT CROWE
    Copyright 2005 Houston Chronicle

    The father of a shoplifting suspect who died while struggling with Wal-Mart employees wasn't shocked when officials ruled the death a homicide.

    Now, H.C. Driver and other family members are hoping that the people responsible for Stacy Clay Driver's death will be brought to justice.

    "Something like that isn't supposed to happen, especially in this country," the father said. "I have believed up to now in the justice system, and I hope it continues to work."

    Also, the Driver family has filed a lawsuit seeking unspecified damages against Wal-Mart.

    Stacy Driver suffocated Aug. 7 while struggling with Wal-Mart employees who suspected him of shoplifting from an Atascocita store.

    The Harris County Medical Examiner's Office ruled Driver's death was caused primarily by asphyxia because of neck and chest compression. A secondary cause was hyperthermia with methamphetamine toxicity.

    A Harris County prosecutor is expected to present to a grand jury the findings of a sheriff's office investigation into Driver's death.

    The Driver family's lawyer, Jim Lindeman, hopes that ? if an indictment is handed down ? a criminal jury would be sympathetic even though Driver had illegal drugs in his system and prior records of shoplifting and assault.

    District Attorney Chuck Rosenthal said a homicide ruling doesn't necessarily mean a crime has been committed. He said the grand jury will have to determine whether deadly force was justifiable.

    Wal-Mart has declined to discuss its policy on use of force or whether the employees involved in Driver's death have been disciplined.

    "This was an unfortunate event. ... It was very difficult on the Driver family and also on our associates," said Wal-Mart spokesman Marty Heires. "We don't normally discuss our policies ... but (Wal-Mart employees) receive appropriate training."

    Driver's death is among at least 30 similar deaths of unarmed shoplifting suspects across the country during the past 15 years. The suspects were either shot and killed, or they suffocated in struggles with "loss-prevention" employees or security guards, according to a Houston Chronicle analysis of a major news database.

    At least two were at Wal-Mart stores, which use employees trained to look for shoplifters and other thieves. Other stores where deaths occurred include two national drugstore chains and Dillard's. In many cases in which homicide was ruled as the cause of death, charges weren't filed or eventually were dropped.


    A parking lot struggle
    In the Houston case, Driver, 30, of Cleveland, was accused of fleeing the store at 6626 East FM 1960 in Atascocita with a stolen gift card worth $94. Witnesses said Wal-Mart employees chased him into the store parking lot and wrestled him to the ground before pinning and handcuffing the shirtless man face-down with hands behind his back. During a struggle that lasted up to 30 minutes, according to some witnesses, Driver begged employees to let him up and call an ambulance, said witness Charles Portz, a Houston lawyer.

    "A shoplifter is a thief, no question, but the penalty for that is not the death penalty," said John H. Christman, a retail-security expert.

    Driver's widow, Wendy, 27, said Stacy Driver was obtaining his pilot's license and also embarking on a career as a master carpenter. They have a 5-month-old son, Ashton.

    "They took my baby's daddy away from me," she said. "They had no right to do that."

    Meanwhile, H.C. Driver has joined some security experts in calling for a revision of use-of-force laws and better training for security guards and "loss-prevention" employees, whose use-of-force training is determined by retail chains.

    The father says the country's largest retailer should be required to demonstrate that its loss-prevention employees meet some minimum training standard, especially when millions of Americans enter its stores regularly.

    The Chronicle has obtained a portion of Wal-Mart's "Shoplifting Apprehension" policy. It states loss-prevention employees can use "reasonable force," but safety must always be foremost on the employee's mind.

    "If the situation becomes violent or is deemed potentially dangerous, you should allow the shoplifter to leave the premise," the policy states.

    When asked to verify the contents of the Wal-Mart policy, Heires declined, citing the pending investigation.

    Christman said retail loss-prevention employees are not licensed law enforcement officers, so they should not be able to use a degree of force that could cause serious injury or death.

    After three shoplifting suspects in the Detroit area were killed in similar incidents in 2001, the Michigan Legislature passed laws increasing minimum training standards for security guards and requiring concealed-weapon permits for armed guards. The law also prohibits felons from working as security guards.

    "Our position in Michigan was that security guards were to observe and report, and that's it," said lobbyist Phil Hoffman, a former Michigan state senator who sponsored the 2001 legislation. "We wanted security guards to leave the apprehension to law enforcement."

    Chris McGoey, a California-based retail-security consultant, opposes the concept of state-mandated policies.

    "The industry should enact policies themselves," he said.

    In another Wal-Mart case, a man died in September 2001 after employees in Las Vegas chased him off store property and into a neighborhood. Jan M. Burstein, 29, of Leawood, Kan., died in custody of employees who had pinned him face-down on the ground with his arms behind his back.

    The Las Vegas-area coroner pronounced Burstein's death a homicide, but no charges were filed because, according to the Clark County District Attorney's Office, the store employees had not broken any laws. Burstein's father declined to comment, citing legal reasons.


    Other confrontations
    The use of off-duty law enforcement officers as security guards at retail stores is not always a panacea.

    Off-duty officers ostensibly have the most rigorous professional training to work as security guards. But at least six people, including four in Texas, have died at Dillard's stores ? where armed, off-duty law enforcement officers are employed ? after confrontations with security guards. Julie Bull, a Dillard's spokeswoman, declined to comment. Dillard's has been sued and widely criticized for the deaths and other actions by its security guards.

    In the most recent incident involving the store, on May 8, 2004, an off-duty Harris County deputy shot at shoplifting suspect Robert Barkley, 36, outside the Dillard's at Deerbrook Mall.

    The deputy chased Barkley into the parking lot, where he fired rounds at the driver's-side window of Barkley's car. Barkley was wounded in the face and hand. Deputy William Wilkinson said he was trying to defend himself when Berkley drove his car toward him. Barkley, like Driver, had a previous shoplifting arrest and assault charge.
    Some Kind of Commando Leader

    "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

  • #2
    Originally posted by Houston Chronicle
    "A shoplifter is a thief, no question, but the penalty for that is not the death penalty," said John H. Christman, a retail-security expert.

    Christman said retail loss-prevention employees are not licensed law enforcement officers, so they should not be able to use a degree of force that could cause serious injury or death.

    After three shoplifting suspects in the Detroit area were killed in similar incidents in 2001, the Michigan Legislature passed laws increasing minimum training standards for security guards and requiring concealed-weapon permits for armed guards. The law also prohibits felons from working as security guards.

    "Our position in Michigan was that security guards were to observe and report, and that's it," said lobbyist Phil Hoffman, a former Michigan state senator who sponsored the 2001 legislation. "We wanted security guards to leave the apprehension to law enforcement."
    So, we have two things here.

    1. This Christman person believes that deadly force should be reserved only for law enforcement officers - violating the civil rights of every security officer/guard/person in all 50 states (Right to defend self or other with deadly force) Why do you need a gun if you aren't authorized to use deadly force?

    2. Michigan Lobbyist Phil Hoffman believes that all apprehensions should be by law enforcement, and security should observe and report. Is this lobbist going to introduce legislation to protect companies from vicarious liability from inaction of its employees resulting in injury/death of persons on the property, material loss by the client, and other measurable breaches of contract?

    I have always had issue with lobbists who attempt to use legislation to ensure a security company's "proper place," usually backed by the largest warm body companies.
    Some Kind of Commando Leader

    "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

    Comment


    • #3
      First of all, we all know what an expert is. It is usually someone who is retained for the express purpose of assisting in a lawsuit. It is usually someone who has little actual experience in the field, but is an acknowledged authority based on academic or journalistic accomplishments. In other words, the expert provides his/her opinion and thats all. Secondly, security faces the same problem that police officers face when dealing with subjects under the influence of unknown substances. Sudden Death Syndrome is not limited to the police custody. I do agree, however, that if security or loss prevention officers are required to pysical intervene, they must be trained and the employer must be accountable to provide or monitor that training.
      Jerry
      http://personalprotectionconcepts.info

      Comment


      • #4
        It will be interesting to see how this one turns out. I think the family will get something out of the civil case...but no criminal charges for the LP.

        Comment


        • #5
          Wal-Mart LP Homicide

          Here in Canada, our Criminal Code of Canada section 494 gives 'any person' the right to apprehend without warrant, a person he finds comitting an criminal offense. Our Criminal Code also lays out use of force in preventing an offense from being committed, or continuing. It is also the responsibility of the person preventing an offense from being committed, to use as much force as 'reasonably' necessary, and that use of excessive force causing grievous bodily harm/injury or death will be deemed to be unlawful.

          This leaves a large margin for interpretation, as each situation in unique. In Canada, Loss Prevention associates are not necessarily licensed, and in most cases, are not. They usually have little training other than what they receive on the job (sound familiar?).

          In the case of this Wal-Mart homicide, the LP associate 'may' have thought that the right course of action would be to chase the 'perp' out the door, into the parking lot, make a tackle, scuffle for 30 LONG minutes, and then finally gain enough control to arrest the man. All for $94!!! Where was the 'prevention' part of LP? This was obviously a situation that could have been intervened at the counter, as the card had to have been activated by an associate. An obvious case of fraud.

          As far as use of force goes, the LP had no idea what he was doing!! It is a given, that even the most seasoned and traind LEO gets tunnel vision, adrenalin rush and rapid breathing during a pursuit or arrest. However, they are aware of what they are doing, and the condition of their 'perp'. This LPO most likely had no training in PPCT, pain compliance, distraction techniques or even proper arrest procedures. If he had, he would not have been wrestling with this guy for 30 min.

          In a perfect situation, he would have let the guy go. Review the tapes, get the police involved and arrest later. Although i hate the term 'observe and report', maybe this LPO should have chosen this course of action.

          Comment


          • #6
            Originally posted by jmaccauley
            First of all, we all know what an expert is...
            Yea, Ex as in has been and Spurt, a drip under pressure.

            Originally posted by jmaccauley
            It is usually someone who is retained for the express purpose of assisting in a lawsuit...... In other words, the expert provides his/her opinion and thats all.
            Strange how that opinion changes depending on who is paying the tab -- prosecution or defense. That's like asking a pharmaceutical company to fund a research study into whether vitamin supplements have any value medicinally. Wonder what the outcome will be??
            Security: Freedom from fear; danger; safe; a feeling of well-being. (Webster's)

            Comment


            • #7
              Originally posted by Mr. Security
              Yea, Ex as in has been and Spurt, a drip under pressure.
              Mr. S, have you ever taught in a LEO academy? I seem to recall a Cpl. in Alaska using the exact same phrase! I've never heard it again, until just now!

              Comment


              • #8
                Originally posted by wilrobnson
                Mr. S, have you ever taught in a LEO academy? I seem to recall a Cpl. in Alaska using the exact same phrase! I've never heard it again, until just now!

                For the life of me, I've heard it, but I have no idea where. I think its one of those OLD SCHOOL LEO phrases.
                Some Kind of Commando Leader

                "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

                Comment


                • #9
                  Originally posted by wilrobnson
                  Mr. S, have you ever taught in a LEO academy? I seem to recall a Cpl. in Alaska using the exact same phrase! I've never heard it again, until just now!

                  That's a "negative." I forget where I originally heard it.
                  Security: Freedom from fear; danger; safe; a feeling of well-being. (Webster's)

                  Comment


                  • #10
                    The term "expert" was referring to military inspectors general, "An out-of-town SOB with a briefcase." Circa, 1955. The same definition was used in the Sheriff's academy in 1970.
                    Enjoy the day,
                    Bill

                    Comment


                    • #11
                      Originally posted by Bill Warnock
                      The term "expert" was referring to military inspectors general, "An out-of-town SOB with a briefcase." Circa, 1955. The same definition was used in the Sheriff's academy in 1970.
                      Enjoy the day,
                      Bill
                      How old are you anyhow, Bill?
                      Security: Freedom from fear; danger; safe; a feeling of well-being. (Webster's)

                      Comment


                      • #12
                        Thanks for asking. On May 23, I will turn 70-years young.
                        Enjoy the day,
                        Bill

                        Comment


                        • #13
                          Originally posted by Bill Warnock
                          Thanks for asking. On May 23, I will turn 70-years young.
                          Enjoy the day,
                          Bill
                          I'm only in my forties, but sometimes I feel like 70-years old. Congratulations on your young spirit and for staying safe all those years in a dangerous profession.
                          Security: Freedom from fear; danger; safe; a feeling of well-being. (Webster's)

                          Comment


                          • #14
                            Thank you. As I try to tell anyone who will listen, when your superior tells you to do something or stay put, do it! When I was in the Air Force, stationed overseas, we had a serious problem. My sergeant told us to stay put. My hut mate had his face blown off and it landed all over me. I'm not sure what I did, but staying put wasn't one of them. I got knifed and my sergeant got shot. Every morning when I shave, I'm reminded of that event. The doctor told me, "You're a lucky bastard, 1/4 inch more and it would have been through your heart."
                            Either in security or law enforcement, remember your training, do what you are told. If your leadership is taken out, then improvise.
                            Remember the ten commandments of security and law enforcement or the ten deadly sins.
                            Our job is to serve and protect. We may not get a lot of money for what we do, but as long as we do it, we must do it to the best of our ability.
                            Above all, we must be true to ourselves and remember others. If a person is in danger of being injured or killed, get off your backside and assist to the best of your ability.
                            Enjoy the day,
                            Bill

                            Comment


                            • #15
                              While we?re thanking Mr. Warnock, thanks for the security consultation survey that you sent me. I had it spiral-bound at Staples for easy reference. I have already applied one of the suggestions in this publication. I installed 2 convex mirrors on the inside of the trunk lid of my wife's car. She was skeptical at first about the need to apply your suggestion. However, after I finished the installation, she loved it. Now she can easily see someone coming up behind her whenever she is focused on putting groceries in the trunk. Just wanted you to know how valuable this information source has been.

                              I do have one question. I am familiar with fire classes A-D. But what is "K?"
                              Security: Freedom from fear; danger; safe; a feeling of well-being. (Webster's)

                              Comment

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