Excessive Force Used In Detaining A Shoplifter

Today we read newspaper accounts about a suspected shoplifter being killed by security personnel at a local Walmart here in Georgia. According to news accounts, the suspected shoplifter allegedly took some merchandise with him outside the store at which point he was tackled to the ground and then held in a “choke hold” for an undetermined period of time. When the police arrived the suspect was motionless and determined to be dead, apparently from trauma inflicted when he was subdued.
Under Georgia law, shopkeepers have a privilege to take reasonable steps to investigate suspected crimes for shoplifting. However, the “Shopkeeper’s Privilege” as it is known under Georgia law does not extend to unreasonable force disproportionate to the alleged crime. Shoplifting is a misdemeanor and even if a suspect is guilty of committing such an offense, it hardly merits deadly or excessive force as a measure to apprehend the suspected violator. Apparently, Walmart has a policy of not allowing such force to be used against its customers but for whatever reason, in this particular case, the policy seems to have been disregarded.
This case is reminiscent of a case our firm handled years ago involving a suspected shoplifter at Nieman Marcus in Atlanta. The “suspected” shoplifter in the case (who was proven to be innocent of all wrongdoing) was forcibly subdued at the scene and strip searched against her will. She was so traumatized she had to be sent to the hospital where she was diagnosed with various personal injuries from the altercation. That case resulted in a million dollar verdict in federal court here in Atlanta over ten years ago and is believed to be still one of the largest verdicts ever rendered in Georgia in a false arrest case. As was proven by the jury’s verdict in that case, while suspicion of shoplifting may be the basis for a reasonable investigation and temporary detention, it is not a sufficient basis to use excessive force against a customer of a store.
From what we have read, it appears that this case may end up in the courts via a wrongful death claim. While shopkeepers should have the right to take reasonable steps to investigate suspected shoplifting, the shopkeeper is not the judge, the jury and the executioner and they have no right under the law to use deadly force against a suspect. Walmart can be held liable for the acts of its employees even if thee employees disregarded policy so it appears that this case may need to be resolved by the courts. Indeed, according to the news accounts, there may be a criminal investigation of those employees who used the excessive force involved here.

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