Shopper’s suit against Retailer for off duty police officers’ conduct is allowed to proceed

Written by Brian A. Cafritz

Security in a retail establishment is a double-edged sword.  Stores have to balance the best way to protect its customers and property from wrongdoers, but at the same time, not be too aggressive in executing that plan.  One common means of offering security is to hire off-duty police officers.  Frequently, off duty police officers will wear their state issued uniforms, badges, and firearms while working at the stores.  Their “official” presence in the store sometimes blurs the line of whether their conduct is imputed to the store.  In the recent case of Chris Blevins v. Cabela’s Wholesale, Inc., (Case No. 1:18CV00002), Judge James Jones of the Western District of Virginia examined the potential liability the store may face for the conduct of the off-duty officers.

In Blevins, a customer shopping in a Cabela’s store was suspected of shoplifting by two security guards.  Both guards were off-duty Bristol, Virginia police officers who wore their uniforms, badges and firearms while patrolling the store.  There was no-off duty employment agreement between Cabela’s and the City of Bristol. Plaintiff alleged in his Complaint that while working at Cabela’s, the officers were subject to Cabela’s instruction, management and control, and they were to follow Cabela’s orders as to whether or not to detain suspected shoplifters or ban them from the store.

As Blevins shopped in the store, the guards began following him.  The guards notified Cabela’s plain-clothed asset protection employee that they believed Blevins had concealed ammunition.  As Blevins walked outside the store, the officers grabbed him, advised him that he was under arrest for shoplifting, and instructed him to put his hands behind his back.  Blevins jerked his arm back and denied the charges.  Blevins did not flee or indicate that he was going to flee.  Nevertheless, one of the officers then advised Blevins he was going to be tased, and she then proceeded to tase him in the “drive-stun” mode.  He was tased a second time while on the ground and then handcuffed so tightly that his wrists were injured.  The taser shocks also left lesions on Blevins’ back.  After reviewing the store’s CCTV and a search of Blevins’ person and automobile, it was determined that Blevins had not shoplifted.  Despite this, while being released, the officers told Blevins that he was not allowed to return to the store.  When completing statements that Cabela’s required, the officers neglected to state that Blevins was tased and that his vehicle was searched, but instead stated that they saw him conceal items in his jacket pocket while in the checkout line.

Relying on Respondeat Superior, Blevins filed a lawsuit against Cabela’s alleging False Imprisonment, Assault and Battery, and Trespass.  The defendants filed Motions to Dismiss under Rule 12(b)(6).  Cabela’s, relied on Virginia’s Shopkeeper Privilege and the argument that the officers were acting as City of Bristol officers during the encounter.

Under Virginia’s Shopkeeper Privilege (Va. Code § 226.9), a merchant has immunity from claims of slander, malicious prosecution, false imprisonment, false arrest, and assault and battery, if the detention does not exceed 1 hour and there was probable cause to detain.  Virginia law defines probable cause as “knowledge of facts and circumstances to raise the belief in a reasonable mind…that the plaintiff is guilty of the crime of which he is suspected.” Stamathis v Flying J, Inc., 389 F.3d 429 (4th Cir. 2004). Immunity, however, is not granted, “if the tort is committed in a willful, wanton or otherwise unreasonable or excessive manner.” Id.  In reviewing the allegations contained in the Complaint, Judge Jones noted specific allegations of tasing over a petty theft when there was no aggressive resistance or reason to believe Plaintiff would flee. He also noted that no merchandise was found on Blevins or in his car.  With those fact accepted as true, he ruled that a reasonable juror could consider Plaintiff’s detention as lacking probable cause and excessive.  This possibility alone prohibited dismissal on a 12(b)(6) Motion to Dismiss.

Cabela’s further argued that because the off-duty officers were arresting Blevins, they must have been acting in their official capacity as Bristol Police Officers.  Therefore, they could not be agents of Cabela’s, and there could be possibility of Respondeat Superior.  In Virginia, the test for whether or not an off-duty officer’s actions are imputed to the store is “if he is engaged in the performance of a public duty such as the enforcement of the general laws.” Glenmar Cinestate, Inc. v. Farrell, 292 S.E.2d 366 (Va. 1982).  “[I]f he was engaged in the protection of the employer’s property, ejecting trespassers or enforcing rules and regulations promulgated by the employer, it becomes a jury question.” Id.  The court noted that while the officers were wearing uniforms and acting on their own judgment, they were also paid hourly by Cabela’s, could be terminated by Cabela’s, were subject to Cabela’s instruction, and were required to complete an incident report form.  Moreover, there was no agreement with the City of Bristol to govern their work at Cabela’s. The mixture of facts left Judge Jones with no clear-cut answer as to whether the officers were acting as police officers or employees of Cabela’s at the relevant time.  As such, Judge Jones ruled that the status of the officers was a jury question and not proper for a 12(b)(6) Motion to Dismiss.

In the end, the Court’s opinion provides an excellent outline for how stores should structure their relationships with off-duty officers.  If possible, the officers should be hired pursuant to an overriding agreement with the governing law enforcement agency.  Second, the officers should be paid with a flat fee, rather than an hourly rate.  Finally, officers should be given as much freedom and discretion to conduct their job as officers as possible.  The more coordination, interaction and authority the officers need from the store, the more likely they will be determined to be under the store’s control.

KPM LAW has a team of attorneys who focus their practice on the issues facing retailers, whether it is in Virginia, DC, Maryland, West Virginia or North Carolina.  If you have a question regarding the use of off-duty officers, KPM LAW is here to assist.


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