Industry News

Moonlighter Shoots Patron

Facts: Robert Barkley filed a lawsuit against a national department store after a security guard store shot Barley in the arm, jaw and hand. The guard, William Wilkinson, was an off-duty police officer who worked part time for the department store. Wilkinson received a report that Barkley was attempting to steal merchandise from the store and began following him in an attempt to investigate. The two parties described different versions of the events following their initial encounter. Barkley stated he walked at a “fast pace” to his car and that as he attempted to leave the parking deck he heard Wilkinson yelling and stopped without hesitation. Wilkinson alleged Barkley ran to his car and attempted to back out of his space and drive in Wilkinson's direction in an attempt to escape. Wilkinson claimed he shot Barkley three times out of fear for his life. Barkley filed a lawsuit against the department store premises owner and the security guard alleging the parties violated his constitutional rights. The store owner filed a motion for summary judgment arguing it was not liable for the shooting. The trial court granted the motion, and Barkley appealed.

Decision: A private citizen or corporation will usually not be held liable for “constitutional violations” unless the private actor is working for, or in conjunction with, state officials in order to deprive private citizens of their federal rights. The district court of appeals first determined the department store was not a state actor. The court further held the department store was not liable for its employee's actions because Wilkinson made an independent decision to follow Barkley and to discharge his weapon as a “police officer, and not under his capacity as a private employee. The court of appeals determined that because the department store was not a state actor and was not liable for Wilkinson's decision to fire his weapon, Barkley was precluded from recovering damages from the department store. The court of appeals upheld the trial court's decision granting the motions for summary judgment.

Implications: Though a private actor or business that is not working for or with public officials cannot generally be sued for federal or state constitutional violations, business owners should be careful to train employees to avoid the use of harsh language, rude behavior or unnecessary force when attempting to investigate or deter criminal behavior such as shoplifting. (Source: Barkley v. Dillard Dept Stores, inc., No. 07-20482, US Court of Appeals, Fifth Circuit, May 2, 2008. Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA, www.straffordpub.com, phone: 800-926-7926 ext. 10 or email: customerserv@straffordpub.com.)

Misrepresentation, Concealment and False Swearing

The definition of misrepresentation is different than that of fraud. In fraud, misrepresentation is deliberate and intended. In misrepresentation, which is broader than fraud, the act can occur through negligence such as making an unintentional statement.

Concealment is withholding information of a material fact, as from an insurer. Again, the concealment can be intended and deliberate or the result of negligence.

False swearing is the making of a false statement under oath or equivalent affirmation, or swearing to or affirming information provided in a previously made statement. For false swearing to occur, the person making the statement must know or believe that the statement is false.

Wackenhut Overbilled Customer

A Miami-Dade County auditor found Wackenhut overbilled the county by $6 million in charging for security posts it had not filled. Wackenhut has 90 days to repay the county or rebut the charges or the Miami mayor will cancel the company's no-bid contract as well as its contract to provide guards at a juvenile detention center. The auditor's report, based on a review of a sample of Wackenhut's bills, claims the company routinely charged the county for empty guard posts at Metrorail stations and bus lines and tried to cover up the overbilling using inaccurate and falsified records. Wackenhut denies the charges and claims the auditor ignored records that could prove guards were on duty at the disputed posts. (Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926 ext. 10 or email: customserv@straffordpub.com.)


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