Two weeks ago, a man allegedly attempted to steal a Snickers™ bar from a 7-Eleven store in Brooklyn, New York. In response, three clerks accosted the man, tackled him, bit him, slammed his hand in the store’s doors, and stripped away his clothing, leaving him injured and nearly naked. The incident was captured by cameraphone video (warning: nudity, offensive language, and violence). The video shows the three store workers pushing, pulling, biting, and kicking the accused. (One can also see their faces when they realize that the incident is being recorded.) This incident has prompted a spirited discussion (at least among some New Yorkers) over whether the store clerks went “too far.” But what is “too far” in this context? Where does legitimate property security end and (illegitimate) violence begin?
Shoplifting is, admittedly, a major issue for the retail industry; theft accounts for billions of dollars in losses. And despite the economic effects of shoplifting, few shoplifters are ever caught. When shoplifters are apprehended, police intervention is not always available: Earlier this year, Dallas police announced that officers would not be dispatched for thefts totaling less than $50. Yet, while few people debate a retailer’s right to loss prevention, there is a line (in fact, a gulf) between loss prevention and brutality.
The 7-Eleven fracas has also prompted a conversation over whether the actions of the clerks were racially motivated. In recent years, New York City retailers have made news over their disparate treatment of suspected shoplifters of color. In 2006, Macy’s paid $600,000 to settle a case brought by former AG Eliot Spitzer over the retailer’s discriminatory treatment of black and Latino shoppers. In the Macy’s case, Latinos were five times more likely and blacks were three times more likely to be handcuffed than whites detained on allegations of shoplifting.
Troublingly, the 7-Eleven incident bears an eerie resemblance to another with which I have some familiarity. Imagine the scene: A girl visiting a chain grocery store allegedly puts a piece of candy into her pocket; before she leaves the store, the store manager detains her, binds her hands, and physically restrains her in view of passersby. The differences between this story and the 7-Eleven stripping are few: both involve national chains; both involve a single item of candy; both involve a retail employee responding to a suspected petty loss with disproportionate violence against a person of color. The primary difference between these incidents is that the 7-Eleven fracas occurred two weeks ago, while the situation involving the girl happened in 1930 in Jim Crow Georgia.
Charlie Mae Dowling, a twelve-year-old black girl, entered a Georgia A&P store, and picked up a single piece of candy from the floor. The store manager observed Dowling as she put the candy in her pocket; in response, he accosted her, forced her to pay for the candy, detained her, tied her hands together, physically forced her hands up above her head, and tied her to a rope suspended from the ceiling. The manager kept the girl in this position for two hours – during which time he threatened to kill her – until her mother arrived and paid the store $5 for the girl’s release. A civil jury later awarded Dowling money damages on the grounds that she had been "inhumanely assault[ed]" and "tortured" by the store manager (upheld on appeal at Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga.App. 549, 159 S.E. 609 (Ct. App. 1931)).
Research suggests that retail property security measures are differentially applied depending upon the race of the suspected shoplifter, with blacks and Latinos subject to physical restraints and criminal prosecutions more often than others. Without speculating over the motivations of these individual store clerks, I’d suggest that wherever violence is employed to protect property, we should be suspicious, as Daniel J. Sharfstein demonstrates in his brilliant article (on ssrn here) on the persuasive connection between property claims and violence against disfavored people. Sure, chasing down a thief may be an “expression of professionalism” (in Sharfstein’s words) for the store clerk, but I wonder how far a retailer should be allowed to go before liability attaches. In other words, are canings over candy ever within the bounds of legitimate property security?