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?
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