Expert: Jack Toomey - 1/19/2010

Question
QUESTION: Dear Mr. Toomey I was recently at a Walmart store in AZ.  I shamefully admit that I had a large bg in my cart and had been putting items into it while I was going thru the store.  During this incident I debated with myself back and forth weather or not I should walk out. As I was looking around an isle, (no where near the exit) I was approached by 3 store employees, 2 where in plain clothes, 1 in a uniform.  They proceeded to tell me that "We needed to talk about the items I ad placed i my bag.  I agreed.  They said we needed to go to the back of the store into an "office", I agreed.  During the walk back to the office I told them that I had not left the store yet or even attempted to leave so wh were they assuming that I would have actually had the nerve to leave with any of the things I put in my bag.  They said it didn't matter i I attempted to or not "I had to go with them.  on the walk back they all stayed within 1ft of me at all times, another man with a uniform joined them as well. The entire way back I felt my heart race faster and faster with every step. When we got to the back they started moving carts over to clear room to enter the "office".  The asstnt. manager, a woman opened the door and told me to "get in there and sit down.  I was standing in the doorway and looked inside this room, it had almost no light, there was a table and a couple of metal chairs. I suddenly became very aware that there were severa more people(employees)behind me.  Within seconds my heart started pounding out of my chest, I started sweating and felt like I couldn't swollow, I felt like I was choking on my own throat.  For no reason that I can even explain I looked to my right and saw an Emergency Exit and pushed it open and ran outside.  At that point I honestly don't know what I was going to do, all I know is that I needed to breath.  After running out the door, I heard screaming, stop her, take her down, an get her amunst other things, then the panic really set in.  Keep in mind that I left the bag in the cart that they were refering to me "having their property in, I did take my purse which I had picked up.  A small purse which they never mentioned "needing to talk about." Once that happened I started to run toward the parking lot, I exited from a door on the far side of the building where there is some light, a sidewalk and rocks, bushes, etc...  I got approx. 25-35 ft. I know the asst. mang. was behind me at the begining, she was screaming and grabbing me, pulling at my clothes and hair, etc., with the screaming continuing I was tackled from behind by the man in the uniform. At best estimate he is approx. 200-225lbs. Then the 2 women were grabbing me, pulling on my arms, hair, and with him pushing me face down in the rocks, they were pulling me up.  The plane clothed female "security gaurd" ramed her knee into my spine and started to put handcuffs on me. During this time I was screaming and pulling away, curling up into a ball and putting all of my weight down.  They pulled me up and continued to scream at me while walking back. Before we made it to the door I told them my left arm was hurting me please fix the handcuffs, the said no.  They took me ino the office and put me into the chair.  They went outside of the office door and proceeded to talk between themselves and came into the room minutes later and told me that I should have never tried to run and that I should have not tried to assault the asst. manager.  I was stuned, how can you assault someone when you are running away?  They contined to yell at me.  The asst. manager mentioned being "so pissed that she broke her nail.  She also told me that I was lucky that she was on the clock or that she would have beat my f#^*ing ass.  She told me to "shut up" atleast 2 dozen times. I was in the office being questioned and screamed at/belittled for atleast 45min. when they realized that they had forgotten to call the police.  They proceeded to call them.  The officer arrived about 20-25 min. later.  During my entire time in the office I asked them to loosen my handcuffs on my left wrist appox. 10-15 times, they refused.  I explained to them that I had an old injury that prevented me from letting my shoulder roll back into the position the cuffs were putting it into.  Still they refused.  I was in quite a bit of pain from the tackle and being drug thru the rocks, as well as the left wrist and shoulder.  While the officer questioned me I mentioned that my wrist and shoulder were hurting, when I went to reposition my self, the cuffs clicked tight again, this happend about 3-4 times while I was waiting in the office.  He then said "Did those just click? "I think I just heard a click?"  The employees were quick to respond, oh no that's impossible, they are double locked.  They did click tighter and had clicked tighter several times during this event.  I was given a criminal complaint with a court date for shoplifting concealment and causing apprehension of injury to the asst. manager.  I expected the shoplifting violation, but the assault?  I was shocked.  I don't know about her, but I am covered in bruises. My wrist is still very swollen and bruised as well. When the officer first took off the handcuffs I showed him the severe swelling in my wrist and asked him if "that was normal, he said no it's not.  I would also like to tell you that I am only 5ft. 5in tall and on a good day weigh 115 lbs.  I am clean cut and have never even had so much as a traffic ticket.  I have no excuse for my actions, however- About 6 months ago I was put on some medication by my Dr..  This medication is used for many diff. conditions, such as extreme depression, mood disorders, and sleep disorders, etc.  The first month I felt ok, recently I have been out of sorts.  Unable to sleep, moody, not myself at all.  I recently told my Dr.I believed this medication was "not good for me", he told me I could stop taking it but that it needed to be a slow process which we started just a week before this incident occured.  I still don't know if I would have walked out of the store with the items in my bag.  But, I am fairly certain that leaving the items and running away don't call for a 200+ lb. man to full on tackle a 115 pound woman in the rocks and have a total of three people doing what they did to me.  Am I wrong or is this excessive force?  I don't really think what I did called for this type of response. I believe when they took me into the office and were talking to each other outside the door they knew what they had done was not right and came up with the me assaulting the asst. manager.  I did nothing of the sort.

ANSWER: Samantha,

You were under arrest and committed another crime by trying to escape.  The store personnel had the right to apprehend you. Whether is was excessive force can only be decided by a judge or jury.

You are going to need an attorney to defend you against the shoplifting and assault charges so while you are conferring with him you should discuss the "excessive force" claim that you are making.

---------- FOLLOW-UP ----------

QUESTION: Thank You for your answer.  How was I considered "under arrest" when at that point all they did was ask me to go to the back to talk?

ANSWER: Because you were deprived of your liberty to come and go.  You also received a charging document and when you tried to escape they chased you.  All elements of being under arrest.

---------- FOLLOW-UP ----------

QUESTION: At the point that I went out of the Emergency Exit I had not been given any documents.  At that time all they had done was simply ask me to go to the back and talk with them.

Answer
It does not matter what you were given.  What does matter is that you were denied your right to leave the store.  That means that you were under arrest.  When the police encounter you on the street and take you to the police station you are under arrest.  Same thing.

Again I am going to urge you to retain an attorney asap.  You are charged with a criminal offense that can send you to jail.