Civil Action against Whole Foods, and a Sergeant Bowser of NOLA PD.
- Thread starter JimDandy
- Start date
And someone else's hypothetical vision of a payday, not necessarily the actually bringing the suit. Shortwave would also run into some problems having his buddies looking for some "easy money" establish they didn't know guns were prohibited on the property, even without signage based on their relationship to the first suit-bringer. Many of those "statements of fact" were about the guy not knowing guns weren't allowed in the store, had no way of knowing guns weren't allowed in the store, had no inkling, no earthly idea, and so on. It would be pretty hard to say that on the stand when your buddy went through this same process 12 months ago.
The professional lawyers would have to weigh in, but IF you did that, I don't think you're looking at fraud, but it would be quite a thin line to walk on perjury, and I suspect they'd tell us even if you avoided that, you're more likely to pay their legal costs as well as your own for a nuisance suit, than get any payday.
Glenn E. Meyer
New member
Here's an interesting corporate case that was on the old CourtTV. A guy has an older Ruger single action revolver before the mods. He puts a round under the hammer, drops the gun and shoots himself.
He sues - and Ruger points out the instructions for the gun and the recall campaign of mods that went on for several years before the accident. The plantiff had knowledge of such.
Ruger wins BUT - they give the plantiff a nice check not to appeal. Is Ruger still in business. Who knows about it unless you were channel surfing by chance.
A settlement and agreement to keep quiet - most would take it. Pay off your house, student loans, etc. NO - I'll make an RKBA fuss - which no one would care about beyond the choir.
He sues - and Ruger points out the instructions for the gun and the recall campaign of mods that went on for several years before the accident. The plantiff had knowledge of such.
Ruger wins BUT - they give the plantiff a nice check not to appeal. Is Ruger still in business. Who knows about it unless you were channel surfing by chance.
A settlement and agreement to keep quiet - most would take it. Pay off your house, student loans, etc. NO - I'll make an RKBA fuss - which no one would care about beyond the choir.
If deposition testimony is along the lines of the video, the case never gets to a jury on the issue of liability on the battery count against the officer even if it goes to trial. There was evidently no sign posted, nobody told the guy guns were not allowed, and the police officer simply grabbed and disarmed him. That's a directed verdict in favor of the plaintiff on the common law tort of battery. Since the officer was in uniform, he was acting under color of authority when the officer seized the guy without either reasonable suspicion or probable cause he had done anything unlawful. That's a deprivation of constitutional rights under 42 U.S.C. section 1983 and the plaintiff would be entitled to directed verdict on liability. The question of damages would still be a jury issue.
The liability of the store is a little less clear since they evidently just reported a man walking in their store with a gun.
Assuming the officer was acting while employment of the local police department, the department (and city government) may or may not bear some liability. Unlike a private employer who is normally responsible for the acts of their employees (respondeat superior), a governmental agency is responsible under 42 U.S.C. Sec. 1983 only for their own acts. That's where the custom of the department, training or lack thereof, and similar factors come into play.
The upshot is that if the officer is covered by insurance with a reasonable limit (probably paid for by the city), then it makes sense to settle the claim for a monetary amount with the insurer and maybe a stipulation that the city give some sort of training to officers about the law on open carry in Louisiana. If it is important to the plaintiff, he could refuse to sign any non-disclosure agreement which most insurers routinely want. That's where you can tell if this lawsuit is simply about making money or if there is a legitimate desire to vindicate the RKBA.
The liability of the store is a little less clear since they evidently just reported a man walking in their store with a gun.
Assuming the officer was acting while employment of the local police department, the department (and city government) may or may not bear some liability. Unlike a private employer who is normally responsible for the acts of their employees (respondeat superior), a governmental agency is responsible under 42 U.S.C. Sec. 1983 only for their own acts. That's where the custom of the department, training or lack thereof, and similar factors come into play.
The upshot is that if the officer is covered by insurance with a reasonable limit (probably paid for by the city), then it makes sense to settle the claim for a monetary amount with the insurer and maybe a stipulation that the city give some sort of training to officers about the law on open carry in Louisiana. If it is important to the plaintiff, he could refuse to sign any non-disclosure agreement which most insurers routinely want. That's where you can tell if this lawsuit is simply about making money or if there is a legitimate desire to vindicate the RKBA.
Spats McGee
Administrator
Mostly, KyJim, except that the officer will interpose qualified immunity, which is an immunity from trial itself. If he was acting under color of law, he undoubtedly will. (Sayeth the guy who hasn't watched the video . . . )
vranasaurus
New member
I too am not sure there are or will be any facts in dispute to make it to a jury on liability. I would love to read the complaint and answers.
Spats McGee
Administrator
The link you provided to scribd is the complaint.
No Tom, it would not be about the money. It is more about the fact this store which although being private property, is open for business to the public and apparently does not want guns in their store which is their right. But not wanting to put signage up informing the unaware public ,then the store managers sick their hired LE on a customer for carrying a gun that the customer had totally no clue he was doing anything wrong. Makes it almost seem as though the manager of this particular store gets a kick out of this harassment.
And I call it harassment(a good attorney may also add simple assault) because of no signage being posted which would have most likely eliminated all this from the beginning. And no signage equaled no charges given Monaco cause he wasn't guilty of doing anything. The cop knew that( or should have) before he ever detained Monaco and they ever walked out of the store.
If this event happened exactly as was seen with no ill actions on Monaco's part, I do hope he hits Whole Foods Market, Inc. deep,deep in the pockets. Deep enough for the local news to make a story of the case.
Maybe then the CEO's of WFM will ask the store manager if he/she would mind putting up some signage before we have to senselessly pay more money out.
One thing everyone should be very thankful for is that when the(unidentified to Monaco) Sgt , sneaked up from behind and grabbed Monaco from behind in a choke hold with one arm and grabbed Monaco's gun with his other that Monaco was not an off duty cop himself or otherwise trained in weapon retention or things may have gotten ugly very fast.
Again, hope we hear more about this case.
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Shortwave, I was referencing Jim Dandy's hypothetical scenario. I've heard of folks "spamming" no-carry businesses by deliberately ignoring the policy in order to provoke problems. In some cases, yes, they're expecting to generate litigation.
When it comes to the case at hand, all we can do is speculate. We only have a bit of video after the supposed confrontation. We don't know exactly what the officer or Monaco were doing during the actual detention.
When it comes to the case at hand, all we can do is speculate. We only have a bit of video after the supposed confrontation. We don't know exactly what the officer or Monaco were doing during the actual detention.
YARDDOG(1)
New member
Acting under the color of law, puts the agency at fault,, i call em like I see em ; )
Y/D
Y/D
Spats McGee
Administrator
Well, it's not that simple.
I skimmed the complaint, and it looks like the defendant was probably working off-duty as security. Naturally, the question then becomes: Who was responsible for the defendant's behavior? Store? City? Defendant, individually?
I skimmed the complaint, and it looks like the defendant was probably working off-duty as security. Naturally, the question then becomes: Who was responsible for the defendant's behavior? Store? City? Defendant, individually?
If I see a uniformed officer doing something that a uniformed officer would typically do (i.e. walk through a business while on patrol) wouldn't I, as a reasonable person believe that the officer is acting in his official capacity?
Wouldn't I be under the impression that I am being acted upon by an officer in his official capacity if he disamrs and tells me that it is because of his years of experience as an officer?
If he is acting as a security guard, isn't he still acting as an officer? How can he separate the two if he is in uniform and exercising police powers? He issued a no trespass notice as an officer.
Wouldn't I be under the impression that I am being acted upon by an officer in his official capacity if he disamrs and tells me that it is because of his years of experience as an officer?
If he is acting as a security guard, isn't he still acting as an officer? How can he separate the two if he is in uniform and exercising police powers? He issued a no trespass notice as an officer.
2ndsojourn
New member
"How can he separate the two if he is in uniform and exercising police powers? He issued a no trespass notice as an officer.
"
Right. And he got it out of his squad car.
"
Right. And he got it out of his squad car.
Does it matter what the plaintiff thinks, if the guy wasn't working as a real officer? (Which I tend to think, but don't know he was. I'm open to being told he wasn't but with how little we know, I lean towards LEO [for the sake of argument right now anyway] with all the accouterments he had car, uniform, etc.)
If some guy dresses up as a cop, paints up a motorcycle, steals/fakes a ticket book etc. starts pulling over high value cars to get their address, and possibly copy their keys through con artistry- turn off your vehicle, step out of the car, manipulate their key in an impression maker while they're taking a field sobriety test, or whatever. I hope that was ridiculous and specific enough to obviously not supposed to be a real person or situation- I don't think anyone here thinks those drivers/victims should be able to sue the local PD because they thought the guy pulling them over was a LEO.
Either he was an active LEO or he wasn't. All the government property he had with him certainly suggests, but (probably) doesn't definitively prove he was during his actions, an active LEO.
And Spats, maybe you can chime in on my devil's advocate question after saying all of that-
Can an off-duty officer go back on duty in an emergency situation? I.e. can an off-the-clock patrol officer go back on the clock if he walks past some guy beating the crap out of his kid in the front yard? Stop the beating, arrest the guy, call for a car to come pick the guy up, and take him to jail/booking/etc?
While it's fairly obvious a private security guard could seize a person, can/do they search that person? Or do they wait until the police arrive, let the police do the search incident to lawful arrest to maintain chain of custody for any evidence found?
If so- Assuming he wasn't being paid by NO PD, which was being paid by Whole Foods- would he have gone back "on the clock" with any of the actions he's alleged to have committed?
The level of "violence" or method of it's application in the encounter?
The search of his person, including the securing and emptying of the firearm?
Seizing a person the store itself did not have the right to seize as no shoplifting was alleged - As I understand it the store only had the right to ask/tell him to leave, not hold him in a back room to lecture him, take his property, manipulate and empty it, then slam it on a car hood outside the store property?
And now that I type that out, I think that's the key point isn't it? Who decided what would be done in this situation. If the store manager ordered the detainment, then it's more likely the store. If the officer/security guard did it on their own volition and either appropriated or extended his access to that back room and who he could take there, it could have been acting as a duly sworn officer.
If some guy dresses up as a cop, paints up a motorcycle, steals/fakes a ticket book etc. starts pulling over high value cars to get their address, and possibly copy their keys through con artistry- turn off your vehicle, step out of the car, manipulate their key in an impression maker while they're taking a field sobriety test, or whatever. I hope that was ridiculous and specific enough to obviously not supposed to be a real person or situation- I don't think anyone here thinks those drivers/victims should be able to sue the local PD because they thought the guy pulling them over was a LEO.
Either he was an active LEO or he wasn't. All the government property he had with him certainly suggests, but (probably) doesn't definitively prove he was during his actions, an active LEO.
And Spats, maybe you can chime in on my devil's advocate question after saying all of that-
Can an off-duty officer go back on duty in an emergency situation? I.e. can an off-the-clock patrol officer go back on the clock if he walks past some guy beating the crap out of his kid in the front yard? Stop the beating, arrest the guy, call for a car to come pick the guy up, and take him to jail/booking/etc?
While it's fairly obvious a private security guard could seize a person, can/do they search that person? Or do they wait until the police arrive, let the police do the search incident to lawful arrest to maintain chain of custody for any evidence found?
If so- Assuming he wasn't being paid by NO PD, which was being paid by Whole Foods- would he have gone back "on the clock" with any of the actions he's alleged to have committed?
The level of "violence" or method of it's application in the encounter?
The search of his person, including the securing and emptying of the firearm?
Seizing a person the store itself did not have the right to seize as no shoplifting was alleged - As I understand it the store only had the right to ask/tell him to leave, not hold him in a back room to lecture him, take his property, manipulate and empty it, then slam it on a car hood outside the store property?
And now that I type that out, I think that's the key point isn't it? Who decided what would be done in this situation. If the store manager ordered the detainment, then it's more likely the store. If the officer/security guard did it on their own volition and either appropriated or extended his access to that back room and who he could take there, it could have been acting as a duly sworn officer.
I would think that the department has some sort of agreement/contract to allow it's officers to work there off duty so would that not also make the department liable? Most departments want to regulate the types of places their officers are allowed to work and he was working in uniform with full authority of his office. I'm no lawyer but I believe the officer is liable personally as well if the facts are as known right now.
I know the local departments here have a list of business that have contacted them to request off duty officers for security at a set wage. Officers also have their full authority/arrest powers even if they are not technically "on duty" while working the off duty jobs.. If he sees a criminal act and wants to take action and make an arrest he can do so even though it would certainly involve calling for an on duty officer's response to assist.
I know the local departments here have a list of business that have contacted them to request off duty officers for security at a set wage. Officers also have their full authority/arrest powers even if they are not technically "on duty" while working the off duty jobs.. If he sees a criminal act and wants to take action and make an arrest he can do so even though it would certainly involve calling for an on duty officer's response to assist.