Civil Action against Whole Foods, and a Sergeant Bowser of NOLA PD.

[Wreck-n-Crew]

Even if the city is found to not be liable, or the Sgt through some loophole in the law there still remains the liability of the store at least to post signage. Evidence on the surface is strong that it had failed to do so in the video by the response of the manager as well as in other stores nationwide. Though this is in the early stages and the evidence of the defense is still unknown, there are plenty of flags as to their proper posting of signs.

I have found more than one complaint that some of their stores fail to put up signage, or put it up where it can be found.

The 91st and Metcalf store has the signage. The 119th Street store does not. I have sent them 3 similar messages, and never received a response. There is a uniformed LEO in the store in the evenings, I guess they think that is enough to keep someone from mugging you on your way in and from the store to your car.

and this:

Stopped by the Whole Foods at Lexington Green in Lexington, KY last weekend and looked for a "no guns" sign on the door but didn't see any.

as well as this:

My store is not posted. Maybe this is a local Kansas thing. I cant find what I want somewhere else locally. These are excuses that say I don't care. Email from corporate says it's their policy for all their stores.That doesn't mean unless posted.

Found Here...http://www.defensivecarry.com/forum...s/78822-whole-foods-no-concealed-carry-2.html

More damaging could be this statement in a letter from Whole Foods if proven real and referring to a store in a state where posting is required (they have states that don't ?):

I received this letter today in response to a respectful letter I recently sent them after I noticed a new sign prohibiting concealed carry at my local store. I've been a loyal shopper for many years and they just lost my business.....many other choices here in town. So much for their Libertarian CEO....


Dear Mr. _________,





Thank you for writing to Whole Foods Market. Some stores, including ours, recently placed signage at the front entrances stating: "We prohibit carrying and use of a firearm.” This is not a new policy and the signage reflects our long-time companywide "No Firearms” policy. Posting the sign is a courtesy to gun owners; the law does not require businesses to post signs.

I have found many more. It seems to be more common than it should be. Not a smoking gun......yet. IF the Lawyer for Monaco does his research, he may have a good case.

 

[Fishing_Cabin]

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?

Jim, it would vary by state and agency restrictions of course, but generally speaking, yes an officer can go back "on-duty" to intervene in a violent situation they stumbled upon during daily life "off-duty" if the officer is in his/her jurisdiction. Also, again it would vary by the judicial system, but here an officer who did this would have to go with the "regular" on duty officer to the magistrate, since he is the one who witnessed the incident and took action.

To expand on that, there are a few agencies with take home vehicles that allow personal use of the vehicle off duty, provided the off-duty officer is dressed and equipped appropriately. The catch is that the off-duty officer is required to respond to certain calls if he is in the area, or the officer see's something above a certain threshold then he is supposed to take action. Its a way to add manpower without having to pay the officer, unless the officer is needed/requested.

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?

Again, as to going "back on the clock" it would vary depending on policy.

To me, this suit hits at a grey area of "who pays" that most agencies and municipalities do not like to look at deeply. Why? Cost v public/business perception v best use of personnel. There is a divide on this topic as well. The divide is:

1. Does the department allow the officer to work a side detail (ballgame, business etc) and be paid a lower per hour rate directly by the school/business instead of the municipality?

2. Does the department allow the officer to work a side detail (ballgame, business etc) and be paid by the municipality, after the promoter (school, business, etc) has paid a higher per hour rate to the municipality to cover the officers pay and any other related cost?

Both options have their respective pros/cons, but it varies by area typically. I've known of some agencies that do one or the other, and sometimes a little of both. It seems more of a matter of ideology in the administration on which is the proper method. Option 2 seems best to me, except for the complaints about the high hourly rate.

 

[Spats McGee]

. . . .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? . . . .

Yes, I can chime in, but in all honesty, Fishing Cabin has done a fine job of pointing out some of the intricacies here. It's a matter of state law, of PD policy, of contract with the off-duty employer, and of the off-duty employer's policy.

In my jurisdiction, assuming that the officer is simply "off duty" (meaning not working at a job at the moment, as opposed to "working off-duty"), and runs across the situation described above, yes. He can stop the beating and arrest the guy. I would expect him to call it into dispatch, call for a car and the on-duty sergeant etc.

One of the points in all of this is it's not as simple as just saying "he was in uniform." Yes, he was in uniform. Yes, he was driving a patrol car (I think). However, if the city tries to claim that Whole Foods should be liable, and Whole Foods tries to claim that the city should be liable (not an unrealistic possibility), there will be other factors to consider. Was he working on the city's payroll at the time? Who had control of his job duties and hours at that moment? Did he perform the actions at issue at the direction of the WF manager? Or did he act without instructions?

 

[Fishing_Cabin]

Spats,

I know there is some case law on the issue of these types of side jobs, as I remember it being covered on both sides in some training in the past, but dogged if I can find any reference looking back through my stuff. You have any case law that you know of without having to dig deep on the topic?

Thanks!

 

[Spats McGee]

Not off the top of my head, FC. I've done §1983 litigation for most of my career, but believe it or not, I've never defended one where the officer's actions took place at an off-duty job. Let me dig around and see what I can come up with.

 

[Tuzo]

From NOPD Operations Manual

In the first opening statement of "Purpose" the NOPD Operations Manual (2004) states: "The purpose of this section is to establish guidelines for the working of paid details by department employees. Employees working paid details do so as representatives of the New Orleans Police Department."

Furthermore, Paid Detail is "The off-duty employment, for compensation, of any employee of the Department by another individual, business, establishment, or organization where the employee is performing the duties of a police officer or a function of the police department."

Italics are mine.

Recently paid details have come under greater coordination and control by NOPD for the purpose of fairness and elimination of financial abuse and/or corruption. That officers represent NOPD is unchanged. I live near NOLA and have friends who are NOPD officers. Details are a way of supplementing income while working under the auspices of NOPD.

 

[KyJim]

Mostly, KyJim, except that the officer will interpose qualified immunity, which is an immunity from trial itself.

Spats, the officer cannot claim qualified immunity for civil rights violations unless he has an objective good faith belief the law was being violated. He could also assert qualified immunity if he objectively believed the law authorized him to take the action and had not been declared unconstitutional. There was nothing to suggest any law was being broken and the officer's own statements seem to support that. While he may have thought there was a city ordinance, that is not enough because, even if New Orleans has an ordinance, state law preempts it. That was done in the wake of Katrina. His subjective belief in what the law says is irrelevant.

 

[Spats McGee]

Actually, there was a "good faith immunity" at one time, the GF aspect was taken out of the QI analysis a while back. QI is based on objective/reasonableness factors, while GF is entirely subjective. If he had arguable probable cause, or if his actions were objectively reasonable, he can claim QI.

The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (KENNEDY, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), for the proposition qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”).

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009)

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al–Kidd, 563 U.S. ––––, ––––, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

Stanton v. Sims, 134 S. Ct. 3, 5 (2013)

Perhaps more to the point, even if were all to agree that we don't think he's entitled to QI, he's going to raise it. If his lawyer doesn't, I'd pretty well call it malpractice. If the trial court decides he's not entitled to QI, so be it, but in my jurisdiction, we get an interlocutory appeal from a denial of QI . . .

 

[JimDandy]

Not to mention he's going to have a hell of a time getting past:
Brown v. Texas, 443 US 47, (1979)
Delaware v. Prouse (440 U.S. 648) (1979)
Florida v. J.L., 529 US 266 (2000)
US v. Aquino, 11-1372 (8th Cir. 2012)
and
US v. Black, No. 11-5084 (4th Cir. 2013)
(or a case even more on point I'm not familiar with.)

All of those cases seem to have at least some influence on the complaint.

 

[KyJim]

Perhaps more to the point, even if were all to agree that we don't think he's entitled to QI, he's going to raise it. If his lawyer doesn't, I'd pretty well call it malpractice.

Agreed. Plus, sometimes you get things you don't really expect to get. You do have to ask, though.

 

[Wreck-n-Crew]

Just wanted to add some Facebook Intel from Mr. Monaco on the case. https://www.facebook.com/permalink.php?id=124751677535026&story_fbid=121537604682101

From some of his statements ( if true ) He claims the suit is based on principle

Hello all, I am the victim in the video and I thank you all for your support. This is not a personal issue, I'm fighting for everybody here and even those who don't even know they still have rights.

Also stating that he went back and still no visible sign posted

I just left Whole Foods. Apparently they are still open-carry as there is no sign.

Also that any financial gains will be donated

If I can, I WILL FIGHT THIS and in the event I win, any money awarded (after legal fees) will be donated to a firearms rights or other pro-gun non-profit or charity. A victory for freedom is what I am seeking.

Another post states his lawyer subpoenaed the video from whole foods

Chad, a lawyer took the case and has since subpoenaed the security footage from Whole Foods.

Mr. Monaco also started a thread on the issue in Jan 2013 on a forum.Pretty much the same as Facebook posts. I did not leave a link to that, since it is pretty much the same statements and asking advice.

 

[Dreaming100Straight]

The officer is likely immune if he had a reasonable good faith belief that Mr. Monaco posed a threat or was in the act of committing a crime. All we know is that three persons had reported that Monaco was "strapping" and we do not know if there were other things conveyed to the officer causing him to believe that Monaco was a threat. Like someone said, we only have one side of the story.

 

[Wreck-n-Crew]

As I posted in another thread already, this is what happens when people have been prohibited from exercising their rights for so long in so many places. People form opinions and change is bound to come slow and at a cost. I remember when it was open carry in Ohio before the CCW permits. One dared not OC in certain places and still ran a risk in others. Some may see it differently here, but I remember the arrest and threats in one city in particular. Not to mention, obtaining information about what my rights were was much harder than it is now with everything online and having a lawyer tell you was not so affordable (not that it is now).

What happens with this case will be interesting to follow. I would love to get my hands on the in store video myself...