Wednesday, May 19, 2010

Chicago CVS Worker Kills Shoplifter Over Toothpaste, While Cop Watches

Now that's a weird headline. Here's a blurb from the Findlaw article:
The Chicago police and CVS Pharmacies are under fire after a CVS manager chased a shoplifter and choked him to death, even as an off-duty sheriff's officer stood on the scene with a loaded handgun drawn at her side. Anthony Kyser, 35, was killed after stealing toothpaste and crayons from a CVS store. The officer shouted "stop resisting," but did not otherwise intervene.

Witness statements indicated that Anthony Kyser cried, "I can't breathe, I can't breathe!" while he was held in a chokehold for several minutes. The Chicago Police have confirmed that a Cook County sheriff's officer was present, however police did not identify the name of the officer or the CVS manager.

The off-duty officer left the scene before uniformed officers arrived, and the medical examiner found that the death was a homicide. Video footage shows the officer holding a gun at the victim, while the CVS worker choked him to death. Still, police have declined to file any charges in the case.


Elizabeth said...

A real horror story. A man killed for stealing toothpaste and crayons? Likely for his children...?

What kind of a society are we where some people cannot afford toothpaste and get killed for stealing it, while others destroy our economy or environment, and still remain in charge and handsomely compensated?

Carol Cross said...

Obviously, this CVS Manager may also be licensed as a private undercover LP agent with certain powers of detainment OUTSIDE of the premises. When suspects are detained outside, the probable-cause and on-view ticket/arrest can be made by the City and the City is responsible for the arrest/prosecution of the suspect, and not the retailer.

Since the event of Civil Recovery and Demand Statutes that permit the corporate retailers to demand $$$ under the Civil Law when shoplifters are arrested/ticketed by the Cities for completed larcenies, the deaths outside of store premises have increased.

Was the Manager under pressure to make sure the Civil Demands were made and is this why he pursued this man to hold him for the police?

Does this subsidy of the corporate retailers kill innocents? And, of course, if he is a Privately Licensed Officer as well as a store Manager, the liability for "excessive force" will still be placed on him and not on CVS.

Carol Cross said...

Under the Equal Protection Theory of the Constitution, how can the subsidy of Civil Demand Letters for $$$$ and the selective criminal prosecution of first-offender shoplifters be defended?

Most shoplifters cooperate and return inside to be interviewed and wait for the police. But, should those who run when stopped be chased and detained by "excessive force" that results in accidental death of either the suspect or the security employee?

In some jurisdictions, ONLY civil demands are made on apprehended shoplifters; in other jurisdictions both a criminal charge of "stealing" and a "civil demand" are made. The civil demands are made outside of the view of the courts and look like "legalized extortion." There must be pressure on the Managers of retail stores to provide as many civil demands as possible to enhance the bottom lines of the corporate entity.

A great percentage of shoplifting attempts could be stopped within the stores and the merchandise would be paid for if retailers had a greater duty to stop attempts than to permit suspects to depart the stores so as to initiate arrests for completed thefts.

Apprehended shoplifting was changed in the law from an "attempt to steal" to the completed crime of "theft" although there is most often no actual loss to the merchant whatsoever, whose "double" agent recovers the merchandise that is generally surrendered with an offer to pay. Is it only a completed theft because of the agency of the LP security person with the City Police Authority who initiates an on-view, probable-cause arrest by the City Police.

But, of course, civil demand statutes could not be upheld by the courts unless shoplifting is treated as a completed theft by the courts and case law has been made over the years to support the scheme of civil demand letters and arrests of first offenders for "stealing" or completed larcenies.

Why isn't this unconstitutional?

Darren Lenard Hutchinson said...

Carol: I am not sure I completely understand you question. But -- if you are asking if it is legal for people to face criminal prosecution for shoplifiting and face civil liability or lawsuits from the stores, then the answer is simple. Yes - this is legal. The prosecutor protects the "state" interest, while the civil suit protects the store. Think: OJ Simpson. He was prosecuted by California and sued by the Goldman/N. Simpson families.

Carol Cross said...

Yes! I understand! But it is the State who has made the Civil Demand possible under a special statute (a subsidy if you will) for the Retailers of America. It is also the State/City who is responsible the probable-cause, on-view arrest/ticket for a completed theft when the merchandise is surrendered to the LP either inside or outside of the retail stores.

I'm sure that you know that there are few if ANY Civil Lawsuits actually filed by the retailers and that the demand, out of view of the courts, is usually satisfied because of the charge of "stealing" by the City--that in the event of first offenders is premeditated by the cities to be plea bargained.

This doesn't smell like legalized extortion and/or intimidation to you for the purpose of teaching the first-time shoplifter a lesson and deterring a second attempt to steal? -- And, of course, also, for producing revenue for both the cities and the retailers?

Obviously, this "scheme" that produces revenue for both the cities and the retailers and the local Bar is open to abuse. The retailers appear to have no duty to prevent attempts to steal (shoplifting) and get their merchandise paid for because there is more money to be made in the arrest than in the sale?

Do you see no relationship between the growing injury and death of both shoplifters and LP Security personnel BECAUSE the arrest must be made outside of checkout/store premises in order to provide "intent" and probable cause for a city ticket for a completed crime of stealing?

I'm sure you know that these licensed secret undercover LP have no legal duty to report crimes to the police and that it is a mixed bag throughout the United States. Some suspects pay only civil demands and aren't charged with a crime - which will be plea bargained in the lower court. Some police departments will not send officers to the Security Offices of the Retail Stores to ticket suspects who have peacefully surrendered the merchandise with an offer to pay.

Darren Lenard Hutchinson said...

Carol: Tort damages are always a creation of state law. So, whether a party is suing for medical malpractice, injuries due to a car accident or for losses due to shoplifting, this is based on state law. When people sue, however, they are protecting their own private interests that state law creates.

Criminal law is also created by state law. The state, however, does the prosecution to enforce its own interests. This is a basic part of our legal system, and it is not unconstitutional.

Finally, I am not sure how states make money from arrests. Normally, defendants cannot afford to pay restitution, and it is costly to make arrests and house people in jail.

Carol Cross said...

Yes, of course, but this is SPECIAL TORT LAW (a SUBSIDY for the retailers)) created by the State that permits DEMANDS for $$$$ DAMAGES out of view of the courts under the THREAT of prosecuting the matter under the civil law - and, in many jurisdictions (at the same time), under the threat of a criminal prosecution for theft by the city police authority in the lower municipal courts.

Whether or not the State Legislatures knew that the Cities would move to charge "shoplifting" as the completed offense of theft and offer plea bargains to first offenders, which appears to justify/rationalize the civil demands under State Law, is a matter not open to public view or discussion. However, it is obvious that the changes in the law to treat apprehended "shoplifting" as a completed theft took place at the same time the State Legislatures were passing Civil Recovery Statutes for the Retail Lobby.
Perhaps, some of those in the State Legislatures who voted for these Civil Demand Statutes thought that there would be ONLY a Civil Demand made by the Retailers? The Civil Demand Industry is BIG Business in this county and throughout the World and, of course, has been a boon to the private security and private justice contractors.

Of course, the States aren't making money but are you denying that the Cities and the Retailers and the local bar are not making money off of this "double jeopardy" scheme and the plea bargain angle?

You indicate that "defendants cannot afford to pay restitution, and it is costly to make arrests and house people in jail" which leads me to believe that you don't fully understand what is going on. This "Civil Recovery" scheme is not aimed at the Professional shoplifters or the poor and needy but at the "amateur" first-timers who believe that they will be stopped in their attempt to steal if they are observed by security when they make the first covert or overt act of the attempt. Most amateur shoplifters have the money to pay for the merchandise and offer to pay for it when confronted.

If there is an incentive to arrest for profit, experience indicates that the profit motive will always trump the "justice" motive and the retailers will not practice due diligence to prevent shoplifting and will instead permit their double-agent LP's to entrap to initiate arrests for completed thefts. Why wouldn't they when they have NO responsibility for the arrest and they make money on the arrest?

The advanced technology that has produced surveillance video and RFID etc.. should be used to prevent attempted thefts, shouldn't it? And, how can you defend the lack of notice of the criminal and civil consequences of shoplifting by either the retailers or the cities?

Of course, not everything that is legal is constitutional but who will test these schemes in the courts when they are so expedient for both government and the private sector?

Darren Lenard Hutchinson said...

Carol: Excessive force and false imprisonment are wrong. Criminal restitution, prosecution or civil damages (or all of the above) for shoplifting is not wrong. I am sorry that this bothers you so much, but there is no way that any court will ever rule it unconstitutional.

Carol Cross said...

I believe that two state Appeals Courts have already ruled that it is unconstitutional to prosecute a defendant for larceny shoplifting AFTER the defendant has already paid a Civil Recovery Demand to the Corporate Retailer for the tort of shoplifting as described under the State Statute.

Obviously, two Appeals Courts have found that it IS wrong and that that the government can't then prosecute the offender and order "restitution" for the retailer in a criminal trial if the retailer has already received restitution under the state tort law for shoplifting.

But, of course, under the city schemes, first offenders are not prosecuted for theft and enter into plea bargains with the prosecutor where they plead guilty to a different offense against the people after they have paid a Civil Recovery Demand to the Retailer.

You, Professor, are probably too young to remember when "shoplifting" was an ordinance violation rarely prosecuted because the owner of the merchandise or his business agent had to prosecute the attempt to steal in the court and pay court costs.

The excessive force as demonstrated in the shoplifting deaths in recent years is driven to some degree by the desire of both the retailers and the cities to profit from the on-view-probable-cause arrests initiated by the city-licensed undercover LP. The LP security have to "catch" suspected shoplifters and find out who they are in order to initiate the probable-cause arrest and in order to initiate the civil demands. They have to permit and allow suspects to exit past the final checkout areas or the store premises in order to establish criminal "intent" and probable cause for an on-view arrest by a city police officer. Violence ensues when the suspect will not cooperate with the LP and return to the store to await the police. The LP, of course, are always personally responsible for the excessive violence and the city and the retailer have no liability.

What exactly do we have in the way of a crime if the City Commissioned Officer doesn't appear to write the ticket or make the arrest and take photographs of the so-called stolen merchandise that has been peacefully surrendered to the LP with an offer to pay?

You are right! This bothers me that the law of agency was manipulated to give this subsidy to the retailers, and that both the lower and the higher courts become tainted in order to protect the subsidy of the corporate retailers.

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