South Carolina Criminal Defense Blog

A man died November 29th after being wrestled to the ground by Walmart employees in North Myrtle Beach:

The man died Nov. 29 after store employees stopped a possible shoplifter, according to a report from the North Myrtle Beach Department of Public Safety. The report said the man died at Grand Strand Regional Medical Center.

Horry County Deputy Coroner Tamara Willard said the cause of death remains under investigation.

No one is accusing Walmart's elite loss prevention folks of murder just yet, but

Officers found the man on his back on the sidewalk outside the store, the report said.

One customer told police she saw a struggle between three Wal-Mart employees and the man.

Now, let's assume for purposes of this conversation that the Walmart employees in some way caused this man's death. No one has been charged as far as I know and anything is possible; but for arguments sake here, I will assume that he did not drop dead of natural causes while loss prevention was chasing him. S.C. law permits a citizen's arrest:.

Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law. (S.C. Code 17-13-10)

And S.C. law permits the use of deadly force during a citizen's arrest as well:

A citizen may arrest a person in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person:

(a) has committed a felony;

(b) has entered a dwelling house without express or implied permission;

(c) has broken or is breaking into an outhouse with a view to plunder;

(d) has in his possession stolen property; or

(e) being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed. (S.C. Code 17-13-20)

But could this justify causing the death of a person while stopping them from shoplifting? In Tennessee v. Garner, 471 U.S. 1 (1985), the U.S. Supreme Court held that a police officer cannot use deadly force against an apparently unarmed, non-dangerous fleeing suspect. S.C. however, has held that Garner does not apply to private citizens:

The Fourth Amendment proscription against warrantless searches and seizures does not apply to searches by private individuals not acting as agents of the State. Peters v. State, 302 S.C. 59, 393 S.E.2d 387 (1990). We extend the reasoning in Peters to apply to seizures by private citizens. Cooney was acting free of State influence when he attempted to arrest Williams. Accordingly, we find the holding in Garner does not apply to seizures by private persons and does not change the State's criminal law with respect to citizens using force in apprehending a fleeing felon . . .

In order to invoke the defense of justifiable killing in apprehending a fleeing felon, appellant at a minimum must show that he had certain information that a felony had been committed, § 17-13-10(b), and he used reasonable means to effect the arrest. State v. Cooney, 320 S.C. 107 (1995)

So, shocking as the conduct of Walmart employees is when they are using force to apprehend shoplifters, is it possible that they could be justified in killing the guy who just stuck a candy bar in his pocket and ran out the door? And even if they are, what kind of sense does it make to have a policy of using physical force to apprehend shoplifters? I can't imagine the resulting litigation and potential for criminal charges against a worker costs less than the items that may be lost. But, I'm sure they've crunched the numbers.