Loss prevention officers, security guards, and employees for private businesses sometimes assist in identifying potential criminal acts and notifying law
Loss prevention officers, security guards, and employees for private businesses sometimes assist in identifying potential criminal acts and notifying law enforcement of such acts so that law enforcement can perform the public function of investigating potential criminal acts and arresting those who commit crimes. Often, such individuals engage in observation of or interaction with a person suspected of committing a crime before contacting law enforcement officers to intervene. A question might then arise over whether a private entity or person may be exposed to liability for claims of for false imprisonment, false arrest, or malicious prosecution based on the decision of an intervening law enforcement officer to detain, arrest, or prosecute. This article examines the situations in which the Georgia Court of Appeals discussed liability to private entities based on arrests made by law enforcement personnel.
In Baggett v. National Bank & Trust Company, 174 Ga. App. 346, 330 S.E.2d 108 (1985), the court of appeals provided a general description of when liability of a private entity may arise due to law enforcement involvement in the investigation and detention of a person suspected of committing a crime at a private business:
“The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution; in the latter case there is not. If the defendant…merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer’s decision, or that he gave information which he knew to be false and so unduly influenced the authorities he may be held liable. Baggett v. National Bank & Trust Company, supra.”
In summary, case authority says a private company might be liable for the continued detention of a suspect by the police in two different types of cases: 1) cases in which law enforcement personnel blindly rely on the investigation of private employees without conducting an independent investigation and 2) cases in which private employees urge or direct a law enforcement officer to make an arrest without probable cause.
The Independent Decision Test Could Impose Potential Liability If Law Enforcement Personnel Chooses Not To Conduct A Separate Investigation.
In Taylor v. Super Discount Market, Inc., 212 Ga. App. 155, 441 S.E.2d 433 (1994), G. Randall Moody of Drew, Eckl & Farnham obtained summary judgment in favor of a grocery store as to a claim for false imprisonment by arguing that police officers conducted an independent investigation after a store employee alerted the police to a customer who tendered what appeared to be a counterfeit $20.00 bill. The store employee in Taylor believed the bill to be counterfeit and instructed the customer not to leave while she took the bill to an off-duty police officer at the grocery store. The police officer noted some irregularity in the appearance of the bill but called for another officer with experience in identifying counterfeit currency before concluding the bill was genuine. After police released the customer, the customer filed suit.
Despite the “detention” of the customer based on the store employee’s incorrect suspicion that the bill was counterfeit, the trial court granted summary judgment to the store and the court of appeals affirmed, holding that the actions of the store employee did not create liability for the grocery store, because the employee acted in good faith and the police conducted an independent investigation of the suspected crime during the customer’s detention.
In another similar case, a gas station manager notified the police that the plaintiff customer left the gas station after refusing to pay for his gas because the manager would not inspect the gas pump to confirm that the pump accurately recorded the price of the gas. Jacobs v. Shaw et al., 219 Ga. App. 425, 465 S.E.2d 460 (1995). The manager provided a written and oral statement to the responding police officer. However, before seeking an arrest warrant, the police officer contacted a regulatory agency and confirmed that the pump worked properly, at which time the officer arrested the customer. When a prosecutor eventually dismissed the case, the customer sued the gas station and the manager for false imprisonment, false arrest, and malicious prosecution. The trial court granted summary judgment, and the court of appeals affirmed based on the fact that the arresting police officer conducted an independent investigation before deciding to arrest the customer.
By contrast, in cases involving an arrest by law enforcement without any independent investigation, the court of appeals ruled a jury question existed over private liability. For example, in Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008), the Georgia Court of Appeals reversed the grant of summary judgment for a claim of false imprisonment against a restaurant and a manager. The manager received information from a server that two customers at a table in the restaurant left without paying their bill. When the manager went to the parking lot, he saw plaintiffs’ car exiting the parking lot and pointed at the vehicle while yelling to an off-duty police officer at the restaurant, “hey, I think they just left without paying.” The officer followed plaintiffs until a marked police car could initiate a traffic stop, during which plaintiffs were handcuffed for several minutes until the manager provided a description of the offending customers that did not match the plaintiffs’ appearance.
The trial court granted summary judgment to the restaurant and manager, but the court of appeals reversed. The court found that the off-duty officer relied entirely on the manager’s mistaken belief that the offending customers occupied the car and did not conduct any additional investigation before making the decision to detain the plaintiffs.
The court of appeals affirmed the denial of summary judgment on the same basis in Corporate Property Investors et al. v. Milon, 249 Ga. App. 699, 549 S.E.2d 157 (2001) In Milon, a police officer arrested the plaintiff customer for shoplifting at a clothing store based solely on the reported observations of a security guard who believed that the plaintiff concealed some clothes and attempted to leave the store. In affirming the trial court’s denial of summary judgment to the security company, the court of appeals admitted that the officer’s decision not to conduct any independent investigation controlled the question of potential liability:
“Had the evidence revealed that [the arresting officer], in fact, made an independent investigation, as was her professional duty to do, and based her decision to arrest [the plaintiff] on her independent investigation and the statement of [the security guard], then there would be a basis upon which professional judgment was exercised, and such would constitute a defense.”
This distinction leads to the disturbing conclusion that the liability of a private entity or person may be created or eliminated based on the conduct of individuals not employed by that entity or person.
Direction or Pressure from A Private Entity Can Create Liability Questions Even With An Independent Investigation by Law Enforcement.
The second type of situation in which a private entity might face liability for detention carried out by law enforcement personnel arises when a company employee attempts to exert some influence over a police officer’s ultimate decision to arrest the plaintiff.
In the case of Adams et al. v. Carlisle et al., 278 Ga. App. 777, 630 S.E.2d 529 (2006), the court of appeals reversed the trial court’s summary judgment in favor of several private entities and individuals for the detention and arrest of the plaintiff customer who was suspected of passing counterfeit bills. The customer in Adams, tendered several $20.00 bills at a business within a mall. When a cashier questioned the customer as to the authenticity of the bills, the customer explained that the bills were old bills in good condition. The cashier called for a manager, who told the customer to leave her contact information so that the business could verify the authenticity of the bills. However, by the time the plaintiff customer reached the parking lot, the manager decided to notify mall security personnel, who then notified the sheriff’s department of the situation. A sheriff’s deputy initiated a traffic stop of the customer’s vehicle and investigated the matter.
After speaking with the witnesses, examining the suspicious bills, and consulting with an investigator at the sheriff’s department, the deputy spoke again with a security guard and the cashier who received the bills. Those conversations were recorded on the deputy’s dashboard camera and revealed that the deputy seemed to believe the explanation provided by the plaintiff customer that the bills were simply older bills in good condition. However, the cashier and the security guard continued to express their doubt as to the truth of the customer’s explanation. Soon after these conversations, the deputy arrested the customer. An evidence custodian and counterfeit currency expert later confirmed that the bills were genuine.
When the plaintiff customer filed suit for false imprisonment, the cashier and the security guard moved for summary judgment and submitted an affidavit of the arresting deputy. The affidavit included testimony that the deputy based his decision to arrest the customer on his independent investigation and professional experience. The trial court granted summary judgment; however, the court of appeals reversed, despite the affidavit. In the opinion, the court reasoned that a question of fact existed as to whether the security guard and the cashier unduly influenced the arresting deputy by questioning his reluctance to arrest the customer during the recorded conversation based on the fact that the deputy initially hesitated to arrest the plaintiff before talking to the cashier and security guard. Thus, the evidence of attempted influence over the deputy created a question as to liability, despite an independent investigation.
Minimizing the Risk for Liability Based on Arrests By Law Enforcement.
The law in Georgia generally indicates that private entities and their employees should provide facts to law enforcement personnel. Additionally, law enforcement officers are to be given the ability to make an independent decision to make an arrest. In fact, the case law suggests that the law enforcement officer should be encouraged to make an investigation and decision so that the private entity or person had no hand in encouraging a final decision for the arrest.