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Montesinos made the mistake of complaining to a security guard at the Dillard's at the Rivercenter Mall about the inconvenience of having to leave by a door different from the one he and his family had used to enter the store.
It was closing time on New Year's Day, 1997, and Dillard's was shutting down. Montesinos and his family wanted to exit into the mall, and complained to guard James A. Smith when he directed them to another exit. Smith, a San Antonio police officer working off-duty, took offense and shoved Montesinos through the exit doorway. Montesinos pushed back. The officer pulled out his club, began striking Montesinos and put him in a chokehold. Smith shoved Montesinos down onto the sidewalk, handcuffed him and left him lying on his stomach while his wife and children watched. The businessman from Monterrey stopped breathing. He died at a hospital five days later without ever regaining consciousness.
Attorney Stephen Lazor sued Dillard's and Smith on behalf of Montesinos's family. In April 1998 the case was settled for an undisclosed amount for the estate and for Montesinos's widow. The settlement on behalf of his four children was for $1 million.
Two key factors in his favor were that Montesinos hadn't been doing anything wrong and that the officer had a record of abusing people of color in the store, Lazor said. "Dillard's was going to have a harder time getting off," he said.
According to the lawsuit, Dillard's should have known that Smith was unfit to work as a security guard. The suit said the company was negligent in failing to train him properly or to supervise him. It also said that Smith made it a habit to insult African-American and Hispanic shoppers "in a manner calculated to cause physical confrontations and actual fights" and to give Smith an excuse to arrest them.
Security expert McGoey, in a deposition in the case, pointed to a report filed by Smith on one occasion in which he wrote: "While working security at Dillard's in full uniform I observed the [young man] was wearing his hat backwards. I instructed the [young man] to wear his hat in the proper manner. [The young man] then started to create a disturbance," Smith wrote, adding that he then escorted the 20-year-old out of the store and told him he was no longer welcome.
"There is no basis in law and there's no basis in the retail industry that allows a security officer to approach a customer and tell him how to wear his hat, period," McGoey said. And if Dillard's officials reviewed this report they should have pulled Smith in and told him to stop, McGoey said.
The young man with the hat tried to leave, and Smith told him he had to stay. He pushed Smith in the chest and ended up handcuffed and arrested for misdemeanor assault. "This is a classic example of a police officer escalating the situation. The person had done nothing wrong," McGoey said.
After citing several other examples where Smith made what McGoey called bad stops and arrests -- arresting people for using foul language, stopping a black couple because they had a Houston Oilers jacket with them, stopping "a suspicious black male who was suspicious because he spent $400" -- McGoey said: "This is probably the worst case of negligent retention I've ever seen where a person is allowed to do this time after time after time and no one says anything."
McGoey said he has arrested about 1,500 people in his career using his citizen arrest powers and usually without a weapon. He said in 98 out of 100 cases, if he asks people to turn around and be handcuffed, they do so without fighting.
A store hiring guards should find out if they've ever been turned down for a security job or law enforcement position, McGoey said. They should know something about their on-job performance -- if they've had a tendency to apply excessive force or if they've made false arrests, or beaten someone, he said. A referral from another officer just isn't enough, McGoey said.
Dillard's has a handout on its policies and procedures. Store security guidelines are checked every six months, it says, by an independent corporate audit done in partnership with the Arkansas Chapter of the National Conference for Community and Justice. But it still has guards who declare themselves officers at the first opportunity, who handcuff and march minority shoppers through the stores, who draw their guns to chase after someone who has taken a beard trimmer, a shirt or a box of sunglasses.
Dillard's points to its system as a way to inspire confidence among its customers that they will be safe in its stores with plainclothes police officers in ever mindful watch over its shoppers.
One person's sanctuary; another person's gauntlet to run.
Additional reporting provided by Bob Burtman