By Jeff Balke
By Ben DuBose
By Ben DuBose
By Sean Pendergast
By Sean Pendergast
By Calvin TerBeek
By Jeff Balke
By Jeff Balke
The bank teller had just moved to Orange in April 2001 to begin training for a branch manager position. McDowell was in a new place, far from family, but he knew one thing he could count on was Dillard's.
"I've been shopping at Dillard's all my life. I know the layout," says McDowell.
He'd ordered some shoes from Dillard's in Baton Rouge, but when they arrived, they were defective. He went to several Dillard's stores trying to exchange them, finally finding a pair of brown shoes at the Dillard's in Beaumont. He was in a rush because he also is a minister and was supposed to speak at a church that weekend. The shoes cost $10 more than he'd already paid, so he approached the manager, asking if he could have a courtesy discount for all the time and effort he'd put into trying to find a replacement. The manager said no, and when McDowell expressed his disappointment, the manager called security.
When McDowell tried to explain what had happened, the security guard told him that he was a police officer and McDowell should shut up. McDowell asked for his name and badge number and tried to leave. "That's it," the officer said. "You're under arrest."
"I knew he was going to handcuff me, but he wanted to throw me to the ground. I didn't want that to happen. How humiliating. I had on my company's shirt, my company's name tag," McDowell said. The officer threw him into a counter. McDowell was taken to jail, where he spent several hours and was charged with disorderly conduct, a class C misdemeanor.
It took him a week to tell his parents what had happened.
Dillard's is the only major department store chain to still use off-duty police officers. Critics say this system just doesn't work -- that officers are trained to apprehend suspects, to deal with them in criminal situations. It takes an entirely different mind-set to see people as customers and to deal with them without handcuffs and guns (see "Hard Sale").
But while managers at Eddie Bauer and other retail chains have stepped away from using law enforcement officers, Dillard's prefers them, telling its managers they need special permission to employ someone else.
And it is these officers working off-duty at Dillard's who have been involved in more deaths than in any other retail chain in the United States. Four of them occurred in Texas.
Chris McGoey, a security consultant for major department stores, says combining off-duty cops with no training and no supervision "sets up an accident waiting to happen.
"You can't employ people that are carrying deadly weapons and just turn them loose without any guidelines, without any limitations on how to act or when not to act."
There are also complaints of racial discrimination against Dillard's. All but one of the men killed in scuffles with Dillard's security were minorities. And most of the complaints filed against Dillard's are from minorities, who say the chain subjects them to a different level of scrutiny than it does white shoppers when they step into one of the Arkansas-based company's stores. Dillard's denies targeting any ethnic group and says any employee who does so "has been and will continue to be disciplined, up to and including dismissal," according to a Dillard's statement.
But others say there is a gap between Dillard's policy and reality. "Race is the motivating factor in the decision to search, stop and detain shoppers at Dillard's," said Houston attorney Cletus P. Ernster III, whose firm has filed more than 100 cases against the chain.
As Ernster sees it, "Dillard's has created an atmosphere where you have a store full of suspects rather than customers."
McDowell, now a Hibernia vice president and living in Houston, is one of 18 plaintiffs who have joined in a case against Dillard's, alleging that the store regularly discriminates against people of color.
It is a charge that has dogged Dillard's for more than a decade -- namely that Dillard's sets up a system whereby sales clerks, managers and security guards target or profile blacks and Hispanics and other minorities, that it regularly accuses them of shoplifting or disorderly conduct without cause, that it doesn't want them in its stores. Dillard's denies the allegations, saying that in 2002, of 261 million total customer visits, 73 million were from minorities. Similar accusations have been made against other stores. Last May Federated Department Stores, owner of Rich's-Macy's and Bloomingdale's, was accused of racial profiling for allegedly targeting minorities as potential shoplifters.
But three crucial factors set Dillard's apart from all other retailers. The first is the sheer number of wrongful arrest, discrimination and other customer complaints. Dillard's says it receives only 150 of those in any given year at its corporate headquarters. Others say the numbers are much higher and that in many cases people don't realize they have legal redress for a bad experience in Dillard's.
The second has been Dillard's historic unwillingness to admit any problem and respond as other retailers have done to community concerns. But this public posturing may be softening a bit. In response to questions from the Houston Press, Dillard's conceded last week that "mistakes and misunderstandings can and do happen Dillard's has never promoted discrimination but has learned that it should continue to do more to prevent it."
The third factor is the deaths. Since 1994, at least six people have died in Dillard's after arguments with security officers. Four of the deaths have been in Texas: Houston, El Paso, San Antonio and Arlington. Two others occurred in Cleveland, Ohio, and Memphis, Tennessee. In all cases but one the victims were minorities. None of the victims had weapons. In some cases shoplifting was suspected; in others, arguments with security guards sparked the fatal encounters. There have been other isolated cases of death-by-security-guard -- in the Detroit area there were cases at a Rite Aid drugstore, a Kroger and a Lord & Taylor -- but Dillard's holds the record.
The suit that includes McDowell is scheduled to go to trial this April. In responding to the suits, Dillard's, in turn, has accused Ernster's firm, Chargois & Ernster, of "attempts to capitalize on race baiting allegations that have not one thing to do with any of the facts."
McDowell was angered and embarrassed by what happened, afraid for his job and his reputation. A prosecutor dismissed the first charge against him. When McDowell initiated his suit against Dillard's and the officer, the arresting officer refiled. This time it went to trial, where jurors found him not guilty. Jurors shook his hand afterward, McDowell said. Throughout, his bank stood behind him.
His suit states that other than a few basic orientation films about the losses Dillard's has had from thefts, the company makes no attempt to put the officers it hires through any specialized training program as security guards. In various depositions, Dillard's officials say they regard the training these people receive as law enforcement officers as vastly superior to anything the retail chain could provide.
Training isn't the only area in which Dillard's relies on law enforcement agencies. Dillard's also doesn't conduct background checks on its officers, saying that whatever the law enforcement agency did to check them out is good enough for it.
In November 2002, suspected shoplifter Guy Wills of Cleveland, Ohio, was killed by Dillard's guard and Maple Heights Police Department officer Jameel Talley. Two years before, that same officer had been fired from his job with another police department for violating deadly-force policies after he shot at a fleeing shoplifting suspect at the same mall.
Wills suffered head injuries that left him with internal bleeding and bruising and a fractured skull. Talley also broke Wills's collarbone in the scuffle at the Dillard's in North Randall, Ohio.
Talley was convicted in June of involuntary manslaughter and sentenced to three years in prison for Wills's death.
The NAACP has launched a few organized demonstrations against Dillard's, to little effect. Dillard's officials have stated in various depositions they see no reason to change their policies.
One attorney, who has tried cases against Dillard's and did not want to be named, said the chain tries not to respond to questions about its activities and added that, in fact, "If blacks were to boycott them, it would not care."
McDowell hasn't been back in a Dillard's since his arrest.
Dillard's represents the life's work of William T. Dillard Sr., the founder and former chief executive who died in 2002. Founded in 1938, the company comprises 338 stores in 29 states and is now run by his sons Bill and Alex. At least one of his daughters is a top officer; there are other family members employed as well. Dillard Sr. was known for his hard work and foresight in developing Dillard's. But that same attention to detail that made him such a success in merchandising also increasingly called him to account for his company's operations, a business that had few minorities at the upper levels of management. Gene Baker, a former Dillard's manager who was deposed last April, said he couldn't remember there ever being an African-American vice president at Dillard's. Another former senior officer at Dillard's charged that Dillard Sr. didn't want to even see African-Americans when he came in to work. In an interview with The Wall Street Journalin 1994, Dillard said his company worked hard to hire minorities, that it did not discriminate against them in hiring or as shoppers. He added, "Frankly we've had better luck with Hispanics than we do with blacks."
Read Hayes, senior consultant for Loss Prevention Solutions Inc., a consulting firm based in Winter Park, Florida, did a national survey in 1997 that found that in more than 100,000 shoplifting incidents across the country, 46.3 percent of shoplifters were white and 32.7 percent were African-American. Dillard's itself says that most of its theft is internal.
So then how does Dillard's explain the demographic data from Jefferson County, Texas? In 2001 the county had an estimated population of 249,640, of which 33.7 percent were African-American. In 299 trespass warnings issued from 1998 to 2002 at the Beaumont Dillard's, 250, or 83.6 percent, went to African-Americans. Trespass warnings are issued by Dillard's to tell people they are no longer wanted in its stores and will be prosecuted if they return.
Dillard's family members own 99 percent of the Class B voting stock and elect two-thirds of the company's directors, according to a December Hoovers Online report. In March, conservative African-American and former U.S. congressman J.C. Watts became the second minority member of Dillard's 12-person board.
Dillard's stock price has sunk in recent years. Experts said that has nothing to do with allegations of retail racism. Analysts said its disinclination to put its merchandise on sale has hurt it, as well as not doing much to change the way it presents its stores, considered somewhat dull by some customers. Although its shares traded above $50 in the early '90s, in December it was trading at $15.75 on the New York Stock Exchange.
A 1999 Wall Street Journal article said there was "a long history of strife between the company and minority groups." It also has a long history of not wanting to talk with the press. Corporate spokeswoman Julie Bull initially said she would respond to questions faxed to her by the Press. After having those questions for a week, Bull said she had turned them over to Dillard's legal department. The legal department did not answer the questions either, although an independent publicist, Skip Rutherford, provided a Dillard's response more than two weeks after the questions were first posed to Dillard's. The responses did not address any questions involving litigation. (see "Head Ways").
In a 1984 lawsuit, Archie Crittenden, who'd been vice president for personnel when he was fired in 1983, said Dillard's discriminated against blacks in its hiring policies. Crittenden said all personnel policies were signed off on by William Dillard Sr. and Ray Kemp, vice chairman. Crittenden said he heard from Dillard and Kemp on several occasions that he "was not to hire any more blacks."
According to Crittenden, in a meeting in 1982, discussion turned to the presence of African-Americans in the corporate offices. It was discussed and approved that a black employee should be moved back further in the department so Dillard Sr. wouldn't see her when he entered the building. Crittenden lost his lawsuit but did some damage to Dillard's reputation.
In July 2001, Dillard's agreed to pay $5.6 million to settle a discrimination lawsuit filed by black employees. About 1,000 current and former employees from Kansas and Missouri were covered in the action.
The NAACP regional office in St. Louis in 1985 led a "selective buying campaign" against Dillard's. One of the concerns was that Dillard's catalogs featured only white models.
In 1998, after complaints in Kansas City, Missouri, general counsel Paul Schroeder wrote a letter on behalf of Dillard's pledging its commitment to good race relations with its customers and employees. In it, he said Dillard's would emphasize its prohibition against targeting minority shoppers. A committee was formed of Dillard's personnel and community representatives to chart its progress in establishing better relations, but nothing much ever came of it. The NAACP has expelled Dillard's from its Fair Share program and in 2003 once again gave it an F for its diversity efforts.
Dillard's is dogged in fighting lawsuits. Paula Hampton, an African-American human resources manager at Babies "R" Us won a $1.2 million jury award against Dillard's. The store had kept her from claiming a cologne sample and she was detained by a guard for suspected shoplifting in Overland Park, Kansas. Dillard's took the case all the way to the U.S. Supreme Court, which refused to hear it in February 2002.
Sometimes it is Dillard's own employees who are most critical of its operations. Debra L. Brown was an area sales manager at the Bonita Lakes Mall in Meridian, Mississippi, until she was fired on January 31, 2001, for allegedly trying to steal a pair of $16.99 capri pants. Brown says she actually was terminated in retaliation for her opposition to Dillard's "policies of harassing minority customers of the store through the use of excessive security practices."
In a deposition last October 30, Brown described a scene involving Antonio McDyess, who played for the Denver Nuggets in 2001. She said she was on the other side of the store when she got a call to come back to the children's department. The description she got when she called in to security was: "Young black male, sagging pants, bushy hair, expensive jewelry Dope runner. Looking like a dope runner in there."
She went to the department and found two men, both collecting a lot of clothes, being shadowed by sales clerks. She went up to the bushy-haired man, who told her, "Ma'am, I don't have any intentions of leaving your department or the store without paying for this merchandise. I'm just shopping." She backed away. She got another call saying: "You need to come back over here. We're getting ready to pull him down." A clerk called again, saying the man was trying to pass a bad check. She asked how the clerk knew it was going to be bad. "Well, it's going to be for about $3,700," Brown said the clerk told her. When Brown got the check she said, "My hand started to shake because I saw that it said Antonio McDyess and it gave the NBA team that he was with." Turns out, Brown said, McDyess had just come from two and a half hours of basketball instruction with inner-city youth.
Ernster has collected other notarized statements of alleged discrimination against customers from Dillard's employees. From the Dillard's Tyler store, dockworker Dennis March and sales clerk Ollie Fay Oliver said that while black customers were detained and handcuffed in the store in full view of other shoppers, this was not done with white customers. Gloria Tilley, a Dillard's sales clerk for more than ten years, said, "I was instructed that if two or more blacks came into the store, I was supposed to watch them. I was also told that blacks wearing leather coats had to be watched."
Paul Schroeder, Dillard's general counsel, said in a 2001 deposition that the primary reason Dillard's executives employ police officers as security guards is that when they expand into a new area, they don't have any personal knowledge of the community. "We believe that within that community there already exists a group of professionally trained peace officers who provide that very community with exactly the same safe environment in which to live and to work and to raise their kids So our belief is that to use the same law enforcement peace officers that the community has chosen to protect its most valuable and precious asset, its children, is the right thing for us to do."
Schroeder's concern for children is telling, given how Dillard's chooses to deal with them in its stores. Last March 23, LaPrecious Powell, 16, her sister Kellie LeDay, 13, and their nephew Jo'Mari Davis, then 12 months, went to Dillard's men's stores in Beaumont with 17-year-old Joseph McCarty, Powell's boyfriend. Powell and McCarty were going to a school dance that night and they knew Dillard's had nice clothes.
They walked around for a while, holding different shirts up against themselves and then deciding they really didn't like anything and would go to another store.
Suddenly, Officer Jay Waggoner appeared and according to Powell said: "Why are y'all stealing? You need to leave the store." The security guard didn't search them, didn't try to check their bags, just accused them of stealing and told them to leave. As they were going out, Powell said, Waggoner came up close behind her, saying: "I don't want to make you have nightmares in your sleep. I'll put the law in your life." The kids wanted to leave the store the way they'd come in, to go directly to their car. Instead, Waggoner made them go out the long way. He followed them all the way to their car.
LeDay was crying by the time they got home to their mother, Jackie Renfro. Powell said she had nightmares with Waggoner's face in them for days. Renfro, the mother of four daughters, said the girls, both cheerleaders at their schools, had never been in trouble.
Ethel Wilson, Joseph McCarty's mother, was furious. She went to see the Dillard's manager. "I said they didn't steal anything. They had money. Joseph had just gotten his income tax check. They were going to a dance. Stealing was the last thing on their minds." She also went to the police internal affairs division, where she was told Waggoner was a good Christian. Nothing happened.
It is not at all unusual for Dillard's security guards to question juveniles without their parents being present, even when the parents are nearby and request to be present at the interview.
Sixteen-year-old Jeremy Perez of Houston went to Deerbrook Mall with his mother and sister in July 2000. Splitting up from his family, he went to the men's department, where he tried on some shirts. He was heading back to his mother when a security guard ordered Perez to come with him. Perez's mother asked to accompany him, but the security officer refused. He was taken to a back room where officers from the Humble Police Department searched him. He was asked if he was with "the other black boys." No stolen merchandise was found.
Randy Haynes of Port Arthur went to Dillard's to get clothes for his 19th birthday. He was accused of shoplifting by an officer who asked to look in Haynes's pants. The guard took him to a back office and patted him down in front of his crying 14-year-old sister.
Michaela Reneae Merrick was 11 when she was accused of shoplifting a bathing suit at the Dillard's at the Mall of Abilene. Paraded through the store on her way to being questioned, the preteen asked to call her mother and the Dillard's employee said no. No stolen merchandise was found.
Sisters LaQuan Stallworth and Charity Edwards were shopping at Dillard's Parkdale Mall in Beaumont in February 2001 when they also were confronted by security guard Waggoner.
Stallworth, who plays professional basketball overseas, and Edwards, who works as a cashier, said Waggoner accused them of shoplifting without cause, threatened to take them to jail and pushed them out of the store.
Waggoner, an 18-year officer with the Beaumont Police Department, gave a different accounting at his May 22 deposition. Glancing over a grouping of hanging clothes, Waggoner said, he saw sudden movement.
"I'm a hunter. I deer hunt and so motion catches my eyes. And I all of a sudden saw this hand take three shirts down." Waggoner said when he went over to talk with the girls they no longer had the shirts and he found them later crumpled up on the shelf they came from.
The two left the store, then returned to make a complaint about Waggoner's watching them. One woman "adopted a southern plantation slave type of voice and yelled out real loud that she guessed we don't want black folks in our store," Waggoner said, which he added offended him, as race has nothing to do with his actions as a security guard. He said because they were acting so belligerently, he wanted them to leave the store instead of being arrested. He did put his hands on one woman's arm and back, but did nothing to hurt them, he said.
Dillard's said it has made internal changes to identify employees "who may need additional training in customer relations." It updated its harassment policy to enable complainants and witnesses to contact the corporate legal office directly instead of going through the local store.
Dillard's has even hired professionals posing as shoppers to record their experiences in stores and says the results were very positive for Dillard's.
Suspected shoplifters must be allowed to exit the store to make sure they are, in fact, shoplifting, Dillard's tells its personnel. Dillard's policies also forbid strip searches and say that handcuffs should not be used unless a suspect poses a threat to customers or to Dillard's personnel. Suspects can be detained for a reasonable amount of time in order to conduct a reasonable investigation. Employees are supposed to approach a customer only after they believe that merchandise has been removed; it is not enough merely to be suspicious of his motives or behavior.
Again, whether these policies are actually carried out is another question. In 1997, a well-dressed African-American woman was strip-searched in a Dillard's in Cleveland, Ohio. No stolen articles were found.
In a 1999 case in Arlington, Texas, a security guard ended up running through the store filled with shoppers, firing at the escaping shoplifter as he chased him onto an elevator.
Roy Don Bearden had boosted a beard trimmer from a nearby Sears store. Caught hiding in a clothing rack in Dillard's, Bearden ran from guard Keith Humphrey, an Arlington police officer working off-duty in the store. Humphrey ended up shooting Bearden four times, killing him. Police said Bearden had threatened to kill Humphrey. A judge dismissed the case, saying it was clear that Humphrey was acting as a police officer.
And as Waggoner testified in his May deposition: "I don't go with all the things that they expect you to go with though on these things. Well like handcuffing prisoners; they don't want you to handcuff a prisoner at the point of arrest out in the store. However, if I feel like for my own safety and the safety of the prisoner requires it, I'm going to handcuff them. So far they haven't fired me for that. But I -- we don't -- enforce house rules Our policy is you handcuff prisoners."
Houston was the site for one of the most horrific deaths by security guards. A 37-year-old regular Dillard's customer went into its Galleria store and within just a few hours had been trussed up like an animal for slaughter -- handcuffed, hog-tied, his mouth taped shut. Wheeled off the floor in a flatbed dolly, he died in a hospital two days later.
What made it all more incredible was that Darryl Robinson was a churchgoing married man in his mid-thirties who had never been in trouble. A second-generation, off-the-farm-from-Louisiana black man, Robinson drove a delivery truck for a living. On June 1, 1994, he'd gone to church and then headed to Dillard's.
Dillard's maintained that Robinson had undergone a psychotic episode, that he demanded $1 million from a store clerk and jumped up on a counter. Robinson family attorneys agreed there had been an argument but said it occurred while he was trying to withdraw money on a credit card in Dillard's customer service department.
Until recently, Dillard's has not used security cameras in its stores and only now is beginning to introduce them, according to Gene Baker, Dillard's general merchandise manager for Texas, who was deposed last April 24. What this means, Ernster said, is that any dispute over how someone was treated would be a swearing match between the officers involved and the customers. And juries have a tendency to believe police officers.
Denise Robinson, Darryl's widow, didn't know what had happened with her husband, but the Dillard's version didn't fit even if there were 14 affidavits supporting its story and none against it. Denise Robinson made the rounds of attorneys and finally came to the law firm of Doyle, Restrepo, Harvin & Robbins, which took the case just before the statute of limitations ran out.
Initially, Dillard's said Robinson had been high on drugs, but the toxicology report showed nothing, said attorney James Doyle. Later Dillard's said Robinson was mentally ill.
Doyle's firm found another witness in employee Marilyn Steltz, and a different story emerged. She said Robinson volunteered to leave the store after an encounter with assistant manager Kim Wetzel, who'd been called in to settle the dispute between the customer and the sales clerk. Steltz testified that Wetzel was known to be confrontational. She said she heard the argument and saw portions of it but never saw Robinson up on a counter. When security guards Jeff Robinson (no relation) and Collier Bridges showed up, Robinson told them he was kidding, tried to leave and apologized to the clerk and manager. The guards restrained him and forced him into the Dillard's back offices.
According to testimony, the officers began to beat Robinson and "slam his body against the walls, furniture and floor." Wetzel ran out of the office, looking for boxing tape.
They cuffed his hands behind his back, taped his legs and arms and slammed his face against the floor several times, the suit said.
Robinson began have difficulty breathing. The assistant manager was seen on top of him, riding him like a "bucking bronco," according to another witness. There was blood on the carpeting. Other officers arrived; an ambulance was called. Dillard's employee James Turk testified that "foam and stuff" was coming out of Robinson's mouth. At one point, five officers were holding down Robinson. Placed on life support at Ben Taub General Hospital, he was taken off two days later and pronounced dead. A coroner ruled he died of a heart attack. But an expert brought in by the Robinson side said Robinson had died of "positional asphyxiation," brought on by the hog-tying, his fear and the officers' weight.
On May 10, 2001, after deliberating four and a half days, a jury found Dillard's and the sheriff's deputies were negligent in Robinson's death. The Robinson family received a court award of $800,000 plus interest, which lawyers said should have increased it to about $1.5 million. The jury found that the deputies were acting not as sheriff's deputies at the time of the incident but as Dillard's employees.
As reported in the Houston Chronicleat the time, Dillard's local attorney, Brock Akers, said the award to the family was modest and that Dillard's was not disappointed in the result.
The 14th Court of Appeals also took Dillard's and the officers to task, in a majority opinion written by Justice Don Wittig. He was critical of the officers for failing to come to the immediate aid of Robinson once it was clear he was having difficulty breathing. In a rare action, the justices found that the Dillard's appeal was frivolous -- meaning the company should have known it had nothing to present that would change the court's mind -- and fined it and the other defendants a total of $10,000.
Until the U.S. Supreme Court decides to take on the issue of the dual identity of off-duty law enforcement officers working as security guards in stores, nothing definitive will be decided for the country as a whole, attorney Doyle said.
In a case at the Dillard's in Memphis, Tennessee, a security guard shot and killed Alton Anderson, a known gang member and suspected shoplifter, by firing into the car Anderson and his friends jumped into. Police said the shooting was justified because Anderson's group was trying to run over one of the guards. Anderson died on July 9, 1995, as a result of the shooting. All officers were exonerated.
El Paso was another Dillard's location where a security guard followed a suspected shoplifter out to the parking lot and shot him.
Raul Moreno, a known shoplifter, picked up a box of sunglasses at Dillard's in Sunland Park Mall on July 17, 2000, and was spotted by Tyler Grossman, a Dillard's security guard and off-duty El Paso police officer.
Following procedure, Grossman watched Moreno take the package out of the store, he said in his deposition. He followed Moreno, losing sight of him for a while and then finding him in the parking lot ready to drive away. The plainclothes Grossman pulled his nine-millimeter automatic pistol, reached through the passenger window and ended up shooting Moreno five times, killing him. Moreno, who was in his late twenties, left behind a wife and two children.
Doyle and Houston attorney Roger Rider had worked together on the Robinson case and were asked to enter this case as well; their investigation found some inconsistencies. Officer Grossman argued he was in fear for his life when he fired, that he'd become caught in the window and he thought Moreno was reaching for his gun in the right-hand corner of the car. Doyle said that to be consistent with the accounting of events that Grossman gave, the entry wounds should have been front to back; instead they were side and back to front. Doyle found a witness who said that after he heard the shots, he saw the officer trailing behind the moving car, not stuck inside it.
But all of that never got argued before a jury.
The suit, initiated by another attorney, was originally filed in federal court, alleging that Moreno's civil rights had been violated. They later refiled in state court and sued the police officer.
Dillard's denied every allegation in the lawsuit and argued that refiling the case in state court was, in essence, litigating the same claim twice, a form of double jeopardy. It also argued that Grossman was acting fully within his rights as a police officer and that when he shot Moreno he was acting as a police officer, not as a Dillard's employee. The judge in that case agreed and granted summary judgment for Dillard's in November 2003.
Moreno had been arrested more than once for shoplifting. One time, an unarmed Kmart sales associate followed him out to the parking lot and asked him to come back inside the store, which he did, Doyle said.
So why did Moreno have to be shot to stop him, Doyle asked.
The failure to instill a system of background checks and accountability was a large part of why Dillard's settled a wrongful death case filed against it by the family of Eli Montesinos Delgado, a Mexican on vacation with his family in San Antonio.
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