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Print Page Overeager Security Leads Lenox to Court
by Ron Davis

The owners of an Atlanta shopping center must defend against charges of false arrest and malicious prosecution stemming from a shopperís apprehension for suspected shoplifting. But the charges could have been much worse.

The shopping center is Lenox Square, and its owners could have faced a jury trial for assault and battery as a result of the incident involving the shopper. Thatís because one of the centerís security guards was responsible for summoning police and pointing the shopper out to an officer as a shoplifter. The officer, acting on the accusation of the security officer, then handcuffed the shopper, placed him in her patrol car, and drove him to a nearby place of confinement. A state court, however, dropped the charges against the shopper and released him.

In his subsequent lawsuit against the owners of the shopping center, the shopper, an airline pilot, pointed out that he had gone to one of the centerís stores to purchase a present for his wife. He carried a childís black tote bag with him and was assisted there by store personnel.

As the security guard passed the store, she spotted the shopper through the store window and apparently thought she saw him stuff a blouse into the tote bag. She confronted the shopper before summoning police and later said that when the shopper saw her, he "turned around, put the bag down, grabbed the blouse, and put it either back out on the shelf or hung it up."

But the security guard eventually admitted that she never actually witnessed the shopper removing a blouse from his bag. Moreover, she said that when she spotted the shopper putting the blouse in the bag, she was some 45 feet away from him and her view of his actions was through an array of mannequins.

As to the charges of assault and battery by the shopper, the Georgia Court of Appeals explained, "The shopping centerís owners contend that the physical seizure of the shopper and handcuffing of him by the police officer cannot be imputed to them as an assault and battery. We agree, because she was not acting as either an employee or independent contractor for them at the time of the arrest, but in the scope of her official duties."

The judges also ruled, however, that a jury must decide whether the charges of false arrest and malicious prosecution were justified. "The questions of credibility and conflict," they said, "can be resolved only by a jury." (Corporate Property Investors v. Milon, 549 S.E.2d 157 [Ga.App. 2001]) Decision: June 2001 Published: September 2001

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