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Wal-Mart Rebuked for Citizen Arrest
by Ron Davis

The guidelines for restricting solicitations at shopping centers in California have gotten a bit more challenging. That’s after a recent California court ruling that gives solicitors more rights—and shopping center owners less.

The ruling results from the arrests of members of a group soliciting signatures from customers of a shopping center in Ukiah. The group was stationed on a median just outside a Wal-Mart store located at the center, and they were attempting to gain support for the legalization of marijuana.

In response to complaints from three Wal-Mart customers, the manager of the store confronted the solicitors and informed them that they were violating rules for petitioning and soliciting.

Wal-Mart has a written policy that restricts solicitors at that store to a four-foot-by-six-foot area near the front entrance. (At the time, however, another group was soliciting signatures there for another cause.) The policy also prohibits “any effort to impede, obstruct or interfere with any customer of the store.”

Based on the complaints from customers, the manager made a citizen arrest of members of the group. Police officers, who were also at the scene, accepted custody of those arrested and took them to the Ukiah Police Department, where they were booked, cited for trespass and released. The local district attorney never filed criminal charges in the case, however.

In the resulting lawsuit against Wal-Mart, a California court ruled that Wal-Mart was within its rights to arrest the solicitors.

On appeal, a California appellate court reversed the lower court decision, explaining, “A private citizen may arrest another for a misdemeanor only when the offense has actually been committed or attempted in his presence. The mere fact that the private person has reasonable cause to believe a misdemeanor offense has been committed or attempted in his presence is not enough…. It is Wal-Mart’s burden to establish that the arrests were made for the lawful purpose of enforcing the law and not for the purpose of suppressing protected speech. Wal-Mart has not sustained that burden.” (Hamburg v. Wal-Mart Stores, Inc., 10 Cal.Rptr. 3d 569)

Decision: March 2004
Published: May 2004



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