OT: Standing Up For What's Right - Against Circuit City and the local Police

[Rich Stern]

Rich, just curious--do you feel this way about searches at airports, stadiums, concerts, bars/clubs, etc? I would argue the situation is the same--if you don't want to be searched, don't patronize the airport/stadium/etc. By voluntarily becoming a customer of these establishments, you are agreeing to their rules, which include such searches. Are you saying that the things you carry into an airplane are your possessions, and therefore cannot be searched--but that you should still be able to fly on the plane? Sorry, that ain't the way it works.

Bill, points of law are usually very distinct. When you change the scenario, you change the applicable law.



Public transportation falls under specific federal regulations. Congress has the power to make law regarding public transportation, and the laws they've written say the FAA and NHTSA can write rules carrying the force of law for pubic air, rail and highway travel. If the FAA writes a rule saying I must submit to a search before boarding an aircraft, and that I can be penalized with jail and fines for not doing so, that rule is the same as law. I can be arrested, detained, and searched for violations. This isn't just a sign at the airport.



The same is often true at public venues like sporting arenas, where specific state or local laws regarding access to the facility are in force.

You're free to avoid the search--by simply staying out of the airport. Whether the search occurs as you're entering (as in the airport example) or departing (as in the Circuit City example) is completely irrelevant--by entering the facility, you've consented to the search.

Neither you nor Circuit City is a law making body or law enforcement organization. Neither of you has the power to arrest, search, or otherwise interfere with the free movement of another citizen.



Even if we agree to a contract that says you can search me, you can't use force or imprison me to undertake that search, without violating my civil rights. That's why I can refuse to be searched, and I can expect to leave your home without detainment or interference. A contract does not give you the power to enforce. It only defines an agreement that we hopefully both intend to honor. Only a court can order force be used to execute the terms of the contract.



Hypothetical: We sign a purchase and sale contract that says I will buy your Sport Trac for $10,000 cash, which you will deliver to my house today. You show up with your ST at the appointed time, and I only have $9000. Do you think you have a right to take me hostage and force me to a bank to withdraw another $1000 because the contract says I would pay you that amount? Of course not. You would be guilty of crimes against my person for such an act, despite my having broken the contract. All you can do is drive away after excercising your 1st Amendment right to tell me I'm a jerk. You can go to a court and try to hold me liable. The court decides what force can be used to compel or punish me. You don't have that power in our system of laws.

 

[Mike Hyde]

TJR, in your scenario it sounds like you willing gave your information, so no, the officer had no reason to ask you for proof. As a witness or a complainant, depending on the type or seriousness of the crime you could be required to provide proof.



In Righi's situation, the officer had cause to require him to provide identifying information, not necessarily proof or in this case his driver's license. However, if during the course of his investigation the officer had information (we still don't know what the CC employees told the officer about the incident) or developed information indicating Righi was a suspect in an offense, the officer could have compelled proof of identity from Righi. Or, had Righi wanted to file charges at the scene against the CC employees the officer could compel proof of identity. Unfortunately for the officer, with the limited facts Righi's blog provides, it appears the officer may have put himself in a precarious position.



Oh, I don't remember if it was you or someone else that mentioned people that don't have a driver's license because they never learned to drive, but all states have an ID card they issue for those that don't have a driver's license but want or need an "official" ID card.

 

[Bill V]

Bill, points of law are usually very distinct. When you change the scenario, you change the applicable law.



Public transportation falls under specific federal regulations. Congress has the power to make law regarding public transportation, and the laws they've written say the FAA and NHTSA can write rules carrying the force of law for pubic air, rail and highway travel.

But you and others have been saying that this is a Constitutional question with regard to illegal searches. (Or at least Righi does, and I've been interpretting your responses supporting him to be a continuation of that position.) And the Constitution applies just as much to public transportation as it does to any other aspect of our life in this country. So I'm not buying your arguement that the venue change changes the applicable law, as the applicable law being discussed is the Constitution itself.

Hypothetical: We sign a purchase and sale contract that says I will buy your Sport Trac for $10,000 cash, which you will deliver to my house today. You show up with your ST at the appointed time, and I only have $9000. Do you think you have a right to take me hostage and force me to a bank to withdraw another $1000 because the contract says I would pay you that amount? Of course not.

No, of course not. For a number of reasons. For one, the contract ($10K for the ST) was never completed, and until it is, it is irrelevant. For another, nothing in the contract says anything about taking anyone hostage. But the contract between the customer and Circuit City (and I'm not talking about the purchase transaction--I'm talking about the subject-yourself-to-searches-in-exchange-for-being-admitted-into-the-store contract) explicitly called for the searches.



Tell you what Rich--Let's back off the question of whether Circuit City has a right to detain Righi. Let me instead ask this question, which gets to the heart of where I most strongly disagree with you (or misunderstand you) in this conversation:



Does Circuit City have a right to have a policy that says that,

a) If you enter this store, you are entering into a contract agreeing to allow us to search your property to check for stolen merchandise.

b) If you refuse, we have the right to contact the police, and have them arrest you for breach of contract.

c) When arrested, this breach of contract will be sufficient cause for them to suspect possible theft, thus providing probable cause and allowing them to search you for stolen merchandise.



(OK, I realize that item c wouldn't be a store policy, but the result of police involvement. But you get the idea.)



This is the main point that I'm trying to make--because of their store policies, and because of Righi's implied agreement to those store policies when hi entered the store, his refusal to allow the store to inspect your property was an illegal act, as he breached his store entry contract. On that point alone (ignoring everything else that happened), Righi could have been arrested and charged. The fact that the contents of the bag were his property is irrelevant, as he agreed to a contract allowing an inspection of his property when he entered, which he then breached.



I might be swayed to compromise somewhat regarding what the store could/should have done once Righi breached that contract. But I still steadfastly believe that Circuit City acted properly when they asked to search his bag, and that Righi acted illegally and deserved to be arrested when he refused that search.

 

[Thomas Rogers]

Bill V,



Yes, if Circuit City had such posted policies as you describe, then I think there would be no violation of a person's civil liberties. I believe a store SHOULD have the right to post such policies.



But in the absence of such posted policies (Circuit City has nonesuch, do they?), people should assume they are protected by the laws of this country, and that they therefore won't be subjected to unreasonable searches.



When I walk into a store with a coat on, or with a backpack, or as I walk out with a shopping bag, I assume NO such unstated, unwritten contract that allows the store to search me, or my belongings (including the shopping bag) without cause.



I think that's the issue here. Righi's version of the incident indicates that he was asked to comply with the search (or was it to just show a receipt) without cause and without accusation (which would require cause). That simply should not happen.



TJR

 

[Bill V]

It's been a long time since I've been in a Circuit City, so I can't speak for them, but the two local Best Buys I visit most frequently have such policies posted (along with other store policies) in six-inch-high letters just inside the main entrance. I guess I've always been under the impression that those were corporate-wide store policies, and I was suspecting they were commonplace in the industry.

 

[Rich Stern]

Does Circuit City have a right to have a policy that says that,

a) If you enter this store, you are entering into a contract agreeing to allow us to search your property to check for stolen merchandise.

They can post anything they like. It's their store. The validity of such a contract can only be determined by a court.

b) If you refuse, we have the right to contact the police, and have them arrest you for breach of contract.

Breach of contract is a civil matter. There are not statutes I am aware of that allow the charge of "breach of contract."

c) When arrested, this breach of contract will be sufficient cause for them to suspect possible theft, thus providing probable cause and allowing them to search you for stolen merchandise.

A contract cannot redefine what statutes and case law have already determined is acceptable as "probably cause."

 

[Thomas Rogers]

Seems like this same story is being discussed all over the Interweb: