Call it pandemic paranoia, but a Walmart security guard seems to have grossly overreacted to a lone customer’s decision to ignore the store’s COVID-19 protocols and use the closest entrance, rather than walking far out of his way to enter the store. The guard’s request for compliance quickly escalated, and now the customer has filed suit against Walmart and the guard, who he claims assaulted him.
The complaint filed in the U.S. District Court for the Western District of Pennsylvania, alleges that the 69-year-old security guard, Thomas Marak, blocked, pushed, and pepper-sprayed 60-year-old John C. Schirra back on April 9. A criminal trial is also pending against Mr. Marak for the same incident. He faces a charge of simple assault, two counts of disorderly conduct by engaging in fighting, and two counts of physical harassment.
As reported by the Pittsburgh Post-Gazette, the incident unfolded when Mr. Marak stopped Mr. Schirra from entering the store and told him that due to COVID-19 social distancing guidelines, he must enter through another set of doors 40 yards away. Instead of complying, Mr. Schirra attempted to walk around Mr. Marak, who then blocked him with his chest. Again, Mr. Schirra tried to walk around the guard, which is when Mr. Marak told employees to call 911 and, as alleged in the complaint, “violently pushed” the customer “with his right arm, pinning him against a metal post.”
The complaint further alleges that Mr. Marak told Mr. Schirra, “You’re under arrest.” When Mr. Schirra asked what for, the guard told him “assaulting an officer of the law.” Apparently, when not working as a security guard, Mr. Marak serves as a Pennsylvania state constable. Mr. Schirra then tried to move away, but Mr. Marak pepper-sprayed him and chased Mr. Schirra back to his car. Mr. Schirra then called 911 and requested the police. As he waited for officers to arrive, he alleges Mr. Marak pepper-sprayed him again for a “third and prolonged time.”
Upon arrival, Butler Township Police handcuffed Mr. Schirra, but after looking at the security footage of the incident, they released him. Seven weeks later, on May 28, the Butler County district attorney’s office filed criminal charges against Mr. Marak.
The facts as alleged paint a grim picture of unjustified brute force. This is not to say that pandemic protocols were not necessary, or that a customer’s willful refusal to comply wouldn’t put others at elevated risk. But Butler County, Pennsylvania is not Communist China.
Police state tactics have no place in our society. Without any clear evidence that Mr. Schirra’s entrance posed a threat, there was no reason for a physical altercation. But even if it were necessary to bar Mr. Schirra’s way, a guard must exercise greater restraint.
Furthermore, security guards do not have the authority to make arrests. They can only detain suspects who have committed a crime. Mr. Marak was out of line accusing Mr. Schirra of assaulting an officer of the law, because Mr. Marak was not serving in that capacity, was not wearing a police uniform, and had not identified himself as a law enforcement officer. Finally, when Mr. Schirra attempted to leave, the incident was over. Mr. Marak had no basis or authority to pursue him. He certainly had no cause to pepper-spray a man who posed no threat to him or anyone else.
If Mr. Marak is convicted in his criminal trial, that verdict will substantially help Mr. Schirra’s case. But even if Mr. Marak beats those charges, he could still face civil liability, because of the difference in the burden of proof. A criminal conviction requires proof beyond a reasonable doubt, while a civil trial only requires proof by a preponderance of the evidence. Mr. Marak could be found not guilty in his criminal trial, but still, have to pay damages to Mr. Schirra.
Walmart or the security firm that employs Mr. Marak could also face liability. One of the problems with COVID protocols has been the failure to plan for uncooperative individuals. In other words, states and private entities came up with mandates before they thought through how they were going to enforce them.
Negligent planning and poor training of employees are certainly reasons for employers to be held accountable for their employees’ poor behavior. But beyond that negligence, there is also the long-standing legal principle of respondeat superior, which holds employers responsible for the negligence of their workers while on the job.
In his lawsuit, Mr. Schirra seeks damages for assault and battery, as well as intentional infliction of emotional distress.
If you have been assaulted by a security guard, you may be eligible to receive financial compensation for your injuries. But it’s important that you talk to an experienced attorney with a track record of success in these types of cases.
Security guards are not officers of the law. They do not enjoy qualified immunity, nor do their employers have sovereign immunity. That means you can sue the guard individually and the company. To learn more, contact our lawyers online or at 866.836.4684 for a free, confidential consultation.