Defense Law Articles
By John Dahlberg, Esq.
Dillingham Murphy LLP
San Francisco, California
Grocers do much to help all who enter their stores, including those who are homeless. Grocers often look the other way when the hungry or mentally ill among them steal their food for the first time. They are often reluctant to chase away people who use their bathrooms to clean themselves, even if they leave the premises in a messy condition. They try every day to reason with the unreasonable and calm the irate. Grocers routinely summon ambulances and the police for people in distress, whether they are customers or not.
But grocers cannot solve the homeless problem. Recently, 75,000 or more California men, women and children were unsheltered and homeless. A growing number of these people use grocery stores for their personal hygiene, and for shelter, usually along the sides of grocery store buildings, or even in the privately owned parking lots. Some also beg for money from customers, who become annoyed and sometimes feel threatened. Others steal. Some inject drugs and leave their syringes and other paraphernalia in rest rooms and littering store grounds. A few intimidate employees with violence. Some police departments will help the grocer maintain the store as a pleasant and safe place to shop, but others do not if they respond at all.
When the homeless, or others, disrupt business, frighten customers, and threaten employees, grocers can and should act with vigor to protect their business and their highly valued customers. This Note offers a very brief overview of some things grocers may and should do to discourage access by those people who disrupt business and divert employees from serving customers.
1. Discourage Trespass Through Active Property Maintenance and Patrol
Some homeless trespassers may wish to avoid observation at grocery stores by passing police patrols, or store personnel. They may do this by camping out of sight behind stores, or in the darker areas of parking lots at night. Undetected, some loudly disturb the peace of customers and neighbors, some drink alcoholic beverage to excess, and others inject illegal drugs, leaving garbage, drug paraphernalia, and human waste in their wake. Day-porter garbage removal services should be used as needed promptly to clean up garbage and human waste, as well as abandoned blankets, sleeping bags, cardboard “mattresses” and other personal belongings. Because these materials may be unpleasant or dangerous to handle, it is not an employee job in most cases.
Grocers should consider fencing off areas that cannot readily be seen by passing police officers, and making sure that exterior lights are bright and well-maintained. If the lot is maintained by the landlord, the grocer should meet with its representatives and point out the need for adequate lighting and good maintenance practices. These measures may also include increased foot patrol by shopping center security officers who are authorized by the landlord to tell trespassers to leave the premises.
2. Develop a Strategy with the Police Top Brass if Store Calls for Service Fail
Frustrated grocers assume that the police will not help them. They are often disappointed with the slow response or no response to their calls for service. That unsatisfactory outcome occurs because simple trespass, disturbing the peace and public intoxication are low police priorities, resulting in a slow response time. The underlying problem may be long gone when and if the police show up. The police also will usually not arrest for trespass or disturbing the peace when they appear, and will instead offer only to assist the store manager make a private or “citizen’s arrest,” which at most will result only in an ineffective citation to the offender without subsequent prosecution.
When grocers do not get a good response to their telephone calls for police service, they need to take the initiative to ask to meet with police supervisors, watch commanders, crime prevention officers and mental health liaisons to the homeless, which many departments maintain. If trespass, drug-use, drunkenness and disturbances occur adjacent to store buildings on privately owned parking lots or walkways owned and controlled by landlords, they too should be involved with the grocer in contacting the police hierarchy and special units. Ask the police for frequent patrols, especially near closing time and in the hours of 12AM-6AM. The grocer may wish also to involve its government affairs staff or lawyers to enlist the help of City Council or Board of Supervisor members in order to educate the police fully about the store’s continuing problems.
In addressing trespass problems, many police departments in California will ask the grocer to execute an agreement or other documents authorizing the police to arrest trespassers found on store property after hours. This sounds great, but it comes at a very high possible cost to the grocer. If the responding police or deputies allegedly use excessive force or otherwise allegedly deprive a trespasser of his or her constitutional rights while acting as the agent of the grocer, the trespasser may sue for civil rights violations against the grocer based upon the alleged misconduct of the responding officer. Such claims are often extremely expensive to defend, even when the grocer is dismissed before trial. Such local authorization programs should be examined in depth with the grocer’s attorney and security executives as well as with the local police before the grocer agrees to them.
3. Use the Workplace Violence Statute and Criminal Stay Away Orders to Protect Stores and Customers as Needed
Some people, homeless included, threaten violence and become violent when told to leave a grocery store, or to stop stealing merchandise. “911” calls to the police about threatened or actual violence usually get a fast response.
When police officers and deputies come to the store and contact the offender, always ask them before they leave for the name of the offender and the incident or case number. This information can be used in two complementary ways. First, the grocer’s security staff or lawyer can use the name and case information to contact the Deputy District Attorney (“DDA”) handling the initial court arraignment. The grocer should seek an assurance that the DDA will ask the criminal court for a “criminal stay away order” to keep the offender away from the store, its parking lot and any employees identified in the police report as witnesses or victims. The grocer should also ask the DDA to supply a copy of the stay-away order to be kept at the store in case a responding police officer needs to see it.
Second, the grocer should consider seeking a civil “workplace violence” restraining order in its own name against the offender, who should be identified by his or her true name in the petition. Criminal stay away orders may be dissolved at any time, but workplace violence orders may stay in effect for up to three years, at which time they may be renewed, even if the criminal case is dismissed. Such orders should also be kept at the store for ready reference if the police are called to deal with a violation.
Once a criminal stay away or workplace violence order is issued and served on the offender, it is a crime for that offender knowingly to violate its terms. The police generally are very willing to arrest and transport offenders away from a protected grocery store if they develop probable cause to believe a knowing violation has taken place. When grocers observe violations, or hear that they have recently occurred, they should call the police, and call “911” if the offender is present at or near the store. The police are also generally willing to serve orders on offenders, should that be needed.
4. Dealing with Complaints from Local Government
Many elected officials, including City Attorneys, are under pressure from neighborhood groups to curtail the presence of trespassers. They will sometimes threaten litigation against grocers, claiming that they are not doing enough to discourage the presence of the homeless at stores, which causes a nuisance to neighbors and an inordinate number of calls for police and emergency medical services. These lawsuits can result in fines and even store closures. The nature of such claims and lawsuits, and the grocer’s defenses to them, are beyond the scope of this Note. However, there are things the store can do to be ready to rebut any such claims by local government:
1. Keep a written log of the store’s calls for police services. Note the nature of the call, the date and time the call was made, and when the police responded, if at all. Record the outcome of the call, e.g. the person was taken into custody, was not contacted etc.
2. Document the grocer’s efforts to contact supervisors, watch commanders, homeless liaison officers, and mental health liaison officers, and keep track of action plans that may be discussed and whether they were successful.
3. Where conditions on private property such as poor parking lot lighting need improvement, work with the landlord and property managers to address them.
4. See if homeless people are using nearby private or city, county or state property to camp out. Many homeless people daily camp under nearby freeways, in parklands, in public plazas, and on government facility property because such premises are poorly maintained, seldom policed, and nobody complains about their being present there. If the homeless are visiting the store while living on government property, the grocer usually can show that the local government’s negligent enforcement practices are causing trespass problems at the nearby store. Local government should police its own property by posting fresh signs against trespass, maintaining its property, fencing it, and arresting for any and all violations.
5. Be responsive to contact by the police and local government. A local politician may call the police to ask them to pressure a store. Police command staff or beat cops may come to the store to discuss the problem, and if that occurs, make sure that Company security personnel or others respond promptly. Otherwise, the City might claim to a court that the grocer is not interested in discussing resolution of homeless and related nuisance problems short of litigation.
John Dahlberg, Partner, Dillingham Murphy, LLP
Mr. Dahlberg represents California grocers and other retailers in a wide variety of subjects. He is a graduate of Yale University Law School, and served for eight years as a police officer in Oakland, California.
An abridged version of this article appeared in the Fall 2017 edition of California Grocer.
 California grocers are sophisticated. They do not discriminate against customers based on their status or appearance. Someone who wears old, ratty clothes, or who is somewhat unkempt, may still be a bona fide customer who will not disrupt business. Barring access to any person on the basis of their visual appearance alone could land the grocer on the wrong side of a discrimination lawsuit under the State’s Unruh Civil Rights Act, for one. However, the grocer may deny access to any person who steals, is intoxicated, who causes a disturbance, who otherwise disrupts business, or who has done these things on prior occasions.
 See, for example, the “limited authorization for arrest” form used in the City of Chula Vista at http://www.ci.santa-ana.ca.us/pd/documents/West.pdf. The West Hollywood authorization is at http://www.weho.org/home/showdocument?id=1740. Capitola’s is located at http://www.cityofcapitola.org/sites/default/files/fileattachments/police/page/3862/trespass_letter_and_instructions.pdf. The Los Angeles authorization is at: file:///C:/Users/jnd/Downloads/TrespassAuth_English%20(1).pdf
 Most California counties also maintain websites which tell the user if the offender is currently in the County jail operated by the Sheriff. Knowledge of the offender’s true name is required to access custody information. See, e.g. the Los Angeles County site at https://app5.lasd.org/iic/
 California Code of Civil Procedure Section 527.8 allows any employer to petition a court for a workplace violence restraining order against those respondents who use violence, threats of violence, or harassment against employees in the workplace. Before filing the Petition and its supporting papers, grocers and their attorneys should have the informed consent of employees to name them as witnesses or as “protected employees” in the petition. Respondents, including those who appear to be homeless, can use the internet to identify where employees live once they have the employee’s name.