A NYT Report on Wal-Mart’s Policy Change

While Wal-Mart (and other retailers) should be praised for requiring patrons to wear a mask while patronizing their premises, I have some concerns. My concerns arise from my experience litigating against Wal-Mart, and the lengths they will go to externalize all of their costs. When there is an issue in a Wal-Mart store, the last thing Wal-Mart wants to do is handle it internally.

Generally speaking, Wal-Mart’s policy on shoplifters is to call the police. They do not confront shoplifters and detain them. The preferred policy is to call the police and have the police arrest the shoplifter once that shoplifter has passed the cash registers and left the store. This policy has led to numerous tragedies. People fleeing from police have been involved in high-speed car crashes-in some cases crashes fatal to the innocent passengers in the other car. Wal-Mart also apparently does not have policies regarding shelf size. Nor do they have uniformed security officers patrolling the stores as a deterrent.

So, what is Wal-Mart’s policy going to be when one of those twenty-five percenters refuses to wear a mask and insists on entering the store? Clearly, Wal-Mart is within their rights to ask that person to leave. But, what if that person refuses to leave? We have all seen videos of these refuseniks screaming at staff, threatening other customers, and throwing groceries out of a cart and onto the floor. Under New York Penal Law, these actions constitute Trespass, a violation of §140.05 of the Penal Law, Disorderly Conduct, a violation of §240.20, and possibly Criminal Mischief or Harassment. Is Wal-Mart Security going to intervene and physically eject that person from the store? Is this going to be left up to police?

The answer is likely that the police are going to have to deal with this. This means that additional people could be exposed to the virus. This is also a cost to taxpayers for the police call. What if the responding officer contracts COVID-19 from the shopper he or she is trying to remove? What is Wal-Mart’s liability? Considering Wal-Mart’s “hands off” policies in policing its stores, it is likely that we, the public, are going to have to enforce the behavior ourselves, and pay out of our own pockets for the costs of dealing with mask-deniers.