The federal appeals court based in Denver agreed last month that a man could sue an off-duty Aurora police officer for seizing items from his pockets at a Walmart store under the mistaken belief they were shoplifted.

William Montgomery has filed a series of state and federal lawsuits based on a similar pattern of events: He enters a big box store, pays for merchandise, does not show his receipt when asked and then files suit after security detains and investigates him. While the defendants characterized his tactics as intentional baiting of security officers, Montgomery argued to the court his conduct was in line with that of other customers.

In the case of Montgomery’s detention at an Aurora Walmart in September 2017, a trial judge previously agreed Montgomery credibly alleged Officer Travis Lore committed a constitutional violation by removing items from Montgomery’s pockets without probable cause. Therefore, Lore was not entitled to qualified immunity, which generally shields government officials from liability unless they violate a person’s clear legal rights.

Lore appealed to the U.S. Court of Appeals for the 10th Circuit, but a three-judge panel sided with Montgomery. Judge Gregory A. Phillips noted that Lore felt the items – a pair of recreational vehicle lights – while patting down Montgomery for weapons, but Lore had no reason at the time to believe the lights were stolen.

“Officer Lore might have suspected that the items in Mr. Montgomery’s pockets were store merchandise that Mr. Montgomery had not paid for,” Phillips wrote in the panel’s Dec. 13 order, “but under the facts as pleaded, he could not confirm that suspicion without removing the RV lights from Mr. Montgomery’s pocket and initiating an investigation.”

Case: Montgomery v. Lore

Decided: December 13, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Gregory A. Phillips (author)

Paul J. Kelly Jr.

Carolyn B. McHugh

Background: Walmart not liable for detaining customer who refused to show receipts, appeals court agrees

According to Montgomery’s lawsuit, he entered the Walmart and bought two packages of cleaning wipes. His pockets also contained the RV lights from a previous shopping trip, which he did not take out. Upon checking out and exiting the store, Lore allegedly stopped Montgomery near his vehicle and asked for Montgomery’s receipt.

Montgomery declined to show it and instead put the wipes in his pockets. Lore escorted him back into the store, patted him down and allegedly acknowledged Montgomery had no weapons on him. Lore removed the wipes from Montgomery’s pockets and informed Montgomery he would issue a shoplifting citation. Lore later removed the RV lights from Montgomery’s pockets and held onto them.

Lore and other officers who were present for the investigation then let Montgomery go. The next day, Lore allegedly called Montgomery to tell him the charges would be dismissed and he could retrieve his property from the police department.

Montgomery, representing himself, sued Lore for multiple violations of the Fourth Amendment, which protects against unreasonable searches and seizures. Last year, U.S. District Court Chief Judge Philip A. Brimmer dismissed the claims related to the wipes, concluding Lore’s own observations gave him probable cause to believe shoplifting had occurred.

“However, the Court finds that defendant lacked reasonable suspicion to detain plaintiff for the RV lights,” Brimmer continued. There were “no allegations in the complaint indicating that defendant had any reason to believe that the objects in plaintiff’s pants pockets were stolen merchandise when defendant conducted the pat down.”

Lore appealed to the 10th Circuit, arguing Montgomery’s own complaint established Lore “immediately” recognized the RV lights as “possible stolen contraband” during the pat-down.

In rejecting that argument, the 10th Circuit panel pointed out the purpose of the pat-down was to detect weapons. But, according to the allegations, Lore did not believe the RV lights to be weapons, nor could could he know whether they were contraband without conducting a more invasive investigation.

Under the U.S. Supreme Court’s precedent, an officer in that situation “may seize only objects whose nature as contraband is apparent without further investigation,” wrote Phillips.

Although Montgomery’s claims against Lore will proceed, his other challenges to in-store detentions have not fared as well. Recently, the state’s Court of Appeals sided against him in similar lawsuits out of Arapahoe and Jefferson counties. One judge’s order described how Montgomery told an officer he “stings” the stores in order to sue for false arrest.

The case is Montgomery v. Lore.