Caregiver for autistic boy fights theft charge | Attorneys fault loss prevention policy

On July 19, 2010, Marcus Mukai and a young autistic teenager stopped at the Safeway on 320th Street to do some quick shopping.

On July 19, 2010, Marcus Mukai and a young autistic teenager stopped at the Safeway on 320th Street to do some quick shopping.

Mukai was the young man’s DSHS-sponsored caretaker at the time. While they shopped, the teen got increasingly agitated because he was worried the two would miss their usual computer time at the Federal Way 320th Library.

Eventually, according to Mukai and his attorneys, the young man darted out of the store, taking a cart full of unpaid for groceries with him. Because of this, both Mukai and the young man were stopped by in-store loss prevention officers as possible shoplifters. Mukai now faces a charge of theft in the third degree, which can carry a penalty of up to a year in jail or a $5,000 fine.

Mukai is slated to go to trial in late October.

The city prosecuting attorney’s office declined to comment on the case of City of Federal Way v. Marcus Mukai, citing concerns of contaminating any potential juror pool.

“We’re very disappointed, to say the least, that the Federal Way prosecutor has not taken a closer look at this,” said Steven Fogg, one of Mukai’s attorneys. “I don’t have any doubt that any jury that saw these facts would very quickly clear Mr. Mukai.”

Both of Mukai’s attorneys say their client may be the victim of company policies by Phoenix Protective Corporation of Spokane, the employer of the two loss prevention officers.

In depositions of the two Safeway loss prevention officers (LPOs) provided to The Mirror by Mukai’s legal team, a catch-22 is described for the officers within Phoenix. According to the statements of both men, LPOs for Phoenix are not required, but it’s strongly suggested, that they make two “stops” per shift, meaning they have to successfully detain two shoplifters per a 10-hour shift.

However, there’s a fine line, the documents reveal, because if LPOs make a “bad” stop, they face quick reprimands and possible termination.

“What this means is that the loss prevention guys know two things,” Fogg said. “They’ve got to make a certain number of stops per shift, or they (can) lose their job, but they also know if they make a mistake, if they admit they make a mistake, they’ll be fired. In fact, not just fired, but the company will leave them hanging in terms of any civil liability.”

Outside of that, the deposition statements show there are five elements needed by Phoenix LPOs to make a “good” stop. Those elements are to “watch the subject enter the store or aisle,” “watch the subject select the merchandise off the shelf,” “watch the subject conceal, consume or damage the merchandise,” and “maintain surveillance at all times and then watch them exit the store or bypass all points of sale.”

In Mukai’s case, the depositions of both LPOs reveal that they did not achieve all five of these elements when it came to either Mukai or the autistic child he was watching that day, meaning that neither Mukai nor the autistic boy should have been detained.

According to the deposition papers, neither LPO saw the autistic boy select or conceal merchandise, and Mukai did not leave the store with the merchandise.

Fogg and Zach Wagnild, the other attorney representing Mukai in this case, said there is a lack of video surveillance to either corroborate the stories of the two LPOs, or to back their client’s narrative of the events of July 19, 2010.

“The surveillance tape was never looked at by anybody, and we don’t have it now because it’s been recycled,” Fogg said.

The depositions of the two LPOs indicate that surveillance tapes are a tool that can be used by Phoenix LPOs. However, the tapes most often are not used because of complications of requesting the tapes or acquiring the tapes from the companies that contract with Phoenix.

One other detail Mukai and his lawyers have taken issue with is the manner in which reports are filled out by Phoenix LPOs. According to the depositions, the men readily admitted that they used the same report for both Mukai and the autistic boy, and just cut and pasted to change the names, so they would get credit for the separate “stops.”

The deposition statements show the LPOs were made aware of Mukai’s presence by a Safeway employee, who became concerned with Mukai’s behavior when she saw him grabbing empty bags before he started shopping.

For Safeway and Phoenix LPOs, this is a red flag for potential shoplifting, with the logic being someone will take the empty bags, place products in them and walk out of the store, creating the impression they had paid for the groceries because they’re bagged.

Wagnild said grabbing bags before he starts shopping is something Mukai does because of his cultural background.

“Mr. Mukai has never denied that he got the shopping bags before he started shopping. In Asian families, they often times shop for multiple people, so when they do that, they have to have a way to keep things separate,” he said. “They often ring things up separately too, so there’s a receipt for everyone.”

Fogg said he hopes some common sense will come into play soon for his client.

“I can’t imagine the Federal Way prosecutors office…that this is a trial they would want to expend resources on,” he said. “My client, at each step of the way, kept thinking, ‘This will get straightened out, the mistake will get fixed.’ I would hope they revisit the charges, but so far they haven’t, and we really have no choice but to pursue it in court.”