A premises liability lawsuit where one Dallas police officer died and another was injured has the Texas Supreme Court wondering if there should be a higher security standard for retailers.

Questions raised by the case include whether an off-duty Dallas Police Department officer should have been considered on duty during a confrontation with a trespasser; whether the two responding officers have valid premises liability claims; and whether the firefighter's rule limiting liability of defendants applies.

On April 24, 2018, officers Rogelio Santander Sr. and Crystal Almeida responded to a call from off-duty officer Chad Seward, who was detaining trespass suspect Luis Juarez at a Home Depot USA Inc. store while in the employ of Point 2 Point Global Security.

When Juarez was informed he was to be arrested on an outstanding warrant, he shot and killed Santander and injured Almeida.

Almeida and the estate of Santander sued Seward, Point 2 Point and Home Depot, but the defendants' motion to dismiss was granted and the Dallas Court of Appeals reversed the "take nothing" summary judgment.

In an amicus curiae brief from the Retail Litigation Center Inc., Retail Industry Leaders Association and Texas Retails Association prepared by the Munsch Hardt Kopf & Harr law firm, the industry asserts the court is being asked to require retailers to essentially provide the same level of security that airports enlist to prevent terrorism.

"But the burdens—both in terms of the economic cost to premise owners and in the oppressive climate a police state spawns—would be prohibitive," the industry argues.

David M. Walsh IV of Kershaw Anderson King, representing Point 2 Point and Seward, argued that because Seward was a Dallas police officer and not a security guard, he was obligated to follow department policies once the store loss prevention officer, Scott Painter, involved him in detaining Juarez and therefore he switched from being off duty to being on duty.

The department policy requirements of determining identification, initiating a warrants check and completing departmental paperwork while detaining Juarez were what led to Seward's on-duty status, Walsh insisted.

Justice Brett Busby questioned the exact point at which Seward was no long off duty, noting there was a fact dispute as to whether he performed a Terry frisk for weapons, with Seward claiming he performed the protective frisk when he first approached Juarez.

"If we didn't do a Terry frisk that would be consistent with Home Depot policy. If we did do a Terry frisk that would be an on-duty act. You can't hold a shopkeeper's off-duty officer to on-duty standards," Walsh said. "If you're saying he has to do a frisk, then every shopkeeper must frisk somebody they detain. That can't be the law."

"I think your position is ... anything that's going to lead to a lawsuit is going to be an on-duty act, so you should hire a policeman to do it instead of a private security person because then you're never going to be liable," Busby said.

Arthur K. Smith, representing Home Depot, focused his argument on the duties of the responding officers, noting they entered the store for a purpose that had nothing to do with Home Depot's business and were therefore licensees under the firefighter's rule.

"It was the officers who had the duty not only to protect themselves, but also the property owner and its guests from any risks of harm presented by the criminal suspect," Smith said.

Smith noted the officers did not search or handcuff Juarez upon immediately approaching him, and insisted it can't be Texas law that the property owner critique law enforcement on how to do their job.

"Painter wanted a criminal trespass warning issued. All he wanted Seward to do was take him to the back office, issue the warning, let him leave. Juarez would never have been arrested. Santander and Almeida would never have entered the premises," Smith said.

Busby countered that Home Depot knew, by hiring a police officer, the steps taken would go further than a simple warning.

Niles Illich of Palmer Perlstein argued for the plaintiffs Almeida and Santander.

Illich claimed the duration of Seward's status as an off-duty officer was longer than the defendants' claim because it was Painter who was directing his actions.

It was Painter who witnessed the suspicious activity, not Seward; Painter who called Seward to escort Juarez to the security room; and Painter who instructed Seward to execute a formal criminal trespass warning, Illich said.

It was not until Seward initiated the warrants check that he became an on-duty officer, Illich claimed, but by then the officers were on their way in and negligence had occurred because the Terry frisk had not been done or was done improperly.

"Your friend on the other side said if he did a frisk, he would've been acting as a police officer," Busby said.

Illich disagreed, arguing shopkeepers have every right to perform a body search without invoking police powers. He noted that he had just recently had to go through a pat-down just to get into a football game.

Illich alleged Home Depot's policy to not frisk suspects is simply a poor decision, adding, "It's part of the reasons we have one dead police officer and the other one who caught a bullet."

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