November 28, 2011
How to Stop Black Friday Mayhem—A Commentary by Adam Cohen
The following commentary was posted on Time.com on November 28, 2011.
How to Stop Black Friday Mayhem
By Adam Cohen
An unidentified Wal-Mart shopper in Porter Ranch, Calif. made national headlines on Black Friday when she sprayed 20 other customers with pepper spray in a battle over marked-down Xboxes. The woman turned herself into police after the incident was broadcast, but she was released without being charged. She was this year’s most talked about Black Friday law-breaker, but far from the only one.
The rise of Black Friday in recent years has spawned two new post-Thanksgiving obsessions: feral mobs of shoppers stampeding into stores in a desperate search for bargains, and television viewers watching at home to see just how crazy and violent the day turns out to be. This year’s mayhem included:
• A robber who shot a shopper in the parking lot of a Wal-Mart in San Leandro, Calif.
• A grandfather in a suburban Phoenix Wal-Mart who ended up bloody and on the floor after police subdued him for alleged shoplifting
• A near-riot over $2 waffle irons at an Arkansas Wal-Mart, which became a viral video
There were many more low points, including the scene in a South Charleston, W.V. Target, where a man collapsed and later died of natural causes — while other shoppers walked around or stepped over him. Thankfully, Black Friday 2011 did not reach the depths of 2008, when a 34-year-old temp worker at a Wal-Mart in Valley Stream, Long Island was trampled to death. But that seems to have been mainly a matter of luck. YouTube is full of videos of mobs of shoppers that could easily have gotten out of control, with tragic results. All of this raises a question: Shouldn’t the law be doing more to rein in the insanity?
To be fair, there is not a lot that can be done about some of it. The worst incidents last week were fairly routine street crimes that happened to occur near retailers on Black Friday. There is bound to be a certain amount of this sort of crime when so many people are out in public with cash and costly merchandise.
But a good part of the misbehavior is a direct result of troubling crowd conditions. When Jdimyrai Damour was trampled to death in Valley Stream in 2008, he was trying to hold back shoppers who were pushing against the store’s glass doors, which cracked under pressure from the throng. Mobs do things like that, and there were plenty of mobs in the stores last week. Retailers swear they have learned from the Valley Stream death, and no doubt they have. Wal-Mart says it has consulted with experts in devising its crowd-management procedures. Other big retailers, including Toys R Us, also say they make customer safety a priority.
But stores have a legal obligation to act with reasonable care towards customers and employees, and videos that have appeared since last Friday suggest that more could be done — including some common-sense measures that could help dial down the insanity. Stores could employ more security staff, who could shepherd customers into well-organized lines. They could give out numbers and wait on customers in order, removing the incentive to shove (and pepper spray) the competition. They could even – imagine it — have enough sales items (or rain checks) on hand for anyone who wanted one.
Damour’s family sued Wal-Mart in 2008 and private lawsuits such as theirs can certainly apply pressure, if juries find that retailers were creating an unreasonably dangerous shopping environment and hit them with large damages. But given how much money retailers rake in on Black Friday — this year is was $11 billion — they might view the rare damage award as just the cost of doing business.
The government should get tougher about imposing safety rules — after the death in Valley Stream in 2008, the Occupational Safety and Health Administration hit Wal-Mart with a fine of just $7,000, hardly an amount calculated to send a strong message to one of the world’s biggest companies. But there has not been much clamoring for it. The media coverage of this year’s Black Friday violence was more bemused than truly outraged.
History teaches us that major regulatory reforms often follow tragedies. Think of the Triangle Shirtwaist Fire of 1911, which launched fire sprinklers and fire drills, or Sept. 11, which led to an overhaul of airplane security. The public appears to be relatively willing to accept pepper-spraying and low-grade unruly mobs as part of an offbeat new holiday tradition. But if there are a few more Valley Streams, or worse, there are likely to be serious calls for reining in the annual shopping pandemonium.
Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are his own.