Apple and its security contractor Security Industry Specialists (SIS) were sued on Friday in Massachusetts as part of a multijurisdictional defamation and malicious prosecution complaint brought on behalf of Ousmane Bah, a New York resident misidentified as a shoplifter multiple times in 2018 and 2019.
The lawsuit contends that Apple and SIS exhibited reckless disregard for the truth by misidentifying Bah as the perpetrator of multiple shoplifting crimes at iStores, leading to his unjustified arrest and to his defamation.
The filing [PDF] in US District Court in Massachusetts aims to revive charges relevant to events in Boston that were excluded from related ongoing litigation in New York. A third related case is being heard in New Jersey.
Apple and SIS have a qualified law enforcement privilege that allows them to err in store security-related accusations and not be sued for it. However, if they exhibit "reckless disregard for the truth" [PDF] – ignoring obvious facts, for example, they lose that privilege.
Among the more startling allegations in the case is that an SIS VP falsely claimed that no SIS employee ever identified Bah to the NYPD or to Apple. The complaint points to an exhibit that's been submitted as evidence, an email from an SIS employee to an NYPD detective does in fact identify Bah as a shoplifter.
The lawsuit also claims that Apple and SIS selectively deleted video evidence that would have exposed them to potential criminal and civil liability for filing false complaints with the police.
In addition, it asserts Bah's apprehension was in part due to the application of unreliable facial-recognition technology in the shoplifting incidents in New York.
Bah, who is Black, obtained a New York State temporary learner driver's permit in March 2018 at the age of 17, when he was an honors student at Bronx Latin Academy, a New York City high school. The document included his height, weight, date of birth, and eye color, but no photograph.
According to the Massachusetts court filing, he had lost the temporary permit by May that year, but had obtained a permanent laminated copy that included his picture.
ID or not ID
In Greenwich, Connecticut in April 2018, Apple allegedly detained an individual for stealing store merchandise and identified the individual as Ousmane Bah based on the examination of the temporary learner's permit he is said to have had on him – this despite the fact that the ID says, "This temporary document is not to be used for identification purposes."
The complaint states that the person detained was not Bah, who is 5'7" but a 6'1" impostor using the lost temporary learner's permit. Nonetheless, Apple personnel are said to have retained some video surveillance evidence and published the record with the name "Ousmane Bah" through an online system to make it available to SIS and Apple Stores in the Northeastern US.
On May 24, 2018, SIS, acting in a security capacity for Apple, apprehended and handcuffed the impostor for allegedly stealing merchandise from a Paramus, New Jersey Apple Store. Again, it's claimed the impostor was carrying Bah's lost learner's permit and identified himself as such to authorities or tried to do so – the detained individual is said to have misspelled his stolen name as "Ousama Bah" before correcting the spelling.
Yet the Paramus Police Department apparently did not make any further effort to verify the suspect's identity, content to accept the identification provided by the SIS employee who apprehended the shoplifter. It's also claimed SIS told authorities it had video evidence.
"Without probable cause, SIS began linking prior thefts in the region involving the impostor to the Plaintiff," the complaint says, with SIS representing to police that video of these other thefts, such as one at the Short Hills Apple Store near Millburn, NJ on May 5, 2018.
At this point, it's alleged that SIS, on behalf of Apple, distributed a "Be on the Lookout" (BOLO) notice with the impostor's image but the name "Ousmane Bah" as a "known shoplifter." This is said to have been sent not only to Apple Stores but to police departments in the region.
Then there was the May 31, 2018 theft of a dozen Apple Pencils from an Apple Store in Boston. It's claimed that an SIS employee in his police report accused Ousmane Bah – who was not in Massachusetts at the time – of the thefts and said there was video to back that up.
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According to the complaint, the video depicted the impostor, not Bah, and Apple and SIS had information at the time that their identification of Bah was unreliable and therefore were reckless in their accusation.
In June 2018, Bah appeared in Boston Municipal Court to answer the charges and his attorney asked Apple and SIS to present the video evidence of the thefts to prove his client's innocence. Apple then told the Suffolk County prosecutor "that the video evidence of the impostor, which would have completely exculpated Ousmane Bah, had been routinely deleted."
The video from an October 2018 theft misattributed to Bah in Rockaway, New Jersey, was also deleted. Apple and SIS are said to have told the New York court that neither firm has any written policy on video retention.
And as it turned out, the video of the Boston incident turned up eventually – Bah's attorneys found it during the discovery process. It showed the impostor, not Bah.
On September 18, 2018, the impostor is said to have struck at an Apple Store in Freehold, New Jersey, and escaped. An SIS employee acting on Apple's behalf again filed a police complaint. The complaint charges that both Apple and SIS knew that identification was unreliable but accused Bah anyway.
The identity of the impostor would be revealed in the following months, the complaint says, when the impostor twice tried to pass himself off as Bah in New York and twice was arrested and booked.
"The arresting officer was able to identify the impostor as Mamadou Barrie, a friend of the Plaintiff, who apparently stole the learner’s permit from the Plaintiff," the complaint says. "These arrests specifically [noted] that Barrie had pretended to be Ousmane Bah."
There were more Apple Store thefts in October 2018, the previously mentioned one in Rockaway, New Jersey, and another incident in Trumbull, Connecticut. Apple and SIS again told authorities that Bah was to blame.
Also that month, the impostor is said to have hit an Apple Store in Staten Island, New York. A New York police detective, it's claimed, published details of the crime and a store video screenshot to a reporting service used by the NYPD called MetrORCA.
The detective subsequently submitted an information request "to the NYPD’s Facial Identification Section (FIS), which identified the photograph as potentially depicting two people, one of whom was purportedly Ousmane Bah – and the other was the actual thief, Mamadou Barrie."
The complaint further notes that FIS policy is that automated identification is not sufficient to provide the probable cause necessary to make an arrest. Shortly thereafter, an SIS employee saw the MetrORCA bulletin and emailed the NYPD detective to tell him that Apple and SIS had identified Bah as the Staten Island thief.
Around 0400 ET, on November 29, 2018, Paramus Police Department, under a warrant obtained by NYPD, arrested Bah for the New York thefts.
"The warrant issued for Bah’s arrest contained the photo of the impostor (now known to be Mamadou Barrie)," the complaint says, adding that "Barrie in no way physically resembles the Plaintiff, other than being Black."
Despite the inconsistency noted at the time of the arrest, police took him into custody. This was while Bah was still being wrongfully prosecuted in Boston.
At the New York precinct, police recognized that Bah was not the individual in Apple's images and charges were dropped.
Two days later, on December 1, 2018, SIS employees apprehended the impostor trying to steal merchandise from an Apple Store in Holyoke, Massachusetts. Holyoke police forwarded the suspects fingerprints to the FBI’s National Criminal Identification Center and they were identified as belonging to Mamadou Barrie.
Yet two weeks later, Bah received a mailed notice of a warrant from the Freehold County District Court for his arrest for the Freehold theft based on the information provided by Apple and SIS.
Around that time, with an SIS employee appearing in a New Jersey court to press charges against the Cherry Hill, New Jersey thefts, a different individual with the same name "Ousmane Bah," this one a resident of Willingboro, New Jersey, showed up for the summons. He was not the thief, the complaint says, and the charges against Ousmane Bah from New York were dropped.
Nonetheless, prosecution against Bah continued in multiple states through June 2019.
Presently, the attorneys representing Bah, Daniel Malis and Subhan Tariq, are pursuing lawsuits against Apple and SIS in New York, New Jersey, and now Massachusetts.
Neither Apple nor SIS responded to requests for comment. ®