Apple and its security contractor Security Industry Specialists (SIS) were sued in Massachusetts on Friday as part of a multijurisdictional defamation and malicious prosecution complaint filed on behalf of Ousmane Bah, a New York resident who was mistaken for a shoplifter multiple times in 2018 and 2019.
Per the lawsuit, Apple and SIS acted with reckless disregard for the truth when they incorrectly identified Bah as the culprit of repeated shoplifting incidents at iStores, leading to his unwarranted detention and defamation.
The lawsuit [PDF] in US District Court in Massachusetts seeks to resurrect allegations linked to events in Boston that were previously dismissed in related New York action. In New Jersey, a third case is being heard.
Apple and SIS have a qualified law enforcement privilege that protects them from being sued if they make a mistake in store security-related accusations. They lose that privilege, though, if they demonstrate “reckless disregard for the truth” [PDF] — such as ignoring clear facts.
An SIS VP falsely stated that no SIS employee ever identified Bah to the NYPD or Apple, which is one of the more shocking charges in the case. According to the lawsuit, an exhibit provided as evidence, an email from a SIS employee to an NYPD detective, identifies Bah as a shoplifter.
Apple and SIS are also accused of intentionally deleting video evidence that may have exposed them to criminal and civil culpability for making fraudulent police reports, according to the lawsuit.
It also claims that Bah’s arrest was a result of the use of inaccurate facial-recognition technology in the New York shoplifting events.
Bah, a Black student at Bronx Latin Academy in New York City, earned a New York State temporary learner driver’s permit in March 2018 when he was 17 years old and an honors student. His height, weight, date of birth, and eye color were all listed on the paper, but there was no photo.
He had lost the temporary permission by May of that year, according to the Massachusetts court document, but had gotten a permanent laminated copy with his photograph.
ID or No ID, That is the Question
Apple allegedly detained an individual for stealing store merchandise in Greenwich, Connecticut in April 2018, and identified the individual as Ousmane Bah based on an examination of the temporary learner’s permit he was said to have on him – despite the fact that the ID states, “This temporary document is not to be used for identification purposes.”
The individual arrested, based on the lawsuit, was not Bah, who is 5’7″, but a 6’1″ impostor who was using the stolen temporary learner’s permit. Despite this, Apple employees are reported to have kept some video surveillance evidence and made it available to SIS and Apple Stores in the Northeastern US via an internet system under the name “Ousama Bah” before correcting the spelling.
The Paramus Police Department, on the other hand, appears to have made no further effort to confirm the suspect’s identity, contented with the identification provided by the SIS employee who nabbed the shoplifter. The SIS is also said to have assured authorities that it had video footage.
“Without probable cause, SIS began linking prior thefts in the region involving the impostor to the Plaintiff,” the complaint states, with SIS claiming to police that video of these other thefts, such as one at the Short Hills Apple Store near Millburn, NJ on May 5, 2018, was available to them.
At this time, it’s claimed that SIS circulated a “Be on the Lookout” (BOLO) warning on behalf of Apple that used the impostor’s image but listed “Ousmane Bah” as a “known shoplifter.” This is alleged to have been distributed not only to Apple Stores in the area, but also to local police departments.
Then there was the theft of a dozen Apple Pencils from a Boston Apple Store on May 31, 2018. It is claimed that a SIS employee accused Ousmane Bah – who was not in Massachusetts at the time – of the thefts in his police report, and that there was video to back up his claim.
The video depicted the impostor, not Bah, according to the complaint, and Apple and SIS knew at the time that their identification of Bah was incorrect, therefore they were careless in their accusation.
Bah appeared in Boston Municipal Court in June 2018 to answer the allegations, and his lawyer requested that Apple and SIS show video footage of the thefts to support his client’s innocence. “That the video evidence of the impostor, which would have completely exculpated Ousmane Bah, had been routinely deleted,” Apple told the Suffolk County prosecutor.
The video from a theft in Rockaway, New Jersey, in October 2018 that was mistakenly ascribed to Bah was also removed. Apple and SIS both informed the New York court that neither company had a formal policy on video retention.
And, as it turned out, the footage of the Boston encounter was eventually discovered via the discovery process by Bah’s counsel. It was the impostor, not Bah, who was shown.
The impostor is alleged to have struck at an Apple Store in Freehold, New Jersey, on September 18, 2018, and escaped. A police complaint was submitted on Apple’s behalf by a SIS employee. According to the suit, both Apple and SIS were aware that identification was faulty yet proceeded to accuse Bah nonetheless.
The identity of the impostor would be disclosed in the months ahead, according to the complaint, when he attempted to pass himself off as Bah twice in New York and was detained and booked each times.
“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.”
More Apple Store thefts occurred in October 2018, including the one in Rockaway, New Jersey, and another in Trumbull, Connecticut. Authorities were once again told that Bah was to blame by Apple and the SIS.
Facial Identification Failure
The impostor is also believed to have targeted an Apple Store in Staten Island, New York, in the same month. A New York police investigator posted information of the incident and a screenshot of a store camera to MetrORCA, a reporting site utilized by the NYPD.
Following that, the detective “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 adds that FIS policy states that automated identification is insufficient to provide probable cause for an arrest. After seeing the MetrORCA bulletin, a SIS employee emailed the NYPD detective to inform him that Apple and SIS had identified Bah as the Staten Island thief.
On November 29, 2018, around 0400 ET, the Paramus Police Department detained Bah for the New York thefts, based on a warrant issued by the NYPD.
“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 contradiction that had been detected at the time of the arrest, he was taken into jail. While Bah was still being unfairly convicted in Boston, this happened.
Bah was not the person in Apple’s photos, thus charges against him were dismissed at the New York precinct.
The impostor was captured by SIS employees two days later, on December 1, 2018, while attempting to steal products from an Apple Store in Holyoke, Massachusetts. The suspect’s fingerprints were sent to the FBI’s National Criminal Identification Center, where they were identified as those of Mamadou Barrie.
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 two weeks later.
Around the same time, a separate individual with the identical name “Ousmane Bah,” this time a resident of Willingboro, New Jersey, appeared in a New Jersey court to file charges in connection with the Cherry Hill, New Jersey thefts. The allegations against Ousmane Bah of New York were dropped once it was determined that he was not the thief.
Despite this, Bah’s case was still being prosecuted in several locations as of June 2019.
Attorneys for Bah, Daniel Malis and Subhan Tariq, are suing Apple and SIS in New York, New Jersey, and now Massachusetts.