Smith v. Wal-Mart Stores

United States Court of Appeals
for the Fifth Circuit

No. 19-20818

Khalidah Jy Smith,

Plaintiff—Appellant,

versus

Wal-Mart Stores, Incorporated,

Defendant—Appellee.

Appeal from the United States District Court
for the Southern District of Texas
No. 4:17-CV-2579

Before Higginbotham, Smith, and Dennis, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Mariely Alamo, a Wal-Mart employee, incorrectly identified Khalidah
Smith as a shoplifting suspect in a photo lineup. After police realized the
mistake and dropped charges, she brought several claims against Wal-Mart,
including defamation. The district court granted summary judgment for
Wal-Mart against all of Smith’s claims. She appeals only the summary judg-
ment on her defamation claim. We affirm.
I.
In May 2016, two suspects tried to steal two televisions and a bedsheet
United States Court of Appeals
Fifth Circuit
FILED
November 24, 2020

Lyle W. Cayce
Clerk
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No. 19-20818
2
from the Wal-Mart store where Alamo worked as an Asset Protection Man-
ager. Alamo and her colleague approached the shoplifters after they exited
the store without paying. The suspects abandoned the merchandise, fled into
a waiting car, and quickly departed. Alamo did not pursue the suspects but
recorded the car’s license plate number.
Per Wal-Mart policy, Alamo contacted law enforcement, providing
the plate number and a description of the suspects. Later that day, a police
officer interviewed the driver and a passenger, each of whom confirmed
having driven two friends, whom they named, to and from the Wal-Mart.
The officer’s search for the female name yielded only one result—Smith’s
driver’s license. The officer showed a picture of Smith’s license to the driver
and passenger, who both stated that the pictured Smith was one of the friends
they had driven to Wal-Mart.
Six days later, the police conducted a photo lineup. Alamo and her
colleague viewed the lineup that included Smith’s picture. Alamo identified
Smith as the shoplifting suspect. Although Wal-Mart had video footage of
the suspects in the store, Alamo did not review it before identifying Smith,
testifying later that a review was unnecessary because she could already
remember the suspect.
Smith was charged in June 2016 with theft, first learning of the inci-
dent when she received a summons by mail. She surrendered and was re-
leased the same day on bail. A few days later, the District Attorney dismissed
the charges after discovering that Smith was wrongly identified as a suspect.
Smith sued the Harris County Sheriff’s Office and Wal-Mart in state
court, alleging malicious prosecution, false arrest, defamation, negligence,
and gross negligence. After the court dismissed the Sheriff’s Office, Wal-
Mart removed to federal court based on diversity jurisdiction.
The district court granted summary judgment on all of Smith’s
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claims. Smith appeals only as to defamation.
II.
A.
Smith contends that Wal-Mart defamed her when its employee incor-
rectly identified her in the photo lineup. To establish a defamation claim
under Texas law, a plaintiff must prove that “(1) the defendant published a
false statement; (2) that defamed the plaintiff; (3) with the requisite degree
of fault regarding the truth of the statement (negligence if the plaintiff is a
private individual); and (4) damages, unless the statement constitutes defa-
mation per se.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017). A false
statement accusing a person of a crime is defamation per se, so a plaintiff in
such a case need not prove damages. Pitts & Collard, L.L.P. v. Schecter,
369 S.W.3d 301, 329 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Because Smith is a private individual, the required level of fault to
satisfy the third element would normally be negligence. Bedford, 520 S.W.3d
at 904. But Wal-Mart invoked the defense of qualified privilege, so the stan-
dard is “actual malice.” Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d
640, 646 (Tex. 1995). The parties do not dispute that the privilege applies
here.
1

Under Texas law, qualified privilege is an affirmative defense against
a defamation claim. French v. French, 385 S.W.3d 61, 73 (Tex. App.—Waco
2012, pet. denied). “To be entitled to the qualified privilege, the person mak-
ing the statement must make it in good faith on a subject matter in which the

1
The district court did not decide whether Smith established a prima facie case of
defamation; instead, it proceeded to the question of qualified privilege. Wal-Mart also does
not address whether Smith established a prima facie case of defamation, contesting only the
qualified-privilege question.
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speaker has a common interest with the other person, or with reference to
which the speaker has a duty to communicate to the other.” Grant v. Stop-
N-Go Mkt. of Tex., Inc., 994 S.W.2d 867, 874 (Tex. App.—Houston [1st
Dist.] 1999, no pet.). Reporting a crime to the police falls within the qualified
privilege. Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 610 (Tex.
App.—San Antonio 2018, pet. denied).
To overcome the qualified privilege and prevail in a defamation case,
the plaintiff must prove that the defendant made the relevant statement with
actual malice. Randall’s, 891 S.W.2d at 646. A speaker makes a statement
with actual malice if it is with “knowledge of its falsity or with reckless
disregard as to its truth.” Id. Malice is a subjective standard: The “crux of
the actual-malice inquiry is whether the defendant subjectively has signifi-
cant doubt about the truth of his statements at the time they are made.”
Frakes v. Crete Carrier Corp., 579 F.3d 426, 431 (5th Cir. 2009) (cleaned up).
B.
“To survive a summary judgment motion based on qualified privilege
in federal court, the plaintiff has the burden of establishing malice by clear
and convincing evidence.” Warren v. FNMA, 932 F.3d 378, 386 (5th Cir.
2019). Smith “therefore need[s] to raise a genuine dispute of material fact as
to whether” Alamo’s identification of her in the photo lineup “was made
with actual malice.” Id. Smith makes several contentions in her claim that
there is a genuine dispute of material fact as to whether Alamo made her
statement with malice, but none succeeds.
First, Smith claims that a fact finder could determine that Alamo was
reckless in identifying her in the photo lineup because Alamo knew the sus-
pect had a facial piercing, while Smith’s lineup picture showed no such pierc-
ing. Smith further avers that, even though a facial piercing can be removed,
it might leave a scar that would be visible in a photo lineup.
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Smith’s contention is unavailing. There is no evidence in the record
regarding the size or prominence of the piercing. Moreover, it is not readily
apparent in a still frame from the video footage of the suspect: It may have
been small enough that it would not leave scarring that is discernible in a
photo lineup. Alamo could easily have been confident in her identification
despite the absence of a facial piercing in the photo lineup; thus, Smith’s
contention fails to show malice.
Similarly, Smith asserts that Alamo identified her with malice because
Smith’s complexion in the photo lineup is lighter than the suspect’s. Smith
bases her assertion on Alamo’s testimony that the suspect had a complexion
that was similar to or “a little darker” than her own. Smith asserts that
Alamo, who is also black, has a darker complexion than did Smith’s picture
in the photo lineup, and, thus, there is reason to believe that Alamo harbored
serious doubts when she identified Smith.
Smith’s contention here, too, fails. First, the record does not suggest
a large discrepancy between Alamo’s description of the suspect and her iden-
tification of Smith. At most, Alamo’s testimony shows that she believed the
suspect’s complexion was “a little darker” than her own, while Smith’s is “a
little lighter.” The perceived difference is small and not enough to show that
Alamo had significant doubts about the accuracy of her choice.
Moreover, even if Alamo believed the suspect’s complexion was
darker than Smith’s in the photo lineup, it still would not show that Alamo
had significant doubt, given that picture quality and lighting can alter an
apparent complexion. Indeed, Texas courts have noted that complexion in
photo lineups can diverge from suspects’ actual complexions. For instance,
in McGee v. State, No. 14-14-00404-CR, 2015 WL 9598870, at *4 (Tex.
App.—Houston [14th Dist.] Dec. 31, 2015, no pet.) (mem. op.), the court
observed that lighting affected a person’s perceived complexion, stating “our
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examination of the array reveals that the lighting cast on three other partici-
pants makes their complexions appear as light as appellant’s and the two re-
maining participants do not have such distinctly dissimilar complexions than
appellant’s . . . .”
2
Texas courts have acknowledged variations between a
person’s actual and photographed complexion, finding that such differences
do not necessarily render photo lineups unreliable.
Neither does such a small discrepancy here mean that Alamo had sub-
stantial doubts about her own memory. As the record shows, the potential
difference in complexion was relatively small, and, even if Alamo did per-
ceive a difference in complexion between Smith and her memory of the sus-
pect, Alamo easily could have attributed it to normal variations in photograph
quality and light exposure.
Smith next contends that Alamo demonstrated malice by failing to
review security footage of the suspect before identifying Smith in the lineup.
Smith points out that Alamo knew Wal-Mart had such footage and, thus, her
failure to review it demonstrated a reckless disregard for the truth.
Smith’s contention here also fails. In her testimony, Alamo explained
why she did not review the tapes, stating, “I remember what I saw myself.”
Moreover, there is no evidence in the record to suggest that Alamo generally
reviewed footage before identifying shoplifters. Such an omission might be
negligent, but “the failure to investigate the facts before speaking as a reason-
ably prudent person would do is not, standing alone, evidence of a reckless
disregard for the truth.” Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002).
Thus, Smith’s failure to review the video footage does not show malice.

2
Similarly, the court held in Brown v. State, 64 S.W.3d 94, 100–01 (Tex. App.—
Austin 2001, no pet.), that a photo lineup where a suspect’s complexion appeared lighter
on account of overexposure was not impermissibly suggestive.
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Finally, Smith asserts that Alamo’s testimony should not be trusted,
making a number of attacks on her credibility and contending that there is,
therefore, a genuine dispute of fact as to whether Alamo had a reckless dis-
regard of the truth when she identified Smith. None of those attacks demon-
strates malice.
First, in an attempt both to undermine Alamo’s credibility and to es-
tablish malice, Smith points out that Alamo identified Smith in the photo
lineup six days after the shoplifting incident. Smith contends that Alamo has
conceded that her memory of the suspect by that time was less strong than it
was on the day of the event. Smith further observes that, in her testimony,
Alamo mistook the time lapse between the shoplifting incident and the photo
lineup, initially claiming that they took place on the same day instead of six
days apart.
Even if Alamo conceded that her memory was less clear after six days,
3

such an admission would suggest only that perhaps she should have been less
confident in her identification; it does not show that she actually harbored
substantial doubts. Furthermore, it is not relevant to the question of malice
that Alamo misremembered the timing of the photo lineup. Indeed, the dep-
osition in which she made that mistake took place nearly three years after the
events in question. That she misremembered the timing three years later
does not provide evidence that Alamo spoke with malice at the time.
Second, Smith asserts that, because Alamo’s team apprehends a high
number of shoplifters each month, it is likely that Alamo harbored significant
doubts when she identified Smith as a suspect. Smith contends that Alamo’s

3
As Wal-Mart points out, Alamo never actually made such a concession about her
own memory. She did not say that her memory was less clear six days later—she only
agreed in the abstract that a person’s memory could be reduced over time.
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team catches about sixty shoplifters a month and that, in conjunction with
the lapse in time between the incident and the photo lineup, Alamo could not
have been confident that she remembered a specific suspect’s face.
Smith points to no authority suggesting that an Asset Protection Man-
ager can remember only a very small number of suspects’ faces over the
course of six days. And even if she had provided authority to suggest that
Alamo could not do so, such a showing would merely provide evidence of
possible negligence unless Smith could also provide evidence that Alamo
actually held “substantial doubts about the truth” of her statement. Bentley,
94 S.W.3d at 591.
Third, Smith posits that Alamo’s testimony cannot be credited be-
cause, as an Asset Protection Manager, Alamo has an incentive to apprehend
culprits. Smith points out that Wal-Mart has a policy requiring employees,
before assisting in a prosecution, to believe beyond a reasonable doubt that
there is enough evidence to prove guilt. That policy, Smith contends, moti-
vated Alamo to express more confidence than she actually felt when review-
ing the lineup. Smith asserts that, because Alamo had a strong incentive to
protect merchandise and operated under a policy that requires a high degree
of confidence before assisting police, there is a high likelihood that she mis-
represented her level of confidence.
Smith’s contention here is too clever by half. The most plausible in-
ference adduced from Wal-Mart’s policy supports Alamo’s testimony that
she was highly confident in her identification and merely made a mistake.
The policy strongly suggests that Wal-Mart seeks to prevent haphazard accu-
sations against shoplifting suspects. Furthermore, as Wal-Mart contends,
Alamo had no incentive to identify the wrong suspect, as misidentifications
fail to prevent shoplifting and can result in lawsuits. Smith’s claim about
policy-driven incentives is entirely speculative, and a “mere surmise or sus-
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picion of malice does not carry the probative force necessary to form the basis
of a legal inference of malice.” Proctor & Gamble Mfg. Co. v. Hagler,
880 S.W.2d 123, 127 (Tex. App.—Texarkana 1994, writ denied).
Finally, Smith contends that Alamo contradicted herself regarding the
clarity of the surveillance video. In her first deposition, Alamo answered in
the affirmative when asked whether an expanded image of the suspect would
be “clear in color,” but in her second deposition she said that pictures be-
come less clear once expanded. Smith contends that that potential discrep-
ancy shows that Alamo was coached between depositions.
Whether the image was clear, however, demonstrates nothing about
Alamo’s level of certainty at the time she identified Smith in the photo line-
up. Indeed, as previously discussed, Alamo did not believe she needed to
view the tapes before identifying Smith. Therefore, even if there were a dis-
crepancy in her testimony here, it would not establish malice. At most, a
discrepancy about video quality might further indicate that Alamo should
have reviewed the surveillance footage before assessing the photo lineup. It
does not, however, serve as evidence that Alamo actually had substantial
doubts when she identified Smith. Thus, none of Smith’s assertions raises a
genuine dispute of material fact as to whether Alamo made her statement
with malice.
The summary judgment is AFFIRMED.
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