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When Berhane Ghirmai went into the CVS drugstore at 1119 Vermont Ave. NW during the wee hours of Jan. 19 looking for a little toilet paper, he probably didn’t know what kind of crap he was in for. Ghirmai says a tussle over a 50-cent roll of toilet paper got him roughed up, arrested, and thrown into jail. Ghirmai is suing CVS for $1.5 million.
Ghirmai, a cabdriver, was a regular at the CVS, says his lawyer David Frecker. That particular night, while browsing for toilet paper, Ghirmai made the mistake of opening one roll slightly to see how soft it was, Frecker says. That’s when CVS security guard Reginald Powell moved in. He asked Ghirmai if he was going to buy that roll, and, according to Frecker, Ghirmai’s answer was curt: “Do you think I would have opened it if I wasn’t going to buy it?”
Powell, an off-duty Metropolitan Police Department (MPD) cop, was apparently not amused. He reportedly stared over Ghirmai’s shoulder as the customer compared the relative merits of CVS’s house brand with Charmin’s. After a few minutes of this, Ghirmai either said, “Do you want to buy some toilet paper, too?” (Frecker’s version) or “What the fuck do you want?” (Powell’s version, according to the arrest report). Either way, Powell had seen enough. He responded, according to Christopher Sterbenz, the lead attorney in Ghirmai’s suit, by “cold-cocking” Ghirmai. In the case’s legal parlance, this means “Powell [allegedly] struck the plaintiff repeatedly, both in the face and body, without warning, with a closed fist or other implement of violence.”
After the blow, Ghirmai claims he was knocked to the floor and dragged toward the counter. Powell told Ghirmai he’d better pay for the toilet paper, Frecker says. Then Ghirmai got up, walked to the cash register, and bought about $25 worth of various products, Frecker says. He also told Powell he was going to sue and used the CVS phone to call the local police station and file a complaint.
A passing MPD sergeant happened into the store just then, according to Ghirmai’s telling of the story. He announced to everyone who would listen, Ghirmai says, that he had heard the complaint on his radio but had just come in to “buy a cigar” and wasn’t going to get involved. Ghirmai says he told the cop what had happened anyway, and the sergeant tried to talk him out of suing. The sergeant then pulled Powell aside, and, after a brief conference, Powell arrested Ghirmai for shoplifting. The arrest occurred despite the fact that, according to his lawyers, Ghirmai had paid for the toilet paper and had never left the store with said roll (listed on the police property record as “Item 1-E, CVS Bathroom Tissue, White, Quantity 1”). He was not, however, charged with assault, resisting arrest, or any other violent activitymaking it rather difficult for Powell to explain photos showing that the entire left side of Ghirmai’s face was swollen and purple when he was released from jail about 24 hours later.
Powell has not returned repeated calls requesting his side of the story. And Frank McGrail, CVS’s director of corporate communications, says, “It’s CVS’s policy not to comment on pending litigation.”
About a month after the incident, prosecutors dropped the charge for lack of evidence as soon as Ghirmai showed up for his trial. As Sterbenz puts it, “You have to actually steal something to be charged with stealing.” And Ghirmai claims he bought the toilet paper, though he does not have the receipt. CVS did, however, hand over his bag of purchases the day he got out of jail.
Despite that bit of generosity, Ghirmai is suing CVS for assault, battery, wrongful imprisonment, infliction of emotional distress, and negligent hiring, training, and supervision. Sterbenz does not expect a trial before early next year.
If and when the case goes to trial, CVS should carry the blame, says Sterbenz. “When a policeman works off-duty as an employee of a drugstore, he’s their employee, not a policeman,” he says.
CVS’s legal response to the charges of assault due to fondled toilet paper are vague. Most of the answers are boilerplate legalese: “Defendant is without sufficient knowledge to form a belief as to the truth of the allegations and therefore denies them”that sort of thing. But Sterbenz is struck by one statement in the response: “Defendant avers that the claim alleged in plaintiff’s Complaint is barred by the plaintiff’s assumption of risk.” “I take that to mean you assume the risk of getting beat up by a security guard when you go into a store,” Sterbenz comments dryly. Now, what would Mr. Whipple say about that? CP