Update: Forever 21 released the following statement Friday, according to ABC: “We recognize that the security guard used excessive force, which is against our store policy and have suspended him indefinitely.”

Alejandro Rea, the deaf man who was placed in a violent chokehold by a Forever 21 security guard, was charged with felony robbery, according to an ABC report.

From what we’ve seen in the video, that is a little hard to believe because under the California Penal Code, robbery would have required him to have stolen merchandise from the store “by means of force or fear.”

But from the information that has surfaced so far, Rea was apprehended only after he failed to stop walking out of the store when the door alarms went off.

Witnesses say he may not have heard the alarms because he is deaf. And the video shows his deaf brother attempting to show security guards what appears to be a receipt.

But even if he did in fact steal anything, then he should be charged with shoplifting, which is a misdemeanor.

The penal code for robbery states the following:

211. Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear.

212. The fear mentioned in Section 211 may be either:
1. The fear of an unlawful injury to the person or property of the
person robbed, or of any relative of his or member of his family;
2. The fear of an immediate and unlawful injury to the person or
property of anyone in the company of the person robbed at the time of the robbery

The ABC article also states that Rea has a prior criminal record, meaning he may be facing a felony because of California’s controversial “petty theft with a prior” law, which allows authorities to charge someone with a felony if they get arrested on a misdemeanor shoplifting charge. The law is covered in California Penal Code 666.

Forever 21 issued the following statement: “We are troubled by the video and do not condone the use of excessive physical force by our employees. We are investigating this matter and will take action once we have the full story.”

Regardless of company policy, how much physical force are security guards legally allowed to use to detain someone they suspect of shoplifting?

According to a Photography is Not a Crime reader who left a comment in the previous story under the username,  A Massachusetts Lawyer:

In the US, most states have a version of the “shopkeeper’s privilege.” It allows store employees who have a reasonable suspicion of theft to detain the person using reasonable force to take back merchandise or wait for the police.

Here, the security guards have a reasonable suspicion if the alarm goes off when you walk out the door. However, a choke hold is NOT reasonable force. Reasonable force is usually read to be: grappling, wrestling, pushing. The friend who got pushed aside doesn’t have a suit (he was merely pushed), but the man in the chokehold sure as hell does.

So now the most glaring question is, why wasn’t the security guard also jailed on felony charges?