Document provided by Benson & Associates
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
3 PAULA DARLENE HAMPTON and
DEMETRIA COOPER,
4
Plaintiffs,
5
vs. No. 97-2182-KHV
6
DILLARD'S DEPARTMENT STORES, INC.,
7
Defendant.
8
9
10 DEPOSITION OF BYRON PIERCE, a witness,
taken on behalf of the Plaintiffs, pursuant to
11 Subpoena, on the 28th day of August, 1997, at the
Overland Park Police Department, 12400 Foster,
12 Overland Park, Kansas, before
13 DEBORAH L. DuBUC, RPR,
14 of AAA Reporting Company, a Notary Public of the
State of Kansas and a Registered Professional
15 Reporter.
16 APPEARANCES
17 For the Plaintiffs:
MS. KATHY D. FINNELL
18 ARTHUR A. BENSON & ASSOCIATES
1000 Walnut Street, Suite 1125
19 Kansas City, Missouri 64106
20 For the Defendant:
MS. ELAINE DRODGE KOCH
21 SPENCER FANE BRITT & BROWNE
1000 Walnut Street, Suite 1400
22 Kansas City, Missouri 64106
23 For Overland Park Police Officer
Byron Pierce:
24 MR. MICHAEL R. SANTOS
Senior Assistant City Attorney
25 8500 Santa Fe
Overland Park, Kansas 66212
2
1 STIPULATIONS
2 It was stipulated by and between counsel
3 that the presentment of this deposition to the
4 witness by the officer is expressly waived.
5
6 INDEX
7 WITNESS: BYRON PIERCE PAGE:
8 Examination by Ms. Finnell 3
Examination by Ms. Koch 43
9 Reexamination by Ms. Finnell 46
10
11 EXHIBITS: (NONE)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 (The deposition commenced at
2 10:53 a.m.)
3 BYRON PIERCE,
4 a witness, being first duly sworn, testified
5 under oath as follows:
6 EXAMINATION BY MS. FINNELL:
7 Q. Would you state your name.
8 A. Byron Pierce.
9 Q. Have you ever been deposed before?
10 A. Yes, I have.
11 Q. In what capacity?
12 A. As a police officer. It was a City matter that
13 I was called in to give some information to --
14 for the City.
15 Q. Was that a criminal or civil --
16 A. That was a civil.
17 Q. Civil case?
18 A. Yes.
19 Q. Do you know what the nature of the case was?
20 MR. SANTOS: Was that the Jones and
21 Redpath?
22 THE WITNESS: Yes.
23 Q. (By Ms. Finnell) Oh, okay.
24 Outside of testifying in court as a
25 police officer, have you ever testified as a
4
1 witness?
2 A. No.
3 Q. I'll just go through some of the ground rules
4 really quickly.
5 You understand that you've been sworn
6 in by the court reporter and that the testimony
7 you'll give today will be as if you were
8 testifying to a jury or a judge?
9 A. I understand that.
10 Q. You have sworn to tell the truth?
11 A. Yes.
12 Q. To the extent that you're asked questions, if
13 you don't understand any of the questions, you
14 should say so and those questions will attempt
15 to at least be clarified --
16 A. Okay.
17 Q. -- by the person asking the questions.
18 There will be objections from time to
19 time. Unless your counsel makes an objection as
20 to something privileged, after the objection has
21 been made, go ahead and answer the question.
22 A. Okay.
23 Q. Everything that we're saying is going to be
24 taken down by the court reporter; therefore,
25 it's very important to try to resist the human
5
1 tendency of nodding and/or responding to
2 questions with uh-huh or huh-uh as opposed to
3 yes or no.
4 A. I understand that.
5 Q. What's your address?
6 A. Home address or --
7 Q. Yes.
8 A. [Deleted]
9 Q. Is that in Overland Park?
10 A. [Deleted]
11 Q. What's your educational background?
12 A. Have a college -- associate in criminal justice.
13 Completed all my high school education.
14 Q. Where did you get your associate's degree?
15 A. Missouri Western State College.
16 Q. When was that?
17 A. '89.
18 Q. Describe your professional experience.
19 A. Well, I've been in law enforcement about eight
20 years now. I was assigned as a patrol
21 officer -- started with the City of Overland
22 Park in 1989 till approximately December of
23 1992.
24 At that time I terminated my
25 employment and went to work for the Missouri
6
1 State Highway Patrol. Worked for the Highway
2 Patrol for a year and a half, didn't quite like
3 the work, and returned -- was hired 1993 with
4 the -- back with Overland Park Police
5 Department.
6 Since that time upon my return, I
7 worked in the Patrol Division for about one
8 year; worked in Personnel as a background
9 investigator part-time; worked in the schools as
10 a school resource officer for three years. I
11 was assigned to the middle school.
12 I was transferred last October of '96
13 to the Financial Crime Unit as a fraud
14 investigator.
15 Q. Okay. Have you had any other law enforcement
16 experience besides that with Overland Park and
17 Missouri Highway Patrol?
18 A. No.
19 Q. Have you had any other full-time jobs?
20 A. No.
21 Q. Are you a member of any professional
22 organizations --
23 A. No.
24 Q. -- that would be law enforcement oriented?
25 A. Oh, law enforcement oriented?
7
1 Q. Sure.
2 A. International Association for Financial Crime
3 Investigators.
4 Q. To what extent, if at all, have you worked
5 off-duty in a retail security-type position.
6 A. I worked from 1990 to my resignation with the
7 Overland Park Police Department for Dillard's,
8 and I've recently returned -- about three or
9 four weeks ago -- to Dillard's, and due to child
10 care now, I have terminated my employment with
11 Dillard's as of Tuesday, I believe, this past
12 Tuesday.
13 Q. So you worked about three weeks the second
14 time --
15 A. Yes.
16 Q. -- with Dillard's?
17 A. Three weeks my second tour, correct.
18 Q. The first time was from 1990 till --
19 A. Till about 1992.
20 Q. When you went to Missouri Highway Patrol?
21 A. That's correct.
22 Q. When you worked at Dillard's, you were working
23 as a security officer?
24 A. That is correct.
25 Q. Outside of the training that you received
8
1 from -- well, actually, what training did you
2 receive upon becoming an officer with the
3 Overland Park Police Department?
4 A. Attended the Johnson County Community College of
5 Police Regional Academy, and I don't know how
6 many hours. I would say 400 plus hours.
7 In addition to that, there was a
8 lengthy and extensive Field Training Officers
9 Program that we were required to complete;
10 numerous, numerous hours in the field in the FTO
11 Program.
12 Q. Who was your supervisor when you worked for
13 Dillard's from '90 to '92?
14 A. When you say "supervisor," are you talking
15 someone at Dillard's, a direct supervisor?
16 Q. Yes.
17 A. I'm gonna say there's a person who was the
18 facilitator or who coordinated. Her name was
19 Dee, and I do not know her last name, but I know
20 she has since transferred to Metro North
21 Shopping Center to work at the Dillard's in
22 Metro North.
23 Q. Were you given any training?
24 A. No.
25 Q. And I mean this relates to your working security
9
1 at Dillard's.
2 A. No.
3 Q. What was your job description? Let me ask you
4 this first, so I don't have to distinguish: Did
5 your job description change? Was it different
6 the time you worked from '90 to '92 than the
7 three weeks you just worked?
8 A. No.
9 Q. So then --
10 A. Basically, we were assigned as a deterrent. We
11 were uniformed officers assigned as a deterrent.
12 Basically, we roamed the store, walked
13 the various departments. We responded to
14 calls -- I'll call them calls for service from
15 sales associates and/or a member of management.
16 We were required in the detection of
17 shoplifting to apprehend shoplifters if
18 they're -- they committed a, you know, theft.
19 Q. When you say, "We're assigned as a deterrent,"
20 who do you mean by "we"?
21 A. I'm just gonna say the uniformed officers when I
22 say we. I guess I could say myself or I. We
23 were in uniform and, basically, we were a
24 deterrent.
25 Q. Were there other officers outside of the
10
1 uniformed officers?
2 A. There -- at -- first or second time?
3 Q. First time.
4 A. My first time I think mainly, if I can recall --
5 and this is only a recollection because of the
6 time frame -- the majority -- and I'm gonna say
7 95 percent of the officers who worked Dillard's
8 worked in uniform, were assigned in a uniformed
9 capacity.
10 Q. And your second time, which would have been
11 about three weeks ago?
12 A. Three weeks ago, I'm going to say 25 percent
13 worked in uniform and the remaining 75 percent
14 worked in a plainclothes capacity.
15 Q. Outside of any communication that you've had
16 with your attorney in reference to the incident
17 that led up to the lawsuit for which we are
18 taking this deposition, have you talked with
19 anyone about anything that may have happened at
20 Dillard's on April 5, 1996?
21 A. No. Well, I spoke with (indicating) --
22 MR. SANTOS: Counsel --
23 MS. KOCH: Counsel for Dillard's.
24 A. Yeah, counsel for Dillard's yesterday. Outside
25 of that, no. However, during the time of this
11
1 incident, April 5 of 1996, I was working. I
2 wasn't working for Dillard's. I was working as
3 a police officer, and I recall just hearing
4 rumors within the police department about, you
5 know, a situation went on at Dillard's.
6 Anytime there's anything of -- of --
7 something that happened that's pretty big, it
8 kind of festers through the Patrol Division.
9 Everyone wants talk about it, "Hey, did you hear
10 about...."
11 Different calls are always talked
12 about depending on the magnitude of that
13 particular call.
14 Q. (By Ms. Finnell) And was that particular
15 call -- or was a particular call from Dillard's
16 at that time discussed? Is that what you're
17 saying? I don't want to misunderstand what
18 you're saying.
19 A. At that time. I mean just through the
20 grapevine. You know what I'm saying, "Have you
21 heard -- did you hear what happened at
22 Dillard's?" and "This is what happened" and
23 whatnot.
24 Q. Do you recall what they told you?
25 A. At the time all I know -- can recall is there
12
1 were two females shopping at Dillard's. They
2 were stopped; did not have any merchandise on
3 them. One of the female's husband's was an
4 attorney and he was very upset and things got
5 pretty bad from there.
6 Q. At the time you spoke with Elaine, you were no
7 longer working for Dillard's; is that right?
8 THE WITNESS: Tuesday is when -- I
9 spoke with you Wednesday, yesterday?
10 A. Yes, Tuesday was my last day, because I was
11 supposed to get rescheduled. The scheduler was
12 trying to contact me to look into the September
13 schedule.
14 Because of day care, there's no way I
15 can -- my wife returned to work, and there's no
16 way I can continue to work the night hours
17 because of her schedule.
18 Q. (By Ms. Finnell) What did you discuss with
19 Elaine?
20 MS. KOCH: I object to the question as
21 violating the attorney-client privilege, and we
22 may want to clarify something.
23 Mr. Pierce, it was my understanding
24 that you had not resigned from Dillard's when we
25 were --
13
1 THE WITNESS: As of Tuesday -- Tuesday
2 was going to be my last night, and my wife and
3 I, because of her new job, it's impossible for
4 me to, you know, maintain that job at night
5 during the weekdays.
6 MR. SANTOS: Perhaps --
7 Q. (By Ms. Finnell) Let me ask you --
8 MR. SANTOS: I just wanted to clarify.
9 Did counsel for Dillard's -- or at any time did
10 you tell her that you were no longer working
11 at --
12 THE WITNESS: No, no.
13 Q. (By Ms. Finnell) When you were speaking with
14 counsel, did you consider her to be your
15 attorney?
16 A. I guess as a representative of Dillard's, I'm
17 gonna have to assume yes.
18 Q. And that would be based on the fact that you
19 didn't tell her at that time you --
20 A. Right.
21 Q. -- were no longer working for Dillard's?
22 A. That was a discussion that my wife and I had
23 yesterday because we have an ill child and
24 things are just really complicated now since
25 our personal issues at home.
14
1 MS. KOCH: Been there.
2 Q. (By Ms. Finnell) Okay. Outside of your
3 conversation that you had with Ms. Koch on
4 Wednesday and what you heard via the rumor mill,
5 is there anyone else you've talked to in
6 reference to this?
7 A. (Witness shook head.)
8 Q. No?
9 A. No.
10 Q. I just have to tell you one --
11 A. Right.
12 Q. -- more ground rule --
13 A. Right.
14 Q. -- and that is that it's important that as we
15 ask the questions and answers that only one of
16 us talk at one time because --
17 A. I understand. The stenographer needs to record.
18 Q. Okay. Are you aware of any incidents that have
19 occurred at Dillard's Oak Park where -- or are
20 you aware of any incidents that would have
21 occurred at Oak Park Dillard's where black
22 shoppers were being targeted by security
23 officers as shoplifting subjects?
24 MS. KOCH: Object to the form of the
25 question as vague.
15
1 MR. SANTOS: Go ahead.
2 Q. (By Ms. Finnell) Are you?
3 A. Am I aware -- can you reclarify the question?
4 Q. It was a very long, drawn out question. Are you
5 aware of any incidents where black shoppers were
6 targeted by Dillard's Security at Oak Park as
7 shoplifting suspects?
8 MS. KOCH: Again, I object to the form
9 of the question as vague as to what you mean by
10 "where" and what you mean by "targeted"?
11 A. I can't say I was aware of any one particular
12 incident where black shoppers were targeted.
13 However -- and I think I discussed this with
14 Elaine last -- yesterday evening --
15 MS. KOCH: Excuse me. I'd just
16 instruct the witness not to discuss or repeat
17 conversations you had with counsel for
18 Dillard's.
19 Q. (By Ms. Finnell) Which doesn't mean that you
20 can't answer my question. It just means
21 that you --
22 MS. KOCH: Right.
23 A. I can't say that I'm aware of security
24 specifically targeting black shoppers.
25 Q. (By Ms. Finnell) What can you say in -- that
16
1 question, there sounds like there's something
2 else there.
3 MS. KOCH: Object to the form of your
4 question as vague.
5 MR. SANTOS: Just so you know, Byron,
6 in the deposition, unless I as your attorney or
7 any other attorney-client relationship you might
8 have with counsel here instruct you not to
9 answer, even though an objection is made by one
10 of the attorneys, it's proper once you've
11 clearly heard the question --
12 THE WITNESS: Okay.
13 MR. SANTOS: -- and objection to go
14 ahead and answer.
15 THE WITNESS: Okay.
16 MS. KOCH: I will make certain
17 objections for the record to be ruled on later
18 by the judge.
19 THE WITNESS: I understand.
20 A. However, I'm of the opinion I think black
21 shoppers are more frequently called by sales
22 associates to be watched.
23 Q. (By Ms. Finnell) Than white shoppers?
24 A. Yes.
25 Q. Why do you have that opinion? What's the basis
17
1 of that opinion?
2 A. Working there first and second time, you --
3 there's just, you know, sales associates that
4 call when minority shoppers enter their
5 department.
6 They say, "Can you come down here?"
7 And we -- you know, "What's the problem?" And
8 there -- sometimes there's no basis for security
9 being called.
10 Q. This occurred during both of your employments
11 with Dillard's?
12 A. Yes.
13 Q. What would happen when you would respond?
14 Did -- go ahead. Well, what would happen -- are
15 you referring to incidents when you were called
16 down to the department by the sales associate
17 when a black person entered the department?
18 A. Yes, I'm recalling only my incidents, that's
19 correct.
20 Q. Describe what would occur once you responded to
21 the department?
22 A. My actions?
23 Q. Yes.
24 MS. KOCH: Again, I object to the form
25 of your question as being vague and overly
18
1 broad.
2 Q. (By Ms. Finnell) In response to the call you
3 would receive from the sales associate to --
4 A. My reply is always and always will be, "What are
5 they doing? What are they doing wrong?" If a
6 sales associate cannot articulate if a group --
7 a certain group of people are shoplifting or
8 have, you know, anything suspicious about
9 themselves, I say, "Call me back when you see
10 something that's suspicious."
11 Q. Do you recall any of the responses that you
12 would receive from the sales associates when you
13 would inquire of them what the -- I guess black
14 shopper was doing that prompted them to make the
15 call to you?
16 MS. KOCH: Again, object to the form
17 of the question as vague and overly broad.
18 A. At times, on occasion, I'll get calls saying,
19 There's a group of people just swarming through
20 my department. There's, you know, more than
21 three or more than four --
22 Q. (By Ms. Finnell) I'm sorry to cut you off, but
23 when you're referring to groups of people, are
24 you referring to African-American shoppers?
25 A. Yes, I am.
19
1 Q. Is there any other description of their activity
2 that you were given at that time?
3 A. And I can't recall every incident. However, I
4 would like to state that there are times when
5 there are legitimate calls based off the
6 observation of the sales associate, but there
7 are frequently calls when -- we've received
8 calls when there's no foundation to be called.
9 Q. And these calls would relate to African-American
10 shoppers?
11 MS. KOCH: Object to the form of the
12 question as vague and overly broad.
13 A. Yes.
14 Q. (By Ms. Finnell) Is that what you're referring
15 to?
16 A. Yes.
17 Q. Are you aware of any complaints made by
18 African-American shoppers about being harassed
19 or targeted at Dillard's Oak Park by Dillard's
20 Security?
21 A. Am I --
22 MS. KOCH: Object to the form of your
23 question as vague.
24 Okay. Go ahead.
25 A. I can't say I'm aware of any complaints because
20
1 the complaints never filtered to the security
2 department.
3 No, I can't -- I'm not -- no, I can't
4 answer that. I'm not aware of any complaints.
5 Q. (By Ms. Finnell) Are you aware of any incidents
6 where African-American shoppers -- or have you
7 been made -- are you personally aware or have
8 you been made aware of any incidents where
9 African-American shoppers were present at
10 Dillard's Oak Park and believed that they were
11 followed by Dillard's Security because of their
12 race?
13 A. I'm personally aware of that myself.
14 Q. How so?
15 A. In 1992 -- I'm gonna say June -- my wife and I
16 were married. We were -- received money as
17 gifts and we decided to buy fine china from the
18 Dillard's Department Store. We went to the
19 Dillard's Department Store to purchase the fine
20 china, the south store on -- I believe the
21 second level, I believe.
22 There was a young -- well, she was not
23 a young lady. I refer to everyone as young
24 ladies, but there was a lady in particular. I
25 believe her name was Opal. She saw us, my wife
21
1 and I, exit the escalator, and she just looked
2 at me.
3 And I thought she recognized me from
4 previously working there. At that time -- I was
5 working for the Highway Patrol at the time. We
6 proceeded to shop, and I heard a 53 page. Which
7 53 alerts security, but there's a particular
8 page at a particular store and department.
9 I just looked at my wife and said, "I
10 hope she's not doing what I think she's doing."
11 My wife said, "What is that?" And I said, Well,
12 I hope she didn't call security. Just the way
13 she looked at us....
14 I'm gonna say within minutes I
15 observed a security officer I'd never met in my
16 life following my wife and I around, and
17 everywhere I walked, there was a security
18 officer behind me.
19 So I stopped and asked the officer if
20 he was a security officer -- if he was security,
21 and he said no -- well, he didn't say no. He
22 said, "Do you need one?" And I said, "Yes, I
23 would like to speak with one." And at that time
24 I badged him and said, "I'm a Missouri State
25 Trooper. I want to know why I've been
22
1 followed."
2 And he said, "I'm a Kansas State
3 Trooper. The reason why I'm following you is
4 because the sales associate said she had some
5 suspicious people in her sales department," and
6 she described me and my wife as suspicious.
7 And at that time my wife got a little
8 upset and approached the sales associate and
9 said, "Do you remember him? He used to work for
10 Dillard's. Why are we being called on?" And
11 the sales associate replied, "Security,
12 security" because she wanted security back over
13 at the sales desk.
14 Q. How did your wife -- describe your wife's
15 demeanor. How did she approach the sales
16 associate?
17 A. She was angry.
18 Q. Did she ever receive an answer to her question
19 as to why she had made the call?
20 A. No.
21 Q. Did either of you ever receive an answer to the
22 question as to why the call was made?
23 A. Other than what the trooper initially told me in
24 regards to the sales associate saw -- thought
25 she had seen suspicious people in her
23
1 department.
2 Q. This was the china department?
3 A. China department, correct.
4 Q. How long had you all been in the china
5 department?
6 A. If I had to take a guestimation, I'd say ten
7 minutes, fifteen minutes.
8 Q. What had --
9 A. It wasn't long.
10 Q. What had you done while you were in the china
11 department?
12 A. We were looking; just shopping.
13 Q. In addition to the incident -- well, actually,
14 did you make any -- did you follow up at all
15 on -- did you make a complaint or talk with
16 anyone else in reference to what had occurred?
17 A. Yes, I spoke with an officer that you previously
18 interviewed, Greg Powell.
19 Q. Was he on duty at the time?
20 A. Yes, he was. He was working the north store,
21 and he wrote a report in regards to the
22 situation, and I believe he was gonna forward it
23 to Dillard's management. At least I was
24 assuming he was going to forward it to Dillard's
25 management.
24
1 Q. What was your understanding of the purpose of
2 the report being drafted and forwarded to
3 management?
4 A. To make -- this is only an assumption -- to make
5 management aware that their particular employees
6 were calling security with no foundation when
7 African-American shoppers shop in their
8 department or walk through their department or
9 whatever.
10 Q. Do you know whether Dillard's management was
11 made aware of that?
12 A. I don't know. I was intending to call -- 'cause
13 I know Jack Rodgers -- I was intending to call
14 Jack Rodgers myself. However, during that time
15 I was newly married, new job. I was trying to
16 get acclimated, and I just didn't follow up with
17 it.
18 Q. Do you know whether -- are you aware of any
19 complaints that were made by other
20 African-American shoppers about being followed
21 or targeted by --
22 A. I'm not aware of any other complaints.
23 Q. Are you aware of any incidents where
24 African-American shoppers have been mistaken as
25 prior shoplifters?
25
1 A. I can't recall if I have or not.
2 Q. Have you ever discussed -- and I don't want to
3 mischaracterize anything you said, so if I do,
4 one, I'm sure there will be an objection, and
5 two, please correct me.
6 A. Right.
7 Q. Have you ever discussed the targeting of black
8 shoppers by Dillard's Security Officers with
9 anyone?
10 MS. KOCH: Object to the form of the
11 question as mischaracterizing previous testimony
12 since the witness said he was not aware of any
13 targeting of black customers.
14 A. I believe it was mentioned before. Not by me,
15 but by other -- some other officers who had
16 worked Dillard's in the past.
17 Q. (By Ms. Finnell) Like who?
18 A. Coworkers of mine, several coworkers.
19 Q. Can you give me their names?
20 A. Detective David Cole.
21 Q. Anyone else?
22 A. And Sergeant Imber, Michael Imber, I think his
23 first name is.
24 Q. What did these individuals do?
25 A. They, at one point in time, worked for Dillard's
26
1 during my first tour with the police department
2 back in '90, '91, '92.
3 Q. How do you associate those individuals with
4 discussions that were held regarding black
5 shoppers being targeted by Dillard's Security?
6 MS. KOCH: Object to the form of the
7 question as vague.
8 A. I -- I can recall a Saturday -- it was a weekend
9 evening or afternoon -- I believe it was
10 afternoon because it was daytime. Detective
11 Cole -- he wasn't a detective at the time. We
12 were both officers. We got a call to respond,
13 and I -- keep in mind, I cannot remember the
14 specifics on why we were called.
15 But we got a call. I believe we both
16 were working the north store. We got a call to
17 respond to a particular area in the north store
18 with black suspected shoplifters, and I
19 believe -- I remember Dave Cole making the
20 comment that he does not like responding because
21 he -- at the time he felt that black shoppers
22 were called on more frequently than the white
23 shoppers.
24 Q. (By Ms. Finnell) What about Sergeant Imber?
25 Same question.
27
1 A. Same incident. This just -- and it's not
2 verbatim, but he has mentioned before that he
3 thought that black shoppers were called on more
4 so than -- frequently than white shoppers.
5 Q. When you say "mentioned before," was this during
6 the time that you were working at Dillard's from
7 1990 to 1992?
8 A. This was -- the sergeant and I both, we worked
9 Oak Park Mall; we worked the interior of the
10 mall as well. And he has commented during, you
11 know, conversation -- even about being deposed
12 in a deposition somehow -- and he has mentioned
13 that -- and this is verbatim -- that I hope they
14 don't call me to be questioned, because he'd
15 tell the truth, and that's just what he said.
16 Q. Do you know what he was referring to when he
17 said he would tell the truth?
18 A. The comment we had regarding suspected black
19 shoplifters.
20 Q. Being targeted or being arrested more
21 frequently?
22 A. I won't say being targeted. Being called more
23 frequently than white shoplifters or suspected
24 shoplifters.
25 Q. When you say "called," what do you mean by that?
28
1 A. Receiving a call for service from a sales
2 associate, as I mentioned earlier.
3 Q. All right. Were there any changes in the manner
4 or the -- what is your understanding of the --
5 what was your understanding of the job that you
6 were to -- wait.
7 Let me ask this differently. What is
8 your understanding of Dillard's Oak Park's goal
9 for security officers? What is your purpose?
10 What is the purpose of the security officers?
11 A. I won't say it was a goal.
12 Q. Or purpose.
13 A. I would clarify "goal" as a purpose or
14 objective. Basically to provide security for
15 sales associates. Occasionally customers do get
16 out of hand and can be -- and can become
17 physical with associates, whether it be a return
18 or they're just upset.
19 Provide a deterrence for shoplifters
20 and respond to calls for service within the
21 structure of Dillard's Department Store.
22 Q. Are you aware of any changes in their goals or
23 purpose that occurred from the time that you
24 first worked there in '90 to '92 and the time
25 that you worked there three weeks ago?
29
1 MS. KOCH: Object to the form of that
2 question as vague.
3 A. Can you kind of explain yourself?
4 Q. (By Ms. Finnell) Yes. When you said in terms
5 of your job, the duties in terms of being a
6 deterrent --
7 A. Uh-huh.
8 Q. -- has it -- has your objective -- or is your
9 understanding of the purpose of you being there
10 to be a deterrent? Has that remained the same
11 from '90 to '92 to the time you worked there
12 three weeks ago?
13 A. In my opinion it remains the same.
14 Q. Did you notice any changes at all about security
15 job descriptions or objectives from the time you
16 first worked there until the time when you
17 worked there three weeks ago?
18 MS. KOCH: Object to the form of the
19 question as vague, and I think it's been asked
20 and answered, but go ahead.
21 A. I can't say I noticed a change. The only change
22 is the change in personnel. There's more
23 outside agency personnel working versus Overland
24 Park Police Officers.
25 Q. (By Ms. Finnell) Are you aware of any
30
1 transition between a focus being placed on
2 deterrence and a focus being placed on arrests?
3 A. There -- and I'm not -- because I've recently
4 returned, but I do know of -- they schedule
5 security officers based on the amount of arrests
6 that -- let me clarify. Officers get more hours
7 based on the arrests that they make.
8 Q. Shoplifting arrests?
9 A. Shoplifting arrests, correct. And it's like a
10 priority -- it's like a list. If you arrest X
11 amount of violators, you kind of move up the
12 list from No. 1 to, say, No. 25 if that's how
13 many officers are there.
14 If you don't arrest that many
15 violators, you kind of get bumped down to the
16 bottom of the list.
17 Q. Is that set out somewhere in writing?
18 A. It's not set out in writing, and nobody's ever
19 verbally told me that upon returning to
20 Dillard's.
21 Q. How do you know about it?
22 A. Speaking with other officers. I know some
23 officers get upset because they're not getting
24 the hours that they were getting previous,
25 before this policy went into effect. And I've
31
1 spoken with an officer who was quite upset
2 because he was bumped from like 3 to 9 or 10.
3 Q. Who was that?
4 A. Officer John Schuebach.
5 Q. This bump was a result of the --
6 A. Productivity, basically.
7 MR. SANTOS: I'm sorry. If I could
8 interrupt, Dee Lock should be here momentarily.
9 Do you want to take a break and get her
10 documents?
11 MS. FINNELL: If she's here, we can
12 take her.
13 (A recess was taken.)
14 Q. (By Ms. Finnell) The case that you were
15 deposed in, did that have anything to do with
16 Dillard's at Oak Park?
17 A. No.
18 Q. During your second three-week tenure with
19 Dillard's, did you receive any training?
20 A. No.
21 Q. Did you receive any type of orientation?
22 A. No formal orientation. Informal; paperwork,
23 policy.
24 Q. Okay. I'm going to show you what's been
25 previously marked as -- duplicate copies of
32
1 Exhibits 1, 11, and 12.
2 Specifically 1, is that some of the
3 paperwork you received?
4 A. I recall that one there.
5 Q. Let's stay with 1 for a second.
6 A. Oh, sorry.
7 Q. When you received that, what were -- why -- what
8 did you do with that when you got it, or what
9 was the purpose when you got it?
10 A. Oh, to understand the policies and procedures
11 for Dillard's regarding security personnel.
12 Clearly -- it's very simple. Just basically, it
13 describes and outlines apprehension and
14 investigation and some of the things that are
15 do's and don'ts, like what's prohibited and
16 what's not.
17 Q. What about Exhibit 11 or 12?
18 A. I recall 11.
19 Q. Who went over these documents with you at
20 Dillard's?
21 A. No one went over the documents. They were
22 handed to us and we were expected to read them
23 and understand them and sign the acknowledgment
24 and return them to Marvie.
25 Q. Is that Marvie Dirks?
33
1 A. Marvie Dirks, right.
2 Q. Okay. During the time, the three weeks that you
3 were working there, how involved, if at all, was
4 Marvie Dirks in your security activities?
5 MS. KOCH: Object to the form of your
6 question as vague.
7 A. Marvie is extremely busy. She has a lot of
8 responsibilities because of the construction and
9 whatnot. She was involved as to when a -- when
10 an arrest was made, we were required to place a
11 copy of that arrest on her desk so that she
12 would know what was going on inside her stores.
13 As far as day-to-day operation, very
14 rarely would you see Marvie because of her other
15 responsibilities.
16 Q. (By Ms. Finnell) By "arrests," what do you
17 mean?
18 A. Any time an arrest is made or an apprehension,
19 that arrest report should be placed on Marvie's
20 desk before you leave for that evening -- or the
21 end of your shift.
22 Q. When you say "arrest or apprehension," do you
23 mean the person was ultimately arrested by the
24 police?
25 A. That is correct.
34
1 Q. What about incidents where the person was
2 stopped and didn't have any merchandise? Were
3 reports generated during those times?
4 A. I've never been involved in anything other than
5 arrests, so I can't comment on what happens if a
6 person is stopped.
7 Q. Do you know whether you received any training or
8 guidelines as to what should happen if a person
9 is stopped and is found to have no Dillard's
10 property?
11 A. No, we have never received any training.
12 Q. Are you familiar with codes used by security
13 officers for suspects?
14 A. Informally, I am.
15 Q. How informally are you?
16 A. I upon my second tour at Dillard's --
17 Q. Three weeks ago?
18 A. Three weeks ago and prior to that when I
19 returned to the mall, Dillard's security were on
20 mall -- Oak Park Mall's frequency, same radio
21 frequency.
22 And I first learned about it when I
23 returned for my second tour with the Overland
24 Park Police Department, when I returned to the
25 mall, what a Code 3 and a Code 4 was.
35
1 Q. What are they?
2 A. And I don't -- again, this is informally, 'cause
3 I don't use them and I don't know if Code 3 can
4 either represent a black female or black male or
5 a Code 4 could be a black male or black female.
6 I don't know the codes in order.
7 Q. But you do know that the codes reference race
8 and gender?
9 A. Yes.
10 Q. You've referenced Oak Park Mall. You've worked
11 security for Oak Park Mall?
12 A. Yes, at one time.
13 Q. Okay. How long?
14 A. I can combine them in years or I can break them
15 down to year.
16 Q. Has it been off and on?
17 A. Only when I terminated my employment to go to
18 the Missouri State Highway Patrol, but upon
19 returning, I immediately went back to work for
20 Oak Park Mall. I've been back since 1993.
21 Q. You're still working for Oak Park Mall?
22 A. Yes, I am.
23 Q. Did you start working for Oak Park Mall at the
24 same time or around the same time you became an
25 Overland Park Police Officer?
36
1 A. Yes.
2 Q. Then it just stopped during that time from '92
3 to '93 when you were at the Missouri Highway
4 Patrol?
5 A. That is correct.
6 Q. During the time that you worked as a security
7 officer for Oak Park Mall, are you aware of any
8 stops made by Dillard's Security Officers of
9 African-American shoppers outside of Dillard's,
10 in other stores even?
11 A. I'm not aware of any specific incident. The
12 mall itself prohibits mall security to respond
13 to other -- not only Dillard's but other anchor
14 department stores to assist on their matters.
15 Q. Why is that?
16 A. It was the policy set out by the mall
17 management.
18 Q. As an Oak Park Security Officer, are you aware
19 of any complaints that have been made by
20 African-American shoppers about Dillard's
21 Security Officers?
22 A. Again, no one has ever complained to me
23 directly. If African-American --
24 (An individual opened the door and
25 motioned to Mr. Santos.)
37
1 MR. SANTOS: I'm sorry. Just a few
2 moments.
3 Q. (By Ms. Finnell) What about indirectly? Are
4 you indirectly aware?
5 A. Indirectly, I can't recall.
6 Q. I'm going to back up. Why is it that you
7 felt -- when was it that you were -- did you say
8 when it was that you were shopping with your
9 wife?
10 A. '92, in June.
11 Q. Okay. You did say that.
12 A. Somewhere in there, yes.
13 Q. Why is it that you felt you had been followed
14 because you were -- you are an African-American
15 male?
16 A. Yes.
17 Q. Why is it that you felt you and your wife were
18 being followed because of your race?
19 A. Upon initially entering the department store,
20 getting a look that I didn't think was, you
21 know, a "Hi" or a welcome look. And immediately
22 after that -- you know working there previous to
23 that, I knew what the pages are and what the 53
24 page is, what the 54 page is.
25 And immediately thereafter the page,
38
1 we were followed. I mean this -- it doesn't
2 take much thought to understand that at the
3 time.
4 Q. To understand --
5 A. That you were being followed.
6 Q. Because of your race?
7 A. I have to assume that it was because of my race.
8 Q. Why do you assume that?
9 A. There was no one else in that department at the
10 time except my wife and I.
11 Q. Are you aware of any other incidents that would
12 lead you to believe that African-American
13 shoppers are stopped more frequently than white
14 shoppers --
15 MS. KOCH: Object to --
16 Q. (By Ms. Finnell) -- other than the ones that
17 you've told me about already?
18 MS. KOCH: Object to the form of the
19 question as vague and overly broad.
20 A. The only one that I can think of that I was
21 involved in -- not directly involved in was an
22 incident -- and again, this is my first tour
23 back in the '90s, early '90s -- where I was
24 working a morning at Dillard's.
25 I received a call from Opal, who I
39
1 mentioned previously. She called and said,
2 "They're looking around. They're looking
3 around." And my reply was, "Who's looking
4 around?" She said, "When they look around like
5 that, they're up to no good."
6 And I said, "Who's looking around?"
7 She said there was a black female in -- I
8 believe it was the children's department at the
9 time. And I said, "What is she doing?" She
10 said, "She's just looking around." So I said,
11 "Call me back if you have any other indicators
12 that she's a shoplifter."
13 So I decided to walk over to that
14 particular department, and upon entering the
15 department, the young lady was purchasing some
16 clothing items and she was leaving the store.
17 During that time -- and I don't know
18 where this was initiated, but during that time I
19 received information that if people of color are
20 being called on --
21 Q. (By Ms. Finnell) Called?
22 A. Called on as far as security -- security's been
23 called for no reason, we were supposed to
24 initiate a memo and forward it to Dee, who was
25 the manager at the time.
40
1 And I did just that, and my memo
2 indicated that I was called. The young lady
3 ultimately bought -- purchased some items and
4 the call was not legitimate.
5 Q. Do you know Opal's last name?
6 A. No, ma'am.
7 Q. Do you know whether she's still working there?
8 A. Opal was very -- she was an elderly lady, and I
9 have not seen her since that last contact in
10 '92.
11 Q. When you told her to call you back if they did
12 something -- well, let me -- so that I don't
13 mischaracterize, what exactly did you tell her
14 when she told you, "They're looking around.
15 They're just looking around"?
16 A. My reply was, "Who's looking around?"
17 Q. Right.
18 A. She replied, "When they look around like that,
19 they're up to no good." I said, "Who?" And
20 that's when she said, "There's a black female in
21 the children's department store looking around."
22 Q. Did you deem that -- why didn't you respond to
23 them just looking around?
24 A. I'm a little bit more conservative than other
25 officers. I need more than just a person just
41
1 looking around. I need some articulation. Are
2 they, you know, picking up clothes or does the
3 lady have a large sack or does she have any
4 empty bags or anything that -- some elements of
5 what a suspected shoplifter may exhibit when
6 they're about to steal.
7 Sporadic shopping; was she just going
8 through there, you know, picking up items and
9 just selecting very quickly?
10 Q. When you said "a little more conservative than
11 other officers," who are you referring to? Are
12 you referring to anyone in particular?
13 A. I'm not referring to anyone in particular.
14 That's just -- that's just how I do business,
15 and I can't comment on other officers.
16 Q. Have you at times worked with the other security
17 officers?
18 A. Three weeks up in there -- basically, because
19 everyone's spread out, I work with other
20 security officers; however we kind of, because
21 of the personnel -- we're having a little bit of
22 personnel problem as far as staffing-wise -- I
23 primarily work and walk on my own.
24 Q. That's based on the construction?
25 A. Based on the construction, correct.
42
1 Q. Are you aware of any other security officers
2 that would deem just looking around sufficient
3 for responding?
4 MS. KOCH: Object to the form of the
5 question as vague and calling for speculation.
6 A. I can't comment on how other security officers
7 would conduct their business.
8 Q. (By Ms. Finnell) Since your return or during
9 your three weeks then --
10 A. Uh-huh.
11 Q. -- did you notice whether black shoppers were
12 being arrested or detained more than white
13 shoppers in Dillard's?
14 A. I cannot -- I'll say I don't personally know
15 that that's occurring; however, I've been
16 involved in -- I'm going to say four to five
17 arrests, and the ratio was a 50/50 split.
18 I can recall arresting two white
19 females in the children's department, and I can
20 recall arresting two black females in the
21 lingerie department for shoplifting.
22 Q. This was just within the last --
23 A. Within the last three weeks, correct.
24 Q. Does that 50/50 split communicate anything to
25 you in reference to whether black shoppers are
43
1 being stopped or targeted more than white
2 shoppers?
3 MS. KOCH: Object to the form of your
4 question as vague.
5 A. I can't answer that.
6 MS. FINNELL: It was a bad question.
7 I think I'm done. Give me thirty
8 seconds.
9 (A recess was taken.)
10 MS. FINNELL: I don't have anything
11 else.
12 THE WITNESS: All right.
13 EXAMINATION BY MS. KOCH:
14 Q. Officer Pierce, I have just a couple of
15 questions.
16 A. Sure.
17 Q. You told us today that you learned during the
18 last three weeks from basically hearsay that
19 scheduling was being done on the amount of
20 arrests and you referred to Officer Schuebach?
21 A. Schuebach.
22 Q. Is there anyone else who told you that
23 scheduling was being done based on the amount of
24 arrests?
25 A. If I can recall -- and this is just an
44
1 assumption -- I believe Officer Greg Powell was
2 bumped off the schedule because of the amount of
3 arrests he was making or the lack of arrests he
4 was making.
5 Q. What leads you to think that? I mean is that --
6 A. Conversation.
7 Q. With whom?
8 A. Officer Powell.
9 Q. Is that something you have any personal
10 knowledge of --
11 A. No.
12 Q. -- or anyone in management at Dillard's has told
13 you?
14 A. No.
15 Q. Anybody else besides Officer Powell and Officer
16 Schuebach?
17 A. That's been bumped or --
18 Q. That has told you that scheduling is being
19 done --
20 A. Based on the amount of arrests?
21 Q. -- based on the amount of arrests.
22 A. I think if you ask any security officer there,
23 that they'd probably tell you the same thing,
24 that yes, they do schedule based on the amount
25 of arrests.
45
1 Q. But do you recall any specific officer who has
2 told you that?
3 A. Many of the officers there. I can't recall
4 specifically what officers told me that, but the
5 conversation -- I mean, it's just common
6 knowledge that that's how scheduling is done.
7 Q. Has anyone in Dillard's management told you that
8 that's how scheduling is done?
9 A. No.
10 Q. Ms. Finnell asked you if you had had any
11 training on what to do if you stopped someone
12 and they were found to have no merchandise, and
13 I believe you said no, but I'd like you to look
14 at Deposition Exhibit 1 on No. 3 under the
15 "Investigation" subheading.
16 A. Okay.
17 Q. Tell me if you think No. 3 refers to a situation
18 where you believe you stopped somebody and they
19 ended up not having merchandise.
20 MS. FINNELL: And I'm going to object
21 at this time because it mischaracterizes the
22 witness's prior testimony. He was not trained
23 on Exhibit 1. He was merely given it to read.
24 It was not formal training.
25 MS. KOCH: I think your testimony
46
1 mischaracterizes the witness's previous
2 testimony.
3 A. Okay. I've read it.
4 Q. (By Ms. Koch) Do you think that refers to a
5 situation in which a shopper is stopped and
6 found to have no merchandise? Do you think that
7 would govern --
8 A. The way I interpret it, yes.
9 Q. Were you aware that Dillard's has a lot more
10 security officers in its force right now due to
11 the construction at Oak Park?
12 A. Yes.
13 MS. KOCH: I have no further
14 questions.
15 MS. FINNELL: I just have one quick
16 follow-up question.
17 REEXAMINATION BY MS. FINNELL:
18 Q. When you signed the policies and procedures you
19 were given --
20 A. Yes.
21 Q. -- were there any exercises or tests given to
22 you that would allow you to demonstrate your
23 knowledge and understanding?
24 A. No.
25 MS. FINNELL: Okay. Nothing further.
47
1 (The deposition concluded at
2 11:48 a.m.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
48
1 IN RE: Hampton, et al. vs. Dillard's
2 Page Line Correction Reason
____________________________________________________
3 | | |
____|____|________________________|_________________
4 | | |
____|____|________________________|_________________
5 | | |
____|____|________________________|_________________
6 | | |
____|____|________________________|_________________
7 | | |
____|____|________________________|_________________
8 | | |
____|____|________________________|_________________
9 | | |
____|____|________________________|_________________
10 | | |
____|____|________________________|_________________
11 | | |
____|____|________________________|_________________
12 | | |
____|____|________________________|_________________
13 | | |
____|____|________________________|_________________
14 | | |
____|____|________________________|_________________
15 | | |
____|____|________________________|_________________
16 | | |
____|____|________________________|_________________
17 | | |
____|____|________________________|_________________
18 | | |
____|____|________________________|_________________
19 | | |
____|____|________________________|_________________
20 | | |
____|____|________________________|_________________
21 | | |
____|____|________________________|_________________
22 | | |
____|____|________________________|_________________
23
24 ______________________
Byron Pierce
25 DLD
49
1 IN RE: Hampton, et al. vs. Dillard's
2
3 ____ I certify that I have read my testimony
4 and request that NO changes be made.
5
6 ____ I certify that I have read my testimony
7 and request that the above changes be
8 made.
9
10
11 ______________________
12 Byron Pierce
13
14
15 Subscribed and sworn to before me
16 this ____ day of ____________, 19____
17
18
19 ______________________
20 Notary Public
21 State of _____________
22 County of ____________
23 My commission expires ____________
24
25 DLD
50
1 C E R T I F I C A T E
2 I, Deborah L. DuBuc, a Notary Public of the
3 State of Kansas, do hereby certify:
4 That prior to being examined, the witness
5 was first duly sworn;
6 That said testimony was taken down by me in
7 shorthand at the time and place hereinbefore stated
8 and was thereafter reduced to typewriting under my
9 direction;
10 That the foregoing transcript is a true
11 record of the testimony given by said witness;
12 That I am not a relative or employee or
13 attorney or counsel of any of the parties or a
14 relative or employee of such attorney or counsel or
15 financially interested in the action.
16 Witness my hand and seal this 3rd day of
17 September, 1997.
18
19
20
21
22 Deborah L. DuBuc
23 Notary Public, State of Kansas
24 My commission expires 03/07/2001
25