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
7 STORES, INC.,
8 Defendant.
9
10 DEPOSITION OF DAVID COLE, a witness, taken
on behalf of the Plaintiffs, pursuant to Notice, on
11 the 11th day of September, 1997, at the Overland
Park Police Department, 12400 Foster, Overland Park,
12 Kansas, before
13 JUDY L. WHITEHOUSE,
14 of AAA Reporting Company, a Notary Public of the
State of Kansas.
15
APPEARANCES
16
For the Plaintiffs:
17 MS. KATHY D. FINNELL
ARTHUR BENSON & ASSOCIATES
18 1000 Walnut Street, Suite 1125
Kansas City, Missouri 64106-2123
19
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 the City of Overland Park:
MR. MICHAEL R. SANTOS
24 ATTORNEY AT LAW
12400 Foster
25 Overland Park, Kansas
2
1 STIPULATION
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, and that
5 if said deposition is not signed by the witness by
6 the time of the commencement of the trial, it may be
7 used as though signed.
8
9 INDEX
10 WITNESS: David Cole PAGE:
11 Examination by Ms. Finnell 3
Examination by Ms. Koch 16
12
13 EXHIBITS (NONE)
14
15
16
17
18
19
20
21
22
23
24
25
3
1 (The deposition commenced at 2:40
2 p.m.)
3 RANDY COLE,
4 a witness, being first duly sworn, testified
5 under oath as follows:
6 EXAMINATION BY MS. FINNELL:
7 Q. Good afternoon, Mr. Cole. My name is Kathy
8 Finnell, and I am one of the attorneys that
9 represent the plaintiffs, Paula Hampton and
10 Demetria Cooper, in this matter.
11 Would you please state your address?
12 A. My home address or work address.
13 Q. Home is fine.
14 A. [Deleted]
15 Q. Describe your educational background starting
16 where and when you graduated from high school?
17 A. I graduated from high school in 1980, Dundalk
18 High School, D-u-n-d-a-l-k. It's in Dundalk,
19 Maryland, a suburb of Baltimore. I got my
20 associate of arts degree from Catonsville,
21 C-a-t-o-n-s-v-i-l-l-e, Maryland in 1982, in
22 general studies and concentration in probation
23 and patrol. And then I got my bachelor of
24 general studies degree from the University of
25 Kansas, crime and delinquency studies in 1984.
4
1 Q. Are you currently an officer with the Overland
2 Park Police Department?
3 A. Yes, I am.
4 Q. How long have you been so employed?
5 A. I was an officer here with Overland Park since
6 1989. Eight years.
7 Q. Prior to that time did you have any law
8 enforcement experience?
9 A. Yes, I was an officer in Lawrence, Kansas, from
10 January of 1985 until about February of 1988.
11 And then I was an FBI agent in Buffalo, New
12 York, from I guess that's March of 1988 until
13 about June of 1989 before coming here.
14 Q. You left the Lawrence Police Department to join
15 the FBI?
16 A. Yes.
17 Q. Why did you leave the FBI?
18 A. I wanted to come back here to the midwest.
19 Buffalo, New York, is not very fun.
20 Q. You are currently a patrol officer?
21 A. Detective.
22 MR. SANTOS: I will just mention.
23 They are sort of smiling, because they were
24 talking about where they used live --
25 MR. FINNELL: Off the record.
5
1 (Discussion off the record.)
2 Q. (By Ms. Finnell) Can you describe any off duty
3 jobs that you have worked while being an officer
4 in Lawrence?
5 A. I worked J.C. Penney store occasionally, maybe
6 -- it's been so long ago. Three or four --
7 maybe two or three months, maybe four months.
8 Q. Would that have been in security?
9 A. Yes, they only have one in Lawrence. 23rd and
10 Iowa, roughly.
11 Q. Did you work any off duty security while an FBI
12 agent?
13 A. No.
14 Q. What off duty, if any, have you worked as an
15 Overland Park police officer, and I mean off
16 duty security?
17 A. Hundreds probably.
18 Q. Hundreds?
19 A. Well, the big ones are --
20 Q. Let me be more specific. That would be in a
21 retail setting, would that narrow the scope for
22 you?
23 A. Yes. Dillard's, Oak Park, King Louis West,
24 which I wouldn't say is actually retail. I
25 guess probably that's probably about it, that I
6
1 can think of.
2 Q. And the others would be related maybe to events
3 and things of that nature?
4 A. Yes, it is.
5 Q. Have you ever been deposed before?
6 A. Yes, I have.
7 Q. Was that in anything other than your capacity as
8 an officer?
9 A. Yes, it was.
10 Q. You have been deposed in other matters outside
11 of law enforcement?
12 A. Correct.
13 Q. Were those matters where you were a party to a
14 lawsuit?
15 A. Yes.
16 Q. What lawsuit -- is that one or more?
17 A. Several. 1986 I was involved in a car accident
18 in Kansas City, Missouri, a drunk rear-ended me
19 and didn't have insurance, the car didn't belong
20 to him, my insurance carrier was Farm Bureau
21 Insurance and they basically denied uninsured
22 motorist coverage, and I had to take a suit
23 against my own company to get covered.
24 And recently I was involved in a suit
25 over the purchase of some real estate, and it
7
1 was filed in like in 1992, '93, where I had to
2 sue the owners of my home. Actually people that
3 I bought the home from. Barbara and Michael
4 Mitchell, Bell Pest Control, Terra Firma
5 Inspections. And then there was a suit that was
6 a spin off suit where I sued the insurance
7 carrier for the real estate company. I can't
8 remember their names.
9 Q. The real estate company that sold you the house?
10 A. Uh-huh.
11 Q. Yes?
12 A. Yes.
13 Q. So is it safe to assume that you understand that
14 the deposition process?
15 A. Yes.
16 Q. How long have you worked security at Dillard's
17 Oak Park?
18 A. I think I worked there probably '89, June of
19 '89, June of '90. It would have been sometime
20 like June of '90. It had to have been after
21 June of '90 because I had to put in a year and
22 get off probation before I can do off duty. I
23 worked off and on for about a year.
24 Q. You are no longer working with Dillard's?
25 A. No.
8
1 Q. Do you remember the name of the person that
2 would have been responsible for managing
3 security, a Dillard's employee?
4 A. Through the police department?
5 Q. No, who would have been over security in general
6 at Dillard's Oak Park?
7 A. I remember who was in charge. I think her name
8 was Marvie Dirks, but I don't know if she was
9 actually involved with security or if she was
10 just like upper management of Dillard's. I
11 don't really know. I didn't have very much
12 dealings with her.
13 Q. Why is it that you think she was involved with
14 management of security?
15 A. Well, everybody kind of -- when we were there
16 everybody brought up the name Marvie Dirks. And
17 I had some limited contact with her, and she
18 would ask us to do certain things, but I didn't
19 sit down with her and talk with anyone about
20 what her actual title was, what she did, what
21 she was in charge of, that kind of stuff, I
22 don't know.
23 Q. When you started working security for Dillard's
24 did you receive any training?
25 A. No.
9
1 Q. Did you receive any policies and procedures, dos
2 and don'ts that you were to follow in carrying
3 out your job title or description.
4 A. I think they gave us something at the beginning
5 of employment. It was just like an information
6 type sheet. And I think they had us read it and
7 sign it. But again, it was so long ago I don't
8 remember that much about it.
9 Q. During the time that you worked -- you said it
10 was about a year on and off?
11 A. Roughly a year, somewhere around in there.
12 Q. During that rough estimation of a year were you
13 aware of any complaints made by African-American
14 shoppers that they were treated differently than
15 other shoppers?
16 A. I believe that from time to time some
17 African-Americans made some complaints with
18 Dillard's, but about what they were I have no
19 idea.
20 Q. What makes you believe that complaints of an
21 unknown nature were made?
22 A. I just remember other employees, other officers
23 talking about people making complaints with
24 management.
25 Q. Were you aware of any incidents where
10
1 African-American shoppers were called on to be
2 investigated as shoplifting suspects where there
3 was no basis for the call?
4 A. Quite a few times that I was there.
5 Q. Okay. Can you describe those quite a few times?
6 A. That was pretty routine that somebody who we
7 called associates would -- basically sales
8 persons -- would call us up and say something
9 along the lines of there is a black person
10 walking around in our department up here, could
11 you come up and check them out. I know they are
12 going to do something.
13 Basically we ask them what are they
14 doing at the present time, and routinely it
15 would be something along the lines, well, they
16 are not doing anything right now, or something
17 along those lines. Basically we would tell them
18 to call us when something is going on.
19 Q. Did you ever talk with any of the associates --
20 or do you recall any of the names of the
21 associates that made those calls?
22 A. No, I don't.
23 Q. Did you ever talk with any of the associates and
24 inquire as to why you were getting those calls
25 on African-American shoppers that were without
11
1 basis?
2 A. I think we basically told them that we didn't
3 want them calling unless something was going on.
4 We weren't going to follow people just because
5 of their color, but if we get into an in-depth
6 conversation with them, I don't remember that.
7 But I recall telling them we don't follow people
8 because of their race.
9 Q. Did the associates ever tell you that the reason
10 why they were making those type calls that you
11 just described is because that's what they were
12 told to do?
13 A. No.
14 Q. Did you ever discuss any of the baseless calls
15 that you just described where African-American
16 shoppers were called on by the associates with
17 anyone in management? This is during the time
18 that you worked there.
19 A. I know for sure that I didn't talk with anyone
20 in upper management. I couldn't say for sure I
21 have ever talked with any associates or not
22 except to tell you what I told them before that
23 we weren't going to follow people because of
24 their race.
25 Q. By upper management, what do you mean?
12
1 A. Marvie Dirks.
2 Q. Marvie Dirks and up?
3 A. And up.
4 Q. When you say it was pretty routine for you to
5 receive calls from associates to come and
6 investigate African-American shoppers by virtue
7 of their presence in the department, what do you
8 mean by pretty routine?
9 A. Seemed like -- well, I think at the time I was
10 working Sundays, and it seemed like at least
11 every other Sunday, at least, I would probably
12 get a call from somebody saying they have an
13 African-American walking through the department,
14 can you come up and check them out or watch them
15 or something along those lines.
16 Q. Okay.
17 A. I wouldn't say it was every single time I was
18 there, but often.
19 Q. At the time you worked there, did you work in
20 uniform?
21 A. Yes, we did.
22 Q. Are you aware, did you ever receive calls from
23 associates regarding white customers walking
24 around in their department that you would
25 consider baseless?
13
1 A. Could you ask that one more time, please?
2 Q. Sure. It was very awkward. I am asking pretty
3 much the same question I asked in reference to
4 the African-American shoppers, but I am relating
5 it to white customers.
6 Did you ever receive calls from
7 associates to come and investigate a white
8 customer as a possible shoplifter and those
9 calls you considered without basis?
10 A. I am sure I did receive some, but I would say
11 they were very limited in number.
12 Q. What is it about the calls that you described as
13 pretty routine where you were called by
14 associates to watch the African-American
15 shoppers that made you believe that it was by
16 virtue of the race of the shopper that the calls
17 were being made? Did you understand that?
18 MS. KOCH: Object to the form of
19 question as vague and overly broad.
20 Q. (By Ms. Finnell) During the calls that you just
21 described as pretty routine, the baseless calls
22 made by associates asking you to come and watch
23 African-American shoppers, what is it about
24 those calls that you reached the conclusion that
25 the call was based on the race of the shopper?
14
1 A. Basically we would ask them what they were
2 doing. We would ask the associates when they
3 would call us what is that person doing in the
4 department, and they would say, they were not
5 doing anything, they are just walking up here
6 right now, and that would lead me to believe
7 that the only reason they were watching them was
8 because of their color since they are not doing
9 anything but shopping in the store.
10 Q. Are you familiar with a shoplifting incident
11 that occurred at Dillard's on April 5th, 1996,
12 at all, in general?
13 A. No, I am not, no.
14 Q. Based on your experience at Dillard's, as a
15 security officer, do you believe that
16 African-American shoppers were treated
17 differently than white shoppers?
18 A. Yes.
19 Q. What is the basis of that belief?
20 A. The fact that routinely we will receive calls
21 from associates about, quote, suspected
22 shoplifters in the store. We would ask them why
23 they were drawing these conclusion, and we would
24 ask what were they doing. Well, they are not
25 doing anything, they are just walking through
15
1 the department right now. But that would lead
2 me to believe that they were treating those
3 customers differently since we didn't get that
4 many calls on the white shoppers.
5 Q. Were there any Kansas Highway Patrol officers
6 working off duty at Dillard's at the time you
7 worked there?
8 A. I think there were a couple, not very many. I
9 think most of the Highway Patrol came on after I
10 left. I think there were a couple there, but I
11 don't know how many or who it was.
12 Q. Are you aware what the goal was of your presence
13 of having you there as a uniformed officer at
14 Dillard's Oak Park at the time you were working
15 security?
16 A. Basically we were a deterrent to shoplifting
17 since we were in uniform. Go around and catch
18 shoplifters when you are wearing a uniform, a
19 gun, and a badge. We were told we were there to
20 be a deterrent.
21 Q. And the calls that you received that you
22 described earlier as pretty routine relating to
23 African-American shoppers, was that throughout
24 the year or so that you were working at
25 Dillard's?
16
1 A. Yes.
2 Q. I don't know if I asked you this or not, but why
3 is it that you didn't speak to anyone in upper
4 management in reference to the calls that you
5 were receiving or your belief that
6 African-American shoppers were being treated
7 differently?
8 A. I don't know if I can really answer that or not
9 because it's been so long ago. But I do recall
10 that basically I just wanted to stay away from
11 that all together. I didn't want to be involved
12 in it, I didn't want to have anything to do with
13 it. And I think at that time I was just trying
14 to wash my hands of the whole thing, just get
15 away from Dillard's. And that's what I ended up
16 doing, but I don't know specifically why I
17 didn't go to upper management and tell them what
18 was going on.
19 Q. Based on the incidents you just gave, is that
20 part of reason why you left Dillard's?
21 A. Yes, it is.
22 MS. FINNELL: I have no further
23 questions.
24 EXAMINATION BY MS. KOCH:
25 Q. Detective Cole, when you were talking about the
17
1 incidences where you were called by sales
2 associates for what you called baseless calls
3 regarding African-American shoppers, you said
4 you don't remember who is the sales associates
5 were. Can you physically describe any of them
6 today?
7 A. No, I cannot.
8 Q. Can you tell us how many sales associates were
9 involved in these calls that you were personally
10 aware of?
11 A. I couldn't give you a specific number. It
12 wasn't only one person, it was several different
13 people, coming from several different
14 departments, but I can't remember exactly who
15 they were.
16 Q. Do you know if any of those several people still
17 work at Dillard's today?
18 A. No, I don't.
19 MS. KOCH: I have no further
20 questions.
21 MS. FINNELL: I have nothing
22 further.
23 (The deposition concluded at 3:05
24 p.m.)
25
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1 IN RE: Hampton vs. Dillard's
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24 ______________________
David Cole
25 JLW
19
1 IN RE: Hampton 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 David Cole
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 JLW
20
1 C E R T I F I C A T E
2 I, Judy L. Whitehouse, a Notary Public of
3 the 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 18th day of
17 September, 1997.
18
19
20
21
22
23 Judy L. Whitehouse
24 Notary Public, State of Kansas
25 My commission expires 8/24/00