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 GREGORY POWELL, 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
Gregory Powell:
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: GREGORY POWELL PAGE:
8 Examination by Ms. Finnell 3
Examination by Ms. Koch 54
9 Reexamination by Ms. Finnell 66
Examination by Mr. Santos 69
10 Reexamination by Ms. Koch 70
11
12
EXHIBITS: (NONE)
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 (The deposition commenced at
2 9:05 a.m.)
3 GREGORY POWELL,
4 a witness, being first duly sworn, testified
5 under oath as follows:
6 EXAMINATION BY MS. FINNELL:
7 Q. Good morning. Would you please state your
8 name.
9 A. Gregory Powell.
10 Q. What is your address?
11 A. [Deleted]
12 Q. Is that in Overland Park, Kansas?
13 A. [Deleted]
14 Q. Would you describe your -- well, let me start
15 over, actually.
16 My name is Kathy Finnell and I am an
17 attorney for the plaintiffs in this case. Our
18 firm is Arthur Benson & Associates, and
19 basically what we're doing today is taking a
20 deposition of you which will be basically an
21 inquiry or questions and answers.
22 Have you ever been deposed before?
23 A. Yes.
24 Q. Under what circumstances?
25 A. There was a lawsuit going here I think between
4
1 employees and the City of Overland Park which
2 would have been Jerry Jones and Angie Redpath.
3 Q. Angie who?
4 A. Redpath.
5 Q. Redpath?
6 A. Redpath, yes.
7 Q. Did you also testify in that case?
8 A. No, I didn't.
9 Q. Do you know what the nature of that case was?
10 A. Kinda sorta. Mike probably knows more about it
11 than I do as far as --
12 Q. I'm sorry?
13 A. Mike probably knows more about it than I do.
14 Q. When you say "Mike," are you referring to legal
15 counsel, Mike Santos?
16 A. Yes. I don't know if there was a question about
17 discrimination. I think that's what it was.
18 Q. What was your involvement in the case?
19 A. Just being a black employee of the City of
20 Overland Park.
21 Q. Have you ever been deposed in any other type
22 setting?
23 A. No, I haven't.
24 Q. Have you ever testified in any cases?
25 A. As far as discrimination?
5
1 Q. In general.
2 A. In general, oh, yeah, we testify all the time,
3 police officers do.
4 Q. Have you testified in anything other than as
5 your capacity as an officer?
6 A. No, I haven't.
7 Q. It's important that you understand today that
8 the testimony that you're giving today in this
9 deposition would be the same as if you were
10 giving it in court. You understand that?
11 A. Yes, I do.
12 Q. I also need to give you just a couple of ground
13 rules which, if you forget, we will just remind
14 you of.
15 This is going to be question and
16 answer. You will probably be asked questions by
17 both myself and counsel for the defendant in
18 this case.
19 It's very important if you don't
20 understand a question to say that so that we can
21 clarify it. Is that okay?
22 A. Yes.
23 Q. It's also going to be very important to try to
24 resist the temptation to answer questions with
25 nods and/or uh-huhs or huh-uhs because
6
1 everything that's being said here is being taken
2 down by the court reporter and there are just no
3 keys for those type responses. Okay?
4 A. I understand.
5 Q. If you forget, one of the three attorneys in
6 here and/or the court reporter will probably
7 remind you.
8 A. Okay.
9 Q. Would you please describe your educational
10 background.
11 A. Two years of college.
12 Q. Where?
13 A. Belleville Junior College. Belleville,
14 Illinois.
15 Q. Are you from Illinois?
16 A. Yes.
17 Q. Where are you from?
18 A. Alton, Illinois.
19 Q. Where?
20 A. Alton, Illinois.
21 Q. A-l-t-o-n?
22 A. Yes.
23 Q. How long have you been in the Kansas City area?
24 A. Came here in 1982. I guess that makes it 15
25 years.
7
1 Q. Have you had any other college outside of the
2 two years at Bellview?
3 A. It's Belleville Junior College, and no.
4 Q. Did you receive an associates at all?
5 A. No.
6 Q. Will you describe your professional experience.
7 A. Hired on with the Kansas City Missouri Police
8 Department and went through their police
9 academy.
10 Q. When was that?
11 A. From '84, and I was on the street in '85.
12 Q. And then?
13 A. Hired on here in '86, August of '86, and I've
14 been here eleven years.
15 Q. Did you go through any type of academy or
16 training when you joined the Overland Park
17 Police Department?
18 A. I went for two weeks of Kansas law.
19 Q. Outside of the training you received at the --
20 would that have been the Kansas City Regional
21 Academy?
22 A. For Kansas City, Missouri, yes. Here, it was --
23 oh, I forgot what they were calling it then --
24 Johnson County Law Enforcement Academy, I think.
25 Q. Are you a member of any professional
8
1 organizations?
2 A. No.
3 Q. What, if any, off-duty jobs have you held during
4 your tenure as a police officer?
5 A. Dillard's Oak Park Mall, JC Penney Outlet, and
6 there are temporary off-duty assignments that
7 are like one-time things that would be at the KC
8 Merchandise Mart.
9 Q. In all those positions were you acting as
10 security?
11 A. Yes.
12 Q. When did you start working for Dillard's? And
13 that's at Oak Park Mall, you said?
14 A. Yes. I think it was 1987.
15 Q. How long did you work off-duty there?
16 A. I was with them for about seven years.
17 Q. So you stopped in about '94?
18 A. Well, I got stopped in about -- probably about
19 '95.
20 Q. What do you mean by "got stopped"?
21 A. Their policy initially was to deter crime, and
22 it didn't change in writing, but it did change
23 to the amount of arrests that you made.
24 In other words -- can I expand on that
25 a little bit?
9
1 Q. Yes, please.
2 A. Okay. In other words, your hours were set up
3 according to -- or the number of times that you
4 worked per week were assigned according to the
5 number of arrests that you made.
6 Overland Park Police Officers were
7 told to wear their uniforms when they reported
8 to work, and therefore, you had a hard time
9 catching shoplifters walking around in uniform.
10 Q. Do you know when that change occurred, how long
11 you had been working there?
12 A. It would have been probably -- probably the year
13 before they let me go.
14 Q. So in about '94?
15 A. Something like '94.
16 Q. So from '87 to '94 the policy was to deter --
17 A. Yes.
18 Q. -- shoplifting?
19 A. Uh-huh.
20 Q. Yes?
21 A. Yes; I'm sorry.
22 Q. That's okay. It's a human habit, and everybody
23 does it.
24 Then sometime in '94 the policy,
25 though not in writing, changed?
10
1 A. Yes, it did.
2 Q. It changed from deterrence to what?
3 A. Arrests per person.
4 Q. How was this communicated to the security
5 officers?
6 A. It really wasn't. It was -- it just seemed
7 that -- well, it just was that the people that
8 were making more arrests seemed to get all the
9 hours, and the people that didn't make arrests
10 and were just deterring, as it originally
11 started, just didn't get the hours. You went
12 from working three days a week to working maybe
13 one day a week.
14 Q. At some point you said that your employment with
15 Dillard's was terminated. Was that by you or by
16 them?
17 A. It was by them. It was just -- and they don't
18 terminate you, so to speak, they just tell you
19 that we don't have anymore -- we don't have any
20 hours for you to work this month, which is the
21 same thing.
22 Q. How, if at all, did this change in policy affect
23 the activities of the security officers,
24 security personnel?
25 A. Well, those that apparently had got their
11
1 living -- made their living dependent on
2 Dillard's were out there arresting more people.
3 Q. What other jurisdictions worked off-duty at
4 Dillard's at the time that you were there?
5 A. It got to be predominantly Kansas Highway
6 Patrol.
7 Q. Before the change what was it?
8 A. We had -- had still -- I think Merriam still is
9 in there, Merriam Police Department. At one
10 time you had Gardner Police Department in there.
11 I think way back, probably before I got in
12 there, Lenexa Police Department was in there,
13 but that was a long time ago. I think that
14 pretty well covers it.
15 Q. Were those officers working in uniform?
16 A. No, they weren't.
17 Q. Was Kansas Highway Patrol working in uniform?
18 A. No.
19 Q. To your knowledge was anyone other than Overland
20 Park working in uniform?
21 MS. KOCH: Object to the form of your
22 question as vague and overly broad in failing to
23 specify a time period.
24 Q. (By Ms. Finnell) During the seven years that
25 you worked security at Dillard's, was anyone --
12
1 any of the jurisdictions or officers that were
2 working security working in uniform other than
3 Overland Park?
4 A. Merriam worked in uniform from time to time.
5 Q. Why didn't Overland Park work in plainclothes?
6 A. It was policy -- and that was Dillard's
7 policy -- that when we come to Dillard's, we
8 work in uniform.
9 Q. Is there any policy that Overland Park has or
10 requirement that Overland Park has?
11 A. I don't think Overland Park is specific on
12 whether you work in uniform or not.
13 Q. Earlier you stated that the officers who were
14 basing their living on Dillard's employment
15 began making more arrests.
16 How, if at all, and if you're aware,
17 did that change the nature of interaction
18 between security and shoppers in general during
19 the time that you were there?
20 MS. KOCH: Object to the form of your
21 question as vague.
22 A. Do you want me to answer it?
23 Q. (By Ms. Finnell) Oh, I'm sorry. Yes. From
24 time to time there will be objections made and
25 once the objections have been made, unless
13
1 they're by your counsel and it's --
2 A. Oh, okay.
3 Q. -- something privileged, then you can answer the
4 question.
5 A. Well, I would say that it would cause -- it
6 caused friction, as it would if the same thing
7 happened on the street.
8 If I was in patrol, if you're stopping
9 people all the time, you're gonna run into
10 people that, you know, are gonna have a problem
11 with it.
12 Q. By "friction," can you elaborate on that?
13 A. We had people that were accusing us of watching
14 them all the time, following them all the time.
15 Q. Who was your supervisor?
16 A. At Dillard's?
17 Q. Yes; I'm sorry.
18 A. Would have been Marvie Dirks, D-i-r-k-s.
19 Q. To what extent is she involved in the personnel
20 or the security -- the activities -- the
21 day-to-day routine activities of the security
22 officers?
23 A. I would say she's not. All she -- all she
24 basically does is make sure the hours are
25 scheduled. She does not -- it's not like we
14
1 check in with her every day or anything like
2 that.
3 Q. Would she have been the one to have changed the
4 scheduling from -- as you described it earlier,
5 based on arrests per person?
6 MS. KOCH: Object to the question as
7 vague, mischaracterizing previous testimony, and
8 failing to set proper foundation.
9 Q. (By Ms. Finnell) You testified earlier that
10 there was a change in policy from deterrence to
11 arrests per person --
12 A. Yes.
13 Q. -- and that that change in policy affected the
14 amount of hours that officers received?
15 A. I -- well, okay. I can't say positively.
16 Hearsay at the time was that it came from
17 Arkansas, which is, I guess, their corporate
18 office.
19 Q. The change came from Arkansas?
20 A. Yes.
21 Q. Who implemented the change?
22 A. I really don't -- I couldn't pinpoint that.
23 Q. But Marvie Dirks did the scheduling?
24 A. Administered it, yes.
25 Q. What type of training did you receive when you
15
1 began Dillard's employment off-duty?
2 A. Training for that?
3 Q. Yes.
4 A. None.
5 Q. Did you receive any on-the-job training?
6 A. No.
7 Q. Were you ever paired up with, say, a senior
8 security officer?
9 A. No.
10 Q. Did you go through any type of orientation?
11 A. No.
12 Q. Was there anyone at Dillard's who set out the
13 do's and don'ts for security officers?
14 A. We were given a form -- not -- a list of -- a
15 list of rules on what is and what isn't, so to
16 speak, and one of those was the deterrence
17 thing. "We are here to deter crime." It was
18 in, you know, bold print.
19 And that's all we were given. Kind of
20 company-policy type things really, not so much
21 as what security does and what they don't do,
22 but it was more a general company policy type
23 of -- type of thing, really.
24 Q. Outside of the broad, general -- I think you
25 described them as company policies that you were
16
1 given, was there ever any instructions or
2 directives given to the officers in terms of how
3 to specifically handle calls or how not to
4 handle calls?
5 A. In a way. There were parameters, like, because
6 the way it went was, the person who worked on a
7 clothing path would call you. "I have
8 suspicious XYZ. Can you respond and watch
9 them?"
10 It got to be where they had to
11 either -- either they had to see the offense or
12 we had to see the offense. Of course, in
13 uniform, you're not gonna see much, so it relied
14 heavily on the person -- the salesperson who
15 was working on that path to have seen something
16 that would give us reasonable suspicion to watch
17 this person.
18 Q. So to what extent was there self-initiated
19 observations of the officers then?
20 MS. KOCH: Object to the form of your
21 question as vague.
22 A. Well, in uniform that was nonexistent,
23 basically. If you're standing there in uniform,
24 nobody in their right mind is gonna actually try
25 to steal something.
17
1 Q. (By Ms. Finnell) Are you aware of -- go ahead.
2 A. Especially the pros.
3 Q. Are you aware of any self-initiated observations
4 of other officers who were not in uniform?
5 MS. KOCH: Object to the form of your
6 question as vague.
7 A. Yes, yes, there was.
8 Q. (By Ms. Finnell) Can you give me some
9 descriptions of those or examples of those?
10 MS. KOCH: Again, object to the form
11 of the question as vague.
12 A. There -- well, when you had your plainclothes
13 people working in there, they would see
14 things -- or especially the female that I
15 mentioned earlier was very inconspicuous because
16 she came in plainclothes even though she did
17 work for Overland Park.
18 She would simply act as if she were
19 shopping and could basically walk right up next
20 to people that were -- or get very close to
21 people that were stuffing stuff in bags and
22 stuff like that.
23 Q. (By Ms. Finnell) When you say -- earlier you
24 referred to the "offense"?
25 A. Uh-huh.
18
1 Q. What offense in particular were you referring
2 to?
3 A. Shoplifting.
4 Q. Also earlier you referred to "reasonable
5 suspicion." What did you mean by that?
6 A. Well, reasonable suspicion would be, for
7 example, someone had went into a dressing room
8 with four items and came back with two items,
9 and then after the dressing room was checked,
10 there was nothing in the dressing room.
11 So you could call reasonable suspicion
12 some -- the clothes went somewhere, so I would
13 say that would give us cause to at least ask the
14 question "Do you know where these clothes are?
15 Did the salesperson come and put them back on
16 the rack or...?"
17 And of course, when you have the
18 salesperson saying, "I haven't been in the
19 dressing room since this person's been in
20 there...."
21 Q. Okay.
22 A. So we rely heavily on salespeople. Of course,
23 we can't be in the dressing rooms and that type
24 of thing, so....
25 Q. When you said earlier that the arrest -- the
19
1 emphasis on arresting people caused friction,
2 what did you mean by that?
3 A. Well, I mean that more people were being
4 approached or more people were being followed
5 with the suspicion that they may have stolen
6 something.
7 When that started happening, then
8 Dillard's kind of started building a reputation
9 that, you know, they follow people around the
10 store, and then what you would have is
11 confrontations with some people that were just
12 being followed, and they would turn around and
13 confront the security people and have arguments
14 with them and that type of thing.
15 Q. Were there any people in particular that were
16 being followed, any types of people that were in
17 particular being followed?
18 MS. KOCH: Object to the form of your
19 question as vague.
20 A. It seemed to me and -- while I was there, that
21 primarily black people were being followed or
22 people of color.
23 Q. (By Ms. Finnell) Why did it seem like that to
24 you?
25 A. Because it seemed like every time I responded to
20
1 an incident, I was talking to black people.
2 Q. When you say "incident," what do you mean by
3 that?
4 A. Well, it would go -- an undercover or an
5 undercover officer would stop somebody and then
6 they would call for the uniform person to come
7 and enforce or let the people know that the
8 police are involved and would help temper the
9 situation, hopefully.
10 Q. Was that part of the process that they would
11 call the uniform officers to come to, what,
12 assist?
13 A. Well, yeah, you would -- because you have to
14 understand, the uniform officer might be
15 standing upstairs and nobody's stealing anything
16 around him, and they may be downstairs trying to
17 apprehend or trying to question a person. And
18 then I would hear -- they would -- there would
19 be a call over the intercom signaling that I
20 should respond to that area.
21 Q. What would that call be?
22 A. It was usually 99. 99 to menswear or --
23 Q. 99 meant what?
24 A. 99, it meant an emergency.
25 Q. Did that mean for every security to respond?
21
1 A. Yes, but throughout my time there, after a while
2 we got radios, so then they could just call you
3 on the radio and say, Would you come downstairs?
4 I've got this, that, and the other going.
5 Q. Are you familiar with codes that were used to
6 describe suspects?
7 A. I -- I think the troopers brought that in and
8 kind of spread that throughout the mall because
9 mall security picked it up too.
10 Q. When you say --
11 A. I never -- I never used any codes.
12 Q. When you say "troopers brought that in," what
13 are you referring to?
14 A. The codes.
15 Q. What exactly were the codes?
16 A. And I don't even know, because I would have to
17 ask somebody what that meant when they would say
18 something.
19 Q. Were there -- do you know whether the codes
20 distinguished between races?
21 A. Yes.
22 Q. You know that?
23 A. Yes.
24 Q. And did they?
25 A. Yes.
22
1 Q. Do you know whether the codes distinguished
2 between gender -- or did the codes distinguish
3 between gender?
4 A. I don't think they got quite that specific.
5 Q. Were you working at Dillard's on April 5, 1996?
6 A. No, ma'am.
7 Q. Can you recall any specific incidents involving
8 African-Americans that would fit into what you
9 characterized as -- well, let me ask you this.
10 Are you aware of incidents where African-
11 Americans complained of being followed?
12 MS. KOCH: Object to the form of the
13 question as vague and overly broad.
14 Q. (By Ms. Finnell) And this is during the time
15 that you worked there, being followed by
16 security?
17 MS. KOCH: Same objection.
18 A. Yes. There was -- and I wasn't working that
19 particular night, but there were incidents where
20 black law enforcement were followed. And in
21 fact, the person I mentioned earlier, Officer
22 Jerry Jones, at that time -- she's not an
23 officer right now, but at that time, she was an
24 officer and she was working off-duty in
25 Dillard's.
23
1 While she was in an area, a
2 description of her was given as a suspicious
3 person to the point where she picked up the
4 phone and said, "Well, that's me," to the other
5 salesperson across the way that was calling her
6 in as a suspicious person.
7 Q. (By Ms. Finnell) Are you aware of any other
8 incidents?
9 A. Officer Byron Pierce and his wife were followed
10 in Dillard's South.
11 Q. Anything else?
12 A. I don't think we have that much time. Oh --
13 Q. Are there a large number of incidents?
14 MS. KOCH: Object to the form of your
15 question as vague.
16 A. There were some bad stops, and I'll probably
17 just leave it at the law enforcement. I think
18 the law enforcement and people that were
19 actually employed as Dillard's Security that
20 were called as suspicious people are probably
21 the paramount events, actually.
22 Q. (By Ms. Finnell) I know that you're considering
23 time, but we need to hear the other incidents of
24 any person, whether they were law enforcement or
25 not, even if they were just a regular citizen
24
1 who wouldn't be able to pick up the phone or
2 wouldn't be able to identify themselves as law
3 enforcement.
4 MS. KOCH: Again, object to the form
5 of your question as vague.
6 A. There was a black female that was detained that
7 claimed that she was either married to or
8 engaged to a Kansas City Chiefs football player
9 and that she had just come in the week before
10 and spent like $2,000 on clothes and comes there
11 all the time and couldn't understand why she was
12 being asked about stealing anything or why would
13 she steal anything.
14 Q. (By Ms. Finnell) Do you know when this would
15 have occurred?
16 A. That was probably four years ago.
17 Q. '93?
18 A. Approximately.
19 Q. Do you recall her name at all?
20 A. Not really, no.
21 Q. Were you on duty at that time?
22 A. Yes, I was there.
23 Q. To whom was she making or stating her concerns?
24 A. Security, all the security people that were
25 there.
25
1 Q. How were her concerns responded to?
2 A. I don't know how far she went with it. I don't
3 know if she got Dillard's management involved or
4 not. She hadn't stolen anything, so....
5 Q. How were the officers responding to her
6 expressed concerns?
7 A. It was -- we get -- we told her that we get a
8 call by a salesperson to come and check some
9 people out and that's our job and that's what we
10 have to do.
11 Q. So let me ask you this. The change in policy
12 from deterrence to making arrests, did that
13 affect the -- only security, or did it affect
14 other employees of Dillard's?
15 MS. KOCH: Object to the form of the
16 question to the extent it's vague, it
17 mischaracterizes prior testimony, and it lacks
18 foundation as to this specific witness.
19 A. It would have only been security. I don't think
20 the salespeople were being pressed -- the
21 salespeople were being pressed for sales. They
22 weren't being pressed for how many shoplifters
23 you can catch.
24 Q. (By Ms. Finnell) The incident you just
25 described was one where security responded to a
26
1 call from --
2 A. Yes.
3 Q. -- a salesperson?
4 A. That is going to be every case -- most cases,
5 I'll say.
6 Q. Why is that?
7 A. Because the salespeople usually see what's going
8 on in their area and also have more of a handle
9 on merchandise and how much is there and how
10 much it costs and that type of thing.
11 Q. Are you aware of cases where it didn't begin
12 with a salesperson -- or incidents?
13 A. There were -- there were some cases where the
14 plainclothes people were following people around
15 and would see them do things, and in some of
16 those -- I'm not saying every situation was a
17 bad situation.
18 Of course some of those situations
19 were good situations where they were standing
20 there watching people steal stuff, so I'm not
21 trying to fault a trooper or anybody that was in
22 plainclothes.
23 Q. But there were situations when --
24 A. It was a bad stop.
25 Q. Describe some of those situations.
27
1 MS. KOCH: Object to the form of the
2 question as vague.
3 Q. (By Ms. Finnell) Describe some of the
4 situations that you would qualify as a bad stop.
5 MS. KOCH: Same objection.
6 A. Well, the situation in Dillard's is -- to kind
7 of give you an outline, for example -- and I
8 don't know if you've ever been to the JC Penney
9 Outlet -- or any grocery store; that's probably
10 better.
11 All the cash registers are located in
12 one place. They're all right in one end of the
13 store, and you have to go through them to pay
14 for your merchandise. It's just that simple.
15 Dillard's is not set up like that.
16 They have a cash register on each path and they
17 allow people to walk from one place to the other
18 to, after you buy a dress, then get the
19 accessories for that dress -- jewelry, whatever
20 goes with the dress -- to move to another area
21 to do that.
22 And sometimes that area -- the dress
23 may be upstairs and the accessories may be
24 downstairs -- handbag, whatever -- and then you
25 can pay for everything at whatever cash register
28
1 that you wind up at.
2 So it seemed that there were people
3 that would walk all over the store with
4 merchandise and not have a problem, and there
5 were other people -- and I think the situation
6 that I cited for you was this person simply
7 trying to match up her accessories and wound up
8 getting stopped.
9 Q. (By Ms. Finnell) When you say there were people
10 who could walk all over the store and not have a
11 problem, and then there were others, what do you
12 mean? What people are you referring to who
13 could walk all over the store?
14 A. There were -- in my opinion. Okay? I never saw
15 a white female get stopped for walking all over
16 the store with merchandise.
17 Q. Who were you referring to when you said there
18 were people who would do that same thing and be
19 stopped?
20 A. And there were black females that would be --
21 if they walked too far with merchandise, they
22 would get stopped.
23 Q. By security?
24 A. Well, the way it would go is -- is that the
25 salespeople would call and the salespeople would
29
1 say, Well, she's got such-and-such merchandise
2 and now she's walking over here and she's
3 walking over there and she's doing this and
4 she's doing that.
5 Q. Would that be described as suspicious behavior?
6 A. Well, apparently to the salespeople, it would
7 be, but the thing was, we were obligated to
8 respond.
9 If they called, we were obligated to
10 respond, and that's the position we were put in.
11 And it was up to us to determine whether it was
12 of suspicious nature or just routine shopping.
13 We had to do that through experience
14 that we had either working in the store or
15 having dealt with shoplifters over the years as
16 being a police officer.
17 Q. There was no policy or anything that --
18 A. No, it was our discretion, see, at that point.
19 Q. I need to go back to what you said about people
20 who could walk all over the store and not get
21 stopped. You're referring to white people?
22 A. White females, yes.
23 Q. People who would walk all over the store or even
24 stray too far from a department carrying
25 merchandise and would be stopped, who are you
30
1 referring to?
2 A. Black -- black females.
3 Q. What would happen when they were stopped, the --
4 MS. KOCH: Objection.
5 Q. (By Ms. Finnell) -- black females that you --
6 MS. FINNELL: I'm sorry. Go ahead.
7 MS. KOCH: Object to the form of the
8 question as vague and overgeneralized.
9 Q. (By Ms. Finnell) The black females that you
10 were just referring to that if they strayed too
11 far from the -- you referred to them as paths?
12 A. Well, yeah, sales areas.
13 Q. What --
14 MS. KOCH: Well, go ahead and finish
15 your question and I'll make my objection.
16 Q. (By Ms. Finnell) Well, what happened when they
17 were stopped?
18 MS. KOCH: Object to the form of your
19 question as vague, overly broad, and maybe
20 calling for speculation on the part of this
21 witness.
22 A. Well, then what you would get is the
23 confrontations of "Why are you stopping me?" and
24 "What's the problem?" and....
25 Q. (By Ms. Finnell) Did you ever personally
31
1 witness any of these stops?
2 A. Yes.
3 Q. Of those that you personally witnessed, how was
4 the -- and "these stops" I'm referring to are
5 the stops of the black females.
6 A. Uh-huh.
7 Q. How was the black female approached?
8 MS. KOCH: Again, object to the form
9 as vague and overly broad.
10 Q. (By Ms. Finnell) By the security officer?
11 A. Every time I was present on the approach, we
12 approached these people in a very professional
13 manner. We were not accusative.
14 Q. When you say "professional," what do you mean?
15 Can you be more specific?
16 A. "Ma'am, I need to talk to you about something
17 that might be missing from a sales area. Do you
18 have it? Do you mind if I check your bag to see
19 if you -- what you have in your bag?"
20 If there got to be a conflict from
21 there, "We're just doing our job. If you
22 haven't --" and my favorite line was, "If you
23 haven't done anything wrong, then there
24 shouldn't be a problem."
25 Q. Okay.
32
1 A. Which, of course, didn't erase the humiliation
2 of being stopped by a uniformed security officer
3 in the middle of Dillard's while everybody's
4 walking by, you know, and of course looking
5 and....
6 Q. Did you ever observe stops of black females by
7 plainclothes officers?
8 A. Yes, I did.
9 Q. Would the fact that the officer had plainclothes
10 on change the level of humiliation experienced
11 by the person being stopped?
12 A. I would say no because the first thing that that
13 plainclothes person is obligated to do is
14 identify himself as Dillard's Security. And of
15 course, later on, even show a badge to that
16 effect, which I think they got on their own.
17 So I would say no. I mean they felt
18 they were being accused even if they hadn't done
19 anything wrong.
20 Q. "Do you mind if we check your bag?" is the last
21 thing that you ended with in terms of what
22 happens when the black females were stopped.
23 What else happened after that?
24 A. And generally, this would be outside the store.
25 Because that -- I like to -- if I was involved,
33
1 I liked to make my stops outside of the store.
2 Q. In the mall?
3 A. Well, it would be outside of Dillard's.
4 Dillard's has outside exits, so if we're out on
5 the sidewalk of Dillard's, it's going to be
6 fairly obvious that if you didn't plan on paying
7 for it, it would be kind of -- like to say, "I
8 forgot to pay for it" or something like that is
9 gonna be kind of weak.
10 Q. Did you ever make any stops inside the store?
11 A. I didn't because that just isn't the way I did
12 business.
13 Q. Why is that?
14 A. For what I just said, if you plan on depriving
15 the store of the property, it would be outside
16 of the store.
17 Q. To what extent, if any, is that based on the
18 Kansas law? And I mean what you just said in
19 terms of if you planned to deprive the store of
20 the property.
21 A. Yes.
22 MR. SANTOS: I'm going to object to
23 that. I don't think it's a proper question to
24 ask the witness. What Kansas law is on that
25 subject obviously speaks for itself, whatever it
34
1 might be and it's therefore an improper
2 question.
3 MS. KOCH: I share in the objection.
4 Q. (By Ms. Finnell) This question is based on an
5 earlier statement that you made that you
6 received two weeks of training in Kansas law
7 when you became an Overland Park Police Officer.
8 MR. SANTOS: I'm sorry. Maybe I'm
9 missing your question, but I assume that he was
10 referencing that when he became a Kansas Law
11 Enforcement Officer as opposed to a Missouri Law
12 Enforcement Officer, he received training on
13 being a Kansas Law Enforcement Officer, not
14 training in the law concerning security officers
15 while working off-duty.
16 So I again object to that. I don't
17 think it's a proper question even if he knew
18 what the law was. If you want to know what the
19 law is, that's fine, but I don't think it's a
20 proper question to ask this witness what the law
21 is.
22 MS. KOCH: I share in the objection.
23 Q. (By Ms. Finnell) I'm not asking you what the
24 law is. Let me just go back.
25 When you were talking about the
35
1 training you received, did you receive training
2 when you transitioned from Kansas City, Missouri
3 to Overland Park that -- did you receive
4 training on the specific laws, criminal laws, I
5 guess in particular, of Kansas?
6 A. Yes.
7 Q. Would any of those laws that you received
8 training on encompass laws that would apply to
9 shoplifting activities, theft?
10 A. It would be theft, yes.
11 Q. Do you understand it to be -- to what extent do
12 you understand it to be your job, either as an
13 Overland Park Police Officer or as a Dillard's
14 Security Officer to enforce Kansas laws?
15 MR. SANTOS: I'm going to object to
16 that. I believe that is a vague question in
17 that reference to the word "job" is not specific
18 enough for him to answer.
19 Q. (By Ms. Finnell) Duties and responsibilities as
20 an Overland Park Police Officer.
21 A. Yes. As an Overland Park Police Officer, it
22 would be a theft, and a theft would be to prove
23 their intent to deprive. I felt more
24 comfortable that them being outside the store
25 would give me solid ground to say that they were
36
1 attempting to or are depriving the store of
2 their merchandise.
3 Q. Did that change any just by virtue of you
4 working -- did that position change by virtue of
5 you working off-duty at Dillard's, or would it
6 be the same as if you were working on duty for
7 Overland Park?
8 A. It would be --
9 MS. KOCH: Object to the form of the
10 question as vague.
11 Go ahead.
12 A. It would be the same.
13 Q. (By Ms. Finnell) What officer was involved, if
14 you can recall, in the incident where you said
15 that the black female who identified herself as
16 a --
17 A. Wife or fiancee of a sports figure?
18 Q. Yes.
19 A. Well, he's not there anymore, but it was Trooper
20 Cleveland.
21 Q. Trooper Cleveland?
22 A. Cleveland, yes.
23 Q. Would that be Myron Keith Cleveland?
24 A. Yes. I didn't even know his first name.
25 Q. To your knowledge do you know where he worked
37
1 full-time or regular?
2 A. Kansas Highway Patrol. He's not with them
3 anymore.
4 Q. Now, I asked you earlier, are you aware of any
5 incidents where individuals were stopped inside
6 the store? We never quite got to an answer to
7 that question.
8 MS. KOCH: Object to the form of the
9 question as vague --
10 Q. (By Ms. Finnell) And I'll be more specific --
11 MS. KOCH: -- and calling for
12 speculation and calling on things -- speculation
13 on what may be outside this witness's personal
14 knowledge.
15 Q. (By Ms. Finnell) During the time that you were
16 working as a security officer, were you ever
17 called to assist or did you ever respond to an
18 area where a stop had been made inside -- as in
19 not outside the exits -- the premises of the
20 Dillard's store?
21 A. Okay. No, I wasn't, because I think the other
22 security knew that that's just not the way I
23 conduct business. If we're gonna stop people,
24 it's going to be outside the store.
25 Q. I want to make sure this is right. So the fact
38
1 that you weren't involved, is that because stops
2 were not being made inside the stores?
3 MS. KOCH: Same objection. Object to
4 the form of the question as vague and calling
5 for speculation on the part of this witness.
6 Q. (By Ms. Finnell) Are you aware of stops that
7 were made inside the store that you were not
8 called to assist on because of what you just
9 stated, the officers' knowledge that that was
10 not your preferred manner of stopping a suspect?
11 MS. KOCH: Same objection.
12 A. I was not. When I --
13 Q. (By Ms. Finnell) I was not what?
14 A. I was not called to those instances because they
15 didn't happen in the store that I was working
16 in.
17 Q. Are you saying "the store" as in the north or
18 south store?
19 A. Yes.
20 Q. What store were you working?
21 A. Mostly the north store.
22 Q. Okay. Are you aware of incidents where suspects
23 were stopped inside of the south store?
24 MS. KOCH: Again, object to the form
25 of the question as vague.
39
1 A. Yes.
2 Q. (By Ms. Finnell) Will you elaborate on some of
3 those incidents?
4 MS. KOCH: Same objection.
5 A. I really can't because I wasn't involved.
6 Q. (By Ms. Finnell) That's okay.
7 A. The thing is is that when I got involved in
8 those instances, it would be after they were
9 already upstairs in the office and then they
10 called me over to just like help with paperwork
11 or coordinate one of our patrol units to come in
12 or something like that.
13 Like I say, it just isn't the way I
14 did business. And other -- other officers,
15 off-duty officers, may have done their business
16 that way, but I didn't actually see what
17 happened.
18 I heard after the fact that it was
19 thus and so and this person dumped merchandise
20 just before they ran out the door or something
21 like that.
22 Q. Are you aware of any Overland Park policy or
23 directive or memorandum regarding responding or
24 assisting security calls at Dillard's Oak Park?
25 A. As far as me being on patrol, or as far as me
40
1 being in the security and going to the other
2 store or something?
3 Q. Both. We'll start with the security.
4 MR. SANTOS: I'm sorry. Could you
5 restate the question? I kind of lost track of
6 it.
7 Q. (By Ms. Finnell) I said are you aware of any
8 policy -- and that could be in the form of a
9 written directive or memorandum -- of Overland
10 Park Police Department --
11 A. Yes.
12 Q. -- that refers to --
13 A. Well, stating that you will respond to --
14 MR. SANTOS: Let her ask the question.
15 THE WITNESS: Okay.
16 Q. (By Ms. Finnell) That refers to the manner in
17 which Overland Park Police Officers conduct
18 themselves while working off-duty at Dillard's?
19 A. I could say no.
20 Q. Are you aware of any policies in the form of
21 memorandum or other type of directive that
22 refers to the manner in which Overland Park
23 Police Officers conduct themselves while on duty
24 and responding to a call at Dillard's Oak Park?
25 A. No, there is no directive per se. We are always
41
1 expected to respond in a professional manner,
2 whether on duty, off-duty, either way.
3 Q. Are you aware of any memorandum, policy,
4 directive at all of the Overland Park Police
5 Department that refers to Dillard's or pertains
6 to Dillard's Oak Park?
7 A. No.
8 Q. Have you ever been given instructions in any way
9 to be careful or cautious about the manner in
10 which you work with Dillard's Security Officers?
11 MS. KOCH: Object to the form of the
12 question as vague.
13 A. Yes.
14 Q. (By Ms. Finnell) How so were you -- what
15 instruction or precaution were you given?
16 MS. KOCH: Object to the form of the
17 question as vague.
18 A. As responding officers from patrol, to pick up
19 an arrest from Dillard's, we were cautioned to
20 assess the situation and -- meaning how the
21 arrest was made --
22 Q. (By Ms. Finnell) I'm sorry?
23 A. Meaning how the arrest was made --
24 Q. Okay.
25 A. -- and the circumstances that the arrest was
42
1 made under.
2 Q. Do you know why that was?
3 MS. KOCH: Object to the form of the
4 question as calling for speculation.
5 A. We have had some dealings with security
6 individuals that have not made good arrests, did
7 not have probable cause to make the arrest. And
8 therefore, we were told to assess the situation
9 and, if necessary, deny taking the arrest.
10 Q. (By Ms. Finnell) Were you just verbally told
11 this?
12 A. Yes.
13 Q. Did you respond to calls where you assessed the
14 situation and decided not to make an arrest
15 during your tenure with Overland Park?
16 A. I was fortunate in the -- in the few that I
17 responded to, they were proper arrests.
18 Q. Are you aware of other officers who have
19 responded to Dillard's and assessed the
20 situation and decided an arrest was -- or not to
21 make an arrest?
22 MS. KOCH: Object to the form of the
23 question as vague, overly broad, and calling for
24 speculation on the part of this witness as
25 opposed to his personal knowledge.
43
1 Q. (By Ms. Finnell) Are you aware of any officers?
2 A. Only what I've heard.
3 Q. What have you heard?
4 MS. KOCH: Object to the form of the
5 question as vague and overly broad.
6 A. There were officers that responded to Dillard's
7 and found that there just wasn't enough probable
8 cause to....
9 Q. (By Ms. Finnell) Can you give me the names of
10 any of those officers?
11 A. Right off the top of my head, no, I can't.
12 Q. Are there other specific incidents that you can
13 recall where you felt that African-Americans
14 were being targeted as suspects for shoplifting?
15 And this is during your tenure as a security
16 officer for Dillard's.
17 MS. KOCH: Object to the form of the
18 question as vague, overly broad, and
19 mischaracterizing the wording used by the
20 witness earlier.
21 A. Not right off the top of my head, no.
22 Q. (By Ms. Finnell) You just don't recall them?
23 A. I don't recall them.
24 Q. Are you saying in that that there were other
25 incidents that occurred; you just simply can't
44
1 recall them at this time?
2 MS. KOCH: Object to the form of your
3 question as leading the witness and as calling
4 for speculation. The witness has already
5 answered your question.
6 Q. (By Ms. Finnell) I'm just trying to make sure I
7 understand what you're saying. Are you saying
8 that no other incidents occurred? Are you
9 saying that?
10 A. I can't really say that no other incidents have
11 occurred. I can't recall any at this time.
12 Q. Okay. Do you believe that during the time that
13 you worked at Dillard's that African-American
14 shoppers were targeted by security as
15 shoplifting suspects?
16 MS. KOCH: Object to the form of your
17 question as vague and overly broad.
18 A. I can't say positively that they were targeted.
19 All I can say is that it seemed that most of the
20 incidents that I responded to were called on
21 African-American shoppers.
22 Q. (By Ms. Finnell) What effect would the fact
23 that most of the incidents you responded to were
24 on African-American shoppers -- what did that
25 make you think or feel?
45
1 MS. KOCH: Object to the form of your
2 question as vague and confusing and overly broad
3 and calling for speculation on the part of this
4 witness.
5 A. What it made me feel was that just the greater
6 percent of this community is white --
7 Q. When you say "this community," what do you mean?
8 A. Johnson County. The store is located in Johnson
9 County in Overland Park. And if the greater
10 part of this community is white, then why am I
11 seeing black shoplifters every time I respond to
12 an incident -- or black suspects, I should say.
13 Q. I'm going to show you what's been previously
14 marked -- and this is a duplicate of Deposition
15 Exhibit 1. Do you recognize that?
16 MS. FINNELL: I didn't make us a copy.
17 MS. KOCH: (Ms. Koch nodded.)
18 A. Yes, I remember this.
19 Q. (By Ms. Finnell) What do you remember it as?
20 A. These are the rules that we were told to follow.
21 Q. Do you recall when you were given those rules?
22 A. Every year at our evaluations.
23 Q. Okay. Are those the rules you were referring to
24 earlier when you were talking about --
25 A. This is revised.
46
1 Q. Exhibit 1 has been revised since the last time
2 you saw it?
3 A. The original that I was given was -- it was said
4 that we were just to deter. This is just
5 apprehension and investigation, kind of after
6 the fact.
7 MR. SANTOS: Can we take just a short
8 break?
9 MS. FINNELL: Sure.
10 (A recess was taken.)
11 Q. (By Ms. Finnell) Before we went off the record,
12 you were discussing how the Deposition Exhibit
13 No. 1 was different than the one that you were
14 presented with.
15 Other than the fact that it doesn't
16 say that your purpose -- or can you be specific
17 on how this Deposition Exhibit No. 1 document
18 differs from the policies and procedures that
19 you were given during your tenure at Dillard's?
20 A. Well, I think -- it's been a while, but I
21 thought there was another page to this and this
22 is just basically how you handle a situation
23 after you get in the situation.
24 It seemed to me there was another --
25 another page or -- like I say, this is revised,
47
1 and it very -- one of the simple things that it
2 had on there is that we're just there to deter
3 and not even so much to make an arrest.
4 They weren't -- they didn't have an
5 emphasis on arrests then. It was just walk
6 around and keep people from stealing stuff and
7 make them go away if you can, and that was it.
8 Q. You were walking around in uniform?
9 A. Yes.
10 Q. I'm going to show you what's been previously
11 marked in prior depositions as Deposition
12 Exhibits 11 and 12. Have you ever seen any
13 documents resembling those exhibits?
14 A. Yes.
15 Q. When would you have been shown those?
16 A. At the evaluation time she would give us an
17 evaluation and she would give us these, "I know
18 you're familiar with this, but I'll give you a
19 copy of it anyway."
20 Q. When you say "she," are you referring to Marvie
21 Dirks?
22 A. Marvie Dirks, yes.
23 Q. Did you all ever go over the documents together?
24 Did you review the documents?
25 A. Well, she just asked me if I understood it, and
48
1 I said yes. There were times when they were
2 having problem areas, and I think these were the
3 problem areas that were listed (indicating).
4 Q. And you're pointing to the high-theft areas
5 under No. 3?
6 A. Yeah, the alleged high-theft areas and what you
7 were supposed to do when you walked around and
8 spent time in these areas.
9 Q. And you were pointing to the high-theft areas on
10 No. 3 in Exhibit 11?
11 A. Yes, uh-huh.
12 Q. I'm going to show you what's also been
13 previously marked --
14 MS. FINNELL: Well, hold on before we
15 do that. Before we do that, let me get all this
16 out. Do we need to take a break before I do
17 that? Do you want to talk about that?
18 MS. KOCH: Yeah, I think we need to be
19 careful not to violate the protective order.
20 Q. (By Ms. Finnell) Do you know of any incidents
21 where shoppers, African-American shoppers, made
22 formal complaints that they were being harassed
23 by security officers at all at Dillard's?
24 A. I remember hearing about it, yes.
25 Q. Can you give me an example? Can you tell me
49
1 what you remember hearing?
2 A. Just simply that they were being harassed. They
3 had been followed and I think in some cases
4 wrongly accused.
5 Q. Do you remember to whom these complaints were
6 made?
7 A. It would have been to Marvie Dirks.
8 Q. Are you aware of what the follow-up procedure
9 would be when a complaint like that is made by a
10 customer?
11 A. I really don't. That would be a Dillard's
12 thing.
13 Q. Are you aware of any complaints or any occasions
14 where a shopper who had been accused had called
15 the police to respond to Dillard's?
16 A. No.
17 Q. Do you know whether Dillard's ever had any
18 cultural diversity or sensitivity training for
19 any of its employees?
20 A. It wasn't offered to us. I can't say for sure
21 whether it was offered to them.
22 Q. Are you familiar at all with anything that
23 might -- or that was referred to as a hit list
24 within the security office?
25 A. I -- not to my knowledge.
50
1 Q. Are you familiar with the bulletin board that
2 was kept in a security office?
3 A. Yes.
4 Q. What was on that bulletin board?
5 A. Pictures of people that had been apprehended for
6 shoplifting.
7 Q. Do you know what the purpose of the bulletin
8 board was?
9 A. I don't know the overall purpose. The
10 troopers -- and I think a trooper in particular,
11 Sanchez, I think started that board.
12 Q. Are you familiar with whether there was ever any
13 information compiled by any of the security
14 officers regarding all the suspects who had ever
15 been arrested at Dillard's?
16 A. I think there was somewhere. I think so.
17 Q. Do you know who created that document?
18 A. I think that was also Trooper Sanchez.
19 Q. Do you know how that document was used?
20 A. No, I don't.
21 Q. Did you ever see it?
22 A. I never accessed it, no.
23 Q. How involved, if at all, is Jack Rodgers in
24 security activities?
25 MS. KOCH: Object to the form of the
51
1 question as vague and overly broad.
2 A. I don't know.
3 Q. (By Ms. Finnell) Do you know who Jack Rodgers
4 is?
5 A. Oh, yes, I know who he is. I don't know his
6 complete -- all I know is that Marvie talks to
7 Jack about what is and what isn't gonna be in
8 security, and that's all -- that's all I know.
9 Q. Does Marvie then tell security officers what is
10 and what isn't going to be in security?
11 A. Yes.
12 Q. How does she do that?
13 A. By just simply relating it. It's not like a
14 memo or anything like that. It's just if we
15 bring a concern to her, we would have brought a
16 concern to her and then she would take it to
17 Rodgers and then bring it back to us verbally.
18 Q. Did she do that individually or were there group
19 meetings?
20 A. Example: I offered to give an educational type
21 of recognition class on shoplifting to some of
22 the salespeople. And she brought that to
23 Rodgers, and I think she came back to me with,
24 "I don't think we have time for that" or
25 something like that, so....
52
1 Q. Why did you offer that?
2 A. Because I felt that -- I felt strongly at that
3 time that a lot of salespeople were picking
4 black people as prime suspects in shoplifting,
5 and I just kind of wanted to make the example
6 that you shouldn't stereotype, you know, people
7 who steal things.
8 Q. When did you offer to do that?
9 A. That probably had to be '93 or so; a long time
10 ago.
11 Q. Why did you feel that the salespeople were
12 stereotyping?
13 A. Well --
14 MS. KOCH: Object to the form of the
15 question as vague, overly broad, and I think
16 it's already been asked and answered.
17 A. As I stated earlier, it seemed that every time I
18 went into a situation, it was somebody black
19 that was involved, and I just didn't quite
20 understand that.
21 Q. (By Ms. Finnell) I just wanted to make sure
22 that there wasn't any different reason other
23 than --
24 A. My concern was that they were gonna get sued,
25 actually, and I even told her that. I said,
53
1 "One of these days you're gonna accuse the wrong
2 person and you're gonna get sued."
3 Q. How did she respond?
4 A. It was something like, "Well, yeah, I know
5 you're right, but we don't have time."
6 Q. You talked earlier about the population, Johnson
7 County population, being predominantly white.
8 What about the shopping population at Dillard's
9 in Oak Park?
10 A. Same, it's the same, predominantly white.
11 Q. Are you familiar at all with an incident that
12 occurred at Dillard's in April of 1996 involving
13 security and African-American customers?
14 A. Only by just what I've heard in the last few
15 days. I wasn't there or anything.
16 Q. What have you heard in the last few days?
17 A. That an officer made a stop on a black female
18 and apparently questioned her about whether she
19 may have stolen something or something like
20 that, and she became very angry and called her
21 husband, and her husband called the police -- or
22 responded there and then called the police.
23 Q. From who did you hear this?
24 A. Mike just told me not too long ago; actually,
25 just a few minutes.
54
1 MS. FINNELL: Oh, I'm sorry.
2 MR. SANTOS: It's all right.
3 Q. (By Ms. Finnell) Outside of any communication
4 that you've had with the attorney for the police
5 department, had you heard about that incident at
6 all?
7 A. No.
8 Q. Were you ever disciplined for anything while you
9 were working Dillard's?
10 A. No, I was not.
11 MS. FINNELL: Thank you. I have no
12 further questions.
13 EXAMINATION BY MS. KOCH:
14 Q. Officer Powell, I have a few questions for you.
15 My name's Elaine Koch.
16 A. I felt that you would.
17 Q. I'll be quick. I represent Dillard's in a
18 lawsuit that's been filed by the plaintiffs.
19 You've told us that you worked for
20 Dillard's part-time from 1987 to 1994 or 1995.
21 Did you work for Dillard's at all in 1996?
22 A. No, I don't think so.
23 Q. I know that we have records somewhere that will
24 reflect this, but do you recall exactly when you
25 stopped working for Dillard's?
55
1 A. I really don't, not right off the top of my
2 head. But it was -- I haven't been there for at
3 least two or three years.
4 Q. Did you receive an injury while you were working
5 as a part-time security guard at Dillard's? I
6 don't mean an injury on the job at Dillard's,
7 but just an injury?
8 A. No. I had an operation on my right knee, and I
9 was off for two months from everywhere, here and
10 there.
11 Q. Did you ever go back to work at Dillard's after
12 you had the operation on your knee?
13 A. Yes.
14 Q. For how long?
15 A. It wasn't very long. I was told -- I was
16 initially told that I would maintain my
17 seniority because I was on medical leave, and I
18 was later told that I had lost my seniority and
19 that was one of the reasons that all of a sudden
20 I was moved to the bottom of the list, so -- and
21 then they started telling me about we're going
22 to start doing arrests per person.
23 Q. Who told you that? First, who told you that you
24 lost your seniority so you were going to the
25 bottom of the list because you had been off for
56
1 two months?
2 A. Initially I was told by Marvie that I wouldn't
3 lose it, and then she told me later that I did,
4 so I don't know how it got changed in there,
5 but -- and it was something like if you haven't
6 been on the clock for two months or something
7 like that, then Arkansas takes you out of the
8 computer or something like that, a time card
9 type of thing, so....
10 Q. So it was after you were off the job for about
11 two months for your knee operation that you got
12 put on the bottom of the list for scheduling; is
13 that right?
14 A. That was my understanding. I went from three
15 days a week to one day a week, maybe.
16 Q. So prior to your knee operation when you were
17 off work from Dillard's for two months, how many
18 days a week were you working on average?
19 A. Three days a week.
20 Q. And after your operation, being off for two
21 months, how often did you work at Dillard's on
22 average?
23 A. Once a week, maybe.
24 Q. Now you referred several times to what you
25 believed was a policy change to arrests per
57
1 person?
2 A. Uh-huh.
3 Q. Did anybody ever tell you that?
4 A. Yes. It was mentioned -- the security people
5 told me that and it was brought to Marvie and
6 Marvie told us that it was something that came
7 from Arkansas and she didn't go along with it,
8 but that's the way it had to be.
9 Q. Who told you? Who in security told you that
10 there was a change in policy to arrests per
11 person?
12 A. I think it was Officer Schuebach out of Roeland
13 Park. I'm trying to think of who else told me
14 that. It's rough when you've been off for two
15 or three years. Well, I know Schuebach told me
16 about it.
17 Q. Did Schuebach tell you officially on behalf of
18 Dillard's, or was it just something he told you
19 he believed was --
20 A. It was rumor.
21 Q. A rumor?
22 A. Well, it was what he -- it was just word of
23 mouth, I should say.
24 Q. Did Marvie Dirks ever tell you that the policy
25 was that you were going to be scheduled or
58
1 rewarded on arrests per person?
2 A. It was -- I think it was brought to Marvie by
3 somebody else and it came back to me through
4 word of mouth that it was a policy that the head
5 office in Arkansas was going to incorporate.
6 Q. Did you bring this policy change to the
7 attention of Marvie?
8 A. No.
9 Q. Did you hear someone bring it to the attention
10 of Marvie, or did you just hear that it had been
11 brought to her attention?
12 A. I heard that it had been.
13 Q. Did you hear who supposedly had brought this
14 policy change to Marvie Dirks' attention?
15 A. No. It might have been Schuebach.
16 Q. But you don't know for sure?
17 A. Well, it's been, like I say, two or three years.
18 Q. Am I hearing correctly that you didn't ever hear
19 Marvie Dirks say anything about this new policy;
20 you just heard word of mouth that she said it
21 was a change of policy?
22 A. No, I did not personally bring it to her and ask
23 her about it, no, I didn't.
24 Q. Did she ever personally say anything to you or
25 ever say anything within your hearing about a
59
1 policy change on the basis of arrests per
2 person?
3 MS. FINNELL: I'm going to object to
4 that as asked and answered.
5 A. Well, no, because, see, I felt that I had all
6 the seniority on it, so I didn't feel like I had
7 to worry about it.
8 Q. So you never heard Marvie Dirks actually say
9 anything about an arrests-per-person policy?
10 A. No, because I never asked her about it, no.
11 Q. Are you aware that Dillard's prefers its
12 security officers to wear uniforms if their
13 jurisdiction allows it?
14 A. That's the way it was always told to me.
15 Q. Do you know what the Kansas Highway Patrol's
16 policy is on their officers wearing uniform when
17 they're off-duty?
18 A. Only from what they told me, and that is that
19 they couldn't.
20 Q. Do you know what the policies are of other
21 police departments in the state of Kansas on
22 their policies for their officers wearing
23 uniforms when they were doing off-duty jobs?
24 A. I can only use examples of what I saw, and
25 sometimes the Merriam people wore their
60
1 uniforms, and sometimes they didn't. And
2 sometimes Schuebach, who was the only Roeland
3 Park Officer there, wore it, and sometimes he
4 didn't.
5 So they seemed to have the option. I
6 didn't know what the coordination between
7 Dillard's and these other agencies was, but they
8 seemed to have the option of wearing theirs if
9 they wanted to, and if they didn't feel like it,
10 then they didn't.
11 Q. Do you know what the policy was for those
12 officers?
13 A. No, I don't.
14 Q. You testified that the makeup of the security
15 officers at Dillard's got to where it was
16 predominantly Highway Patrol?
17 A. Yes.
18 Q. Do you know the exact numbers, the exact
19 breakdown of how many Dillard's Security
20 Officers came from Highway Patrol as opposed to
21 Overland Park and somewhere else?
22 A. Well, you know, when you come to work and
23 there's nobody there but troopers and there's
24 been nobody there but troopers before you got
25 there and there was troopers after you left,
61
1 so -- and I knew -- of course, knew everybody
2 that worked there, and there was only two or
3 three Merriam Officers and one Roeland Park
4 Officer and then the rest was Kansas Highway
5 Patrol and actually just a few of us. "Us"
6 being Overland Park Officers.
7 Q. Do you know what the numerical breakdown was?
8 A. No, I don't.
9 Q. Do security guards in uniform ever arrest or
10 participate in arrests of shoplifters?
11 A. As far as --
12 MS. FINNELL: Objection. Vague.
13 A. As far as how?
14 Q. (By Ms. Koch) You testified earlier that it was
15 difficult for a security guard in uniform to
16 ever make an arrest.
17 A. (The witness nodded.)
18 Q. Are you saying that security officers who wore
19 their police uniforms were never able to make
20 arrests or participate in arrests?
21 A. I didn't say never.
22 MS. FINNELL: Objection. That's a
23 mischaracterization.
24 Q. (By Ms. Koch) I'm not mischaracterizing; I'm
25 asking what you said.
62
1 MR. SANTOS: I want to object that
2 the question is vague in that it doesn't
3 identify the meaning of the word "arrest." Are
4 you talking about arrest as a law enforcement
5 officer or arrest and detention as far as being
6 a security officer?
7 MS. FINNELL: I'll join that
8 objection.
9 MS. KOCH: I think that's a good
10 objection. Let me change my question a little
11 bit.
12 Q. (By Ms. Koch) Do security officers at Dillard's
13 who wear their police uniforms ever participate
14 in apprehension and detention of shoplifters?
15 MS. FINNELL: Objection. That's
16 vague, particularly --
17 A. As far as --
18 MS. FINNELL: Excuse me. Just a
19 minute.
20 -- particularly as it relates to
21 apprehension.
22 A. Okay. As far as self-initiated arrests, nearly
23 impossible. As far as participating in arrests,
24 we were always included because we were the
25 positive reinforcement for the plainclothes
63
1 people that were there.
2 Example: You might have a
3 plainclothes person arguing with a suspect
4 about, "Are you a policeman?" You'd get on the
5 radio and call me and I'd come down there, "We
6 have a policeman right here." So in that sense,
7 we always participated.
8 As far as self-initiated
9 I-saw-somebody-do-thus-and-so, next to
10 impossible because your reasonably intelligent
11 shoplifter is just not going to steal anything
12 in front of a uniformed police officer.
13 Q. (By Ms. Koch) Have you ever stopped a black
14 female in what you considered to be a bad stop?
15 A. No, I haven't.
16 Q. Have you ever stopped any black shopper in what
17 you considered to be a bad stop?
18 A. No, I haven't.
19 Q. Have you ever personally assisted in a stop of a
20 black shopper which turned out to be what you
21 considered a bad stop?
22 A. No, because if I was involved in it, I did my
23 best to choreograph it to where we would have
24 good probable cause, which meant that I would
25 make sure that we stopped the person outside the
64
1 store so if they have merchandise that they
2 haven't paid for, don't have a receipt for, then
3 we automatically have good probable cause to
4 believe that they were going to deprive the
5 store of the merchandise.
6 Q. What do you do if you see a crime being
7 committed and you're off-duty?
8 MS. FINNELL: Objection.
9 Q. (By Ms. Koch) And I'm putting aside times when
10 you're working as a security officer.
11 MS. FINNELL: Objection. The question
12 is vague.
13 A. Call a uniformed police officer.
14 Q. (By Ms. Koch) As a commissioned police officer,
15 do you feel you have more of a duty to do
16 something about the crime you see being
17 committed than if you were the average citizen
18 off the street?
19 A. As a commissioned police officer that has worked
20 for the City of Overland Park for eleven years,
21 I feel that I am obligated to report, not
22 necessarily intervene.
23 Q. Did anybody who ever worked for Dillard's tell
24 you that as a security officer you were only
25 supposed to deter shoplifters as opposed to
65
1 apprehending them?
2 A. No, no. It was we are there to deter crime,
3 not -- if we have shoplifters, we arrest
4 shoplifters.
5 Q. Have you ever talked with anyone other than
6 counsel for the Overland Park Police Department
7 about this lawsuit that's been filed by Demetria
8 Cooper and Paula Hampton against Dillard's?
9 A. No, I had no idea what the names were even.
10 Q. When you've told us there were times when you
11 were working three nights a week and times when
12 you were working one night a week, was there a
13 typical number of hours you would work in a
14 night? Typical shift, I guess I should ask.
15 A. It would generally be five to six hours. We
16 were allowed to come in just a little early to
17 overlap just a little bit for better coverage,
18 and sometimes a trooper would have to leave
19 early or something like that.
20 Q. When you worked, would you tend to work one of
21 the two Dillard's stores at Oak Park by yourself
22 and the other security guard on duty would be at
23 the other store or --
24 A. We --
25 Q. -- how did that work?
66
1 A. We went through a phase like that where they
2 decided to cut back, and then I might be by
3 myself in the north store and they might have
4 two people in the south store.
5 MS. KOCH: I have no further questions
6 at this time, Officer Powell.
7 MS. FINNELL: I just have a quick
8 follow-up.
9 REEXAMINATION BY MS. FINNELL:
10 Q. Can you describe the line of communication that
11 existed between the security officers and, say,
12 Marvie Dirks in terms of getting information
13 throughout the staff, security staff?
14 A. It would be primarily that you would just ask
15 her a question. There were no weekly memos or
16 E-mail or anything like that. It's just hearsay
17 and -- as far as who's getting paid what and all
18 that type of thing, you wouldn't know anything
19 about that.
20 Q. Is it common or uncommon that you would find out
21 information pertaining to your job as a security
22 officer by word of mouth through other security
23 officers?
24 A. Yes.
25 MS. KOCH: Object to the question as
67
1 vague.
2 Q. (By Ms. Finnell) Common or uncommon?
3 A. Common.
4 Q. Was that the way it was done, virtually through
5 word of mouth --
6 MS. KOCH: Object to the form of the
7 question as vague.
8 Q. (By Ms. Finnell) -- in terms of communication?
9 A. I don't know if that was a formal way, but that
10 was generally the way that things were done.
11 Q. You talked about having not stopped -- having
12 not made a bad stop, and you said you would take
13 measures to choreograph it.
14 What measures are you referring to --
15 were you referring to in response to Ms. Koch's
16 question?
17 MS. KOCH: Object to the form of the
18 question as vague.
19 A. I generally would make sure that we did whatever
20 we did outside. Having had conflicts with
21 people before, I thought it would be proper for
22 us to handle something like that on the sidewalk
23 as opposed to handling it in the store.
24 Q. (By Ms. Finnell) So your measures were only in
25 terms of where?
68
1 A. Well, and then, as I said earlier, if a person
2 has merchandise that they're not supposed to
3 have and they're outside the store, I would make
4 sure that they walked outside the store on their
5 own free will, not -- and I want to clarify, I'm
6 not ordering people, "Why don't we go
7 outside --"
8 Q. Right.
9 A. "-- so then I can accuse you of stealing
10 something."
11 Let them walk out. If they're going
12 to leave the store, let them leave the store,
13 and then we can start our business from there.
14 Q. Earlier you also talked about having been
15 informed of a preference by Dillard's for the
16 officers to wear uniforms. Was that preference
17 affected at all by the change of policy you
18 described earlier in terms of transitioning from
19 deterrence to making arrests?
20 MS. KOCH: Object to the form of the
21 question as vague and calling for
22 speculation.
23 A. There were times when I thought it was
24 convenient for me to not wear my uniform and
25 showed up that way, and then I was told, "Where
69
1 is your uniform?" and "You all are supposed to
2 wear your uniform, aren't you?" is the way it
3 was brought to me.
4 Q. (By Ms. Finnell) When they said "you all," what
5 did you take that to mean?
6 A. Overland Park Police Officers are supposed to
7 wear their uniforms. So then I just came in
8 uniform from then on.
9 Q. I just want to make sure that I'm not
10 misunderstanding, and I don't want to
11 mischaracterize anything you're saying. When
12 you were saying that there was a preference for
13 uniform, was that preference limited to Overland
14 Park?
15 A. To my knowledge.
16 MS. FINNELL: That's all.
17 EXAMINATION BY MR. SANTOS:
18 Q. I want, for the purposes of the record, to
19 clarify one point with you, Officer Powell, and
20 that is the use of the word "choreographed" in
21 the discussion that you've had with counsel
22 here.
23 My understanding from your
24 clarification with plaintiffs' counsel is that
25 you meant that you did not participate in
70
1 improper stops, that you only participated in
2 those stops that resulted in the person on their
3 own volition going outside the store?
4 A. Yes, sir.
5 MR. SANTOS: Thanks.
6 MS. KOCH: I've got one more question
7 too -- or a couple more questions.
8 REEXAMINATION BY MS. KOCH:
9 Q. Officer Powell, are you aware of any bad stops
10 involving white shoppers at Dillard's?
11 A. No, not that I've participated in.
12 Q. Have you ever heard of any?
13 A. No.
14 Q. Are you aware of any complaints by white
15 shoppers that believed they were being followed
16 or watched for suspected shoplifting?
17 A. No.
18 MS. KOCH: Okay. No further
19 questions.
20 MS. FINNELL: No questions for me. We
21 can go off the record.
22 (The deposition concluded at
23 10:40 a.m.)
24
25
71
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 ______________________
Gregory Powell
25 DLD
72
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 Gregory Powell
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
73
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