ARTHUR BENSON & ASSOCIATES Arthur A. Benson II Jamie Kathryn Lansford Aften P. McKinney 4006 Central (Courier Zip: 64111) P.O. Box 119007 Kansas City, Missouri 64171-9007 (816) 531-6565 (816) 531-6688 (telefacsimile) Attorneys for Demetria Cooper
Pages
TABLE OF CONTENTS ...................................................................................... i
TABLE OF AUTHORITIES ................................................................................... ii
ARGUMENT .......................................................................................................... 1
I. § 1981 IS CORRECTLY READ BROADLY TO ENCOMPASS ALL ASPECTS OF A CONTRACTUAL RELATIONSHIP ..................................... 2
II. THE DISTRICT COURT ERRED BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED .......................................................................... 12
A. Conflicts in the Summary Judgment Record ............................................. 12 B. Whether Cooper Believed She Was Restrained Was Disputed ....................... 15 C. Because the Facts Were Disputed, the Existence of Probable Cause Should Have Been a Jury Question ......................................... 19III. THE SUMMARY JUDGMENT RECORD IS COMPLETE AND DILLARD'S STATEMENT OF FACTS WAS PROPERLY CONTROVERTED ......................................................................................... 24
CONCLUSION ...................................................................................................... 27
Pages
Cases
Alvarado v. City of Dodge City, 708 P.2d 174 (Kan. 1985) 19-20
Comer v. Knowles, 17 Kan. 436 15
Gardner, etc. v. Chrysler Corp. 89 F.3d 729 (10th Cir. 1996) 9
Griess v. State of Colorado, 841 F.2d 1042 (10th Cir. 1988) 12
Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978) 6
In re Hamilton Creek Metropolitan Dist., 143 F.3d 1381 (10th Cir. 1998) 9
Hampton v. Dillard Department Stores, Inc.,
985 F.Supp. 1055 (D.Kan. 1997) 12, 19, 22
Harris v. New York Times, 1993 WL 42773 (S.D. N.Y. Feb 11, 1993),
64 Fair Empl. Prac. Cas. (BNA) 653 8
Hernandez v. Starbuck, 69 F.3d 1089 (10th Cir. 1995) 12
Huddleston v. United States, 415 U.S. 814 (1974) 11
McCaleb v. Pizza Hut, 128 F.Supp. 1043 (N.D. Ill. 1998) 7
Melia v. Dillon Companies, Inc., 847 P.2d 257 (1993) 20
Munsell v. Ideal Food Stores, 494 P.2d 1063 (Kan. 1972) 15-16
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) 3, 8
Perry v. Burger King Corp., 924 F.Supp. 548 (S.D.N.Y. 1996) 7
Perry v. S.Z. Restaurant Corp., 1998 WL 778394 (S.D.N.Y. Nov. 6, 1998) 7
Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) 3, 8
Southern Ute Indian Tribe v. Amoco Production Co.,
151 F.3d 1251 (10th Cir. 1998) 11
Spriggs v. Diamond Auto Glass,
1999 WL 34938 (4th Cir. January 28, 1999) 7-8
State v. Morin, 538 P.2d 684 (1975) 20
Taylor v. Dillard, 971 F.2d 601 (10th Cir. 1992) 20
Thompson v . General Finance Co., 468 P.2d 269 (1970) 15
U.S. v. Cowan, 116 F.3d 1360 (10th Cir. 1997) 11
United States v. LaBonte, 520 U.S. 751 (1997) 9
U.S. v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998) 9
Washington v. Duty Free Shoppers, Ltd.,
710 F.Supp. 1288 (N.D. Cal. 1988) 6
Watson v. Fraternal Order of Eagles, 915 F.2d 235 (6th Cir. 1990) 6
White v. Denny's, Inc., 918 F. Supp. 1418 (D.C. Colo. 1996) 6-7
Statutes
42 U.S.C. § 1981 passim
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 passim
Rules
Fed. R. Civ. P. 56 25
Other Authorities
Black's Law Dictionary (4th ed. 1957) 10
Merriam Webster's Collegiate Dictionary (10th ed. 1996) 10
Demetria Cooper, with relatives - all African-American - went to the Oak Park Dillard Store to shop for an Easter outfit for her infant son. There she, and they, became enmeshed in long-standing racially disparate and racially motivated store security practices. When the shopping bag containing clothing purchased for Cooper's son was taken from Cooper and searched, there having been no wrongdoing, no evidence of wrongdoing was found. Alleging that Dillard's security practices at this store intentionally discriminated against her because of her race in violation of § 1981, Cooper sued, charging that she had been denied benefits and privileges of her contractual relationship with Dillard and had been falsely imprisoned.
Dillard contends Cooper has no cause of action because Dillard did not interfere "with the benefits of a contract between Dillard's and Cooper"(1) and because Dillard had probable cause for its stop and search of Cooper(2), and, consequently, summary judgment for Dillard was appropriate. Dillard, however, substituting the word it emphasized, "contract", for the statute's phrase, "contractual relationship", disguises its evasion of Congress' intent to "expand" § 1981 to include more than just formal "contracts". Dillard also fails to explain away material factual conflicts underlying the legal conclusion of the district court that Dillard had probable cause to stop Cooper, when the facts, viewed in the light most favorable to Cooper, establish that it was her race, not probable cause, that resulted in the stop and search.
I. § 1981 IS CORRECTLY READ BROADLY TO ENCOMPASS ALL ASPECTS OF A CONTRACTUAL RELATIONSHIP
The Civil Rights Act of 1991 amended 42 U.S.C. § 1981 explicitly to, in Congress' words, "expand the scope of relevant civil rights statutes". Civil Rights Act of 1991, Pub. L. No. 102-166, § 3(4), 105 Stat 1071. Congress, to effect that expansion, added the phrase "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship" to the rights protected by the "make and enforce contracts" clause of § 1981. Since Congress cannot be assumed to have needlessly expanded rights it did not intend for courts to enforce, and since Congress cannot be presumed to have confused the term "contract" in the make-and-enforce clause with the term "contractual relationship" in the enjoyment-of-all-benefits clause, there must be some difference in the meaning of the two phrases.
Dillard, however, ignores Congress' intent to "expand the scope" of the statute and clings to a § 1981 so cabined that it would allow Dillard stores, without violating the law, to require black customers to enter and exit through specially marked doors and pay for their purchases at specially marked and physically separated checkout areas "For Blacks Only". Dillard must thus ignore the enjoyment-of-all-benefits clause and the difference between making a contract and the privileges of a contractual relationship.
Indeed, Dillard does not respond to arguments of Cooper and her Amicus by suggesting an alternative interpretation, if there is one, of what Congress meant by the phrase "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship" that differs from the preceding phrase, "make and enforce contracts". Contrary to Congress' own expression of its intent to expand the scope of the Act, contrary to rules of statutory construction, and contrary to the Act's legislative history, Dillard insists Congress intended to keep "the focus of § 1981 on the making, administration and enforcement of contracts." Dill.Com.Br. at 11. Dillard's assertion that the 1991 amendment was merely "directed at overturning" Patterson v. McLean Credit Union, 491 U.S. 164 (1989), was rejected in 1994 by the Supreme Court in a case Dillard ignores. See Rivers v. Roadway Express,
511 U.S. 294, 304 (noting that the 1990 CRA, vetoed by the President, used language explicitly restoring pre-Patterson law and contrasting 1991 CRA's language explicitly "expanding the scope of relevant civil rights statutes") (emphasis in original).
Dillard would isolate its racially motivated and racially disparate pre-contract conduct - following the Cooper party from the time it entered the store; tight, half-hour long, surveillance; and following the party to check-out - and isolate its racially motivated and racially disparate post-contract conduct - stopping and searching the bags of the party - from the few instants required for shoppers to present merchandise at the register and pay for it. In Dillard's reading of the newly expanded § 1981, only the few minutes during which the purchase occurs are covered by the Act. By this narrow "focused-on-the-making of contracts" approach Dillard invites this Court to free it to discriminate against blacks in all aspects of its commercial enterprise and to deny them privileges of their contractual relationship. Since a primary privilege protected by the Act is that of blacks to enjoy, as whites do, freedom from racially disparate and racially motivated experiences necessarily precedent or subsequent to the making of a contract, i.e., the privileges of a contractual relationship as distinguished from the actual making of a contract, Dillard's attempt to focus only on the making of the purchase contract must be rejected.
Dillard fails to respond to the ultimate argument made by Cooper and her Amicus. Dillard created at its store two shopping environments, distinguished only by shoppers' race. One shopping environment involved, as Cooper alleged(3) and demonstrated by the record on summary judgment(4) and as the jury found in Hampton's case(5), racially motivated and racially disparate security practices directed at black shoppers. Blacks were picked up for surveillance when they entered the store; blacks were followed and closely observed. Their actions - innocent most often - were carefully noted in detailed logs which revealed that blacks were disproportionately stopped, searched, and arrested; their plight was for at least two years ignored by store managers who disregarded complaints by Dillard's own security and Overland Park police officers that blacks were being singled out and subjected to oppressive security practices. Meanwhile, the other environment, for white shoppers, was free of such oppressive security practices. See supra at 4 n. 4; infra at 13 n. 15.
Dillard argues, implausibly, that "any activity, policy or program adopted by private enterprise" falls outside the ambit of § 1981 unless it directly involves the making or administration of a specific purchase contract. Dill.Com.Br. at 11. Thus, Dillard urges this Court to permit it, and all private enterprise in this Circuit, to implement oppressive pre-purchase security practices that are racially motivated and racially disparate, as long as those blacks who make it through the discriminatory gauntlet to the cash register are allowed to make their purchases. Similarly, Dillard argues that this Court should permit it, and all private enterprise in this Circuit, to implement oppressive post-purchase security practices that are also racially motivated and racially disparate, such as searching the shopping bags of only blacks before they leave the store. Such racially discriminatory "loss prevention policies and practices", Dillard argues, are immune from scrutiny under § 1981 if they do not "deny [Dillard's] commercial offerings of goods, services and credit" to customers on the basis of race. Id.
No court has adopted such a throttled reading of the Act. Two circuits have historically read § 1981 broadly, the Third and the Sixth.(6) Dillard does not mention either of these cases. Several district courts have addressed the issue, including Washington v. Duty Free Shoppers, Ltd., 710 F.Supp. 1288 (N.D. Cal. 1988) (blacks stated a § 1981 claim where racially disparate store security practices interfered with browsing activities of black but not white shoppers). Dillard does not cite Washington in its brief. Similarly, Dillard fails even to cite White v. Denny's, Inc., 918 F. Supp. 1418, 1425 (D.C. Colo. 1996) (failure of plaintiffs to attempt purchase "is not enough, in and of itself" to defeat § 1981 cause of action). See also Perry v. S.Z. Restaurant Corp., 1998 WL 778394 (S.D. N.Y. Nov. 6, 1998) (black plaintiff who alleged racially discriminatory access to restrooms stated a cause of action under § 1981); McCaleb v. Pizza Hut, 128 F.Supp. 1043 (N.D. Ill. 1998) (blacks "denied the accouterments" ordinarily provided, including courteous service and napkins, but served the pizza ordered, stated § 1981 claim); Perry v. Burger King Corp., 924 F.Supp. 548, 551-52 (S.D.N.Y. 1996) (black who received purchased food but was denied restroom use stated § 1981 claim).
Recently, in Spriggs v. Diamond Auto Glass, 1999 WL 34938 (4th Cir. January 28, 1999)(7), the Fourth Circuit joined other circuits in finding that § 1981 must be applied broadly. Spriggs, at an-will employee, alleged on-the-job harassment. The Fourth Circuit found that at-will employment contracts could form the basis of a "contractual relationship" under § 1981. Id. at * 3. Then, it held that § 1981 required allegations of discrimination that "affect[] one of the contractual aspects listed in § 1981(b)"(8) (id. at * 5) which the court characterized as "a new, broad definition of 'make and enforce contracts'" (id. at * 2) which now included the expanded "aspects" enumerated in § 1981(b)(9). Id. In finding that allegations of harassment (such as calling the plaintiff a "dumb monkey" and a "nigger" and engaging in "other racially-charged actions") were actionable, the court noted that proving a "breach of the underlying contract is neither necessary to a successful § 1981 claim, nor, standing alone, sufficient to make out such a claim." Id. at * 5. The court concluded a defendant might "act in perfect accord with its contractual rights" and still violate § 1981 if its "action is racially discriminatory and affects one of the contractual aspects listed in §1981(b)." Id.(10)
Here, Dillard acted in "perfect accord" with the Cooper party's purchase contract, but engaged in "racially-charged actions" that affected at least one of the "contractual aspects listed §1981(b)". Here the contractual aspects were (1) Cooper's right to enjoy the benefits and privileges of the contractual relationship, i.e., the right to browse, shop, and select goods free of racially motivated security practices, actions that are necessarily pre-contract steps leading to the making of a contract; and (2) the post-contract benefits and privileges of a purchase contract, i.e., the right to leave the purchase area free of a racially motivated stop and search.
The plain meaning of § 1981, as amended in 1991, supports Cooper's view of its scope. This Court, when terms used by Congress are not statutorily defined, construes terms in accordance with their ordinary meaning. U.S. v. Telluride Co., 146 F.3d 1241, 1245 (10th Cir. 1998). To accomplish that, the Court uses common definitions:
We presume the plain language of a statute expresses congressional intent. [citation omitted] This expression lies in the ordinary meaning attached to the word, which may be found by aid of commonly accepted dictionary definitions. See United States v. LaBonte, 520 U.S. 751 (1997).
In re Hamilton Creek Metropolitan Dist., 143 F.3d 1381, 1385 (10th Cir. 1998). Words or phrases are not to be disregarded as duplicative of different words or phrases or as mere surplusage(11); instead, courts must give effect to their plain meaning. By these principles of construction, the phrase "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship" must be given meaning that differs from "make and enforce contracts". Thus, the right to enjoy the benefits and privileges of a contractual relationship differs from the right to make and enforce contracts, a distinction Dillard conspicuously avoids.
The word "relationship" means "a state of affairs existing between those having relations or dealings". Merriam Webster's Collegiate Dictionary 987 (10th ed. 1996). It is something in addition to the dealings themselves, something broader than the formal relations. It is the entire state of affairs that arises from those dealings. A "privilege" is a "benefit or advantage enjoyed beyond the common advantages of other citizens." Black's Law Dictionary 1359-1360 (4th ed. 1957) (emphasis added). And, a "benefit" is an advantage, fruit or privilege; a "benefit is not limited to pecuniary gains, nor to any particular kind of advantage; it refers to what is advantageous, whatever promotes prosperity or happiness, what enhances the value of the property or rights of citizens." Id. at 200 (emphasis added).
Taken together, the plain meaning of these words establishes that Congress meant to protect something in addition to the mere making and enforcement of contracts. It intended to protect the relationship that forms when citizens seek to contract, i.e., the entire state of affairs that transpires when customers seek to contract, for instance, as here, by shopping. Congress recognized there was more to a contract than the transaction itself. The relationship that forms creates privileges beyond those enjoyed by others. Persons entering this Dillard store only to use the restroom do not form contractual relationships that confer privileges "beyond the common advantages of other citizens". Congress, however, recognized that those who would or do enter into such contracts acquire privileges that accrue to the relationship or benefits that enhance the value of the contract. Congress, by the plain meaning of the phrase it used to "expand" civil rights in the contract arena, intended to protect the entire relationship, not just the right to contract.
By examination of the plain meaning of words used by Congress, the Court determines congressional intent as "judged from the perspective of Congress at the time of enactment". Southern Ute Indian Tribe v. Amoco Production Co., 151 F.3d 1251, 1258 (10th Cir. 1998). In this way, the Court may "'discover and not direct the Congressional will'". U.S. v. Cowan, 116 F.3d 1360, 1362 (10th Cir. 1997) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).
While the outer bounds of a contractual relationship are not established, this case does not raise that issue. If a contractual relationship includes anything in addition to the making and enforcement of contracts, surely it includes the state of affairs necessary to contract or purchase, such as freely browsing and shopping, and the benefits of having made a purchase, such as leaving the store unimpeded. The new, broad § 1981 protects those aspects of a contractual relationship, which are necessarily precedent or subsequent to contracting, from racially motivated and racially disparate treatment such as was experienced by Cooper and her party. Thus, Cooper's broad cause of action was improperly dismissed by the district court.(12)
II. THE DISTRICT COURT ERRED BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED
A. Conflicts in the Summary Judgment Record
The summary judgment record was replete with factual conflicts, contrary to Dillard's assertion.(13) These conflicts undermined the credibility of Dillard's security officer Wilson, who stopped the Cooper party and on whose testimony Dillard must rely to claim probable cause to stop and search. Since a jury could have disbelieved any or all of Wilson's testimony, the district court should not have found that Wilson had probable cause to stop and search. Hampton v. Dillard Department Stores, Inc., 985 F.Supp. 1055, 1061 (D.Kan. 1997); Dill.App. at 104-05.
Wilson's allegations of suspicious conduct by Cooper all turn on his truthfulness. The record does not support a finding of truthfulness, especially viewed in the light most favorable to the non-moving party, Cooper.
1. Wilson asserts in his incident report that he was told that Fitzgerel (a buyer, Supp.App. at 270) saw Cooper put "something under her coat" (Supp.App. at 120), but a Dillard manager wrote that Wilson had told her he had seen this himself. Supp.App. at 385.(14) Cooper testified at deposition that Wilson told her, just before his search, that "a salesperson had called him and told him that I had put something blue in my coat." From this record, either Wilson saw this alleged conduct himself or he did not. One version is not true. Cooper denied any wrongdoing both in her deposition (Supp.App. at 225 (dep. 40, line 16); 230 (dep. 74, line 19)), and in the recollection of an independent witness. Supp.App. at 374.
2. Even if Wilson subjectively believed Cooper to have acted suspiciously, which is contested, he had no basis for believing the item he alleges made him suspicious was even Dillard's merchandise. Supp.App. at 244 (dep. 83, lines 14-19). There was thus no cause to suspect attempted theft and a jury could well have found from the ample evidence in the summary judgment record of racially disparate and racially motivated security practices at the Store(15) that Wilson's statements were a pretext for race discrimination.
3. Wilson claimed in his report and in his deposition that Cooper "never said a word" during his stop and search. Supp.App. at 121, 258. Wilson elaborated that her silence made him suspicious that Cooper had stolen something. Supp.App. at 260. Cooper, however, testified that when stopped by Wilson, she asked Wilson questions and he answered. Supp.App. at 226. The fragrance clerk who witnessed this stated that "both [Cooper and Hampton] protested that they had not taken anything." Supp.App. at 374. Another basis for Wilson's suspicion of Cooper was undermined, and a jury could have found this to be yet another instance of pretext to cover his racially motivated stop and search.
There were, contrary to Dillard's assertion,(16) genuine issues of material fact in the summary judgment record that should have been resolved by a jury. Hence, summary judgment resolving these disputed issues implicitly credited Wilson's version over directly conflicting evidence when the district court ruled as a matter of law that Wilson had probable cause to stop and search the Cooper party. See infra at 19-24.
B. Whether Cooper Believed She Was Restrained Was Disputed
Dillard claims that "[w]ithout citation, Cooper argues that whether one believes she has been restrained is 'a question of intent,' pointing only to her testimony that she believed she could not leave". Dill.Com.Br. at 18-19. In doing so, Dillard misstates the holding of Munsell v. Ideal Food Stores, 494 P.2d 1063 (Kan. 1972), and ignores Cooper's reliance on Thompson v. General Finance Co., 468 P.2d 269, 280 (1970). See Hampton-Cooper Br. at 27 (citing Thompson, 468 P.2d at 280 ("all that is necessary is that the individual be restrained . . . by words or acts which he fears to disregard"); Supp.App. at 195-96 (citing id. and Munsell, 494 P.2d at 1075) (emphasis added). Dillard also ignores, as did the district court, Cooper's evidence on the issue of restraint.
Dillard claims that in Munsell "the Kansas Supreme Court held that words and conduct must induce reasonable apprehension that resistance or flight would be futile for a false imprisonment claim to succeed. Belated subjective claims are not enough." Dill.Com.Br. at 19. But, in Munsell, the issue was whether false imprisonment should have been submitted to the jury because the evidence at trial did not demonstrate an actual restraint or detention of Munsell's person. The Munsell court found Comer v. Knowles, 17 Kan. 436, cited with approval in Thompson, 468 P.2d at 280, dispositive. The passage Dillard inaccurately cites as the holding of Munsell actually reads:
Counsel for the appellee cites cases from other jurisdictions involving the "interrogation" of employees . . .. These cases hold that physical restraint is not essential to false imprisonment if words and conduct induce reasonable apprehension that resistance or attempted flight would be futile.
Munsell, 494 P.2d at 1075 (emphasis added). The court did not graft this language onto existing Kansas law, as Dillard asserts; it noted their holdings as possible alternative bases and held there were clear-cut issues of fact on the false imprisonment claim that were properly decided by the jury. Id.
Whether an individual "fears to disregard" because of words or acts is a question of that person's belief, i.e., her state of mind. This is a jury question where, as here, there is a dispute about whether the plaintiff believed she was restrained - here, whether Cooper feared to disregard Wilson. Though Dillard claims there is no dispute on this issue, contending it is undisputed that Cooper did not fear to disregard Wilson, Cooper presented abundant evidence that she feared disregarding him. Since the issue was whether Cooper feared disregarding Wilson's words or actions, her belief she could not leave was important evidence on that question. Cooper's belief was not formed in a vacuum. It was based on the circumstances of the encounter. Substantial evidence, going beyond Cooper's belief, was presented to buttress her belief that her liberty was restrained.(17)
The two women were at the fragrance counter when Wilson approached them from behind and they turned to respond to him. Supp.App. at 161, ¶ 17; 178, ¶ 30; 224. They could not turn and walk away to their rear because the counter blocked the way. Wilson addressed the group, but speaking to Cooper, began by saying he needed to check her coat, then did not, but instead, took from Cooper the bag containing her son's new outfit, and dumped the contents on the counter. Id. at 224-25. Cooper's deposition testimony was, "I couldn't move, I mean, if I was to walk away, then what?" Id. at 225. Dillard's counsel sought clarification ("What do you mean you couldn't move?"), and Cooper elaborated, "I mean, the way he was standing in front of me, it was like because I had turned around to him . . .." Id. Counsel inquired further:
Q: In fact, you could have chosen not to speak to him and just left the store, right?
A: What do you mean?
Q: Well, when this man approached you and you didn't know who he was and you thought maybe he was a pervert?
A: Yes.
Q: You could have just left, right?
A: No, I couldn't have just left.
Q: Why not?
A: Because of the way he was standing and the way he was just saying, I need to check your bag, you know. It's like what? Well, they told me you put something blue in your coat. So at this time I'm sitting here, like Gosh, I don't believe this. How could he accuse me of something like this? So I wasn't about to walk out the store.
Q: Okay. So you say you felt like you needed to stay there and answer his questions?
A: He gave me no other choice but to answer his questions I feel. If I would have reacted any other way, I don't know what he would have done.
Q: Well, he wasn't physically threatening you, was he?
A: No, he don't have to be. His body language just showed me if I did anything that he didn't care too much for or like, then what would have happened, I don't know what would have happened. So, I just gave him what he asked for.
Supp.App. at 228.
In considering whether Plaintiffs' liberty was restrained, the district court did not mention Cooper or any of the record evidence demonstrating a genuine issue of material fact as to whether she and Hampton were restrained or whether they feared to disregard the words and/or actions of Wilson. Hampton, 985 F.Supp. at 1060-61; Dill.App. at 103. The discussion focused solely on Wilson's statement to Hampton that she could be removed. The district court did not apply the correct standard and failed to recognize a genuine issue of material fact regarding whether Wilson restrained Cooper's liberty that precluded summary judgment. The district court thus erred.
C. Because the Facts Were Disputed, the Existence of Probable Cause Should Have Been A Jury Question
The district court erred in adopting Wilson's characterization of Cooper's activity as undisputed fact, and based on that fact, finding the existence of probable cause. Wilson may have thought Cooper acted suspiciously, but the evidence of what she did - the activity in which Cooper engaged - was not objectively suspicious, when viewed in the light most favorable to Cooper, the non-movant.
Probable cause exists if the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. Alvarado v. City of Dodge City, 708 P.2d 174, 185 (Kan. 1985). The existence of probable cause is a jury question where facts are in dispute, and is for the court only where undisputed facts demonstrate the presence or absence of probable cause. Taylor v. Dillard, 971 F.2d 601, 603 (10th Cir. 1992); State v. Morin, 538 P.2d 684 (1975); Melia v. Dillon Companies, Inc., 847 P.2d 257, 260 (1993).
Dillard contends the following was undisputed:
Officer Wilson observed plaintiff Cooper looking towards the ceiling and looking around as if to see whether someone was watching her. [Citations omitted.] He noticed that she had a dark cloth item rolled-up [sic] in her left hand, which had not been there when he first observed her. [Citations omitted.] Officer Wilson believed the rolled-up item was Dillard merchandise. [Citations omitted.] He considered plaintiff Cooper's behavior to be suspicious, and he continued to watch her while plaintiff Hampton was away from the children's department with the children. [Citations omitted.]
Supp.App. at 8, ¶ 8 (Defendant's Statement of Facts). On the contrary, these assertions were disputed by Cooper and Hampton:
Plaintiffs dispute that Wilson observed Cooper looking towards the ceiling and looking around, and particularly dispute the characterization of her behavior as being "as if to see whether someone was watching her." Defendant's Suggestions at 5. Cooper continued shopping while Hampton was in the restroom with the children. Cooper Deposition, p. 25, ll. 5-10; Wilson Deposition p. 82, ll. 24 - p. 84, ll. 19. In fact, Plaintiffs stress that Wilson has admitted that he did not know what was in the mind of Cooper and did not know why she was looking around. Wilson Deposition, p. 78, ll. 14-18. It is admitted that Wilson noticed Cooper with a rolled-up dark cloth item in her hand. However, Plaintiffs dispute Dillard's assertion that the item had not been there "when he first observed her" (Defendant's Suggestions at 5). Wilson's report makes no reference to what, if anything, either woman was carrying when they entered either the store or the infant section, and accordingly, Plaintiffs contend that Wilson did not know what Cooper might have had with her. Plaintiffs dispute that Wilson believed the rolled up item was Dillard's merchandise. Wilson did not know what the dark item was in her hand and Wilson did not know if it was Dillard's merchandise. Wilson Deposition, p. 83, ll.14-19; p. 101, ll. 21-25. Plaintiffs deny that Wilson considered Cooper's behavior suspicious because again, Wilson has admitted that he did not know what was in Cooper's mind or why she was looking around. Wilson Deposition, p. 78, ll. 14-18. Additionally, Wilson watched Cooper for at least fifteen minutes while she shopped (Wilson Deposition, p. 77, ll. 10-15, p. 82, l. 24, p. 84, l. 19) and at no time did he see her remove or conceal Dillard's merchandise. Wilson Deposition, p. 85, ll. 8-12, p. 99, ll. 7-11; p. 102, ll. 1-2. Plaintiffs admit that Wilson continued to watch Cooper while Hampton was away from the children's department with the children and the stroller. Wilson Deposition, p. 82, l. 24 - p 89, l. 2. Plaintiffs would add that Wilson kept Cooper under constant observation and tight surveillance for fifteen minutes while Hampton was away. Wilson Deposition, p. 69, ll. 12 - 21; p. 83, ll. 6-10; p. 161, l. 15 - p. 163, l. 16.
Supp.App. at 156, ¶ 8 (Plaintiffs' Statement of Facts).
Dillard's statement (and Wilson's characterization) of facts was further contradicted in the affirmative statement of facts. Plaintiffs provided evidence of the actions of Cooper and Wilson while Hampton was in the restroom with the children:
Wilson continued watching Cooper as she continued looking for an outfit. Wilson kept Cooper under "tight surveillance" for fifteen minutes. Wilson Deposition, p. 60, ll. 15-19; p. 68. ll. 13-17; p. 69, ll.12-24; p. 94, ll. 15-20; p. 161, l. 15 - p. 163, l. 16. During this time, she continued looking for clothes. Wilson Deposition, p. 71, ll. 5-7; p. 82, l. 24 - p. 84, l. 19.
Supp.App. at 175, ¶ 25.
The unknown dark item rolled up in her hands Wilson believes he saw in Cooper's hand measured approximately three inches in diameter. Wilson Deposition, p. 139, ll. 17-23. Wilson did not know what the rolled up object was nor whether the item was Dillard's merchandise. Wilson Deposition, p. 83 ll. 14-19; p. 101, ll. 21-25. He does not know when Cooper put it in her hand. Wilson Deposition, p. 161, ll. 10-14. Wilson does not know what the item was in her hand. Wilson Deposition, p. 83, ll. 14-19; p. 101, ll. 3-7. Wilson did not see Cooper or Hampton remove the item he saw from a rack (Wilson Deposition, p. 102, ll. 1,2), nor did he see them looking through any stacks of clothing on shelves or displays. Id., p. 99, ll. 7-11. Wilson did not see Cooper conceal any Dillard's merchandise on her person or her belongings. Wilson Deposition, p. 85, ll. 9-12. At no time did Hampton or Cooper conceal or remove or steal any Dillard merchandise. Hampton Deposition, p. 88, ll. 21 - 25; p. 128, ll. 22, 23; Cooper Deposition, p. 40, ll. 12-16; Chouteau Statement of April 5, 1996, Pfs' Ex 17.
Supp.App. at 176, ¶ 26.
Here, the district court found probable cause because "Cooper had reached the nexus where the store met the mall; Wilson had observed plaintiff carrying a dark cloth-like item in her hand and looking around 'as if to see if someone was watching her;' and Fitzgerel observed Cooper pushing a rolled-up cloth item into her jacket while in the fitting room." Hampton, 985 F.Supp. at 1061; Dill.App. at 105. This assessment placed undue emphasis on the coincidence that the fragrance counter where Cooper and Hampton sought to redeem their coupons was located at the store entrance, thus again crediting Wilson's unfounded fears and suspicions (They're getting away!), rather than the facts of which he had trustworthy knowledge (the women, having made a purchase in the infants' department, had gone to the fragrance department and were engaged in discussion with the clerk at the counter) and ignored crucial admissions by Wilson that he did not at any time see Cooper conceal any Dillard merchandise, and by both Wilson and Fitzgerel that they did not see when Cooper first had the item in her hand, did not see either woman remove it from stock displays, and did not even know whether the item was Dillard merchandise. The significance of the evidence and the conclusions to be drawn therefrom were very much at issue regarding whether Wilson had probable cause to believe Hampton and/or Cooper had actual possession of and had wrongfully taken, or was about to wrongfully take, merchandise from a mercantile establishment.
"[A]s if to see whether someone was watching her" is merely Wilson's characterization of what he saw; what he read into Cooper's activity. He offers it to supply justification, but in fact, it proves nothing. Wilson's characterization of Cooper's activity should not have been considered, much less credited as fact. See supra at 13, 19. What can be considered for its objective reasonableness is evidence of activity. As demonstrated above, when that evidence is viewed in the light most favorable to Cooper, there is a genuine issue of material fact as to whether her activity was anything other than innocent browsing and shopping. Wilson could hardly be said to have "reasonably trustworthy information" when he did not even know whether the dark, rolled-up item was Dillard merchandise or Cooper's son's, and had made no effort to discover what it was. And yet, the district court believed him, despite the plaintiffs' evidence of conflicts in Wilson's account and other evidence raising credibility issues.(18) The probable cause issue was resolved in favor of movant Dillard when the district court credited Wilson's characterizations as undisputed fact. This was error.
III. THE SUMMARY JUDGMENT RECORD IS COMPLETE AND DILLARD'S STATEMENT OF FACTS WAS PROPERLY CONTROVERTED
Dillard argues that Cooper inappropriately asks this Court to consider material not before the district court and complains that "[t]hroughout her argument that summary judgment against her was inappropriate, Cooper refers to evidence in Hampton's jury trial or Hampton's jury verdict,"(19) but this is incorrect. The entire record on summary judgment is reproduced in the Appendices. Supp.App. at 1-575; Dill.App. at 94. It is true that since Hampton and Cooper shared their principal brief, the Statement of Facts refers generally to the trial transcript. However, in the portions of the Argument relating to Cooper, discussions containing references to the evidence are to the summary judgment record. See, e.g., Hampton-Cooper Br. at 26 n. 13 (identifying inconsistences in Wilson's accounts contained in the summary judgment record; citing Supp.App. at 385, 120, 53, and 56); 28 (discussing rebuttal of Wilson's contention that Cooper was acting suspiciously and determination of Wilson's credibility in favor of Dillard inherent in district court's grant of summary judgment; citing Supp.App. at 156, 223).
In response to Dillard's motion, Hampton and Cooper not only refuted Dillard's factual contentions at length, they also affirmatively asserted additional facts, not resting on their allegations, and presented evidence raising genuine issues of material fact. Supp.App. at 153-168 (Responses to Dillard's Statement of Facts); 168-181 (Plaintiffs' Statement of Facts). Plaintiffs' responses appended deposition testimony and other proper evidence complying with Fed. R. Civ. P. 56(e) and the numbered paragraphs provided citations to that evidence.
Dillard's complaint that "[a]mazingly, in at least five sentences, rather than controverting under the Rules, [P]laintiffs merely stated they were without sufficient evidence to admit or deny defendant's contentions"(20) is not worth extended consideration by this Court as Cooper's extended response here demonstrates.
First, the matters set forth were actually contentions and not established facts based on evidence. Four purported statements of fact were self-serving expressions of belief and, while each could be believed or disbelieved by the jury to be fact, they were not established fact capable of sustaining summary judgment. It is little wonder that Plaintiffs could only deny these contentions and point to evidence that would lead a finder of fact to disbelieve the contention and reach a different conclusion.(21)
Dillard seeks, remarkably, to limit § 1981's ban on racial discrimination to its "commercial offering of goods, services, and credit", i.e., to only making and enforcing contracts, while denying its application to racially discriminatory aspects of a contractual relationship, such as "loss prevention policies and practices". Dill.Com.Br. at 11. This extraordinarily narrow view of "contracts" turns back the calendar to when Rosa Parks could contract for bus transportation but not choose her seat free of race discrimination. Dillard's view permits commercial enterprises to sell clothing to blacks and whites, but allow whites only to first try on clothes; to sell blacks movie tickets, but confine them to unclean balconies; and, to sell food to blacks, but require it to be consumed off premises while whites eat inside.
After some courts had narrowed § 1981 over the years, Congress acted in 1991 to "expand" § 1981, to re-make it into a "new, broad" civil rights act and most courts have interpreted it accordingly, giving breadth and meaning to the benefits and privileges clause. This Court should not adopt Dillard's view and bridle again what Congress had to free.
Respectfully submitted,
ARTHUR BENSON & ASSOCIATES
By_______________________________ Arthur A. Benson II
Jamie Kathryn Lansford
Aften P. McKinney
4006 Central (Courier Zip: 64111)
P.O. Box 119007
Kansas City, Missouri 64171-9007
(816) 531-6565
(816) 531-6688 (telefacsimile)
Attorneys for Demetria Cooper
March 2, 1999
1. Dill.Com.Br. at 18 (bold in original).
2. Id. at 20.
3. Dill.App. at 1-6.
4. Supp.App. at 168-74, ¶¶ 1-18. See also, supra at 13 n. 15.
5. Dill.App. at 151 (verdict director); id. at 160 (Phase II verdict form).
6. Hall v. Pennsylvania State Police, 570 F.2d 86, 92 (3d Cir. 1978); Watson v. Fraternal Order of Eagles, 915 F.2d 235, 241 (6th Cir. 1990).
7. Dillard does not cite, and its research may not have found, this new case.
8. I.e.,"enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship".
9. See also Rivers, 511 U.S. at 303 (§ 1981 expanded to apply to all "aspects of the contractual relationship", enlarging the "category of conduct" subject to § 1981).
10. See also Harris v. New York Times, 1993 WL 42773, at * 3 (S.D. N.Y. February 11, 1993), 64 Fair Empl. Prac. Cas. (BNA) 653 (Pre-CRA of 1991, and per Patterson, 491 U.S. at 178-79, racial harassment was not actionable under § 1981 "because the conduct complained of did not involve either a refusal to make a contract with plaintiff or her ability to enforce established contract rights. . . . this holding prompted § 101(b) of the Civil Rights Act of 1991, 42 U.S.C. §1981(b).").
11. See Gardner, etc. v. Chrysler Corp. 89 F.3d 729, 736 (10th Cir. 1996) ("We presume no terms are surplusage.").
12. Hampton's broad theory of § 1981 was also dismissed improperly. Contrary to Dillard's assertion that Hampton may not raise the issue because she did not appeal (Dill.Com.Br. at 15 n. 5), Hampton may properly raise alternative grounds for affirmance in defending against Dillard's appeal where Hampton seeks no enlargement of the relief she obtained on the narrow theory. Griess v. State of Colorado, 841 F.2d 1042, 1047 (10th Cir. 1988). See also Hernandez v. Starbuck, 69 F.3d 1089, 1093-94 (10th Cir. 1995).
13. Dill.Com.Br. at 18 n.7.
14. This business record statement is not hearsay since it was obviously not offered for the truth of the matter asserted.
15. Supp.App. at 168-74, ¶¶ 1-18 (citing, inter alia, deposition testimony of Cole (Supp.App. at 369-72), Jones (Supp.App. at 358-67), Imber (Supp.App. at 289-297), Powell (Supp.App. at 309-19, Pierce (Supp.App. at 337-44), Martens (Supp.App. at 321-35), and Blackwell (Supp.App. at 306-07).
16. Dill.Com.Br. at 18.
17. See, e.g., Supp.App. at 161, ¶ 17 (standing at fragrance counter); id., ¶ 18 (Hampton was aware Wilson was security after his first comments; Cooper initially wondered if he was a "pervert", but as situation developed, began to surmise Wilson acted in security capacity, and learned "for sure" he was security near the end of the encounter); 162, ¶ 19 (Wilson informed them why he stopped them); 163, ¶ 21 (Wilson had the merchandise and bag at least three to five minutes); 164, ¶ 21 (the bag was not withheld from Wilson; the women feared resisting his search of the bag; they were intimidated by Wilson's accusation and demeanor and felt they had to let him search the bag); 165-66, ¶ 24 (the women did not go to customer service until after Wilson shoved the property back at them and concluded the encounter by remarking "that's fine"; they were unable to move or go anywhere until Wilson dismissed them); 166, ¶ 25 (Cooper was fearful about Wilson's reaction if she objected to his directives).
18. See supra at 12-14; Supp.App. at 153, ¶ 3.
19. Dill.Com.Br. at 9.
20. Dill.Com.Br. at 10.
21. In the first instance, Dillard alleged that "Fitzgerel has worked in retail department stores for approximately twenty years, and during the course of her employment has observed numerous incidents of shoplifting." Supp.App. at 6, ¶ 4. Dillard cites Fitzgerel's deposition. Supp.App. at 76-79. But, in the cited testimony, Fitzgerel does not mention shoplifting at all. Accordingly, the plaintiffs responded, "Plaintiffs admit only that Fitzgerel may have observed incidents she believed to be shoplifting, but are without sufficient evidence to admit or deny defendant's contention regarding whether those incidents in fact resulted in convictions for the parties she believed to be shoplifting or the quantity of her observations." Supp.App. 154, ¶ 4. That gave Dillard the benefit of the doubt that it was likely, given Fitzgerel's years of experience, that she had witnessed shoplifting because she certainly didn't testify to it as cited.
Dillard contended it was undisputed that "Fitzgerel was working in the boys' section of the children's department, and Officer Wilson, believing Fitzgerel to be a sales associate, asked that she assist him by observing . . .." Supp.App. at 8-9. Dillard relied on depositions and statements of Wilson and Fitzgerel, but reference to the cited evidence reveals no reference to Wilson's belief about Fitzgerel's status, a fact of little or no consequence to anything at issue. See Supp.App. at 80, 87, 59 (p. 104), and 120. Without evidence to support the contention and with none to refute it, the plaintiffs properly indicated that they were without sufficient evidence to either admit or deny "that Wilson believed Fitzgerel was a sales associate when he contacted her and so the same is denied." Supp.App. 157, ¶ 11.
Dillard also offered as a statement of fact, but without any citation to the record, that "Officer Wilson had no reason to believe Fitzgerel was manufacturing her reported observations." This is not a statement of fact. It is argument. Nevertheless, without supporting evidence, the plaintiffs could hardly admit the proposition and so correctly responded, "Plaintiffs dispute or are without sufficient evidence to admit or deny, and so deny Dillard's contention that Wilson had no reason to believe Fitzgerel was manufacturing her reported observations." Supp.App. 159, ¶ 14.
In the fourth instance, Dillard stated that "Officer Wilson believed plaintiffs [plural] were about to wrongfully take merchandise from defendant." Supp.App. at 10. Dillard relies on Wilson's deposition testimony that he believed "one of the two women was in the process of stealing . . .." Supp.App. at 69 (154). The testimony does not support the statement as fact that both women were about to take merchandise. It was thus correct to respond, "Plaintiffs are without sufficient information with which to admit or deny, and so deny that Wilson believed Hampton and Cooper were about to wrongfully take merchandise from Dillard's." Supp.App. 160, ¶ 16. Moreover, the full response stressed evidence to show that Wilson could not reasonably have believed Dillard merchandise was being taken from the store. Id.
Finally, Dillard stated as fact that "Plaintiff Hampton has not closed her
charge account at Dillard's and defendant has not canceled the account." Supp.App.
at 13. The evidence cited to establish this "fact" was Hampton's response to the
question, "Have you affirmatively cancelled your Dillard's charge card?" Her
answer was, "I don't know if we have or not." Supp.App. at 99 (37). No evidence
supported the assertion that Dillard had not canceled the account. Accordingly, the
first half of the sentence was disputed by citing Hampton's husband's testimony
(Supp.App. at 287 (19)) that he had closed the account. As to the second half, the
plaintiffs properly refrained from admitting a proposition, unsupported by evidence,
by stating, "Plaintiffs are without sufficient evidence to admit or deny the contention
that Dillard's has not canceled Hampton's account, and so same is denied."
Supp.App. 167, ¶ 28.
Certificate of Compliance
Please complete one of the sections:
Section 1. Word count
As required by Fed. R. App. P. 32(a)(7)(C), I certify that this reply brief is
proportionally spaced and contains less than 7,000 words.
Complete one of the following:
I relied on my word processor to obtain the count and it is Word Perfect 8.
I counted five characters per word, counting all characters including citations and numerals.
Section 2. Line count
My brief was prepared in a monospaced typeface and contains lines of text.
I certify that the information on this form is true and correct to the best of my
knowledge and belief formed after a reasonable inquiry.
Attorney for Demetria Cooper
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
PAULA DARLENE HAMPTON, )
)
Plaintiff/Appellee, )
)
and )
)
DEMETRIA COOPER, )
)
Plaintiff/Cross-Appellant, )
)
vs. ) Case No.98-3011 and 98-3261
)
DILLARD DEPARTMENT STORES, )
INC., )
)
Defendant/Appellant/Cross-Appellee. )
CERTIFICATE OF SERVICE
I hereby certify that the original and seven copies of the foregoing Reply Brief were dispatched to the Clerk of the United States Court of Appeals for the Tenth Circuit via Federal Express and two copies were served on counsel identified below, by the means designated, this day of March, 1999:
Ms. Elaine Koch (hand delivery) Julie M. Williamson (U.S. Mail)
Ms. Karen Kessler Cain Ann C. Kiley
Spencer Fane Britt & Browne McKenna & Cuneo, L.L.P.
1000 Walnut, Ste. 1400 370 Seventeenth Street, Suite 4800
Kansas City, Missouri 64106 Denver, Colorado 80202
_________________________________
Jamie Kathryn Lansford