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White v. Scrivner Corp.

United States Court of Appeals, Fifth Circuit
Apr 30, 1979
594 F.2d 140 (5th Cir. 1979)

Summary

holding that detaining suspected shoplifter is not an exclusive state function

Summary of this case from Wade v. Byles

Opinion

No. 77-2016.

April 30, 1979.

Roy L. Brun, Shreveport, La., for plaintiffs-appellants.

Richard H. Switzer, Shreveport, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, CLARK and RONEY, Circuit Judges.


While Lois White, her daughter Sandra White, and her sister Gloria Pratt were shopping in a Scrivner Corporation food store one night, the assistant manager of the store accused Lois White of stealing a roast from the store's meat counter and requested that she and her two relatives accompany him to a room in the back of the market. The women were asked for permission to search their purses and, upon examining the contents, the assistant manager found a pistol in Lois White's handbag. He then told the women to stand against a wall in the room while he called the police, who arrived a short time later and arrested Lois White for carrying a concealed weapon. Neither the police nor the assistant manager ever found any of the store's goods in Lois White's possession. White and her relatives subsequently filed this 42 U.S.C. § 1983 action against Scrivner and the employees involved in the incident, alleging that the detention and search infringed the plaintiffs' rights under the fourteenth amendment. This action was tried to the district court without a jury. The court found for the defendants and held that the employees' actions did not violate any of the plaintiffs' constitutional rights. We affirm.

To establish a claim under 42 U.S.C. § 1983, plaintiffs must show that the defendants acted under color of state law to deprive them of a right secured by the Constitution and laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185, 192 (1978); Adickes v. S. H. Kress Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142, 150 (1970). Plaintiffs here offer three arguments to meet the under-color-of-law requirement. First, they contend that the employees, in detaining them and searching their purses, were performing a function exclusively reserved to the state and therefore should be treated as state actors. Second, plaintiffs assert that state action should be found since the defendants acted under a state statute permitting detention of suspected shoplifters. Third, they assert that state action was present here since the defendants acted in concert with the police to detain and search the plaintiffs.

La. Code Crim.Pro.Ann. art. 215A (West Supp. 1978) provides in part:

A peace officer, merchant, or specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant's premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.

Plaintiffs' first and second arguments are governed by the Supreme Court's recent decision in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). In Flagg Brothers, a warehouseman threatened to invoke the provisions of a New York statute to sell the plaintiff's goods in order to pay past-due storage fees. Plaintiff brought suit under § 1983 seeking damages and an injunction to prohibit the proposed sale. The Supreme Court held that the plaintiff failed to show that the warehouseman's threats were made under color of state law. The Court first rejected the notion that the warehouseman, in threatening to sell the plaintiff's goods, was performing a public function. Although it reaffirmed the principle that a private party's performance of public functions can in certain situations be attributed to the state, the Court concluded that attribution was appropriate only when the function performed is "exclusively reserved to the state." 436 U.S. at 157, 98 S.Ct. at 1734, 56 L.Ed.2d at 194; see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The Court noted that this definition of public function embraces very few activities and mentioned two examples from previous cases: the conduct of elections, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932), and the performance of all necessary municipal functions in a "company town," see Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). The Court distinguished the warehouseman's statute in Flagg Brothers from the elections in Terry and the company town in Marsh in this language:

Although the elections held by the Democratic Party and its affiliates were the only meaningful elections in Texas, and the streets owned by the Gulf Shipbuilding Corporation were the only streets in Chickasaw, the proposed sale by Flagg Brothers under § 7-210 is not the only means of resolving this purely private dispute.

436 U.S. 159-160, 98 S.Ct. at 1735, 56 L.Ed.2d at 195-196. Since the New York statutes provided creditors and debtors with a range of choices of resolution of their disputes, the use of one of those remedies by Flagg Brothers was not usurpation of "an exclusive prerogative of the sovereign." 436 U.S. at 160, 98 S.Ct. at 1735, 56 L.Ed.2d at 196.

The Flagg Brothers Court also rejected the plaintiff's contention that the warehouseman's actions should be attributed to the state since the state authorized and encouraged the action by adopting the warehouseman's statute. The statute did not compel the warehouseman to sell the plaintiff's goods, but merely indicated that the state would not interfere with such sales. Thus, what the plaintiff complained of was not state action, but the fact the state had not acted to deny the warehouseman the power to sell the goods. The Court held the state's inaction could not be characterized as "authorization" or "encouragement." 436 U.S. at 164, 98 S.Ct. at 1737-38, 56 L.Ed.2d at 198.

Plaintiffs here urge that the defendants performed public functions in detaining them as suspected shoplifters, in searching their purses, and in detaining them after the gun was found, even though the defendants no longer had any reason to believe they were shoplifting. We disagree. Like the warehouseman in Flagg Brothers, the merchant here did not perform any function "exclusively reserved to the state." A merchant's detention of persons suspected of stealing store property simply is not an action exclusively associated with the state. Experience teaches that the prime responsibility for protection of personal property remains with the individual. A storekeeper's central motivation in detaining a person whom he believes to be in the act of stealing his property is self-protection, not altruism. See W. Prosser, Handbook of the Law of Torts 108-117 (4th ed. 1971). Such action cannot logically be attributed to the state. See Battle v. Dayton-Hudson Corp., 399 F. Supp. 900, 904 (D.Minn. 1975); Warren v. Cummings, 303 F. Supp. 803, 805 (D.Colo. 1969). Moreover, the State of Louisiana, like the State of New York in Flagg Brothers, provides damage remedies for a merchant's wrongful detention of a suspected shoplifter, Pace v. Winn-Dixie Louisiana, Inc., 339 So.2d 856 (La.Ct.App. 1st Cir. 1976), writ denied, 341 So.2d 404 (1977); Smith v. Whatley, 338 So.2d 153 (La.Ct.App. 2d Cir. 1976), writ denied, 341 So.2d 4 (1977), and for slander, Levy v. Duclaux, 324 So.2d 1 (La.Ct.App. 4th Cir. 1975), writ denied, 328 So.2d 887-888 (1976); Bacharach v. F.W. Woolworth Co., 160 So.2d 854 (La.Ct.App. 4th Cir.), writ denied, 246 La. 75, 163 So.2d 356 (1964).

Defendants' search of plaintiffs' purses and their detention after the gun was found also cannot be characterized as functions exclusively reserved to the state. While these actions are usually performed by police officers, private citizens do occasionally engage in them. The search here was no more than an extension of the detention for shoplifting. It is not unusual for a storekeeper to attempt to discover whether suspected shoplifters have indeed stolen store goods before calling the police. Once the defendants found the gun, detention of the women until the arrival of the police was also not an action outside the realm of common experience. It is not unknown for private citizens to intervene when they see what they believe are crimes being committed. See Cummings, supra, 303 F. Supp. at 806; Prosser, supra, at 131-36. In addition, Louisiana law permits a person wrongfully detained by another to bring an action for damages based on false imprisonment. See Rawls v. Daughters of Charity of St. Vincent De Paul, Inc., 491 F.2d 141, 146 (5th Cir. 1974), cert. denied, 419 U.S. 1032, 95 S.Ct. 513, 42 L.Ed.2d 307 (1974); Kyle v. City of New Orleans, 353 So.2d 969, 971 (La. 1977). We therefore conclude that the defendants here did not perform any function exclusively reserved to the sovereign.

In asserting the existence of state action, plaintiffs also rely on the Louisiana statute insulating merchants from liability for detention of persons reasonably believed to be shoplifters. Flagg Brothers requires rejection of this argument. The statute here is essentially the same type of provision as the statute at issue in Flagg Brothers. The Louisiana provision does not compel merchants to detain shoplifters, but merely permits them to do so under certain circumstances. Absent some compulsion or some overt state involvement, no state action can be found because of the mere existence of the statute. Flagg Brothers, supra, 436 U.S. at 164, 98 S.Ct. at 1737-38, 56 L.Ed.2d at 198; see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

Plaintiffs also urge that the defendants acted under color of law since their detention was the product of a pre-existing plan between the police and the defendants. Duriso v. K-Mart, 559 F.2d 1274 (5th Cir. 1977); Smith v. Brookshire Brothers, 519 F.2d 93 (5th Cir. 1975), cert. denied, 424 U.S. 915, 96 S.Ct. 1115, 47 L.Ed.2d 320 (1976). In Brookshire Brothers, we found state action in a merchant's detention of suspected shoplifters since that detention was the result of a preconceived plan formulated by the City Police Department and the merchant. The record showed that the police routinely arrested suspected shoplifters solely upon the statement of the storekeeper that a party had been engaged in shoplifting. No independent investigation was made and no sworn complaint was required.

A similar plan of concerted action was found in Duriso. The record there showed that the police customarily took persons into custody for shoplifting if the manager signed a form stating that the person accused of shoplifting had not been given permission to remove items from the store without payment and that the store requested the filing of criminal charges against the individual. The court concluded that the use of this form was sufficient evidence to allow a jury to find the existence of concerted action.

The record here is devoid of evidence showing a plan between the police and the defendants for dealing with shoplifters. Uncontradicted testimony established that the Shreveport Police Department had a policy of conducting independent investigations before making arrests for shoplifting; the policemen did not customarily rely solely on the merchants' accusation in arresting shoplifters. Moreover, the department also required merchants to swear out a complaint prior to refiling of charges against a defendant. The proof presented here did not evince a plan of concerted action similar to that involved in Duriso and Brookshire Brothers.

Plaintiffs also note that the employee who detained them showed them an identification card which led them to believe that he was a policeman. A finding of state action cannot, however, be based solely upon the plaintiff's beliefs concerning the employee's activity, no matter how well-founded those beliefs were. Ouzts v. Maryland National Insurance Co., 505 F.2d 547, 554 (9th Cir. 1974) (en banc), cert. denied, 421 U.S. 949, 95 S.Ct. 1681, 44 L.Ed.2d 103 (1975); Warren v. Cummings, 303 F. Supp. 803, 804-05 (D.Colo. 1969). Plaintiffs failed to prove that the card in question conveyed any authority whatsoever to the employee. Indeed, the card itself was never introduced into evidence. In the absence of evidence showing that the City of Shreveport actively participated in the misrepresentation of the employee's status as a law enforcement official, state action cannot be found in the employee's use or misuse of the identification card.

The plaintiffs failed to show that the defendants' actions were performed under color of state law. The district court was therefore correct in denying them any recovery under the provisions of 42 U.S.C. § 1983.

AFFIRMED.


Summaries of

White v. Scrivner Corp.

United States Court of Appeals, Fifth Circuit
Apr 30, 1979
594 F.2d 140 (5th Cir. 1979)

holding that detaining suspected shoplifter is not an exclusive state function

Summary of this case from Wade v. Byles

holding that private citizens who conducted arrests, searches, and seizures did not engage in public functions

Summary of this case from Goncalves v. Chamberlin

holding that private security personnel with no law enforcement authority were not acting under the color of state law when they searched and detaining shoplifters and then called the police

Summary of this case from El-Bey v. Menefee

holding that store employees did not perform public functions in detaining "suspected shoplifters, in searching their purses, and detaining them after gun was found"

Summary of this case from State v. Santiago

finding no state action in store employees' detention of suspected shoplifters

Summary of this case from Bass v. Parkwood Hospital

finding store assistant manager's detention of plaintiffs did not constitute state action

Summary of this case from Rhodes v. Belk Dep't Stores, Inc.

finding state action where private merchant detained shoplifter pursuant to preconceived plan between the city and merchant

Summary of this case from Smith v. City of Kenya

upholding a bench verdict in favor of a merchant on a § 1983 claim because unlike the police in Brookshire, the police in White had a policy of conducting independent investigations to make determinations to arrest and "did not customarily rely solely on the merchants' accusation"

Summary of this case from Morris v. Dillard Dept. Stores, Inc.

upholding a bench verdict in favor of a merchant on a § 1983 claim because unlike the police in Brookshire, the police in White had a policy of conducting independent investigations to make determinations to arrest and "did not customarily rely solely on the merchants' accusation"

Summary of this case from Payne v. Spoon

denying that private security personnel were acting under the color of state law in “detaining [plaintiffs] as suspected shoplifters, in searching their purses, and in detaining them after the gun was found, even though the defendants no longer had any reason to believe they were shoplifting” because the court reasoned that “ merchant's detention of persons suspected of stealing store property simply is not an action exclusively associated with the state. Experience teaches that the prime responsibility for protection of personal property remains with the individual.”

Summary of this case from GeorgiaCarry.org, Inc. v. Georgia

affirming judgment after bench trial where evidence did not show joint action between police and private merchant in latter's detention and search of potential shoplifter

Summary of this case from Auster Oil Gas, Inc. v. Stream

affirming a defendant's verdict on similar grounds against claim that acts were undertaken under similar Louisiana statute

Summary of this case from Moher v. Stop Shop Companies, Inc.

dismissing a § 1983 claim against a store that detained a suspected shoplifter, searched her purse, and then reported a concealed firearm to the police

Summary of this case from Martinez v. Leasing

In White, for example, the Fifth Circuit held that the detention of a suspected shoplifter is not an exclusive state function.

Summary of this case from Chapman v. Higbee Co.

detaining suspected shoplifter is not an exclusive state function

Summary of this case from Gallagher v. Neil Young Freedom Concert

In White, the plaintiff sued under section 1983 after being detained in the defendant's food store as a suspected shoplifter.

Summary of this case from Goss v. Memorial Hosp. System

reaching the same conclusion where the police had a policy of conducting independent investigations before making arrests for shoplifting

Summary of this case from Glotfelty v. Hart

In White, for example, the Fifth Circuit held that the detention of a suspected shoplifter is not an exclusive state function.

Summary of this case from Childs v. United Community Bank

describing the "shopkeeper's privilege" to arrest and temporarily detain suspected shoplifters

Summary of this case from McDaniel v. Smith

In White, the Fifth Circuit rejected the plaintiffs' contention that the merchant, by detaining them and searching their purses pursuant to this statute, became a state actor.

Summary of this case from Hunt v. Steve Dement Bail Bonds, Inc.

In White v. Scrivner Corporation, 594 F.2d 140 (5th Cir. 1979), the Fifth Circuit held that state action could not be found when store employees, acting pursuant to a state statute, detained a suspected shoplifter.

Summary of this case from Anderson v. Randall Park Mall Corp.

In White v. Scrivener, 594 F.2d 140 (5th Cir. 1979), plaintiffs were detained by employees of the defendant in defendant's store on suspicion of shoplifting.

Summary of this case from Watkins v. Roche

In White v. Scrivner Corporation, 594 F.2d 140 (5th Cir. 1979), the Court rejected plaintiffs' § 1983 arguments where plaintiffs were detained as suspected shoplifters by employees of the defendant food store.

Summary of this case from Whitten v. Petroleum Club of Lafayette
Case details for

White v. Scrivner Corp.

Case Details

Full title:LOIS WHITE ET AL., PLAINTIFFS-APPELLANTS, v. SCRIVNER CORPORATION ET AL.…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 30, 1979

Citations

594 F.2d 140 (5th Cir. 1979)

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