Smith v. Brookshire Bros., Inc.

Decision Date15 September 1975
Docket NumberNo. 74-2606,74-2606
Citation519 F.2d 93
PartiesVirdie L. SMITH et al., Plaintiffs-Appellees, v. BROOKSHIRE BROTHERS, INC., et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Kenzy D. Hallmark, Lufkin, Tex., for defendants-appellants.

Jerry L. Hatton, Ernest L. Sample, Beaumont, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before GOLDBERG, CLARK and GEE, Circuit Judges.

PER CURIAM:

Virdie L. Smith and Donnie McClure brought an action for damages against Kenneth Sandel, Glen Nevill and Brookshire Brothers, Inc. alleging false imprisonment, malicious prosecution and violation of civil rights protected under 42 U.S.C. § 1983. The suit was prompted by actions taken by employees of Brookshire Brothers to foil those they suspected of being shoplifters. The trial court believed that the plaintiffs had proven their claim and awarded damages. Defendants appeal.

On September 13, 1971 Virdie Smith and Donnie McClure entered Brookshire Brothers of Lufkin, Texas to purchase groceries. Virdie Smith chose a few items. Donnie McClure chose a jar of cold cream and put it in the outside pocket of her purse. Virdie Smith paid for her groceries on the way out of the store. But "although Donnie McClure was in the vicinity of the checkout counter, she had not passed through the counter and was not in the process of leaving the store when detained by the defendants Sandel and Nevill." (Finding of Fact 7). Sandel and Nevill took both women to the rear of the store and called the police. Policeman Tooley arrived on the scene. The policeman testified that he was not told the manner in which the plaintiffs were apprehended nor does the evidence show him to have known the circumstances which led to the apprehension. He was simply told that they had taken a jar of cold cream. On this basis he took them down to the police station where they were fingerprinted and booked. No written complaint was made out at the time the police took McClure and Smith into custody. Rather a store officer went down to the police station some minutes later. At that time he "signed the blank paper that the officer asked me to sign." The charges were ultimately dismissed. The district court found that while McClure's deposit of the jar in her bag during shopping created some cause for suspicion, that fact did not create reasonable grounds to detain the woman as a shoplifter before she had been given an opportunity to pay for the item. The court also found that the appellants had acted under color of state law in bringing about the detention of appellees and had thus violated their civil rights within the purview of § 1983. He awarded each $6,000.00.

In sum, the police had detained the appellees without independently establishing that there was probable cause to do so they took the appellees into custody without a valid complaint having been filed and without knowing the facts to believe that a crime had been committed. See United States v. Salvo, 5 Cir. 1971, 447 F.2d 474; United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795. Instead, they depended on the conclusory assessment of the store officers. These store managers, in turn, did not have probable cause for believing that McClure was a shoplifter and that Smith was an accomplice.

But in order for the defendant-appellant Brookshire to be liable under § 1983 for fostering a detention without probable cause, the plaintiffs must show that Brookshire was acting under color of law. The police may have made a mistake but they are not defendants here. The store managers may have made a mistake in detaining appellees but that alone would not make them liable under § 1983; it would only create a state tort action, depending on the state's false imprisonment standard. The plaintiffs had to show that the police and the store managers were acting in concert; that Brookshire and the police had a customary plan whose result was the detention in the present case. Adickes v. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

The district court decided that such a plan had been evidenced: "The arrests by the Police Department of the City of Lufkin were made without the filing of a valid complaint and without any investigation, all of which was pursuant to said preconceived plan." (Finding of Fact 4; emphasis added). We do not believe that such a finding is clearly erroneous. Many colloquies at trial gave testimony to the proposition that Brookshire officials knew that they could have people detained merely by calling the police and designating the detainee. Illustrative of the evidence are the following exchanges:

1.

Q: Does Brookshire, to your knowledge, have any type of pre-arranged plan with the Lufkin Police Department to come and assist them when they need help, particularly in the area of shoplifting?

A: (Officer Tooley): Yes, sir, at that time they did.

2.

Q: And shoplifting was part of your job when merchants would call in that they had caught somebody, they would call the police department and you would go out and pick them up?

A: (Officer Tooley): Yes, sir.

Q: Is this a pre-arranged plan you are talking about, they didn't bring them in theirselves, they would call you and you would come get them?

A: Yes, sir.

3.

Q: What led you to file a complaint on Mrs. Smith?

A: (Mr. Sandell): Well, there had been previous cases that I asked the officer about that was similar to this here when maybe one assisted in helping another one or watched for them and so forth, and the officer always said to file on both of them if they were helping like this, and after talking with her also.

We believe that the district court was not clearly erroneous in his finding from such evidence that a plan existed which made the defendant-appellant an actor under color of law and thus liable for damages under 42 U.S.C. § 1983.

Affirmed.

GEE, Circuit Judge (dissenting):

Affirming, the majority properly finds it unnecessary to discuss one of appellants' major contentions or to detail the facts at much length. Dissenting, I cannot avoid doing both.

On September 13, 1971, after two earlier shopping stops, Virdie Smith and Donnie McClure entered Brookshire Brothers of Lufkin, Texas, to purchase groceries. Virdie Smith chose a few items, put them in her shopping cart, and, she said, began to search for the large-size Milky Ways. Donnie McClure had accompanied her sister into the store. Sandel and Nevill, both employees of Brookshire Brothers, believed the women were acting strangely and decided to go to the observation post at the back of the store where they could watch all the aisles without being seen. There is no question that Virdie Smith had paid for her groceries on her way out of the store. The court found that she had done nothing more "suspicious" while in the store than glance around. Donnie McClure's actions, however, were in dispute. Appellants claimed that McClure had gone through the checkout line without paying for a jar of Pond's cold cream. The court agreed that there was some cause for suspicion due to the fact that she had placed the jar of cold cream in the outside pocket 1 of her purse while passing through the aisles of Brookshire Brothers; however, he also found that she had not been given an opportunity to pay, so there were no reasonable grounds to believe that she was a shoplifter. Reasonable grounds or no, Sandel and Nevill, evidently convinced that they were about to successfully disrupt a plot between shoplifter and accomplice to filch a jar of cold cream, stopped the women before they left the store and took them to the rear of the store. McClure produced the cold cream, but both women disclaimed intent to deprive the store of any goods without paying for them. Nevertheless, the police were called. Policeman Tooley arrived on the scene; Nevill and Sandel pointed out the alleged wrongdoers; and Tooley took them to police headquarters where they were fingerprinted and booked. The court found that Tooley had made no independent investigation of the facts before taking the women in. No complaint had been filed when the women were removed from Brookshire's; Sandel later came to the station and signed a complaint form. The charges were ultimately dismissed. The court below found that appellants had acted under color of state law in violating the women's civil rights and awarded each $6,000.

Appellants' first attack is on the threshold requirement of the suit. In order to recover under § 1983, the plaintiff must establish both deprivation of a right secured by the federal Constitution or laws and action by defendant under color of state law. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Appellants here are private citizens, and they contend that their actions were private as well. If so, then Smith and McClure fail on both essentials of their suit: no action under color of law and no right protected by the Fourteenth Amendment since that amendment protects against state action only. Hall v. Garson, 430 F.2d 430, 439 (5th Cir. 1970). However, in some circumstances private citizens can be found liable under § 1983. The court below did not designate specifically the reasons for finding that defendants had acted under color of state law, but appellees suggest two possibilities: delegation of state functions and joint activity with state officials.

Here Sandel and Nevill were acting pursuant to now-repealed Article 1436e of the Texas Penal Code. That section provides that a merchant with reasonable grounds to believe a person has taken his goods wrongfully may, if done in a reasonable manner, detain the person to investigate ownership of the goods. Any person can seize goods to prevent shoplifting and bring the goods and, if possible, the offender before a magistrate, or deliver same to a peace officer for that purpose. Again, reasonable grounds are required. 2 Hall...

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