Sanders v. Sears, Roebuck & Co.

• Decision Date: 23 March 1993
• Docket Number: No. 92-1912,92-1912
• Citation: 984 F.2d 972
• Parties: Ronny J. SANDERS, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, a New York Corporation; Daniel J. Geiger, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 972

984 F.2d 972

Ronny J. SANDERS, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, a New York Corporation; Daniel J.

Geiger, Defendants-Appellees.

No. 92-1912.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 15, 1992.

Decided Feb. 2, 1993.

Rehearing and Rehearing En Banc

Denied March 23, 1993.

Robert J. LaBine, Grand Forks, ND, argued, for plaintiff-appellant.

Paul G. Woutat, Grand Forks, ND, argued, for defendants-appellees.

Before McMILLIAN, Circuit Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.

LAY, Senior Circuit Judge.

Ronny J. Sanders appeals the district court's grant of summary judgment dismissing his 42 U.S.C. § 1983 (1983) claims as well as other pendent state claims against Sears, Roebuck & Company and Daniel J. Geiger. ¹ Sanders had alleged that Geiger, a security guard employed by Sears, had maliciously and wrongfully detained him at a Sears Roebuck department store on suspicion of shoplifting computer disks valued at $37.00. The district court granted summary judgment for the defendants, holding that collateral estoppel precluded Sanders' relitigation of probable cause of arrest because the issue had been adjudicated at Sanders' state criminal trial. The district court also dismissed the state pendent claims of malicious prosecution, negligence and vicarious liability. On appeal, Sanders urges 1) that the issue involved in his § 1983 suit was not litigated in his state criminal trial, and 2) that he did not have a fair opportunity to litigate the issue of lack of probable cause for arrest at the state trial.

I.

On April 19, 1988, Ronny J. Sanders, a Captain in the United States Air Force, entered the Sears retail store in Grand Forks, North Dakota with an empty Daytons shopping bag--a custom he alleges that he acquired during his military duty in England. Sanders walked over to the computer software display and selected three boxes of disks. He carried them in his hand and passed various Sears clerks and paying stations. Sanders entered the catalog merchandise customer bin area and upon reaching the secluded rear, looked from left to right several times and placed the three disks in his shopping bag. He then walked rapidly through the automotive department to a set of doors leading to the automobile service bays on the north end of the store. As Sanders approached the doors, he was stopped by Officer Geiger who asked to see the contents of the bag. Geiger also asked for a receipt. Sanders replied that he was just then proceeding to the cash register to purchase the disks.

Sanders voluntarily accompanied Geiger to the manager's office. He revealed to Geiger that he had neither sufficient funds nor a checkbook in his possession to pay for the computer disks. Sanders also had no Sears credit card in his possession, although it was later determined that Sanders did have a Sears charge account. Geiger recovered the merchandise and turned Sanders over to the custody of the Grand Forks police.

Sanders was charged and tried in a state criminal trial for theft of property. The jury returned a not guilty verdict. Sanders subsequently filed this 42 U.S.C. § 1983 suit.

II. Section 1983

Sanders' § 1983 suit against Sears and Geiger alleged false arrest and malicious prosecution in violation of his constitutional due process rights. The district court dismissed the § 1983 suit holding that collateral estoppel precluded relitigation of the issue of probable cause for arrest because it had been adjudicated at Sanders' state criminal trial. We affirm the dismissals, but do so on different grounds.

A. COLLATERAL ESTOPPEL

Sanders argues that the district court erred in holding that the issue of whether Sears' security guard, Daniel Geiger, had probable cause to arrest Sanders was determined at his state trial, thus collaterally estopping Sanders from relitigation of this issue in the present § 1983 suit.

The district court determined that Sanders was collaterally estopped under North Dakota Law. ² During the course of the state criminal trial, Sanders moved for dismissal of the criminal case for "lack of probable cause." (Tr. at 9-10). The federal district court interpreted this to mean that Sanders moved for dismissal for lack of probable cause for arrest. We find the district court erred. Sanders moved for dismissal for lack of probable cause based upon North Dakota Century Code 51-21-02 which is part of the North Dakota Retail Theft Act allowing merchants to detain suspected shoplifters. Section 51-21-01 creates a presumption as to when a prima facie case has been established. ³

A fair reading of the state record shows that the state court understood the motion in the same way that Sanders now contends. The state judge said:

It merely sets out a presumption. If a person has done the things set out in the first part of the statute, then there's a prima facie case. I do not feel it is necessarily applicable to the facts of the case.

The state trial judge refused to dismiss the case, stating that the presumption was rebuttable if it applied. We think it clear that the state court ruled on a motion for probable cause for the case to go to the jury, not probable cause for arrest. As such, the issue of probable cause for arrest was never litigated in the state court.

Significantly, lack of probable cause for arrest is not a legal defense to a criminal charge. The fact that the arrest of a defendant is illegal does not in any way prejudice a defendant's conviction when the evidence used in the trial does not flow from the arrest. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (an adjudication of guilt is not to be annulled due to an illegal arrest and pretrial detention); Collins v. Swenson, 443 F.2d 329 (8th Cir.1971).

Probable cause for arrest and probable cause for a search are, however, often litigated in a suppression hearing of a state criminal case to determine whether evidence seized in a wrongful arrest or search must be suppressed. Such litigation may serve to collaterally estop a litigant from asserting the claim in a § 1983 action. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). ⁴

In the present case, we do not find that the issue of the legality of Sanders' arrest had been previously litigated. There was no suppression hearing at the state trial, and the motion for dismissal for lack of probable cause clearly referred to whether there was sufficient evidence to go to the jury, not whether there was sufficient probable cause for arrest. We therefore hold that the district court erred in finding Sanders collaterally estopped from raising the issue of probable cause and in granting summary judgment for dismissal on this ground.

B. SEARS ROEBUCK

The only allegation made against Sears, Roebuck & Company in the § 1983 claim is that it is responsible under a theory of respondeat superior. Such a claim is not cognizable under § 1983. Section 1983 creates a cause of action against "every person, who under color of any statute, ordinance, regulation, custom, or usage" subjects any person to deprivation of immunities secured by the Constitution or federal laws. 42 U.S.C. § 1983 (1988). Although § 1983 secures most constitutional rights from infringement by governments, not private parties, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974), where a private party acts under color of state law, it can be held liable under § 1983. See e.g., Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (private individual deemed to act under color of state law if he or she is "willful participant in joint action with State or its agents"); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (proof of conspiracy between restaurant and police would establish that the restaurant acted under color of law and thus the private entity could be held liable under § 1983).

Here, although Sears is a private corporation, we assume without deciding that it "acted under color of state law" by virtue of North Dakota Century Code 51-21-03. ⁵ However, a corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies. Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The proper test is whether there is a policy, custom or action by those who represent official policy that inflicts injury actionable under § 1983. Id. at 694, 98 S.Ct. at 2037. Here, Sanders has not pled that Sears has a policy or custom of false arrests or malicious prosecution. Moreover, Sears "cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691, 98 S.Ct. at 2036. The fact that Sears employed Geiger does not make Sears liable under § 1983. We therefore affirm the dismissal of the § 1983 claim against Sears.

C. GEIGER

1. Qualified Immunity

In his responsive pleading as well as on appeal, Geiger asserted 1) immunity from liability by virtue of North Dakota Century Code § 51-21-03 and § 51-21-04 and 2) probable cause and reasonable belief that Sanders was committing theft. Although Geiger did not use the exact words "qualified immunity under § 1983," see Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980) (good faith immunity is an affirmative defense that the officer must raise), we deem the assertions in his answer sufficient to constitute an affirmative pleading of qualified immunity under federal law.

In the interest of procedural efficiency, and based on the undisputed facts regarding Geiger's conduct, we see no merit in remanding the question of qualified immunity to the trial court for a separate ruling and we thus address the issue here. Qualified immunity shields Geiger from suit for damages if "a reasonable officer could have believed ...