Alvarado v. City of Dodge City

• Court: Kansas Court of Appeals
• Writing for the Court: Before MEYER, P.J., BRISCOE, J., and CORWIN C. SPENCER; BRISCOE
• Citation: Alvarado v. City of Dodge City, 702 P.2d 935, 10 Kan.App.2d 363 (Kan. App. 1985)
• Decision Date: 02 May 1985
• Docket Number: No. 56588,56588
• Parties: Lorraine ALVARADO, Appellant, v. The CITY OF DODGE CITY, Kansas, a municipal corporation; Alco Discount Stores, a corporation; and Robert Fox, Appellees.

Page 935

702 P.2d 935

10 Kan.App.2d 363

Lorraine ALVARADO, Appellant, v. The CITY OF DODGE CITY, Kansas, a municipal corporation Alco Discount Stores, a corporation; and Robert Fox, Appellees.

No. 56588.

Court of Appeals of Kansas.

May 2, 1985.

Syllabus by the Court

1. Summary judgment is proper only when the pleadings, affidavits and discovery record show there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. In reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion.

2. There are two essential elements to a civil rights claim under 42 U.S.C. § 1983 (1982): (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges or immunities secured by the Constitution and laws of the United States.

3. The state courts are a proper forum for federal civil rights actions under 42 U.S.C. § 1983 (1982).

4. An off-duty police officer working as a private security guard may be acting under color of state law when detaining a suspected shoplifter. It is the nature of the act performed, not the clothing of the actor, or even the status of being on duty, or off duty, which determines whether an officer has acted under color of law.

5. An arrest and search made without probable cause are grounds for a civil rights claim under 42 U.S.C. § 1983 (1982).

6. Probable cause for arrest exists if facts and circumstances within an 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.

7. If, after making a lawful arrest based upon probable cause, an officer learns information discrediting the probable cause, further detention and search are unlawful.

8. A police officer is entitled to good faith or qualified immunity for a warrantless arrest if he had probable cause.

9. Under 42 U.S.C. § 1983 (1982), a local government cannot be held liable for acts of its agents merely under a respondeat superior theory. Local governments are liable only when execution of a government policy or custom inflicts the injury.

10. Local governments are liable for unconstitutional policies officially adopted through formal channels. Tacit authorization or deliberate indifference to unconstitutional actions of employees is also sufficient to establish a government policy or custom. Tacit authorization or deliberate indifference may be inferred when there is a persistent pattern of misconduct. A single incident is not sufficient unless it is so outrageous that it warrants an inference that the local government was at fault.

11. Under K.S.A. 60-256(c), the record on a motion for summary judgment consists of the pleadings, discovery record, and affidavits. Oral proffers of proof should not be considered in deciding a motion for summary judgment.

12. Private parties may be liable under 42 U.S.C. § 1983 (1982) if they act jointly with state officials. A person must cause a deprivation of rights to be liable.

13. The merchant's privilege to detain suspected shoplifters does not apply to acts done in the performance of duty by law enforcement officers. K.S.A. 21-3424(2).

14. Under the facts and circumstances of this case, the off-duty police officer working as a private security guard acted as a police officer when detaining a suspected shoplifter. Whether the officer's actions were privileged depends on the standards set out in K.S.A.1984 Supp. 22-2401, rather than K.S.A. 21-3424.

15. The arrest standards which apply to police officers also apply to officer employees of private employers. Whether these standards are met is determinative of the private employer's liability under respondeat superior.

16. PIK Civ.2d 14.21 is outdated and should not be used in the future. Jury instructions on a police officer's privilege to arrest should be based on K.S.A.1984 Supp. 22-2401, as more fully explained in the opinion.

17. The trial court erred in refusing to give the requested instruction defining probable cause.

18. A merchant's liability for false arrest should depend on the minimum legal standards established by statute rather than the merchant's own standards. The trial court correctly excluded evidence of the merchant's own standards for detaining suspected shoplifters.

Donald E. Shultz, of Shultz & Associates, P.A., of Dodge City, for appellant.

Robert A. Anderson and Casey R. Law, of Turner and Boisseau, Chartered, of Great Bend, for appellee The City of Dodge City, Kansas.

B.G. Larson, of Williams, Larson, Strobel, Estes & Malone, of Dodge City, for appellees Alco Discount Stores and Robert Fox.

Before MEYER, P.J., BRISCOE, J., and CORWIN C. SPENCER, J., Retired, Assigned.

BRISCOE, Judge:

Lorraine Alvarado, the plaintiff, appeals a judgment in favor of defendants Dodge City, Alco Discount Stores, and Robert Fox on her civil rights, false arrest, libel, and assault and battery claims. The claims arose out of the plaintiff's detention on January 16, 1982, as a suspected shoplifter by Robert Fox, an off-duty city policeman working as a security guard for Alco.

On that date, the plaintiff bought several items, including a pair of women's shoes, at the Alco store. Fox had observed her in the store, followed her outside, and asked her to return inside. The exact conversation is disputed but, essentially, Fox identified himself as a police officer, displayed his badge, and told the plaintiff he suspected her of shoplifting the shoes she was wearing. When the plaintiff refused to go voluntarily, Fox told her she was under arrest and took her to a storage area at the back of the store. He ordered the plaintiff to remove a shoe and asked a clerk to check whether the plaintiff's shoes came from the store. According to the plaintiff and the clerk, the shoes were obviously old and well worn. Fox testified they were "fairly new" with some scratches and worn spots. The clerk told Fox: "We don't carry these shoes," but he told her to check anyway.

While the clerk was checking the shoes, Fox searched the plaintiff's purse and shopping bag, but found nothing. After the clerk confirmed the shoes were not stolen, Fox released the plaintiff. He filled out a report for Alco and an arrest report, which he filed with the Dodge City Police Department.

The plaintiff raised four claims against the three defendants: false imprisonment, assault and battery, defamation, and denial of civil rights under 42 U.S.C. § 1983 (1982). The City moved for summary judgment on the civil rights claim. The trial court entered summary judgment on that claim in favor of all three defendants without making any findings of fact or conclusions of law. The trial court also dismissed all other claims against the City before trial. The false imprisonment, assault and battery, and defamation claims against Fox and Alco were tried before a jury. The jury found for the defendants and the court entered judgment accordingly.

The plaintiff raises five issues on appeal: (1) whether the trial court erred in entering summary judgment in favor of the defendants on the civil rights claim; (2) whether the trial court erred in instructing the jury on the merchant's privilege to detain rather than a police officer's privilege to arrest; (3) whether the trial court erred in denying the plaintiff's requested instruction defining probable cause; (4) whether the trial court erred in excluding evidence of Alco's own standards for detaining suspected shoplifters; and (5) whether there was sufficient evidence to support the verdict.

1. THE CIVIL RIGHTS CLAIM.

The plaintiff argues the trial court erred in entering summary judgment in favor of the defendants on the civil rights claim.

Summary judgment is proper only when the pleadings, affidavits and discovery record show there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). In reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. p 4, 662 P.2d 1203 (1983). The court therefore must give the plaintiff the benefit of all reasonable inferences arising from the record available to the trial court when it ruled on the motion.

The trial transcript cannot be considered on this issue. The trial court had only the pleadings and discovery record when it granted summary judgment.

There are two essential elements to a civil rights claim under 42 U.S.C. § 1983: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived a person of rights, privileges or immunities secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). The state courts are a proper forum for federal civil rights actions under 42 U.S.C. § 1983. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 509, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103, 103 S.Ct. 724, 74 L.Ed.2d 950 (1983).

A. The Claim Against Fox.

(i) Color of Law.

The defendants argue that Fox could not act under color of law because he was working as a private security guard while off duty.

They argue there must be official police department sponsorship of off-duty activities for those activities to be under color of law. This argument is without merit. An off-duty police officer may act under color of law. " 'It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law.' " Stengel v....