Alvarado v. City of Dodge City, 56588

• Decision Date: 25 October 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.
• Court: Kansas Supreme Court

Page 174

708 P.2d 174

238 Kan. 48

Lorraine ALVARADO, Appellant, v. The CITY OF DODGE CITY, Kansas, a Municipal Corporation;

Alco Discount Stores, a Corporation; and Robert

Fox, Appellees.

No. 56588.

Supreme Court of Kansas.

Oct. 25, 1985.

Syllabus by the Court

1. Under the factual circumstances set forth in the opinion, where the plaintiff was deprived of her liberty by an alleged random and unauthorized act of an off-duty police officer working as a security guard for a private employer, the Kansas tort actions for false imprisonment, assault, and defamation provided an adequate postdeprivation remedy sufficient to satisfy the requirements of due process. Hence, the plaintiff's civil rights claim under 42 U.S.C. § 1983 (1982) was properly dismissed.

2. A local government cannot be held liable for violation of civil rights by its agents under 42 U.S.C. § 1983 (1982) on the basis of a respondeat superior theory. Local governments are liable only when execution of a government policy or custom inflicts the injury.

3. Under the factual circumstances set forth in the opinion, the merchant's defense, as provided in K.S.A. 21-3424(3), was applicable in a civil action to recover damages for false imprisonment, assault, and defamation.

4. K.S.A. 21-3424(2) is construed to mean that the crime of unlawful restraint is not applicable to acts done in the performance of duty by any law enforcement officer of the State or of any political subdivision thereof. However, the merchant's defense provided in subsection (3) may be applicable in a civil case involving an off-duty law enforcement officer who is employed by a merchant as a security officer.

5. A "detention" means the temporary restraint of a person by a law enforcement officer.

6. An "arrest" means the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime.

7. A merchant's liability for false arrest should depend on the minimum legal standards established by statute rather than on the merchant's higher standards for its employees.

8. Where the merchant's defense is asserted in a civil action for false imprisonment, an appropriate instruction defining probable cause should be given by the trial court.

Donald E. Shultz of Shultz & Associates, P.A., Dodge City, argued the cause and was on brief for appellant.

B.G. Larson of Williams, Larson, Strobel, Estes & Malone, Dodge City, argued the cause, and Terry J. Malone, of the same firm, was with him on briefs for appellees Alco Discount Stores and Robert Fox.

Robert Allen Anderson, Great Bend, argued the cause, and Hannelore Kitts and Casey R. Law of Turner & Boisseau, Chartered, Great Bend, were on brief for appellee city of Dodge City.

PRAGER, Justice:

This is an action brought by the plaintiff, Lorraine Alvarado, to recover damages for false arrest, assault, defamation, and violation of civil rights under 42 U.S.C. § 1983 (1982). The case was submitted to a jury which brought in a verdict in favor of the defendants. Plaintiff appealed to the Court of Appeals which reversed and remanded the case for a new trial (Alvarado v. City of Dodge City, 10 Kan.App.2d 363, 702 P.2d 935 [1985]. The defendants Alco Discount Stores and Robert Fox then filed a petition for review which was granted by the Supreme Court.

The plaintiff's claim arose as a result of her detention as a suspected shoplifter at the Alco Discount Store in Dodge City on January 16, 1982, by Robert Fox, an off-duty police officer, who at the time was working as a security guard at Alco. The facts in the case were disputed.

The plaintiff's evidence was essentially as follows: On Saturday, January 16, 1982, the plaintiff, Lorraine Alvarado, a 35-year-old Hispanic woman, was shopping at the Alco store in Dodge City. She was accompanied by her sister, Barbara Garcia. After entering the store, she shopped for approximately two hours, during which period plaintiff purchased a pair of ladies shoes, a pair of children's shoes, a pair of pajamas, and some flashlight batteries for her husband. After making those selections, she went to the checkout stand at the front of the store with the articles and paid cash for the same. Following the practice of the store, her shopping bag was stapled shut at the top with the sales ticket on the upper corner. The evidence was undisputed that plaintiff paid for each and every item selected and that she was not a shoplifter.

After plaintiff went through Alco's checkout stand, she left the store with the items purchased. She was outside the store in the direction of the parking lot when she was approached by Fox, who asked her to return to the store. According to the plaintiff, she asked him why, and he told her, "We have proof you stole the shoes you are wearing." He asked her to return to the store, and she refused, stating that she didn't steal them but had paid for them. Fox then announced to her that, if she did not return to the store voluntarily, he would have to use force and place her under arrest, and he showed her his police badge. Plaintiff testified she used profanity, calling him a damned liar. Officer Fox then said for her to consider herself under arrest, took hold of her left arm, and forced her back toward the door. She then agreed to return on her own if he would let go of her, which he did.

She was walked the length of the public portion of the store to a table in the storage area in the rear. There Fox demanded that she remove her shoes, and she did. Officer Fox showed the shoes to one of the clerks, Tana Freel, who stated to Fox that she did not get those shoes there. Officer Fox then told the clerk to check anyway. Tana Freel and another clerk each took a shoe and checked the entire ladies shoe display and found nothing resembling these shoes. Tana Freel also stated the shoes were obviously worn and not new. The clerk then returned to the back room and informed Officer Fox that the shoes did not come from the store. While Tana was checking the shoes, Officer Fox requested plaintiff to open her shopping bag, which was stapled shut. She refused, telling him if he wanted it open, he would have to open it himself. Officer Fox tore the bag open and found a new pair of ladies shoes and the various items mentioned above which he carefully checked against the register ticket. Fox then requested that she empty out her purse, and she refused, stating he would have to do it himself. Fox then proceeded to search through her purse, finding nothing incriminating. The plaintiff estimated that 25 to 30 minutes elapsed between her arrest and her release. Officer Fox prepared and filed an arrest report for the city police department and also a report for Alco. After Fox had completed his search of her purse and had been advised that the shoes had not been purchased at the store, he told the plaintiff, "I guess I made a mistake." Shortly thereafter, her husband arrived to find out what the trouble was. Plaintiff then left the store.

The defendant Fox had a different version of what occurred. He testified that he first observed the plaintiff and her sister standing in the center aisle by some shoes that were on sale. The plaintiff stood there for approximately five minutes holding the shoes in her hand and turning them over and over and looking around. He thought that that appeared to be somewhat unusual. He then saw them leave the area and go to a more concealed area of the store. He saw plaintiff picking at the price tag on the pair of shoes and then saw her bend down and put a shoe on her foot. He saw her leave that area of the store. Fox then went to the area where she had been standing and found an Alco sales tag lying on the floor. Fox then went to the service counter and asked the clerk if the sales tag was like the ones on the shoes in the center aisle. He was advised by the clerk that she thought so. The sales tag, which was admitted into evidence, was in the amount of $2. Fox testified that he observed the plaintiff walking around the store wearing either slacks or a dress which covered up the shoes she was wearing. He saw her go through the checkout counter. Fox admitted he never called the store's office to check the number on the tag to see if it was from the ladies shoe department, and further admitted that he never checked with the cashier to see what items plaintiff had paid for. At this point, Fox said he reasonably believed Mrs. Alvarado to be a shoplifter and, therefore, followed her out the door.

Fox also had a different version of what happened outside of the store on the way to the parking lot. According to Fox, he called to Mrs. Alvarado and told her that he suspected her of taking the shoes that she was wearing, or that she had been wearing. He asked her to come back into the store and she refused, stating that he would have to arrest her. He then placed her under arrest and took her back into the store. He admitted taking hold of her arm. They then proceeded back into the store and he had the clerks check the shoes which were found not to be shoes purchased from the store. He admitted searching her shopping bag and her purse. It was his judgment that he detained the plaintiff for a total of ten minutes. According to Fox, he told plaintiff that he had made a mistake and was sorry. On the arrest report, Fox stated that he had "unarrested" Mrs. Alvarado.

The plaintiff called her sister, Barbara Garcia, to the stand. She testified on cross-examination that after she and her sister walked out of the store, Officer Fox said "Ma'am" in a normal voice. Fox asked her sister twice if she would cooperate and go back in the store and finally said, "If you will not cooperate, I will have to arrest you." At that point, Mrs. Alvarado said he would have to arrest her. Fox then arrested her and took her back in the store. Ms. Garcia testified that the whole incident took about ten to fifteen minutes.

As noted above, the plaintiff...