Wilson v. McRae's, Inc.

• Decision Date: 01 July 2005
• Docket Number: No. 04-2722.,04-2722.
• Citation: 413 F.3d 692
• Parties: Mark WILSON, Plaintiff-Appellant, v. MCRAE'S, INC., doing business as Carson Pirie Scott & Co., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

413 F.3d 692

Mark WILSON, Plaintiff-Appellant, v. MCRAE'S, INC., doing business as Carson Pirie Scott & Co., Defendant-Appellee.

No. 04-2722.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2005.

Decided July 1, 2005.

Marshall J. Burt (argued), Chicago, IL, for Plaintiff-Appellant.

Martha Swatek (argued), Schroeder, Adams & Swatek, Geneva, IL, for Defendant-Appellee.

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

As he was leaving the Carson Pirie Scott department store in Chicago's Loop with two bed sheets, Mark Wilson was stopped and accused of shoplifting. Mahmoud Yassin, the store's "lead loss prevention agent," called the police and held Wilson in handcuffs until they arrived. In the officers' presence Yassin signed a criminal complaint stating that he had seen Wilson pick up the sheets from a display, put them in a bag, and head for an exit without paying. The police arrested Wilson, who was detained for about 13 hours before being released on bail. When Yassin failed to appear on the date set for Wilson's trial, the judge dismissed the criminal charges. Wilson then filed this suit against Carson Pirie Scott. Although he did not name either arresting officer as a defendant, he contends that Carson Pirie Scott itself is a state actor, so that 42 U.S.C. § 1983 supplies a remedy. The district judge granted summary judgment for the defendant, holding that Wilson's grievance arises under state law (for false arrest, malicious prosecution, or a related theory) rather than the federal Constitution or 42 U.S.C. § 1982 (Wilson's fallback claim).

Private entities may be treated as state actors when the state effectively transfers authority to them. That general statement of the legal norm has a concrete application to arrests for shoplifting or similar charges at the behest of commercial establishments: "shopkeepers are engaged in `state action' when they strike a deal with the police under which the police simply carry out the shopkeepers' directions. If the police promise to arrest anyone the shopkeeper designates, then the shopkeeper is exercising the state's function and is treated as if he were the state." Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435 (7th Cir.1986), deriving this approach from Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Wilson contends that two facts demonstrate that Illinois handed over its police power to the department store. First, the officers did not conduct an independent investigation but relied on Yassin's claim, even though Wilson told them that Yassin was lying and offered a receipt from another retailer to show that he was the sheets' owner. Second, the two arresting officers acknowledged that they had never refused to arrest anyone whom Carson Pirie Scott accused of shoplifting. (We call the first of these propositions a fact even though Carson Pirie Scott insists that Yassin told the truth and that Wilson is lying about having a receipt. Given the posture of the litigation we must accept Wilson's position.) Neither of these propositions would allow a reasonable trier of fact to infer that Carson Pirie Scott is exercising state power delegated by the Chicago Police.

The first of Wilson's propositions—that the officers did not conduct their own investigation—was equally true in Gramenos, which held that lack of investigation does not support an inference that the police are the merchant's tools. Officers regularly rely on people who claim to be eyewitnesses to (or victims of) crime; that reliance does not imply that the victims are exercising state power. What is more, the two officers swore in depositions that they normally do conduct their own investigations rather than accept retailers' say-so. Wilson did not try to undermine this contention—as he might have done by, for example, gathering evidence about their conduct in a random sample of recent arrests. Wilson's only evidence concerns the events of his own arrest, and one event cannot demonstrate the sort of long-term delegation that implies a transfer of authority from the police department to the department store.

Wilson's second proposition—that these two officers have made an arrest every time Carson Pirie Scott pressed charges— conflates two people with the whole Police Department. Wilson has not endeavored to learn Carson's overall record of success when it presses charges; again the evidence is confined to one instance. Nor would repeated conduct imply agreement. Suppose that Wilson has purchased Ford autos for his entire adult life; that does not imply that he has agreed with Ford to buy his next car from it. It would show satisfaction with the product so far, not a commitment to act in the future. Likewise if Carson for the last decade has hired every Bryn Mawr graduate who applied for a job; this would evince satisfaction with the graduates rather than a promise to hire future applicants. Cf. United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993) (en banc).

What might support Wilson's claim would be proof that police always arrest whomever Carson Pirie Scott accuses even though the suspects are frequently acquitted at trial—while other department stores have lower arrest rates and higher conviction records among those arrested. Such a pattern would show that something unusual was going on between the police and Carson Pirie Scott. But, to repeat, Wilson offers no comparative or systemic evidence. The deficiency is not, as the district judge stated, that Wilson's evidence is "self-serving." Most affidavits are self-serving, as is most testimony, and this does not permit a district judge to...