Lynette Chapman v. The Higbee Company, D/B/A Dillard Department Stores, Inc.

319 F.3d 825, 2003 U.S. App. LEXIS 2376, 2003 WL 328837

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 11, 2003
• Docket: 99-3970
• Status: Published

Opinions

BOYCE F. MARTIN, Jr., C.J., delivered the opinion of the court, in which DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ., joined. SUHRHEINRICH, J„ delivered a separate dissenting opinion, in which BOGGS and BATCHELDER, JJ., joined.

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

Lynette Chapman brought suit against the Higbee Company, doing business as Dillard’s Department Store, after a Dillard’s security officer stopped and searched her. Chapman alleges that the stop and search were racially motivated and violated her right to the “full and equal benefit of the law” under 42 U.S.C. § 1981 and her right to be free from unreasonable search and seizure under the Fourth Amendment. Her claim raises two issues on appeal: (1) whether section 1981 provides a cause of action against a private party under its equal benefit clause and (2) whether the Dillard’s security officer acted “under color of law.” The court below found that section 1981 does not protect against private impairment of its equal benefit clause and that the security officer did not act “under color of law.” A divided panel of this court affirmed. After rehearing en banc, we REVERSE.

I.

On February 20, 1997, Chapman, an African-American, was shopping at Dillard’s Department Store in Cleveland, Ohio. After choosing some clothing, Chapman entered a fitting room, from which a Caucasian woman had just exited. When Chapman entered the fitting room, she noticed a sensor tag called a “kno-go” on the floor. After trying on the clothing, Chapman decided not to purchase anything and left the fitting room to return the clothing to the racks.

A Dillard’s sales assistant noticed the sensor on the floor of Chapman’s fitting room and, suspecting Chapman of shoplifting, notified a Dillard’s security officer. The officer, an off-duty sheriffs deputy, was wearing his official sheriffs department uniform, badge, and sidearm. As an employee of Dillard’s, the security officer was obligated to obey Dillard’s Rules and Procedures for Security Personnel, which provide the following instructions with respect to strip searching customers suspected of shoplifting: “Strip searches are prohibited. If you suspect that stolen objects are hidden on [the shopper’s] person, call the police.”

The security officer stopped Chapman and directed her back to the fitting room. He and a female manager then searched Chapman’s purse. After determining Chapman’s purse contained no Dillard’s merchandise, the officer informed Chapman that it would also be necessary to check her clothes. At the officer’s behest, Chapman accompanied the female manager into the fitting room. The manager then searched Chapman by having Chapman remove her coat and suit jacket and lift up her shirt. After the manager found nothing, she apologized, and Chapman left the store.

As a result of this incident, Chapman brought suit against Dillard’s, seeking relief (1) under 42 U.S.C. § 1981 for impairment of her rights under that statute’s equal benefit clause and (2) under 42 U.S.C. § 1983 for violations of her right to be free from unreasonable search and seizure under the Fourth Amendment and her right to due process under the Fifth Amendment. A magistrate judge, sitting by the parties’ consent, granted summary judgment in favor of Dillard’s, finding (1) Chapman could not state a cognizable claim under section 1981 because the statute does not protect against private impairment of its equal benefit clause and (2) Chapman could not state a cognizable claim under section 1983 because the security officer was not acting “under color of state law.” After the magistrate denied her motion for reconsideration, Chapman appealed. A divided panel of this court affirmed, and we granted en bane review.

II.

We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 405 (6th Cir.1999). Summary judgment is appropriate only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. fed.R.Civ.P. 56(c); see also Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 807 (6th Cir.1996) (“Without weighing the evidence or judging the credibility of witnesses, and drawing all inferences in favor of the non-moving party, a district court usually undertakes to determine whether there is sufficient evidence to permit reasonable jurors to find for the non-moving party.”).

A.

The viability of Chapman’s section 1981 claim turns on whether section 1981 protects against private impairment of its equal benefit clause. In relevant part, section 1981 reads as follows:

(a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other.

(c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.¹

42 U.S.C. § 1981(a), (c) (1998) (emphasis added).

“In all cases of statutory construction, the starting point is the language employed by Congress.” Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995). Moreover, where “the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (citation and internal punctuation omitted).

Section 1981 is unambiguous. According to subsection (c), the rights protected by section 1981 are “protected against impairment by nongovernmental discrimination.” Section 1981 explicitly protects the right “to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens;” therefore, that right is “protected against impairment by nongovernmental discrimination.”

1.

Dillard’s argues that subsection (c)’s protection against nongovernmental discrimination is limited to subsection (a)’s make and enforce contracts provision.

Because subsection (c) already expressly limits its reach to those rights “protected by this section,” the principle of expressio unius est exclusio alterius would seem to preclude this court from grafting additional limitations into the statute.

We may, however, look past the plain language of a statute where: (1) the plain language creates inconsistencies within the statute itself, (2) application of the plain language runs contrary to clearly expressed legislative intent, or (3) application of the plain language would lead to absurd results. Vergos v. Gregg’s Enterprises, Inc., 159 F.3d 989, 990 (6th Cir.1998) (citing United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)); see also Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 56 L.Ed.2d 591(1978) (“This Court, in interpreting the words of a statute, has some scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results or would thwart the obvious purpose of the statute but it is otherwise where no such consequences would follow and where [a literal reading] appears to be consonant with the purposes of the Act.”) (quoting Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 14 L.Ed.2d 75 (1965) (internal citation and punctuation omitted)); Crooks v. Harrelson, 282 U.S. 55, 59 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930).

2.

Relying on a Third Circuit decision authored before Congress added the language in subsection (c), Mahone v. Waddle, 564 F.2d 1018 (3d Cir.1977), Dillard’s suggests that a plain reading of subsection (c) creates internal inconsistencies. In Mahone, the court held that a complaint against a city government for violation of section 1981’s equal benefit clause stated a cognizable cause of action. Responding in dicta to the city’s contention that the court’s broad construction of section 1981 would give rise to a federal cause of action for every racially motivated private tort, the Mahone court suggested that such a result was unlikely, because “the concept of state action is implicit in the equal benefit clause.” Id. at 1029-30. Adopting the Mahone court’s dicta, Dillard’s argues that a plain reading of subsection (c) is inconsistent with section 1981’s equal benefit clause, which implicitly incorporates the concept of state action.²

The Supreme Court’s decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), however, precludes this court from finding subsection (c)’s plain language inconsistent with the statute’s equal benefit provision. In Griffin, the Court found 42 U.S.C. § 1985(3)’s analogous equal protection provision applicable to private as well as official action. Id. at 96-102, 91 S.Ct. 1790; see also 42 U.S.C. § 1985(3) (providing a cause of action where “two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws”). In so finding, the Griffin Court expressly rejected the notion that the concept of state action is implicit in an equal protection provision: “A century of Fourteenth Amendment adjudication has ... made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State.” Id. at 97, 91 S.Ct. 1790 (emphasis added).

Indeed, Griffin’s interpretation of section 1985(3)’s equal protection provision suggests that section 1981’s analogous clause would protect against private impairment even absent subsection (c)’s explicit instruction: “[T]he failure to mention any such [state action] requisite can be viewed as an important indication of congressional intent to speak in section 1985(3) of all deprivations of ‘equal protection of the laws’ and ‘equal privileges and immunities under the laws,’ whatever their source.” Griffin, 403 U.S. at 97, 91 S.Ct. 1790 (emphasis added); see also United States v. Williams, 341 U.S. 70, 76, 71 S.Ct. 581, 95 L.Ed. 758 (1951) (plurality opinion of Frankfurter, J.) (finding no state action requirement in analogous equal protection provision of criminal statute); United States v. Harris, 106 U.S. 629, 637-39, 1 S.Ct. 601, 27 L.Ed. 290 (1883) (same).

Given the Supreme Court’s rejection of the notion that state action is implicit in the concept of equal protection, we cannot find the plain language of subsection (c) inconsistent with the statute’s equal benefit clause.³

3.

There is nothing in the legislative history of the 1991 amendments to section 1981 that prevents this court from applying subsection (c)’s plain language. Of the two House Committee Reports on the Civil Rights Act of 1991, only one even mentions subsection (c), and that discussion is terse. The House Judiciary Committee authored H.R. Report No. 102-40(11), which states only that Congress intended to codify Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), and intended subsection (c) “to prohibit racial discrimination in all contracts, both public and private.” H.R.Rep. No. 102-40(11), at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 731. Congress’s failure to discuss the application of subsection (c) to the other rights enumerated in subsection (a) does not properly give rise to an inference that subsection (e)’s reference to “the rights in this section” actually refers to “the contractual rights in this section.” Congress’s failure to comment upon statutory language simply does not constitute a rejection of the plain import of that language. Even viewed in the light most favorable to Dillard’s, the legislative history of subsection (c) is equivocal. Thus, we cannot say that giving effect to subsection (e)’s plain language flouts Congress’s clear intent in passing the 1991 Amendment.

4.

Dillard’s also argues that application of subsection (c)’s plain language with respect to section 1981’s equal benefit clause would have the “absurd” result of federalizing state tort law.

A result, however, is not absurd merely because it does not comport with one’s notion of what constitutes good policy.⁴ We typically embark upon the exceptional task of divining Congress’s intent outside the literal language of the statute only when the statute produces a result not which we dislike but which is patently illogical or contrary to Congress’s intent. See Crooks, 282 U.S. at 59-60, 51 S.Ct. 49 (“[T]o justify a departure from the letter of the law ... the absurdity must be so gross as to shock the general moral or common sense. And there must be something to make plain the intent of Congress that the letter of the statute is not to prevail.”).

As discussed above, the legislative history of subsection (c) is at most equivocal. There is nothing in that history evidencing Congress’s intent that a plain reading of subsection (c) not prevail. Moreover, it is unlikely that application of subsection (c)’s plain language will unleash the flood of cases Dillard’s predicts. The language surrounding the “full and equal benefit” clause serves to cabin both the number and nature of claims that may be brought under its ambit. The equal benefit clause may only be invoked when one party denies another the “full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (emphasis added). The “security of persons and property” language limits the potential class of cases that may be brought under the equal benefit provision. A litigant must demonstrate the denial of the benefit of a law or proceeding protecting his or her personal security or a cognizable property right.⁵ Further, to prevail on a section 1981 claim, a litigant must prove intentional discrimination on the basis of race, which involves a high threshold of proof. Because of these significant limitations, we do not believe that the plain language of subsection (c) federalizes a wide swath of conduct traditionally covered by state common law.

Because section 1981 plainly protects against impairment of its equal benefit clause by private discrimination and because there is no reason to look beyond section 1981’s plain language, we find that Chapman states a cognizable section 1981 claim.⁶

B.

In addition to her section 1981 claim, Chapman seeks relief under 42 U.S.C. § 1983 for violations of her right to be free from unreasonable searches and seizures under the Fourth Amendment and her due process rights under the Fifth Amendment.⁷ To state a claim under section 1983, Chapman must show that Dillard’s, through its security officer, deprived her of a right secured by the Constitution or laws of the United States while acting “under color of state law.” See Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992).

A private party's actions constitute state action under section 1983 where those actions may be “fairly attributable to the state.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 947, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test. See Wolot-sky, 960 F.2d at 1335.⁸ On appeal, Chapman argues that summary judgment should have been denied because there was a genuine issue of material fact regarding the existence of state action under either the public function test or the nexus test.

Under the public function test, a private party is deemed a state actor if he or she exercised powers traditionally reserved exclusively to the state. The public function test has been interpreted narrowly. Only functions like holding elections, see Flagg Bros. v. Brooks, 436 U.S. 149, 157-58, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), exercising eminent domain, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), and operating a company-owned town, see Marsh v. Alabama, 326 U.S. 501, 505-09, 66 S.Ct. 276, 90 L.Ed. 265 (1946), fall under this category of state action. Our sister circuits have consistently held that the mere fact that the performance of private security functions may entail the investigation of a crime does not transform the actions of a private security officer into state action. See Wade v. Byles, 83 F.3d 902, 905 (7th Cir.1996); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1457 (10th Cir.1995); White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir.1979).

In White, for example, the Fifth Circuit held that the detention of a suspected shoplifter is not an exclusive state function.

A merchant’s detention of persons suspected of stealing store property simply is not an action exclusively associated with the state. Experience teaches that the prime responsibility for protection of personal property remains with the individual. A storekeeper’s central motivation in detaining a person whom he believes to be in the act of stealing his property is self-protection, not altruism. Such action cannot logically be attributed to the state.

594 F.2d at 142 (citation omitted). Applying these principles to Chapman’s claim, we are satisfied that the Dillard’s security officer was not performing a function exclusively reserved to the State when he stopped and searched Chapman. Under the public function test, there was no state action.

Under the symbiotic or nexus test, a section 1983 claimant must demonstrate that there is a sufficiently close nexus between the government and the private party’s conduct so that the conduct may be fairly attributed to the state itself. See Wolotsky, 960 F.2d at 1335; see also Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (noting that a challenged activity may be state action “when it is entwined with governmental policies or when government is entwined in [its] management or control.”) (internal quotation omitted); Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980) (holding that officer who shot plaintiff while officer was off-duty acted under col- or of state law because officer’s authority to carry weapon derived from his status as police officer, conflict between officer and plaintiff arose out of officer’s official duties, and plaintiff threatened officer in officer’s official capacity); Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.1975) (concluding that off-duty police officer who shot and killed two men and paralyzed a third in a barroom brawl acted under color of law because mace spray used by officer was issued by police department, and officer carried his pistol and intervened in dispute pursuant to department regulations).

The inquiry is fact-specific, and the presence of state action is determined on a case-by-case basis. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Although “it is possible to determine ... whether a person acted under color of state law as a matter of law, there may remain in some instances unanswered questions of fact regarding the proper characterization of the actions for the jury to.decide.” Layne, 627 F.2d at 13 (internal citations and quotations omitted).

Here, the Dillard’s security officer who stopped and searched Chapman was an off-duty sheriffs deputy, wearing his official sheriffs department uniform, badge, and sidearm. Moreover, the Dillard’s security officer was obligated to obey Dillard’s policies and regulations while on-duty at the store. Although the state played no part in the promulgation of these policies, their strip searching provision directly implicates the state: “Strip searches are prohibited. If you suspect that stolen objects are hidden on [the shopper’s] person, call the police.”

During the incident at issue, the Dillard’s security officer did not represent himself as a police officer, threaten to arrest Chapman, wave his badge or weapon, or establish any contact with the sheriffs department. He did however initiate a strip search by requiring Chapman to enter a fitting room with the sales manager to inspect her clothing.⁹ Because Dillard’s policy mandates police intervention in strip search situations, a reasonable jury could very well find that the initiation of a strip search by an armed, uniformed sheriffs deputy constituted an act that may fairly be attributed to the state. Additionally, if Chapman did not feel free to leave, as a result of the security officer’s sheriffs uniform, his badge, or his sidearm, a reasonable jury could find the detention was a tacit arrest and fairly attributable to the state.

Therefore, we find that there is a genuine issue of material fact as to whether the security officer acted under “color of state law” when he asked Chapman to enter the fitting room with the sales manager so that Chapman’s clothes and person could be searched.

III.

For the foregoing reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.

1 . In 1991, Congress amended 42 U.S.C. § 1981 by the addition, inter alia, of subsection (c), "to strengthen existing protections and remedies available under federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination." H.R.Rep. No. 102-40(11), at 1, reprinted in 1991 U.S.C.C.A.N. at 694.

2 . Phrased differently, Dillard's argues that a plain reading of subsection (c) renders the statute internally inconsistent by protecting against private impairment rights that private actors cannot impair. Although not germane to Chapman’s claim under section 1981’s equal benefit clause, one could make a similar argument on the basis of subsection (a)'s like punishment clause. See 42 U.S.C. § 1981(a) ("All persons within the jurisdiction of the United States ... shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”).

There is nothing unworkable, however, about the proposition that a given statute may proscribe conduct beyond that which all of those persons the statute regulates are actually capable of engaging in. That the driver of an industrial dump-truck may be incapable of violating a seventy-five miles-per-hour speed limit does not preclude uniform application of that limit. Indeed, if a necessary component of statutory consistency was a regulated group capable of violating all of a statute’s proscriptions, section 1981 could not be consistently read to apply to state actors, the vast majority of whom are in no position to punish, tax, or deny licenses to any person protected by section 1981.

3 . The differences in groups regulated by section 1985(3) — groups of two or more persons — and section 1981 — either individuals or groups — in no way affects whether the concept of state action is implicit in the statutes’ analogous equal protection provisions. See Griffin, 403 U.S. at 98-99, 91 S.Ct. 1790 (rejecting the argument that section 1985(3) contemplated "a private conspiracy so massive and effective that it supplants those [state] authorities and thus satisfies the state action requirement”).

4 . Of course, "we should be and are 'reluctant to federalize’ matters traditionally covered by state common law.” Patterson v. McLean Credit Union, 491 U.S. 164, 183, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (internal quotation omitted). This reluctance, however, does not give this court leeway to ignore Congress's plain instructions.

5 . Several cases that have allowed “full and equal benefit” claims to go forward without state action have involved serious threats to a person’s security in the form of physical violence. See, e.g., Carey v. Rudeseal, 703 F.Supp. 929, 930 n. 1 (N.D.Ga.1988) (noting that court had allowed "full and equal benefit” claim against private actor involved in Ku Klux Klan incident because section 1981 "provides a cause of action against private individuals for racially-motivated, intentionally-inflicted injury and does not require state action in the deprivation of rights”); Hawk v. Perillo, 642 F.Supp. 380, 386-87, 390 (N.D.Ill.1986) (construing language and history of statute to allow claim against private individual who engaged in vicious beating of plaintiffs motivated by racial animus).

6 . In so deciding today, we agree with the Second Circuit’s recent decision in Phillip v. University of Rochester, 316 F.3d 291 (2d Cir.2003). Two sister circuits, in Brown v. Philip Morris, Inc., 250 F.3d 789 (3d Cir.2001), and Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851 (8th Cir.2001), disagree with us, relying on our withdrawn panel decision in this case, on various district court decisions, and on dicta in Mahone.

7 . Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction therof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983 (1998).

8 . Citing West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (public function test); Flagg Bros. v. Brooks, 436 U.S. 149, 157, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (same); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (state compulsion test); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (symbiotic relationship test).

9 . Dillard's policy does not define strip searching. Because Chapman was forced to remove her clothing (i.e., she was forced to remove her coat and suit jacket, and lift up her shirt), a jury could reasonably determine that she was strip searched under the Dillard's policy.