Virdie L. Smith v. Brookshire Brothers, Inc.

519 F.2d 93, 1975 U.S. App. LEXIS 12758

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 15, 1975
• Docket: 74-2606
• Status: Published

Opinions

PER CURIAM:

Virdie L. Smith and Donnie McClure brought an action for damages against Kenneth Sandel, Glen Nevill and Brook-shire Brothers, Inc. alleging false imprisonment, malicious prosecution and violation of civil rights protected under 42 U.S.C. § 1983. The suit was prompted by actions taken by employees of Brook-shire Brothers to foil those they suspected of being shoplifters. The trial court believed that the plaintiffs had proven their claim and awarded damages. Defendants appeal.

On September 13, 1971 Virdie Smith and Donnie McClure entered Brookshire Brothers of Lufkin, Texas to purchase groceries. Virdie Smith chose a few items. Donnie McClure chose a jar of cold cream and put it in the outside pocket of her purse. Virdie Smith paid for her groceries on the way out of the store. But “although Donnie McClure was in the vicinity of the checkout counter, she had not passed through the counter and was not in the process of leaving the store when detained by the defendants Sandel and Nevill.” (Finding of Fact 7). Sandel and Nevill took both women to the rear of the store and called the police. Policeman Tooley arrived on the scene. The policeman testified that he was not told the manner in which the plaintiffs were apprehended nor does the evidence show him to have known the circumstances which led to the apprehension. He was simply told that they had taken a jar of cold cream. On this basis he took them down to the police station where they were fingerprinted and booked. No written complaint was made out at the time the police took McClure and Smith into custody. Rather a store officer went down to the police station some minutes later. At that time he “signed the blank paper that the officer asked me to sign.” The charges were ultimately dismissed. The district court found that while McClure’s deposit of the jar in her bag during shopping created some cause for suspicion, that fact did not create' reasonable grounds to detain the woman as a shoplifter before she had been given an opportunity to pay for the item. The court also found that the appellants had acted under color of state law in bringing about the detention of appellees and had thus violated their civil rights within the purview of § 1983. He awarded each $6,000.00.

In sum, the police had detained the appellees without independently establishing that there was probable cause to do so — they took the appellees into custody without a valid complaint having been filed and without knowing the facts to believe that a crime had been committed. See United States v. Salvo, 5 Cir. 1971, 447 F.2d 474; United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795. Instead, they depended on the conclusory assessment of the store officers. These store managers, in turn, did not have probable cause for believing that McClure was a shoplifter and that Smith was an accomplice.

But in order for the defendant-appellant Brookshire to be liable under § 1983 for fostering a detention without probable cause, the plaintiffs must show that Brookshire was acting under color of law. The police may have made a mistake but they are not defendants here. The store managers may have made a mistake in detaining appellees but that alone would not make them liable under § 1983; it would only create a state tort action, depending on the state’s false imprisonment standard. The plaintiffs had to show that the police and the store managers were acting in concert; that Brookshire and the police had a customary plan whose result was the detention in the present case. Adickes v. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

The district court decided that such a plan had been evidenced: “The arrests by the Police Department of the City of Lufkin were made without the filing of a valid complaint and without any investigation, all of which was pursuant to said preconceived plan.” (Finding of Fact 4; emphasis added). We do not believe that such a finding is clearly erroneous. Many colloquies at trial gave testimony to the proposition that Brook-shire officials knew that they could have people detained merely by calling the police and designating the detainee. Illustrative of the evidence are the following exchanges:

1.

Q: Does Brookshire, to your knowledge, have any type of pre-arranged plan with the Lufkin Police Department to come and assist them when they need help, particularly in the area of shoplifting?

A: (Officer Tooley): Yes, sir, at that time they did.

2.

Q: And shoplifting was part of your job when merchants would call in that they had caught somebody, they would call the police department and you would go out and pick them up?

A: (Officer Tooley): Yes, sir.

Q: Is this a pre-arranged plan you are talking about, they didn’t bring them in theirselves, they would call you and you would come get them?

A: Yes, sir.

3.

Q: What led you to file a complaint on Mrs. Smith?

A: (Mr. Sandell): Well, there had been previous cases that I asked the officer about that was similar to this here when maybe one assisted in helping another one or watched for them and so forth, and the officer always said to file on both of them if they were helping like this, and after talking with her also.

We believe that the district court was not clearly erroneous in his finding from such evidence that a plan existed which made the defendant-appellant an actor under color of law and thus liable for damages under 42 U.S.C. § 1983.

Affirmed.