Sunday, March 18, 2007

LP Falsely Accuses Customer Of Boosting $5 Drill, Could Be Liable For State Torts

BOYKIN v. VAN BUREN TOWNSHIP, USCA-6 No. 06-1359, 2007 U.S.App. LEXIS 5830, on appeal from USDC-MIED, before USCJs Martin, Cole, Gilman, opinion by Martin, filed 14 Mar 2007.

LONG STORY SHORT: Store loss prevention officer who called police and had a customer arrested for shoplifting, only to discover that the customer had paid for the merchandise, was not acting in concert with the state for Fourth Amendment purposes, but could be liable for common-law torts; police were not liable at all. Binding in KY, MI, OH, TN.

FACTS: Plaintiff found a drill he wanted at a Meijer store in Belleville, MI. At the register, Plaintiff learned that the drill was only $5, so he paid for two drills and came back to the register with the additional drill. The cashier was busy with another customer and acknowledged Plaintiff with a nod as he left the store.

Meijer LP officer Chaney first caught sight of Plaintiff as Plaintiff picked up the second drill without checking the price or comparing it to other merchandise, and Chaney believed such "quick selection" not to be normal shopping behavior. Meijer LP policy required two LPOs to confront suspects, so as Plaintiff walked through an empty checkout lane, Chaney called LPO Youmans over. Plaintiff was already in his vehicle by the time Youmans responded, and Meijer LP policy forbade LPOs to approach suspects once they were in a vehicle. Youmans described Plaintiff and his vehicle and related Plaintiff's tag number to the Van Buren Township PD. Officers Hayes and Harrison arrived at Plaintiff's home and knocked on the door.

Plaintiff did not let the officers in, but spoke with them through the door. Dispatch advised the officers that Meijer LP wanted Plaintiff arrested for "good retail fraud," that is, where LP observes concealment of merchandise and walking out with it or attempting to. Plaintiff said he was calling a lawyer, and told his wife to videotape what was happening. Plaintiff opened the front door without letting the officers in, and they told him that Meijer was accusing him of retail fraud and claimed to have everything on videotape. Plaintiff professed innocence, but the officers would not let him go look for the receipt, and Plaintiff's wife could not find it. Plaintiff's wife's videotape recorded Officer Hayes saying: "I'm trying to avoid coming into your home and dragging you out of your home ... and we're going to do that if you don't listen to us." Plaintiff walked outside, where the officers cuffed him and took him, and a Meijer bag with two drills in it, back to the store. There, Chaney checked the register journal and talked with the cashier, confirming that Plaintiff had paid for everything. The officers uncuffed Plaintiff and drove him back home in a patrol car.

PROCEDURE: Plaintiff sued Meijer, Chaney, Youmans, the officers, Van Buren Township, and Van Buren PD in U.S. District Court for the Eastern District of Michigan on numerous causes of action, including per 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. After discovery, the Township defendants moved for summary judgment, arguing that the officers had probable cause to arrest Plaintiff. The Meijer defendants also moved for summary judgment, arguing that all they did was call the police and report information, which was not action under color of state law for § 1983 purposes, and they had probable cause for doing even that, exonerating them of state tort liability. The trial court agreed, ruling that on the record before it, Chaney and Youmans had indisputable evidence suggesting that Plaintiff had stolen the drill, giving them and the police probable cause for their actions against Plaintiff. SUMMARY JUDGMENT GRANTED in all respects; case closed. Plaintiff appealed to the U.S. District Court for the Sixth Circuit.

DECISION: The information that police had when they went to Plaintiff's house was sufficient to make probable cause. Officers Hayes and Harrison had no reason to doubt its reliability, because they often received reliable information from store LP personnel, and Plaintiff was the person they were looking for but was unable to produce any evidence confirming his version of events. Since the officers did not violate the Constitution, neither could the Township or PD be liable under § 1983. Furthermore, since state tort liability for the Township defendants depended on lack of probable cause, Plaintiff had no claim against any of them. Also, merely calling the police and supplying information is not sufficient to convert a private security officer into a state actor, so neither Meijer nor its LPOs could be liable under § 1983. GRANT OF SUMMARY JUDGMENT AFFIRMED IN PART.

However, there was material conflict in the evidence of just what LPO Chaney saw, and when.
A finder of fact would have to sort out whether a reasonable person in Chaney's place would have had probable cause to try to get Plaintiff arrested. GRANT OF SUMMARY JUDGMENT REVERSED IN PART; cause REMANDED for further proceedings.

The Sixth Circuit offered two suggestions: (1) with all the federal claims gone and probably no diversity of citizenship, the trial court might be free to decline further jurisdiction and dismiss the complaint without prejudice to refiling in state court; and (2) Officer Hayes' show of force, i.e., threatening to enter Plaintiff's home by force when Officer Hayes knew he had plenty of time to get a search or arrest warrant, violated the Fourth Amendment and probably would have subjected Officer Hayes to § 1983 liability, but since Plaintiff did not raise that claim at trial or on appeal, then it was abandoned.

EDITORIAL: The "I-coulda-had-a-V8" feeling is all too well known to every litigator. I missed that one myself, until the Sixth Circuit pointed it out, but then they had months to review the record. Must be nice.

Upon first reading this case, I was all ready to tear the LPOs a new one, but after going over it thoroughly, I'm less inclined to be so judgmental. Let's let the jury hash it out. I do hope this shopper gets some major money from Meijer, on the simple principle that with great power comes great responsibility.

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