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DAVIS v. CARSON PIRIE SCOTT & CO.

January 28, 1982

BEVERLY M. DAVIS, PLAINTIFF,
v.
CARSON PIRIE SCOTT & COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Beverly M. Davis ("Davis") sues Carson Pirie Scott & Company ("Carson's") and its employee David Chimino ("Chimino") for injuries arising from an allegedly unlawful arrest. Defendants have moved to dismiss. For the reasons stated in this memorandum opinion and order their motion is granted.

Facts*fn1

On September 18, 1980 Davis was on the premises of Carson's Evergreen Park store. Defendants, allegedly without probable cause, detained Davis and accused her of shoplifting. Davis was then arrested and taken into custody by Evergreen Park Police.*fn2 On November 14, 1980 all criminal charges arising from the incident were dismissed.

Davis' Theories of Recovery

Davis alleges violations of 42 U.S.C. § 1983 ("Section 1983") and the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution. Both Carson's and Chimino are private parties not holding any governmental or official position. For Davis to maintain an action under any of the provisions, she must plead facts that adequately demonstrate defendants acted under color of state law.*fn3 Davis asserts a number of theories in that respect — none successfully.

1. Retail Theft Act

First Davis seeks to rely on the Illinois Retail Theft Act (the "Act"), Ill.Rev.Stat. ch. 38, § 16A-5:

  Any merchant who has reasonable grounds to believe
  that a person has committed retail theft may detain
  such person, on or off the premises of a retail
  mercantile establishment, in a reasonable manner and
  for a reasonable length of time for all or any of the
  following purposes:

(a) to request identification;

(b) to verify such identification;

  (c) to make reasonable inquiry as to whether such
      person has in his possession unpurchased
      merchandise and, to make reasonable investigation
      of the ownership of such merchandise;
  (d) to inform a police officer of the detention of
      the person and surrender that person to the
      custody of a police officer.

Case law is clear that such a statute, standing alone, does not convert private parties' conduct under its authority into state action. All arguments that state-enacted self-help provisions automatically clothe private actors with state authority were definitively scotched in Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). State action based on such retail theft statutes, without more, has been rejected by several courts. Warren v. Cummings, 303 F. Supp. 803 (D.C.Colo. 1969); Weyandt v. Mason's Stores, Inc., 279 F. Supp. 283, 286-88 (W.D.Pa. 1968); see this Court's opinion in Jenkins v. White Castle Systems, Inc., 510 F. Supp. 981 (N.D.Ill. 1981) ...


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