United States District Court, Northern District of Illinois, E.D
January 28, 1982
BEVERLY M. DAVIS, PLAINTIFF,
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.
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
(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) (licensing
of a store detective by statute did not make for state action).
Thus the fact that defendants' action was authorized by the Act
is not sufficient to ground a federal claim.*fn4
2. Customary Pre-Existing Plan
Several courts*fn5 have found state action under retail theft
statutes when "private security guards act in concert with
police officers or pursuant to customary procedures agreed to by
police departments. . . ." El Fundi v. Deroche, 625 F.2d 195, 196
(8th Cir. 1980). However, mere arrest after detention by store
detectives will not suffice under that theory. White v. Scrivner
Corp., 594 F.2d 140, 143-44 (5th Cir. 1979). There must be some
evidence of a pre-existing plan between police and store
For example, state action was found in Smith v. Brookshire
Brothers, Inc., 519 F.2d 93 (5th Cir. 1975), cert. denied,
424 U.S. 915, 96 S.Ct. 1115, 47 L.Ed.2d 320 (1976) because police
officers arrested a shoplifter detained by store detectives (1)
without conducting an independent investigation, (2) without the
filing of a valid complaint and (3) pursuant to a preconceived
plan. Similarly, Duriso v. K-Mart No. 4195, Division of S.S.
Kresge Co., 559 F.2d 1274 (5th Cir. 1977) reached the same result
where police arrested a shoplifter detained by store officials
even though a police search and investigation revealed no
evidence of shoplifting.*fn6
On that score Davis' memorandum opposing defendants' brief
[D]efendants' acts in detaining plaintiff and turning
her over to officers of a governmental body were done
pursuant to the customary practice between merchants
and the Evergreen Park Police in handling detained
persons accused of shoplifting.
But counsel's arguments are not pleadings, and the Complaint's
allegations do not justify that characterization:
5. That at all times relevant hereto the defendants,
and each of them, were acting under the color and
pretense of the statutes, ordinances, regulations,
customs and usages of the State of Illinois, of the
Village of Evergreen Park and the County of Cook,
13. That thereafter, the Defendant Carson's, by and
through its agents and employees, caused the
plaintiff to be arrested and taken into custody by
certain unknown police officers of Evergreen Park.
Such allegations are plainly insufficient. Paragraph 5 is
conclusory boilerplate as to private parties assertedly acting
under color of law. At least in this context a Section 1983 (or
Section 1343) complaint must state some factual predicate for
that conclusion. Similarly Paragraph 13 alleges only that
defendants "caused" the arrest. Yet every eyewitness who reports
a crime and identifies a suspect "causes" an arrest. Something
more must be alleged to come within Smith and Duriso.
Even were the Complaint amended to track counsel's memorandum,
the result would be no different. "Customary practice" does not
equate with "under color of law." It is the content of that
practice that determines whether state action is involved. Thus a
"customary practice" of police investigation following private
complaints clearly does not make the private complainant a state
actor. White, 594 F.2d at 143-44. And so allegation akin to the
memorandum statement is too vague to ground federal jurisdiction.
3. Special Police Officer
Complaint ¶ 4 alleges:
That at all times relevant herein the Defendant David
Chimino was an agent, servant and employee of the
Defendant Carson's and is also believed to be a
special police officer of the Village of Evergreen
It is of course possible that a police officer, or special police
officer, may act under color of state law while off duty. But it
is equally obvious that not every act by a police officer is
under color of state law. See such cases as United States v.
McGreevy, 652 F.2d 849
, 951 (9th Cir. 1981) (police officer who
also worked for Federal Express did not act under state law when
opening a package in the latter capacity);
Norton v. Liddel, 620 F.2d 1375
, 1379-80 (10th Cir. 1980); Davis
v. Murphy, 559 F.2d 1098
, 1101 (7th Cir. 1977).
Indeed the Supreme Court has addressed a strikingly similar
question in Williams v. United States, 341 U.S. 97, 71 S.Ct. 576,
95 L.Ed. 774 (1951). It held a "special police officer's" actions
under color of law because (1) he worked with a policeman, (2) he
went about flashing his badge (issued by the city) and (3) the
investigation was conducted under the aegis of the State.
Again there is no one-to-one correlation between special police
officer status and state action. Some adequate plus factor must
be pleaded. On the present allegations such is not the case.*fn7
Though the Act alone does not confer federal jurisdiction,
Davis has hinted at two possible bases for a claim. Defendants'
motion to dismiss is therefore granted without prejudice. If
Davis were to seek leave to replead, the Court trusts counsel
will be mindful of the responsibilities imposed by Rule 11.