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KLIMZAK v. CITY OF CHICAGO

April 26, 1982

RAYMOND KLIMZAK AND FRED J. KLIMZAK, PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Because the Complaint may not fairly be read to claim that Jewel acted "under color" of state law as required by Section 1983, the Complaint is dismissed as to Jewel. Kane stands in exactly the same posture as Jewel under the Complaint, and the Court therefore dismisses the Complaint as to Kane sua sponte. Finally, the City's motion to dismiss is likewise granted. All three dismissals are however without prejudice.

Facts*fn1

Jewel contracted with Kane to provide security services at the Jewel store at Cermak Road and Wolcott Avenue, Chicago. On February 1, 1978 Kane security guards on duty at the store detained Fred (then a minor), accused him of shoplifting and searched him. Both the detention and search were without probable cause and unjustified.

Jewel and Kane refused to allow Fred to communicate with his parents or an attorney during his detention. After Fred was allowed to leave the store (the Complaint does not allege just how that came about), Raymond and Fred returned to the store "to ask for an apology due to the public humiliation and disgrace, mental distress, and anguish suffered by the son."

Jewel's and Kane's agents refused to apologize to Fred, continuing to accuse him of theft. They detained and searched Raymond, threatened to handcuff him and struck him without justification. They refused to allow Raymond to use the public telephone to call the police, but eventually they themselves telephoned police and charged Raymond with a crime (unidentified in the Complaint).

Chicago police officers came to the store, took Raymond to a police station and searched him without probable cause. Kane's and Jewel's agents charged Raymond with criminal conduct requiring bail. Raymond was "forced to defend these malicious charges . . . all to his public disgrace, humiliation, and mental distress." Raymond was not found guilty.

Jewel and Kane and Section 1983 Liability

Neither Jewel nor Kane nor any employee of either holds any governmental or official position. To invoke Section 1983 Klimzaks must adduce facts that convert such private parties into persons acting "under color" of state law.

  This Court has recently dealt with the law in this area.
See Davis v. Carson Pirie Scott & Co., 530 F. Supp. 799, 801
(N.D.Ill. 1982). Without more, a merchant's detention of a
suspected shoplifter is not "under color" of state law just
because authorized by a statute like the Illinois Retail Theft
Act, Ill.Rev.Stat. ch. 38, § 16A-5 (the "Act").*fn2 Warren v.
Cummings, 303 F. Supp. 803

 (D.Colo. 1969); Weyandt v. Mason's Stores, 279 F. Supp. 283,
286-88 (W.D.Pa. 1968). That is only one facet of the general
rule that state-enacted self-help provisions do not
automatically clothe private actors with state authority. Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d
185 (1978).

Conversely, statutes like the Act do not provide total insulation from Section 1983 to merchants who act under them. This Court's Davis opinion (530 F. Supp. at 802) examined the case law and concluded such merchants could be held state actors for Section 1983 purposes where each of two discrete characteristics is present:

    (1) In detaining the suspect, the merchant must
  act in accordance with a preexisting plan between
  merchant and police.
    (2) That plan's content must involve the
  merchant's exercise of functions "exclusively
  ...

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