Strip Search Case

[Timber Loftis]

STRIP SEARCH CASE REVIVED AGAINST STORE
Court Rules Section 1981 Applies to Private Actors

BY DAVID L. HUDSON JR.

The full 6th U.S. Circuit Court of Appeals has reinstated the civil rights suit of an African-American woman who charged she was wrongfully strip-searched at a Dillard’s department store in Cleveland. The Cincinnati-based court ruled that section 1981 civil rights claims aren’t limited to state actors.

A sales assistant suspected Lynette Chapman of shoplifting after discovering a sensor tag in the dressing room Chapman had just exited. The assistant notified a Dillard’s security officer, who was an off-duty sheriff’s deputy. The security officer and a female manager searched Chapman’s purse. The officer then instructed the manager to take Chapman into a fitting room and have her remove her coat and suit jacket and lift up her shirt. After finding nothing, the manager apologized.

Chapman sued under 42 U.S.C. § 1981, a general federal statute prohibiting racial discrimination, and the Fourth Amendment, which prohibits unreasonable searches and seizures. Chapman claimed the company violated her right to "full and equal benefit of the law," as provided by section 1981 and that the security guard acted under color of the law when he initiated the search.

A federal district court and a divided three-judge panel of the 6th Circuit dismissed both claims because there was no governmental involvement in the search. The courts reasoned that section 1981 does not protect against private impairment of its equal benefits clause. They also determined that Chapman had no Fourth Amendment claim because the off-duty sheriff’s deputy was working as a store security guard when he searched Chapman.

The full 6th Circuit reversed. Chapman v. The Higbee Company, No. 99-3970 (Feb. 11). The court ruled 6-3 that the equal benefits clause applies to private conduct and 9-0 that there were sufficient facts to warrant a jury question with regard to the Fourth Amendment claim.

A 2nd Circuit panel agreed in January that the "full and equal benefit" clause does not require state action. Phillip v. University of Rochester, No. 01-7582 (Jan. 21). That case arose from the arrest and jailing for the night of several African-American students in the lobby of a private university library.

SECTION 1981 ANALYSIS

"Section 1981 is unambiguous," Judge Boyce F. Martin wrote for the 6th Circuit majority. "Because section 1981 plainly protects against impairment of its equal benefit clause by private discrimination, and because there is no reason to look beyond section 1981’s plain language, we find that Chapman states a cognizable section 1981 claim."

Lawyers for Dillard’s argued that section 1981 only applied to private conduct with respect to the making and enforcing of contracts. They relied on dicta in a 3rd Circuit decision, Mahone v. Waddle, 564 F.2d 1018 (1977), which said, "The concept of state action is implicit in the equal benefit clause."

The dissent in Chapman's case agreed. "Only the state can prescribe laws, and only the state can deprive an individual of the benefit of those laws," wrote Judge Richard F. Suhrheinrich, adding that the majority’s ruling "has the ‘absurd’ result of federalizing state tort law."

FOURTH AMENDMENT

However, the court was unanimous in agreeing to review the Fourth Amendment claim. The court said there was a genuine issue of material fact as to whether the security guard’s actions created a close enough nexus with the state to implicate the state action. The security guard was armed and wearing his sheriff’s uniform when he ordered the strip search. Furthermore, store policy provided: "Strip searches are prohibited. If you suspect that stolen objects are hidden on [the shopper’s] person, call the police."

"Because Dillard’s policy mandates police intervention in strip-search situations, a reasonable jury could very well find that the initiation of a strip search by an armed uniformed sheriff’s deputy constituted an act that may fairly be attributed to the state," the court wrote.

"When you read the statute, the language used is pretty clear-cut," says David R. Grant, Chapman’s attorney. "It is my understanding that the particular issue raised in this case is a matter of first impression—certainly in the 6th Circuit. The court applied well-established rules of statutory construction and found that there was a section 1981 claim against Dillard’s."

Grant says the decision won’t lead to more lawsuits. "I don’t see the floodgates opening wide with this decision. This version of this statute has been in existence for a decade, and yet this is the first case that we’re aware of directly addressing this issue. There are other restrictions in the language of the statute that limit the nature of claims that could succeed under it."

An attorney for Dillard's did not respond to requests for comment.

"This decision breathes new life into section 1981," says Kevin O'Neill, a law professor at Cleveland-Marshall College of Law in Ohio. "Though it departs from the great weight of existing precedent, the opinion is completely faithful to the statutory text. If you focus on the language of this statute, and not upon all the cases that rule the other way, the 6th Circuit arrived at the only plausible construction. If the supreme court grants review, we'll get to see whether Justice Scalia can obey his own exhortations to adhere to the statute's 'plain meaning.' "

©2003 ABA Journal

And your opinion as our resident legal expert?

[Attalus]

Yeah. What are the implications beyond an overly zealous management and security guard?

[Timber Loftis]

I thought this might be relevant for those who were concerned about searches when in airports. I admit to being ass-kickingly busy the last 2 hrs. and not giving this a thorough read-through yet.

[Kakero]

for such cases, there's no need to go to the court, you can go to consumer tribunal.