Daniels v. Dillard's Inc. Reply Brief for Plaintiffs-Appellants

    No. 02-3794
United States Court of Appeals 

for the Eighth Circuit

TINIKA DANIELS, TARA HORNE,
LORETTA MCFADDEN, JANICE MINOR,
JENISA WILLIAMS, ANGELA MOORE,
RUBY NICHOLS, VERONICA NORRIS, 

and IRMA NELSON,
Plaintiffs-Appellants,

v.

DILLARD’S INC., JEVONNE JACK, DEBORAH ABRAMS,
PAT THESSING, in his individual and official capacity as a 
police officer for the North Little Rock Police Department, 

TOMMY L. OSBORN, in his individual and official capacity 
as Pulaski County Sheriffs Deputy, and KERRY D. DAULTON, 

in his individual and official capacity as Pulaski County Sheriffs Deputy,
Defendants-Appellees.

On Appeal from the United States District Court 
for the Eastern District of Arkansas (Wright, C.J.)

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
Elise C. Boddie 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212)965-2200

Austin Porter, Jr.
The Porter Law Firm 
323 Center Street, Suite 1300 
Little Rock, AR 72201 
(501)244-8200

Counsel fo r  Plaintiffs-Appellants



TABLE OF CONTENTS

Table of A uthorities..................................................................................................... iii

Introduction.......................................................................................................................1

A rgum ent...........................................................................................................................5

I. Plaintiffs and Defendants Differ Significantly in Their Accounts of the
Material Disputed Facts in this Case ......................................................5

A. Loretta McFadden ...................................................................6

B. Veronica Norris and Tmika Daniels .............................................7

C. Ruby Nichols ................................................................................12

D. Tara Home .................................................................................... 17

E. Janice Minor and Jenisa Williams ..............................................18

F. Irma Nelson ..................................................................................21

G. Angela M o o re ............................................................................... 21

II. Plaintiffs Adduced Sufficient Evidence to Create a Triable Factual Issue 
that They Were Denied Their Rights Under Sections
1981 and 1982 ........................................................................................  23

III. Plaintiffs Presented Sufficient Evidence to Withstand Summary
Judgment on Their Constitutional Claims ........................................... 31

A. The Trier of Fact May Infer from the Evidence in the Record that
Plaintiffs Were “Seized” and that Such Seizure Was 
Unreasonable, in Violation of the Fourth A m endm ent.........31

i



B. The District Court Erred in Dismissing Plaintiffs’ Equal 
Protection C la im s......................................................................... 37

IV. The District Court Erred in Concluding that the Defendant Officers
Were Entitled to Qualified Im m unity..................................................... 38

C onclusion...................................................................................................................... 40

Certificate of C om pliance............................................................................................ 41

Addendum

Certificate of Service

ii



TABLE OF AUTHORITIES

CASES

Ackerman v. Food-4-Less,
No. 98-CV-1011, 1998 U.S. Dist. LEXIS 8813 (E.D. Pa. June 9, 1998) ... 27

Adickes v. S.H. Kress & Co.,
398 U.S. 144(1970) .........................................................................................  38

Brown v. Texas,
443 U.S. 47 (1979) ...........................................................................................  33

California v. Hodari,
499 U.S. 621 (1991) .......................................'.................................................. 32

Callwood v. Dave & Buster's,
98 F. Supp. 2d 694 (D. Md. 2000) ...........................................................  23, 29

Christian v. Wal-Mart,
252 F.3d 862 (6th Cir. 2 001 ).............................................................  23, 26, 29

City o f  Memphis v. Greene,
451 U.S. 100 (1981) .........................................................................................  23

Dobson v. Central Carolina Bank & Trust Co.,
240 F. Supp. 2d 516 (M.D.N.C. 200 3 ).....................................................  23, 29

Farm Labor Org. Comm. v. Ohio State Highway Patrol,
No. 00-3653, 2002 WL 31317699 (6th Cir. 2002).................................... 37,39

Florida v. Bostick,
501 U.S. 429 (1991) ...........................................................................  12,31,33

Florida v. Royer,
460 U.S. 491 (1983) .........................................................................................  34

Flowers v. TJX Companies,
No. 91-CV-1339, 1994 WL 382515 (N.D.N.Y. July 15, 1994) 37



Hampton v. Dillard Dep't Stores,
247 F.3d 1091 (10th Cir. 2001).........................................  6, 25, 26, 27, 29-30

Henderson v. Jewel Food Stores,
No. 96C.3666, 1996 WL 617165 (N.D. 111. Oct. 23, 1996) ......................... 26

Hickerson v. Macy's Dep't Store, No. Civ. A. 98-3170,
1999 WL 144461 (E.D. La. March 16, 1999) .........................................  25, 26

t Hope v. Pelzer,
536 U.S. 730 (2002) .........................................................................................  38

Moore v. Marketplace Restaurant,
754 F.2d 1336 (7th Cir. 1985).................................................................. 33-34

Murray v. Wal-Mart,
874 F.2d 555 (8th Cir. 1989); ............................................................... 5, 27-28

Perry v. Burger King Corp.,
924 F. Supp. 548 (S.D.N.Y. 1996)..................................................................  25

Phillip v. Univ. o f  Rochester,
316 F.3d 291 (2nd Cir. 2 0 0 3 )...................................................................  27- 28

Reeves v. Sanderson Plumbing,
530 U.S. 133 (2000) .........................................................................................  35

Rivers v. Roadway Express,
511 U.S. 298 (1994) .........................................................................................  25

Rogers v. Lodge,
458 U.S. 613 (1982) .........................................................................................  28

Saucier v. Katz,
533 U.S. 194(2001) .........................................................................................  38

Skolnick v. Board, o f  Com'rs o f  Cook County,
435 F.2d 361 (7th Cir. 1970)...........................................................................  29

Terrebonne v. Blackburn,
646 F.2d 997 (5th Cir. 1981)........................................................................... 29

IV



34
Terry v. Ohio,

392 U.S. 1 (1968) ..................

United States v. Montero-Camargo,
208 F.3d 1122 (9th Cir. 2000).........................................................................  39

United States v. Watts,
7 F.3d 122 (8th Cir. 1993)..............................................................................  34

Vickroy v. City o f  Springfield,
706 F.2d 853 (8th Cir. 1983) ......................................................................  31, 33

Village o f  Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ...........................................................................  28 ,31,37

Washington v. Duty Free Shoppers,
710 F. Supp^ 1288 (N.D. Cal. 1988) ..............................................................  28

Watson v. Fraternal Order o f  Eagles,
915 F.2d 235 (6th Cir. 1990)...........................................................................  26

Youngblood v. Hy-vee Food Stores,
266 F.3d 851 (8th Cir. 200 1 )...........................................................................  27

STATUTES

42 U.S.C. § 1981 ..................................................................................................passim
42 U.S.C. § 1982 ................................................................................................... passim
Ark. Code Ann. § 5-37-208(b)(l) ............................................................................... 12

RULES

Fed. R. App. P. 10(a) ................................................................................................... 14
8th Cir. R. 30A(b) .........................................................................................................  14

MISCELLANEOUS

Patricia J. Williams, The Alchemy of
Race and Rights (1 9 9 1 )........................................................................................ 15



discriminatory conduct.

The evidence also shows that Defendants Osborn, Thessing, and Daulton 

infringed Plaintiffs’ Fourth Amendment rights by conducting “investigatory stops” 

without articulable suspicion, and/or by carrying out such stops in an unreasonable 

and unnecessarily intrusive manner. All three Defendant officers flagrantly violated 

store policy by approaching and/or questioning Plaintiffs without first having 

observed them actually remove and/or conceal any merchandise1 and before 

permitting them to exit the premises.2 This further demonstrates that the Defendants’ 

reasons for stopping Plaintiffs were a pretext to harass and, ultimately, to discriminate 

against them on the basis of race.

As we show below, the district court erred by failing to consider the evidence 

in the light most favorable to Plaintiffs and by incorrectly crediting Defendants’ 

version of events.

This evidence includes an incident log kept by Defendant Tom Osborn, an off- 

duty police officer, indicating that an extraordinary percentage of persons arrested

' Even if Defendants relied on tips from store employees as the basis for their 
suspicion of Plaintiffs, Dillard’s store policy specifically prohibits security personnel 
from approaching customers without direct evidence of their wrongdoing. (J. A. 514- 
15).

2 Tara Home is the only Plaintiff who was allowed to leave the store before she 
was accosted.

2



and/or detained at Dillard’s are African American (85.1 %, compared to merely 14.3% 

for whites). (J.A. 798, 828). Osborn’s incident log reveals that of 68 people who 

were either arrested for criminal trespassing or were banned from the store, 57 were 

black and only 10 were white.3 (J.A. 538-551). Dillard’s for a time maintained a so- 

called “wall of shame” consisting of pictures of customers —  mostly black— who 

had been arrested at Dillard’s. (J.A. 839). Osborn and other employees also kept a 

photo album, arranged by race, of pictures of customers, mostly black (J.A. 464-66, 

839) who had been detained, banned from the store, or arrested (J.A. 465). The 

evidence demonstrates that Dillard’s employees take extreme measures against black 

customers, first by racially profiling them as “suspicious” and then banning them 

from the store without cause.4

Other African-American customers testified concerning the pervasiveness of

3It is possible that the numbers of black customers who were banned from the 
store are even higher than those reflected in the incident log. For example, although 
Moore refused to sign a ban sheet, she is still considered to be banned from the store, 
even though this is not reflected on the incident log. (J.A. 542).

4 For example, Plaintiff Tinika Daniels was forced to sign a ban sheet, on the 
threat of having additional charges filed against her. Plaintiff Angela Moore was 
asked to sign even though the store employees (who had accused her of shoplifting) 
did not want to pursue any charges against her. Norris was also banned from the store 
despite having done nothing wrong. When she tried to return inside so she could get 
her refund, she was told by Defendant Daulton that she would be charged with 
criminal trespassing if she tried to re-enter. (J.A. 275, 277, 430-31).

3



Dillard’s racially discriminatory practices. They provided firsthand testimony of the 

store’s racially disparate treatment of blacks and whites and related their own 

experiences of being falsely accused by Dillard’s of shoplifting and of then being 

forced to sign a ban sheet permanently barring them from Dillard’s stores. (J.A. 847- 

50, 852-57, 859-62). Osborn himself testified that prior to this lawsuit he had heard 

complaints of African-American customers, other than Plaintiffs, being harassed by 

Dillard’s employees. (J.A. 457). One of the Plaintiffs, Tinika Daniels, recounted 

incidents of her black friends who had complained of racial profiling at Dillard’s 

(J.A. 337-39) and of her own experiences, prior to this lawsuit, of feeling that she was 

being watched by white Dillard’s employees more closely than other white customers 

(J.A. 340).5 Another Plaintiff, Janice Minor, testified that a Dillard’s associate 

informed her that Dillard’s employees “stop black people for shoplifting when they 

really aren’t shoplifting” “all the time.” (J.A. 111).

Defendants do not dispute Plaintiffs’ testimonial evidence concerning 

complaints by other African Americans of racially discriminatory treatment by 

Dillard’s nor do they contest the district court’s determination that Dillard’s is a state

5 Ironically, she also testified that these experiences caused her to approach 
shopping more cautiously because she did not want any Dillard’s employees to accuse 
her of shoplifting. (J.A. 340).

4



actor for purposes of Plaintiffs’ constitutional claims.6

ARGUMENT

I. Plaintiffs and Defendants Differ Significantly in Their Accounts of the 
Material Disputed Facts in this Case

The extent of Defendants’ detailed factual recitations alone make clear why this 

case should not have been resolved on summary judgment. Plaintiffs’ claims turn on 

material and genuinely disputed facts, including: the sequence of events, where 

Plaintiffs were situated in the store at the time they were accosted by the Defendant 

security officers, the layout of the store, and the timing of the contact and the manner 

in which the officers approached and ultimately “seized” the Plaintiffs. A fair reading 

of the record shows that in their briefs Defendants have not presented “undisputed” 

facts, but rather their sanitized and decontextualized “spin” on the incidents that gave 

rise to each of Plaintiffs’ claims. Defendants selectively parse these events — and, 

in certain instances, stretch the record — to fit their own rendition of what happened.

6 The record in any event is clear that Dillard ’ s relied on off-duty police officers 
as store security personnel; that Dillard’s employees told the officers about 
“suspicious” persons whom the officers then accosted; that the officers were in 
uniform and at all relevant times were acting pursuant to their authority with the 
Pulaski County Sheriffs office or the North Little Rock Police Department; and that 
they depended on the resources of their respective offices to conduct their duties. See 
Murray v. Wal-Mart, 874 F.2d 555 (8th Cir. 1989); (See, e.g., J.A. 44, 49-50, 60, 61- 
62, 417, 439, 447, 468, 477-79, 481-82, 491-92, 510, 590, 632, 715, 718, 833, 835, 
883).

5



This demonstrates why this case cannot be appropriately decided on summary 

judgment and why the district court erred. The judgments that court made involve 

determinations of witness credibility that cannot be made on a paper record. See 

Hampton v. Dillard Dep ’t Stores, 247 F.3d 1091, 1103 (10th Cir. 2001) (credibility 

determinations are province of the jury).

A. Loretta McFadden

Defendants’ rendition of the incident involving Loretta McFadden ignores key 

evidence that not only shows that McFadden was denied outright the opportunity to 

purchase her selected items, but also creates a triable factual issue as to whether her 

treatment was racially motivated. Defendants make no reference to McFadden’s 

testimony that both of the cashiers were white (J.A. 736), and that one was openly 

hostile to her (J.A. 737-39) and refused to sell her ribbons at the same discount that 

had been given to other white customers (J.A. 739); that of all the customers in the 

45 minute line at the cash register, she was the only African American (J.A. 731 -32), 

and the only one to be suddenly “kicked out” by the computer and denied the right 

to purchase items; that the hostile cashier and another unidentified store employee, 

after seeing that McFadden was black, refused to honor a check from her7 and that she

7 It is not even entirely clear that McFadden had offered to pay by check. (J.A. 
741-42). Defendants themselves acknowledge that the account of what happened is 
“somewhat confusing.” See Dillard’s Brief, at 15.

6



was told by the other cashier for no apparent reason, other than race, that “under no 

circumstances will Dillard’s take your check.”8 (J.A. 742). Finally, when McFadden 

inquired whether a mistake had been made and asked again to have her items rung up, 

the cashier refused and told her to leave the store. (J.A. 741, 743).

B. Veronica Norris and Tinika Daniels

Defendants assert that Osbom behaved reasonably and that Norris and Daniels 

were at all times “free” to walk away and to disregard his requests and that they in 

fact did so. Contradicting Daulton’s near contemporaneous recollection of the 

incident, (J.A. 430-31) Defendants also claim that Daulton never denied Norris re­

entry to the store and further argue that her attempts to secure a cash refund for her 

sweater and to return her jeans were “merely delayed.”

In fact, the record demonstrates that Osbom‘s behavior was unreasonable and 

unnecessarily intrusive: He stopped the women even after he had determined that 

Norris had a receipt for her jeans and sweater9 and even after running a background

8 There is nothing in the record to suggest that there was anything wrong with 
McFadden’s check.

9 This was after he approached the sales clerk (who had begun processing the 
return of Norris’s sweater) to find out “where those two black girls went to.” (J.A. 
476).

7



check on her that turned up nothing.10 (J.A. 477-79). He repeatedly claimed in his 

deposition that he had stopped the women because he suspected them of stealing a 

Tommy Hilfiger shirt (J.A. 473-74, 477-78, 480, 485) yet he declined their repeated 

offers to be searched (J.A. 262-64,267,282, 356,360-61,374,392-93,395,484) and 

offered vague and shifting explanations in his deposition for his refusal to let them 

leave (J.A. 484-87).11 His refusal again and again to determine once and for all

10 Plaintiffs do not concede that Osborn had any legitimate basis for conducting 
the background check but rather use it to illustrate the unreasonableness of his 
conduct.

11 The following exchange shows that Osborn could not concretely identify why 
he insisted on stopping Daniels and Norris:

Q: Well, prior to attempting to get Ms. Norris’ [sic] name, did you have any
reasonable suspicion to believe that she had committed a felony?

A. I had -  I had reasonable suspicion that there might have been a crime 
committed, or about to be committed, yeah, I felt like I did.

Q. Involving the theft of a shirt?
A. The theft of a shirt, or the theft of whatever - 1 don’t know -  the theft of 

something.
Q. Would that be a misdemeanor or would that be a felony?
A. It doesn’t matter. If you’re committing a crime, my understanding i s -  

and this is the way I’ve been trained — if you’re committing a crime or 
about to commit a crime, and you do a report, you have the right to -  to 
-  to get involved; not well, just this is a misdemeanor, I can’t get 
involved in this, you know. If it’s a misdemeanor or a felony, you’ve 
got the right to get involved, and do a reasonable investigation into the 
matter.

J.A. 486-87.

8



whether they were shoplifting — and his flagrant and repeated violation of store 

policy by continuing to confront the women, absent any evidence of their 

wrongdoing12 —  indicates not only that he behaved unreasonably, but that his stated 

reasons for stopping them were pretextual.13 He claims that he needed Daniels’ name 

so that he could write a “suspicious person report” — after she had the temerity to 

challenge his authority as a white police officer by taking down his name.14 His

12 See Dillard’s policy, at J.A. 514-15 (instructing in relevant part that security 
“should only approach a customer after [the security guard] believe[s] that 
merchandise has actually been removed or concealed”; if security personnel “are only 
suspicious o f  a customer’s motives/behavior" but have not observed the customer 
actually removing and/or concealing any merchandise and exiting the store, the 
customer “should not” be approached. Once it has been determined that no crime was 
committed, security is required to “terminate the contact with the customer and 
apologize for the inconvenience.”) (emphasis added).

13 Osborn’s account of the timing of the incident also differed significantly from 
Daniels and Norris. They testified that Osborn stopped them before they could get 
to ladies Hilfiger (J.A. 261-62)“less than 30 seconds” after they left the sales clerk, 
(J.A. 355). However, Osborn testified that he did not approach the women until after 
they had reached the Hilfiger department; that when he arrived at the department, 
“they weren’t returning anything” but were “split up, [in] different areas” “mingling” 
and that he observed them for “four or five minutes” to see if they were going to 
return the alleged Hilfiger shirt before he approached them. (J.A. 474, 477-78, 480- 
81, 485-86). The timing is significant because it helps to establish whether Osborn 
had a reasonable basis for suspecting the women of shoplifting at the time he accosted 
them.

14 Defendants insinuate that Daniels had “something to hide” because she 
would not give Osborn her name (Osborn Brief, at 19) and that Osborn was, 
therefore, justified in preventing her from leaving until she complied with his request. 
Putting aside that Daniels could just as easily have been incensed at being treated like

9



conduct after her arrest, in which he abusively interrogated her about where she had 

put the business card with his name on it (J.A. 364-65) further shows that his reasons 

for stopping the women were pretextual.15

Defendants assert that the “undisputed” facts establish that Daniels and Norris 

were free at all times to walk away and that they in fact did walk away and did 

disregard Osborn’s requests. Yet Plaintiffs’ testimony flatly contradicts this 

assertion. Both women testified that Osborn repeatedly blocked their path —  that 

whatever way they moved, he would move to prevent them from leaving (J.A. 266, 

357) — that he became increasingly loud and hostile (J.A. 393, 395); that he told 

them again and again that they “weren’t going anywhere” (J.A. 356,394-95); and that 

at one point he grabbed Norris’s arm to restrain her (J.A. 270, 356-58) and called for 

Officer Daulton to back him up (J.A. 359). Defendants emphasize that Norris 

“walked away” to a pay phone during this encounter, but Norris testified that the pay 

phone was back in a comer “further into the store,” “in the opposite direction from 

the door” and not far from where they were standing. (J.A. 265,269, 358, 359, 394). 

She testified that Osbom had no problem with letting her use the phone because it

a criminal for no apparent reason, see infra at n. 24, this just illustrates once again 
how difficult it is to glean motivation and witness credibility from a paper record.

15 Certainly, there was no reason to stop Norris because he wanted Daniels’s
name.

10



was no closer to where she and Daniels wanted to go and that he followed right 

behind her to make certain they could not leave the area. (J.A. 358, 359, 396, 398).

In any event, Norris was forced to call her sister because she needed someone 

to take her place picking up her grandmother from the airport because, as she told her 

sister, she was not being allowed to leave. (J.A. 397, 267-79). She was forced to call 

an attorney for the same reason — because she did not feel free to leave and wanted 

to know her rights. (J.A. 357-58). After making these calls, she and Daniels 

attempted to go so that Norris could finish returning her items, but they were blocked 

yet again by Osborn. (J.A. 270-71, 356-59). The women were then forced to leave 

the store in the dark and in the rain (J.A. 359-60) on the threat of arrest (J.A. 271-72, 

359, 399).

As if the sheer humiliation and embarrassment up to this point were not 

enough, Osborn then arrested Daniels for “criminal impersonation” after she gave 

Osborn a different name in a fit of exasperation. Defendants dance around their 

contradictory explanations that Daniels was “free” to disregard Osborn’s insistent 

demands for her name,16 but that Osborn had “probable cause” to arrest her for

16 Osborn stated in a report he filed with the Pulaski County Sheriffs office just 
over a week after the incident that he had threatened to arrest Daniels if  she did not 
identify herself. See Osborn’s testimony: J.A. 486 (“Well, it’s — if the law 
enforcement officer asks for your name, my understanding — that’s the way I’ve been 
trained —  is that you have got to provide that name. So at that point, you can arrest

11



criminal impersonation for providing a different name. Defendants nowhere allege, 

nor could they, that Osborn thought that Daniels had actually “impersonated” 

anyone.17 They attempt to navigate this inconsistency by arguing that Osbom merely 

arrested her for the wrong “crime.” However, the fact that Osbom arrested her on a 

specious and unsupportable charge, at a minimum, creates a triable factual issue 

whether his actions were pretextual. Even Daulton tried to put some distance 

between himself and Osbom, by telling Osbom “Whatever you want to do, I have 

nothing to do with it” (J.A. 361) another fact that Defendants omit.

C. Ruby Nichols

Defendants concede that Defendant Thessing conducted an investigatory stop 

of Nichols18 (Dillard’s Brief, at 34) but assert that Thessing had reasonable suspicion

them.); J.A. 536 (“I explained to Daniels that by her refusing to provide me with her 
identification that she could be arrested.”). It is well established that refusal to 
cooperate with an officer is not a sufficient basis for a seizure. See Florida v. Bostick, 
501 U.S. 429, 437 (1991) (“We have consistently held that a refusal to cooperate, 
without more, does not furnish the minimal level of objective justification needed for 
a detention or seizure.”).

17 The current governing Arkansas statute states in relevant part that a person 
commits criminal impersonation if he “does an act in his pretended or assumed 
capacity or character with the purpose to injure or defraud another person and he 
assumes a false identity.” Ark. Code Ann. § 5-37-208(b)(l)(A) (2002) (attached 
hereto in Addendum).

18 Indeed it would be difficult to argue that Thessing’s conduct did not amount 
to a “seizure” under the Fourth Amendment. Nichols testified that Thessing

12



based on a tip he had received from a store employee that Nichols had tried to 

shoplift a pair of blue jeans by pulling her sweat pants over the jeans in the store 

dressing room (J.A. 879). Thessing further claims that “[ojnce it was determined that 

Nichols did not have a pair of jeans under her sweat pants and that she had no 

outstanding warrants of any kind, [he] simply turned around and walked off.” 

(Thessing Brief, at 13). He also claims that his conduct was reasonable at all times 

and that, in any event, he is entitled to qualified immunity. Finally, Defendants assert 

that Nichols was not prevented from making any purchases.

Thessing’s barebones recitation of the facts diverges significantly and, 

critically, from Nichols’s testimony. Thessing himself testified that he was aware 

that Nichols was not wearing any jeans under her sweat pants —  as the store 

employee had reportedly alleged19 — well before he stopped her and well before she 

was searched. (J.A. 881). In fact, Thessing stated that it had been “obvious” to him 

at the outset “that she didn’t have blue jeans under her sweat pants.” (Id.).

Nichols admits that she decided to approach Thessing after she realized that

approached her and informed her that she was suspected of shoplifting; that he 
threatened her with arrest for disorderly conduct, and that he seized her identification. 
Thessing further searched Nichols by forcing her to pull up her pants for his 
inspection.

19 Defendant argues that this “tip” formed the basis for his suspicion of 
Nichols. (J.A. 879).

13



he was a police officer and that he was following her (J.A. 607-08) but nothing in the 

record indicates that she consented to being stopped or searched. After she 

approached him to ask why he was following her, Thessing immediately and 

repeatedly demanded that she “get over there,” to an area closer to the store’s exit. 

(J.A. 608). Because she thought Thessing was acting “strangely” and because she 

was afraid for her safety, she refused and requested the presence of a female officer,20 

which request Thessing denied. (J.A. 608, 610; D57/58,21 at 15-17). Thessing 

admitted that he invoked Rodney King’s name when she refused his initial demands 

that she “get over” to where he was standing.22 (J.A. 591). Nichols ultimately yielded 

to Thessing when he repeatedly threatened to arrest her for not cooperating.23 (J.A.

20 In fact, because she was afraid, Nichols attempted to involve another 
customer who would act as a witness to what was about to happen, but the customer 
refused to get involved. (J.A. 609).

21“D57/58" refers to the docket entry numbers for Plaintiffs’ response and brief 
filed in opposition to Defendants’ summary judgment motions in the district court. 
(J.A. 1-13). Pursuant to Fed. R. App. P. 10(a), the brief is included in the record on 
appeal and may be relied upon by this Court in rendering its judgment. See also 
Eighth Cir. R. Rule 30A(b).

22 Thessing testified that the Rodney King incident was in the news at the time. 
(J.A. 591). King was the motorist who was severely beaten by Los Angeles police 
officers after a traffic stop.

23 In his deposition, Thessing admitted that “failure to cooperate” is not legal 
grounds for an arrest (J.A. 597) but denied that he had threatened Nichols with this 
charge (J.A. 597).

14



616; D57/58, at 16-17).

Thessing told Nichols that she was suspected of stealing and threatened again 

to arrest her for “disorderly conduct” when Nichols called the store employee who 

had originally followed her into the dressing room a bad name. (J.A. 610). Nichols 

testified that she was not hostile or belligerent to Thessing,24 again because she feared 

for her safety. (J.A. 610).

Shortly thereafter, a store manager, Andrea Liles, appeared and asked Nichols 

where the missing “Levi’s” jeans were. (J.A. 610-11). Nichols at once took her back 

to the display where she had earlier placed the jeans, on top and unfolded in such a 

way that they “stuck out like a sore thumb” and should have been immediately 

apparent to anyone who was looking for them. (J.A. 611). After the jeans were

24 Even if Thessing’s testimony that Nichols’s behavior was “increasingly 
belligerent”(Thessing Brief, at 35) could be believed, an equally reasonable 
interpretation is that she was offended at being harassed and being told that she was 
suspected of shoplifting. See Patricia J. Williams, The Alchemy of Race and 
Rights 44-45 (1991) (Williams, a black Columbia Law School professor, describes 
her experience of being barred from a Benetton’s store in a chic area of New York 
City: “I am still struck by the structure of power that drove me into such a blizzard 
of rage. There was almost nothing I could do, short of physically intruding upon [the
shopkeeper], that would humiliate him the way he humiliated me__ He saw me only
as one who would take his money and therefore could not conceive that I was there 
to give him money.”). Defendants’ explanations of Plaintiffs’ responses to being 
accused of shoplifting present a “damned if you do, damned if you don’t” scenario: 
If Plaintiffs do not protest, then Defendants deem them to have “consented”; if they 
do protest they are “hostile” or “belligerent” and worthy of suspicion.

15



located, Liles became “nasty” toward Nichols. (J.A. 611).

Nichols then asked for everyone’s name, including Defendant Thessing (J.A. 

611) so she could report the incident. Thessing responded in a rude manner and when 

Nichols asked for his badge number, he replied “Well, equal play is fair, let’s see who 

you are.” (J.A. 612). He seized her driver’s license and called in her number25 to see 

whether he could find “anything” on her, which he failed to do.26 (J.A. 612). At this 

point, Thessing said “Well, if you don’t have anything to hide, you shouldn’t mind 

being searched. Why don’t you pull up your pants leg, pull up your pants legs if you 

don’t have anything to hide?” (J.A. 612). Nichols testified that he continued 

“taunting” her “nonstop” until she pulled up her pants leg (J.A. 612) and that not 

until she also raised her shirt to her midriff did he decide to let her go (J.A. 616; D. 

57/58, at 17). After she had raised her shirt, Osborn told her that “if [she] had done 

this thirty minutes ago, then [he] wouldn’t have had to detain [her]” (D57/58, at 17) 

(emphasis added). Significantly, Thessing conducted this search after already having 

observed that she was not concealing anything under her sweat pants and after the

25 Presumably, he called the North Little Rock Police Department.

26 Plaintiffs do not concede that Thessing had any basis for even conducting 
such a background check. If anything, the manner in which Thessing decided to 
conduct the check shows that it was pretextual and carried out for purposes of racial 
harassment.

16



store manager had already located the “missing” jeans. Nichols also testified that she 

intended to purchase Levi’s jeans, which she was kept from doing by Defendants’ 

harassment. (J.A. 606-07).

D. Tara Home

Defendants assert that Home and her companions “voluntarily” and “without 

protesting” accompanied the North Little Rock police officer and two mall security 

guards back into Dillard’s after Home’s car was blocked from leaving the parking 

lot based on a store employee’s “tip” that one of them had been stealing. (Dillard’s 

Brief, at 33).

Once again, Defendants ignore important evidence in the interest of spinning 

the incident involving Home in their favor. Home testified that her car was 

“barricaded” by one North Little Rock police vehicle and two security trucks that 

pulled up behind her to prevent her from leaving her parking space. (J.A. 707-08). 

Three security personnel, including one North Little Rock police officer, got out of 

the vehicles and approached Home’s car (J.A. 709-10) to inform Home and her 

companions that they were suspected of stealing and to instruct them to return to the 

mall with “their bags” (J.A. 710, 713-14). There was only one bag in the car (J.A. 

711) which was a Dillard’s shopping bag that belonged to Home and contained a 

shirt that she had just purchased along with her receipt (J.A. 707, 720). None of her

17



other companions had any bags. (J. A. 711). The officers inspected the car to confirm 

that there were no other bags. (J.A. 711).

Rather than simply checking the one bag to determine whether there was a 

receipt, the officers took Home and her companions back to Dillard’s and forced 

them to appear in a public “lineup” in front of other customers (who were all white) 

so that they could be identified by the store employee who had accused them of 

shoplifting. (J.A. 715-18, 724). The store employee, Jevonne Jack, singled out 

Home as the one she suspected. (J.A. 718). Not until after this public spectacle had 

concluded did the police officer check Home’s bag for the receipt, which he then 

found. (J.A. 720-21). Not until after the police officer determined that Home had 

a receipt, did he request that they move to the back of the store, out of public view. 

(J.A. 721 -22). Home refused to move to the back of the store and was so upset that 

she requested a phone to call her mother. (J.A. 724). However, she never raised her 

voice. (J.A. 722). After she got off the phone, the police officer told her that she was 

“free to leave the mall now.” (J.A. 724).

E. Janice Minor and Jenisa Williams

Defendants assert that Minor and Williams were not seized because they should

18



have felt “free to disregard” Daulton and “to go about their business”27 (Dillard’s 

Brief, at 29) and that they “consented” to being stopped and searched. Defendants 

also claim that Minor and Williams had concluded their shopping and were preparing 

to leave when they were detained.

Plaintiffs’ testimony, however, shows that Plaintiffs did not feel free to leave 

because they were intimidated by the officers’ earlier display of authority.28 Their 

testimony also creates triable issues about whether they had concluded their shopping 

at the time they were stopped and whether they were later denied service when they 

were told by Daulton to “get out” of customer service. Prior to being approached, 

Plaintiffs had observed the officers as they hunted, apparently with some urgency, for 

a suspect.

27 Daulton plainly violated store policy by approaching plaintiffs, escorting 
them outside, and searching their bags without first having observed them actually 
remove and/or conceal merchandise and attempt to leave the store. See infra at n. 12; 
J.A. 514-15. Although Daulton testified that he did not recall the incident involving 
Minor and Williams (J.A. 423-24) he claimed that he would never approach anyone 
and ask to search them if they were merely acting suspiciously. (J.A. 425). Rather, 
he would just continue to observe them. (J.A. 425, 514-16). No one disputes that the 
incident occurred; therefore, the behavior of Daulton described by Plaintiffs was a 
departure from Daulton’s code of conduct, in addition to a breach of store policy.

28 Williams described the three uniformed police officers she saw, including 
Daulton (J.A. 173) as “loud and running and in chaos” (J.A. 166, 171). Minor 
testified that an officer went “flying” by her (J.A. 120) searching for someone 
wearing red (J.A. 109, 121) right after Williams had started to look for shoes (J.A. 
121).

19



The evidence raises triable, materially important questions concerning whether 

the women, or a reasonable person standing in their shoes, would have felt free to 

leave. Minor testified that two of the officers escorted Williams29 -  one on either side 

of h e r -  back to where Minor stood.30 (J.A. 122-23). Daulton gestured to Minor for 

her to come outside with him, by crooking his finger at her. (J.A. 123). Although 

Minor agreed to come outside, she did so thinking that she was going to be asked 

about whether she had seen “the person in red”3‘(J.A. 109) and did not realize that she 

and her daughter were “the suspects” until after she had stepped outside and Daulton 

had requested to search her bags. (J.A. 109). Once she realized what was happening, 

Minor testified that she went into a state of “shock” (J.A. 128) that she was “really 

upset and shaking” (J.A. 109, 130); and that she kept shaking even after she and her 

daughter had gone to customer service to report what happened (J.A. 130). If 

anything, Minor was plainly too stunned to have voluntarily consented to Daulton’s 

search. When Daulton was finished checking her bag, he abruptly “dismissed” them 

and told them “you can go now.” (J.A. 127). Later when he saw them in customer

29 Williams had been shopping for shoes on her own.

30 There is some confusion about whether the Plaintiffs were together at the 
time, but at some point the officers returned to Minor.

31 Minor was wearing purple. (J.A. 109).

20



service, Daulton’s shouted at them “Are you still in the store, they found the missing 

items, I told you to get out” (J.A. 134).

F. Irma Nelson

Irma Nelson testified that she was approached from behind by Defendant 

Officer Thessing and a store employee (J.A. 624, 632) and instructed to take off her 

coat (J.A. 625 ). Upon confronting her, Thessing informed Nelson that she was 

suspected of stealing cologne testers. (J.A. 594-95). Nelson felt that she had “no 

choice” but to comply (J.A. 627, 634, 637) —  so much so that she felt like she was 

“at gunpoint” (J.A. 634). When she became upset because she was suspected of 

stealing, Defendant Thessing threatened to arrest her by telling her that he could “put 

[her] in jail” (J.A. 629, 636, 639).

G. Angela Moore

Upon entering Dillard’s Angela Moore advised a sales associate, Deborah 

Abrams, that she wanted to exchange a purse that she had purchased two weeks 

earlier. (J.A. 757, 1110). Abrams told her she would need identification to make the 

exchange, but to go ahead and pick out the purse she wanted. (J.A. 757). Moore told 

her that her identification was in the car and that she did not have a receipt for the 

purse. (J.A. 757, 1112). While Moore was looking for another purse, she noticed 

that Abrams was speaking with another sales associate. (J.A. 757). Shortly

21



thereafter, a security officer, Deputy Garza, arrived and began to watch Moore. (J.A. 

757). Moore approached him to find out if there was a problem. (J.A. 757). He told 

her that there was and requested that she accompany him to the back of the store. 

(J.A. 757). Moore asked if she could retrieve her identification, but he would not 

allow her to leave. (J.A. 757). Garza later informed her that the store was dropping 

all charges because the store employees (who had accused her of shoplifting) did not 

want to fill out an affidavit or testify in court that she was stealing. (J.A. 757). 

Pursuant to the store manager’s instructions, Garza confiscated the purse Moore had 

brought to exchange (A. 757) and requested Moore to sign a ban sheet. (J.A. 758). 

Moore refused on the grounds that she had done nothing wrong. (J.A. 758). The 

store never returned her purse. (J.A. 1117).

Given these glaring contradictions in testimony and in the inferences the parties 

draw from the evidence, summary judgment should not have been granted by the 

district court.

22



II. Plaintiffs Adduced Sufficient Evidence to Create a Triable Factual Issue that 
They Were Denied Their Rights under Sections 198 1 32 and 198233

Defendants assert that the district court correctly determined that service to

McFadden, Norris, and Moore was merely “delayed,” rather than denied. The district

court misread the facts and misapplied the law. There is abundant evidence in the

record from which to infer that McFadden, Norris, and Moore intended to purchase,

return, or exchange specific items and that they were prevented from doing so by

store personnel on the basis of race. McFadden was in line to purchase Christmas

32 As discussed in their Opening Brief, Plaintiffs urge the Court to adopt as the 
standard for aprima facie  case in retail discrimination cases that set forth by the Sixth 
Circuit in Christian v. Wal-Mart, 252 F.3d 862, 871-73 (6th Cir. 2001) and to reject 
the three-part test articulated by the district court below. As the Sixth Circuit stated 
in Christian, the three-part test collapses the plaintiffs ultimate burden of proving 
intentional discrimination into the prima facie  case, departing from the traditional 
burden-shifting framework employed in § 1981 employment cases. See id. at 870 
(“[W]e find it curious that so few courts have paused to remark upon the incongruity 
of dispensing with a prima facie test, or requiring a plaintiff to prove intentional 
discrimination as an element of a prima facie case in the commercial establishment 
context. . . .”); see also Callwood v. Dave & Buster’s, 98 F. Supp. 2d 694, 705 (D. 
Md. 2000).

33 The Supreme Court has instructed that “to effectuate the remedial purposes 
of the statute,” § 1982 is to be “broadly construed . . .  to protect not merely the 
enforceability of property interests acquired by black citizens but also their right to 
acquire and use property on an equal basis with white citizens.” See City o f  Memphis 
v. Greene, 451 U.S. 100, 120 (1981). Therefore, Plaintiffs’ claims are not limited to 
the “purchase” of property and are also actionable under § 1982. See Dobson v. 
Central Carolina Bank & Trust Co., 240 F. Supp. 2d 516, 524 n.5 (M.D.N.C. 2003) 
(finding that “making a bank deposit and a payment to a credit line can be construed 
as holding and/or conveying personal property”).

23



ornaments when the register suddenly and inexplicably “kicked her out.” The 

cashiers refused to re-ring her items, stated that they would not under any 

circumstances accept her check, and asked her to leave the store after they had 

already waited on a string of white customers. McFadden, who was also the only 

African-American in line, testified that one of the cashiers refused to offer her the 

same discount on an item that she had offered to another white customer.

The record shows that Norris specifically intended to secure a cash refund for 

her sweater and to return her jeans and that she was kicked out of the store before she 

could finish either transaction. Defendants claim that “[i]t is undisputed that Norris 

was not banned from the store” (Osbom Brief, at 37) but this flatly contradicts 

Daulton’s near-contemporaneous recollection of the incident. The report he filed 

with the Pulaski County Sheriffs Office unequivocally states that she was 

permanently banned from the store:

After [Daniels] was arrested I advised her friend Ms. Veronica Norris that the 
manager wanted her permanently banned from the store because the manager 
did not want the type of behavior that Ms. Norris was displaying in the store.34 
Ms. Norris insisted on wanting to go back in the store to get her refund on 
some item and I advised her she could not because the manager wanted her to 
leave and not return. After a few more minutes Ms. Norris left.

34 Norris testified that the conversation with Osbom “wasn’t a normal tone, but 
it wasn’t . . .  a shouting match,” either and that passers-by would have realized that 
there was a problem, but only if they were “close.” (J. A. 271 -72). Plaintiffs deny that 
this “behavior” justified the decision to ban them from the store.

24



(J.A. 430-31). The claim that “Osborn and Daulton did nothing that would have 

prevented Norris from returning to Dillard’s and completing her return when the store 

opened the next morning” is equally inconsistent with the record and also contrary 

to prevailing authority. It would be absurd to require a plaintiff who has been 

categorically refused service and kicked out of the store, on threat of a criminal 

trespass charge, to attempt to return to the store the next day to complete her 

transaction before she can sustain a § 1981 claim.35 The same is true of Moore, who 

was also prevented from exchanging her purse when she was seized and her purse 

was confiscated by security.36 Like McFadden and Norris, Moore also was instructed 

to leave the store.

35 This plainly would violate the expansive interpretation that courts have given 
§ 1981. See, e.g., Rivers v. Roadway Express, 511 U.S. 298, 302 (1994) (§ 1981 
intended to bar racial discrimination in “all phases and incidents of the contractual 
relationship.”)

36 The district court assumed that Norris had a contract interest with Dillard’s 
in making a return. (District Court opinion, Addendum to Plaintiffs’ Opening Brief, 
at 25). This Court can determine as a matter of law that the return or exchange of an 
item falls within the ambit of contractual rights identified under § 1981. See, e.g., 
Hickerson v. M acy’s D ep’t Store, No. Civ. A. 98-3170,1999 WL 144461, at *2 (E.D. 
La. March 16, 1999) (returning an item is modification of contract under § 1981). 
Alternatively, the Court could find that it is a mixed question of law and fact. See, 
e.g., Hampton, 247 F.3d at 1103-05 (whether coupon was part of purchase contract 
is mixed question of law and fact); Perry> v. Burger King Corp., 924 F. Supp. 548, 
552 (S.D.N.Y. 1996) (whether use of restroom is part of contract to purchase food is 
fact question).

25



The cases cited by the district court are inapposite because they all concern 

claims brought by plaintiffs who (1) could not allege that they were denied 

admittance or service, (2) failed to allege intent to make a specific purchase or 

transaction with the store, or (3) had already completed their transactions when they 

were seized by security. See Addendum to Appellants’ Opening Brief, at 23-25 

(citing cases). Plaintiffs’ claims are more analogous to § 1981 cases in which 

customers are asked to leave a store before they can complete their transaction. See 

Christian, 252 F.3d 862; Watson v. Fraternal Order o f  Eagles, 915 F.2d 235,244 (6th 

Cir. 1990) (finding § 1981 violation where black guests asked to leave in order to 

prevent them from purchasing soft drinks at racially exclusive club); Henderson v. 

Jewel Food Stores, No. 96 C. 3666, 1996 WL 617165, at *4 (N.D. 111. Oct. 23, 1996) 

(allegation that store employee stopped plaintiff “midstream” from buying goods 

states claim under 1981); c f  Hickerson, 1999 WL 144461, at *2 (recognizing that 

1981 claim might have merit if plaintiff had been denied service or asked to leave).

With respect to Williams and Minor, a genuine factual dispute exists 

concerning whether they had concluded their shopping at the time of the stop and 

whether they were later denied service when they were instructed by Daulton to “get 

out” after they saw him in customer service. The same is true for Nichols whose 

shopping for Levi’s jeans was disrupted by Thessing’s “investigation.” See Hampton,

26



247 F.3d at 1105-08 (whether contract was interfered with is jury question). Their 

claims, therefore, are distinguishable from Youngblood in which this Court 

determined that plaintiff had concluded his shopping and that the convenience store 

no longer owed him any contractual duty.37 Youngblood v. Hy-vee Food Stores, 266 

F.3d 851 (8th Cir. 2001).

Even if the Plaintiffs have not identified the loss of a particular contractual 

interest, each one of them has adduced sufficient evidence to withstand summary 

judgment on their claim that they were denied the “full and equal benefit of all laws 

and proceedings for the security of persons and property” under § 1981.38 Plaintiffs’ 

allegations that they were the target of racial profiling by off-duty police officers 

acting as security guards are actionable under the equal benefit clause.39 See Phillip,

37 Plaintiffs submit that as a factual matter it is more difficult to determine when 
a customer has finished shopping in a department store. The nature of department 
store shopping, which invites more impulse buys through browsing of displays, is 
fundamentally different than in a convenience store. C f Ackerman v. Food-4-Less, 
No. 98-CV-1011, 1998 U.S. Dist. LEXIS 8813, at *4 (E.D. Pa. June 9, 1998) (“The 
purpose of picking an item off the shelf at a grocery store is so one may buy it.”).

38 This also includes Daniels’s claim that her arrest was racially motivated.

39 In Youngblood this Court determined that the defendant convenience store 
was not a state actor. 266 F.3d at 855. Although at least one other circuit has 
determined that state action is not required under the equal benefits clause, see, e.g., 
Phillip v. Univ. o f  Rochester, 316 F.3d 291 (2nd Cir. 2003), there is no dispute here 
that Dillard’s is a state actor. Even if there was, the record is clear that the state 
action component of the “equal benefit” clause of § 1981 is satisfied. See Murray,

27



316 F.3d at 298 (allegations of racially motivated criminal investigation held 

actionable under equal benefits clause); see also infra at pp. 37-38 (discussing 

Plaintiffs’ Equal Protection claims).

Defendants imply that Plaintiffs must provide direct evidence of racial 

discrimination to survive summary judgment. However, “[t]he issue of in tent. . .  is 

one that is often not susceptible to direct proof, and a court should consider all 

conflicting inferences that may be presented by the circumstantial evidence in the 

case.”40 Washington v. Duty Free Shoppers, 710 F. Supp. 1288, 1289 (N.D. Cal. 

1988) (citing Rogers v. Lodge, 458 U.S. 613, 618 (1982)); see also Village o f  

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) 

(“[determining whether invidious discriminatory purpose was a motivating factor 

demands a sensitive inquiry into such circumstantial and direct evidence of intent as 

may be available.”). Plaintiffs have presented substantial evidence from which a jury 

could reasonably infer that Dillard’s racially discriminated, including evidence that

874 F.2d at 558-59 (evidence that store had practice of working with police in 
prosecuting shoplifters; that security guard telephoned police after unfruitful search; 
and that security guard was employee of police department established that store 
acted in concert with police sufficient to establish state action under § 1983).

40Plaintiffs are not required to prove that Defendants intended to interfere with 
their contractual rights. Rather, “the proper focus is on whether the defendant had the 
intent to discriminate on the basis of race, and whether that discrimination interfered 
with the making or enforcement of a contract.” Hampton, 247 F.3d at 1106-07.

28



85% of all persons stopped, arrested, or banned from Dillard’s are black41 and that a 

substantial percentage of persons banned from the store are black.42 See Hampton,

41 Defendants allege that this evidence is “inadmissible and incomplete” 
because it does not provide demographic information on Dillard’s overall customer 
base. F irst there is no question that the evidence is admissible. The proper inquiry 
is the degree to which it is probative of racial discrimination. Second, it is not clear 
that “comparator” evidence is required in the context of retail sales which 
encompasses an itinerant clientele and, therefore, differs from the employment 
context which involves more regularized and periodic contact. See Christian, 252 
F.3d at 872-73 (observing difficulty of identifying similarly situated persons in 
commercial establishment context); Callwood, 98 F. Supp.2d at 706 (same); see also 
Dobson, 240 F. Supp. 2d at 522. Third, this Court can take judicial notice of United 
States 2000 census data, see Terrebonne v. Blackburn, 646 F.2d 997 (5th Cir. 1981); 
Skolnick v. Bd. o f  Com ’rs o f  Cook County, 435 F.2d 361 (7th Cir. 1970) (taking 
judicial notice of census figures), which shows that in 2000 blacks were 40.41% and 
33.98% of the total population in Little Rock and North Little Rock, respectively. 
See www.littlerock.areaconnect.com/statistics. Even with the (slight) gap in time 
between when these incidents occurred and the latest census information, a jury could 
reasonably infer that the racial demographics of Dillard’s customer base approximate 
the demographics of the surrounding areas. Therefore, it is reasonable to infer that the 
customer pool is nowhere close to 85% black and that the stop, arrest, and ban figures 
for blacks are disproportionately high. Fourth, there is evidence in the record from 
which to infer that Plaintiffs were treated differently than similarly situated white 
customers. See supra at pp. 6-7 (describing McFadden’s experience of waiting in 
long line of white customers just to be denied service after they have all finished 
purchasing their items and of being denied discount offered to white customer); supra 
at n. 27 (describing Daulton’s testimony that he would never approach anyone and 
ask to search them if they were merely acting suspiciously, which he plainly did with 
Williams and Minor).

42 Defendants try to justify Osborn’s disproportionate number of encounters 
with black customers by claiming that “[o]f the 68 entries in [the incident log] in 
which [he] was involved in arresting Blacks, 61 of the of those [sic] instances either 
a criminal act was committed or the arrest led to the recovery of stolen merchandise.” 
Significantly, Defendants do not say that Blacks who were arrested were involved in

29

http://www.littlerock.areaconnect.com/statistics


247 F.3d at 1108-09 (evidence of discriminatory surveillance raises inference of 

racial discrimination). Defendants’ “wall of shame” and its photo album, which were 

arranged by race and consisted of pictures mostly of black customers, shows that 

security personnel “differentiated shoppers predominantly by race.” Id. at 1109. 

Plaintiffs’ testimony and the testimony of other black patrons vividly demonstrate the 

pervasiveness of Dillard’s employees’ hostile attitude toward blacks. Defendants’ 

repeated violation of store policy in approaching Plaintiffs manifests an invidious

committing crimes 61 out of the 68 times, nor could they based on Osborn’s 
testimony. In his deposition, he could not definitively say what the figures in his 
incident log meant:

Q: For instance, there are several entries where figures are made, and
notated -  $893.40. Does that indicate that that person was apparently 
caught with that amount of -

A: I have no idea, unless there -  there are several different instances, you
know, for what that figure could represent. I have no idea. I can’t tell 
you unless I look at every individual report on what that means exactly. 
I’m not going to say that these numbers represent how much property 
that was recovered. It may mean how much property was taken. I don’t 
know. I don’t remember. You got to look at every single thing.

Q: It’s either how much property was taken, or how much property was
recovered?

A: I mean, that’s just another example. I mean, it could be many more
examples here. I mean, I can’t -  I’m not going to say that this only 
means a certain thing, ‘cause I’m not sure exactly what all that means. 
I read the report. If there’s a value for some reason or another, I put the 
value in.

(J.A. 500-01).

30



discriminatory purpose. C f Arlington Heights, 429 U.S. at 267 (“Departures from the 

normal procedural sequence also might afford evidence that improper purposes are 

playing a role.”). Viewed in the context of Plaintiffs’ other circumstantial evidence, 

Osborn and Thessing’s invocation of race — Osborn, by referring to the “two black 

girls,” (J.A. 476) and Thessing, by mentioning Rodney King —  also raises an 

inference that they were motivated by race.

III. Plaintiffs Presented Sufficient Evidence to Withstand Summary Judgment on
Their Constitutional Claims

A. The Trier of Fact May Infer from the Evidence in the Record that 
Plaintiffs Were “Seized” and that Such Seizure Was Unreasonable, in 
Violation of the Fourth Amendment

Construed in the light most favorable to them, Plaintiffs’ testimony shows that 

they were seized. Norris and Daniels testified that they neither fe lt free nor were free 

to leave. Osborn repeatedly physically barred them from leaving either the store or 

even his immediate vicinity. He blocked their path at every turn; instructed them that 

they “weren’t going anywhere”; became loud and aggressive; threatened to arrest 

them; at one point grabbed Norris;43 and called another officer, Daulton, as backup.

43 Indeed, Osborn’s threat of arrest for failure to comply alone demonstrates a 
seizure, see Bostick, 501 U.S. at 434-35 (mere questioning by police does not 
implicate Fourth Amendment, so long as “police do not convey a message that 
compliance with their requests is required.”); Vickroy v. City o f  Springfield, 706 F.2d 
853, 854 (8th Cir. 1983) {per curiam) (officer’s threat of arrest if  plaintiff did not 
identify himself constituted seizure for purposes of the Fourth Amendment), as does

31



Norris evidently did not feel free to leave because she (1) called her sister and told 

her that she could not leave and needed someone to pick up her grandmother for her 

at the airport and (2) felt compelled to call an attorney so that she could be advised 

of her rights.44 Defendants mischaracterize Plaintiffs’ testimony to suggest that they 

“freely walked away.” In fact, to the extent Plaintiffs were able to move anywhere 

at all after Osborn accosted them, it was in retreat, to a pay phone in a back comer of 

the store. The only other time they were permitted to move was outside of the store 

after Osbom threatened to arrest them if they did not comply. Osborn’s arrest of 

Daniels clearly constituted a seizure.

Home was not free to leave when her car was barricaded by a police vehicle 

and two security trucks. She did not feel free to leave after being told that she was 

suspected of shoplifting, and after being asked to return to the store with security and 

then assembled in a lineup in front of other white customers. Williams and Minor 

were seized when they yielded to Daulton and another security officer who

his grabbing of Norris, see California v. Hodari, 499 U.S. 621, 626 (1991) (“The 
word ‘seizure’ readily bears the meaning of a laying on of hands or application of 
physical force to restrain movement, even when it is ultimately unsuccessful.”); id. 
at 625 (observing that an arrest “is effected by the slightest application of physical 
force”).

44 Norris and Daniels tried to leave after Norris called the attorney but were 
prevented from doing so by Osbom.

32



accompanied him (J.A. 123) —  which any reasonable person would have done given 

the officers’ previous display of authority in the store. Moore yielded to Deputy 

Garza’s show of authority when he requested her to come with him, told her that she 

could not retrieve her identification, and then escorted her to the back of the store. 

Nelson testified that she felt she had no choice but to comply with Daulton’s request 

and in fact did yield to him by dropping her coat. Thessing seized Nichols when he 

threatened to arrest her if she did not comply.45

The record construed in the light most favorable to Plaintiffs indicates that the 

store employees who supposedly reported Plaintiffs on suspicion of shoplifting could 

not have had a reasonable basis for suspecting them.46 Plaintiffs’ testimony shows 

that they interacted with store personnel — some of them upon immediately entering 

the store — and that such interactions were polite (see, e.g., J.A. 108, 114-15). In 

short, Plaintiffs conducted themselves as most department store shoppers do.47

45 See Bostick, 501 U.S. at 434-35; Vickroy, 706 F.2d at 854.

46 Cf. Brown v. Texas, 443 U.S. 47 (1979) (officer’s testimony that defendant 
merely “looked suspicious” held insufficient under Fourth Amendment to support 
finding of articulable suspicion).

47 Defendants claim that Williams could have raised suspicion by walking off 
with the jumpsuit in an “excited” way, but this defies common sense. As anyone who 
shops in a department store knows, it is not uncommon to take clothing from one 
section and pay for it in another; and nothing in the record suggests that Williams in 
any way tried to conceal the jumpsuit. C f, Moore v. Marketplace Restaurant, 754

33



However, even assuming that the Defendant officers initially had reasonable 

suspicion based on the “tips” they received from store employees, the record creates 

a triable factual issue as to whether they followed up on the tips in a reasonable 

manner. After it has been determined that an investigatory stop took place, the Fourth 

Amendment inquiry is “a dual one — whether the officer’s action was justified at its 

inception, and whether it was reasonably related in scope to the circumstances which 

justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20 (1968). 

In conducting a Terry stop, it is well established that the “investigative methods 

employed should be the least intrusive means reasonably available to verify or dispel 

the officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491,500 

(1983); United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993) (detention should not 

continue longer than necessary to effectuate the purposes of the stop).

Osborn had enough information to dispel any reasonable suspicion that Norris 

and Daniels were shoplifting, but he decided to stop them anyway. He knew (1) that

F.2d 1336, 1346 (7th Cir. 1985) (“‘[Tjhere is no law against using common sense’; 
indeed, the use of common sense is a prerequisite for police officers in developing 
their investigation in order to effectuate a valid arrest.”). Moreover, Williams 
testified that she did not believe a sales person would have reported a white woman 
who was walking around in the same way with a warm-up suit. (J.A. 187-90). Minor 
stated that she thought she was targeted because of her style of dress that day, but 
implied that a similarly dressed white woman would not have had the same problem 
in the store.

34



Norris had a receipt for her sweater and her jeans; and even (2) that his criminal 

background check of her had been clear. He declined their repeated offers to be 

searched, even while supposedly suspecting them of stealing a Tommy Hilfiger shirt

— indicating that his reasons for stopping them were unreasonable and pretextual.48 

Moreover, although he claimed to require Daniels’s name for a suspicious person 

report, his abusive treatment of her following her arrest and his insistence that she 

show him the business card on which she had written his name raises triable factual 

questions concerning the authenticity of this explanation. See Reeves v. Sanderson 

Plumbing, 530 U.S. 133, 144-45 (2000) (evidence demonstrated that the infractions 

of which plaintiff was accused were too minor by themselves to explain his 

dismissal). At a minimum, there is enough evidence in the record to question whether 

Osborn’s purported need for this information justified his refusal to let either or both 

women leave his presence or the store. Both Daulton’s disavowal of Daniels’s arrest

— through his statement that he would have “nothing to do with it” — and Osborn’s 

insistence following the arrest that Daniels produce the card on which she had written 

his name raise triable factual questions concerning the true basis for the arrest and

48 He claims to have been told by the sales person who processed Norris’s 
sweater return that the women intended to return a Hilfiger shirt without a receipt. 
Nothing in Norris and Daniels’s testimony indicates that they told anyone that they 
planned to return a Hilfiger shirt without a receipt. In his deposition Osborn 
abandoned this part of his story. (Compare J.A. 534-35 with 477-78).

35



whether it was in fact pretext for racial harassment.

Thessing’s thirty minute stop and search of Nichols was unnecessary and, 

therefore, unreasonable because he had already determined that she was not 

concealing anything under her sweatpants and because the missing jeans had already 

been found. Nichols’s testimony that he taunted her to raise her sweatpants and 

seized her identification to call in a check for outstanding warrants only after she 

requested his name and badge number is additional evidence of his abusive conduct. 

Home’s stop was unreasonably intrusive because her car was barricaded by three 

security officers in three security vehicles in the parking lot. Further, she was 

subjected to a humiliating lineup in public (in front of other customers who were all 

white), before the officer requested to check the one bag for a receipt. Similarly, it 

was unnecessary to detain Moore before determining whether she had brought a purse 

with her into the store. It was also unreasonble to ask her to sign a ban sheet when 

store personnel refused to pursue criminal charges against her. Daulton conducted 

himself unreasonably when he stopped and searched Williams and Minor without 

having observed them try to conceal or remove anything from the store and without 

first permitting them to exit the premises. Nelson’s stop was unreasonable for the 

same reasons.

36



B. The District Court Erred in Dismissing Plaintiffs’ Equal Protection 
Claims

Even if the Court determines that the Defendant officers had articulable 

suspicion to stop Plaintiffs, there is still sufficient evidence from which to infer that 

the stops were pretext for racial discrimination in violation of their Equal Protection 

rights. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, No. 00-3653, 

2002 WL 31317699, at *5 (6th Cir. 2002); id. at * 10 (“[E] ven if [the officer] is correct 

that the record reveals that he possessed some racc-neutral basis for initiating the 

investigation of the plaintiffs, this fact alone would not entitle him to summary 

judgment on qualified immunity as long as the plaintiffs can demonstrate that he was 

partly motivated by a discriminatory purpose”) (emphasis in original). Thus, a 

plaintiff need not “prove that the challenged action rested solely on racially 

discriminatory purposes,” rather that racial discrimination was a motivating factor. 

See Arlington Heights, 429 U.S. at 265-66. As discussed above, there is substantial 

evidence suggesting that race was a determinative factor in Defendants’ treatment of 

Plaintiffs. SeeFlowersv. TJX Companies,No. 91-CV-1339,1994 WL 382515, at *3- 

4 (N.D.N.Y. July 15, 1994); see supra at pp. 28-31 (discussing circumstantial 

evidence of discrimination under § 1981).

37



IV. The District Court Erred in Concluding that the Defendant Officers Were
Entitled to Qualified Immunity49

Taken in the most favorable light, the facts alleged by Plaintiffs show that the 

conduct of Defendants Osborn, Thessing, and Daulton violated Plaintiffs’ clearly 

established constitutional rights not to be racially profiled and not to be subjected to 

unreasonable searches and seizures. See Saucier v. Katz, 533 U.S. 194 (2001). It 

need not be the case that the “very action in question” has been previously held 

unlawful, so long as the unlawfulness would be apparent to a reasonable person. See 

Hope v. Pelzer, 536 U.S. 730 (2002).

The totality of the evidence tends to show that Dillard’s employees racially 

profile black customers and that the officers targeted Plaintiffs based on this practice. 

There is no reason to infer that the officers were insulated from this practice — 

indeed, quite the opposite. Based on Defendants’ allegations that they relied on tips 

provided by store employees to target the Plaintiffs, it is evident that Dillard’s and the 

officers operated in concert with the store pursuant to a pre-arranged security plan. 

The other circumstantial evidence of Dillard’s racially discriminatory practices 

directly implicates Osborn, Daulton, and Thessing: the incident log, the “wall of

49 Plaintiffs may still recover for any constitutional violations against Dillard’s 
as a state actor, even if the individual Defendant officers have qualified immunity. 
SeeAdickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

38



shame” and photo album all differentiate on the basis of race for reasons that cannot 

lawfully be related to maintaining store security. C f United States v. Montero- 

Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000) (en banc) (holding that equal 

protection principles precluded use of Hispanic appearance as a relevant factor for 

Fourth Amendment individualized suspicion requirement). Osborn’s reference to 

Daniels and Norris as the “two black girls” and Thessing’s reference to Rodney King 

in the episode with Nichols — illustrate, at a minimum, that they took race into 

account and, plausibly demonstrates that they were racially motivated in their 

encounters with Plaintiffs. Based on these facts, the question of whether the officers 

acted upon a discriminatory motive and whether they conducted themselves 

unreasonably in stopping and/or searching Plaintiffs are questions best resolved at 

trial. See Farm Labor Org. Comm., 2002 WL 31317699, at * 10.

39



CONCLUSION

For the aforementioned reasons, Plaintiffs respectfully request this Court to 

reverse the district court’s judgment below on all of Plaintiffs’ federal and state50 law 

claims.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
Elise C. Boddie 
NAACP Legal Defense &

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013

Austin Porter, Jr.
The Porter Law Firm
323 Center Street, Suite 1300
Little Rock, Arkansas 72201

Counsel fo r  Plaintiffs-Appellants

50 For the reasons discussed above, Plaintiffs also adduced sufficient evidence 
to withstand summary judgment on their state law claims; and the district court erred 
in dismissing them.

40



CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(5) and 32(a)(7)(C), and Eighth Circuit 
Rules 28A(c) and 28A(d), the undersigned certifies as follows:

i. This brief of proportionately spaced typeface is 14-point.

ii. Pursuant to Rule 32(a)(7)(B), this Court’s Order of April 16, 

2003, and exclusive of the exempted portions in Fed. R. App.

P. 32(a)(7)(B)(iii), this Brief does not exceed 11,000 words and 

actually contains 10,567 words; per the attached word count of 

the word-processor system used to prepare this Brief. The 

Brief was prepared using Corel WordPerfect 8.0 software.

iii. Pursuant to Rule 28A, Appellants are submitting to the Clerk a 

3 1/2 inch computer diskette containing the full text of the 

Brief, the diskette being labeled with case name and docket 

number.

iv. Pursuant to Rule 28A, Appellants are serving a copy of the 

diskette on each appellee counsel.

v. Pursuant to Rule 28A, the diskettes have been scanned for 

viruses and are virus-free.

ELISE C. BODDIE

41



ADDENDUM



Page 1

AR ST § 5-37-208 
A.C.A. § 5-37-208

C
ARKANSAS CODE OF 1987 ANNOTATED 

TITLE 5. CRIMIN AL OFFENSES 
SUBTITLE 4. OFFENSES AGAINST PROPERTY 

CHAPTER 37. FORGERY AND FRAUDULENT PRACTICES 
SUBCHAPTER 2. OFFENSES GENERALLY

Copyright © 1987-2002 by The State of Arkansas. All rights reserved. 

Current through the 2002 Extraordinary Session

5-37-208 Criminal impersonation.

(a) (1) A person commits criminal impersonation in the first degree if. with the intent to induce a person to submit to 
pretended official authority for the purpose to injure or defraud the person, he:

(A) Pretends to be a law enforcement officer by wearing or displaying, without authority, any uniform or badge by 
which law enforcement officers are lawfully distinguished; or

(B) Uses a motor vehicle or motorcycle designed, equipped or marked so as to resemble a motor vehicle or motorcycle 
belonging to a federal, state or local law' enforcement agency.

(2) Criminal impersonation in the first degree is a Class D felony.

(b) (1) A person commits criminal impersonation in the second degree if he does an act in his pretended or assumed 
capacity or character with the purpose to injure or defraud another person and he:

(A) Assumes a false identity;

(B) Pretends to be a representative of some person or organization;

(C) Pretends to be an officer or employee of the government other than a law enforcement officer described in 
subsection (a) of this section; or

(D) Pretends to have a handicap or disability.

(2) Criminal impersonation in the second degree is a Class A misdemeanor.

History. Acts 1975, No. 280, § 2310; A.S.A. 1947, § 41-2310; Acts 1991, No. 786, § 3; 1997, No. 1014, § 1.

A.C.A. § 5-37-208

AR ST § 5-37-208 

END OF DOCUMENT

Copr. © West 2003 No Claim to Orig. U.S. Govt. Works



LEXSEE 1998 U.S. Dist. Lexis 8813

MICHELLE ACKERMAN, Plaintiff, v. FOOD-4-LESS, a/k/a VINMAR 
M ARKETING ASSOCIATES, L.P., Defendant.

Civil No. 98-CV-1011

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

1998 U.S. Dist. LEXIS 8813

June 9, 1998, Decided 

June 10,1998, Filed

DISPOSITION:
[*1] Defendant's May 22, 1998 Motion to Strike 

Plaintiffs Complaint DENIED.

COUNSEL:
For MICHELLE ACKERMAN, PLAINTIFF: DAYLIN B. 
LEACH, WORTH LAW OFFICES, ALLENTOWN, PA 
USA.

For MICHELLE ACKERMAN, PLAINTIFF: THOMAS 
K. LEHRICH, ALLENTOWN, PA USA.

For FOOD-4-LESS a/k/a VINMAR MARKETING 
ASSOC. L.P., DEFENDANT: LOUIS A. RIEFFEL, LAW 
OFFICES OF NAOMI PLAKINS-O'NEILL, 
DOYLESTOWN, PA USA.

JUDGES:
Franklin S. Van Antwerpen, United States District Judge.

OPINIONBY:
Franklin S. Van Antwerpen

OPINION:

MEMORANDUM AND ORDER

Van Antwerpen, J.

June 9, 1998

I. INTRODUCTION

Plaintiff has filed this suit accusing the Defendant of 
violating her federal civil rights under 42 U.S.C. § 1981, 
as well as of subjecting her to the state torts of false 
imprisonment, intentional infliction of emotional distress,

assault and battery. The basis for this case arose when the 
Defendant's employee accused the Plaintiff of shoplifting. 
Defendant has petitioned this court, under Fed. R. Civ. P. 
12(b)( 6), to dismiss Plaintiffs federal civil rights claim and 
to decline jurisdiction over the pendent state claims. For 
the reasons that follow, we will deny Defendant's motion 
to dismiss at this time.

II. STANDARD [*2] OF REVIEW

A motion filed pursuant to Rule 12(b)(6) is the proper 
means by which a defendant challenges the legal 
sufficiency of a complaint. When considering a motion to 
dismiss, "we are required to accept as true all of the 
allegations in the complaint and all reasonable inferences 
that can be drawn therefrom, and view them in the light 
most favorable to the plaintiff." Morse v. Lower Merion 
School District, 132 F.3d 902, 906 (1997){citations 
omitted). A court should grant a Rule 12(b)(6) motion, "’if 
it appears to a certainty that no relief could be granted 
under any set of facts which could be proved.'" Id. (quoting 
D P. Enterprises, Inc. v. Bucks County Community 
College, 725 F.2d 943, 944 (3d Cir. 1984)). Still, a court 
is not required to credit a complaint's "bald assertions" or 
"legal conclusions" when deciding a motion to dismiss.

III. FACTS

In accordance with the standard of review surrounding 
Rule 12(b)(6), we will accept as true all of Plaintiffs 
factual allegations and draw all inferences in Plaintiffs 
favor. According to the Complaint, Plaintiff (an African 
American) and her husband (a Caucasian) entered the 
Defendant's retail store to go grocery [*3] shopping. 
Immediately upon entering the store, Plaintiff claims that 
she was watched and followed by a store security agent. 
Plaintiff claims that the sole reason that she was watched 
and followed was her race. Plaintiff further alleges that the 
Defendant has subjected many African-American 
consumers to a heightened degree of monitoring, stopping



1998 U.S. Dist. LEXIS 8813,
Page 2

and detaining, absent any basis to suspect shoplifting.

Toward the end of her shopping. Plaintiff picked up a 
small container of Spanish spice powder, whereupon she 
realized that she needed to use the bathroom. At no time 
did the Plaintiff conceal or in any way try to steal the spice. 
As she attempted to approach the bathroom. Plaintiff was 
grabbed roughly from behind by the a Food-4-Less security 
officer.

After being grabbed. Plaintiff was taken to an office 
where she was detained for more than two hours. She was 
not allowed to leave the office, not allowed to make a 
phone call, not allowed to contact her attorney, not allowed 
to tell her husband where she was, and not allowed to 
communicate with the outside world. During the detention, 
Plaintiff told the security officer that she urgently needed 
to use the bathroom. The officer told the [*4] Plaintiff that 
she could not use the bathroom and was kept confined. As 
a result of the confinement, Plaintiff defecated in her pants.

Plaintiff asserts that she was subjected to numerous 
racial slurs by the security officer during the detention. She 
was told that Puerto Ricans are always stealing. When 
Plaintiff explained to the security guard that she was 
shopping with her husband, she was told that she could not 
be married to the man she identified as her husband 
because he was white.

Plaintiff believes that the Defendant's security guard's 
actions were racially motivated and encouraged by store 
management which condones the differential treatment of 
African-American and White customers.

III. DISCUSSION

Defendant argues that Plaintiffs § 1981 claimmustbe 
dismissed under these facts as a matter of law. We 
disagree.

Section 1981 prohibits racial discrimination in the 
making and enforcement of contracts. 42 U.S.C. § 
1981(d). This clause is not to be read narrowly. Section 
1981 covers "making, performance, modification, and 
termination of contracts, and the enjoyment of all benefits, 
privileges, terms, and conditions of the contractual 
relationship." 42 U.S. C. § 1981(b)-, [*5] see also Lewis v. 
J C. Penney Company. Inc., 948 F. Supp. 367, 371 (D. Del. 
1996).

Section 1981 claims are analyzed under the same 
burden-shifting standards used in Title VII discrimination 
cases. In order for a plaintiff to succeed under § 1981, she 
must establish a pnma facie case by demonstrating: (1) that 
she is a member of a racial minority; (2) that the defendant 
intended to discriminate against her on the basis of her 
race; and (3) that the defendant's racially discriminatory

conduct abridged her contract or other rights enumerated 
by § 1981(a). Ackaa v. Tommy Hilfiger Co., 1998 U.S. 
Dist. LEXIS 3570. No. Civ. A. 96-8262, 1998 WL 136522, 
*1. *3 (E.D. Pa. Mar. 24, 1998). Once a plaintiff makes her 
pnma facie case, the defendant must come forward with 
some legitimate, nondiscriminatory basis for its conduct. If 
the defendant fails to come forward with such evidence, or 
the plaintiff proves that the defendant's proffered evidence 
is pretextual, then the Plaintiff wins her case. Id.

Here, the Complaint alleges that the Plaintiff is 
Afncan-Amencan. This meets the first prong of the 
Plaintiffs pnma facie case. Plaintiffs complaint also 
alleges sufficient facts to conclude that the Defendant's 
[*6] actions were based on Plaintiffs race. Plaintiff alleges 
that numerous racial slurs were marshaled against her by 
the secunty guard and that she was told that she could not 
be married to her husband because he was white and she 
was a minonty. Thus, the crux of Defendant’s motion to 
dismiss rests on its charge that Plaintiff cannot prove the 
third element of her case: that the Defendant abridged her 
nght to make and enforce contracts.

As one of our sister courts in the Eastern District of 
Pennsylvania has recognized, "in the context of a contract 
discrimination claim arising from a retail transaction, the 
courts have universally required that in order to 
successfully establish the third element of a prima facie 
case... plaintiffs must produce evidence of something more 
than the same type of racially based, discriminatory 
conduct sufficient to support the second element of a § 
1981 prima facie case." Id at *5. Thus, a plaintiff must 
show that she "was actually prevented, and not merely 
deterred, from making a purchase or receive service after 
attempting to do so." Henderson v. Jewel Food Stores, 
Inc.. 1996 U.S. Dist. LEXIS 15796, No. 96- C-3666, (N.D. 
111. Oct. 23, 1996). [*7]

Defendant relies primarily on the Delaware District 
Court's decision in Lewis to support its Motion to Dismiss. 
However, this case merely held that a plaintiff could not 
rely on the argument that "an unstated, unwritten contract 
[exists] between commercial establishments and the public, 
that all who enter the premises of the former will be treated 
equally regardless of race." Lewis, 948 F. Supp. at 371.

Furthermore, Lewis is distinguishable from the instant 
case because the plaintiff in Lewis had already finished 
shopping and was leaving the store; thus no contractual 
relationship remained. Indeed, the one other case in this 
circuit to dismiss a plaintiffs § 1981 "shoplifting" case 
involved a situation where the plaintiffs transactions in the 
store for that day were completed. Ackaa, 1998 WL 
136522 at *6. Plaintiff, by contrast, was in the middle of 
shopping when she was accosted by the security guard.



1998 U.S. Dist. LEXIS 8813,
Page 3

Thus, her case is much more similar to Henderson, 1996 
WL 617165, *4, where the district court denied summary 
judgment when the plaintiff was detained (and ultimately 
ejected from the store) by a security guard while he was on 
the way to the cash register. [*8] See also Washington v. 
Dufy Free Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. 
Cal. / 9<§<3j(defendants' summary judgment motion denied 
where plaintiffs alleged that duty free shop expelled 
patrons without airline tickets or passports based on race).

Defendant claims, however, that it is still entitled to 
summary judgment because Plaintiff has not pled in her 
complaint that she "either intended or attempted to 
purchase the jar of Spanish seasoning, i.e„ make or enforce 
a contract." Memorandum of Law in Support of Defendant, 
Food-4-Less a/k/a Vinmar Marketing Associates' 12(b)(6) 
Motion to Strike Plaintiffs Complaint at 9. Defendant 
argues that "by virtue of the fact that Plaintiff'picked up a 
small container of Spanish spice powder,' she did not 
necessarily make or attempt to enforce a contract. As such, 
Plaintiffs § 1981 claim must fail." Id. Defendant's
argument, however, neglects to realize that we must make 
all reasonable inferences in the Plaintiffs favor. The 
purpose of going to a grocery store is to buy groceries. The 
purpose of picking an item off the shelf at a grocery store 
is so one may buy it. We feel that it is a very reasonable 
inference that Plaintiff [*9] picked up the Spanish spice 
powder so that she could purchase the seasoning. 
Therefore, Defendant's argument that Plaintiffs mere act of 
picking up the spice is not evidence enough of her intent to 
form a contract fails.

We are, however, concerned with whether the Plaintiff 
was ultimately prevented from purchasing the spice. We 
note that though Plaintiff was detained for two and one 
half hours, her Complaint states that she and her husband 
did ultimately purchase $ 90 worth of groceries that day. 
See Complaint at P 6. Thus, if the Plaintiff, herself, 
ultimately bought the spice, her ability to contract with the 
store would not have been abridged, despite the 
discriminatory actions of the Defendant. If, however, the 
S 90 worth of groceries were purchased by the Plaintiffs 
husband, while she was detained, then Plaintiffs ability to 
form a contract may have indeed been abridged. Looking 
at the Complaint, there could emerge a set of facts, as 
discovery progresses, on which the Plaintiff could 
ultimately prevail. Therefore, Defendant has failed to show 
"'to a certainty that no relief could be granted under any set 
of facts which could be proved.'" Morse, 132 F.3d at 906 
( [*10] quoting D P. Enterprises, Inc., 725 F.2d at 944). 
Defendant's motion to dismiss the Plaintiffs complaint 
must, at this time, be denied. We urge the parties, however, 
on any subsequent motions for summary judgment, to 
focus on whether the Plaintiff herself was prevented from

making any purchases from the store. If the Plaintiff was 
not so prevented, then her § 1981 claim would ultimately 
have to be dismissed.

Because we have decided to deny the Defendant's 
motion to dismiss Plaintiffs federal claim, we see no 
reason at this time to decline jurisdiction over the pendent 
state claims.

IV. CONCLUSION

We will deny the Defendant's Motion to Dismiss at 
this time because Defendant has failed to show that there 
are no set of facts from which the Plaintiff could prove that 
her ability to contract with the Defendant was abridged. 
However, again, we urge the parties to explore whether the 
Plaintiff was ultimately denied the chance to contract with 
the store.

Though we will maintain jurisdiction of the state 
claims at this point, we will advise the Plaintiff that if her 
§ 1981 claim is at some point dismissed, we would see no 
reason to retain j urisdiction of her Pennsylvania state [* 11 ] 
claims. This has nothmg to do with merits of those claims, 
but with the fact that we feel that generally naked state 
claims belong in state court. Therefore, if the Plaintiff 
believes that she ultimately could not show that she was 
prevented from purchasing her goods at the Defendant's 
store, then we would advise her to conserve her time, 
energy and resources by voluntarily dismissing her federal 
case and re-filing the state claims in state court. If, 
however. Plaintiff believes that she was prevented from 
making her purchases at Food-4-Less, then she should 
continue with her federal case. Still, at this time, 
Defendant's Rule 12(b)(6) is denied.

An appropriate order follows.

ORDER

AND NOW, this 9th day of June, 1998, upon 
consideration of Defendant Food-4-Less a/k/a Vinmar 
Marketing Associates' May 22, 1998 12(b)(6) Motion to 
Strike Plaintiffs Complaint and Plaintiffs June 4, 1998 
Brief in Opposition to Defendant's 12(b)(6) Motion to 
Strike Plaintiffs Complaint, it is hereby ORDERED that:

1. Defendant's May 22, 1998 Motion to Strike Plaintiffs 
Complaint is DENIED;

2. Defendant file an Answer to Plaintiffs Complaint within 
fourteen (14) days of [ * 12] this Order.

BY THE COURT

Franklin S. Van Antwerpen

United States District Judge



308 F.3d 523
2002 Fed.App. 0361P
(Cite as: 308 F.3d 523, 2002 WL 31317699 (6th Cir.(Ohio)))

Page 1

H
United States Court of Appeals, 

Sixth Circuit.

Kennedy, Circuit Judge, dissented and filed a 
separate opinion.

FARM LABOR ORGANIZING COMMITTEE, et 
al., Plamtiffs-Appellees,

v.
OHIO STATE HIGHWAY PATROL, et al., 

Defendants-Appellants.

No. 00-3653.

Argued: Dec. 4, 2001.
Decided and Filed: Oct. 17, 2002.

Hispanic workers and motorists brought class action 
against state highway patrol and troopers, alleging 
that defendants violated their constitutional rights by 
interrogating them about their immigration status and 
confiscating immigration documents on basis of their 
Hispanic appearance. After partial summary 
judgment was granted for two motorists on their 
claims against trooper based on his four-day 
detention of their green cards, and for defendants 
with respect to other claims, the United States 
District Court for the Northern District of Ohio, 
James G. Carr, J., 95 F.Supp.2d 723, granted in part 
and denied in part motion for reconsideration, 
denying trooper's motion for summary judgment on 
qualified immunity grounds and granting motorists' 
partial summary judgment motion respecting liability 
on their equal protection claims. Trooper brought 
interlocutory appeal challenging denial of his 
qualified immunity defense. The Court of Appeals, 
Moore, Circuit Judge, held that: (1) factual issues 
precluded summary judgment for trooper on qualified 
immunity defense to motorists' equal protection 
claims on grounds that motorists failed to establish 
equal protection violations; (2) reasonable officer in 
trooper's position would have known that his alleged 
conduct violated motorists' equal protection rights, 
precluding summary judgment for trooper on 
qualified immunity grounds; (3) trooper's four-day 
detention of motorists' green cards on less than 
probable cause violated Fourth Amendment; (4) 
trooper was not entitled to qualified immunity from 
liability on motorists' Fourth Amendment claims; and 
(5) Court of Appeals would exercise its pendent 
appellate jurisdiction to affirm grant of partial 
summary judgment to motorists on Fourth 
Amendment claims.

Affirmed and remanded.

West Headnotes

HI Federal Courts €'“ ^574
170Bk574 Most Cited Cases

Pursuant to "collateral order doctrine," federal 
appellate courts have jurisdiction to hear 
interlocutory appeals concerning the legal question of 
qualified immunity, such as whether a given set of 
facts violates clearly established law.

121 Federal Courts ^"^574
170Bk374 Most Cited Cases

Denials of qualified immunity may not be reviewed 
on interlocutory appeal insofar as defendant simply 
wants to appeal district court's determination that the 
evidence is sufficient to permit a particular finding of 
fact after trial.

131 Federal Courts <S~~:>776
170Bk776 Most Cited Cases

Court of Appeals reviews de novo a district court's 
denial of summary judgment on qualified immunity 
grounds, inasmuch as determination of whether 
qualified immunity is applicable to an official's 
actions is a question of law.

141 Civil Rights € ^ 2 1 4 (2 )
78k214(21 Most Cited Cases

According to the doctrine of "qualified immunity," 
government officials performing discretionary 
functions generally are shielded from liability for 
civil damages insofar as their conduct does not 
violate clearly established statutory or constitutional 
rights of which a reasonable person would have 
known.

151 Civil Rights ^ — ’214(1)
78k214( 11 Most Cited Cases

151 Civil Rights <̂ ~~>214(2)
78k214(2) Most Cited Cases

Determination of whether officer is entitled to 
qualified immunity involves a two-step inquiry: court 
first considers whether, taken in the light most 
favorable to the party asserting injury, facts alleged

Copr. © West 2003 No Claim to Ong. U.S. Govt. Works



308 F.3d 523
2002 Fed.App. 036IP
(Cite as: 308 F.3d 523. 2002 WL 31317699 (6th Cir.(Ohio)))

Page 2

show that officer's conduct violated a constitutional 
right; if the court finds a constitutional violation has 
been demonstrated, it must then consider whether the 
violation involved clearly established constitutional 
rights of which a reasonable person would have 
known.

[61 Civil Rights ^ “ ^214(2)
78k214(21 Most Cited Cases

For a right to be "clearly established," in the context 
of qualified immunity defense, the contours of the 
right must be sufficiently clear that a reasonable 
official would understand that what he is doing 
violates that right.

171 Civil Rights <£~~>214(2)
78k214(2) Most Cited Cases

For the law to be considered "clearly established" for 
purposes of qualified immunity defense, it need not 
be the case that the very action in question has been 
previously held unlawful; however, the unlawfulness 
of the official's challenged action must be apparent in 
the light of preexisting law.

18| Civil Rights <̂ ™>214(2)
78k214(2) Most Cited Cases

Although earlier cases involving fundamentally 
similar facts can provide especially strong support for 
a conclusion that the law was clearly established for 
purposes of qualified immunity defense, they are not 
necessary to such a finding.

191 Constitutional Law <£~~>250.1(1)
92k250.1( 1) Most Cited Cases

Equal Protection Clause of the Fourteenth 
Amendment provides citizens a degree of protection 
independent of the Fourth Amendment protection 
against unreasonable searches and seizures. U.S.C.A. 
Const.Amends. 4. 14.

1101 Constitutional Law ^"^215.2
92k215.2 Most Cited Cases

Showing that motorists were subjected to unequal 
treatment based upon their race or ethnicity during 
the course of an otherwise lawful traffic stop is 
sufficient to demonstrate a violation of the Equal 
Protection Clause. U.S.C.A. Const.Amend. 14.

1111 Automobiles € “ ^349(18)

48Ak349( 18) Most Cited Cases

1111 Constitutional Law ^ —:?215.2
92k215,2 Most Cited Cases

Hispanic motorists asserting selective enforcement 
claim under Equal Protection Clause were not 
required to establish existence of similarly situated 
class that was not investigated as to immigration 
status during otherwise lawful traffic stops by state 
highway patrol to the extent that motorists could 
show that highway patrol employed explicit racial 
criteria or admitted to racially motivated decision­
making. U.S.C.A. Const.Amend. 14.

1121 Constitutional Law 15
92k2 15 Most Cited Cases

When a state adopts explicit racial criteria, strict 
scrutiny will automatically be applied to challenged 
governmental action under equal protection analysis, 
even in the absence of evidence of discriminatory 
purpose. U.S.C.A. Const.Amend. 14.

1131 Constitutional Law €~~>223
92k223 Most Cited Cases

To establish discriminatory effect in a case alleging 
selective enforcement of facially neutral criminal 
laws based on race, equal protection claimant must 
show that similarly situated individuals of a different 
race were not prosecuted. U.S.C.A. Const.Amend. 
14-

|14| Constitutional Law € ~ ~ >215.2
92k2 15,2 Most Cited Cases

Equal protection claimant alleging selective 
enforcement of facially neutral criminal laws can 
demonstrate discriminatory effect by naming a 
similarly situated individual who was not 
investigated, or through the use of statistical or other 
evidence which addresses the crucial question of 
whether one class is being treated differently from 
another class that is otherwise similarly situated. 
U.S.C.A. Const.Amend. 14.

|15| Constitutional Law (£ “ ~>211(1)
92k21 H I) Most Cited Cases

Discriminatory purpose supporting equal protection 
challenge can be shown by demonstrating that the 
decisionmaker selected or reaffirmed a particular 
course of action at least in part because of, not merely

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in spite of, its adverse effects upon an identifiable 
group. U.S.C.A. Const.Amend. 14.

1161 Constitutional Law €™ >211(1)
92k211(11 Most Cited Cases

Determining whether official action was motivated 
by intentional discrimination, for purposes of equal 
protection claim, demands a sensitive inquiry into 
such circumstantial and direct evidence of intent as 
may be available. U.S.C.A. Const.Amend. 14.

|17| Constitutional Law <G™>223
92k223 Most Cited Cases

In the context of equal protection claim alleging 
selective enforcement of facially neutral criminal 
laws, invidious discriminatory purpose may often be 
inferred from the totality of the relevant facts, 
including the fact, if true, that the challenged practice 
bears more heavily on one race than another. 
U.S.C.A. Const.Amend. 14.

1181 Federal Courts <S™ >770
170Bk770 Most Cited Cases

Court of Appeals lacks jurisdiction on interlocutory 
appeal of a denial of qualified immunity to review the 
district court's determination that plaintiffs have 
presented sufficient evidence to prove the underlying 
or basic facts alleged in support of their constitutional 
claim.

[191 Federal Courts <S™ >770
170Bk770 Most Cited Cases

On interlocutory review of denial of qualified 
immunity defense, Court of Appeals' review was 
confined to the question of whether all of the conduct 
which the district court deemed sufficiently 
supported for purposes of summary judgment met 
Harlow standard of objective legal reasonableness.

1201 Federal Courts <£~~>712
170Bk712 Most Cited Cases

Court of Appeals would not consider argument which 
appeared to have been raised for the first time in 
reply brief on appeal and was not supported by any 
evidence in the record.

|21| Constitutional Law € ~ ~ >223
92k223 Most Cited Cases

Under framework for analyzing equal protection 
claims alleging selective enforcement of facially 
neutral criminal laws, plaintiff is not required to show 
that defendant had no race-neutral reasons for the 
challenged enforcement decision; rather, it is enough 
for plaintiff to show that challenged action was taken 
at least in part because of its adverse effects upon an 
identifiable group. U.S.C.A, Const.Amend. 14.

|22| Civil Rights <£'~~~>240(1)
78k240( 1) Most Cited Cases

In the equal protection arena, proof that a challenged 
decision was motivated in part by a racially 
discriminatory purpose shifts to defendant the burden 
of establishing that the same decision would have 
resulted even had the impermissible purpose not been 
considered. U.S.C.A. Const.Amend. 14.

1231 Civil Rights ‘G'~>214(6)
78k214(6) Most Cited Cases

That state trooper possessed some race-neutral basis 
for initiating investigation into immigration status of 
Hispanic motorists was insufficient, standing alone, 
to entitle trooper to qualified immunity from liability 
on motorists' equal protection claims if motorists 
could demonstrate that trooper was partly motivated 
by discriminatory purpose. U.S.C.A. Const.Amend. 
J4; 42 U.S.C.A. S 1983.

1241 Federal Civil Procedure €"^2491.5
170Ak2491,5 Most Cited Cases

Material issues of fact existed as to whether state 
trooper’s allegedly discriminatory motive played 
determinative role in his decision to investigate 
immigration status of Hispanic motorists detained in 
otherwise lawful traffic stop, precluding summary 
judgment for trooper on his qualified immunity 
defense to motorists' equal protection claims. 
U.S.C.A. Const.Amend. 14: 42 U.S.C.A. S 1983.

1251 Federal Civil Procedure ‘£ “ ^2491.5
170Ak2491,5 Most Cited Cases

Material issues of fact existed as to whether state 
trooper's reliance on Hispanic motorists' difficulty in 
speaking English was legitimate race-neutral reason 
for investigating motorists' immigration status during 
traffic stop, or whether such reliance was mere 
pretext for discrimination, precluding summary 
judgment for trooper on his qualified immunity 
defense to liability on motorists' equal protection

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claims. U.S.C.A. Const.Amend. 14: 42 U.S.C.A, 8 
1983.

1261 Constitutional Law ^~~>215.2
92k215.2 Most Cited Cases

Police officer's reliance upon a suspect's inability to 
speak English may be a proper race-neutral factor for 
investigating suspect's immigration status, for 
purposes of suspect's selective enforcement claim 
under Equal Protection Clause, but fact questions as 
to pretext are necessarily present when an officer acts 
based upon the fact that a suspect speaks Spanish due 
to the close connection between the Spanish language 
and a specific ethnic community. U.S.C.A. 
Const.Amend. 14.

1271 Civil Rights <©~~>214(6)
78k214(6) Most Cited Cases

At the time that state trooper investigated 
immigration status of motorists during otherwise 
valid traffic stop, allegedly based on motorists' race, 
the law was clearly established that equal protection 
principles prohibited racial targeting in law 
enforcement investigations, regardless of whether an 
encounter was lawful under Fourth Amendment, 
notwithstanding any ambiguity in the law with 
respect to consensual encounters, and therefore 
reasonable officer in trooper's position would have 
known that trooper's alleged conduct violated 
motorists' equal protection rights, precluding 
summary judgment for trooper on qualified immunity 
grounds. U.S.C.A. Const.Amends. 4. 14: 42 U.S.C.A 
S 1983.

1281 Searches and Seizures <G~~>23
349k23 Most Cited Cases

The text of the Fourth Amendment extends protection 
against unreasonable seizures of personal property as 
well as seizures of the person. U.S.C.A. 
Const.Amend. 4.

1291 Searches and Seizures ^ “ "*40.1
349k40.1 Most Cited Cases

In general, like seizures of the person, seizures of 
personal property require probable cause under 
Fourth Amendment. U.S.C.A. Const.Amend. 4.

1301 Federal Courts € “ ^915
170Bk915 Most Cited Cases

State trooper waived argument that he had probable 
cause to seize motorists' green cards when, despite 
raising argument in district court, trooper did not 
challenge district court's determination that probable 
cause did not exist either in his opening brief on 
appeal or in his reply brief. U.S.C.A. Const.Amend. 
4.

[311 Federal Courts € “ ^915
170Bk915 Most Cited Cases

Issue not raised in a party's briefs on appeal may be 
deemed waived.

|321 Searches and Seizures € — ’40.1
349k40,1 Most Cited Cases

Determining whether a seizure of personal property 
based upon less than probable cause is reasonable for 
purposes of Fourth Amendment involves a two- step 
inquiry: court must first determine whether the 
detaining officer has a reasonable and articulable 
suspicion that the property he wishes to seize is 
connected with criminal activity, and, second, the 
scope of the seizure must be reasonable, both in 
duration and in intrusiveness. U.S.C.A. 
Const.Amend. 4.

1331 Arrest €^>63.5(7)
35k63.5(7) Most Cited Cases

Although an officer may have reasonable suspicion to 
detain a person or his possessions for investigation, 
the officer's investigative detention can mature into 
an arrest or seizure if it occurs over an unreasonable 
period of time or under unreasonable circumstances. 
U.S.C.A. Const.Amend. 4.

1341 Arrest €^>63.5(9)
35k63.5(9) Most Cited Cases

Although state trooper had reasonable suspicion to 
believe that motorists' green cards were forged, his 
seizure of green cards exceeded legitimate scope of 
seizure of property based upon less than probable 
cause when trooper detained cards for four days 
before they were returned, inasmuch as seizure 
interfered both with motorists' possessory interests in 
the green cards and their liberty interests in 
continuing uninterrupted with their travels, trooper 
offered no reason why more than one-day detention 
to permit Immigration and Naturalization Service 
(INS) to verify cards' authenticity was needed, and 
trooper did not make clear to motorists how long

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documents would be held or when or how he would 
return them if they proved to be authentic. U.S.C.A. 
Const.Amend. 4.

1351 Arrest <£'~~>63.5(9)
35k63.5(9) Most Cited Cases

At the time state trooper seized motorists' green cards 
based on reasonable suspicion that cards were forged, 
then detained cards for four days, reasonable officer 
would have been aware that four-day seizure of 
important personal effects from traveler on public 
roads would violate Fourth Amendment if based 
upon less than probable cause, and therefore trooper 
was not entitled to qualified immunity from liability 
on motorists’ claims that his four-day detention of 
their green cards violated Fourth Amendment. 
U.S.C.A. Const.Amend. 4.

[361 Federal Courts €~~:>574
170Bk574 Most Cited Cases

|36| Federal Courts <& ~ ?595
170Bk595 Most Cited Cases

Partial summary judgment on the issue of liability 
alone is not a final decision for purposes of appeal, 
nor does such an order qualify as an immediately 
appealable collateral order. 28 U.S.C.A. ij 1291.

1371 Federal Courts <S~~?770
170Bk770 Most Cited Cases 
Order.

Court of Appeals would exercise its pendent 
appellate jurisdiction, on interlocutory appeal from 
denial of state trooper's motion for summary 
judgment based on qualified immunity defense, to 
affirm grant of partial summary judgment to 
motorists on issue of trooper's Fourth Amendment 
liability arising from his four-day detention of 
motorists' green cards based upon less than probable 
cause, inasmuch as Court of Appeals' determination, 
in reviewing qualified immunity question, that 
trooper violated motorists' Fourth Amendment rights, 
which was based on undisputed facts, necessarily 
subsumed merits of Fourth Amendment claim. 
U.S.C.A. Const.Amend. 4.

1381 Federal Courts € ~ ~ >768.1
170Bk768.1 Most Cited Cases

Under the "doctrine of pendent appellate 
jurisdiction," Court of Appeals may, in its discretion,

exercise jurisdiction over issues that are not 
independently appealable when those issues are 
inextricably intertwined with matters over which the 
appellate court properly and independently has 
jurisdiction.
*528 Kimberly M. Skaggs (argued and briefed), J. 

Mark Finnegan (briefed). Equal Justice Foundation, 
Columbus, OFI, for Plaintiff-Appellee.

Todd R. Marti (argued and briefed), Office of the 
Attorney General, Corrections Litigation Section, 
Columbus, OFI, for Defendant-Appellants.

Before KENNEDY. MOORE, and COLE. Circuit 
Judges.

OPINION

MOORE. Circuit Judge.

**1 Defendant-Appellant, Trooper Kevin Kiefer, 
appeals the district court's denial of qualified 
immunity in this $ 1983 action alleging that he (1) 
targeted the individual plaintiffs for questioning 
concerning their immigration status based solely 
upon their race or national origin in violation of the 
Equal Protection Clause of the Fourteenth 
Amendment, and (2) unreasonably detained the 
plaintiffs' green cards for four days without probable 
clause in violation of the Fourth Amendment. [FN11 
For the reasons stated below, we AFFIRM the denial 
of qualified immunity as to the plaintiffs' Fourth and 
Fourteenth Amendment claims. Furthermore, we 
AFFIRM the district court's grant of partial summary 
judgment to plaintiffs on the issue of Fourth 
Amendment liability and REMAND for further 
proceedings consistent with this opinion.

FN1. In this opinion, we address only 
Trooper Kiefer's claims on appeal. 
Although the Notice of Appeal refers to "all 
Defendants," Joint Appendix ("J.A.") at 258, 
the Appellants' brief discusses only Trooper 
Kiefer's defense of qualified immunity. We 
therefore decline to consider any appellate 
issues relating to the other defendants in this 
action. See Ahlers v. Schebil 188 F.3d 365. 
374 (6th Cir.1999) (explaining that issues 
not raised in briefs on appeal may be 
deemed waived).

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I. BACKGROUND
A. Factual Background

Plaintiffs Jose Aguilar and Irma Esparza 
("plaintiffs") are lawfully admitted permanent 
resident aliens. On Sunday, *529 March 26, 1995, 
Aguilar and Esparza were driving from their home in 
Chicago, Illinois, to Toledo, Ohio, to visit family 
members. During this trip, an Ohio State Highway 
Patrol ("OSHP") trooper, Kevin Kiefer, stopped 
Aguilar and Esparza for driving with a faulty 
headlight. After the plaintiffs pulled over. Trooper 
Kiefer approached the plaintiffs' car and asked to see 
Aguilar's driver's license. Aguilar provided Trooper 
Kiefer with a valid Illinois driver's license. Trooper 
Kiefer then ordered Aguilar out of the car and placed 
him in the back of his cruiser.

Almost immediately thereafter, a second OSHP 
cruiser arrived. A trooper from the second cruiser 
walked a drug-sniffing dog around the outside of the 
plaintiffs' vehicle. The dog "alerted," indicating that 
the vehicle contained narcotics. 1FN21

FN2. It was later determined that the dog 
had alerted in error, and that neither of the 
plaintiffs were carrying drugs.

The second trooper then asked Esparza for 
identification. She offered the trooper an Illinois 
identification card, but the trooper reportedly grabbed 
her wallet and removed her green card. The trooper 
then instructed Esparza to step out of the vehicle. 
She was locked in the back ofTrooper Kiefer's cruiser 
next to Aguilar. Trooper Kiefer then demanded to 
see Aguilar's green card. The green cards of both 
Aguilar and Esparza were valid and in force at the 
time of this encounter.

After examining the green cards, the troopers asked 
Aguilar and Esparza where they had obtained their 
green cards and whether they had paid for them. The 
troopers were attempting to inquire whether the 
documents were forged, since green cards are not 
offered for sale. Aguilar and Esparza speak limited 
English, however, and believed that the troopers were 
asking whether they had paid the required processing 
fees. They responded that they had paid for the 
cards, meaning that they had paid all required fees. 
Trooper Kiefer interpreted the plaintiffs' response as 
an indication that the cards were likely forged, and 
retained the green cards for authentication.

**2 Trooper Kiefer was unable to contact the INS to 
verify the authenticity of plaintiffs' green cards at the 
time of the encounter, because it was a Sunday, so he 
took the green cards and let the plaintiffs go. Trooper 
Kiefer "did not issue the plaintiffs a receipt for their 
green cards, tell them when they could expect them 
back if the cards were indeed authentic, or tell them 
where or how to inquire if they had any questions 
about the seizure." Farm Labor Ore. Comm, v. Ohio 
Slate Highway Patrol 95 F.Supp.2d 723, 728 
(N.D.Ohio 20001.

The next day (Monday), the plaintiffs retained an 
attorney. That day, paralegal Arturo Ortiz contacted 
the OSHP on behalf of Aguilar and Esparza, but was 
unable to obtain assistance because he lacked 
information regarding the incident. On Thursday, 
Ortiz again contacted OSHP and spoke to Trooper 
Kiefer. Kiefer returned the green cards personally 
that same day, four days after the initial seizure. 
When asked in his deposition why it took so long to 
verify the green cards, Trooper Kiefer explained that 
he had taken a few days off from work and was 
unable to reach the INS during that time.

The plaintiffs contend that Trooper Kiefer's actions 
were, in part, the product of a pattern and practice by 
the OSHP of questioning motorists about their 
immigration status on the basis of their Hispanic 
appearance. From the record, it appears that the 
OSHP-particularly its Traffic *530 and Drug 
Interdiction Team (TDIT)—began taking a more 
active role in immigration enforcement in 1995. 
Pursuant to this role, OSHP troopers have been 
known to inquire into motorists' immigration status 
during routine traffic stops. When these inquiries 
lead an OSHP trooper to conclude that an individual 
may be an illegal immigrant, the trooper will contact 
the Border Patrol and detain the suspect until the 
Border Patrol arrives. Pursuant to this practice, "the 
OSHP has detained hundreds of motorists who were 
suspected to be illegally in the United States 
following routine traffic stops; such detention, in all 
likelihood, was precipitated by answers given to 
questions regarding the motorists' immigration 
status." Farm Labor Ore. Comm.. 95 F.Supp.2d at 
735. Although the OSHP maintains that it does not 
do so frequently, troopers sometimes seize alien 
registration cards of suspected illegal immigrants and 
deliver them to federal authorities.

B. Procedural History

This case was brought as a class action lawsuit. The 
plaintiff class (the "class") is composed of migrant

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workers who claim that the OSHP has violated their 
constitutional rights by interrogating them about their 
immigration status, and, in some cases, confiscating 
immigration documents, on the basis of their 
Hispanic appearance. The class's initial motion for a 
preliminary injunction to enjoin this practice was 
deniedwithout prejudice, because none of the named 
plaintiffs had ever been stopped, and the class 
therefore lacked standing. Farm Labor Org. Comm. 
v. Ohio State Highway Patrol, 991 F.Supp. 895, 899 
(N.D.Ohio 1997). The class subsequently amended 
its complaint to add plaintiffs Jose Aguilar and Irma 
Esparza, who were stopped by the OSHP. The district 
court then granted in part the class's request for a 
preliminary injunction, ordering the OSHP to (1) 
refrain from questioning motorists about their 
immigration status absent consent or reasonable 
suspicion based upon articulable objective facts, (2) 
refrain from seizing immigration documents without 
"lawful cause for doing so," and (3) provide effective 
substitutes for any immigration documents seized. 
Id. at 907.

**3 On August 17, 1998, the district court certified 
the class under Federal Rule of Civil Procedure 
23(b)(2). Farm Labor Ora. Comm, v. Ohio State 
Highway Patrol. 184 F.R.D. 583 (N.D.Ohio 1998). 
On September 8, 1999, the district court issued an 
order granting summary judgment to all defendants, 
except Trooper Kevin Kiefer, on the class's Fourth 
Amendment claims. The court granted the motion of 
plaintiffs Aguilar and Esparza for summary judgment 
against Trooper Kiefer based upon the claim that 
Trooper Kiefer had unreasonably detained their green 
cards for four days after the March 26, 1995, stop. 
The court found that questioning regarding 
immigration status, however, did not offend the 
Fourth Amendment, so long as it took place pursuant 
to lawful traffic stops and the duration of these stops 
was not extended beyond the time required to 
complete the legitimate purposes of a traffic stop. 
The court found that the questioning of Aguilar and 
Esparza took place after the police had probable 
cause to perform a search for narcotics, based upon 
the alert of the drug detection dog. Consequently, the 
questioning of Aguilar and Esparza regarding their 
immigration status did not violate the Fourth 
Amendment. The district court also dissolved the 
preliminary injunction it issued on December 8, 
1997.

The class subsequently moved for reconsideration of 
the September 8th order. The class asserted that the 
September 8th order failed to address a number of 
matters, *531 including its motion for injunctive

relief under Title VI, the status of class-wide claims 
for injunctive relief under the Fourth Amendment, 
and claims for relief under the Equal Protection 
Clause of the Fourteenth Amendment.

On April 20, 2000, the district court granted the 
motion for reconsideration in part and denied it in 
part. Farm Labor Org. Comm., 95 F.Supp.2d 723. 
The court found that the class lacked standing for 
class-wide injunctive relief, because the named 
plaintiffs had been stopped only once and the court 
did not find a sufficient likelihood that they would be 
subjected to similar practices again in the future. Id. 
at 730-33 (citing C/7v o f Los Angeles v. Lyons. 461 
U.S. 95. 103 S.Ct. 1660. 75 L.Ed.2d 675 (1983)). 
The court found that plaintiffs Aguilar and Esparza 
did have standing to sue for damages on an equal 
protection theory, however. Id. at 730, The district 
court then denied Trooper Kiefer's motion for 
summary judgment based upon qualified immunity, 
and granted Aguilar's and Esparza's motions for 
summary judgment against Trooper Kiefer on their 
equal protection claims. The court found that Aguilar 
and Esparza had presented sufficient evidence to 
make a prima facie case that Trooper Kiefer targeted 
them for investigation regarding their immigration 
status solely on the basis of their being Hispanic. Id. 
at 737. The court further concluded that Trooper 
Kiefer had failed to offer any legitimate race-neutral 
explanation for the investigation. Id. at 738. The 
court also denied summary judgment based upon 
qualified immunity to certain of Trooper Kiefer's 
superior officers in connection with Aguilar's and 
Esparza's claims against them in their individual 
capacities for deliberate indifference to Aguilar's and 
Esparza's constitutional rights. Id. at 741, Finally, 
the district court granted summary judgment to all 
defendants in connection with the class's Title VI 
claims, because the class failed to demonstrate a 
sufficient nexus between federal funds provided to 
the OSHP and the challenged activity. Id. at 743.

II. ANALYSIS
A. Jurisdiction

**4 f i l m In Mitchell v. Forsyth, 472 U.S. 511. 530. 
105 S.Ct. 2806. 86 L.Ed.2d 411 (1985). the Supreme 
Court held that denials of summary judgment on the 
basis of qualified immunity, to the extent that such 
orders turn on issues of law, are immediately 
appealable under the "collateral order" doctrine 
articulated in Cohen v. Beneficial Indus. Loan Corp,, 
337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 
Pursuant to this doctrine, federal appellate courts 
have jurisdiction to hear interlocutory appeals

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concerning "the legal question of qualified immunity, 
i.e., whether a given set of facts violates clearly 
established law." Mattox v. Ciw o f Forest Park, 183 
F.3d 515, 519 (6th Cir.1999). Conversely, denials of 
qualified immunity may not be reviewed on 
interlocutory appeal insofar as "a defendant simply 
wants to appeal a district court's determination that 
the evidence is sufficient to permit a particular 
finding of fact after trial." Johnson v. Jones. 515 
U.S. 304, 314, 115 S.Ct. 2151, 132 L.Ed.2d 238 
(1995). For the purposes of this appeal, therefore, we 
assume the plaintiffs' version of the facts is true, and 
ask whether, given such facts, the plaintiffs have 
demonstrated that Trooper Kiefer violated their 
clearly established rights under the Fourth and 
Fourteenth Amendments. 1FN31

FN3. The dissent argues that we do not have 
jurisdiction to consider defendant's appeal 
on the Fourth Amendment issue because 
Trooper Kiefer has not accepted plaintiffs' 
version of the facts. We disagree. In his 
brief, Trooper Kiefer clearly states that he 
"does not dispute the facts found by the 
District Court." Appellant's Br. at 5. 
Morever, even if the parties were not in 
agreement on the facts, we still would have 
jurisdiction to decide the legal question of 
qualified immunity—i.e., whether, assuming 
the plaintiffs' version of the facts to be true, 
the plaintiffs have shown a violation of their 
clearly established constitutional rights. 
Johnson merely establishes that we lack 
jurisdiction over "a portion of a district 
court's summary judgment order that, 
though entered in a 'qualified immunity' 
case, determines only a question of 
'evidence sufficiency,' i.e., which facts a 
party may, or may not, be able to prove at 
trial." 515 U.S. at 313, 115 S.Ct. 2151. For 
example, we would not have jurisdiction 
over Kiefer's appeal if his argument were 
merely that the plaintiffs cannot prove that 
he seized their green cards. Such an "[I] 
didn't do it" defense would present a 
Johnson problem. Id. at 316. 115 S.Ct. 
2151. Nevertheless, Johnson does not 
preclude our review of purely legal 
questions, such as whether a given set of 
facts alleged by the plaintiffs would 
demonstrate a constitutional violation. *

*532 B. Standard of Review

[31 We review' de novo a district court's denial of 
summary judgment on qualified immunity grounds, 
because the determination of whether qualified 
immunity is applicable to an official's actions is a 
question of law. Dickerson v. McClellan, 101 F.3d 
1151, 1157 (6th Cir.1996). Summary judgment is 
proper only when there is no dispute as to a material 
question of fact and the moving party is entitled to a 
judgment as a matter of law. Fed.R.Civ.P, 56(c).

[41[51[6]f71[81 According to the doctrine of qualified 
immunity, "government officials performing 
discretionary functions generally are shielded from 
liability for civil damages insofar as their conduct 
does not violate clearly established statutory or 
constitutional rights of which a reasonable person 
would have knowu." Harlow v, Fitzgerald, 457 U.S. 
800. 818, 102 S.Ct. 2727. 73 L,Ed.2d 396 11982). 
Qualified immunity involves a two- step inquiry. 
First, the court considers whether "[tjaken in the light 
most favorable to the party asserting the injury, ... the 
facts alleged show [that] the officer's conduct 
violated a constitutional right." Saucier v. Katz, 533 
U.S. 194, 121 S.Ct. 2151, 2156, 150 L,Ed.2d 272 
(2001). If the court finds a constitutional violation 
has been demonstrated, it must then consider whether 
the violation involved " 'clearly established 
constitutional rights of which a reasonable person 
would have known.' " Dickerson. 101 F.3d at 1158 
(quoting Christophel v. Kukulinskv. 61 F,3d 479. 484 
(6th Cir.1995)): see also Saucier. 121 S.Ct. at 2156. 
For a right to be clearly established, " '[t]he contours 
of the right must be sufficiently clear that a 
reasonable official would understand that what he is 
doing violates that right.' " Russo v, Cit\> of 
Cincinnati. 953 F,2d 1036. 1042 (6th Cir.1992) 
(quoting Anderson v. Creighton. 483 U.S. 635. 639. 
107 S.Ct. 3034, 97 L,Ed.2d 523 (1987)). "Although 
it need not be the case that 'the very action in 
question has been previously held unlawful, ... in the 
light of pre-existing law the unlawfulness must be 
apparent.' " hi (quoting Anderson. 483 U.S. at 640. 
107 S.Ct. 3034), As the Supreme Court has recently 
explained, "officials can still be on notice that their 
conduct violates established law even in novel factual 
circumstances." Hope v. Pelzer, — U.S. — . 122 
S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002).
"Although earlier cases involving 'fundamentally 
similar' facts can provide especially strong support 
for a conclusion that the law is clearly established, 
they are not necessary to such a finding." [d_

C. Equal Protection

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**5 Plaintiffs allege that Trooper Kiefer violated 
their rights under the Equal Protection Clause of the 
Fourteenth Amendment *533 by targeting them for 
investigation concerning immigration status and 
seizing their green cards because of their Hispanic 
appearance. The district court found that the 
plaintiffs presented sufficient evidence to show that 
they were targeted for questioning about their 
immigration status solely because of their Hispanic 
appearance, and that the OSHP and Trooper Kiefer 
had failed to articulate a race-neutral reason for 
questioning the plaintiffs. The court therefore denied 
Trooper Kiefer's motion for summary judgment 
based upon his defense of qualified immunity and 
granted partial summary judgment to the plaintiffs on 
the issue of liability. Trooper Kiefer contends that he 
is entitled to qualified immunity because the 
undisputed facts show that his inquiries into the 
plaintiffs' immigration status were motivated by the 
plaintiffs' difficulties speaking and understanding 
English, which he contends is a legitimate race- 
neutral reason for the investigative steps taken.

1. Constitutional Violation

f9ir 101 In assessing Trooper Kiefer's claim of 
qualified immunity, we first determine whether the 
facts, viewed in the light most favorable to the 
plaintiffs, show a violation of the plaintiffs' 
constitutional rights. Dickerson. 101 F.3d at 1158. 
The plaintiffs allege that Trooper Kiefer singled them 
out for inquiry into their immigration status on the 
basis of their Hispanic appearance during the course 
of a lawful traffic stop. The plaintiffs do not 
challenge the validity of their initial stop for a faulty 
headlight. Nor do they assert that the questioning 
exceeded the permissible scope of the stop under the 
Fourth Amendment. Nevertheless, as this court has 
recognized, "[t]he Equal Protection Clause of the 
Fourteenth Amendment provides citizens a degree of 
protection independent of the Fourth Amendment 
protection against unreasonable searches and 
seizures." United Slates v. Aven. 137 F.3d 343, 352 
(6th Cir. 1997). Similarly, the Supreme Court, in 
Whren v. United States, confirmed that an officer's 
discriminatory motivations for pursuing a course of 
action can give rise toan Equal Protection claim, even 
where there are sufficient objective indicia of 
suspicion to justify the officer's actions under the 
Fourth Amendment:

We of course agree with petitioners that the 
Constitution prohibits selective enforcement of the 
law based on considerations such as race. But the 
constitutional basis for objecting to intentionally 
discriminatory application of laws is the Equal

Protection Clause, not the Fourth Amendment. 
Subjective intentions play no role in ordinary, 
probable-cause Fourth Amendment analysis.

517 li.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 
(1996). Therefore, if the plaintiffs can show that they 
were subjected to unequal treatment based upon their 
race or ethnicity during the course of an otherwise 
lawful traffic stop, that would be sufficient to 
demonstrate a violation of the Equal Protection 
Clause. Cf. United States v, Montero-Camargo, 208 
F.3d 1122, 1135 (9th Cir.) (en banc) (holding that 
equal protection principles precluded use of Hispanic 
appearance as a relevant factor for Fourth 
Amendment individualized suspicion requirement), 
cert, denied. 531 U.S. 889, 121 S.Ct. 211, 148 
L.Ed.2d 148 (20001.

**6 [ 1 nri2iri3iri4iri5iri6iri71 The Supreme 
Court has explained that a claimant alleging selective 
enforcement of facially neutral criminal laws must 
demonstrate that the challenged law enforcement 
practice "had a discriminatory effect and that it was 
motivated by *534 a discriminatory purpose." TFN4] 
Havre v. United States, 470 U.S. 598, 608, 105 S.Ct. 
1524, 84 L.Ed.2d 547 119851. "To establish 
discriminatory effect in a race case, the claimant must 
show that similarly situated individuals of a different 
race were not prosecuted." United States v. 
Armstrong, 517 U.S. 456. 465, 116 S.Ct. 1480. 134 
L.Ed.2d 687 (19961. A claimant can demonstrate 
discriminatory effect by naming a similarly situated 
individual who was not investigated or through the 
use of statistical or other evidence which "addressfes] 
the crucial question of whether one class is being 
treated differently from another class that is 
otherwise similarly situated." Chavez v. III. State 
Police, 251 F,3d 612, 638 17th Cir.20011.
Discriminatory purpose can be shown by 
demonstrating that the " 'decisionmaker ... selected or 
reaffirmed a particular course of action at least in part 
'because of,' not merely 'in spite of,' its adverse 
effects upon an identifiable group.' " Wavte, 470 
U.S. at 610, 105 S.Ct. 1524 (quoting Personnel 
Adtn'r o f Mass, r. Feeney, 442 U.S. 256. 279. 99 
S.Ct. 2282, 60 L,Ed.2d 870 (197911. Determining 
whether official action was motivated by intentional 
discrimination "demands a sensitive inquiry into such 
circumstantial and direct evidence of intent as may be 
available." Village o f Arlington Heights v. Metro. 
Hous. Dev. Com.. 429 U.S. 252, 266. 97 S.Ct. 555. 
50 L,Ed.2d 450 (1977). "(A]n invidious
discriminatory purpose may often be inferred from 
the totality of the relevant facts, including the fact, if 
it is true, that the [practice] bears more heavily on 
one race than another." Washington v. Davis. 426

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U.S. 229, 242. 96 S.Ct. 2040,48 L.Ed.2d 597 (1976).

FN4. We note that the record contains no 
indication that the OSHP employs explicit 
racial criteria or admits to racially-motivated 
decision making. If such a showing could 
be made, the plaintiffs would not need to 
establish the existence of a similarly situated 
class that was not investigated. See Brown 
v. City o f Oneonta, 221 F.3d 329, 337 (2d 
Cir.2000) ("[I]t is not necessary to plead the 
existence of a similarly situated non­
minority group when challenging a law or 
policy that contains an express, racial 
classification."), cert, denied, — U.S. — . 
122 S.Ct. 44, 151 L.Ed.2d 16 (20011: cf 
United Stores v. Ovalle. 136 F.3d 1092. 
1104-05 (6th Cir.19981 (holding that it is 
unnecessary for criminal defendant to 
establish three-prong test for discrimination 
in grand jury selection where there is direct 
evidence of exclusion based upon race). "In 
its more recent pronouncements on laws 
based on racial classifications, the Supreme 
Court has started 'from the premise that 
[l]aws that explicitly distinguish between 
individuals on racial grounds fall within the 
core of [the Equal Protection Clause's] 
prohibition.' " Ovalle. 136 F.3d at 1105 
(quoting Miller v, Johnson, 515 U.S. 900. 
905. 115 S.Ct. 2475. 132 L.Ed,2d 762 
(1995)). Where the state adopts explicit 
racial criteria, strict scrutiny will 
automatically be applied, even in the 
absence of evidence of discriminatory 
purpose. Havre, 470 U.S. at 610 n. 10. 105 
S.Ct. 1524: Hunt v. Cromartie, 526 U.S.
541, 546, 119 S.Ct. 1545, 143 L.Ed.2d 731 
(1999) ("When racial classifications are 
explicit, no inquiry into legislative purpose 
is necessary.").

This framework has been applied in a number of 
cases in this and other circuits involving allegations 
of discriminatory police enforcement practices. See, 
e g, United States v. Bullock. 94 F.3d 896, 899 (4th 
Cir, 1996) (applying selective enforcement test to 
criminal defendant's claim that officer tended to 
escalate traffic stops of young black males into drug 
investigations); United States v. Bell, 86 F.3d 820. 
823 (8th Cir.) (holding that defendant was required to 
demonstrate discriminatory effect to sustain defense 
based upon theory that police enforced bicycle

headlight law only against black offenders), cert, 
denied. 519 U.S. 955, 117 S.Ct, 372. 136 E.F.d.2d 
262 (1996): United States v. Anderson. 923 F,2d
450. 453-54 (6th Cir.) (applying selective prosecution 
framework to defendant's claim that he was singled 
out by the police *535 for a background check for 
prior felonies following his arrest), cert, denied, 499 
U.S. 980, 111 S.Ct. 1633. 1 13 L.Ed.2d 729. and 500 
U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 467 (1991). 
Many of these cases involved i; 1983 equal 
protection claims similar to those presented by the 
plaintiffs in the instant case. See Chavez. 251 F,3d at 
63:>-36 (applying discriminatory
purpose/discriminatory effect test in class action suit 
alleging that state police used racial classifications in 
deciding whom to stop, detain, and search in 
enforcing traffic laws); Gardenhire v. Schubert. 205 
F.3d 303, 318 (6th Cir.2000) (applying selective 
prosecution test to $ 1983 claim alleging that police 
made racially motivated decision to pursue theft 
investigation against interracial couple); Stemler v. 
Orv of Florence. 126 F.3d 856, 873 (6th Cir. 1997) 
(applying selective prosecution test to $ 1983 claim 
alleging that police arrested plaintiff because they 
believed she was a lesbian), cert, denied, 523 U.S. 
1118, 118 S.Ct. 1796. 140 L.Ed.2d 936 (1998).

**7 In its April 20, 2000, order, the district court 
determined that the plaintiffs had presented sufficient 
evidence to prove the requisite facts for a prima facie 
case of intentional discrimination under the selective 
prosecution framework. J.A. at 239 ("I find that 
plaintiffs have satisfied their prima facie burden...."). 
After reviewing the record, the district court initially 
determined that plaintiffs had advanced sufficient 
evidence to support a factual finding that " 'the 
decision makers in [their] case acted with 
discriminatory purpose.' " J.A. at 238 (quoting 
McCleskev v. Kenw. 481 U.S. 279, 292, 107 S.Ct. 
1756, 95 L.Ed.2d 262 (1987)1. The court noted that 
the record contained a range of circumstantial 
evidence supporting such a finding of intent. Perhaps 
most significantly, the court cited the deposition 
testimony of Kiefer and other OSHP officials:

Trooper Kiefer ... testified that when he found 
Hispanic passengers hiding under a blanket, he 
called the Border Patrol, but that if he found white 
people hiding under a blanket, he would not. Sgt. 
Elling likewise testified that he would not call the 
Border Patrol regarding a motorist [ ]unless [”][he] 
would think that they would probably be Hispanic 
in nature." And Trooper Pahl admitted that she 
once had contacted the Border Patrol after coming 
across two Hispanic men whose car had broken 
down, but that she wouldn't do the same for a white

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man.
J.A. at 242 (citations omitted). The court also cited 

additional circumstantial evidence of discriminatory 
intent. The court noted that over ninety percent of 
OSHP's immigration inquiries concerned Hispanic 
motorists. The court also appears to have credited 
plaintiffs' argument that "[gjiven defendants' 
admitted lack of training in the identification of 
illegal immigrants, the only reasoned basis on which 
to question a motorist about immigration status ... is 
the motorist's Hispanic appearance coupled with 
indicators of Hispanic ethnicity." J.A. at 240-41. 
The district court also observed that "TD1T provides 
officers with a list of immigration related questions 
along with their Spanish translations, but there is no 
evidence that such translations are provided in any 
other languages." J.A. at 241. Finally, the court 
discussed a videotape of a traffic stop in which 
Trooper Kiefer pulled over a car containing three 
Hispanic individuals for "driving slightly above the 
speed limit." J.A. at 242. During the stop, Kiefer 
questioned the driver and two passengers about their 
immigration status even after the individuals 
presented valid state identification cards and after 
Kiefer had decided not to issue a speeding citation. 
The court appears to have accepted plaintiffs' 
characterization of the tape as supporting an *536 
inference that the individuals in the vehicle "were 
questioned about their immigration status solely on 
the basis of their Hispanic appearance, because 
nothing about their conduct suggested that they were 
in the country illegally; indeed. Trooper Kiefer had 
been prepared to release [the driver] so long as [his] 
license cleared." J.A. at 243. **

**8 As to the discriminatory effect prong, the district 
court observed that "[t]he burden rests on plaintiffs 
to show, by a preponderance of the evidence, that 
they were treated differently than similarly situated 
non-minorities." J.A. at 238. The court considered, 
and rejected, defendants' argument that "no evidence 
presented thus far indicates that Hispanic motorists 
are treated differently than non-Hispanic motorists." 
J.A. at 243. The court concluded that plaintiffs' 
evidence was sufficient to permit a finding that 
similarly situated non-Hispanic motorists were 
treated differently, observing that 

Plaintiffs have introduced direct evidence that 
Hispanic motorists are treated differently than 
white motorists. Trooper Kiefer, Sgt. Elling, and 
Trooper Pahl all testified that, in their experience, 
they would refer Hispanic motorists to the Border 
Patrol when, in precisely the same circumstances, 
they would not refer someone who was white (i.e., 
not of Hispanic appearance).

J.A. at 243-44. The district court noted that this 
finding was supported by additional "inferential 
evidence of a discriminatory practice," including the 
fact that "most motorists ... [who were] asked about 
their green cards were Hispanic-looking" and 
defendants' misinformation and lack of training 
concerning what facts give rise to reasonable 
suspicion of immigration violations. J.A. at 244.

[ 1811191 Because this is an interlocutory appeal, we 
do not consider whether the plaintiffs' evidence is 
sufficient to present a genuine issue for trial as to the 
underlying factual elements of their selective 
enforcement claim-i.e., whether plaintiffs' evidence 
could support a finding that Trooper Kiefer actually 
did target the plaintiffs in part because of their 
Hispanic appearance or that the OSHP does not 
investigate non-Hispanic motorists who are similarly 
situated to the plaintiffs. 1FN51 Under Johnson. 515 
U.S. at 317, 115 S.Ct. 2151, we lack jurisdiction on 
interlocutory appeal of a denial of qualified immunity 
to review the district court's determination that 
plaintiffs have presented sufficient evidence to prove 
the underlying or basic *537 facts alleged in support 
of their constitutional claim. Williams v. Mehra. 186 
F.3d 685, 690 (6th Cir. 1999) (en banc) (observing 
that appellate court lacked jurisdiction to consider 
factual questions relating to defendants' knowledge 
and conduct). Questions of evidentiary sufficiency 
are not separate and distinct from the merits of 
plaintiffs claims, and review of such questions on 
interlocutory appeal "can consume inordinate 
amounts of appellate time" by requiring the appeals 
court to comb a voluminous pretrial record to assess 
plaintiffs' evidence. Johnson. 515 U.S. at 316, 115 
S.Ct. 2151. This limitation on our appellate 
jurisdiction applies with particular force to evidence 
sufficiency questions relating to a defendant's intent, 
such as whether a defendant acted with a 
discriminatory purpose. See ijl^ McCloud v. Testa. 
97 F.3d 1536, 1544-45 (6th Cir.19971 ("[T]he 
example that the Johnson Court chose to illustrate 
what kinds of cases it wanted to prevent the courts of 
appeals from exercising jurisdiction over focused on 
intent...."). "[T]o determine whether there is or is not 
a triable issue of fact about such a matter [as the 
defendant's intent] may require reading a vast pretrial 
record, with numerous conflicting affidavits, 
depositions, and other discovery materials. This fact 
means, compared with Mitchell, greater delay." 
Johnson. 515 U.S. at 316, 115 S.Ct. 2151. Thus, our 
review in the instant case is confined to the question 
of whether "all of the conduct which the District 
Court deemed sufficiently supported for purposes of 
summary judgment met the Harlow standard of

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'objective legal reasonableness.' " Behrens v. 
Pelletier. 516 U.S. 299, 313, 116 S.Ct. 834, 133 
L.Ed.2d 773 (1996). The district court concluded 
that the plaintiffs had presented sufficient evidence 
from which a trier of fact could find that the 
defendants, including defendant Kiefer, acted with a 
discriminatory purpose and did not initiate 
immigration investigations of non-Hispanic motorists 
who were otherwise similarly situated to the 
plaintiffs. We therefore assume, without deciding, 
for the purposes of this appeal that the plaintiffs can 
prove these underlying factual claims. Johnson. 515 
U.S. at 319, 115 S.Ct72151 (”[T]he court of appeals 
can simply take, as given, the facts that the district 
court assumed when it denied summary 
judgment....").

FN5. Since we decline to address the 
sufficiency of the plaintiffs' evidence to 
show the underlying factual elements of a 
selective enforcement claim, we likewise do 
not consider the propriety of the district 
court's partial grant of summary judgment to 
the plaintiffs on the issue of Fourteenth 
Amendment liability. We note, however, 
that even a cursory review of the record 
reveals, for example, that Kiefer and other 
OSHP officials deny selecting motorists for 
immigration interviews based upon Hispanic 
appearance. If a trier of fact believed this 
testimony, it would negate the intent 
element of plaintiffs' equal protection claim. 
The record contains other factual disputes as 
well. For example, Kiefer maintains in his 
deposition that only about half of the 
motorists he questions concerning 
immigration violations are Hispanic, which 
conflicts with the district court's 
determination that nearly all immigration 
investigations are initiated against Hispanic 
motorists. It seems apparent, therefore, that 
the record is not as one-sided as the district 
court believed. Thus, although we are 
without jurisdiction to review the court's 
grant of summary judgment to the plaintiffs 
on the Fourteenth Amendment issue, we do 
think the grant of summary judgment likely 
was premature, and we suggest that the 
district court reconsider this decision on 
remand. In any event, the defendant 
remains free to challenge the grant of 
summary judgment on the Fourteenth 
Amendment claim following a final order 
from the district court.

**9 [201 Perhaps realizing this limitation on the 
range of issues appealable on interlocutory appeal, 
defendant Kiefer does not dispute that the plaintiffs 
have made a prima facie showing of discriminatory 
effect and discriminatory purpose. Instead, Kiefer 
properly limits his appeal to "neat abstract issues of 
law" relating to qualified immunity—i.e., whether the 
facts alleged by the plaintiffs demonstrate a violation 
of clearly established law. Id. at 317, 115 S.Ct. 2151 
(quotation omitted). Kiefer first argues that, 
assuming plaintiffs have shown that he targeted them 
for investigation in part because of their Hispanic 
appearance, the facts alleged by the plaintiffs do not 
demonstrate that he targeted them solely because of 
their apparent ethnicity. Kiefer argues that the 
undisputed facts reveal that he was motivated at least 
in part by plaintiffs' inability to speak English, which 
he alleges to be a valid race-neutral basis for 
initiating an immigration investigation. [FN61

FN6. The defendant also asserts in his reply 
brief that the alert of the drug-sniffing dog 
provided a race-neutral reason to inquire 
into immigration status and inspect resident 
alien cards. We think this argument is 
without merit. Lieutenant Healy of the 
TDIT admitted the presence of narcotics 
bears no rational relation to the likelihood 
that the drivers are illegal immigrants, and 
the defendant concedes this point in his 
reply brief. Appellant's Reply Br. at 3. 
Instead, the defendant contends that because 
the Vienna Convention requires foreign 
nationals to be informed of their right to 
communicate with a consular officer of their 
home country if they are arrested or 
imprisoned, the defendant had a racially- 
neutral reason to inquire into the plaintiffs' 
immigration status-namely, to determine 
whether information consistent with the 
Vienna Convention needed to be given. 
This argument appears to have been raised 
for the first time in the defendant's reply 
brief on appeal, and it is not supported by 
any evidence in the record, so we decline to 
consider it. The defendant points to no 
evidence in the record to show that it is the 
practice of the OSHP to provide such 
information to arrested foreign nationals. 
Nor is there any evidence in the record that 
Trooper Kiefer considered the requirements 
of the Vienna Convention when deciding

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whether to pursue an investigation of the 
plaintiffs' immigration status.

*538 Kiefer relies on our opinion in United States v. 
Travis, 62 F.3d 170 (6th Cir. 1995). cert, denied, 516 
U.S. 1060, 116 S.Ct. 738, 133 L.Ed.2d 688 (19961. 
for the proposition that a civil-profiling plaintiff must 
prove that he or she was targeted solely because of 
his or her race. In Travis, this circuit held that 
"consensual searches may violate the Equal 
Protection Clause when they are initiated solely 
based on racial considerations." Id. at 173. The legal 
standard articulated in Travis does appear to place the 
burden on the plaintiff to show that no race-neutral 
motives played a role in the challenged police 
conduct. Specifically, the Travis court explained that 
where "officers ... decide to interview a suspect for 
many reasons, some of which are legitimate and 
some of which [are] based on race[,] .... the use of 
race in the pre-contact stage does not give rise to any 
constitutional protections." Id. at 174.

[211 Nevertheless, we think it would be 
inappropriate to apply Travis to the factual 
circumstances presented in the instant case. Travis 
and its progeny, particularly United States v. Averw 
137 F.3d 343 (6th Cir.1997). addressed equal 
protection challenges to consensual police interviews 
of airport travelers, which were allegedly initiated 
based upon racial criteria. This circuit has never used 
the Travis standard in cases alleging racially 
discriminatory conduct by officers toward an 
individual who has already been detained, and who is 
therefore not free to leave and terminate the 
encounter at will. As our earlier discussion of the 
relevant case law makes clear, this circuit and our 
fellow courts of appeals have consistently applied the 
selective enforcement framework of IVavte and 
Armstrong in cases involving non-consensual police 
encounters. We see no reason to depart from this 
approach in the instant case. The selective 
enforcement framework does not require a plaintiff to 
show that the defendant had no race-neutral reasons 
for the challenged enforcement decision. Instead, it 
is enough to show that the challenged action was 
taken "at least in part 'because of ... its adverse 
effects upon an identifiable group.' " Wav re, 470 
U.S. at 610, 105 S.Ct. 1524 (quoting Feeney, 442 
U.S. at 279, 99 S.Ct. 22821. **

**10 1221 The "sole motive" requirement announced 
in Travis is an anomaly in equal protection law, and 
should not be applied outside the narrow factual 
context of purely consensual encounters. The only

legal authority cited by the Travis court for its "sole 
motive" analysis was the Supreme Court's decision in 
Mt. Healthy C'in’ School District Board o f Education 
v. Doric, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 
(1977). a First Amendment retaliation case. 
Flowever, Mt. Healthy merely announced that the 
presence of an impermissible motive will not give 
rise to a constitutional violation if the state can show 
that the challenged decision would *539 have been 
made regardless of the improper motive. Id. at 286- 
87. Mt. Healtln does not limit constitutional liability 
to instances in which an impermissible purpose was 
the sole motive for an adverse action; it simply 
requires an inquiry into whether the impermissible 
motive was a "but for" cause of the challenged 
decision. The same multiple-motive analysis applies 
in the equal protection arena: proof that a decision 
was "motivated in part by a racially discriminatory 
purpose .... shiftfs] to the [defendant] the burden of 
establishing that the same decision would have 
resulted even had the impermissible purpose not been 
considered." Arlington Heights, 429 U.S. at 270 n, 
21, 97 S.Ct. 555; see also Hunter v. Underwood. 471 
I S. 222, 232, 105 S.Ct. 1916, 85 L.Ed.2d 222 
(1985): Howard v. Senkowski, 986 F.2d 24. 30 (2d 
Cir, 1993) (applying Mt. Healthy/Arlington Heights 
multiple-motive analysis to claim of race-based use 
of peremptory strikes). Indeed, the Supreme Court 
has clearly explained that the Equal Protection Clause 
"does not require a plaintiff to prove that the 
challenged action rested solely on racially 
discriminatory purposes." Arlington Heights. 429 
U.S. at 265, 97 S.Ct. 555. Thus, we believe that 
Travis is in fact inconsistent with the Supreme 
Court's approach in Mt. Healthy and other multiple- 
motive cases involving equal protection issues. For 
that reason, we decline to extend the standard 
articulated in Travis beyond the narrow factual 
situation addressed in that case.

[2311241 Thus, even if Trooper Kiefer is correct that 
the record reveals that he possessed some race-neutral 
basis for initiating the investigation of the plaintiffs, 
this fact alone would not entitle him to summary 
judgment on qualified immunity as long as the 
plaintiffs can demonstrate that he was partly 
motivated by a discriminatory purpose. Of course, 
Trooper Kiefer can still argue, based upon Mt. 
Healthy and Arlington Heights, that his race- neutral 
reasons would have caused him to investigate the 
plaintiffs regardless of any discriminatory motive that 
may have existed. The question of whether Trooper 
Kiefer's allegedly discriminatory motive played a 
determinative role in the decision to investigate the 
plaintiffs, however, is a factual dispute best suited for

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resolution at trial.

[251 Moreover, we disagree with Trooper Kiefer's 
contention that the plaintiffs’ difficulty speaking 
English necessarily establishes a valid race- neutral 
basis for initiating an immigration investigation. 
Kiefer relies on United States v. Ortiz, 422 U.S. 891. 
897, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). in which 
Supreme Court identified one's "inability to speak 
English" as one of many factors that may be taken 
into account in deciding whether there is probable 
cause to search a private vehicle for illegal aliens. 
According to Kiefer, Ortiz conclusively establishes 
that officers lawfully may select individuals for 
immigration investigations based upon their inability 
to speak English.

**11 We think Ortiz provides little guidance in the 
instant case. Ortiz was a Fourth Amendment case 
involving automobile searches at a Border Patrol 
checkpoint less than 100 miles from the U.S.- 
Mexican border. The respondent in Ortiz did not 
raise a Fourteenth Amendment claim and the Court 
mentioned the use of one's English-speaking ability 
as a basis for selection only once in a laundry list of 
factors that might be used in deciding whether there 
is probable cause to refer an automobile for further 
inspection, h i  The Ortiz Court therefore had no 
occasion to consider fully the equal protection 
implications raised when motorists are targeted for 
immigration investigations on the basis of their lack 
of familiarity with the English language. Moreover, 
the Supreme Court *540 has cautioned against 
extending the logic of border enforcement cases to 
situations remote from the border, where the 
government interest in immigration policing may be 
less compelling. See United States v. Martinez- 
Fuerte, 428 U.S. 543. 564 n. 17, 96 S.Ct. 3074, 49 
L.Ed.2d 1 116 (1976): accord United States v.
Brienoni-Ponce. 422 U.S. 873, 881, 95 S.Ct. 2574, 
45 L.Ed.2d 607 (1975) (noting that in the Fourth 
Amendment context, certain practices may be 
permitted at the border in part "because of the 
importance of the governmental interest at stake ... 
and the absence of practical alternatives for policing 
the border").

The Supreme Court did consider the equal protection 
implications of using language as a basis for selection 
in Hernandez v. New York, 500 U.S. 352. 1 1 1 S.Ct. 
1859. 114 L.Ed.2d 395 (1991). In Hernandez, the 
Court cautioned that when a government official uses 
as a criterion for decision a person's ability to speak a 
particular language that is closely associated with a 
specific ethnic group, that fact may "raise[ ] a

plausible, though not a necessary, inference that 
language might be a pretext for what in fact were 
race-based" actions. Id. at 363, 111 S.Ct. 1859. In 
Hernandez, a prosecutor struck several Hispanic 
individuals from a criminal defendant's petit jury. 
Among the reasons articulated by the prosecutor for 
the strikes was the fact that the jurors were bilingual 
in English and Spanish and might therefore not 
accept the interpreter's account of the testimony of 
some of the prosecution's key witnesses, who were 
Spanish-speaking. The trial court found that the 
criminal defendant had shown a prima facie case of 
race-based challenges, but concluded that the 
prosecutor's proffered reasons were legitimate. The 
Court approved the trial court's conclusion, 
explaining that the question of whether the 
prosecutor’s explanation was genuine or mere pretext 
masking an intent to discriminate was a "pure issue of 
fact" that turned largely upon credibility assessments 
and demeanor observations. Id. at 364, 111 S.Ct. 
1859,

[261 Considering Ortiz in light of Hernandez, we 
think that an officer's reliance upon a suspect's 
inability to speak English may be a proper race- 
neutral factor, but that fact questions as to pretext are 
necessarily present where an officer acts based upon 
the fact that a suspect speaks Spanish due to the close 
connection between the Spanish language and a 
specific ethnic community, such as the large migrant 
labor community in Northwest Ohio. In light of this 
principle, it may be that genuine issues of material 
fact exist as to whether Trooper Kiefer's reliance on 
plaintiffs' inability to speak English was a legitimate 
race-neutral reason or a mere pretext for 
discrimination. The district court concluded that 
plaintiffs' evidence permitted the inference that 
OSHP officers focus on motorists' English-speaking 
ability largely because it is an "indicatorf ] of 
Hispanic ethnicity." J.A. at 241. The district court 
particularly emphasized the fact that "the TDIT 
provides officers with a list of immigration related 
questions in English along with their Spanish 
translations, but there is no evidence that such 
translations are provided in any other languages." 
J.A. at 241. In contrast, OSHP officers dispute that 
they question only Spanish-speaking motorists. See 
Elling Dep. at 35 (noting that OSHP has questioned 
Polish persons who spoke "broken English"). This 
appears to be a factual dispute best suited to 
resolution at trial, and therefore it is not a proper 
basis for granting summary judgment to the 
defendant on qualified immunity.

2. Whether the Relevant Law Was Clearly

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Established

**12 f271 Trooper Kiefer contends that, even if his 
actions did constitute a violation *541 of the 
plaintiffs' constitutional rights, these rights were not 
clearly established at the time of the challenged 
encounter. In particular, the defendant argues that this 
circuit did not recognize the existence of the rights 
asserted by the plaintiffs until our decision in Travis. 
62 F.3d 170, which was handed down in August of 
1995, more than four months after the events in 
question. TFN71 As noted in the foregomg section. 
Travis held that the Equal Protection Clause prohibits 
a police officer from selecting an airport traveler for a 
consensual interview solely on the basis of the 
traveler's race. Id. at 174, The defendant points to 
our observation in Travis that we had addressed the 
issue of whether racially motivated consensual 
encounters could give rise to an equal protection 
claim "only once before in an unpublished opinion." 
Id. at 173 (citing United States v. Jenninzs, 1993 WL 
5927 (6th Cir, Jan.13, 1993)). Since the first 
published opinion on the issue was handed down 
after the events in question, the defendant argues, a 
reasonable officer would not have known that 
Trooper Kiefer's actions violated the plaintiffs' 
constitutional rights.

FN7. In his reply brief. Trooper Kiefer 
further suggests that United States v. 
Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 
3074, 49 L.Ed.2d 1116 (1976). created 
uncertainty in the law as to whether it was 
appropriate to target individuals for 
immigration inquiries based in part upon 
their Hispanic appearance. The Martinez- 
Fuerte Court held that it was not a violation 
of the Fourth Amendment for officials at a 
fixed border checkpoint selectively to refer 
motorists to a secondary inspection area, 
"even if it be assumed that such referrals are 
made largely on the basis of apparent 
Mexican ancestry." Id. at 563, 96 S.Ct. 
3074. We think this argument is unavailing 
to the defendant. Martinez-Fuerte was a 
Fourth Amendment case, not an Equal 
Protection case. The Court's decision in 
Martinez-Fuerte merely considered whether, 
for the purposes of the Fourth Amendment, 
the Border Patrol was required to articulate 
an individualized basis for suspicion beyond 
the motorists' apparent nationality to justify 
the stop. The Court's holding was based 
upon its conclusion that because the

intrusion presented by the checkpoint stop 
was "sufficiently minimalj,] ... no 
particularized reason need exist to justify it." 
Id. The Court did not consider whether, if 
the Border Patrol relied upon racial or ethnic 
classifications in making the stop, such 
actions would violate the Equal Protection 
Clause. Consideration of this issue was 
rendered unnecessary by the Court's 
conclusion that the Border Patrol had 
offered conclusive evidence "to refute any 
suggestion that the Border Patrol relies 
extensively on apparent Mexican ancestry 
standing alone in referring motorists to the 
secondary area." Id. at 563 n, 16. 96 S.Ct. 
3074. The Martinez-Fuerte Court, 
moreover, limited its holding to the 
particular circumstance of a checkpoint at 
the Mexican border, and noted that 
"[different considerations would arise if, for 
example, reliance were put on apparent 
Mexican ancestry at a checkpoint operated 
near the Canadian border." Id. at 564 n. 17. 
96 S.Ct. 3074. Given that the challenged 
stop occurred near Toledo, Ohio, a location 
much closer to the Canadian border than to 
the Mexican border, we think Martinez- 
Fuerte offers little support for Trooper 
Kiefer’s argument.

We disagree with the defendant's characterization of 
the state of the law in 1995. While Travis may have 
been the first case to reach the merits of such an 
equal protection claim, we expressly acknowledged 
in a 1992 en banc case, United States v. Tavlor. that 
an equal protection claim could be based upon 
evidence that law enforcement officers targeted 
minorities for consensual interviews on the basis of 
race. 956 F.2d 572, 578-79 (6th Cir.l (en banc), cert, 
denied. 506 U.S. 952, 113 S.Ct. 404, 121 L.Ed.2d 
330 (1992). The Taylor court explained:

A review o f ... the briefs and arguments of counsel 
before the trial court and initially before this courtf 
] disclosed no charge that the appellant... had been 
selected for a consensual interview because he was 
an African American, that the law enforcement 
officers at the *542 Memphis Airport implemented 
a general practice or pattern that primarily targeted 
minorities for consensual interviews, or that they 
had incorporated a racial component into the drug 
courier profile. A factually supported record of 
such charged official conduct in the instant case 
would have given rise to due process and equal 
protection constitutional implications cognizable

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by this court.
Id. (emphasis added). We think this statement 

demonstrates that, at least by 1992, it was clearly 
established that the Constitution prohibited racial 
targeting in law enforcement investigations, 
regardless of whether an encounter was lawful under 
the Fourth Amendment.

Moreover, even before Taylor, we had applied the 
selective enforcement framework to a criminal 
defendant's claim that he was improperly selected for 
a prior-felonies-background check after his arrest. 
Anderson. 923 F.2d at 453. The claim advanced in 
Anderson closely resembles the plaintiffs' claim in 
the instant case insofar as both claims involve 
allegedly discriminatory police motives for pursuing 
a particular course of investigation of a suspect who 
is already in police detention. Although we did not 
find a selective enforcement violation in Anderson. 
our discussion in that case left little doubt that we 
would have permitted the claim had the defendant 
been able to satisfy his burden under the Supreme 
Court's selective enforcement test, hi (citing Wavte, 
470 U.S. at 608 n. 10, 609, 105 S.Ct. 1524). We 
think Anderson demonstrates that any ambiguity in 
the law of selective enforcement before Travis was 
confined to the limited factual context of consensual 
police encounters. Since we have already determined 
that the consensual airport encounter cases are 
inapposite to the instant case, we conclude that any 
ambiguity in the law relating to consensual 
encounters before the Travis opinion does not justify 
granting qualified immunity to Trooper Kiefer. **

**13 Furthermore, as we have already observed, for 
a right to be clearly established, "it need not be the 
case that 'the very action in question has been 
previously held unlawful.' " Russo. 953 F.2d at 1042 
(quoting Anderson. 483 U.S. at 640, 107 S.Ct. 3034), 
Rather, the pre-existing law must be such that 
existence of the right is apparent. See id In this 
vein, we have recognized that ”[i]t is a venerable rule 
under the Equal Protection Clause that the state may 
not choose to enforce even facially neutral laws 
differently against different portions of the citizenry 
solely out of an arbitrary desire to discriminate 
against one group." Stemler, 126 F.3d at 874: see 
also Tick Wo v, Hopkins, 118 U.S. 356, 373, 6 S.Ct. 
1064, 30 L.Ed. 220 (1886) ("Though the law itself be 
fair on its face, and impartial in appearance, yet, if it 
is applied and administered by public authority with 
an evil eye and an unequal hand, so as practically to 
make unjust and illegal discriminations between 
persons in similar circumstances, material to their 
rights, the denial of equal justice is still within the

prohibition of the constitution."). This principle has 
long been held to condemn selective prosecution of 
suspected offenders based upon their membership in 
a particular group. See generally Wavte. 470 U.S. 
598, 105 S.Ct. 1524, 84 L.Ed.2d~547. We conclude, 
therefore, that a reasonable officer at the time of the 
events in question would have known that the 
Constitution forbade embarking on an investigation 
of someone for a particular offense on the basis of 
that person's race.

In conclusion, we determine that the facts alleged by 
the plaintiffs would, if proved, establish that Kiefer 
violated their rights under the Equal Protection 
Clause by targeting them for immigration-related 
*543 questioning on the basis of their race. 
Moreover, we think that the relevant legal principles 
controlling this case were clearly established at the 
time of the defendant's actions. We therefore 
conclude that the district court correctly denied 
Trooper Kiefer's motion for summary judgment on 
his defense of qualified immunity with respect to the 
plaintiffs' equal protection claims.

D. Detention of the Plaintiffs' Green Cards

Trooper Kiefer next appeals the district court's denial 
of his motion for summary judgment based on his 
qualified immunity defense to the plaintiffs' Fourth 
Amendment claim, which alleged that Kiefer's four- 
day detention of the plaintiffs' green cards was 
unreasonable. The court found that Trooper Kiefer's 
initial seizure of the plaintiffs' green cards was 
lawful, because the plaintiffs' confusing answers to 
Trooper Kiefer's questions about whether they had 
"paid for" the green cards gave rise to reasonable 
suspicion—but not probable cause to believe—that the 
cards had been forged. The court concluded, 
however, that Trooper Kiefer's failure to return the 
green cards changed the nature of the seizure from a 
brief investigative detention that could be based upon 
mere reasonable suspicion to a full seizure that could 
be justified only by probable cause. Because Trooper 
Kiefer did not have probable cause for such a seizure, 
the court concluded that his actions were 
unreasonable under the Fourth Amendment. The 
district court further determined that no material facts 
were in dispute regarding this claim, and 
consequently granted summary judgment to the 
plaintiffs. On appeal, Trooper Kiefer requests that 
we reverse the district court's denial of qualified 
immunity, or "[i]n the alternative, ... dismiss 
Plaintiffs claims on the merits." Appellant's Br. at 
19.

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1. The Constitutional Violation

**14 [281129113011311 The Fourth Amendment 
protects the "right of the people to be secure in their 
persons, houses, papers, and effects, against 
unreasonable searches and seizures." The text of the 
Fourth Amendment therefore extends protection 
against unreasonable seizures of personal property, 
i.e., "papers[ ] and effects," as well as seizures of the 
person. United Slates v. Place, 462 U.S. 696, 700-01, 
103 S.Ct. 2637, 77 L.Ed.2d 110 (19831: United
States v. Jacobsen. 466 U.S. 109, 120-21, 104 S.Ct. 
1652, 80 L.Ed.2d 85 (1984) (concluding that 
detention of package sent through private carrier was 
"seizure" subject to Fourth Amendment 
reasonableness requirement). In general, like 
seizures of the person, seizures of personal property 
require probable cause. As the Supreme Court has 
explained:

In the ordinary case, the Court has viewed a seizure 
of personal property as per se unreasonable within 
the meaning of the Fourth Amendment unless it is 
accomplished pursuant to a judicial warrant issued 
upon probable cause and particularly describing the 
items to be seized. Where law enforcement 
authorities have probable cause to believe that a 
container holds contraband or evidence of a crime, 
but have not secured a warrant, the Court has 
interpreted the Amendment to permit seizure of the 
property, pending issuance of a warrant to examine 
its contents, if the exigencies of the circumstances 
demand it or some other recognized exception to 
the warrant requirement is present.

Place. 462 U.S. at 701, 103 S.Ct, 2637 (citations 
omitted). As is the case with brief investigative 
detentions of the person, Terry v. Ohio. 392 U.S. 1. 
88 S.Ct. 1868, 20 L,Ed.2d 889 (1968), however, the 
Supreme Court has recognized that some *544 brief 
detentions of personal effects may be permitted based 
upon reasonable suspicion falling short of probable 
cause, provided that such detentions are "minimally 
intrusive." Place. 462 U.S. at 706. 103 S.Ct. 2637 
("[S]ome brief detentions of personal effects may be 
so minimally intrusive of Fourth Amendment 
interests that strong countervailing governmental 
interests will justify a seizure based only on specific 
articulable facts that the property contains contraband 
or evidence of a crime."); see also United States v. 
Saverstein, 723 F,2d 1221, 1231 (6th Cir.1983) 
(explaining that "seizures of personal effects when 
based on anything less than probable cause" are 
permitted only to the extent that they satisfy the 
standards for reasonableness applicable to "Terry- 
type investigative detention[s]"); United States v. 
Sanders. 719 F.2d 882, 886 (6th Cir.1983). In his

brief on appeal. Trooper Kiefer does not challenge 
the district court's ruling that he did not possess 
probable cause to seize the plaintiffs' green cards. 
[FN8] The relevant question, therefore, is whether 
the seizure of the plaintiffs' green cards satisfied the 
standards for Fourth Amendment reasonableness 
applicable to seizures of personal property based 
upon less than probable cause.

FN8. Judge Kennedy's dissent maintains that 
Trooper Kiefer did have probable cause to 
seize the green cards. The dissent points out 
that Trooper Kiefer argued that he had 
probable cause in the district court. 
Nevertheless, Kiefer did not renew that 
argument on appeal, and therefore has 
waived the argument. Nowhere in his 
opening brief or reply brief does Trooper 
Kiefer challenge the district court's 
determination that the facts gave rise to no 
more than reasonable suspicion that the 
green cards were forged. It is well 
established that an issue not raised in a 
party's briefs on appeal may be deemed 
waived. See Ahlers, 188 F.3d at 374. 
Although Trooper Kiefer does argue in his 
appellate briefs that the initial seizure of the 
green cards was valid, he bases this claim on 
the district court's conclusion that his seizure 
was supported by reasonable suspicion. On 
appeal, Trooper Kiefer's only argument is 
that once reasonable suspicion was 
established to justify the initial seizure, the 
Fourth Amendment placed no limits on the 
duration of the ensuing detention. If 
Trooper Kiefer desired to challenge this 
aspect of the district court's ruling, the 
instant appeal would have been the proper 
time to do so. The legal question of whether 
the undisputed facts demonstrate that Kiefer 
had probable cause to seize the plaintiffs' 
green cards is directly relevant to step one of 
the qualified immunity test, insofar as it 
relates to whether the plaintiffs have shown 
a constitutional violation under Place.

[3211331 Determining whether a seizure of personal 
property based upon less than probable cause is 
reasonable for the purposes of the Fourth 
Amendment involves a two-step inquiry. "First, the 
Court must determine whether the detaining officer 
has a reasonable and articulable suspicion that the 
property he wishes to seize is connected with

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criminal activity." Sanders. 719 F.2d at 887. 
Second, the scope of the seizure must be reasonable, 
both in duration and in intrusiveness. Place. 462 
U.S. at 709. 103 S.Ct. 2637: Sanders. 719 F.2d at 
887 ("If there is reasonable suspicion, the Court must 
then ascertain whether the detention is reasonable, 
that is, (1) was it sufficiently limited in time, and (2) 
were the investigative means used 'the least intrusive 
means reasonably available.' " (quotation omitted)). 
"Although an officer may have reasonable suspicion 
to detain a person or his possessions for investigation, 
the officer's investigative detention can mature into 
an arrest or seizure if it occurs over an unreasonable 
period of time or under unreasonable circumstances." 
,4very. 137 F,3d at 349. In the instant case, the 
plaintiffs concede that Trooper Kiefer had reasonable 
suspicion to believe that their green cards were 
forged. They contend, however, that the seizure of 
their green cards exceeded the *545 legitimate scope 
of a seizure of property based upon less than probable 
cause, because Trooper Kiefer detained the cards for 
four days before they were returned. We agree.

**15 The Supreme Court has previously emphasized 
that "the brevity of the invasion of the individual's 
Fourth Amendment interests is an important factor in 
determining whether [a] seizure [of personal 
property] is so minimally intrusive as to be justifiable 
on reasonable suspicion." Place. 462 U.S. at 709, 
103 S.Ct. 2637. In Place. DEA agents seized a 
traveler's suitcase in an airport based upon facts 
giving rise to a reasonable suspicion that the suitcase 
contained narcotics. When the traveler refused to 
consent to a search of his luggage, the agents decided 
to hold the luggage while they awaited the arrival of 
a drug-sniffing dog. The agents allowed the traveler 
to leave. After the agents had held the luggage for 
ninety minutes, the dog arrived and "alerted" that the 
luggage contained narcotics, thereby supplying 
probable cause for a search. See id. at 699-700, 103 
S.Ct. 2637. The Court concluded, however, that the 
ninety-minute detention of the luggage prior to 
establishing probable cause was unreasonable. The 
Court explained that "[t]he length of the detention of 
respondent's luggage alone precludes the conclusion 
that the seizure was reasonable in the absence of 
probable cause." hi. at 709, 103 S.Ct. 2637. In 
reaching this conclusion, the Court "rejected] the 
Government's suggestion that the point at which 
probable cause for seizure of luggage from the 
person's presence becomes necessary is more distant 
than in the case of a Terry stop of the person 
himself." Id. at 708, 103 S.Ct. 2637, The Court 
acknowledged that, in some circumstances, seizures 
of property may be less intrusive than seizures of

persons, but concluded that this is not the case when 
the police detain luggage in an airport traveler's 
immediate possession. The Court explained that 
"such a seizure can effectively restrain the person 
since he is subjected to the possible disruption of his 
travel plans in order to remain with his luggage or to 
arrange for its return." 1d . Therefore, the Court found 
that the agents' seizure of the luggage should be 
subjected to the same standards of reasonableness 
that are applied to investigative detentions of the 
person. Id at 709, 103 S.Ct. 2637. Noting that "we 
have never approved a seizure of the person for the 
prolonged 90 minute period involved here," the Court 
concluded that it "[could] not do so on the facts 
presented by this case." Id. at 709-10, 103 S.Ct. 
2637.

Rather than adopt a per se time limitation for 
seizures based upon less than probable cause, 
however, the Supreme Court has consistently 
"emphasized the need to consider the law 
enforcement purposes to be served by the stop as well 
as the time reasonably needed to effectuate those 
purposes." United States v. Sharpe. 470 U.S. 675. 
685, 105 S.Ct. 1568. 84 L.Ed.2d 605 (1985): see 
also Place. 462 U.S. at 709-10, 103 S.Ct. 2637. 
"Much as a 'bright-line rule' would be desirable, in 
evaluating whether an investigative detention is 
unreasonable, common sense and ordinary human 
experience must govern over rigid criteria." Sharpe, 
470 U.S. at 685, 105 S.Ct. 1568: see also Place. 462 
U.S. at 709, 103 S.Ct. 2637 ("[I]n assessing the effect 
of the length of the detention, we take into account 
whether the police diligently pursue their 
investigation."). Accordingly, the Place Court relied 
heavily upon the fact that the agents had advance 
notice of the defendant's arrival, and thus "had ample 
time to arrange for their additional investigation ... 
and thereby could have minimized the intrusion on 
respondent’s Fourth Amendment interests," but failed 
do so. *546Place. 462 U.S. at 709, 103 S.Ct. 2637, 
The Place Court further observed that the Fourth 
Amendment "violation was exacerbated by the failure 
of the agents to accurately inform respondent of the 
place to which they were transporting his luggage, of 
the length of time he might be dispossessed, and of 
what arrangements would be made for return of the 
luggage if the investigation dispelled the suspicion." 
hi at 710, 103 S.Ct. 2637.

**16 [34] Turning to the the instant case, we 
conclude that the facts presented by the plaintiffs are 
sufficient to show that Trooper Kiefer's four- day 
detention of the plaintiffs' green cards based upon 
mere reasonable suspicion was unreasonable in

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duration. Both the Supreme Court and this circuit 
have found property seizures of much shorter 
duration than the four days presented herein to be 
unreasonable when based upon less than probable 
cause. See, eg.. Place, 462 U.S. at 709, 103 S.Ct. 
2637 (holding ninety minutes excessive); Saver stein. 
723 F.2d at 1233 (holding 13 1/2 hour seizure of 
luggage at airport was unreasonable under standards 
for investigative detentions); Sanders. 719 F.2d at 
887 (holding three to four hour detention of luggage 
unreasonable). As was the case in Place and in the 
cases from this circuit involving seizures of luggage 
from travelers, we think that Trooper Kiefer's seizure 
interfered with both the plaintiffs’ possessory 
interests in the green cards and their liberty interests 
in continuing uninterrupted with their travels. The 
plaintiffs' green cards were seized from them while 
they were traveling from their home in Chicago to 
Toledo to visit relatives. Moreover, " '[g]reen cards' 
play a significant role in the daily lives of [lawful 
permanent resident aliens]." Etuk v Slatterw 936 
F.2d 1433, 1437 (2nd. Cir.1991). Failure to carry 
one's green card on his or her person can subject a 
legal resident alien to criminal sanctions, 8 U.S.C. § 
1304(e). and green cards are an essential means by 
which resident aliens can establish eligibility for 
employment and participation in federally funded 
programs. See Etuk, 936 F.2d at 1437 (discussing 
relevant statutory provisions). Given the importance 
of these documents, the challenged seizure 
undoubtedly subjected the plaintiffs to disruption of 
their travel plans in order to remain with the 
documents or arrange for their return. Accord Place. 
462 U.S. at 708, 103 S.Ct. 2637: United States v. 
Baro, 15 F.3d 563, 567 n. 1 (6th Cir.) (holding that 
seizure of traveler's cash was "tantamount to a seizure 
of his person" where officer presented traveler with 
"a Hobson's choice: abandon more than $14,000 to a 
plain-clothed stranger without obtaining a receipt in 
return or miss his flight, forfeit his plane ticket, and 
remain stranded in foreign environs"), cert, denied, 
513 U.S. 912, 115 S.Ct. 285, 130 L.Ed.2d 201 
(1994). Although Aguilar and Esparza were
traveling by car, and therefore may have had more 
flexibility in their itinerary than an air traveler who 
must catch a plane, we think this added flexibility 
was not so great as to permit a four-day disruption of 
their travel plans.

Moreover, the facts alleged by the plaintiffs 
sufficiently demonstrate that the length of the 
detention was excessive in light of "the law 
enforcement purposes to be served by the stop as well 
as the time reasonably needed to effectuate those 
purposes." Sharpe. 470 U.S. at 685, 105 S.Ct. 1568.

Although we decline to set a definitive time limit, we 
agree with the district court that reasonable suspicion 
would permit Trooper Kiefer to detain the green 
cards no longer than until the following day, when 
they could be verified by the INS.JTN9] Trooper 
Kiefer has not articulated *547 any reason why a 
longer detention would have been necessary. The 
undisputed facts indicate that the INS could be 
reached to verify the authenticity of the plaintiffs' 
green cards on the Monday following the initial stop. 
By waiting for four days to return the plaintiffs' green 
cards, Trooper Kiefer failed to "diligently pursue 
[his] investigation." Place. 462 U.S. at 709, 103 
S.Ct. 2637, The unreasonable nature of the seizure 
was exacerbated by the undisputed fact that Trooper 
Kiefer "did not make clear to the plaintiffs how long 
the documents would be held or when or how he 
would return them to plaintiffs if they proved 
authentic." IFNI01 J.A. at 210 (Sep. 8, 1999, Order 
at 14); accord Place. 462 U.S. at 710, 103 S.Ct. 
2637 (pointing to similar facts in finding detention of 
luggage unreasonable).

FN9, Such a detention would still be 
considerably longer than the ninety-minute 
detention rejected in Place. It is 
unnecessary to consider whether Place 
imposes a shorter time limit on the 
challenged seizure, since Trooper Kiefer's 
detention of the plaintiffs' green cards was 
well in excess of the length of time the 
district court or we would approve.
The dissent argues that if the seizure of 
plaintiffs' green cards is controlled by Place. 
then the constitutional violation was 
complete as soon as the search of plaintiffs' 
vehicle was completed. For the purposes of 
the instant case, we think it is enough that 
the four-day length of detention at issue 
exceeded any acceptable time limit for a 
seizure based upon less than probable cause 
under these circumstances. We see no need 
to consider whether a shorter detention 
might also have violated the Fourth 
Amendment under Place. Both Place and 
Sharpe counsel against unnecessarily setting 
per se time limits on Terry-style seizures. 
We therefore decline to do so.

FN10, We note that we do not mean to 
suggest that Trooper Kiefer's failure to 
provide plaintiffs with this information 
constitutes a per se Fourth Amendment

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violation. We simply hold that this factor 
enters into the totality of circumstances to be 
considered in deciding whether the seizure 
was more than minimally intrusive.

**17 Contrary to Trooper Kiefer's assertion. Fox v. 
Van Oosterum, 176 F.3d 342 (6th Cir.1999). does not 
require a holding in his favor. In Fox, the plaintiff 
brought a 8 1983 action against county officials,
alleging that they acted unreasonably in refusing to 
return his driver's license, which had been seized 
during a valid inventory search of the plaintiffs truck. 
Id. at 345. The plaintiff in Fox never challenged the 
initial seizure of his license. Rather, he contended 
that an unreasonable seizure occurred when county 
officials refused his request, four months after the 
initial seizure, that the license be returned. Id. at 349, 
We concluded that the challenged action—the refusal 
to return the license-was not a "seizure" for the 
purposes of the Fourth Amendment, because the 
seizure had been completed long before the date of 
his request. Id. at 350. The court explained that " 'a 
seizure of property ... occurs when there is some 
meaningful interference with an individual's 
possessory interests in ... property,' " and that the 
seizure of the plaintiffs driver's license ended once 
the act of taking his property was complete. Id. at 
350 (quoting Soldal v. Cook County. III., 506 U.S. 56. 
61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)
(additional quotation omitted)). Once the county 
officials had seized and stored the license for a 
number of months, the plaintiff had already been 
completely dispossessed of his possessory interests in 
the license, and the seizure was complete.

The defendant's reliance on Fox in the instant case is 
misplaced. Unlike the plaintiff in Fox, the plaintiffs 
in the instant case have alleged facts showing that the 
initial seizure of their green cards was
constitutionally defective because it exceeded the 
permissible scope of investigative detentions based 
upon less than probable cause. The Fox case did not 
consider the central issue presented in the instant 
*548 case—namely, the permissible scope of a Tern■ 
seizure of an individual's personal effects. As 
explained above, this is an inherently time-sensitive 
inquiry. In Fox, the initial seizure resulted from a 
valid inventory search of the plaintiffs truck, which 
had been impounded after his arrest; it was not a 
Terry seizure based upon reasonable suspicion only. 
Moreover, the plaintiff in Fox conceded the 
constitutionality of the county's detention of his 
license for the four months that preceded his request 
for its return. It is hardly surprising, therefore, that

the Fox court concluded that the county’s continued 
detention of the license beyond that time did not 
"change[ ] the character of the [original] seizure from 
a reasonable one to an unreasonable one." Id. at 350. 
In contrast, we have concluded that Trooper Kiefer's 
four-day delay transformed the character of the 
seizure from a relatively brief investigative detention, 
which could be justified by mere reasonable 
suspicion, to a full-blown seizure requiring probable 
cause. The Fox court distinguished Place, which 
more closely resembles the instant case, on precisely 
these grounds:

**18 The Place Court provided a framework for 
analyzing when law' enforcement agents may hold 
someone's property for a very short time on less 
than probable cause to pursue a limited course of 
investigation. The instant case involves an alleged 
"seizure" that occurred well after the point in time 
w here Place is directly relevant. The plaintiff here 
is not challenging any action of the defendants 
until over four months after the plaintiffs license 
was removed from a vehicle pursuant to an 
inventory search, inventoried, and stored.

Id. at 351 n. 6. Were we to accept the defendant's 
interpretation of Fox, law enforcement officers 
would be able to detain indefinitely an individual's 
property based upon reasonable suspicion alone. 
Such an interpretation is wholly inconsistent with the 
Supreme Court's clear instruction that courts look to 
the duration of investigative detentions of personal 
property to determine whether such detentions are 
sufficiently "minimally intrusive" to be permissible 
based upon reasonable suspicion falling short of 
probable cause. Place. 462 U.S. at 709, 103 S.Ct. 
2637.

We also find unpersuasive the defendant's contention 
that the concept of a "continuing seizure" was 
rejected by the Supreme Court in California v, 
Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 
L.Ed.2d 690 (1991). Hodari D. merely explained that 
if a suspect flees after an initial seizure, the seizure 
does not continue throughout the subsequent pursuit. 
See id ("To say that an arrest is effected by the 
slightest application of physical force, despite the 
arrestee's escape, is not to say that for Fourth 
Amendment purposes there is a continuing arrest 
during the period of fugitivity." (emphasis in 
original)). Hodari D. addresses situations where 
physical control over a suspect is established, and 
then lost. It does not stand for the proposition that a 
seizure ends at the instant that physical control is 
initially established, no matter how long a 
government official retains physical control of the 
suspect thereafter.

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2. Whether the Relevant Law Was Clearly 
Established

f35] We further conclude that the rights asserted by 
the plaintiffs were clearly established at the time of 
the challenged detention. United States v. Place. 
upon which the plaintiffs' claims rely, was decided in 
1983, twelve years before the events in question. We 
think that case was sufficient to put a reasonable 
officer on notice that the seizure for four days of 
important personal effects from a traveler on the 
public roads would violate the *549 Fourth 
Amendment if based upon less than probable cause.

In sum we conclude that the agreed-upon facts of 
this case reveal that the four-day detention of the 
plaintiffs’ green cards based upon less than probable 
cause was unreasonable. Therefore, we determine 
that the district court properly denied Trooper 
Kiefer's motion for summary judgment based upon 
his claim of qualified immunity. [FN111

FN11. Judge Kennedy's dissent voices 
concerns about a ruling by the district court, 
which allegedly held that Trooper Kiefer 
was required to provide the plaintiffs with a 
lawful substitute for their green cards. We 
are unable to locate any such ruling in the 
record. In its September 8, 1999, order 
granting summary judgment to the plaintiffs 
on their Fourth Amendment claims, the 
district court dissolved a preliminary 
injunction in which the court had ordered 
OSPIP officers to issue substitute documents 
when they seize green cards known to be 
valid. We are not aware of any order 
reinstating that injunction. Furthermore, 
even if such an order existed, the issue is not 
relevant to the instant appeal. The only 
issues before us are the specific 
constitutional claims of plaintiffs Aguilar 
and Esparza against Trooper Kiefer. In its 
September 8, 1999, order, the district court 
explained that its previous ruling concerning 
the necessity of issuing lawful substitutes 
did not apply to the claims of Aguilar and 
Esparza, because they made "no allegation 
that OSHP troopers seized green cards 
known to be valid." J.A. at 206.

3. The Grant of Summary Judgment to the 
Plaintiffs

**19 [3611371 Ordinarily, we would conclude our 
review after determining whether the defendant was 
entitled to qualified immunity, and we would decline 
to address the district court's grant of partial summary 
judgment to the plaintiffs. This is an interlocutory 
appeal. As explained above, we have jurisdiction to 
hear the instant appeal because a denial of summary 
judgment based on "the legal question of qualified 
immunity" is an immediately appealable order under 
the "collateral order" doctrine. Mattox. 183 F.3d at 
519. In contrast, "a partial summary judgment on the 
issue of liability alone is not a 'final decision' under 
28 U.S.C. vi 1291." nor does such an order qualify as 
an immediately appealable collateral order. Brennan 
v. Township of Northville. 78 F.3d 1152, 1157 (6th 
Cir.1996). Therefore, we would not normally have 
jurisdiction to consider an interlocutory appeal of the 
district court's grant of partial summary judgment to 
the plaintiffs on their Fourth Amendment claims.

[38] Under the doctrine of pendent appellate 
jurisdiction, however, a court of appeals may, in its 
discretion, "exercise jurisdiction over issues that are 
not independently appealable when those issues are 
'inextricably intertwined' with matters over which the 
appellate court properly and independently has 
jurisdiction." Chambers v. Ohio Dep't o f Human 
Sen’s., 145 F.3d 793, 797 (6th Cir.l. cert, denied, 525 
U.S. 964. 119 S.Ct. 408. 142 L.Ed.2d 331 (19981: 
see also Brennan. 78 F,3d at 1157, "We have 
interpreted 'inextricably intertwined' to mean 
coterminous with, or subsumed in, the claim before 
the court on interlocutory appeal." Hadix v. Johnson. 
228 F,3d 662, 669 (6th Cir.20001 (quotation omitted). 
In Brennan, we applied the pendent appellate 
jurisdiction doctrine in circumstances analogous to 
those presented here. In that case, the plaintiff 
brought a $ 1983 claim against the city and
individual city officials claiming that he 
unconstitutionally was detained for twenty-two hours 
without an arraignment. The district court denied the 
individual defendants' motion for summary judgment 
based upon qualified immunity. Finding no genuine 
dispute of fact concerning this claim, the district 
court also granted partial summary judgment to the 
plaintiff on *550 the issue of liability. Brennan. 78 
F.3d at 1154. We reversed after concluding that the 
facts, even when viewed in the light most favorable 
to the plaintiff, did not establish a violation of the 
plaintiffs constitutional rights. Id. at 1156. We went 
on to review the district court's partial grant of 
summary judgment to the plaintiff against the city. 
We noted that, although partial summary judgment is 
not a final decision subject to review, "[t]his case

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presents a special situation ... in which the issues of 
liability and qualified immunity are so related to each 
other that we can dispose of them together under the 
doctrine of pendent appellate jurisdiction." Id. at
1157, We concluded that pendent appellate 
jurisdiction was appropriate because our 
determination that the plaintiff had not alleged facts 
showing a constitutional violation "necessarily and 
unavoidably decidefd]" the issue of whether the 
plaintiff was entitled to summary judgment. Id. at
1158. We observed that the exercise of pendent 
appellate jurisdiction under such circumstances best 
served "the interest of judicial economy," since any 
further proceedings on the plaintiffs claim would be 
a waste of judicial resources once it was determined 
that he could not show a constitutional violation, let

**20 Guided by the foregoing principles, we think it 
is appropriate to exercise our pendent appellate 
jurisdiction to address the district court's grant of 
partial summary judgment to the plaintiffs on the 
issue of Fourth Amendment liability. In reviewing 
the issue of qualified immunity, we have determined 
that the agreed-upon facts of the instant case 
demonstrate that Trooper Kiefer violated the 
plaintiffs' Fourth Amendment rights by detaining 
their green cards for four days without probable 
cause. Where, as here, the parties do not dispute the 
underlying facts, this determination necessarily 
subsumes the merits of the plaintiffs' constitutional 
claim. [FN121 In his brief, Trooper Kiefer admits 
that he "does not dispute the facts found by the 
District Court." IFNI31 Appellant’s Br. at 5. A 
review *551 of the record confirms that the parties 
are in complete agreement as to the underlying facts 
relating to the seizure and detention of plaintiffs' 
green cards. Having determined that these facts show 
a violation of the Fourth Amendment, there is 
nothing left for us to resolve concerning the district 
court's grant of summary judgment to the plaintiffs 
on the issue of liability. Thus, in the instant case, as 
in Brennan, "the issues of liability and qualified 
immunity are so related to each other that we can 
dispose of them together under the doctrine of 
pendent appellate jurisdiction." Id. at 1157.

FN12. The dissent argues that a factual 
dispute still exists as to whether the 
plaintiffs told Trooper Kiefer that they had 
paid for the green cards or only that they had 
paid the necessary fees. Our review of the 
record, however, reveals that all parties 
agree on the substance of the conversation 
between Trooper Kiefer and the plaintiffs.

There is no dispute that Trooper Kiefer 
asked the plaintiffs whether they had paid 
for their green cards or that the plamtiffs 
answered m the affirmative. The plaintiffs 
contend that they meant that they had paid 
the necessary fees; but they have never 
claimed that they specifically answered 
Kiefer's question by saying that they had 
only paid for processing fees. The only 
remaining question then is the legal question 
of whether this exchange gave rise to mere 
reasonable suspicion or to something more. 
The district court concluded that the 
plaintiffs' answers gave rise to no more than 
reasonable suspicion, given the plaintiffs' 
obvious difficulty understanding Kiefer's 
questions. Trooper Kiefer does not dispute 
this conclusion. Consequently, we disagree 
with the dissent's assertion that material 
disputes of fact remain with respect to this 
issue.

FN13. We emphasize that this is not a case 
in which the defendant concedes to the 
plaintiffs view of the facts for the purposes 
of appeal only. We recognize that after 
Johnson. 515 U.S. at 313. 115 S.Ct. 2151. a 
defendant seeking interlocutory appeal of a 
denial of qualified immunity generally is 
well served to assume the correctness of the 
plaintiffs version of the facts for the 
purposes of appeal in order limit the appeal 
to the purely legal issue of qualified 
immunity. Such a limited concession 
obviously would not bind the defendant to 
the plamtiffs account of the facts. But this 
case is different; Trooper Kiefer did not 
merely assume the plaintiffs' version of the 
facts to be true for the purposes of appeal. 
The record makes clear that there is no 
dispute between the parties as to the material 
facts relating to the seizure and detention of 
the plaintiffs' green cards. Our decision to 
exercise our pendent appellate jurisdiction, 
therefore, is limited to the unique 
circumstances presented when, as here, the 
record clearly demonstrates that the only 
issue in dispute between the parties is the 
legal question of whether an officer's 
admitted conduct violates the Constitution.

Our decision here is compelled by the interests of 
judicial efficiency underlying the pendent appellate

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jurisdiction doctrine. See id. at 1158. A subsequent 
appeal of the district court's partial grant of summary 
judgment following a trial to determine damages 
would only waste judicial resources. Any future 
appeal of the liability issue would be decided based 
upon the same record that is before us. We see little 
benefit, therefore, in postponing judgment on this 
question. Consequently, we exercise our pendent 
appellate jurisdiction and affirm the district court's 
decision granting the plaintiffs' motion for summary 
judgment on the issue of Fourth Amendment liability.

In sum, we conclude that the undisputed facts reveal 
that Trooper Kiefer violated the plaintiffs' clearly 
established rights by detaining their green cards for 
over four days without probable cause. We therefore 
affirm the district court's denial of summary 
judgment to defendant Kiefer, as well as the district 
court's decision granting partial summary judgment 
to the plaintiffs.

III. CONCLUSION

For the reasons stated above, we AFFIRM the 
district court's denial of Trooper Kiefer's motion for 
summary judgment as to his defense of qualified 
immunity. Furthermore, we AFFIRM the district 
court's grant of partial summary judgment to 
plaintiffs on the issue of Fourth Amendment liability 
and REMAND for further proceedings consistent 
with this opinion.

KENNEDY. Circuit Judge, dissenting.

This appeal deals only with officer Kiefer's 
individual liability to plaintiffs Esparza and Aquilar 
for events that occurred after a traffic stop for a 
burned-out headlight. Thus, while the plaintiffs’ 
claims are made as a part of a class action, Kiefer is 
liable to plaintiffs only for his acts in this incident. **

**21 Plaintiffs do not question the legitimacy of the 
initial traffic stop. They do not claim they were 
stopped because of their race. Nor do plaintiffs 
challenge the propriety of the drug search of their 
vehicle. The inquiry as to their immigration status 
and green cards did not arise until after a drug dog 
had alerted to their vehicle. At that time, plaintiff 
Aquilar was in defendant's cruiser where Kiefer was 
checking Aquilar's Illinois driver license and 
registration. After the dog alert, a second officer 
asked passenger Esparza, who was still in Aquilar's 
vehicle, for her identification and brought her to

Kiefer's cruiser. Thereafter, Kiefer asked plaintiffs 
for Aquilar's green card and where they had gotten 
their green cards. The facts are in dispute as to just 
what plaintiffs said. Both plaintiffs spoke very little 
English. Defendant states that plaintiffs said they 
paid for their green cards. Plaintiffs state *552 they 
said they paid all the necessary fees for their green 
cards. The district court appears to have accepted the 
defendant's version of what was said. For plaintiffs' 
equal protection claim, it makes little difference since 
the discrimination they complain of is the inquiry 
about their immigration status-"that Officer Kiefer 
targeted them for investigation regarding their 
immigration status solely on the basis of their being 
Hispanic."

Kiefer moved for summary judgment on plaintiffs' 
equal protection claim on the ground that the 
undisputed facts show that he had a racially neutral 
reason for inquiring about plaintiffs' immigration 
status; namely, their difficulties in speaking and 
understanding English.

He also moved for summary judgment on plaintiffs’ 
Fourth Amendment claim, asserting that he seized 
their green cards when they responded to his question 
as to where they got the green cards with the 
response that they paid for them. This led him to the 
conclusion they were obtained illegally. The 
possession of illegal identification is a crime under 
Ohio law. He also asserts this is a race neutral reason 
for their seizure.

While it is unclear whether the court rejects the 
inability to speak English as race neutral, if it does 
then it should affirm the summary judgment for 
plaintiffs since it is the race neutral basis relied on by 
Kiefer for his inquiry.

The majority, while not rejecting the inability to 
speak and understand English as a race neutral 
reason, declines to apply our decision in United 
States v. Travis. 62 F.3d 170 (6th Cir. 19951. cert, 
denied. 516 U.S. 1060, 116 S.Ct. 738, 133 L.Ed.2d 
688, in which we acknowledged that "consensual 
searches may violate the Equal Protection clause 
when they are initiated solely based on racial 
considerations." Travis placed the burden on 
plaintiffs to show that no race neutral motives played 
a role in the challenged police conduct. Travis. 62 
F.3d at 173-74 (explaining that when officers "decide 
to interview a suspect for many reasons, some of 
which are legitimate and some of which [are] based 
on race ... the use of race in the pre-contact stage 
does not give rise to any constitutional protections.").

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While Travis deals with an equal protection challenge 
to consensual police interviews of airport travelers, 
and here we are dealing with questions to persons 
whose continued detention is because there is 
probable cause to believe they are transporting illegal 
drugs, the inquiry here, if anything, is less intrusive- 
a mere request to see another item of identification 
rather than a consensual search.

**22 Further, it is an inquiry which must be made 
were the officers to arrest plaintiffs since the arrest of 
an alien requires the arresting officers to notify the 
alien's consulate under the Vienna Convention on 
Consular Relations April 25, 1963, 21 U.S.T. 77, 
T.l.A.S. No. 6820. Also OHSP policy # 9-902.08 
requires special steps where an alien is arrested. 
These requirements apply without regard to the race 
of the alien. While there ordinarily may be no reason 
to inquire about immigration status in conjunction 
with a traffic stop, which ordinarily does not result in 
an arrest but rather a traffic citation, a broader inquiry 
is justified for a drug investigation which is likely to 
result in an arrest. While some other officer is 
searching the vehicle, I would hold that an officer 
could further investigate the identity of the driver and 
passenger and the likelihood of their being from a 
nation that is a known drug source. Nowhere is it 
clearly established that the officers must wait until 
they find the drugs before they may inquire further 
regarding suspects whose difficulty in speaking 
English suggests they may be *553 aliens. This is 
not a case where the police initiated the investigation 
based on race.

Whether Travis was correctly decided or whether it 
should continue to be followed, 1 believe it is 
sufficient to entitle Kiefer to qualified immunity in 
the action against him individually for damages. I 
would, therefore, reverse the denial of qualified 
immunity on this issue.

A recurring problem in this appeal is that the district 
court wrote no separate opinion dealing with 
plaintiffs' claims against Kiefer individually. The 
district court's opinions dealt with other defendants as 
well as with class claims. Thus, in describing 
discriminatory conduct, neither the district court nor 
the majority limit their recitation of the facts to 
Kiefer's conduct with respect to plaintiffs. Kiefer is 
not personally liable for another's conduct. There is 
no claim he supervised other defendants. I am at a 
loss to understand how Kiefer's intent can be inferred 
from Sergeant Elling's or Trooper Pache's conduct or 
that of other OSHP officials.

In rejecting Travis, the majority would adopt a 
standard shifting to the defendant the burden of 
establishing that the same decision would have 
resulted even if the impermissible purpose had not 
been considered, relying on Havre and Armstrong, 
The effect of the majority's holding would greatly 
diminish the protection of qualified immunity in 
equal protection claims. It would be a rare case 
involving a minority where plaintiff could not assert 
an issue of fact as to an officer's intent no matter how 
strong the non-discriminatory motive may be. I 
assume the majority would apply the same balancing 
to cases where there is probable cause as well as to 
the investigative stop we have here. The balancing 
would require officers engaged in an investigation to 
make, at their peril and at every step, a decision as to 
whether they would pursue their present course of 
investigation if they had no discriminatory motive. 
They may or may not be thinking of the 
discriminatory motive at the time. And keep in mind 
that it is not whether this officer would or would not 
act the same. To be prudent the officer must consider 
what a jury would be likely to conclude-and all this 
would need to be done on the spot—perhaps in 
seconds. The question of what plays a determinate 
role is not one easily decided.

**23 Confronted by a related problem in W h ren  v. 
United States. 517 U.S. 806, 116 S.Ct. 1769. 135 
L,Ed.2d 89 (1996). where an officer engaged in law 
enforcement was alleged to have mixed motives in 
stopping a vehicle but had probable cause to do so, 
the Court held that if the officer had probable cause 
to stop the vehicle, the Court would not inquire 
whether the officer had another motive.

Although the court left open the question of whether 
Whren's holding would apply if challenged on equal 
protection grounds, it would be a trap for the unwary 
if the officer were subject to a suit for damages after 
he or she arrested someone with probable cause and a 
jury concluded the officer had not proved he would 
have made the arrest except for a discriminatory 
purpose. I believe there is the same need for the 
Whren analysis in equal protection claims, a holding 
that an officer may arrest with probable cause and 
that the court will not examine whether the officer 
also had a discriminatory purpose.

In Whren. recognizing that the Court had been 
unwilling to entertain Fourth Amendment challenges 
based on individual motivation of officers, petitioners 
had sought a standard as to what a reasonable officer 
would have done under same circumstances. In 
rejecting that standard, the Court stated:

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the Fourth Amendment's concern with 
"reasonableness" allows certain actions *554 to be 
taken in certain circumstances, whatever the 
subjective intent. See, eg. FUnited States v, 
Robinson, 414 U.S. 218, 94 S.Ct. 467. 38 L.Ed.2d 
427(1973)1.

Whren. 517 U.S. at 814, 116 S.Ct. 1769.

Elsewhere in its opinion, the Court characterized 
Robinson, holding as follows:

We described Robinson as having established that 
"the fact that the officer does not have the state of 
mind which is hypothecated by the reasons which 
provide the legal justification for the officer's 
action does not invalidate the action taken as long 
as the circumstances, viewed objectively, justify 
that action." 436 U.S. at 136, 138, 98 S.Ct. at 
1723.

Id. at 813, 116 S.Ct. 1769 (quoting Scott v. United 
States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 
(1978)).

The Court found no need to do a balancing 
analysis except for cases conducted in an 
extraordinary manner, harmful to a person’s 
privacy or physical interest. While the Court 
pointed out, But the constitutional basis for 
objecting to intentionally discriminatory 
application of laws is the Equal Protection Clause, 
not the Fourth Amendment. Subjective intentions 
play no role in ordinary, probable-cause Fourth 
Amendment analysis.

Id. at 813, 116 S.Ct. 1769. it would be anomalous 
and a trap for the unwary to tell police officers they 
could arrest with probable cause without regard to 
motivation but they would be liable for damages for 
the same conduct under the equal protection clause 
unless they could prove to a jury they would have 
done the same without the discriminatory motive. 
There is no reason to believe that the Court would 
reject its holding that probable cause to believe the 
law has been broken "outbalances" private interest in 
avoiding police contact. **

**24 I must also respectfully dissent from the 
majority's disposition of plaintiffs' Fourth 
Amendment claim. I do not believe we have 
jurisdiction to decide defendant's appeal since there is 
a material fact in dispute. Defendant has not 
accepted for the purpose of this appeal plaintiffs' 
assertion that they told Kiefer they had paid all the 
necessary fees, rather than, as asserted by Kiefer, that 
they paid for their green cards. If the jury believed 
plaintiffs' testimony, no retention after the drug 
investigation ended was permissible because there

would have been no basis for a reasoned suspicion 
that the cards were counterfeit, invalid, or illegally 
obtained and therefore contraband under Ohio law. 
Under Johnson v. Jones. 515 U.S. 304, 115 S.Ct. 
2151, 132 L.Ed.2d 238 (1995), the court of appeals 
may not review an interlocutory appeal on the 
grounds of qualified immunity where there are 
material issues of fact unresolved. I would dismiss 
the Fourth Amendment portion of the appeal for that 
reason.

We review defendant's motion for summary 
judgment de novo. In the district court, Kiefer argued 
that he had probable cause to seize the cards in view 
of the plaintiffs' admission that they had paid for the 
cards. The district court found only a reasonable 
suspicion to seize the cards. While defendant 
accepted the factual findings of the district court, 
probable cause is not a fact but a legal issue reviewed 
de novo. Ornelas v. United States, 517 U.S. 690, 116
S.Ct. 1657, 134 L.Ed.2d 911 (1996), or at least a 
mixed question where the legal issues are reviewed 
de novo by the appellate court. Kiefer has continued 
to argue in his brief on appeal that he lawfully seized 
the cards If we accept as fact that plaintiffs said they 
"paid for the cards," I would hold he had probable 
cause to seize the cards. Even if Kiefer erred in 
concluding that probable cause existed to *555 seize 
the cards, he would be entitled to qualified immunity 
because his conclusion was reasonable, if mistaken. 
Hunter v Rnant, 502 U.S. 224, 228, 229, 112 S.Ct. 
534. 116 L.Ed.2d 589 (1991): Harlow v. Fitzgerald. 
457 U.S. 800. 102 S.Ct. 2727, 73 L.Ed.2d 396 
(1982). The cards would be contraband under Ohio 
law since they would be forged if not lawfully issued 
to plaintiffs.

Possession of a writing known to be forged with the 
purpose to utter or uttering an identification card is a 
crime under Ohio law. CRC § § 2901.01(m),
2913.32 and 2933.42. The green card is clearly an 
identification card. Kiefer knew that green cards are 
not legally bought and paid for. He had plaintiffs' 
admissions that their cards had been paid for. Clearly 
the cards were possessed with the intent to use them 
as identification. The cards were evidence of the 
suspected crime. They could easily be destroyed if 
not retained. As the district court recognized, Ohio 
State Highway Patrol troopers are entitled to seize 
forged documents. (J.A. 205)

As the Court stated in Texas v. Brown. 460 U.S. 730. 
103 S.Ct. 1535,75 L.Ed.2d 502 (1983):

[Pjrobable cause is a flexible, common-sense 
standard. It merely requires that the facts available

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to the officer would "warrant a man of reasonable 
caution in the belief," Carroll r. United Stares. 267 
U.S. 132. 162. 45 S.Ct. 280. 288. 69 L.Ed. 543 
(1925). that certain items may be contraband or 
stolen property or useful as evidence of a crime; it 
does not demand any showing that such a belief be 
correct or more likely true than false. A "practical, 
nontechnical" probability that incriminating 
evidence is involved is all that is required. 
Brineear v. United States. 338 U.S. 160, 176, 69 
S.Ct. 1302, 1311, 93 L.Ed. 1879(1949).

**25 Id. at 742, 103 S.Ct. 1535.

If the cards were legally seized on this basis, the 
continued retention of the green cards does not 
constitute a separate Fourth Amendment seizure. 
Fox v. Van Oosterum, 176 F.3d 342 (6th Cir.1999). 
TFN11

FN1. As we stated in United States v. 
Anderson. 923 F.2d 450, 457 (6th Cir.19911. 
"probable cause is determined by an 
objective examination of all of the 
circumstances known to the officers. Just as 
a subjective belief by the arresting officer 
would not establish probable cause where 
none existed, a subjective belief by the 
arresting officer cannot destroy probable 
cause where it exists." (citing Florida v. 
Rover. 460 U.S. 491, 507, 103 S.Ct. 1319, 
1329, 75 L.Ed.2d 229 (1982)1.
Our court went on to hold that "knowledge 
of the precise crime committed is not 
necessary to a finding of probable cause 
provided that probable cause exists showing 
that a crime was committed by the 
defendants." Id. at 457.

If I am in error and there was no probable cause to 
seize the cards, then I agree that United States v. 
Place. 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 
(19831 was the controlling-established law and the 
cards were required to be returned after the search for 
drugs was completed.

Finally, I do not believe we should apply the 
doctrine of pendent appellate jurisdiction and affirm 
the grant of summary judgment to plaintiffs for at 
least three reasons. First, the parties have been given 
no opportunity to brief the issue. While plaintiffs 
asked that we review additional issues beyond 
defendant's qualified immunity, that motion was not 
granted.

Second, in granting summary judgment to plaintiffs, 
the court is foreclosing defendant Kiefer from 
appealing the issue of whether he had probable cause 
to seize the green cards. Judge Moore's opinion 
holds that in his brief on appeal Kiefer does not 
challenge the district court's ruling that he *556 did 
not possess probable cause to seize the green cards 
and does not address the merits of that issue. 
Although Kiefer did not raise the issue specifically in 
his brief, he has not waived it explicitly either and 
has argued in his brief in chief that the cards could be 
seized as contraband, a status they could achieve only 
if there were probable cause for their seizure. It is 
patently unfair to grant summary judgment to 
plaintiffs without reviewing an issue they raised in 
the district court but may not have adequately raised 
on the limited appeal of a qualified immunity 
defense. In effect, the panel is requiring that 
defendants appealing on qualified immunity must 
appeal all possible issues and if defendants fail to 
appeal an issue, judgment may be entered against 
them and they will be foreclosed from presenting that 
issue at trial.

Third, neither we nor the district court have clearly 
defined the boundaries of the constitutional violation. 
Judge Moore's opinion concludes that at least the 
retention of the cards beyond some time on Monday, 
when their validity could have been checked, violated 
the Fourth Amendment. If the violation is controlled 
by Place, and there was no probable cause, it seems 
to me that retention of the green cards after finding 
no drugs and permitting plaintiffs to be on their way 
completed the constitutional violation. A green card 
seems as closely related and important to a traveler as 
luggage and the Supreme Court held in Place that a 
seizure of drugs based on reasonable suspicion could 
not be extended 90 minutes to wait for the drug dog. 
The district court appears to hold that the retention 
for verification "would only be permissible under the 
Fourth Amendment if Trooper Kiefer made clear to 
plaintiffs how he planned to reunite them and the 
green cards and if retention was no longer than 
absolutely necessary to verify the documents." (J.A. 
210) While the Court in Place held that "the violation 
was exacerbated by the failure of the agents to 
accurately inform respondent of the place to which 
they were transporting his luggage, of the length of 
time he might be dispossessed, and of what 
arrangements would be made for return of the 
luggage if the investigation dispelled the suspicion." 
462 U.S. at 710, 103 S.Ct. 2637, there is no 
suggestion that providing that information is 
constitutionally required or that, standing alone, the

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308 F.3d 523
2002 Fed.App. 036IP
(Cite as: 308 F.3d 523, 2002 WL 31317699 (6th Cir.(Ohio)))

Page 27

failure to give such information is a constitutional 
violation.

**26 Also, while the district court seems to accept 
the officer's testimony that plaintiffs told them they 
paid for the cards, plaintiffs have not abandoned their 
claim that they told him they had paid the necessary 
fees. (App.Br.4) They maintain there was no 
reasonable suspicion justifying retention of the cards 
in light of that answer, if the jury believed they said 
"fees" or paid the fees, it could find there was no 
basis to retain the cards beyond the time taken for the 
drug investigation. [FN21

308 F.3d 523, 2002 WL 31317699 (6th Cir.(Ohio)), 
2002 Fed.App. 0361P

END OF DOCUMENT

FN2. It is unclear whether plaintiffs will be 
permitted to show that the officer was 
without basis to seize the green cards 
because they said they paid the fees—not that 
they paid for the cards. Their damages may 
be different if there were no basis for seizing 
the cards. [Will defendant be precluded 
from arguing that the appearance of one of 
the cards made him question its validity? A 
fact he testified to in his deposition.]

In granting summary judgment to plaintiffs, the 
district court also held that Kiefer was required to 
give plaintiffs some kind of substitute card. 1 cannot 
agree that this requirement was clearly established or 
constitutionally required.

The court is granting summary judgment to both 
plaintiffs. The second officer, not defendant Kiefer, 
took the green *557 card from Esparza. The record is 
unclear as to the relationship between defendant 
Kiefer and the second officer. They appear to have 
arrived in separate vehicles, but even this is unclear. 
While Kiefer retained Esparza's card, he was not the 
one who seized it.

In view of the factual issues, the uncertainty as to the 
parameters of the Fourth Amendment violation, the 
lack of briefing, the denial of the ability to raise the 
probable cause issue on appeal of summary judgment 
for plaintiffs, even though he clearly did not waive it, 
I do not believe we should decide plaintiffs’ motion 
for summary judgment on the Fourth Amendment 
claim. It seems to me that affirming summary 
judgment for plaintiffs on our own initiative requires 
more certainty than we have here. I do not see the 
issue that is inextricably intertwined in the issues 
properly before us.

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Page 1

f>

Only the Westlaw citation is currently available.

United States District Court,
N.D. New York.

Larry B. FLOWERS, Barbara J. Walker and Benita 
Randolph, Plaintiffs,

v.
The TJX COMPANIES, INC., The TJX Operating 

Companies, Inc., The TJX Companies,
Inc. d/b/a T.J. Maxx, The TJX Operating 
Companies, Inc. d/b/a T.J. Maxx, Town 

of Colonie, Officer Michael Torrey, Officer Joseph 
Valiquette, and Officer 

David Mesick, Defendants.

No. 91-CV-1339.

July 15, 1994.

Harvey, Harvey & Mumford, Albany. NY, for 
plaintiffs; Brian F. Mumford. of counsel.

Maynard, O'Connor & Smith, Albany, NY, for 
defendants Town of Colonie, Officer Michael Torrey, 
Officer Joseph Valiquette, and Officer David Mesick; 
Mae A. D'Agastino, Arete Sprio. of counsel.

Roche, Corrigan, McCoy & Bush, Albany, NY, for 
Defendants TJX Companies, Inc., The TJX Operating 
Companies, Inc., The TJX Companies, Inc., d/b/a T.J. 
Maxx, and the TJX Operating Companies, Inc., d/b/a
T.J. Maxx; Robert P. Roche, of counsel.

1994 WL 382515
(Cite as: 1994 WL 382515 (N.D.N.Y.))

MEMORANDUM-DECISION AND ORDER

MUNSON. Senior District Judge.

*1 Plaintiffs in this civil rights case allege causes of 
action under 42 U.S.C. § S 1981. 1982. 1983. 1985. 
1986. 1988. and the Fourth, Fifth, Sixth, Ninth, 
Thirteenth, and Fourteenth Amendments to the 
United States Constitution. Presently before the 
court is a motion by defendants Town of Colonie, 
Officer Michael Torrey, Officer Joseph Valiquette 
and Officer David Mesick for summary judgment 
under Rule 56 of the Federal Rules of Civil 
Procedure. Oral argument was heard on defendants' 
motion on September 27, 1993. For the reasons 
stated below, the motion is granted in part, and 
denied in part.

1. BACKGROUND

This case arises out of events that took place on 
November 2, 1991, at the T.J. Maxx retail store in 
Latham. New York. At approximately 5:00 p.m. on 
that day, a Town of Colonie Police dispatcher 
received a call from Tom Moss, store manager of T.J. 
Maxx. Moss informed the dispatcher that "three 
black gentlemen" walked out of the store with a 
woman's jacket. See Transcript of Conversation, 
Exhibit ("Exh.") D attached to Defendants' Notice of 
Motion, Document ("Doc.") 15. At Moss's request, a 
police unit was dispatched to the store, where a 
person unrelated to this suit was arrested for the 
larceny of a woman's coat.

At approximately 6:00 p.m., a second call from T.J. 
Maxx was received by the Colonie police dispatcher. 
This call was placed by Susan Miner, Assistant 
Manager of the store. Ms. Miner stated that "the 
shoplifters are back in." Id. at 2. She indicated that 
"two of 'em", a man and a woman, were acting 
suspiciously, and that she feared another larceny 
would occur. Id. The dispatcher assigned defendant 
Officers Torrey, Valiquette and Mesick (the "police 
defendants") to the scene.

The record is conflicted as to what happened after 
the officers arrived at T.J. Maxx. According to 
Officer Torrey, he presented himself at the service 
counter, where he had a conversation with Susan 
Miner. Transcript of Torrey Deposition, Exh. G 
attached to Defendants' Notice of Motion, Doc. 15, at 
21- 29. After Miner left the service counter he 
briefly spoke with store employee Mary Pennant. Id. 
at 29-42. Pennant and Torrey then moved to the 
"triangle area" at the front of the store, where they 
further discussed the situation with employee Sandra 
Baldwin. Id. at 48, 55-60.

According to Torrey, Pennant told him that an 
employee witnessed an African- American male 
suspect placing a pair of socks in his coat and another 
African- American male suspect trying on a sweater, 
walking around with it on, and leaving it in another 
department. Id. at 31. Pennant requested that Torrey 
ask the Robinsons, an African-American couple, to 
leave the store. Id. at 48. Torrey avers that based on 
his conversations with Miner, Pennant and Baldwin 
he confronted the Robinsons. He asserts that those 
conversations provided him with a reasonable basis 
for removing the Robinsons from the premises. Id. at 
62.

Officer Torrey claims that he asked the Robinsons to 
leave the premises, and escorted them to the front of

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(Cite as: 1994 WL 382515 (N.D.N.Y.))

Page 2

the store. As he did so, he observed plaintiffs 
Flowers and Walker near the store exit. As he 
passed them he asked "Are we done shopping?" Id. 
at 73. Torrey states that if plaintiffs had not 
thereupon left the store, he intended to ask them to do 
so. Id. at 74. Plaintiffs did leave the store, but not 
until Flowers completed a purchase. Flowers 
Affidavit, attached to Mumford Affidavit, Doc. 22, at 
HH 7-8.

Based on Officer Torrey's account of events, the 
Town of Colonie and the police defendants move for 
summary judgment dismissing all claims against 
them. In opposition to defendants' motion, plaintiffs 
note that Mary Pennant and Susan Miner tell a far 
different story about what happened on November 2, 
1991. According to Miner, when Officer Torrey 
arrived at the store, he approached the service 
counter. Transcript of Miner Deposition, Doc. 25, at 
150. Miner told Torrey that the store did not want 
Flowers arrested, but wanted him to make his 
purchases and leave the store of his own volition. Id. 
at 151, 154, 159. According to Miner, she informed 
Torrey that all the store desired was a police presence 
in the store. Id. at 138.

*2 Pennant denies speaking to Torrey until after he 
confronted plaintiffs. Transcript of Pennant 
Deposition, Doc. 26, at 72, 74. According to 
Pennant's deposition testimony, her conversation with 
Torrey was limited to the issue of what should be 
done with the Robinsons, who remained in the 
vestibule of the store and were demanding an 
explanation for their forced removal from the store. 
Id. at 77-78, 85. It was at this time that Pennant 
agreed that Torrey should ask the Robinsons to leave, 
and Baldwin told Torrey that she had seen Mr. 
Robinson conceal and then unconceal a pair of socks. 
Id. at 77; Transcript of Miner Deposition, Doc. 25, at 
166. Pennant's recollection is that she never 
authorized Torrey to ask plaintiffs to leave. 
Transcript of Pennant Deposition, Doc. 26, at 77.

Plaintiffs concede that they can prove neither a 
violation of plaintiffs' Fifth, Sixth, or Ninth 
Amendment rights, nor a violation of 42 U.S.C. i? $ 
1982. 1985, or 1986. against any defendant.
Plaintiffs further concede that they are unable to 
prove violations of § $ 1981 or 1983 on the part of 
the Town of Colonie, leaving no claims against that 
defendant. Claims remain, however, pursuant to the 
Fourth, Thirteenth, and Fourteenth Amendments, and 
42 U.S.C. tj ft 1981 and 1983. against the police 
defendants.

II. DISCUSSION

A. Summary Judgment Standards

Under Federal Rule of Civil Procedure 56(c) 
summary judgment shall enter if, when viewing the 
evidence in the light most favorable to the 
nonmovant, the court determines that there is no 
genuine issue of material fact and the movant is 
entitled to judgment as a matter of law. Fed.R.Civ,P, 
56(c); Eastman Kodak Co. v. Image Technical 
Sens.. Inc.. — U.S. — , — , 112 S.Ct. 2072, 2077 
(1992); Commander Oil v. Advance Food Sen'. 
Equip.. 991 F.2d 49, 51 (2d Cir.1993). Where the 
moving party does not bear the ultimate burden of 
proof on an issue, that party satisfies its summary 
judgment burden by pointing to the absence of 
evidence to support an essential element of the non­
moving party's claim. Consarc Corp. v. Marine 
Midland Bank. N.A.. 996 F.2d 568, 572 (2d 
Cir.1993). Where the movant does shoulder the 
burden of proof, it must establish that there is no 
genuine issue of material fact to be decided regarding 
any element of that party's claim. Celotex Corp. v, 
Catrett, A ll U.S. 317, 322 (1986). In either case, if 
the movant satisfies its initial summary judgment 
burden, then the burden shifts to the nonmovant to 
proffer evidence demonstrating that a trial is required 
because a disputed issue of material fact exists. Wes 
r. Macciarola, 995 F,2d 15, 18 (2d Cir. 19931. To 
survive the motion for summary judgment the 
nonmovant must do more than present evidence that 
is merely colorable, conclusory, or speculative, 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249- 
50 (1986). and furthermore must show more than 
"some metaphysical doubt as to the material facts." 
Matsushita Electric Industrial Co. v. Zenith Radio 
Corp., 475 U.S. 574, 586(1986). In other words, the 
nonmovant must demonstrate that there are issues of 
fact that must be decided by a factfinder, because 
"they may reasonably be decided in favor of either 
party." Thompson v. Giivoie. 896 F.2d 716, 720 (2d 
Cir,1990).

*3 Before addressing the specific arguments raised 
by the police defendants in support of their motion 
for summary judgment, the court notes as an initial 
matter that plaintiffs concede that they have no 
claims against the Town of Colonie. Therefore, as it 
relates to the Town of Colonie, defendants' motion 
for summary judgment is granted in its entirety. 
Turning to the arguments of the remaining 
defendants, the court applies the standards for 
summary judgment as just described.

B. Section 1983 Claim

To be entitled to relief pursuant to 42 U.S.C. $

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(Cite as: 1994 WL 382515 (N.D.N.Y.))

Page 3

1983. [FM1 plaintiffs must establish (1) that they 
were deprived of a right, privilege, or immunity 
secured by the Constitution or laws of the United 
States, and (2) that the conduct causing the 
deprivation was attributable at least in part to a 
person acting under color of state law. E. e.. Gome: 
v. Toledo. 446 U.S. 635, 640 (1980): Adickes v. 
Kress & Co., 398 U.S. 144, 150 (1970): Dwires v. 
City o f New York. 985 F.2d 94, 98 (2d Cir. 19931.

The police defendants do not dispute that they acted 
under color of state law upon being dispatched to T.J. 
Maxx. Instead, they argue that: (1) plaintiffs were 
not deprived of any federal rights; and (2) even if 
federal rights were abrogated, the police defendants 
are shielded from liability by the doctrine of qualified 
immunity because they acted within the scope of 
their employment. The court begins its $ 1983
analysis by examining the alleged violations of 
plaintiffs' rights.

1. Fourth Amendment

Plaintiffs first allege that their rights under the 
Fourth Amendment to the United States Constitution 
were violated. A Fourth Amendment analysis is 
often a two step process. It first must be determined 
whether there was in fact a seizure, and second, if so, 
whether the seizure was based on reasonable 
suspicion.

While the Fourth Amendment's prohibition of 
unreasonable searches and seizures does not apply to 
every encounter between citizens and police, a 
seizure may be affected where a police officer 
"briefly detains an individual and restrains that 
person's right to walk away." United States v. 
Moreno. 897 F.2d 26. 30 (2d Cir.). cert, denied. 497
U.S. 1009 (1990). The test for determining whether 
an encounter between a police officer and a citizen 
amounts to a seizure is whether" 'in view of all of the 
circumstances surrounding the incident, a reasonable 
person would have believed that he was not free to 
leave.' " Id. (quoting United States v. Mendenhall, 
446 U.S. 544. 554 (1980). Factors that may 
contribute to a reasonable apprehension that one is 
not free to leave include "the threatening presence of 
several officers" or "the use of language or tone of 
voice indicating that compliance with the officer's 
request might be compelled." United States v. 
Thompson. 941 F.2d 66. 70 (2d Cir. 1991) (quoting 
Mendenhall. 446 U.S. at 554).

In the instant case, no genuine issue of fact exists as 
to whether plaintiffs suffered from a reasonable 
apprehension that they were not free to leave.

Plaintiffs were not detained; at most they were 
expelled. Since plaintiffs can not argue that they 
were detained, they can not demonstrate that they 
were seized. Therefore, plaintiffs' $ 1983 claim is 
dismissed in so far as it is predicated on a violation of 
the Fourth Amendment.

2. Thirteenth Amendment

*4 Plaintiffs also sue under 42 U.S.C. $ 1983 for 
violations of their rights under the Thirteenth 
Amendment to the United States Constitution. 
Section one of that Amendment provides that 
"[n]either slavery nor involuntary servitude, except as 
punishment for crime ... shall exist within the United 
States." U.S. CONST, amend XIII. $ 1. Section 
two gives Congress the power to enforce the 
Amendment through appropriate legislation. The 
Supreme Court has narrowly construed the direct, 
self-executing meaning of the Amendment. In 
Memphis v. Greene. 451 U.S. 100, 102 119811. 
African-American residents of Memphis sued the city 
for closing a street at the border between a black 
neighborhood and a white neighborhood. The Court 
declined to decide whether, in the absence of 
congressional enforcement, the Thirteenth 
Amendment did anything more than abolish slavery. 
Assuming that the Amendment did have a broader 
self-executing effect, the Court held that the acts 
"could not ... be fairly characterized as a badge or 
incident of slavery." Greene. 451 U.S. at 125-26.

By analogy, this court holds as a matter of law that, 
even viewing the evidence in a light most favorable 
to plaintiffs, the actions complained of are not badges 
or incidents of slavery for purposes of the Thirteenth 
Amendment. Therefore, plaintiffs' § 1983 claim also 
is dismissed to the extent that it depends upon a 
violation of plaintiffs' rights under the Thirteenth 
Amendment.

3. Fourteenth Amendment

Plaintiffs do, however, point to factual disputes 
sufficient to preclude summary judgment on their 
equal protection claim. Plaintiffs allege that the 
defendant officers deprived them of their Fourteenth 
Amendment right to equal protection of the law by 
treating them differently than other customers in the 
store on the basis of their race. While the officers 
deny any discriminatory intent, the record contains 
issues of fact which could allow a jury to find that 
discrimination was a factor in the officers' actions.

A plaintiff in an equal protection action has the 
burden of demonstrating discriminatory intent.

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(Cite as: 1994 WL 382515 (N.D.N.Y.))

Page 4

Village o f Arlington Heights v. Metropolitan Hominy 
Dev. Cory., 429 U.S. 252, 265 (1077): Washington 
v. Davis. 426 U.S. 229. 241-42 (1976). It is not 
necessary to demonstrate that the challenged action 
was taken solely for discriminatory purposes; it is 
necessary only to prove that a discriminatory purpose 
was a motivating factor. Village o f Arlington 
Heights. 429 U.S. at 265.

In the instant case, factual disputes surround the 
sequence of events that took place after Officer 
Torrey entered T.J. Maxx. For example, the record 
is unclear as to what the store employees told Torrey 
about plaintiff Flowers' behavior. According to one 
of the store employees, Mr. Robinson was the person 
who briefly concealed a pair of socks under his coat. 
Testimony of Miner Deposition, Doc. 25, at 166. 
Flowever, Officer Torrey asserts in his deposition 
testimony that Miner, Pennant and Baldwin each told 
him that Larry Flowers was the person involved in 
the sock incident. Transcript of Torrey Deposition, 
Exh. G attached to Defendants' Notice of Motion, 
Doc. 15, at 56. One of the employees also avers that 
plaintiff Flowers tried on a sweater at the sweater 
table in T.J. Maxx, and that he never left the table 
before taking the sweater off and returning it to the 
sweater table. Transcript of Miner Deposition, Doc. 
25, at 130. While Miner testifies that this is common 
behavior, id. at 35-36, Torrey perceived it to be 
suspicious. Transcript of Torrey Deposition, Doc. 
15, at 62.

*5 The record is clear on several points. First, no 
accusations of wrongdoing were made against 
plaintiffs Barbara Walker and Benita Randolph. 
Second, the store employees never requested Officer 
Torrey to remove plaintiff Flowers from the store. 
See id. at 47-48 ("I don't believe [Pennant] asked me 
to have the subjects leave the store."); Transcript of 
Miner Deposition, at 151 ("I said [to Torrey] just let 
[Flowers] make his sale and let him leave ") Third, 
Officer Torrey was aware of the earlier unrelated 
arrest at T.J. Maxx. Torrey testified that he heard the 
radio transmissions regarding that arrest. Transcript 
of Torrey Deposition, Exh G attached to Defendants' 
Notice of Motion, Doc. 15, at 21-22. The 
transmissions indicated that the suspects were 
African-American. See Transcript of Transmission, 
Exh. D attached to Defendants' Notice of Motion, 
Doc. 15.

Given the confusion surrounding what was said to 
Officer Torrey upon his arrival at T.J. Maxx, the fact 
that Officer Torrey had prior knowledge of 
shoplifting incidents at T.J. Maxx involving African- 
Americans, the fact that Barbara Walker and Benita

Randolph admittedly were accused of no 
wrongdoing, and the fact that Officer Torrey was 
never asked to remove plaintiffs from the store, the 
court can not rule as a matter of law that race did not 
play a role in Officer Torrey's decision to remove 
plaintiffs from the T.J. Maxx store. Hence the court 
holds that absent a valid affirmative defense, a trial is 
warranted on plaintiffs' equal protection claim.

4. Qualified Immunity

The police defendants argue in the alternative that 
even if their actions violated plaintiffs' federal rights, 
defendants are entitled to qualified immunity. The 
doctrine of qualified immunity serves to shield public 
officials from liability in S 1983 actions "insofar as 
their conduct does not violate clearly established 
statutory or constitutional rights of which a 
reasonable person would have known." Harlow u. 
Fitzgerald. 457 U.S. 800, 818 (19821; see also 
Purnell v Lord, 952 F.2d 679, 683-84 (2d Cir. 19921. 
The right must be clearly established, in that "the 
contours of the right must be sufficiently clear that a 
reasonable official would understand that what he is 
doing violates that right." Anderson v. Creighton, 
483 L'.S. 635, 640 (1987); see also Zavaro v. 
Coughlin. 970 F.2d 1148. 1 153 (2d Cir.19921. In 
order to establish qualified immunity on summary 
judgment, the official must adduce " 'sufficient facts 
[such] that no reasonable jury, looking at the 
evidence in the light most favorable to, and drawing 
all inferences most favorable to, the plaintiffs, could 
conclude that it was objectively reasonable for the 
defendant ]' to believe that he was acting in a fashion 
that did not clearly violate an established federally 
protected right." Robison v. Via. 821 F.2d 913, 921 
(2d Cir.1987) (quoting Halyerin v. Kissinger. 807 
F.2d 180, 189 (D,C.Cir.l986)l.

*6 Defendants currently are unable to meet this 
burden. Because a reasonable jury, crediting the 
testimony of plaintiffs and the store employees, could 
conclude not only that plaintiffs' rights were violated, 
but that the police defendants could not reasonably 
have believed that they were acting within the scope 
of their legal authority, summary judgment on the 
basis of qualified immunity is not warranted.

Further, because material issues of fact pervade both 
plaintiffs' t; 1983 claim that their rights under the 
Fourteenth Amendment were violated, and 
defendants' qualified immunity defense, a trial is 
required on plaintiffs' claim. Therefore, as to 
plaintiffs $ 1983 claim implicating a violation of the 
Fourteenth Amendment, defendants' motion for 
summary judgment is denied.

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(Cite as: 1994 WL 382515 (N.D.N.Y.))

Page 5

C. Section 1981 Claim

Section 1981 provides that all citizens shall have the 
same right to, among other things, "make and enforce 
contracts." 42 U.S.C. § 1981. The aim of the
statute is to remove the impediment of discrimination 
from a minority citizen's ability to participate fully 
and equally in the marketplace. Patterson v. 
McLean Credit Union, 491 U.S. 164, 150 (1989). 
This right extends not only to interactions between 
citizens and government, but to private dealings as 
well. St. Francis College v. Al-Khazraji, 481 U.S. 
604, 609(1987).

The refusal to contract with a person due to his race 
is actionable under 1981, Patterson. 491 U.S. at 
176, as is third party interference with contractual 
rights. Al-Khazraji v. St. Francis College. 784 F.2d 
505, 518 (3d Cir. 19861, affd. 481 U.S. 604 (1987): 
Faraca v. Clements, 506 F,2d 956, 959 (5th Cir.l. 
cert, denied. 422 U.S. 1006 (19751: Coleman v. Don 
Chem. Co.. 747 F.Supp. 146. 155 (D.Conn, 19901: 
Kolb v. Ohio Dev't o f Mental Retardation and 
Developmental Disabilities. 721 F.Supp. 885, 892 
(N.D.Ohio 1989): Rennick v. Champion Int'l Cory., 
690 F.Supp. 603, 606 IS.D.Ohio 1988): Ingram v 
Madison Square Garden Center. Inc., 482 F.Supp. 
414, 423 (S.D.N.Y.19791. To prevail under § 1981. 
plaintiff must prove purposeful racial discrimination. 
General Bldg. Contractors Ass'n v. Pennsylvania. 
458 U.S. 375, 391 (19821: Zemsky v. Cit\- o f New 
York, 821 F.2d 148, 150 (2d Cir.l. cert denied. 484 
U.S. 965 (1987).

Viewing the evidence in a light most favorable to 
plaintiffs, the court holds that plaintiffs fail to state a 
claim for relief under 42 U.S.C. $ 1981. While
plaintiffs complain that their contractual rights were 
impinged on the basis of their race, it is uncontested 
that plaintiffs completed their retail transactions at 
T.J. Maxx despite the alleged discrimination of 
defendants. Because no interference with the 
formation of an implicit retail contract took place, 
plaintiffs can not recover damages under S 1981. 
Defendants' motion for summary judgment therefore 
is granted in so far as it addresses plaintiffs' claims 
under 42 U.S.C. § 1981.

III. CONCLUSION

*7 Summary judgment pursuant to Fed.R.Civ.P. 
56(c) is granted as it relates to defendant Town of 
Colonie, and all causes of action against the Town 
are dismissed with prejudice. Summary judgment is 
also granted to as to plaintiffs’ claims against

defendants Torrey, Valiquette and Mesick under 42 
U.S.C. tj 1983 implicating violations of the Fourth, 
Fifth, Sixth, Ninth and Thirteenth Amendments to the 
United States Constitution. Further, summary 
judgment is granted on plaintiffs’ claims under 42 
U.S.C. 3 $ 1981, 1982, 1985, 1986 and .1988, and 
these claims are dismissed with prejudice as they 
apply to defendants Torrey, Valiquette, and Mesick. 
Summary judgment is denied as to plaintiffs’ $ 1983 
claim alleging that defendants Torrey, Valiquette, 
and Mesick violated plaintiffs' Fourteenth 
Amendment rights to equal protection. The 
remaining parties are directed to prepare for trial.

It is So Ordered.

FN1. Section 1983 provides:
Every person who, under color of statute, 
ordinance, regulation, custom, or usage, of 
any State or Territory or the District of 
Columbia, subjects or causes to be 
subjected, any citizen of the United States or 
other person within the jurisdiction thereof 
to the deprivation of any rights, privileges, 
or immunities secured by the Constitution 
and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other 
proper proceeding for redress.

1994 WL 382515, 1994 WL 382515 (N.D.N.Y.)

END OF DOCUMENT

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1996 WL 617165
(Cite as: 1996 WL 617165 (N.D.I11.))

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c
Only the Westlaw citation is currently available.

United States District Court, N.D. Illinois, Eastern 
Division.

Ricky L. HENDERSON, Plaintiff,
v.

JEWEL FOOD STORES, INC., Christopher Grabot, 
individually and as an agent for 

Jewel Food Stores, Inc., and John Doe, individually 
and as an agent for Jewel 

Food Stores, Inc., Defendants.

No. 96 C 3666.

Oct. 23, 1996.

MEMORANDUM OPINION AND ORDER 

HART. District Judge.

*1 Plaintiff Ricky L. Henderson brings this action 
against Jewel Food Stores, Inc. ("Jewel"), 
Christopher Grabot, individually and as an agent for 
Jewel, and John Doe (identity unknown), individually 
and as an agent for Jewel, alleging civil rights 
violations under 28 U.S.C. § 1981, malicious
prosecution and intentional infliction of emotional 
distress. Defendants move to dismiss plaintiffs 
complaint pursuant to Federal Rule of Civil 
Procedure 12(b)(6).

/. ALLEGED FACTUAL BACKGROUND

On July 4, 1995, plaintiff, an African-American, 
went to the Jewel Osco store on North Lewis in 
Waukegan, Illinois to purchase various items. One 
of the items plaintiff wished to buy was a package of 
razor blades that was on sale. Grabot, a Jewel 
employee or agent, saw plaintiff shortly after he 
entered the store. Grabot immediately began to 
follow plaintiff throughout the store.

When plaintiff finished shopping, he proceeded 
towards the cashier, carrying a package of razor 
blades, lotion, toilet paper and cologne. On his way 
to the cashier, plaintiff decided not to purchase the 
cologne. As plaintiff passed near the customer 
service area, he set the cologne down near the check 
cashing machine. Plaintiff then proceeded to the 
cashier. When the cashier scanned the package of 
razor blades, however, plaintiff realized that he had

picked up a package of razors that was not on sale. 
Informing the cashier that he would quickly return, 
plaintiff went to retrieve the sale razors, leaving the 
remaining items with the cashier. Because other 
customers were behind plaintiff in line, he exited the 
cashier line in the normal fashion and walked back 
towards the customer service area. On his way back, 
plaintiff picked up a bottle of laundry detergent. 
Plaintiff then changed his mind about purchasing the 
cologne and decided retrieve the bottle he had left at 
the check cashing machine. As soon as plaintiff 
picked up the bottle, Grabot approached plaintiff and 
accused him of theft. Plaintiff protested that he was 
not stealing anything. Grabot responded that "I 
know' you people because I've been doing this job for 
four years and I know you were going to steal this 
cologne."

Grabot escorted plaintiff to the back of the store and, 
over plaintiffs repeated protests of innocence, 
attempted to force him to sign a confession. 1FN11 
Grabot called the Waukegan police, who arrested 
plaintiff on the basis of Grabot's accusations. TFN21 
Plaintiff was escorted out of the store in handcuffs.

FN1. John Doe, the unknown individual 
acting as manager of the store, was also 
present. Plaintiff attempted to enlist Doe's 
assistance by relating to Doe that he had 
never left the store and had not intended to 
steal anything. Plaintiff told Doe of 
Grabot’s statements to him. Doe did not 
intervene during the entire episode.

FN2, Grabot never mentioned to plaintiff or 
the police officers that plaintiff was holding 
the bottle of detergent in addition to the 
bottle of cologne at the time Grabot stopped 
him.

After plaintiff was arrested, Grabot went outside to 
plaintiffs car, entered it and took a coffee maker, 
which plaintiff had received as a house warming gift 
upon the purchase of his home. Grabot then 
telephoned the Waukegan Police Department and 
stated to the arresting officers that plaintiff had stolen 
the coffee maker as well.

Plaintiff was charged with retail theft of the cologne 
and the coffee maker. On September 13, 1995, the 
criminal case against plaintiff proceeded to trial. The 
state's only witness was Grabot. After the state 
rested its case, the judge entered a directed verdict in

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1996 WL 617165
(Cite as: 1996 WL 617165 (N.D.I11.))

Page 2

favor of plaintiff.

*2 On October 25, 1995, plaintiff visited the Jewel 
store on Greenbay Road. Plaintiff was shopping at a 
different store in an effort to avoid Grabot. Grabot, 
however, was assigned to the Greenbay store on that 
day. Upon seeing plaintiff. Grabot told plaintiff that 
he would "catch him yet" because "his kind never 
quit." Among other things said, Grabot threatened to 
break plaintiffs neck. Plaintiff called the Waukegan 
police and filed a report for assault.

On June 17, 1996, plaintiff filed this complaint. In 
Count I, against Jewel, plaintiff alleges that Jewel 
violated 42 U.S.C. $ 1981 by its policies and practice 
of overlooking, approving or condoning the behavior 
of Grabot described above. In Count II, against 
Grabot and Doe, plaintiff claims that Grabot and Doe 
violated 42 U.S.C. $ 1981 by interfering with
plaintiffs constitutional rights. Count III, against all 
three defendants, alleges that the actions of the 
defendants amounted to a malicious prosecution 
under Illinois state law. In Count IV, against Jewel 
and Grabot, plaintiff asserts a claim for intentional 
infliction of emotional distress. [FN3]

FN3. Defendants mistakenly assert that 
Counts III and IV are based on $ 1981. and 
they move to dismiss all counts for failure to 
state a claim under 5 1981. Presumably, 
defendants mean to assert that if Counts I 
and II are dismissed, Counts III and IV 
should be dismissed for lack of subject 
matter jurisdiction. Defendants' motion to 
dismiss does not argue that plaintiffs 
malicious prosecution or intentional 
infliction of emotional distress counts fail to 
state a claim. Therefore, to the extent 
defendants assert that Counts III and IV may 
be dismissed on the grounds asserted in 
defendant's memorandum or for a lack of 
subject matter jurisdiction, defendants' 
motion will be denied.

II. MOTION TO DISMISS

On a motion to dismiss, plaintiffs well-pleaded 
allegations of fact are taken as true and all reasonable 
inferences must be drawn in plaintiffs favor. 
Leatherman v. Tarrant County Narcotics Intelligence 
& Coordination Units, 507 U.S. 163, 164 (1993): 
Swofford v. Mandrel1, 969 F.2d 547, 549 (7th 
Cir. 19921. A complaint need not set forth all 
relevant facts or recite the law, all that is required is a

short and plain statement showing that the party is 
entitled to relief. Fed.R.Civ.P. 8(al: Do hern- v. C/rr 
of Chicago. 75 F.3d 318, 322 (7th Cir. 19961. A 
plaintiff in a suit in federal court need not plead facts; 
conclusions may be pled as long as the defendant has 
at least minimal notice of the claim. Fed.R.Civ.P. 
8(a)(2); Jackson v. Marion Counn\ 66 F.3d 151, 
153-54 (7th Cir.1995). The complaint need not 
specify the correct legal theory nor point to the right 
statute. Bartholet v. Reishauer A.G., 953 F.2d 1073, 
1078 (7th Cir.1992). Dismissal of the complaint is 
proper only if it appears beyond doubt that the 
plaintiff can prove no set of facts in support of a 
claim that would entitle the plaintiff to relief. 
Dohern-. 75 F.3d at 322: Roots Partnership v. Lands' 
End. Inc.. 965 F.2d 1411, 1416 (7th Cir.1992).

Section 1981 provides that "[a] 11 persons within the 
jurisdiction of the United States shall have the same 
right in every State ... to make and enforce contracts 
... as is enjoyed by white citizens." 42 U.S.C. g 
1981(a). This right "includes the making, 
performance, modification, and termination of 
contracts, and the enjoyment of all benefits, 
privileges, terms, and conditions of the contractual 
relationship." 42 U.S.C. $ 1981(b). To establish a 
claim under vj 1981. a plaintiff must allege that (1) 
the plaintiff is a member of a racial minority; (2) the 
defendant intended to discriminate on the basis of 
race; and (3) the discrimination concerned the 
making and enforcing of a contract. Morris v. Office 
Max, Inc., 89 F.3d 411,413 (7th Cir. 1996).

*3 Defendants first argue that plaintiff has failed to 
satisfy the second element of a $ 1981 claim because 
plaintiffs complaint contains no "specific allegations 
that the action by Grabot was motivated by race." 
Plaintiff responds that Grabot's language evinces the 
racial animus underlying his actions. In his 
complaint, plaintiff alleges that Grabot stated "I know 
you people ... and I know you were going to steal this 
cologne." In addition, Grabot stated to plaintiff that 
he would "catch him yet" because "his kind never 
quit."

Construing all well-pleaded allegations in plaintiffs 
favor, plaintiff has alleged facts from which to infer 
that Grabot intended to discriminate against plaintiff 
on account of his race. On a motion to dismiss, it is 
a reasonable to infer that Grabot when used the 
language "your kind," he was referring to plaintiffs 
race. See, e.e.. Alexis v. McDonald’s Restaurants of 
Massachusetts. Inc., 67 F.3d 341, 348 (1st Cir.1995) 
(denying summary judgment to defendant where 
statement by police officer that "[y]ou people have no 
rights" could not "reasonably be presumed so

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1996 WL 617165
(Cite as: 1996 WL 617165 (N.D.I11.))

Page 3

innocent as to preclude a discriminatory animus"); 
Gatlin v. Jewel Food Stores, 699 F.Supp. 1266, 1268 
(N.D.111.1988) (statement that "I know you took the 
cheese because you people always do something like 
that" raises an inference of discrimination). Grabot's 
remarks, coupled with what plaintiff alleges to be an 
unfounded complaint to the police, sufficiently create 
an inference of a racial motivation behind Grabot's 
actions.

Defendants next contend that plaintiff has not 
satisfied the third element of a claim under § 1981 — 
that the discrimination concerned the making and 
enforcing of a contract._[FN4] In addressing this 
requirement in the context of a retail setting, the 
Seventh Circuit has held that "a claim for interference 
with the right to make and enforce a contract must 
allege the actual loss of a contract interest, not merely 
the possible loss of future contract opportunities." 
Morris, 89 F.3d at 414. In Morris, plaintiffs were 
questioned by police officers minutes after entering 
an Office Max store. After plaintiffs answered their 
questions, the officers apologized and left. The 
Seventh Circuit affirmed the grant of summary 
judgment in favor of the defendant, noting that the 
plaintiffs "were denied neither admittance nor 
service, nor were they asked to leave the store." Id. 
The court found that defendants had not interfered 
with plaintiffs' prospective contractual relations 
because plaintiffs failed to demonstrate that they 
would have made a purchase absent their contact 
with the police officers.

FN4. Specifically, defendants assert that 
plaintiff has not alleged any specific acts, 
practices or policies by Jewel to treat 
plaintiff differently because of his race. 
Although plaintiff makes general allegations 
regarding Jewel's practices and policies, 
these allegations are not essential to stating a 
$ 1981 claim. Defendants' argument will 
treated as a challenge to the sufficiency of 
plaintiffs allegations as to the third element 
of a § 1981 claim.

Washington v. Duty Free Shoppers. Ltd., 710 F.Supp 
1288, 1289 (N.D.Cal. 1988) (defendants' motion for 
summary judgment denied where plaintiffs alleged 
that duty-free shop expelled patrons without airline 
tickets or passports based on race); Flowers v. TJX 
Companies, Inc., 1994 WL 382515 (N.D.N.Y. July 
15, 1994) (holding no interference with the formation 
of a retail contract existed where plaintiff had 
completed a purchase).

*4 Plaintiff sufficiently alleges that he attempted to 
enter into a retail contract with Jewel and was 
prevented by Grabot's actions from doing so. At the 
time Grabot stopped him, plaintiff was midstream in 
the process of making a contract for the goods 
purchase. The cashier had scanned his intended 
purchases, and plaintiff had decided to substitute and 
add items to his purchase. Plaintiff has alleged that, 
upon leaving the cashier to retrieve the sale razor 
blades, he stated to the cashier that he would 
immediately return to complete the sale. Grabot 
interrupted his return to the cashier and plaintiff was 
ultimately led out of the store in handcuffs, unable to 
complete his purchase. Thus, the facts alleged by 
plaintiff state a claim under § 1981 and defendants' 
motion to dismiss will be denied.

IT IS THEREFORE ORDERED that:

(1) Defendants' motion todismiss [8-1] is denied.

(2) Defendants shall file, within fourteen days of the 
date of this order, their answer to the complaint.

(3) Status hearing set for November 7, 1996 at 9:15
a.m.

1996 WL 617165, 1996 WL 617165 (N.D.I11.)

END OF DOCUMENT

Other cases have similarly found that a § 1981 claim 
must allege that the plaintiff was actually prevented, 
and not merely deterred, from making a purchase or 
receiving service after attempting to do so. See 
Jackson v. Trier's Dad's Place. Inc., 850 F.Supp. 53 
(D.D.C.1994) (claim that plaintiffs were refused 
service at a restaurant on account of race could not 
survive summary judgment where plaintiffs never 
asked to be seated on a return trip to restaurant);

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Page 1

H
Only the Westlaw citation is currently available.

United States District Court, E.D. Louisiana.

Whitney HICKERSON
v.

MACY'S DEPARTMENT STORE AT 
ESPLANADE MALL

No. CIV. A. 98-3170.

March 16, 1999.

DUVAL. J.

*1 Before the court is a Motion to Dismiss Pursuant 
to 12(b)(6), filed on January 29, 1999 by defendant, 
Macy’s East, Inc. ("Macy's"). For the reasons stated 
more fully below, the court finds merit in the motion.

I. BACKGROUND

Plaintiff, Whitney Hickerson ("Hickerson"), filed 
this action after being stopped by a Macy's security 
employee. Hickerson had bought a pair of pants on 
the day in question, and returned to Macy's later that 
evening to exchange them for a new pair in a 
different size. Complaint o f Hickerson at 1̂ 5. After 
Hickerson returned the pants, as he was leaving the 
store, a Macy's security employee stopped him just 
outside the door and requested to review his receipt 
and check his shopping bag. Id at U 6, 7. The 
security employee then told Hickerson he could 
leave, but as Hickerson approached his car in the 
parking lot, two more men yelled at him to stop and 
made him return to the store. Id. at ^ 9. They told 
Hickerson that they had him "on tape" stealing a pair 
of jeans from Macy's. Id. They checked his bag and 
receipt again and permitted him to leave. Id. at Tf 
11, 12. Hickerson alleges that this rude and 
unnecessary treatment violated his civil rights under 
42 U.S.C. § § 1981. 1983 and under Louisiana state 
law. Macy's has moved to dismiss the allegations 
under Rule 12(b)(6) of the Federal Rules of Civil 
Procedure.

II. STANDARD OF REVIEW

Under Rule 12(b)(6). a defendant may move to 
dismiss a case where the plaintiff has failed to state a 
claim upon which relief can be granted. In reviewing

a 12(b)(6) motion to dismiss, the court must accept 
the plaintiffs factual allegations as true and construe 
them in favor of the non-moving party. Blackburn v. 
Cin• of Marshal. 42 F.3d 925, 931 (5th Cir.1995). A 
12(b)(6) dismissal will not be granted unless it 
appears beyond doubt that the plaintiff can prove no 
set of facts in support of his claim which would 
entitle him to relief. Id., quoting Conley v. Gibson. 
355 U.S. 41, 43-46. 78 S.Ct. 99. 102 119871. The 
court is not required to "conjure up unpled 
allegations" to save a complaint. Systems Contractors 
Corporation v. Orleans Parish School Board, et al.. 
1996 WL 547414. *1, (E.D.La. 1996). citing Gooley 
v. Mobil Oil Corn., 851 F.2d513. 514 (1st Cir. 1988).

III.? 1981 CLAIM

42 U.S.C. ? 1981 as amended by the Civil Rights 
Act of 1991 reads in part as follows:

(a) All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts ... as is 
enjoyed by white citizens ...
(b) For purposes of this section, the term 'make and 
enforce contracts' includes the making, 
performance, modification and termination of 
contracts, and enjoyment of all benefits or 
privileges, terms, and conditions of the contractual 
relationship.

For summary judgment purposes, courts analyze 
Section 1981 claims under the burden-shifting 
scheme originally developed under Title VII in 
McDonnell Doutdas Corp. v. Green. 411 U.S. 792, 
93 S.Ct. 1817, 36 L.Ed.2d 668 (19731. See Thomas v. 
Denny's Inc., I l l  F.3d 1506. 1509-10 (10th
Cir. 1997) (allocations of burdens same under Title 
VII and Section 1981). Under the framework outlined 
in McDonnell Douglas, plaintiffs must first establish 
a prima facie case of discrimination. Plaintiff, then, in 
order to recover under ? 1981. must show the
following: (1) that he is a member of a racial 
minority; (2) that Macy's had an intent to 
discriminate on the basis of race; and (3) that the 
discrimination concerned one or more of the 
activities enumerated in section "b" of the statute: 
making, performing, modifying, or terminating a 
contract, or enjoying the benefits, privileges, terms or 
conditions of a contract. Green v. State Bar o f Texas. 
27 F.3d 1083. 1086 (5th Cir.1994).

*2 The question of when a contract is impaired in 
violation of the third prong of the Green test in a 
department store context has been addressed by other 
courts. When a person is shopping in a department 
store, the act of purchasing an item creates a 
contractual relationship between the buyer and seller.

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1999 WL 144461
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Page 2

See Morris v. Office Max, Inc., 89 F.3d 411,413 (7th 
Cir. 1996). Similarly, returning an item is a 
modification of that contract. Id. There is no 
generalized right under section 1981 to have access 
to opportunities to make prospective contracts. In 
Office Max, for example, the trial court held that 
plaintiffs could not establish an action pursuant to § 
1981. because plaintiffs had already made their 
purchase and were not attempting to make a second 
purchase, nor were they attempting to return the first 
purchase, when they were stopped by store guards. 
They were not denied admittance, denied service, or 
asked to leave. Id. The mere fact that it was 
conceivable that they might want to make another 
purchase at Office Max and that they were 
"discouraged and dissuaded" from doing so when the 
Office Max store manager called the police was not 
sufficient to bring a claim under S 1981: rather, 
plaintiffs were required to make an allegation of the 
actual loss of a contract interest. Id., citing Phelps v. 
Ouchitau Eagle-Beacon, 886 F.2d 1262 (10th 
Cir. 1989).

Had Macy's actually denied Hickerson service or 
asked him to leave, Hickerson's claim might have 
merit. For example, in Bobbitt v. Rage, Inc., 19 
F.Supp.2d (W.D.N.C. 1998), the court granted a 
12(b)(6) motion to dismiss one group of plaintiffs' 
claims of racially-motivated disparate treatment at a 
pizza restaurant. While the plaintiffs may have 
received discourteous treatment and poor service, 
they were not asked to leave or denied service. Id. In 
contrast, the court denied the 12(b)(6) motion with 
regard to a second group of plaintiffs, whom the 
pizza restaurant had required to prepay their dinner 
costs before serving them, because this behavior was 
an interference of the contractual relationship. Id. 
Similarly, in Watson r. Fraternal Order o f Eagles. 
915 F .2d 235 (6th Cir.1990). the court held that 
denying black patrons the right to buy soft drinks by 
telling them to leave the premises effectively 
prevented them from entering into a contract. Where, 
however, a plaintiff merely alleges that he had a 
generalized intent to purchase an item, but there is no 
evidence that he found the item and actually intended 
to purchase that particular item, the allegation is 
insufficient to establish a prima facie case under £ 
1981. Sterling v. Kazmierczak, 983 F.Supp. 1186,
1192 (N.D.Ill,1997). Had Hickerson been prevented 
from making a particular purchase, or from returning 
the pants he had previously bought, he might have a 
section 1981 claim. Because he had already returned 
the pants, however, his section 1981 claim fails.

IV. $ 1983 CLAIM

Macy's correctly argues that Hickerson cannot 
maintain a section 1983 claim against it because the 
actions of its security guard did not arise under state 
law. IFN11 In order to state a claim upon which relief 
can be granted under section 1983. a plaintiff must 
allege that a defendant acted "under color of state 
law" to deprive the plaintiff of a right, privilege, or 
immunity guaranteed by the constitution or laws of 
the United States. Maine v. Thiboutot. 442 U.S. 1, 4, 
100 S.Ct. 2502. 2504 (1980). To show that a private 
party, such as Macy's, acted under color of state law, 
the plaintiff must show that the private party was a 
willful participant in a joint activity with the state 
with regard to the alleged misconduct. Hobbs v. 
Hawkins. 968 F.2d 471 (5th Cir.1992) (for plaintiff to 
state valid section 1983 claim against employer, 
plaintiff must allege a conspiracy between employer 
and a government official). A store security guard is 
a willful participant in a joint activity with the state if 
he or she is entitled under state law to arrest a 
suspected shoplifter, and he or she does so in 
violation of that person's constitutional or legal 
rights. See Cinell v. Connick, 15 F.3d 1338 (5th 
Cir. 1994). See also DeCarlo v. Joseph Horne & Co., 
251 F.Supp. 935 (W.D.Pa.1966). Where, however, 
the security guard is not entitled under state law to 
make an actual arrest, his or her actions are not taken 
"under color of state law." See Lewis v, J  C. Penny 
Co. Inc., 948 F.Supp. 367 (D,Del.1996): Vassallo v. 
Clover, Ib l  F.Supp. 651 (E.D.Pa. 1990): Gipson v. 
Supermarkets Gen. Cory., 564 F.Supp. 50 
(D.N.J.1983).

FN1, Macy's also argues that the section 
1983 claim should be dismissed because 
Hickerson has failed to name the actual 
offending employees as a defendant, and 
section 1983 does not provide for respondeat 
superior liability. Hickerson in mm offers to 
amend his complaint to assert claims against 
the employees. Because amending the 
complaint in this way would not cure the 
"color of state law" problem, the court need 
not rule on the issue of whether amendment 
is necessary or whether amended will be 
allowed.

*3 Here, Louisiana law permits the detention of a 
suspected shoplifter but does not provide a merchant 
the right to make an arrest. La.Code of Crim. Proc., 
art 251(A). As with the state statutes involved in 
Lewis, Vassalo, and Gipson, then, the Louisiana 
statute does not create a situation where store security 
officers are acting as law enforcement officers in a

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1999 WL 144461
(Cite as: 1999 WL 144461 (E.D.La.))

Page 3

joint activity with the state. The court must therefore 
dismiss Hickerson's section 1983 claim, because 
Macy's was not acting under state law when its 
security guard briefly detained Hickerson.

V. STATE LAW CLAIMS

Hickerson has also alleged several state law claims. 
The court must next consider, then, whether to 
exercise its supplemental jurisdiction over the state 
law claims. Under 28 U.S.C. § 1367(c)(3). where the 
district court has dismissed all claims over which it 
has original jurisdiction, a district court may decline 
to exercise supplemental jurisdiction. In any 
consideration of the exercise of supplemental 
jurisdiction, a federal court should consider and 
weigh the values of judicial economy, convenience, 
fairness, and comity in order to decide whether to 
exercise jurisdiction over a case brought in that court 
involving pendent state-law claims. See United Mine 
Workers v. Gibbs. 383 U.S. 715 (1966). When the 
balance of these factors indicates that a case properly 
belongs in state court, as when the federal law claims 
have dropped out of the lawsuit in its early stages and 
only state-law claims remain, the federal court should 
decline the exercise of jurisdiction by dismissing the 
case without prejudice. Id.

Here, where the court has dismissed all of the 
plaintiffs federal claims, where the litigation was 
recently filed, and where no trial date has been 
scheduled, the court finds that comity dictates that 
this court decline to exercise supplemental 
jurisdiction. Accordingly,

IT IS ORDERED that the Motion to Dismiss filed by 
defendant Macy's East, Inc. is hereby GRANTED. 
Plaintiffs section 1981 and 1983 claims are 
dismissed with prejudice; plaintiffs state law claims 
are dismissed without prejudice.

1999 WL 144461, 1999 WL 144461 (E.D.La.)

END OF DOCUMENT

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CERTIFICATE OF SERVICE

I hereby certify that copies of the Reply Brief for Plaintiffs-Appellants hav 
been served by mailing same via United States Postal Service on April 21, 2003, 
addressed to the following parties:

Thomas N. Kieklak 
Harrington, Miller, Niehouse & Krug 
113 East Emma Avenue 
P.O. Box 687
Springdale, Arkansas 72765-0687

Michael S. Moore
Friday Eldredge & Clark
2000 Regions Center
400 West Capitol
Little Rock, Arkansas 72201-3493

David M. Fuqua 
Hilbum, Calhoun, Harper 
Pruniski & Calhoun, Ltd.
One Riverfront Place 
P.O. Box 5551
North Little Rock, Arkansas 72119

ELISE C. BODDIE