Adams v. Brinegar Brief for Plaintiff-Appellant

    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,

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.)

BRIEF FOR PLAINTIFFS-APPELLANTS

Plaintiffs-Appellants,
v.

Elaine R. Jones 
Director-Counsel 
Norman J. Chachkin 
James L. Cott

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

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

Counsel fo r  Plaintiffs-Appellants



Summary of the Case and Request for Oral Argument

This racial profiling case involves allegations of invidiously discriminatory 

treatment experienced by nine African-American shoppers during seven incidents at 

two Dillard’s Department stores in Arkansas. 50 years ago, retail stores in many 

parts of our country subjected African Americans to blatant segregation, such as 

forcing them to use back entrances or not admitting them to stores at all. Today, 

while the doors to retail establishments may be “open to everyone,” a more subtle 

form of discrimination is shutting the doors of these stores to African-American 

shoppers such as plaintiffs, who are made to run a gauntlet of racial stereotyping and 

disparate treatment based on conscious or unconscious racism.

In granting defendants’ motions for summary judgment, the district court 

adopted an unduly restrictive interpretation of the applicable federal civil rights laws. 

It also improperly resolved credibility and intent issues, and ignored probative 

statistical evidence, thereby preventing plaintiffs from having their day in court.

Because the legal protection against discriminatory treatment in retail settings 

is an issue of profound importance, and seven separate incidents are involved in this 

appeal, plaintiffs respectfully request that each side in this case be permitted at least 

twenty (20) minutes to present oral argument.

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TABLE OF CONTENTS

Summary of the Case and Request for Oral Argum ent.............................................  i

Table of Authorities.....................................................................................................  iv

Statement of Subject Matter and Appellate Jurisdiction ............................................1

Statement of Issues Presented for Review ................................................................... 1

Statement of the Case ..................................................................................................... 3

Statement of F a c ts ............................................................................................................5

A. Seven Incidents of Consumer Discrimination ........................................ 5

1. Incident Involving Tara H o m e ............................................................ 5

2. Incident Involving Angela Moore ....................................................7

3. Incident Involving Veronica Norris and Tinika D a n ie ls ............... 9

4. Incident Involving Janice Minor and Jenisa W illiam s................. 14

5. Incident Involving Ruby N ich o ls...................................................... 16

6. Incident Involving Loretta M cF adden ..............................................18

7. Incident Involving Irma Nelson ........................................................21

B. Additional Evidence Regarding Dillard’s Discriminatory
Practices ...................................................................................................22

C. The District Court’s Ruling ...................................................................24

Summary of Argument .................................................................................................27

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Argument 28

I. Standard of R eview ................................................................................28

II. The District Court Erred In Granting Summary Judgment On
Plaintiffs’ Section 1981 And 1982 C laim s......................................... 29

A. The Plain Language Of Section 1981 Affords Broad 
Protection Against Race Discrimination Related But Prior 
To, At The Times Of, And Following Entry Into,
C ontracts...................................................................................... 29

B. The District Court Misapplied This Court’s Recent Decision 
In Youngblood Because Plaintiffs Had Not Completed 
Their Transactions And Dillard’s Thus Continued To
Owe Them A Contractual D u ty ..................................................32

C. The District Court Ignored Plaintiffs’ Evidence And
Erroneously Concluded That Plaintiffs Had Failed To 
Establish An Evidentiary Basis For A Finding Of 
Intentional Race Discrimination................................................. 38

III. The District Court Erred In Granting Summary Judgment On
Plaintiffs’ Section 1983 Claims ............................................................ 44

A. Plaintiffs’ Equal Protection Claims Should Survive
Summary Judgment .....................................................................44

B. Plaintiffs’ Fourth Amendment Claims Should Survive
Summary Judgment .....................................................................47

C. Defendants Cannot Establish Qualified Immunity On
Summary Judgment .....................................................................50

Conclusion...................................................................................................................... 52

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Certificate of Compliance 53



Certificate of Service 54

A ddendum ...................................................................................................................... 55

TABLE OF AUTHORITIES 

CASES

Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977) .......................................................................  2 ,45 ,46

Bogren v. Minnesota,
236 F.3d 399 (8th Cir. 2000)................................................................. 2, 45

Bradley v. Widnall,
232 F.3d 626 (8th Cir. 2000).....................................................................  29

Buffkins v. City o f  Omaha,
922 F.2d 465 (8th Cir. 1990)................................................................. 2, 47

Carrasca v. Pomeroy,
No. 02-1127, 2002 U.S. App. LEXIS 26426 (3d Cir. Dec. 17, 2002) 2, 45 

Chavez v. Illinois State Police,
251 F.3d 612 (7th Cir. 200 1 )................................................................. 2, 45

Christian v. Wal-Mart Stores, Inc.,
252 F.3d 862 (6th Cir. 2 001 )..........................................................  2, 37, 38

Chu v. Gordmans, Inc.,
No. 8:01CV182, 2002 WL 802353 (D. Neb. Apr. 12, 2 0 0 2 ) ...............  38

Clark v. Kellogg Co.,
205 F.3d 1079 (8th Cir. 2000)...................................................................  29

Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097 (8th Cir. 1988)...................................................................  41

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Florida v. Bostick,
501 U.S. 429(1991) .............................................................................. 2,48

Florida v. Royer,
460 U.S. 491 (1983) ...............................................................................  49

Flowers v. TJX Companies, Inc.,
No. 91-CV-1339, 1994 WL 382515 (N.D.N.Y. July 15, 1 9 9 4 )........... 46

Garrett v. Tandy Corp.,
295 F.3d 94 (1st Cir. 2 0 0 2 ) .................................................... 1, 30, 36, 38,

43
Goetz v. Farm Credit Serv.,

927 F.2d 398 (8th Cir. 1991)....................................................................... 40

Greiner v. City o f  Champlin,
27 F.3d 1346 (8th Cir. 1994)................................................................. 2, 51

Hampton v. Dillard Department Stores, Inc.,
247 F.3d 1091 (10th Cir. 2001), cert, denied, 122 S. Ct.
1071 (2002)......................................................................................  1 ,37,42

Hampton v. Dillard Department Stores, Inc.,
18 F.3d 1256 (D. Kan. 1998), affd, 247 F.3d 1091 (10th Cir. 2001).. 41

Harlow v. Fitzgerald,
457 U.S. 800 (1982) ..................................................................................  50

Henderson v. Jewel Food Stores, Inc.,
No. 96C3666, 1966 WL 617165 (N.D.I11. Oct. 23, 1996) ...................  37

Ilmen v. United States,
272 F.3d 577 (8th Cir. 2001), cert, denied, 123 S. Ct. 114 (2002) ........... 28

International Brotherhood o f  Teamsters v. United States, 
431 U.S. 324(1977) ........................................... 40



Johnson v. Minnesota Historical Society,
931 F.2d 1239 (8th Cir. 1991)............................................................  29,43

Lambert v. City o f  Dumas,
187 F.3d 931 (8th Cir. 1999)..........................................................  2, 48, 50

Linn v. Garcia,
531 F.2d 855 (8th Cir. 1976).....................................................................  49

Morris v. Dillard Department Stores, Inc.,
277 F.3d 743 (5th Cir. 200 1 ).....................................................................  38

Murray v. Wal-Mart, Inc.,
874 F.2d 555 (8th Cir. 1989).....................................................................  44

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ...........................................................................  31,34

S.J., a minor, by T.R. v. Kansas City Missouri Public Sch. District,
294 F.3d 1025 (8th Cir. 2002)................................................................... 44

Smithson v. Aldrich,
235 F.3d 1058 (8th Cir. 2000)...................................................................  29

Tillman v. Wheaton-Haven Recreation Association, Inc.,
410 U.S. 431 (1973) ..................................................................................  43

Walker v. Pointer,
304 F. Supp. 56 (N.D. Tex. 1969)............................................................  36

Washington v. Davis,
426 U.S. 229(1976) ..................................................................................  47

Jacob-Mua v. Veneman,
289 F.3d 517 (8th Cir. 2002)................................................................  29

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Watson v. Fort Worth Bank and Trust,
487 U.S. 977(1988) ..................................................................................  40

West v. Atkins,
487 U.S. 42 (1988) ....................................................................................  44

Whren v. United States,
517 U.S. 806(1996) ..................................................................................  45

Williams v. Cloverleaf Farms Dairy,
78 F. Supp. 2d 479 (D. Md. 1999) ..........................................................  37

Williams v. Lindenwood University,
288 F.3d 349 (8th Cir. 2002).....................................................................  38

Woods-Drake v. Lundy,
667 F.2d 1198 (5th Cir. 1982)...................................................................  36

Yates v. Rexton, Inc.,
267 F.3d 793 (8th Cir. 200 1 )............................................................... 46, 49

Youngblood v. Hy-Vee Food Stores, Inc.,
266 F.3d 851 (8th Cir. 2001), cert, denied, 122 S. Ct.
1606 (2002).............................................................................. 1 ,32 ,33 ,36 ,

38,44

STATUTES AND RULES

28 U.S.C. § 1291 ...........................................................................................................  1

28 U.S.C. § 1331 ...........................................................................................................  1

28 U.S.C. § 1343 ...........................................................................................................  1

28 U.S.C. § 1367 ..................................................................................................... 1,51

42 U.S.C. § 1 9 8 1 ................................................................................................  passim

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42U .S.C .§ 1982 .................................................................................................  passim

42 U.S.C. § 1983 .................................................................................................  passim

42 U.S.C. § 2 0 0 0 a ........................................................................................... 1 ,3 ,4 ,2 7

Fed. R. Civ. P. 5 6 (c ) ......................................................................................................29

Pub. L. 102-166, 105 Stat. 1071 § 3 (1 9 9 1 )............................................................ 31

OTHER AUTHORITIES

Deseriee A. Kennedy, Consumer Discrimination: The Limitations o f  Federal
Civil Rights Protection, 66 Mo. L. Rev. 275 (2001) ..............................  5, 40

Joe R. Feagin & Melvin P. Sikes, Living with Racism (1994) ............................  40

-viii-



Plaintiffs allege race discrimination under 42 U.S.C. §§ 1981,1982,and2000a 

et seq., and violations of their rights under the Fourth and Fourteenth Amendments 

pursuant to 42 U.S.C. § 1983. They also allege state law claims of intentional 

infliction of emotional distress. The district court thus had subject matter jurisdiction 

over this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

Appellate jurisdiction exists under 28 U.S.C. § 1291 because this is an appeal 

from a final judgment entered on September 30, 2002 (A 1121).' Plaintiffs filed a 

timely appeal on October 30, 2002 (A 1124).

Statement of Issues Presented for Review

1. Whether the district court applied an unduly restrictive interpretation of 

42 U.S.C. § 1981, resulting in the improper dismissal of plaintiffs’ 

claims before trial.

(A) Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851 (8th Cir.

2001), cert, denied, 122 S. Ct. 1606 (2002);

(B) Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir. 2002);

(C) Hampton v. Dillard Dep 't Stores, Inc., 247 F.3d 1091 (10th Cir.

2001), cert, denied, 122 S. Ct. 1071 (2002); and

'References to the Joint Appendix are denoted as “A_” with appropriate page 
numbers inserted.

Statement of Subject Matter and Appellate Jurisdiction



2. Whether the district court improperly dismissed plaintiffs’ Equal 

Protection claims, by ignoring probative statistical and other evidence 

demonstrating that genuine issues of material fact existed regarding the 

differential treatment of African Americans at Dillard’s Department 

Stores.

(A) Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 

252 (1977);

(B) Bogren v. Minnesota, 236 F.3d 399 (8th Cir. 2000);

(C) Chavez v. Illinois State Police, 251 F.3d 612 (7lh Cir. 2001); and

(D) Carrasca v. Pomeroy, No. 02-1127, 2002 U.S. App. LEXIS 

26426 (3d Cir. Dec. 17, 2002).

3. Whether the district court improperly determined that there was no 

evidence from which a jury could find that the officer defendants had 

engaged in Fourth Amendment violations.

(A) Florida v. Bostick, 501 U.S. 429 (1991);

(B) Lambert v. City o f  Dumas, 187 F.3d 931 (8th Cir. 1999);

(C) Greiner v. City o f  Champlin, 27 F.3d 1346 (8th Cir. 1994); and

(D) Buffkins v. City o f  Omaha, 922 F.2d 465 (8th Cir. 1990).

(D) Christian v. Wal-Mart Stores, Inc., 252 F.3d 862 (6th Cir. 2001).

2



Statement of the Case

Plaintiffs, who are all African-American, brought this civil rights action in 

March, 2000 against Dillard’s, Inc. (“Dillard’s”), two of Dillard’s employees, and 

three of Dillard’s security guards, alleging race discrimination under 42 U.S.C. §§ 

1981, 1982, and 2000a et seq., and violation of their rights under the Fourth and 

Fourteenth Amendments to the United States Constitution actionable under 42 U.S.C. 

§ 1983. Plaintiffs also alleged state law claims of intentional infliction of emotional 

distress (A 14-41).2 Plaintiffs’ claims arise from a series of incidents, described infra 

at pp. 5-22, that occurred while they were shopping at Dillard’s Department Stores 

in McCain Mall in North Little Rock, Arkansas, and Park Plaza Mall in Little Rock, 

Arkansas. Plaintiffs seek compensatory and punitive damages, a declaratory 

judgment, and injunctive relief against the defendants to enjoin them from further acts 

of discrimination (A 37-38).

In Answers filed in May, 2000, defendants denied the claims of discrimination 

and constitutional deprivation, and raised a number of affirmative defenses. (A 42- 

47) (Answer of Defendant Thessing); (A 48-56) (Answer of Defendants Osborn and

2As noted by the district court, the action was dismissed without prejudice as 
to the following parties: defendants David Dodson, April Presley, Mary Windham, 
and Michael Agnew; and plaintiffs Bridget Brown, Collett Lewis and Erika Whitfield. 
(Addendum at 1, n. 3).

3



Daulton); and (A 57-80) (Answer of Defendants Dillard’s, Jack, and Abrams). In 

particular, defendants alleged, inter alia, that plaintiffs’ complaint failed to state a 

claim upon which relief could be granted, and asserted the defense of qualified 

immunity on behalf of defendants Thessing, Osborn, and Daulton (A 45, 55, 79).

Following the completion of discovery, all defendants moved for summary 

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (A 81-83; 552- 

54; 642-44). Defendants Osborn, Daulton, and Thessing contended that (1) their 

interactions with the plaintiffs who made claims against them did not violate the 

Fourth Amendment; (2) they were entitled to qualified immunity on the constitutional 

claims; (3) they did not interfere with plaintiffs’ rights under 42 U.S.C. §§ 1981 and 

1982; (4) plaintiffs failed to state a claim under 42 U.S.C. § 2000a because Dillard’s 

is not covered by that provision of the Civil Rights Act of 1964; and (5) their conduct 

was not extreme or outrageous and thus did not support a claim for intentional 

infliction of emotional distress (A 81-82; 552-53). Defendants Dillard’s, Jack, and 

Abrams argued that (1) plaintiffs could not establish the essential elements of any of 

their claims; and (2) there were no genuine issues of material fact (A 642-43). On 

September 30, 2002, the district court granted all of the defendants’ motions. The 

rationale for its decision, as stated in the accompanying memorandum opinion, is

4



described infra pp. 24-27 following the Statement of Facts, in order to provide this 

Court with appropriate context.

This appeal followed.

Statement of Facts

A. Seven Incidents of Consumer Discrimination3

This case involves seven separate incidents of consumer discrimination 

involving nine plaintiffs. Three of the incidents occurred at Dillard’s at the McCain 

Mall, and four occurred at Dillard’s at the Park Plaza Mall. All of the plaintiffs 

(except Loretta McFadden) were falsely accused of shoplifting during the course of 

their shopping experiences at Dillard’s. Each of the incidents is described in 

chronological order below.4

1. Incident Involving Tara Horne: On April 2, 1997, plaintiff Tara Home, 

her cousin, and his fiancee went to the McCain Mall, entering on the east side of the

3“Recently, the practice of differential surveillance and treatment of African 
American shoppers has become known as ‘consumer racism’ or ‘consumer 
discrimination.’” Deseriee A. Kennedy, Consumer Discrimination: The Limitations 
o f Federal Civil Rights Protection, 66 Mo. L. Rev. 275, 276 (2001) (“Consumer 
Discrimination ”).

“Excerpts from plaintiffs’ depositions describing these incidents were submitted 
to the district court in opposition to the summary judgment motions, and these 
excerpts are part of the Joint Appendix at pages 667 to 790. Plaintiffs will make 
available to the Court the complete transcripts of any or all of these depositions upon 
request.

5



mall to go to the ladies section of Dillard’s (A 702). The three of them browsed 

around, looking at some Tommy Hilfiger shirts. After about 45 minutes, Home found 

a shirt, and purchased it with cash from an unidentified white female sales clerk (A 

703). The three then proceeded downstairs where the men’s section was located in 

order to find an equivalent shirt for Home’s boyfriend so that they could be dressed 

alike for a family reunion (A 704). After about a half-hour in the men’s department, 

Home could not find anything to match what she had purchased. She then found her 

cousin and his fiancee, who had been in another section of the store, and informed 

them that she had been unable to find a matching shirt. Home suggested that they go 

to Little Rock to look for one (A 706).

Home, her cousin, and his fiancee proceeded to leave the mall, and got into 

Home’s car. As Home began to back up, a police car and two security trucks pulled 

in behind her preventing her from leaving (A 706-08). Three individuals got out of 

the vehicles, and a mall security guard approached Home (A 709). The security 

guard informed Home and the others that they needed to return to the mall, and when 

Home asked why, he just repeated that they needed to come back inside (A 710).5

5Of all of the incidents, Home’s is the only one in which Dillard’s security 
personnel followed Dillard’s rules and procedures regarding apprehension, which 
provide that “[ujsually (and unless local laws permit otherwise), the suspect must be 
permitted to exit the premises prior to apprehension” (A 843) (emphasis added).

6



Home then got her bag out of the car, and the police and security guard looked 

inside her car to make sure that there were no other bags (A 711). Home was told to 

bring her bag, and was informed that someone had seen them stealing from the store 

(A 714). When the three of them returned to Dillard’s, they were presented to a 

Dillard’s employee, Jevonne Jack. Home was then forced to participate in a line up 

in public view (A 715, 722-23). Jack subsequently identified Home as the person 

who was stealing. (A 718). Home’s cousin and his fiancee were told to leave, and 

they went inside the mall (A 719). In the meantime, a police officer proceeded to take 

Home to the counter and asked to see her bag. Home then gave the officer her bag, 

and the officer removed the shirt along with the receipt (A 720). Once the officer saw 

that Home had paid for the shirt, he placed it back in the bag along with the receipt, 

and Jack apologized (A 721). The officer then informed Home that she was free to 

go. Home told the officer that she wanted to return the shirt and get a refund, and she 

did so and left the store, having been falsely accused of shoplifting in front of the 

other customers coming into the store, all of whom were white (A 716, 724).

2. Incident Involving Angela Moore: On August 25, 1997, plaintiff Angela 

Moore went to the Park Plaza Mall to exchange a purse that she had purchased two 

weeks earlier (A 1110). When she entered Dillard’s, Moore informed a sales 

associate that she needed to exchange a purse (A 757). The sales associate told

7



Moore to go and find what she wanted, but that she would need identification to make 

the exchange (A 757). Moore responded that her identification was in her car, and 

that she did not have the receipt for the purse (A 757, 1112).

While Moore was looking for the purse that she wanted, she noticed that the 

sales associate was talking to a colleague, and shortly thereafter, security came on the 

scene and began to watch Moore (A 757). Moore then noticed the sales associate 

speaking with security, and decided she would find out if there was a problem of 

some kind (A 757). The security officer advised her that there was, in fact, a 

problem, and that Moore needed to come with him (A 757). Moore then asked the 

officer if she would need her identification, and if she could get it from her car (A 

759). However, the officer would not allow her to leave, and escorted her into a back 

room (A 757).

When Moore and the security officer went to the back room, the officer began 

to complete some paperwork. The officer kept leaving the room and returning, 

finally informing Moore that Dillard’s was not going to pursue any charges because 

the sales clerks did not want to sign affidavits saying that Moore had been stealing 

(A 757).

The store manager then came in and spoke to the officer, telling him what he 

wanted done to Moore. The officer informed Moore that Dillard’s would be keeping

8



the purse that she had brought to exchange, and that Dillard’s wanted her to sign a 

“ban sheet”6 (A 758). Moore refused, contending that she had done nothing wrong 

(A 758).

3. Incident Involving Veronica Norris and Tinika Daniels: On October 8, 

1997, plaintiffs Veronica Norris and Tinika Daniels went shopping at Dillard’s at the 

Park Plaza Mall. Norris had gone to Dillard’s for the purpose of obtaining a refund 

for a pair of jeans and a sweater that she had purchased, both Tommy Hilfiger 

merchandise, and Daniels had accompanied her (A 668,690). Norris had driven from 

Marianna, Arkansas, where she lived, to Little Rock in order to pick up her 

grandmother from the airport and had stopped at Dillard’s on the way (A 668).

When Norris and Daniels arrived at the Park Plaza Mall, they parked on the 

east side of the mall, not knowing that Dillard’s ladies department was actually on the 

west side of the mall (A 669). After entering the store, Norris spoke with a cashier 

about returning the sweater and the jeans, and was advised that she needed to go to 

the Tommy Hilfiger section of the ladies department which was on the west side of 

the mall (A 670). After looking at a few men’s sweaters, Norris and Daniels

6A “ban sheet” is an agreement not to enter any Dillard’s department store with 
the understanding that the signer could be charged with criminal trespass if he or she 
enters a Dillard’s store, and could be placed in the county detention center upon arrest 
(A 41).

9



proceeded to walk out of Dillard’s into the mall, and walked to the west side where 

the ladies department was located (A 670-71).

When Norris and Daniels arrived in the ladies department, Norris stopped at 

the first cash register that they saw and inquired if she could get a refund there (A 

672). The sales associate looked at the merchandise, and told her that she could 

exchange the sweater but not the jeans, which would have to be exchanged in another 

section of the store (A 672-73). Norris handed the sales associate the sweater and her 

original receipt, and filled out the necessary paperwork. A receipt was printed, and 

Norris had to fill out her name, address, and telephone number, and then sign the 

receipt (A 673). The sales associate then handed Norris the receipt and directed her 

to where the Tommy Hilfiger jeans were sold. The sales associate informed Norris 

that she was not authorized to give out cash, and that Norris would have to take the 

receipt to customer service for a refund (A 673-74).

Norris and Daniels then approached the Hilfiger jeans section of the store when 

Norris realized that she had forgotten her original receipt (A 674). Norris asked 

Daniels to go back with her, but Daniels said she was tired of walking and told her 

she would wait for her (A 675,691). When Norris returned to the cash register where 

she had filled out the paperwork, she overheard a security officer, later determined 

to be Deputy Sheriff Tommy Osborn, asking the cashier, “what did those two black

10



girls want?” (A 675). After an exchange between Norris and Osborn, Norris asked 

if he was looking for her, and Osborn responded that he was because she “looked 

suspicious of shoplifting” (A 675). When Norris asked how someone could look 

suspicious of shoplifting, she received no response (A 675). Norris then informed 

Osbom that she had a receipt for the items; the sales associate confirmed to Osborn 

that Norris had a receipt for the items that she had purchased (A 675).

While Osbom was talking with the sales associate, Norris, who was by then 

visibly upset, walked over to Daniels and told her what had been said (A 676-77, 

691). When Daniels was told what had happened, she indicated that she wanted to 

get a better look at Osbom, who had his back turned (A 676). Daniels then proceeded 

to the counter, borrowed a pen from the sales associate, and without speaking to 

Osbom simply wrote down his name (which she could see on his official 

identification) on the back of a business card (A 677, 692).

Norris and Daniels then began to walk away from the counter, with the intent 

to obtain a refund for the jeans, and received directions again from the sales associate 

on which way to go (A 677). While walking to the area to which they had been 

directed, Norris and Daniels heard over the loudspeaker that security needed to 

monitor “ladies Hilfiger,” which is the section of the store to which they were heading 

(A 678). Before they arrived at the Hilfiger section, Norris and Daniels were

11



confronted by Osborn, who asked them for their names (A 679, 693). They both 

turned around and asked him to whom he was speaking. Osborn indicated that he 

was speaking to Daniels. Daniels then asked Osborn why he needed her name, and 

he replied, "because you are suspicious of shoplifting.” Daniels extended her arms, 

but Osborn advised that he did not wish to search her (A 693). Norris again informed 

Osborn that she had receipts, and that he could search her bags if he wanted (A 680). 

However, Osborn indicated that he did not want to search her bags and said that he 

needed Daniels’ name (A 680-81, 693-96).

Daniels and Osborn argued about the need for Osborn to have Daniels’ name. 

Daniels tried to step around the officer to leave, but he kept stepping in her way to 

block her path, telling her that she was not going anywhere (A 682). Norris then went 

to use a pay phone to call her sister, and Daniels and Osborn followed her (A 682). 

After Norris completed her call to her sister, she told Daniels that they should go but 

Osborn warned them that they were not to leave (A 682-83). Norris then made 

another telephone call, this time to an attorney (A 683-84). During the conversation 

with the attorney, Norris indicated by name that Daniels was with her, which was 

overheard by Osborn (A 684). When Norris completed the call to the attorney, she 

advised Daniels that the attorney had said that, as long as they were not under arrest,

12



they were free to leave (A 685). Osborn then grabbed Norris by the arm, told her 

“Y’all are not leaving,” and called for backup (A 685).

Deputy Sheriff Kerry Daulton came on the scene shortly thereafter (A 686). 

When Daulton arrived, he told Norris and Daniels to step outside. Norris responded 

that she was not going outside. Daulton then said, “either you are going outside, or 

you are going to jail” (A 686). When they got outside, Osborn again asked Daniels 

for her name, and she again wanted to know why he wanted her name. After being 

asked for a second time outside, Daniels told Osborn her name was “Sheila Johnson” 

(A 361, 687). Osborn got on the radio, and said something to Daulton, who replied 

by saying, “you can do what you want to do, I have nothing to do with this” (A 361, 

687-88). Osborn then arrested Daniels for criminal impersonation (A 362, 810). 

Osborn took Daniels inside, photographed her, and threatened her with additional 

charges if  she refused to sign a ban sheet (which she then signed) (A 697-700). 

Daniels was taken to the county detention facility, where she was booked and spent 

two hours locked up before she was released (A 362-64, 697). The charges against 

Daniels were subsequently dismissed by the municipal court (A 700).

When Osborn took Daniels back inside in handcuffs, Norris tried to follow, but 

was not permitted back inside the store by Daulton. When Norris reminded him that 

she needed to get her refund, Daulton told her she would not be able to do so at this

13



store (A 275). Norris then told Daulton that her car was parked on the other side of 

the mall, and that it was too dark and it was raining too hard for her to have to walk 

outside, but Daulton showed her no sympathy, warning her not to attempt to reenter 

the mall because if she did she would be arrested for criminal trespass (A 275). 

Facing arrest if she reentered the mall, Norris walked in the unfamiliar parking area 

slowly back to her car, without her refund (A 276).

4. Incident Involving Janice Minor and Jenisa Williams: On October 11, 

1997, three days after the incident with Norris and Daniels, plaintiffs Janice Minor 

and her daughter Jenisa Williams went to Dillard’s at the Park Plaza Mall. Minor had 

to participate in a church program that evening, and needed a royal blue blouse for 

the occasion (A 749). After purchasing the blouse, Minor remembered that she 

needed some stockings as well (A 749). While she was looking for her stockings, her 

daughter Jenisa told her that she had seen a warm up suit and wanted to know if her 

mother would purchase it for her; her mother agreed to do so (A 749). Jenisa then 

returned to the department where she had seen the warm ups to bring them to her 

mother to purchase. Jenisa gave the warm ups to her mother, who by this time was 

waiting at the cash register, and purchased the items (A 749).

When Minor and her daughter were preparing to leave the store, Jenisa 

requested to be allowed to purchase some sneakers to go with the newly-purchased

14



warm ups and her mother again agreed. Minor and her daughter then went upstairs 

to find the sneakers, but Minor waited near the escalator because she was tired of 

walking (A 749). Jenisa returned soon thereafter and told her mother that she could 

not find any sneakers, but that she would continue to look. While Minor was waiting 

for her daughter to finish her shopping, she saw security personnel run past her 

stating, “she’s got on red, she’s got on red” (A 750). Since Minor was wearing purple 

clothes, she did not think much about this remark (A 750).

Minor next saw the security officer speaking with her daughter, and walking 

toward her. The officer asked them both to come outside, and they both complied (A 

750). When they were outside of Dillard’s, the officer advised them that someone 

had seen them stealing (A 750). The officer, who was later identified as Deputy 

Kerry Daulton, then requested to search Minor’s sack, and she allowed him to do so. 

Daulton soon discovered that Minor had paid for everything, and then told them that 

they could go (A 750).

After this exchange with Daulton, Minor and her daughter went back into 

Dillard’s to the customer service counter to complain (A 129-30, 753). When Minor 

told the person behind the customer service counter what had happened, she said: “it 

happens all the time when they accuse black people of stealing” (A 132). Shortly 

thereafter, while they were waiting, Daulton came into the area, and hollered: “Are

15



you still in the store? They found the missing items. I told you to get out.” (A 134). 

Minor was eventually informed that the manager was out and would not be available 

until the following week (A 136).

5. Incident Involving Ruby Nichols: On November 5, 1997, plaintiff Ruby 

Nichols went to Dillard’s at the McCain Mall to purchase a pair of jeans. She 

selected two pairs, and asked a sales associate if she could try them on to see how 

they fit. The sales associate directed Nichols to a men’s dressing room (A 763). With 

the jeans draped over her arm, Nichols headed to the dressing room and noticed 

another sales associate, who looked at the jeans that Nichols had but did not look at 

her (A 763). Nichols tried on the first pair, but they were too tight. She then tried on 

the second pair, which were also tight, but not as tight as the first pair, and a bit long. 

(A 763-64).

While Nichols was in the dressing room, she noticed some strange activity in 

the stall next to her. She soon realized that it was the second sales associate, who 

had looked over her jeans as she headed to the dressing room (A 764). Feeling 

uncomfortable, Nichols did not change back into her clothes until the person left (A 

768). After getting dressed, Nichols left the dressing room with the pair of jeans that 

she intended to purchase, which were in plain view. She left the other pair of jeans 

in the dressing room (A 768). When Nichols exited the dressing room, she saw the

16



sales associate who had been in the stall next to her standing behind the cash register 

(A 768). As Nichols approached the register to pay for the jeans, the sales associate, 

Chris Prentice, rushed past her, went into the stall where Nichols had tried on the 

jeans, and then called security (A 769).

With the sales associate standing behind the register looking at her, Nichols 

then proceeded to look for another, better fitting pair of jeans (A 770). While she was 

looking, the other pair of jeans remained draped on her arm (A 771). Nichols then 

decided to return the jeans to the stack, and continued to look for other pairs (A 771). 

Approximately 10 minutes later, North Little Rock police officer Pat Thessing 

appeared, and began to converse with Prentice (A 771). Thessing then followed 

Nichols, and Nichols in turn decided to approach Thessing to see what was wrong (A 

772). When Thessing came up to her, he said that she needed to “get over there, I 

need to search you” (A 772).

Nichols did not understand what was going on, and therefore was reluctant to 

go where the officer wanted her to go (A 772-73). Thessing then threatened to arrest 

Nichols if she did not follow his directions (A 773). Nichols complied, and Thessing 

told Nichols that someone had reported that she had been stealing, that they were 

missing a pair of jeans, and that he needed to search her (A 773). Nichols requested 

a female officer, but Thessing refused, stating that he could arrest her for refusing to

17



cooperate (A 773). After an additional exchange between Nichols and Thessing, 

Andrea Liles, a store representative, came over to them and asked where the jeans 

were. Nichols then took Liles over and showed her where she had placed the jeans 

(A 774-75).

After it was apparent that no jeans had been stolen, Nichols and Thessing 

continued their exchange. Eventually Thessing instructed Nichols to pull up her 

pants, which she did. Seeing that he was not satisfied, Nichols pulled up her pants 

some more and then, because he was still staring at her, she lifted up her shirt. 

Thessing responded by saying, “if you had done this thirty minutes ago, then I 

wouldn’t have had to detain you” (A 775).

Although Nichols subsequently wrote a letter to Dillard’s complaining about 

the actions of its employees, she never received a response (A 776).

6. Incident Involving Loretta McFadden: On December 26, 1997, plaintiff 

Loretta McFadden went to Dillard’s at the Park Plaza Mall to shop for some 

Christmas ornaments and other items that had been placed on sale (A 728-29). 

McFadden had previously gone to Dillard’s at McCain Mall a few days earlier to see 

what Christmas items would be available (A 730).

McFadden arrived at Dillard’s a few minutes before opening, and then shortly 

after the store opened she proceeded to gather the items she wanted. This took her

18



about 30 minutes, and the items cost in total approximately $400 (A 730). When 

McFadden had gathered her items, she got in a long line of customers to the cash 

register, all of whom were white, and waited for approximately 45 minutes to pay (A 

731 -32). As McFadden got closer to the register, she noticed that both cashiers were 

white, one older who was ringing up the items and one younger who was packing 

them (A 736). When McFadden arrived at the register, the older cashier began 

making noises as if  she was disgusted. McFadden asked the cashier if there was a 

problem, and was told there was not (A 737).

McFadden found the cashier’s demeanor toward her to be negative, and she 

observed the cashier handling McFadden’s items in a rough fashion (A 738-39). The 

younger cashier observed that McFadden had not been given the sales price on some 

ribbons, which had been taken off the tree and had not been marked. When the 

younger cashier asked her colleague about this, the older cashier stated in a negative 

voice that if she wanted these ribbons she would have to pay full price for them. The 

younger cashier then reminder the older cashier that other white customers had been 

allowed to purchase other items taken off the tree at the sales price; nonetheless, the 

older cashier insisted that McFadden would be charged full price (A 739). McFadden 

interrupted the cashiers and told them that even if she was going to be charged full 

price for the items, she would still purchase them (A 740-41).

19



As the cashier was ringing up the ribbons, she told McFadden that the 

computer had malfunctioned. She then asked to see McFadden’s driver’s license. 

McFadden asked why this was necessary, and the cashier informed her that Dillard’s 

had a policy of running checks on individuals by using their driver’s license (A 741). 

McFadden complied and handed her driver’s license to the cashier. The cashier then 

went over to speak to another Dillard’s employee, and while she was looking at the 

license, they both looked at McFadden and the employee shook her head in a negative 

manner. The older cashier then returned and handed the license to the younger 

cashier, who in turn informed her that “under no circumstances will Dillard’s take 

your check” (A 742).

Shocked, McFadden asked for an explanation but was told that the computer 

had “kicked her out” (A 741). When McFadden suggested that a mistake had been 

made, and asked to have her items rung up again, the cashier refused and told her to 

leave the store (A 743). As she was leaving, other customers began to pick up the 

items to purchase them (A 743). McFadden was crying and confused by the sequence 

of events (A 744). Despite the fact that the cashier had not completed ringing up her 

items, and that McFadden had not even taken her check out, or even mentioned to the 

cashier how she intended to pay for the items, she had been told that “under no 

circumstances would Dillard’s accept a check from you” (A 744).

20



Later that day, after speaking with her husband, McFadden came back to the 

store with her sister to try to find out what had happened. McFadden wanted to see 

if she could in fact make a purchase at Dillard’s, so she had her sister pick out a pair 

of shoes. McFadden took the shoes to the cashier, a foreigner of African descent who 

was black in appearance. McFadden handed the cashier a check, and he rang up the 

shoes. McFadden confirmed that there was no problem with her check, and that the 

computer had cleared her payment (A 745). Upon completion of this transaction, 

McFadden sought a store manager to seek an apology from the store for the earlier 

incident. Despite her efforts, no apology was obtained (A 746-47).

7. Incident Involving Irma Nelson: On March 13,1999, plaintiff Irma Nelson 

went to Dillard’s in the McCain Mall to pay her Dillard’s bill. In particular, Nelson 

went to the cologne counter to make a payment on her account. When she made her 

payment, she was told that there was a special promotion on cologne downstairs, and 

all she needed to do to participate was to fill out a card (A 783). When Nelson, who 

is legally blind and has been visually impaired since birth, went downstairs, she had 

trouble finding the place she needed to go (A 778-80, 784). She eventually was able 

to locate the area, and filled out the card with the aid of a magnifying glass (A 784).

When she got to the top of the escalator, she sensed someone behind her and 

when she turned around she saw an officer and another person with him. The officer

21



was Pat Thessing, who told Nelson that she needed to step aside. Nelson explained 

what she had just done regarding the promotion and inquired as to why she needed 

to step aside (A 785). Thessing told her that he wanted to search her, and that she 

needed to take her coat off. Nelson removed her coat twice at Thessing’s direction, 

and told Thessing that she had not stolen anything (A 786). When Thessing saw that 

Nelson did not have anything on her, Nelson became upset and began to cry and 

exclaimed that she had not stolen “shit out of this god damn store.” Thessing then 

told Nelson that he could put her in jail (A 788).

Nelson subsequently requested to speak to the store manager, and was assured 

by a Dillard’s employee that she would take care of the matter. Nelson never heard 

anything further from Dillard’s (A 790).

B. Additional Evidence Regarding Dillard’s Discriminatory Practices

In addition to these incidents, there was other evidence before the district court 

regarding Dillard’s discriminatory practices. For example, one of the deputies 

responsible for security duties at Dillard’s, Tommy Osborn, generated a computer 

data base that contained information on the people with whom Dillard’s Park Plaza 

security had come in contact (A 792-93).7 This data base revealed that, between May

’According to Deputy Osborn, the Pulaski County Sheriffs Department took 
over security duties for Dillard’s in May 1997 (A 801).

22



17, 1997 and January 7, 2000 (a period that covers all of the previously-described 

incidents except one), there were a total of 550 arrests and/or detentions at Dillard’s 

(A 798, 802). Blacks accounted for 85.1% of the total while whites accounted for 

merely 14.3% (A 798, 828). Osborn also placed in a photo album all of the pictures 

that had been taken of individuals who had been arrested or banned from the store, 

and he arranged these pictures by race (A 800). In addition, Dillard’s at one time 

maintained a “wall of shame” that had photographs of people who had been arrested 

at Dillard’s, and most of those who appeared on the wall were black (A 839-40).

Finally, plaintiffs proffered additional evidence from other African-Americans 

regarding their shopping experiences at Dillard’s. See, e.g., Testimony of Kendra 

Williams (Williams and her friend Michelle Brown shopped at Dillard’s in McCain 

Mall in 1998, were accused of shoplifting by a white employee, nothing was found, 

but both were nonetheless forced to sign a ban sheet) (A 847-50); Testimony of 

Chaquilla Stewart (Stewart and her sister-in-law went to Dillard’s in McCain Mall 

around January 2000 with garment bags and were falsely accused of shoplifting) (A 

852-57); Testimony of Shirley Doby (recounting observations of disparate treatment 

between blacks and whites at Dillard’s at Park Plaza and McCain Mall) (A 859-62).

23



C. The District Court’s Ruling

As previously noted, on September 30, 2002, the district court issued a 

memorandum opinion and order granting all of the defendants’ summary judgment 

motions.8 The court first considered plaintiffs’ section 1981 and 1982 claims. It 

ruled that plaintiffs had failed to demonstrate a contractual relationship with Dillard’s 

that had been interfered with in the incidents in question so as to make their claims 

actionable (Addendum at 19-29):

• as to the Norris and Daniels incident, the court concluded that (1) 

Daniels did not even allege that she attempted or even intended to 

purchase anything from Dillard’s, and thus she failed to establish that 

defendants had interfered with her right to make and enforce contracts; 

(2) Norris established only that her interest in making a return (assuming 

that is a contract interest) was delayed, not denied and therefore 

defendants’ actions did not rise to the level of interference with a 

contract sufficient to grant relief under section 1981; and (3) there was 

no evidence from which a jury could find a denial of contractual rights 

because of race (Addendum at 24-26);

Pursuant to Local Rule 28A(b), the district court’s opinion and order from 
which this appeal is taken is attached as an addendum to this brief.

24



as to the Minor and Williams incident, the court concluded that Minor 

and Williams had completed their purchase, and that since it was only 

after they had finished their shopping that they were asked to step 

outside there was no interference with contract rights (Addendum at 26); 

as to the Nelson incident, the court concluded that Nelson did not allege 

that she was prevented from signing up for a cologne promotion after 

making a payment on her account and therefore was not prevented from 

engaging in a contractual relationship with Dillard’s (Addendum at 27); 

as to the Moore incident, the court concluded, with no discussion of its 

reasoning, that even though Moore came to Dillard’s to exchange a 

purse and, after being confronted on suspicion of shoplifting, left the 

store without the purse she had come to exchange (or a replacement), 

there was no evidence from which a jury could reasonably find Moore’s 

rights were violated (Addendum at 27);

as to the Home incident, the court concluded, with no discussion of its 

reasoning, that while the evidence is undisputed that Home was asked 

to come back into the store to investigate whether she had shoplifted 

after she had purchased a shirt, there was no evidence from which a jury 

could reasonably find Home’s rights were violated (Addendum at 27);

25



• as to the Nichols incident, the court concluded, with no discussion of its 

reasoning, that once it was determined that Nichols did not have a pair 

of jeans under her warm up pants, she was not prevented from shopping 

and therefore her rights were not violated (Addendum at 27); and

• as to the McFadden incident, the court concluded that while 

McFadden’s right to contract with Dillard’s and to make a purchase had 

been “at the least interrupted” when a cashier told her that the computer 

had “kicked her out” and that under no circumstances could she pay with 

a check, she had presented no evidence from which a jury could find that 

her rights were violated (Addendum 27-28).

The court then turned to plaintiffs’ constitutional claims. As a threshold 

matter, the court observed that defendants did not “seriously challenge plaintiffs’ 

contention that they were acting under color of state law” (Addendum at 29). It 

found, however, that plaintiffs offered no evidence to create a genuine issue of fact 

that defendants’ actions were based on their race. Thus, it granted summary judgment 

on plaintiffs’ Equal Protection claims (Addendum at 30).

As to plaintiffs’ Fourth Amendment claims of unreasonable search and seizure, 

the court again concluded that there was no evidence from which a jury could find 

that the officer defendants had engaged in unlawful conduct. It found that none of

26



the plaintiffs were unreasonably seized, that there was reasonable suspicion for these 

investigatory stops (and probable cause for the arrest of plaintiff Daniels), and that 

race had not played a part in the stops (Addendum at 31-43).

Finally, the court found that defendants were entitled to summaryjudgment on 

plaintiffs’ claims brought pursuant to 42 U.S.C. § 2000a et seq. because Dillard’s is 

a retail store, not a place of “public accommodation” (Addendum at 43),9 and it 

dismissed plaintiffs’ state tort law claims without prejudice (Addendum at 43-44).

Summary of Argument

The district court improperly granted summaryjudgment on plaintiffs’ claims 

brought under section 1981. The 1991 amendments to the statute require a broad 

construction of its terms in order to effectuate congressional intent, but the district 

court’s interpretation of section 1981 and the relevant case law was cramped and 

unnecessarily restrictive. In particular, the district court ignored evidence in the 

record and wrongly concluded that each of the nine plaintiffs was unable to establish 

that defendants impeded their ability to make (and enjoy the benefits of) a contractual 

relationship. The court also erroneously held that plaintiffs had failed to create 

genuine issues of material fact regarding defendants’ intention to discriminate on the

’Plaintiffs do not pursue their claims brought pursuant to 42 U.S.C. § 2000a et 
seq. on appeal.

27



basis of race, ignoring statistical and other evidence from which a jury could infer 

that plaintiffs were the victims of intentional discrimination.

The district court similarly erred in granting summary judgment on plaintiffs’ 

section 1983 claims. While correctly finding that the officer defendants had acted 

under color of law during the incidents in question, the district court summarily 

rejected plaintiffs’ Equal Protection claims. However, whether defendants engaged 

in racial profiling, selectively enforcing Dillard’s policies against African American 

shoppers due to their race, is a factual question which the district court was not free 

to decide. Finally, the district court improperly weighed the evidence, favoring 

defendants’ version of events over plaintiffs’ and wrongly concluding that plaintiffs’ 

encounters with Dillard’s security officers did not rise to the level of a Fourth 

Amendment violation. Contrary to the court’s ruling, it is for the jury to determine 

whether plaintiffs were unreasonably seized and detained, and whether the officers 

who engaged in this conduct were entitled to qualified immunity.

ARGUMENT

I. Standard of Review

This Court reviews de novo a district court’s grant of summary judgment. See 

Ihnen v. United States, 272 F.3d 577, 579 (8th Cir. 2001), cert, denied, 123 S. Ct. 114 

(2002). Summary judgment is appropriate where the evidence, viewed in the light

28



most favorable to the non-moving party, demonstrates that there is no genuine issue 

of material fact, and that the moving party is entitled to judgment as a matter of law. 

See Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000); see also Fed. R. Civ. 

P. 56(c). The moving party bears the burden of demonstrating that the facts are 

undisputed, Bradley v. Widnall, 232 F.3d 626, 630 (8th Cir. 2000), but the trial court 

must give the party opposing summary judgment the benefit of all reasonable 

inferences that can be drawn from the factual evidence presented. Smithson v. 

Aldrich, 235 F.3d 1058,1061 (8th Cir. 2000). Moreover, this Court has instructed that 

“[sjummary judgment should be cautiously granted in discrimination cases because 

such cases often depend on inferences rather than on direct evidence.” Jacob-Mua 

v. Veneman, 289 F.3d 517, 520 (8lh Cir. 2002). Indeed, this Court has counseled that 

to support a grant of summary judgment, “[a]ll the evidence must point one way and 

be susceptible of no reasonable inferences sustaining the position of the non-moving 

party.” Johnson v. Minnesota Historical Society,931 F.2d 1239,1244 (8th Cir. 1991).

II. The District Court Erred In Granting Summary Judgment On Plaintiffs’
Section 1981 And 1982 Claims

A. The Plain Language Of Section 1981 Affords Broad Protection 
Against Race Discrimination Related But Prior To, At The Times 
Of, And Following Entry Into, Contracts

Section 1981 bars discrimination in the making and enforcing of contracts:

29



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 . . .

42 U.S.C. § 1981(a). The meaning of the term “to make” necessarily includes the 

opportunity to enter into a contract, and conduct that appropriately leads to contract 

formation preceding the precise moment of contract execution, as well as the 

opportunity to enjoy the fruits of the contractual relationship after its formation.

Making a contract may involve a number of steps and activities, including the 

examination of goods, the comparison of goods and prices, negotiations, and the like. 

As one court has recently observed, “shopping in a retail store may involve multiple 

contracts. Each time a customer takes an item off the shelf, a new contract looms, and 

each time the item is returned, the potential contract is extinguished.” Garrett v. 

Tandy Corp., 295 F.3d 94, 100 (1st Cir. 2002). The “same right . . .  to make . . . 

contracts . . .  as is enjoyed by white citizens” would lack any meaning if it did not 

encompass these and other aspects of contract formation.

In the Civil Rights Act of 1991, Congress reaffirmed the broad sweep of 

section 1981's protection against discrimination in contracting when it clarified the 

definition and application of “to make and enforce” contracts by adding section 

1981(b):

30



For purposes of this section, the term “make and enforce 
contracts” includes the making, performance, modification, 
and termination of contracts, and the enjoyment of all 
benefits, privileges, terms, and conditions of the 
contractual relationship.

These provisions were enacted, in part, to correct the Supreme Court’s narrow 

construction of section 1981 in Patterson v. McLean Credit Union, 491 U.S. 164 

(1989), in which the Court held that section 1981 did not encompass the plaintiffs 

claim that she was subjected to demeaning treatment and harassment by her 

supervisor while employed by the defendant, 491 U.S. at 178. The Court had 

declared that the statute “does not apply to conduct which occurs after the formation 

of a contract and which does not interfere with the right to enforce established 

contact obligations,” id. at 171. With the 1991 amendments, Congress made clear 

that section 1981 is intended to protect against discrimination far more broadly than 

in merely the act of extending or accepting a particular offer. See Pub. L. 102-166, 

105 Stat. 1071 § 3 (1991) (amendments enacted, in part, to respond “to recent 

decisions of the Supreme Court by expanding the scope o f  relevant civil rights 

statutes in order to provide adequate protection to victims of discrimination”) 

(emphasis added).

31



B. The District Court Misapplied This Court’s Recent Decision In 
Y o u n g b lo o d  Because Plaintiffs Had Not Completed Their 
Transactions And Dillard’s Thus Continued To Owe Them A 
Contractual Duty

While the 1991 amendments thus plainly broadened the scope of section 1981, 

the district court ignored the statutory language and its compelling legislative history 

and gave the statute a restrictive reading in applying it to the incidents of consumer 

discrimination in this case. In doing so, it cited Youngblood v. Hy- Vee Food Stores, 

Inc., 266 F.3d 851, 854-55 (8th Cir. 2001), cert, denied, 122 S. Ct. 1606 (2002), in 

which this Court recently held that “section 1981 does not provide a general cause of 

action for race discrimination if it in fact occurred. The requirement remains that a 

plaintiff must point to some contractual relationship in order to bring a claim under 

section 1981.”

Youngblood, which did not discuss section 198l's recent legislative history, is 

distinguishable from the facts of this case. In Youngblood, this Court found that 

nothing had happened after the sale involved there that created any further contractual 

duty on Hy-Vee’s part.10 As the district court noted, other courts have reached

10In Youngblood, a store employee had accused an African-American customer 
of shoplifting after the customer had consummated his purchase. Id. at 853. 
Y oungblood had purchased a single canister of beef jerky and then headed toward the 
exit. A store employee, suspecting that Youngblood had stolen most of the beef jerky 
inside a second can, stopped him at the door and asked him for his receipt.

(continued...)

32



similar results (Addendum at 23-24) (collecting cases), but the court below plainly 

erred when it characterized the incidents affecting the plaintiffs in this matter in the 

same fashion.

In contrast to Youngblood, the plaintiffs here were owed duties by Dillard’s 

that were related integrally to their contractual relationship with the store that make 

their section 1981 claims actionable. As seen in the light most favorable to plaintiffs, 

as is required on a motion for summary judgment, the facts revealed the following:

1. Angela Moore had spoken to a Dillard’s sales associate about 

exchanging a purse and was advised to go find what she wanted. Moore 

was thus in the process of exchanging a purse when Dillard security 

confronted her and prevented her from consummating her transaction.

2. Veronica Norris went to Dillard’s with the intention of obtaining a 

refund for a sweater and a pair of jeans. Norris handed a sales associate 

the sweater and her original receipt, filled out the necessary paperwork, 0

I0(.. .continued)
Youngblood gave him his receipt and his bag, and when the store employee opened 
the canister Youngblood had purchased, he observed that it was “crammed full” of 
beef jerky. Id. Youngblood was eventually arrested, but the charges against him 
were ultimately dismissed. Id. at 853-54. This Court rejected the section 1981 claim 
because “once Youngblood paid the cashier and received the beef jerky from the 
cashier, neither party owed the other any duty under the retail-sale contract [for a 
single can of jerky].” Id. at 854.

33



was given a receipt for the sweater, was told that she would have to take 

the receipt to customer service for the refund, and was then directed to 

a different register in order to get a refund for the jeans. Before Norris 

was able to obtain the refund from customer service, and before she was 

able to obtain a receipt for a refund regarding the jeans, she and her 

friend Tinika Daniels were detained by Dillard’s security. Eventually 

Daniels was arrested and Norris was barred from reentering Dillard’s to 

complete her transaction. The district court’s conclusion that Norris was 

merely “delayed, not prevented” (Addendum at 25) is inconsistent with 

Norris’ deposition testimony and, in any event, reflects the same 

cramped interpretation of section 1981 as the Supreme Court’s decision 

in Patterson that Congress corrected in the 1991 amendments.

3. Janice Minor had finished purchasing a blouse when her daughter Jenisa

Williams asked her if she could buy some sneakers to go with some 

newly-purchased warm ups. It was during the course of Williams’ 

search for the sneakers that Minor and Williams were accused of 

shoplifting. Thus, they were not able to complete the sneaker 

transaction that they had attempted. Moreover, the court failed to 

consider the probative value of Minor’s testimony that Daulton had

34



come into the customer service area and told Minor and her daughter to 

“get out” even though they were no longer shoplifting suspects.11

4. Ruby Nichols was in the process of purchasing a pair of jeans when she 

was accused of shoplifting and was unable to complete any transaction.

5. Loretta McFadden had gathered a collection of Christmas items and 

after waiting on a long line to the cashier was not given the sales price 

on certain items that other, white customers had received. She was then 

kicked off the line, and told to leave the store without completing her 

purchase. Even the district court, in dismissing McFadden’s claim, 

acknowledged that McFadden’s right to make a purchase was “at the 

least interrupted” (Addendum at 28), but without any analysis the court 

announced that there was no evidence from which a jury could find she 

had been denied her rights under section 1981.

6. Nelson was still in Dillard’s, having paid her bill and filled out an entry 

card for a cologne promotion, when she was stopped and searched by 

security personnel.

"In fact, the district court appeared to credit Daulton’s testimony, not Minor’s, 
on this point, because the court noted that their “encounter with Daulton was brief 
and he never told them they could not come back into the store” (Addendum at 26).

35



7. Daniels, accompanying her friend Norris, was admitted to Dillard’s as 

an invitee and was extended offers to contract through the display of 

merchandise with posted prices, at the time of her encounter with the 

store’s security officers.12

8. Home was in the process of taking home the shirt she had purchased at 

Dillard’s and was in the store’s parking area (common to the mall in 

which it was located) when she was prevented from doing so by security 

personnel.13

Thus, contrary to Youngblood, all of these plaintiffs were deprived of the right 

to make a purchase or to enjoy the benefits of their contractual relationship with 

Dillard’s. The district court’s cramped reading of Youngblood and failure to construe

l2It surely is of no legal consequence that Daniels was accompanying Norris, 
who was engaged in exercising one of the bundle of rights (to make an exchange) 
connected with the purchase transaction she had entered into on an earlier date. Cf, 
e.g., Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) (Fair Housing Act 
and section 1982 protect white tenants from eviction because they entertained black 
guests in their rented home); Walker v. Pointer, 304 F. Supp. 56, 60 (N.D. Tex. 1969) 
(same).

l3Home thus clearly comes within the parameters of section 1981, as amended, 
in particular the “enjoyment of all benefits, privileges, terms and conditions of the 
contractual relationship.” As the First Circuit recently observed, “the extension 
applies to those situations in which a merchant, acting out of racial animus, impedes 
a customer’s ability to enter into, or enjoy the benefits of, a contractual relationship.” 
Garrett, 295 F.3d at 100 (emphasis added).

36



section 1981 consistently with congressional intent led it to conclude erroneously that 

these claims did not relate to one or more of the activities encompassed by section 

1981. Other courts have ruled in plaintiffs’ favor in circumstances similar to those 

present here. See, e.g., Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 874 (6th Cir. 

2001) (whether shoppers were removed from store due to race discrimination was 

jury question where “record reflects that [plaintiff] had selected merchandise to 

purchase, had the means to complete the transaction, and would, in fact, have 

completed her purchase had she not been asked to leave the store”); Hampton v. 

Dillard D ep ’t Stores, Inc., 247 F.3d 1091,1103-05 (10th Cir. 2001) (court upheld jury 

verdict for African-American woman, ejected from Dillard’s store, who was 

attempting to redeem coupon she had received incidental to previous purchase), cert, 

denied, 534 U.S. 1131 (2002); Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 

1996 WL 617165, at *3 (N.D. 111. Oct. 23, 1996) (section 1981 claims survived 

summary judgment when security guards’ shoplifting accusations prevented plaintiff 

from completing his transaction). While the district court conceded that some of 

defendants’ actions were “unfortunate and unfair in hindsight” (Addendum at 43), it 

failed to appreciate that “the fact that an act of contractual discrimination was short 

or de minimis does not make it any less a violation.” Williams v. Cloverleaf Farms 

Dairy, 78 F. Supp. 2d 479, 485-86 (D. Md. 1999).

37



C. The District Court Ignored Plaintiffs’ Evidence And Erroneously 
Concluded That Plaintiffs Had Failed To Establish An Evidentiary 
Basis For A Finding Of Intentional Race Discrimination

While this Court has not directly addressed the question of what constitutes a 

prima facie  case in a section 1981 action based on a commercial transaction,14 most 

appellate courts have concluded that to prevail on a claim in such circumstances, 

plaintiffs must show that (1) they are members of a racial minority; (2) the defendant 

intended to discriminate against them on the basis of race; and (3) the discrimination 

related to one or more of the activities encompassed by the statute. See, e.g., Garrett 

v. Tandy Corporation, 295 F.3d 94,98 (1st Cir. 2002); Morris v. DillardDep 7 Stores, 

Inc., 277 F.3d 743, 751 (5th Cir. 2001); Chu v. Gordmans, Inc., No. 8:01CV182,2002 

WL 802353, at *4 n.4 (D. Neb. Apr. 12, 2002); but see Christian, 252 F.3d at 871-72 

(three-part test “adequately represents the plaintiffs ultimate burden of proof in a §

1981 action, [but] it is inappropriate for use as a prima facie  standard”) (emphasis in 

original). As plaintiffs are all African-American and there is sufficient record 

evidence to demonstrate that defendants impeded plaintiffs’ ability to make and enjoy

14The district court looked to Williams v. Lindenwood Univ., 288 F.3d 349,355 
(8th Cir. 2002), for the elements of a prima facie  claim of racial discrimination under 
section 1981, but that case concerned a student’s challenge of his disciplinary 
expulsion. While this Court addressed a claim of retail discrimination under section 
1981 in Youngblood, it did not identify the elements of a prima facie  case for such 
claims.

38



the benefits of a contractual relationship, the remaining issue is whether plaintiffs 

presented evidence from which a fact-finder could find that defendants intended to 

discriminate against them on the basis of race.

The district court engaged in only the most cursory analysis of this issue. 

While noting that plaintiffs had offered Deputy Osborn’s testimony regarding the 

computer data base of individuals with whom Dillard’s security force had come in 

contact, and regarding his race-arranged photograph album, and also acknowledging 

that plaintiffs had offered testimony from other African-American shoppers who 

alleged differential treatment (Addendum at 21-22), the district court never 

considered this evidence in its analysis of plaintiffs’ section 1981 claims. Indeed, the 

court relegated to a footnote the stark statistical evidence showing that of the 550 

arrests and/or detentions at Dillard’s from May, 1997 to January, 2000, an eye­

opening 85.1 percent were of African Americans (Addendum at 21 n.6). Rather, the 

court below focused entirely on the “contractual” element of a section 1981 claim, 

never considering the evidence of discrimination plaintiffs had offered in support of 

their claims, nor whether discrimination may have motivated defendants to initiate 

interactions with the plaintiffs in the first place.

The district court committed legal error. Plaintiffs advanced sufficient 

evidence of racial discrimination to preclude summary judgment. First, plaintiffs

39



presented statistical evidence from which a jury could infer that they were the victims 

of intentional discrimination. The evidence of the wide racial disparity in arrests and 

detentions at Dillard’s is probative in this regard; the Supreme Court has frequently 

noted the importance of statistics “in cases in which the existence of discrimination 

is a disputed issue.” International Bhd. o f  Teamsters v. United States, 431 U.S. 324, 

339 (1977). This Court itself has noted that statistical evidence has “some probative 

value” in determining whether actionable discrimination has occurred. Goetz v. 

Farm Credit Serv., 927 F.2d 398, 405-06 (8th Cir. 1991). Of course, statistical 

disparities must be “sufficiently substantial” that they raise the inference of 

impermissible discrimination. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 

995 (1988). Here, there is no question that the disparities were substantial, with 

African Americans accounting for 85 percent of those stopped and detained by 

Dillard’s personnel.15 In a recent case of retail discrimination against Dillard’s that 

went to trial in Kansas, the trial court found similar statistical evidence of the race of 

persons involved in arrests and other incidents to be “indirect evidence that Dillard’s

l5This evidence reflects unfounded racial stereotyping and is inconsistent with 
national crime statistics that demonstrate that most shoplifters are white. See 
Consumer Discrimination, 66 Mo. L. Rev. at 280 n .31 (citing Joe R. Feagin & Melvin 
P. Sikes, Living with Racism 47 (1994) (“Another problem that black shoppers face, 
especially in department and grocery stores, is the common white assumption that 
they are likely shoplifters. This is true in spite of the fact that national crime statistics 
show that most shoplifters are white.”)).

40



had a corporate policy which targeted African-American and other minority shoppers 

for security purposes.” Hampton v. Dillard Department Stores, Inc., 18 F.3d 1256, 

1273 (D. Kan. 1998), a ff’d, 247 F.3d 1091 (10th Cir. 2001); see also Estes v. Dick 

Smith Ford, Inc., 856 F.2d 1097,1104 (8th Cir. 1988) (“jury should have been allowed 

to consider [plaintiffs] workforce [statistical] evidence and sort out the parties’ 

conflicting explanations of its significance”).

In addition, the fact that there are seven separate incidents involving allegations 

of similar racially discriminatory conduct at issue here, and additional evidence from 

others who allege that they were targeted because they are African-American, 

demonstrates, at the very least, the existence of genuine issues of material fact as to 

whether there is an ongoing pattern or practice of targeting African-American 

customers at Dillard’s in Little Rock and North Little Rock.

In Hampton, the trial court ruled that “evidence of prior incidents of targeting 

African-Americans was relevant to show motive, intent, and knowledge of Dillard’s.” 

18 F. Supp. 2d at 1270 n.9. This Court has ruled that “[e]vidence of prior acts of 

discrimination is relevant to an employer’s motive in discharging a plaintiff, even 

where this evidence is not extensive enough to establish discriminatory animus by 

itself.” Estes, 856 F.2d at 1104. Thus, each incident alleged in this case can properly

41



serve as evidence for each other incident in establishing Dillard’s discriminatory 

intent.

Finally, the failure of Dillard’s employees to comply with its Rules and 

Procedures gives rise, at a minimum, to an inference of discrimination. See, e.g., 

Hampton, 247 F.3d at 1108-09 (“evidence of discriminatory surveillance . . . can 

certainly be viewed as indirect evidence of discrimination”). The Rules and 

Procedures provide that it is against Dillard’s policy to approach a customer unless 

the customer has been observed “in the actual removal and/or concealment of 

merchandise,” and that “the suspect must be permitted to exit the premises prior to 

apprehension” (A 843). If plaintiffs are to be believed — and their version of events 

must be credited on a motion for summary judgment — then defendants failed to 

comply with these rules. All of the plaintiffs who were accused of shoplifting (with 

the exception of Tara Home) were detained on the premises, not after exiting. 

Moreover, on several occasions Dillard’s security approached individual plaintiffs 

even though they had not observed them remove or conceal any merchandise (for 

example, Deputy Osbom never saw plaintiffs Norris or Daniels take anything and yet 

he proceeded to treat them as if they were suspicious persons; plaintiffs Minor, 

Williams, Nelson, and Moore met a similar fate at the hands of defendants Osbom,

42



Daulton and Thessing). A jury should have the opportunity to determine whether this 

conduct was motivated by racial animus.

In sum, as this Court has observed, “[t]he factually oriented, case-by-case 

nature of discrimination claims requires the court not to be overly rigid in considering 

evidence of discrimination offered by a plaintiff. It is for the trier of fact to decide 

the issue of pretext by reviewing all the direct or circumstantial evidence presented 

and giving it whatever weight and credence it deserves.” Minnesota Historical Soc., 

931 F.2d at 1244. Ultimately, whether plaintiffs here were hindered in their 

contractual relationships with Dillard’s because of race necessarily presents an 

inquiry into the policy of Dillard’s and the state of mind of its employees, and the 

resolution of this issue is unsuitable for summary judgment. Plaintiffs should be 

given the opportunity to present their evidence to a jury in order to demonstrate the 

racial animus underlying the defendants’ conduct.16

l6Section 1982, which prohibits racial discrimination in the purchase of 
property, is “traditionally construed in pari materia” with section 1981, Garrett, 295 
F.3d at 103, and, as the Supreme Court has noted, “[i]n light of the historical 
interrelationship between § 1981 and § 1982 [there is] no reason to construe these 
sections differently.” Tillman v. Wheaton-Haven Recreation A ss ’n, Inc., 410 U.S. 
431,440 (1973). Therefore, plaintiffs’ arguments vis-a-vis section 1981 apply with 
equal force to plaintiffs’ section 1982 claims.

43



III. The District Court Erred In Granting Summary Judgment On Plaintiffs’
Section 1983 Claims

In order for plaintiffs’ section 1983 claims to be actionable, plaintiffs must 

establish that a defendant acted “under color of state law” to deprive them of a right, 

privilege, or immunity guaranteed by the Constitution or laws of the United States. 

West v. Atkins, 487 U.S. 42,48 (1988); S.J., a minor, by T.R. v. Kansas City Missouri 

Pub. Sch. Dist., 294 F.3d 1025, 1027 (8th Cir. 2002).

As a threshold matter, and as the district court correctly found, defendants were 

acting under color of law during the incidents at issue (Addendum at 29, citing 

Youngblood, 266 F.3d at 855; Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8lh Cir. 

1989)). According to Deputy Osborn, the Pulaski County Sheriffs Department took 

over security duties for Dillard’s in May, 1997, and both Osborn and Lieutenant 

Garza confirmed that Sheriffs Department employees were cloaked with law 

enforcement authority when they acted as part of the Dillard’s security staff (A 801, 

811, 834-35). The issue on appeal is thus whether evidence was introduced 

sufficient to support a jury finding that plaintiffs’ constitutional rights were violated.

A. Plaintiffs’ Equal Protection Claims Should Survive Summary 
Judgment

It is well-settled that “the Constitution prohibits selective enforcement of the 

law based on considerations such as race . . .  [T]he constitutional basis for objecting

44



to intentionally discriminatory application of laws is the Equal Protection Clause.” 

Whren v. United States, 517 U.S. 806, 813 (1996). In order to demonstrate an Equal 

Protection violation, plaintiffs have the burden of demonstrating discriminatory 

intent. See, e.g., Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 

264-66 (1977). As this Court has put it succinctly: “the Equal Protection Clause 

requires that state actors treat similarly situated people alike.” Bogren v. Minnesota, 

236 F.3d 399, 408 (8th Cir. 2000), cert, denied, 534 U.S. 816 (2001).

In recent years, courts have begun to address the issue of racial profiling in 

civil cases. The Seventh Circuit, for example, has recognized that “[i]n a civil racial 

profiling case . . .  the similarly situated requirement might be impossible to prove.” 

See, e.g., Chavez v. Illinois State Police, 251 F.3d 612, 640 (7th Cir. 2001) (court 

ruled in case alleging disparities in police treatment of motorists that plaintiffs did not 

have to provide court “with the name of an individual who was not stopped; instead 

they may attempt to use statistics to show that the [police] treated them differently 

than other motorists who were similarly situated”); Carrasca v. Pomeroy, No. 02- 

1127, 2002 U.S. App. LEXIS 26426, at *13 (3d Cir. Dec. 17, 2002) (whether state 

park rangers who allegedly engaged in racial profiling, selectively enforcing a public 

park’s swimming hours against Mexican individuals and not against others similarly 

situated to them, due to their race, was factual issue which district court was not free

45



to decide); Flowers v. TJX Companies, Inc., No. 91-CV-1339, 1994 WL 382515, at 

*4 (N.D.N.Y. July 15, 1994) (plaintiffs’ Equal Protection claim in retail 

discrimination case sufficient to preclude summary judgment where record contains 

issues of fact that could allow jury to find discrimination was factor in officers’ 

actions even though officers deny any discriminatory intent).

The district court provided little analysis in rejecting plaintiffs’ Equal 

Protection claims, concluding simply that there was “no evidence to create a genuine 

issue of fact that defendants’ actions were based on plaintiffs’ race” (Addendum at 

30). It added only that “defendants’ actions were based on their own observations 

and information, sometimes incorrect, provided to them by others” (id.). O f course, 

to reach this conclusion the court had to accept defendants’ version of the facts, 

something it is not permitted to do on a defense motion for summary judgment. As 

this Court has recently observed: “[i]n determining whether a plaintiff has met its 

burden with respect to pretext in a summary judgment motion, a district court is 

prohibited from making a credibility judgment or a factual finding from conflicting 

evidence.” Yates v. Rexton, Inc., 267 F.3d 793, 800 (8th Cir. 2001).

The district court failed to conduct a “sensitive inquiry into such circumstantial 

and direct evidence of intent as may be available,” Arlington Heights, 429 U.S. at 

266, and instead ignored all of plaintiffs’ evidence demonstrating that defendants had

46



not treated them the same as white persons who visited their stores. In rejecting 

plaintiffs’ Equal Protection claims, the district court failed to consider the statistical 

evidence of differential treatment, the “wall of shame,” the photo album organized by 

race by the deputy sheriffs, or the pattern of incidents that gave rise to this suit. 

Taken together, these facts create issues sufficient for a jury to decide whether 

defendants’ conduct is actionable under the Fourteenth Amendment. See Washington 

v. Davis, 426 U.S. 229, 242 (1976) (“[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.”).

II. Plaintiffs’ Fourth Amendment Claims Should Survive Summary 
Judgment

Plaintiffs also contend that they were subjected to unreasonable seizures in 

violation of the Fourth Amendment. The district court correctly observed that in 

order for plaintiffs to prevail on a Fourth Amendment claim, they must establish that 

they were in fact “seized,” and that such seizure was unreasonable (Addendum at 31) 

(citing Buffkins v. City o f  Omaha, 922 F.2d 465,468 (8th Cir. 1990)). As the Supreme 

Court has instructed, with respect to the question whether there was a seizure, “the 

appropriate inquiry is whether a reasonable person would feel free to decline the

47



officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 

429, 436(1991).

While the district court set forth the correct legal standards, it failed to apply 

them properly to the facts of this case. All of the plaintiffs (except Loretta 

McFadden) were seized by the various officers involved, or, at a minimum, there are 

genuine issues of material fact surrounding their respective encounters with law 

enforcement that make summary judgment inappropriate. Norris and Daniels were 

seized because they were not free to leave until after Daniels provided her name. 

Home was seized when her car was blocked so that she could not drive away. Minor 

and Williams were seized when they were asked to step outside of the store, and then 

were told that they were free to go only after the officer satisfied himself that they had 

not been shoplifting. Moore, Nichols, and Nelson were all also put in positions where 

they were not free to decline the requests of the respective officers with whom they 

interacted. As to all of these stops and detentions, the reasonableness depends on the 

credibility of the witnesses, thus making their claims ill-suited to disposition on 

summary judgment. See, e.g., Lambert v. City o f  Dumas, 187 F.3d 931, 935-36 (8th 

Cir. 1999) (summary judgment precluded where there were factual disputes as to 

probable cause for arrest).

48



In rejecting plaintiffs’ Fourth Amendment claims, the district court again 

improperly weighed the evidence, favoring defendants’ versions of events over 

plaintiffs’. See Yates, 267 F.3d at 800; Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 

1976) (question of probable cause is for jury if facts are disputed or subject to 

different inferences). As to the detention of the various plaintiffs, the district court 

accepted the officer’s version of events, finding no Fourth Amendment violations 

where an investigation was based on a tip from a store employee, a detention was of 

short duration, or was terminated promptly upon discovery of no criminal activity. 

Whether it was accepting Thessing’s testimony about shoplifters “making a scene” 

(Addendum at 35), believing Thessing’s version of his interactions with Home, 

Nichols, or Nelson, Daulton’s version of events vis-a-vis Minor and Williams, or 

Osborn’s version vis-a-vis Norris and Daniels (Addendum at 34-37), the district court 

went outside the limits of Rule 56 by engaging in improper evidence weighing. It is 

for the jury to decide whether the officer in fact received a tip, and to evaluate the 

scope and nature of the detention and all the other material facts related to plaintiffs’ 

Fourth Amendment claims.17

It is well-established that for the kinds of stops that the officers engaged in 
here, 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). Rather than simply inspecting

(continued...)

49



m * Defendants Cannot Establish Qualified Immunity On Summary 
Judgment

The officer defendants argued, and the district court agreed, that even if  their 

actions violated plaintiffs’ rights, defendants were entitled to qualified immunity. 

The doctrine of qualified immunity serves to shield public officials from liability in 

section 1983 actions “insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person would have known.” 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This Court has established a three- 

part test to determine whether qualified immunity protects a government official: “(1) 

the plaintiff must assert a violation of a constitutional or statutory right; (2) that right 

must be clearly established; and (3) taking all facts in a light most favorable to the 

plaintiff, there must be no genuine issues of material fact as to whether a reasonable 

official would have known that the alleged action violated that right.” Lambert, 187 

F.3d at 935. While the issue of whether summary judgment on qualified immunity 

grounds is appropriate from a particular set of facts is a question of law, “if there is 7

i7(...continued)
receipts and merchandise immediately, the officer defendants escorted Moore to a 
back room, grabbed Norris’ arm and detained her and Daniels by making them step 
outside, and took Minor and Williams outside of the store as well. Defendants can 
hardly argue that these were the “least intrusive means” available to them, and, at a 
minimum, a jury should decide whether their conduct constituted Fourth Amendment 
violations.

50



a genuine dispute concerning predicate facts material to the qualified immunity issue, 

there can be no summary judgment.” Greiner v. City ofChamplin, 27 F.3d 1346, 

1352 (8th Cir. 1994).

Defendants are not able to meet their burden on the present record. Because 

a reasonable jury, crediting the evidence offered by plaintiffs, could conclude not 

only that plaintiffs’ clearly established rights were violated, but that the officer 

defendants could not have reasonably believed that they were acting within the scope 

of their legal authority, summary judgment on the basis of qualified immunity is not 

warranted.

In sum, because material issues of fact pervade plaintiffs’ § 1983 claims that 

their rights under the Fourth and Fourteenth Amendments were violated, as well as 

defendants’ qualified immunity defense, a trial is also required on these claims.18

18This Court should also remand for trial plaintiffs’ state law claims, over which 
the district court would have supplemental jurisdiction under 28 U.S.C. § 1367 if the 
federal claims are reinstated.

51



CONCLUSION

This Court should reverse the judgment of the district court and remand this

case for trial.

Dated: January 16, 2003

Respectfully submitted,

Elaine R. Jones 
DIRECTOR-COUNSEL

(cjmes L. Cott 
Norman J. Chachkin 
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

Attorneys fo r  Plaintiffs-Appellants

52



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:

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

2. Pursuant to Rule 32(a)(7)(B), and exclusive of the exempted 

portions in Fed. R. App. P. 32(a)(7)(B)(iii), this Brief does not 

exceed 14,000 words, and actually contains 12,327 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.

3. Pursuant to Rule 28A, Appellants are submitting to the Clerk a 3 

*/*inch computer diskette containing the full text of the Brief, the 

diskette being labeled with case name and docket number.

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

diskette on each Appellee counsel.

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

and are virus-free.

j .
/AMES L. COTT

53



CERTIFICATE OF SERVICE

I hereby certify that copies of the Brief for Plaintiffs-Appellants has been 
served by depositing same with a commercial carrier for overnight delivery, on 
January 16, 2003, addressed to the following parties:

David M. Fuqua 
Hilbum, Calhoun, Harper 

Pruniski & Calhoun, Ltd.
One Riverfront Place 
P.O. Box 5551
North Little Rock, Arkansas 72119

Michael S. Moore 
Friday Eldredge & Clark 
2000 Regions Center 
400 West Capitol 
Little Rock, Arkansas 72201

Thomas N. Kieklak 
Harrington, Miller, Neihouse & King 
113 East Emma Avenue 
P.O. Box 687
Springdale, Arkansas 72765

54



ADDENDUM

Memorandum Opinion and Order 
of the Hon. Susan Webber Wright 

dated September 30, 2002 
granting Defendants’ Motions for 

Summary Judgment 
(Dist. Ct. Dkt. No. 68)

55