*1 occasions, im- where the defendants’ ap- these fact that length, the sentences house the sever- half-way alone increased migration status ineligible are pellees because last six months for the therefore assignment I would ity of their sentences. secu- aliens deportable considers the BOP granting court’s of de- the district affirm in- not, alone, exceptional risks rity departure. downward motion for fendants’ conditions severity of the in the crease confinement.
III. CONCLUSION we reverse reasons foregoing
For YOUNGBLOOD, Appellant, the district remand to Carl the sentences with this consistent re-sentencing court opinion. STORES, FOOD HY-VEE INC., Appellee. dissenting. HEANEY, Judge, 00-3980. No. The defendants’ dissent. I respectfully unnecessarily aliens deportable status Appeals, Court of States United status in a more restrictive them places Circuit. Eighth access to confinement, them and denies 15, 2001. June Submitted: release, and treatment, early drug BOP’s that are programs community confinement Sept. Filed: prison general otherwise available Banc Rehearing En Rehearing and au had the court The district population. 12, 2001.* Nov. Denied: on the basis downward thority depart status, and immigration defendants’ discretion, that an abuse did so. Absent review. See subject to our
decision is States, 518 U.S. v. United
Koon (1996); 2035, 135 United L.Ed.2d (8th Navarro, 218 F.3d
States
Cir.2000) discretionary deci that a (finding Sentencing depart not to
sion either absent is unreviewable
Guidelines le a court’s motive or
an unconstitutional determination erroneous
gally mitigating authority to consider
lacked Manu
factor); Sentencing Guidelines U.S. (2000) (“District Commentary
§al 5K2.0 advantage an institutional
Courts have these sort courts appellate
over determinations, they see so especially appellate than cases
many more Guidelines Koon, do.”) at (quoting
courts 2035). court with the district agree
I appropriate on were departures
downward
* petition. SHEPPARD ARNOLD Judge MORRIS grant the would JAY RILEY Judge WILLIAM *2 Edmunds,
Frtiz argued, Park, Overland MO, KS, appellant. Holland,
James argued, C. Kansas City, MO, appellee. ly, argues probable cause
BEFORE: McMILLIAN ARNOLD, Judges, thus, S. did exist to arrest him and RICHARD sum- DAWSON,1 Judge. District mary judgment inappropriate on his malicious-prosecution and false-imprison- *3 DAWSON, Judge. ment claims. African-American, Youngblood, Carl herein, For reasons stated we AFFIRM Hy- rights against a civil instituted the decision of the district court. Stores, (Hy-Vee), asserting Food Inc. Vee Hy-Vee his under 42 that violated Background. subject- and also §§ 1981 and 1983 prosecution him and false ed to malicious 13, 1998, April On or about Youngblood him they when detained
imprisonment
Hy-Vee
proceeded
and
entered
the sec-
him
suspicion
shoplifting and had
ar-
of
tion of the store that contained
of
canisters
pressed charges against him.
rested and
jerky. Youngblood spent
beef
time
some
Hy-Vee sum-
granted
The district court2
area
and
selecting
this
before
canister
mary
concluding
Hy-Vee’s
that
judgment,
up the
walking
aisle towards
check-out
deprive Youngblood
not
his
actions did
employee
Young-
A store
area.
observed
under Section
as
contract
and
his behavior
for
thought
blood
unusual
completed
purchase;
had
Youngblood
his
appeared
employee
Young-
to the
that
Hy-Vee did not violate the full-and-
that
had his hands
blood
underneath his shirt.
equal-benefits
of Section
as its
clause
aisle,
taking
steps up
After
a few
not
private
actions constituted
and
state
turned and returned to the
Youngblood
action;
Hy-Vee’s actions
that because
did
section, placed
original
beef-jerky
can-
action, Youngblood’s
not
state
constitute
picked up
ister
on the shelf and
an-
back
failed;
1983 claim likewise
and
Section
appeared
It
other canister.
the store
mali-
Youngblood
that
could
establish
employee
Youngblood placed
the sec-
prosecution
imprisonment,
false
cious
Young-
ond
underneath his shirt.
canister
probable cause
his
there was
arrest
proceeded to
cash register
blood then
and his detention was reasonable.
single
canister of beef
purchased
Youngblood argues
appeal,
On
jerky.
employee
The store
checked the
rights protected
contract
Section
placed back on the
Youngblood
canister
enjoyment of
include the
all
that most of the beef
shelf and discovered
terms,
benefits, privileges,
and conditions
missing.
Youngblood
As
jerky inside was
relationship,
and that
contractual
exit,
the employee
headed toward
the district court therefore erred
con-
for his re-
Youngblood
asked
stopped
provided
cluding
Young-
that Section
ceipt. Youngblood gave
receipt
him the
he
protection
completed
once
blood no
employee opened
store
bag.
his
The
purchase. Young-
his
contract
purchased
Youngblood
had
canister
the full-and-
argues
blood further
full” of
that it
“crammed
observed
equal-benefits
ap-
of Section 1981
clause
Youngblood
in the
jerky.
stop
beef
The
actors,
that,
in any
plies
private
min-
lasted two to five
front of
event, Hy-Vee
under color of state
acted
in an
then waited
Youngblood
utes and
implicate Youngblood’s rights
law so
toas
twenty
approximately
upstairs
1983. Final-
office for
under both Sections 1981 and
Gaitan,
Jr.,
Dawson,
J.
T.
Honorable
Fernando
1. The Honorable Robert
United
The
Judge
States District
Western
Judge
States
for the Western District
United
District
Arkansas, sitting by designation.
district Missouri.
police
to Youngblood
minutes until the
arrived. The door
all
discards
open
damaged
during
suspected
office remained
items associated with a
question
physically
time and
was not
we must deter-
any
mine is
contractual relation-
any
po-
restrained
manner. When the
arrived,
ship
Youngblood completed
remained once
lice officer
he asked what Young-
if
taking
had
the store
employee
blood
done and
denied
a benefit
the officer that
told
had taken
relationship.
contractual
of the
of one beef-jerky
most
contents
placed
it into another.
canister
After
precedent,
While
is scant
there
canister,
examining
the contents
courts that
addressed
have
the issue
*4
Youngblood.
officer arrested
The criminal
purchase
concluded
the
com
that once
is
charges against Youngblood were ultimate-
pleted, no
re
relationship
contractual
ly dismissed.
e.g.,
mains.
Lewis v.
Penney
See
J.C.
Co.
Inc.,
(D.Del.1996);
F.Supp.
948
372
II. Discussion.
Elliott,
see also Rogers
F.Supp.2d
v.
135
(N.D.Ga.2001).
grant
review the district court’s
Youngblood
We
summary
de
judgment
correctly points
novo.
in
See Beck
out that
these
cases
(8th
Skon,
Cir.2001).
v.
253 F.3d
customers
have
did not
the merchandise
they purchased
of summary
away.
reverse an award
taken
judg
We
This distinc
however,
tion
only
significance,
if
a
is of little
ment
we find that material
issue
key
any
is
duty
of fact exists
that
whether
contractual
re
or
district court
pur
mained after
an
made his
made
incorrect conclusion of law. See
56(c).
Youngblood paid
chase. Once
the cashier
deciding
Fed.R.Civ.P.
In
jerky
received the beef
Hy-Vee is
cash
summary judgment,
entitled to
ier,
party
any duty
neither
owed the other
summary judgment
we view the
record in
under the retail-sale contract.
is
This case
light
a
most
to Youngblood,
favorable
af
distinguishable
Hampton
from
v. Dillard
fording him the
of all
benefit
reasonable
Inc.,
Stores,
(10th
Dept.
contractual existed after purchase. Hampton, In Right-to-Contract the customer re A. Section 1981’s coupon fragrance ceived a a sample Clause a purchase benefit of her and the Tenth provides persons Section all Circuit concluded that a store had shall have the same to “make and duty contractual to allow the customer enforce See 42 contracts.” U.S.C. redeem coupon. See id. at 1103-05. 1981(a). Congress expanded case, nothing In this happened after scope Section 1981 include the any the sale created further contractual enjoyment benefits, “the of all duty Hy-Vee’s part. Hy- Accordingly, terms, privileges, and conditions of the Vee cannot be said to deprived contractual relationship.” See any the benefit of contrac 1981(b). Hy-Vee removed the beef relationship, relationship tual as no such jerky from after point away existed when it the beef jerky took did not refund from Youngblood. Youngblood’s money even after charges against him Hy- were dismissed. The suggests Young- dissent further did blatantly Vee not return blood against discriminated id. a state actor. See at disagree, we Section considered in this case. While A may S.Ct. 1598. store be considered a cause of provide general 1981 does not jointly po- acting police when the if in fact it discrimination race shoplifters lice without detain accused that a requirement' remains occurred. independent investigation to some contractual point plaintiff must pursuant customary plan to a between bring a claim un relationship in order police department. store and the See This does not conclusion der Section 1981. Wal-Mart, Murray v. 874 F.2d remedy is no cases mean that there (8th Cir.1989). In Murray, 558-59 wrongfully confiscates items a store where court found that Wal-Mart acted in con- The nature of purchased by a customer. police had cert with the because Wal-Mart action, however, contract, but practice police a with the de- working law, Specifically, under Missouri in tort. partment prosecuting shoplifters; lies for the of action for conversion cause security guard employee was an Koger taking of chattel. See tortious police department; police and the re- Co., 405, 415 Ins. 28 S.W.3d Hartford Life incomplete guard’s lied on the version of (Mo.Ct.App.2000). any independent investi- facts without *5 gation. id. at See Full-and-Equal- B. Section 1981’s present distinguish case is Benefit Clause Murray, employee able from as the store persons provides that all 1981 Section em who witnessed the incident was not equal have to “the full and shall police ployed by department and proceedings for the of all laws and benefit in police to the scene officer summoned 42 security persons property.” of and vestigated speaking the incident § n 1981(a). is “Because the state employee examining and the con law, only it is the sole source Young- tents the beef canister. of deny equal the full and can state on a statute which au blood relies state Higbee v. Chapman of the law.” benefit suspected merchants to detain thorizes (6th 753504, Co., 416, 2001 WL *3 256 F.3d shoplifters in a manner and for reasonable 2001); 5, see July also Mahone Cir. to length investigate a time reasonable of Cir.1977) 1018, (3d Waddle, 564 F.2d 1029 see shoplifting, there been a has in full- (concept implicit of action is state (2000), argues § 537.125 and Mo.Rev.Stat. denied, clause), and-equal-benefit cert. 438 statute, acted under this as 3122, 904, L.Ed.2d 1147 57 U.S. action. The its conduct constituted state (1978). below, Hy-Vee’s As ac discussed private Supreme held that a Court has action and did not constitute state tions pro party’s legal mere invocation of state to therefore entitled sum Hy-Vee was action. does constitute state cedures claim un judgment Youngblood’s mary Co., Oil Lugar See v. Edmondson full-and-equal-benefit clause. der the 2744, L.Ed.2d n. 102 73 939 S.Ct. (1982); Compton, cited Miller 482 C. Section 1983 Cir.1997). (8th 122 F.3d can be Only state actors held of Malicious Claims D.State-Law Adickes v. liable under Section 1983. See Imprison- False Prosecution and Co., 144, 150, Kress & U.S. S.H. ment (1970). pri A L.Ed.2d 142 properly granted participates The district court party willfully who vate judgment on these Hy-Vee summary agents or its is joint activity with State claims, probable Equal existed to rights cause sus under the law pect Youngblood of See Ja (a) of equal Statement (Mo.Ct. Bonser, cobs v. 46 S.W.3d All (to persons jurisdiction within the App.2001) make submissible case of the United States shall plaintiff must same prosecution, malicious show every prosecution); lack cause probable Territory for State and McNeill, contracts, sue, Edwards v. 894 S.W.2d make and enforce (Mo.Ct.App.1995) (probable cause is evidence, com parties, give the full plete defense cause of for false equal pro- benefit all laws and arrest). employee thought A store he ob ceedings security persons put served a canister citizens, property enjoyed by white shirt, jerky under his then return that subject punishment, and shall be to like place canister the shelf another one taxes, licenses, pains, penalties, and ex- employee under his shirt. The examined kind, every actions of to no other. placed only the can back on the shelf and (b) “Make enforce contracts” de- couple pieces in it. remained When the fined employee Young- examined the canister purchased, appeared blood had to be section, For purposes the term provided full.” These facts “crammed “make enforce contracts” includes grounds suspicion, sup “reasonable performance, modification, the making, ported by ... sufficiently circumstances contracts, and termination of and the strong to man in warrant cautious enjoyment benefits, of all privileges, *6 belief’ that had committed the terms, conditions of and the contractual offense of Thompson See relationship. Inc., 780, Wal-Mart Stores 890 S.W.2d (c) against impairment Protection (Mo.Ct.App.1995). rights protected The this by section III. Conclusion. protected against impairment are by Based on the we foregoing, hereby af- nongovernmental discrimination and im- rulings firm in the district court’s their pairment color under of State law. entirety. § 42 U.S.C. ARNOLD, Judge, RICHARD S. The in Court holds this ease that a
dissenting.
(Youngblood)
customer
by
who is detained
1981,
§
persons
Under 42 U.S.C.
all
in employees
(Hy-Vee)
of a retail store
im-
right
United States have the same
“to mediately
paid
he
after
has
consumer
make
enforce
contracts.”
item, who
that item
him by
has
taken from
1981(a).
1991,
§
Congress amended
employees,
those
and who
not
is
refunded
explain
the statute to
clause in-
money
purchased
with which he
enjoyment
cludes the
to “the
of all
item—all of which events occur on the
benefits,
terms,
privileges,
and conditions
premises
an
maintain
action
—cannot
1981(b).
relationship.” §
of the contractual
§
enjoy
1981 based
job
Our
rights
is
decide what
are con-
of the
“benefits”
contractual relation-
ferred
this statute.
1981(b).
§
ship.
The Court
that at
reasons
statute,
events,
entirety,
the time
its
reads
of these
no contract exist-
follows:
ed between
be-
40(1),
H.R.Rep. No.
er than exhaustive.”
had been concluded.3
retail sale
cause the
(1991), reprinted
Cong.,
Sess.
102d
1st
reasoning
Court’s
Underlying
Cong. Admin. News
in 1991 U.S.Code
&
of the contract
scope
narrow view
Moreover,
Congress passed
§
are sev-
1981. There
right conferred
(b)
response
specifically in
subsection
too
this view is
to think that
eral reasons
Supreme
narrow construction
Court’s
narrow,
actually con-
Congress
of the “make
enforce contracts”
expansive right under the
ferred a more
clause
Patterson v. McLean Credit
statute.
Union,
2363, 105
491 U.S.
First,
it-
statute
language
(1989).
L.Ed.2d 132
See Rivers
Road-
particularly
explanatory
detailed
way Express,
self—
(b)
language of subsection
broad
(dis-
(1994)
—is
Given Young- presented question with the come within Hy-Vee’s alleged actions guilt should blood’s or innocence be § and that (The A dis- per against criminal case him was with his suit. proceed allowed missed.) Rather, faced we are with deter- a store where he has right to leave son’s when victims of racial discrimina- being mining without surround an item purchased bring tion 1981. The ed, detained, having item removed can suit (and as the money protects guilty not well possession his his statute from returned) prac- racially discriminatory from easily be understood as a innocent can Thus, certainly it is the case Perry v.. tices. while of the contract. “benefit” Cf. singled not be out F.Supp. 552 that the innocent should King Corp., Burger color, (S.D.N.Y.1996) skin it is for arrest because of their (denying motion dismiss guilty not equally for the case that the should paid finished and meal where customer restroom; suspicion, investigation, out for sought singled use be restaurant’s simply of their skin may “considered to and arrest because noting plaintiff and use of the color. contracted for food rela benefit of contractual bathroom” as reasons, respectfully For these I dissent. tionship). Youngblood’s version of the Accepting (which purposes) must for present
facts we pervaded the entire
racial discrimination contracting process, just the moment Testing ESICORP, INC.; Louis St. money for Youngblood exchanged - Laboratories, Plaintiffs singled out jerky. beef Appellees, clerk surveillance store before for for singled made out sus- purchase,
he his register make picion he walked INSURANCE LIBERTY MUTUAL (when clerk alerted his store - COMPANY, Defendant manager), singled out for deten- Appellant. he employees as tried tion three store No. 00-2810. purchase. with his to leave the store short, process— contracting the entire of Appeals, Court United States entered the from time Eighth Circuit. prevented he from until time was jerky paid he had leaving with the beef 2001. Submitted: June discrimination, tinged with racial for—was Sept. Filed: Youngblood’s is believed. Giv- if evidence Rehearing En Banc Rehearing and purpose, en 1981’s remedial Denied: Oct. been and the Youngblood had detained it, prior paying seized it, or as he was paying as he was
heading for exit it should not
make a difference important separate the
Finally, it guilt innocence
question violation
question of whether civil