Lynette Chapman v. The Higbee Company, D/B/A Dillard Department Stores, Inc.

to other cases sentence pare Wickline’s imposed. penalty was

which the death

AFFIRMED.

Lynette CHAPMAN, Plaintiff-

Appellant, COMPANY, Dillard

The HIGBEE d/b/a Stores, Inc.,

Department Defendant-

Appellee.

No. 99-3970. Appeals, States Court

United

Sixth Circuit.

Argued March 11, 2003.

Decided and Filed Feb. briefed), (argued

David R. Grant Condeni, Cleveland, OH, for Smith & Plaintiff-Appellant. O’Brien, D.

Gregory Timothy E. John- son, Weston, Hurd, Fallon, Paisley & How- Cleveland, OH, ley, (argued John B. Lewis briefed), (briefed), Thomas J. Piatak Hostetler, Cleveland, OH, Baker & for De- fendant-Appellee. (briefed),

Gino J. Scarselli Richmond OH, Heights, for Amicus Curiae American Civfl Liberties Union. (briefed),

Michael Donaldson Thomas W. (briefed), Thomas, R. Tarpy M. Michael Safer, Pease, Vorys, Seymour & Colum- bus, OH, for Amici Curiae Ohio Council Merchants, Kentucky Retail Feder- Retail Cleveland, ation, Inc., Department lard’s Michigan Retailers Association Store choosing clothing, Chap- Mer- After some Tennessee Council of Retail Ohio. room, fitting man from entered chants. just Caucasian woman had exited. When MARTIN, Judge; Before Chief Circuit room, Chapman fitting entered the she SUHRHEINRICH, BOGGS, tag “kno-go” noticed a called a on sensor BATCHELDER, DAUGHTREY, trying clothing, the floor. After on the MOORE, COLE, CLAY, GILMAN, Chapman purchase any- decided not to Judges. Circuit thing fitting room to return left the clothing to the racks. MARTIN, Jr., C.J., BOYCE F. court, opinion delivered the which A noticed the Dillard’s sales assistant DAUGHTREY, MOORE, COLE, CLAY, Chapman’s fitting sensor on the floor of GILMAN, JJ., joined. and and, suspecting Chapman shoplift- room of SUHRHEINRICH, J„ delivered a ing, security notified Dillard’s officer. separate dissenting opinion, in which officer, off-duty deputy, The an sheriffs BATCHELDER, JJ., joined. and

BOGGS wearing depart- was his official sheriffs uniform, badge, ment and sidearm. As an OPINION Dillard’s, employee security of officer MARTIN, JR., F. BOYCE Chief Circuit obligated obey was Dillard’s and Rules Judge. Personnel, Security Procedures for Chapman provide Lynette brought against following suit instructions with re- spect Higbee Company, doing strip searching suspect- business as customers Store, Department shoplifting: “Strip pro- Dillard’s after a Dil- ed of searches are security you objects If stopped suspect lard’s officer and hibited. that stolen shopper’s] her. are Chapman alleges person, searched hidden on call [the stop police.” racially and search were motivated right “full and violated her to the and security stopped The Chapman officer equal benefit of the law” under U.S.C. fitting and directed her back to the room. right 1981 and her from un- be free manager He and a female then searched reasonable search and seizure under the Chapman’s purse. determining After Fourth Amendment. Her claim raises two Chapman’s purse contained no Dillard’s (1) appeal: issues on whether section 1981 merchandise, Chap- the officer informed provides against private a cause of action man necessary would also be (2) party equal under its benefit clause and behest, check her clothes. At the officer’s security whether the Dillard’s officer acted Chapman accompanied manag- the female “under color of law.” The court below fitting manager er into the room. The protect found that section 1981 does not Chapman by having Chap- then searched against private impairment equal of its jacket man remove her coat and suit and security benefit clause and that the officer lift up manager her shirt. After the found did not act “under color of A law.” divided nothing, apologized, Chapman she and left panel of this court affirmed. After rehear- the store. banc, ing en we REVERSE. incident, Chapman As a result of this

I. Dillard’s, brought against seeking suit re- (1) February Chapman, impair- On an lief under 42 1981 for U.S.C. African-American, Dil- shopping rights was ment of her under that statute’s (2) A. under clause and benefit equal right to of her for violations U.S.C. Chapman’s section 1981 viability sei- and search from unreasonable free be pro- section 1981 turns on whether claim Amendment Fourth under the of its against private impairment zure tects Fifth part, sec- process under clause. In relevant right to due benefit her 1981reads as follows: judge, sitting magistrate A Amendment. (a) consent, summary granted equal rights Statement parties’ (1) Dillard’s, finding jurisdiction in favor

judgment All within cognizable state a shall have the same could not the United States Chapman every Territory right State the stat- 1981 because under section claim sue, contracts, to make and enforce im- protect against does not ute evidence, to the parties, give (2) clause of its benefit full pairment pro- all laws and cognizable not state Chapman could persons and ceedings the secu- because under section 1983 claim citizens, enjoyed by white property as is “under color acting rity officer was subject punishment, and shall be to like magistrate denied After the law.” state taxes, licenses, and ex- pains, penalties, reconsideration, Chapman motion her kind, no other. every and to actions court panel of this A divided appealed. affirmed, review. granted en bane and we (c) against impairment Protection by this section are rights protected

II. by non- against impairment protected impair- discrimination governmental court’s novo a district review de We color of State law.1 ment under viewing the summary grant judgment, (1998) 1981(a), (emphasis 42 U.S.C. to the favorable light in the most evidence added). Rapids Plas party. Grand non-moving (6th Lakian, 401, tics, statutory 405 con 188 F.3d “In all cases of Inc. v. struction, lan Cir.1999). starting point is the appro Summary judgment is Appleton by Congress.” employed guage issue genuine there is no only when priate Ohio, 791, 62 F.3d Nat’l Bank First v. fact, moving and the to material as (6th Cir.1995). Moreover, where “the a matter as judgment is entitled party func plain, is the sole language statute’s 56(c); Apari also see law. fed.R.Civ.P. according courts is to enforce of the tion Co., Ry. 84 F.3d & Western cio Norfolk Ron Pair States v. terms.” United its Cir.1996) (“Without weighing 803, 807 241, Inc., 489 U.S. Enterprises, credibility of judging evidence (citation (1989) L.Ed.2d 290 S.Ct. witnesses, all inferences and drawing omitted). punctuation internal a district non-moving party, of the favor determine usually undertakes Ac unambiguous. court Section per (c), pro rights evidence there is cording whether sufficient “protected are jurors by to find for the non- section 1981 tected mit reasonable by nongovernmental impairment against moving party.”). deter- effective rights provide more laws to 42 U.S.C. Congress In amended 1. victims addition, alia, compensation for adequate rence and of subsec- by inter 102-40(11), H.R.Rep. No. (c), discrimination." existing protections strengthen "to at 694. 1991 U.S.C.C.A.N. reprinted in civil under federal available and remedies explicitly discrimination.” Section 1981 acceptance words where meaning “to full protects right would lead to absurd results or would proceedings benefit of all laws and for the thwart purpose the obvious of the statute property as is but it is otherwise where no such conse- citizens;” therefore, enjoyed by quences white would follow [a and where literal right “protected against impairment by reading] appears to be consonant with the nongovernmental Act.”) purposes discrimination.” (quoting Commis- Brown,

sioner v. 380 U.S. (1965) (internal 1. L.Ed.2d 75 punctuation omitted)); citation and Crooks (c)’s argues Dillard’s that subsection Harrelson, protection against nongovernmental dis- (1930). 75 L.Ed. 156 (a)’s crimination is limited to subsection make provision. and enforce contracts (c) already expressly Because subsection Relying on a Third Circuit decision rights “protected limits its reach to those authored before Congress added the lan section,” principle of expressio guage (c), in subsection Mahone v. Wad

unius est exclusio alterius would seem to dle, (3d Cir.1977), 564 F.2d 1018 Dillard’s preclude this court from grafting addition- suggests that a reading of subsection al limitations into the statute. (c) creates internal inconsistencies. however, Mahone, may, past We look the court held that a complaint (1) plain language aof statute where: against city government for violation of plain language creates inconsistencies section 1981’s benefit clause stated a (2) itself, application within the statute of cognizable cause of action. in Responding plain language contrary the runs clearly to city’s dicta to the contention that the (3) intent, expressed legislative applica or court’s broad construction of section 1981 plain language tion of the would lead give to would to a rise federal cause of action Vergos absurd results. v. Gregg’s Enter every racially tort, for private motivated Inc., prises, 989, 159 F.3d 990 Cir. the Mahone court suggested that such a 1998) (citing Turkette, United States v. 452 result unlikely, was concept because “the 576, 580, U.S. 101 S.Ct. 69 L.Ed.2d of state implicit action is in equal the (1981)); 246 see also Pipe Trans Alaska benefit clause.” Id. at 1029-30. Adopting Cases, 631, 643, line Rate 436 U.S. dicta, 98 S.Ct. the Mahone court’s argues Dillard’s 591(1978) (“This Court, 56 L.Ed.2d (c) in plain that a reading of subsection statute, interpreting the words of a has inconsistent with equal section 1981’s ben some scope adopting for a clause, restricted rath efit implicitly incorporates er than a literal or usual meaning of its concept the of state action.2 differently, ishment, 2. Phrased argues taxes, licenses, Dillard's pains, that a penalties, (c) plain reading of subsection renders the kind, every other.”). exactions of and to no internally statute protecting inconsistent unworkable, however, nothing There is about against private impairment rights private that proposition given that pro- statute impair. Although germane actors cannot beyond scribe conduct that which all of those Chapman’s claim under section 1981’s persons regulates actually statute are clause, ca- equal benefit one could make a similar pable engaging of in. That (a)'s the driver of argument an on the of basis like 1981(a) dump-truck may punishment incapable industrial clause. See 42 of U.S.C. ("All persons jurisdiction violating seventy-five miles-per-hour speed within the of the subject United States ... pun- shall be preclude like limit application does not uniform of

831 requisite can be any [state action] in such decision Supreme Court’s Griffin indication of con- important as an 403 U.S. S.Ct. viewed Breckenridge, v. (1971), however, precludes in speak intent section gressional 29 L.Ed.2d (c)’s 1985(3) finding subsection deprivations ‘equal protec- court from all of this of the stat- inconsistent with language ‘equal privileges tion of the laws’ Griffin, provision. equal laws,’ ute’s whatever their immunities under the 1985(3)’s anal- 42 U.S.C. found the Court Griffin, 403 U.S. S.Ct. source.” provision applicable protection equal added); ogous (emphasis see also United Id. at official action. as well as Williams, 341 U.S. States 1790; 96-102, see also U.S.C. (1951) (plurality 95 L.Ed. S.Ct. 1985(3) of action a cause (providing J.) Frankfurter, (finding no opinion any in State persons more “two or where analogous requirement action state on go disguise Territory conspire or or criminal provision of stat- equal protection another, premises of or on the highway Harris, ute); United States direct- depriving, either purpose 637-39, 27 L.Ed. 290 or class indirectly, person ly or (same). (1883) laws, protection of equal of the rejection Supreme Court’s Given un- immunities equal privileges implicit action is notion that state laws”). finding, the In so der the Griffin protection, we cannot concept equal rejected the notion expressly Court plain language of subsection find the in an implicit action is concept of state with the statute’s bene- inconsistent century “A provision: protection fit clause.3 adjudication has Amendment Fourteenth understandably difficult ... made depri- might constitute of what conceive laws protection of the

vation nothing legisla in the There is nothing persons. Yet there is by private amendments to history of the 1991 tive requires phrase in the inherent court from prevents section come deprivation to working the action (c)’s plain language. applying subsection 91 S.Ct. Id. the State.” on Reports the two House Committee Of from added). (emphasis 1991, only one even Rights Act of the Civil (c), that discus subsection mentions Indeed, of sec- interpretation Griffin’s Judiciary Com House is terse. The sion 1985(3)’s provision equal protection tion 102- Report No. authored H.R. mittee analogous that section 1981’s suggests Congress 40(11), only that states im- private protect against clause would McCrary, (c)’s Runyon v. codify to intended ex- subsection even absent pairment 49 L.Ed.2d 96 S.Ct. to mention failure plicit “[T]he instruction: individuals or Indeed, 1981—either section necessary component sons—and if a that limit. the con- consistency regulated way affects whether statutory groups was a no —in violating all of a statute’s group capable implicit in the statutes’ cept action is of state not be con- 1981 could proscriptions, section provisions. See analogous equal protection actors, vast sistently the apply 98-99, read to to state Griffin, 403 U.S. at position pun- in no majority of whom are 1985(3) (rejecting argument that section tax, ish, pro- any person deny licenses to or conspiracy so mas- contemplated "a by section 1981. tected supplants those effective that sive and the state thus satisfies authorities and [state] regulated by groups sec- in 3. The differences requirement”). action per- 1985(3) groups of two or more tion — (c) (1976), pro- “to intended subsection not which we dislike but patently which is contracts, illogical contrary or Congress’s hibit racial discrimination all intent. Crooks, 59-60, See 282 U.S. at 51 S.Ct. 49 public private.” H.R.Rep. both No. (“[T]o justify departure from the 102-40(11), (1991), letter reprinted at 37 in 1991 of the law ... absurdity must be so Congress’s U.S.C.C.A.N. 731. failure gross as general to shock the moral (c) application to discuss the of subsection common sense. And there must be some- rights to the other enumerated subsec- thing plain Congress make the intent of (a) properly give does not rise to an that the letter of the statute is not to (e)’s that inference subsection reference to prevail.”). rights “the in this actually section” refers rights to “the contractual in this section.” above, As legis discussed Congress’s upon failure to comment statu- (c) history lative of subsection is at most tory language simply does not constitute a equivocal. There is nothing history that rejection of plain import of that lan- evidencing Congress’s intent that a guage. light Even viewed in the most (c) reading of prevail. subsection More Dillard’s, legislative favorable histo- over, it unlikely application of sub ry Thus, equivocal. we (c)’splain language section will unleash the say cannot giving effect to subsection predicts. flood of cases Dillard’s The lan (e)’s plain language Congress’s flouts clear guage surrounding “full equal ben intent in passing the 1991 Amendment. efit” clause serves to cabin both the num

ber and nature of may claims that be brought under its equal ambit. The bene fit may only clause be invoked when one argues applica Dillard’s also party denies another “full (c)’s plain language tion of subsection with benefit of all proceedings laws and respect to section 1981’s benefit security persons and property as is clause would have the “absurd” result of enjoyed by white citizens.” 42 U.S.C. federalizing state tort law. 1981(a) added). (emphasis The “securi result, however, A is not absurd ty and property” language lim merely because it does not comport with potential its the class of cases that one’s notion of good polic what constitutes brought under provision. y.4 typically upon We excep embark litigant A must demonstrate the denial of divining tional Congress’s task intent the benefit proceeding protect law or language outside the literal of the statute ing personal his or her cogni or a only produces when the statute property right.5 Further, result zable prevail course, 929, (N.D.Ga.1988) 4. Of "we F.Supp. should be and are 'reluctant (noting 930 n. 1 traditionally by to federalize’ matters covered that court had allowed "full and bene state common law.” Patterson v. McLean against private fit” claim actor involved in Ku Union, 164, 183, Credit 2363, 109 S.Ct. Klux Klan incident because section 1981 (1989) (internal quota- 105 L.Ed.2d 132 "provides against private a cause of action omitted). reluctance, however, This does racially-motivated, individuals for intentional give leeway ignore this court Con- ly-inflicted injury require and does not state gress's plain instructions. deprivation rights”); action in the Hawk v. Perillo, 380, 386-87, F.Supp. 642 390 5. Several cases that have allowed “full and (N.D.Ill.1986) (construing language and histo go benefit” claims to forward without ry against private of statute to allow claim state action have involved serious threats to a engaged beating individual who in vicious person’s security physical in the form of vio- animus). plaintiffs by motivated racial See, Rudeseal, e.g., Carey lence. v. 703

833 private party's claim, litigant must a 1981 on a section A actions consti 1983 where under section action tute state on the ba- discrimination intentional prove “fairly may be attributable actions those threshold high a race, involves sis of Co., v. Edmondson Oil Lugar the state.” limi- significant of these Because proof. 2744, 73 457 plain U.S. that the tations, not believe we do (1982). Supreme The Court L.Ed.2d 482 a federalizes language of determining three tests developed has traditionally cov- conduct swath wide particular in a action of state the existence common law. by state ered (2) test, (1) public function case: plainly pro Because section 1981 (3) test, symbiot and compulsion state its bene impairment against tects test. See Wolot- relationship or nexus ic discrimination by private clause fit Chap appeal, On at 1335.8 sky, 960 F.2d beyond look is no reason there because summary judgment argues man find we language, 1981’s section there because have been denied should section 1981 cognizable Chapman states re of material fact issue a genuine was claim.6 under of state action the existence garding nexus test or the function public either the B. test. In addition to her section 1981 1. 42 under relief claim, seeks Chapman right to of her public test, § 1983 for violations U.S.C. Under the function if a state actor party is deemed searches unreasonable from free traditionally powers exercised he or she Amendment the Fourth under seizures to the state. exclusively reserved under rights process and her due interpreted been test has public un function a claim To state Fifth Amendment.7 holding like Only functions narrowly. must show Chapman section der Brooks, 436 elections, v. Flagg Bros. officer, see Dillard’s, through its 1729, 56 L.Ed.2d 149, 157-58, 98 S.Ct. by the U.S. secured right of a deprived her domain, see (1978), exercising eminent 185 United States laws of the or Constitution Co., 419 Edison Metropolitan Jackson of state law.” “under color acting while 449, 42 352-53, L.Ed.2d 95 S.Ct. U.S. Huhn, 960 F.2d Wolotsky v. See company- (1974), operating Cir.1992). 477 (6th 1335 rights, deprivation to the therof diction today, agree deciding we with In so Con- secured privileges, or immunities Phillip v. recent decision Circuit’s Second laws, party be liable (2d shall Rochester, stitution 291 Cir. 316 F.3d University of law, equity, suit in circuits, injured in an action at Philip 2003). in Brown v. sister Two redress." proceeding for Cir.2001), proper (3d Inc., other Morris, F.3d 789 (1998). Stores, Inc., § 1983 U.S.C. Hy-Vee Youngblood v. Food us, Cir.2001), disagree with F.3d 49-50, Atkins, 487 U.S. 8. Citing West v. panel decision relying withdrawn on our (1988) (public 101 L.Ed.2d decisions, S.Ct. case, court on various district Brooks, test); U.S. Flagg Bros. function Mahone. and on dicta 56 L.Ed.2d Co.,& (same); Kress who, (1978) v. S.H. Adickes "Every person provides: 1983 7. Section 1598, 170, 144, 26 ordinance, S.Ct. L.Ed.2d statute, 90 U.S. 398 regula- any under color tion, test); (state v. (1970) compulsion Burton 142 custom, any or Territo- usage, of State or 715, Auth., 721- U.S. Parking 365 Columbia, Wilmington subjects, or ry District or the (1961) (symbi 856, 26, 45 6 L.Ed.2d S.Ct. 81 citizen of subjected, be causes to test). relationship juris- otic within the person or other United States 834 town, Alabama,

owned see Wolotsky, 1335; Marsh v. 326 See 960 F.2d at see also 501, 505-09, 276, 66 U.S. S.Ct. 90 L.Ed. Brentwood Acad. v. Secondary Tennessee (1946), Ass’n, category fall under this Sch. Athletic 121 state U.S. (2001) (noting action. Our sister circuits L.Ed.2d 807 have consistent- that a challenged activity may ly be state perfor- held that the mere fact that the action “when it is govern entwined with private security mance of may functions policies government mental or when is en entail investigation of a crime does not control.”) management twined [its] private security transform the actions of a (internal quotation omitted); Layne v. officer into state action. See Wade (6th Cir.1980) Sampley, 627 F.2d (7th Byles, Cir.1996); F.3d (holding that officer who shot plaintiff Concert, Gallagher Young v. Neil Freedom off-duty while officer was acted under col- (10th Cir.1995); 49 F.3d White or of state law because authority officer’s Corp., Scrivner 594 F.2d 142-43 carry weapon (5th derived from his status as Cir.1979). officer, police conflict between officer and White, example, for the Fifth Circuit plaintiff arose out of officer’s official held that suspected detention of a duties, plaintiff and threatened officer in shoplifter is not an exclusive state func- capacity); officer’s official Stengel v. Bel tion. cher, Cir.1975) (con F.2d A merchant’s detention of sus- cluding off-duty police officer who pected of stealing property simply store shot and killed two men paralyzed exclusively is not an action associated third in a barroom brawl acted under color Experience with the state. teaches that of law because spray mace used officer prime responsibility protection by police was issued department, and offi personal property remains with the indi- pistol cer carried his intervened vidual. A storekeeper’s central motiva- dispute pursuant department regula tion in detaining person whom he be- tions). lieves to be the act of stealing his inquiry fact-specific, property self-protection, not altruism. presence of state action is determined logically Such action cannot be attrib- on a case-by-case basis. See Burton v. uted to the state. Auth., Wilmington Parking (citation omitted). 594 F.2d at 142 Apply- (1961). 6 L.Ed.2d 45 Al ing principles claim, these Chapman’s though possible “it is ... determine we are satisfied that security the Dillard’s person whether a acted under color of officer performing was not a function ex- law, state law as a matter of may there clusively reserved to the State when he remain in some instances unanswered stopped and searched Chapman. Under questions of fact regarding proper test, public function there was no state characterization of the jury actions for the action. (inter Layne, to.decide.” 627 F.2d at 13 omitted). nal citations quotations symbiotic Here, Under the or nexus Dillard’s officer who test, a section 1983 claimant stopped must demon Chapman searched was an strate that there is a sufficiently off-duty close deputy, wearing sheriffs his offi- government nexus between the and the cial department uniform, sheriffs badge, private party’s conduct so that the Moreover, conduct and sidearm. the Dillard’s se- fairly attributed to the state curity itself. obligated obey officer was Dil- SUHRHEINRICH, Judge, Circuit while on- regulations and policies lard’s dissenting. the state Although store. duty at promulgation part no

played I. searching provi- strip policies, their these “Strip state: implicates the directly sion among canons principle a first If there is suspect you If prohibited. are searches it is that statutory interpretation, a on [the are hidden objects stolen according to the enforced statute to be is police.” call the person, shopper’s] of its terms. See United plain meaning Enters., Inc., 489 U.S. v. Ron Pair States issue, Dil- During the incident L.Ed.2d represent not did security officer lard’s Inc., (1989); Vergos Gregg’s Enters. officer, to ar- threaten a police as himself Cir.1998). To some F.3d weapon, badge or Chapman, wave his rest extent, a plain meaning rule is though, the the sheriffs any contact with or establish say- read as tautology: “Words should be a initiate however He did department. they say.” See DicxeRSON, ing what Reed to en- Chapman by requiring strip search OF manager AND APPLICATION STAT- THE INTERPRETATION the sales fitting room with ter a Co.1975). (Little, Brown & Because Dillard’s UTES inspect clothing.9 her words, respect us to rule tells “[t]he other intervention police mandates policy meaning disclosing it does so but without situations, jury a reasonable search strip Thus, meaning is.” Id. specific what the initiation aof find that the very well could has one commentator observed: as armed, uniformed by an sher- strip search best, meaning reaf- rule] [the At act that an deputy constituted iffs the statute preeminence of firms the the state. Addition- attributed to fairly be it. In its leave, extrinsic over materials free to did not feel ally, Chapman if hand, the on other negative aspect, security officer’s sheriffs as a result to read used sidearm, rule has sometimes been a rea- uniform, his badge, his out of its ineptly expressed language the detention was jury could find sonable context, in violation of estab- proper fairly attributable and tacit arrest meaning commu- principles of lished state. impedi- an this extent nication. To Therefore, genu- that there is we find interpretation. ment to as to whether of material fact ine issue Id. of state under “color security officer acted however, law, rules Like most Chapman to enter he asked law” when statutory construction principle of bedrock manager so sales fitting room with the early invoca- an as reflected in qualified, person could Chapman’s clothes doctrine: be searched. convey meaning, a definite

If the words absurdity, nor no involves III. parts of in- of other contradiction strument, meaning, apparent then that reasons, RE- we foregoing For instrument, must be face of the pro- on the further REMAND for VERSE courts nor the neither the accepted, opinion. with this ceedings consistent shirt), up jacket, lift her her and suit strip coat define search- policy 9. Dillard's does reasonably that she determine jury could to remove ing. Chapman was forced Because policy. the Dillard's strip under (i.e., was searched clothing was forced remove she her omitted). legislature right have the add to it or marks Section as amended take from it. reads as follows: (a) equal rights Statement of Rollins, County Lake persons All jurisdiction the within (1889). L.Ed. 1060 other the United shall States have the same words, plain meaning command of lit- right in every Territory State and subject eralness is nonetheless to both in- contracts, sue, make and enforce ternal and external context. Dickerson, parties, evidence, give and to the supra, (stating at 230 mean- full pro- all laws and ing quite” rule does benefit of “[n]ot demand literal- ceedings security persons and ness, “because internal context is not ex- property enjoyed citizens, as is by white cluded and may external context be taken subject shall be punishment, to like into account to the extent of weighing the pains, taxes, penalties, licenses, and ex- chances of absurdity”). kind, actions of every and to no other. majority The acknowledges that (b) “Make and enforce contracts” de- “plain language” subject rule is to excep- fined tions. Maj. Op. See at 829-30. It sees no For purposes section, of this the term need to resort to exceptions, those howev- “make and enforce contracts” includes er, § because finds 1981 is unam- making, performance, modification, (c) biguous in that subsection states that contracts, and termination of and the rights protected by this section are enjoyment benefits, of all privileges, “protected against impairment by nongov- terms and conditions of the contractual discrimination,” ernmental and one of the relationship. (a) rights enumerated in subsection “ex- (e) impairment against Protection plicitly protects right ‘to the full and rights protected by this section equal benefit of all laws and proceedings protected are against impairment by for the and property as ” nongovernmental discrimination and im- enjoyed is by white citizens.’ From this “ pairment under color State law. majority infers that right ‘pro- (West 1994) against tected impairment by U.S.C.A. nongovern- (emphasis added). mental Congress discrimination.’” Id. I Because amended 1981 in (b) (c) believe that adding such a interpretation literal subsections inconsistencies, designating statute original creates internal section as subsec- (a). 102-166, tion legislative inconsistent with the Pub.L. history, 105 Stat. (1991). results, and leads to absurd Vergos, see 159 F.3d at (listing situations when courts beyond language look Chapman’s argument hinges on subsec- statute), I DISSENT. (c). I do not disagree that subsection (c), alone, standing plainly states “[t]he

II. rights protected by this section pro- are against tected impairment by nongovern- A. mental isolation, discrimination.” Read “In all cases statutory construction, (c) is unambiguous. But sub- the starting point is the language em- section requires one to look elsewhere- ployed by Congress.” Vergos, 159 (a)-to F.3d presumably subsection determine Cir.1998) (internal quotations which “rights” protected are from nongov- amendment, has shared the the 1991 Lief H. discrimination. ernmental Cf. Youngblood v. court’s view. See F. Mahone Burke, reason law & Thomas CaRter (“Even 2002) Stores, Inc., 851, 266 F.3d Hy-Vee 6th ed. Food (Longman 74-75 unambig- Cir.2001) (8th do seem in isolation that (stating words “[b]ecause when 855 them uous, coordinating law, of process the it sole is state is the source the may case particular facts of a with the deny that can the full and only the state unclear.”). them make law”; quota internal equal benefit of the alia, Mahone), omitted, citing, inter (a) are not all of in subsection rights The denied, 1017, 1606, 122 535 U.S. S.Ct. cert. ilk, however; protect some the same (2002); ex rel. L.Ed.2d 621 Adams 152 may be committed infractions that against Boy v. Scouts Am.-Chickasaw and some Harris private actors by public and both Cir.2001) (8th 769, Council, necessarily 271 F.3d 777 protect against conduct Mahone); example, (same, Youngblood For citing state action. and invokes may Inc., 789, enter public beings private and 250 F.3d Philip v. Morris both Brown fact, usually Cir.2001) (dicta) is with (3d “[i]t into contracts. (stating “even 799 state, individual, that a the not them, another ‘full and consider if were to such to make a con would seek person black light fail in of a equal claims would benefit’ racially tract; individual’s it is that other authority holding that line of substantial a contract which refusal make motivated can sued under the only state actors be Ma person.” harm to the black can cause clause of Section equal ‘full and benefit’ (3d 1018, Waddle, 1029 F.2d v. 564 hone Mahone)-, 1981”; Shaare citing Tefila (c) (dicta). Cir.1977) Thus, may Cobb, 523, 525- F.2d Congregation v. 785 (a). clause of to the logically apply contract (4th Cir.1986) (holding agreed that it 26 that sub- easily be said interpretation it cannot so Yet “with the Third Circuit’s equal benefit applies the section ... and equal clause ‘full and benefit’ (a). Third stated aptly As clause required conclude that state action statute”; Circuit: a claim under order assert of all equal Mahone), “full benefit other part The words and rev’d in on citing 2019, proceedings laws 107 95 grounds, sup- (emphasis property” (1987). Similarly, a number L.Ed.2d 594 hand, suggest a plied), on the other considered courts that have of other the indi- relations between concern with the 1991 issue, and after both before state, two not between vidual and amendment, reasoning have followed state, not the individu- individuals. Wicks, See, No. e.g., Muick of Mahone. law, it is al, is the sole source 4 3:01-CV-0130-M, 2001 WL through agents, its only the state acting 2001) (“absent (N.D.Tex. state July individual, is ca- which private action, [under 1981 claim Plaintiffs Section the full and denying blacks pable of is untena clause] the full and benefit Thus, law. while benefit of the frivolous”); result, Ster and as a ble implicat- discrimination Kazmierczak, F.Supp. 983 ling v. clause of section by the contract ed Penney (N.D.Ill.1997); v. J.C. Lewis 1192 im- action is concept of state (D.Del.1996); Co., F.Supp. clause. in the plicit Casavilla, F.Supp. Spencer v. (dicta). at 1029 (“Most Id. (S.D.N.Y.1993) of the deci action is state ... have held that sions that has consid- Every appeals court ‘equal a claim under required to state issue, subsequent prior ered this both punishment’ benefit’ and ‘like clauses of inconsistent with 1981’s equal benefit ABC, 1981.”); Inc., clause, implicitly incorporates Brooks (N.D.Ohio 1990), F.Supp. concept Only vacated state action. the state can laws, part grounds, prescribe 932 F.2d only on other the state can de- Dillon, Cir.1991); prive Rochon v. an individual of the benefit of those 1167, (N.D.Ill.1989); F.Supp. Thomp by private 1172 laws. An act a individual which Hosp., F.Supp. 707 legal rights son v. Wise General violates the of another is not (W.D.Va.1989), 849, aff'd, equivalent 853 896 F.2d 547 the deprivation of a of the full (4th Cir.1990); equal Provisional Gov’t Re and benefit of the law violated. of ABC, Inc., public differently, New 609 Stated an only individual is of Afrika (D.D.C.1985); F.Supp. Eggleston deprived 109 full equal of the and benefit of all v. Prince Edward Volunteer Rescue laws if proceedings and he or she is im- Inc., Squad, F.Supp. paired prevented 569 1353 enforcing from (E.D.Va.1983), aff'd, 742 F.2d 1448 through legal process his or her estab- Cir.1984); rights. Williams Mount lished To read the statute Northfield Sch., F.Supp. differently Hermon simply illogical. is (D.Mass.1981). But see Franceschi v. correct, If majority’s view is howev- (D.P.R. Hyatt Corp., F.Supp. er, (c) one must also read subsection as 1992) (allowing a cause of action under the applying to the third clause of subsection equal against private benefit clause a hotel (a), punishment the like pro- clause. It for denial of accommodation based on vides that persons ... shall “[a]ll be sub- race); Rudeseal, Carey v. F.Supp. ject punishment, pains, penalties, to like (N.D.Ga.1988) 930 n. 1 (permitting a cause taxes, license, and exactions.” No one can of equal action under the benefit clause argue seriously that an individual can sub- against members of the Ku Klux Klan for ject unequal another individual to punish- assault); Perillo, Hawk v. 642 F.Supp. ment or taxes.1 As the Mahone court (N.D.Ill.1985) (allowing a cause of ac “Only remarked: imposes the state or re- equal under the benefit against clause ‘taxes, quires licenses, and exactions’ and police victims). officers minority who beat the maxim suggests noscitur a sociis that

As the Mahone court’s comments make ‘punishment, pains penalties’ [and] clear, a reading of subsection is which the imposed clause refers are those Ironically, majority taxes, 1. actually ceptually incapable imposing makes an of licens- es, attempt. Maj. Op. ("Although See at punishments, n. 2 and equally incapa- and are germane Chapman's ble-logically categorically depriving claim under sec- —of clause, tion 1981's another of the benefit one full benefit of all could argument proceedings security laws and per- make a similar for the on the basis of sub- (a)'s property. Only governmental sons and clause.”). punishment section actors like The capable "[tjhere are majority that. posits nothing then unworkable, however, proposition about the private State actors and are actors different given may proscribe that a statute conduct law, species eyes in the with dissimilar beyond that which all of those Thus, legal properties. regulate laws that one regulates actually statute capable are of en- groups usually inappli- these or classes are in,” gaging provides example of an group. precisely cable to the other That is dump-truck industrial driver who be in- the situation in this case. Just because Con- capable violating high-speed limit. gress The expressly did not state this does not Here, majority’s argument is fallacious. un- Congress mean it isn't so. also did not state like the dump-truck animals, individual industrial driv- apply 1981 does not but I might er whose truck not be able to anyone exceed 75 do not think would-or has at least as hour, per miles yet-suggested are individuals con- that it does. come from deprivation to ing the Mahone, 1029- F.2d at the state.” Griffin, 403 U.S. similarly observed: State.” has A treatise 30. 1981 is section clause of “Whether action, inevit- virtually it is

limited to state provi- language of the two begin, To pun- upon ‘like based any claim able Significantly, are not identical. sions license, taxes, ishment, pains, penalties, 1985(3) “two or references expressly kind,’ involve every (cid:127)will exactions 1981(a) does not persons.” more Section entity.” g. governmental Joseph COOK & reference, simply but similar contain RIGHTS ACTIONS, CIVIL L. JR., JOHN SOBIESKI, have the persons shall that “all states Co.2001). 5.03(D) (Matthew ¶ & Bender full and right ... same internally in- reading majority’s for the proceedings all laws one reads subsection unless consistent enjoyed by is as persons property of every clause of applying as F.Supp. Spencer, 839 citizens.” See white equally (a). leads to the in turn This however, (“Unlike 1981, § n. at pun- like holding that the of result absurd 1985(3) en- express language contains § conduct private applies clause ishment ‘go who persons’ ‘two or more compassing action. as state as well equal others of highway’ deprive the on Tillman, also Stevens see protection.”); Cir.1988) (observing 394, F.2d majority claims that The Griffin private acts- addresses statute “[t]his that 88, 91 S.Ct. 403 U.S. Breckenridge, a highway’ is disguise ‘in on the going finding (1971), a precludes 29 L.Ed.2d 338 Ku Klan- of the Klux to the M.O. reference (c)’s in- language is that subsection the ‘deprive’ only deeds condemns yet equal benefit the statute’s consistent with laws, the ‘equal of protection of the victim Court Griffin, Supreme the provision. In un- and immunities equal privileges of or 1985(3) does not § 42 U.S.C. held that domain laws’, within the something the der private action but reaches require state admix- exclusively. This government of 1985(3) provides conspiracies. Section action has befud- private public of ture per- more where “two or of cause action since.”). This distinction courts ever dled Territory conspire, or or any in State sons here, analysis key the important, and the highway or on disguise on the go in re- from following passage the as Griffin another, purpose of for the premises of veals: any directly indirectly, or depriving, either of then, turn, to an examination We equal the persons of or of person class face, 1985(3). their § On meaning the of laws, privi- equal the or of of protection encompass fully statute of the the words under laws.” the leges and immunities The persons. private the conduct of 1985(3) (West 1994). ma- The § U.S.C.A. or more simply of “two speaks provision ex- Court jority notes that Griffin Territory” who or in State persons con- rejected the notion that pressly high on the disguise in “conspire go or equal in an implicit cept of state action of another.” premises on the way or the follow- relying provision, on protection is in particular, disguise, in Going in Fourteenth century “A of excerpt: ing associat activity so little this context an has ... made adjudication Amendment commonly so action ed with to conceive understandably difficult official marauders private connected with deprivation of the might constitute what appli never almost this clause could by private protection of laws restrictive artificially under cable in nothing inherent there is Yet persons. 651, 71 U.S. [341 Collins construction action work- requires the phrase (1951) 1985(3) § 95 L.Ed. 1253 And in construing ]. Collins. In disguise” “going aspect since the 1985(3), counterpart exact criminal action, must include it is hard Harris, the Court in United States v. conspiracy aspect, joined to see how the supra, observed that the statute was disjunctive, could be read re- only “not limited to take effect case quire the involvement state officers. action],” id., [of state at 1 S.Ct. continues, provision specifying ... protect but “was framed to from required purpose the motivation “for the by private persons invasion directly depriving, indirectly, either or privileges and immunities under any person persons class of the of all per- laws and classes of laws, equal protection or of id., sons,” 1 S.Ct. 601.... privileges and immunities under Williams, United States v. is, course, language laws.” This simi ..., 95 L.Ed. 758 lar to that of 1 of the Fourteenth remaining Court considered the closest Amendment, speaks only terms 1985(3), criminal analogue to States, judicial thinking to the about § 241. U.S.C. Mr. Justice Frankfurter’s can an equal protection what constitute plurality opinion, without contravention has, deprivation because of the Amend dissent, from the concurrence or con- wording, entirely ment’s focused almost language carry any cluded that “if is to upon identifying requisite “state ac meaning at all it must be clear that the defining tion” and the offending forms of 241], principal purpose of unlike [§ [18 state law and official conduct. A centu 242], § private U.S.C. was to reach ac- ry adjudica of Fourteenth Amendment tion rather than of a officers State act- has, words, in other it made under ing authority. ‘go under its Men who in standably difficult to conceive of what disguise upon public highway, might deprivation constitute upon premises another’ are not equal protection by private of the laws likely acting capacities.” to be in persons. Yet nothing there is inherent official U.S., at 71 phrase in S.Ct. 581.... “Noth- requires the action ing § in working deprivation to terms [the] [of 241] come from indicates See, e.g., the State. United States v. that color of State law towas be rele- Harris, 629, 643, 1 S.Ct. prosecution Id., to under it.” vant Indeed, L.Ed. 290 [1883].... failure 71 S.Ct. 581. to requisite mention such can be Griffin, 96-98, 403 U.S. at 91 S.Ct. 1790 important

viewed as an indication of con (footnotes added) omitted; emphases 1985(3) gressional speak § intent to in Collins, (overruling construed deprivation all “equal protection 1985(3) § as requiring presence of state the laws” “equal privileges and im action). laws,” munities under the whatever their context, When read full rather than source. excerpt provided by selective the ma- approach The of this Court to other jority, it is clear explicit that the mention rights Reconstruction civil statutes in private persons on the face of the stat- years since Collins has been to “ac- ute was critical to the court’s hold- cord a sweep [them] as broad as [their] Griffin 1985(3) § ing that applies private to Moreover, action. language.” ... very similar is, 1985(3) That unlike language closely expressly related statutes has early applies and late interpretation private by explicitly received an to action refer- quite given inconsistent with that ring persons” “two or more who con- (1991), 102-40(II), at H.R.Rep. No. Therefore, adheres to if one spire.2 549, 731 framework, reprinted in 1991 U.S.C.C.A.N. analo- analytical meaning added).3 (emphasis action private directs gy to Griffin read into 1981. would not enacting subsection Congress’s intent any clearer. It could not have been prohibit racial discrimination intended contracts,” that is what is “in all because nothing in majority also claims The contracts, said, all because that is only the 1991 amend- history of legislative title of the amendment wrote. The it applying from this Court prevents ments generally I.N.S. Nat'l telling. also See Granted, (c)’s plain language. subsection Inc., Immigrants’ Rights, Center “by adding say that did not Congress L.Ed.2d U.S. that the mean we (1991) (stating that “the title of and not only to state applies clause resolving can aid in an statute or section However, what the glean we can action.” text”). legislation’s ambiguity in the actually from what intended legislature Act of 1991 is entitled as Rights Civil said: Against “Restoring Prohibition follows: § 1981 amends 42 U.S.C. This section Making in the Racial Discrimination All as “Section (commonly referred H.R.Rep. Contracts.” Enforcement of 1981”) v. McLean Patterson to overturn added). 102-40(II), (emphasis at 35 No. Runyon v. codify Union Credit McCrary, 427 U.S. short, determine what Con- we can 415,.... L.Ed.2d what it told us and intended from gress I tell us. am not what it did not from (c) Prohibiting discrimina- Subsection cite, of, not majority does and the aware contracting. sub- in tion —This requires a court statutory canon any which Runyon v. codify is intended to section x,” “and unless the positive right, to read held Runyon, the Court McCrary. “and not expressly proclaims legislature intentional prohibited that Section x,” conceptually x” is especially when “and as well private, in discrimination racial majority the to what impossible. Contrary contracting. The Committee public, as And “equivocal.” not says, that silence is discrimina- prohibit racial intends for courts rasa certainly not tabula contracts, it is public tion in all both rights. to create private. (1989). words, 105 L.Ed.2d being proscrip- rather than

2. In other prohibited § 1981 discrim- 1985(3) Patterson held that of ac- (providing § cause tive like only making and enforcement conspire, ination in persons ... two or more "[i]f tion contracts, problems extend to not highway on the and did go disguise on the or or in continuing employ- another, arising purpose of de- from conditions for premises of Rights Con- persons of Act of any person or ment. In the Civil priving ... class laws, aspect equal of Patter- protection gress explicitly or of equal reversed laws”), (b) § by adding privileges and immunities under son right persons” con- upon ‘make and enforce "[a]ll confers a that "the term states prohibiting making, performance, speak in terms of includes the and does tracts' contracts, modification, certain conduct. private individuals from and termination benefits, privileges, enjoyment of all and the rela- stated, of the contractual terms and conditions in direct was 3. As the amendment 1981(b) (West tionship.” 42 U.S.C.A. opinion in Supreme response to the Court's 1994). Union, 491 U.S. McLean Credit Patterson Arising out of the various and ever- increasing clashes of the activities of majority’s interpretation of subsec- persons living society, a common car- respect equal to the benefit with rying competition on business with result clause also has the “absurd” of fed- society, owning fellow members of that eralizing majority tort law. The state property may whch of a [sic] opines unlikely application that “it is (c)’s ways persons thousand affect or plain language un- of subsection will short, property of doing others-in all the predicts leash the flood of cases Dillard’s language surrounding things ... living- [because] [t]he constitute modern losses, the ‘full and benefit’ clause serves to necessity inju- there must of be cabin both the number and nature of ries, many kinds sustained as a result may brought claims that be under its am- purpose of the activities of others. The is, Maj. Op., bit.” at 832-33. That adjust of the law of torts is to these majority right believes that is suffi- losses, compensation and to afford ciently language because the limited injuries person “for sustained one as a property as is result of the conduct of another. enjoyed by poten- white citizens” limits the PROSSER & KEETON ON THE LAW OP TORTS, tial brought class of cases (W. Keeton, al, Page Publishing et. West provision. under the One ed.1984). Co. 5th need look no further than opening majority’s interpretation, Under the pages of to understand prosser on torts conceivably benefit clause can be that this “limitation” is not that because it applied to every garden-variety state tort alia, encompasses, inter all of tort law: parties law claim where the are of differ- Included under the head torts are If ent races. this is not federalization of wrongs, miscellaneous civil ranging from law, tort I do not know what is. See simple, per- direct interferences with the Spencer, F.Supp. (“Reading at 1019 son, assault, battery such as and false encompass the clause to this kind of con- imprisonment, or property, with as in duct, however, creating risks a section trespass conversion, the case of up 1981 action whenever a white man strikes through various forms of negligence, to a black man in a barroom brawl.... Ex- intangible interests, disturbances such tending ‘equal benefit’ clause to good reputation, as those in or in com- conduct mercial would have the advantage. or social effect of federaliz-

ing racially-motivated all state-law torts implicate ‘the body There remains of law whch [sic] ”). property.’ Supreme As the Court stat- is compensation directed toward the Patterson, ed in “[although we individuals, must do so rather than public, for Congress directs, when plainly as a rule they losses which have suffered within we should ... be ‘reluctant to scope federalize’ legally recognized their in- traditionally matters generally, terests covered rather than one state com- inter- Patterson, only, est where mon law.” the law considers that 491 U.S. at compensation required. Indus., (quoting This is the S.Ct. 2363 Santa Fe Inc. Green, law of torts. (1977)). torts, then,

The law of 51 L.Ed.2d 480 explained As concerned with above, the allocations arising Congress plainly of losses did not out of direct that activities; (like human § they apply since cover a to state tort law it did contracts). scope, wide so does this branch of expand law. In its zeal law, majority ig- has scope of federal cautionary words. Patterson’s

nored

III. sum, nongovern- hold that I would may not sued under the actors

mental 1981(a), benefit clause of U.S.C. There- applies only to state action.

fore, Chapman I hold that faded would § 1981 claim because cognizable

state a discrimination she suf- alleged private purview

fered is not within majority’s I concur in the clause. Chapman’s claim under

analysis of I believe there is because

U.S.C. fact as to whether Dillard’s

question of a state actor under

may be considered

nexus test. reason, respectfully I DIS-

For as to the 1981claim.

SENT FEATHERS; L. Kathleen

Thomas

Feathers, Plaintiffs-Appellees, Donohue, AEY;

William J.P.

Defendants-Appellants,

City Akron, Defendant.

No. 02-3368. Appeals,

United States Court

Sixth Circuit.

Argued Dec. 13, 2003.

Decided and Filed Feb.

Case Details

Case Name: Lynette Chapman v. The Higbee Company, D/B/A Dillard Department Stores, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 11, 2003

Citation: 319 F.3d 825

Docket Number: 99-3970

Court Abbreviation: 6th Cir.