United States District Court, E.D. New York
June 14, 2004.
WILLIAM GUIDUCCI and JOHN CLANCY, Plaintiffs,
KOHL'S DEPARTMENT STORES, Defendant.
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
MEMORANDUM AND ORDER
Defendant Kohl's Department Stores ["Kohl's"] moves for
dismissal under Federal Rule of Civil Procedure 12(b)(6) of the
claims of Plaintiffs William Guiducci and John Clancy as
guardians of their respective daughters [collectively,
"Plaintiffs"].*fn1 Plaintiffs sued Kohl's under both
42 U.S.C. § 1983 and relevant State laws.*fn2 Oral argument was
heard on June 10, 2004.
Plaintiffs may seek redress of their grievances through a tort
suit in State court, but they may not obtain it through a civil
rights suit in federal court. Kohl's motion to dismiss is
GRANTED as to Plaintiffs' § 1983 claims, but WITHOUT
PREJUDICE in any State proceeding, and the Court declines to
exercise its supplemental jurisdiction pursuant to
28 U.S.C. § 1367(c) over Plaintiffs' remaining State law claims.*fn3
Messrs. Guiducci and Clancy's daughters were 14-year old girls
when they were caught shoplifting by a (female) security guard at
Kohl's. Without informing either their parents or the police of
their apprehension, the guard forced the girls into an office,
interrogated them, and made them strip to their underclothes to
recover the store's merchandise. Once the girls returned the
shoplifted items to Kohl's, the security guard contacted Suffolk
County police, who arrested the girls on the strength of the
statements of the Kohl's employee. See Plaintiffs' Memorandum
of Law in Opposition to Kohl's Motions at 4-6.
A. Standard of review
In a Rule 12 motion to dismiss for failure to state a claim
upon which relief may be granted, Kohl's must demonstrate that
even if Plaintiffs' allegations are accepted as true, and all
reasonable inferences are drawn in Plaintiffs' favor, Plaintiffs
are still not entitled to the relief sought. See, e.g.,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
B. The parties' arguments
Kohl's argues that where "there is an absence of proof that the
private security guard was acting at the direction of or in
cooperation with law enforcement . . . when they detained and/or
arrested a party, there is no Fourth Amendment" violation, and
therefore no § 1983 violation of constitutional rights. Kohl's
Memorandum of Law in Support of Their Motion at 8. Plaintiffs
respond by invoking a single case within the Second Circuit,
Brooks v. Santiago, 1998 U.S. Dist. LEXIS 2769 (S.D.N.Y. Mar.
10, 1998), for the proposition that "a § 1983 claim [may be]
sustained as a result of a shoplifting apprehension upon the
determination that the defendants acted in concert with the
police for the purpose of procuring the plaintiff's arrest," if
the "police made the arrest without having conducted an
independent investigation in order to determine whether or not
there existed probable cause." Plaintiffs' Memorandum at 7.
C. Section 1983, state action, and store security guards
Section 1983 applies to the deprivation of rights under the
color of law by state actors. It does not apply, except in
special circumstances not presented by this case, to store
The Second Circuit recently stated in Tancredi v. Metropolitan
Life Ins. Co., 316 F.3d 308, 312-13 (2d Cir. 2003), that a
"plaintiff pressing a claim of violation of his constitutional
rights under § 1983 is  required to show state action," and in
"order to satisfy the state action requirement where the
defendant is a private entity, the allegedly unconstitutional
conduct must be fairly attributable to the state" (citation and
quotation marks omitted).
District courts within the Second Circuit usually reject claims
that the actions of store security guards implicate state action
when they detain and investigate suspected shoplifters. Most
recently, in Josey v. Filene's, Inc., 187 F. Supp.2d 9 (D. Conn.
2002), a district court stated that
Generally, the acts of private security guards, hired
by a store, do not constitute state action under §
1983. Courts have held that the actions of private
security guards constitutes state action in two
circumstances. First, private guards may be sued when
they are given the authority of state law. Second,
security guards are considered to be acting under
state law if they are willful participants in the
joint activity of the State or its agents.
Id. at 16 (citations and quotation marks omitted). In Josey,
such circumstances were not present, and the court dismissed an
alleged shoplifter's § 1983 claim. See id. at 17.
Several other district courts within the Circuit agree that
store security guards are not state actors when they detain
suspected shoplifters. See Moher v. Stop & Shop Cos.,
580 F. Supp. 723, 725-26 (D. Conn. 1984) (stating in the case of an
alleged shoplifter claiming a § 1983 violation that in "the
absence of any hint in her complaint . . . that defendant's acts
were undertaken `under color of law,' plaintiff has her remedy in
a state court for the wrong allegedly done to her"); Newman v.
Bloomingdale's, 543 F. Supp. 1029, 1032 (S.D.N.Y. 1982) (stating
that a complaint that "the police, by arresting and detaining an
individual accused of shoplifting solely on the oral complaint of
store personnel . . . does not allege facts sufficient to make
the store's conduct the `state action' which is essential to
state a claim under 42 U.S.C. § 1983"); Klein v. Alexander's
Dep't Store, 1977 U.S. Dist. LEXIS 14673 at *3-4 (S.D.N.Y. Aug.
2, 1977) (stating that a guard's action "fails to supply the
requisite state action . . . the complaint against the store and
its employees fails to state an actionable claim under section
1983"); Iodice v. Gimbel's, Inc., 416 F. Supp. 1054, 1055
(E.D.N.Y. 1976) (stating that a guard's action "is not sufficient
to bridge the gap between private and State action . . . This
`shopkeepers' privilege' is insufficient to transform defendants'
conduct into acts under color of state law").
The exception that proves the general rule is the decision of
the district court in Rojas v. Alexander's Dep't Store, Inc.,
654 F. Supp. 856 (E.D.N.Y. 1986). In Rojas, an alleged shoplifter's §
1983 claim was not dismissed because the store security guard
had been sworn in as a "special patrolman" by the New York City
Police Department. This security guard's unique status as a
quasi-peace officer imputed state action and therefore implicated
the Fourth Amendment and § 1983. See id. at 858.
The single case cited by Plaintiffs for the proposition that
the actions of a store security guard may be attributable to the
state for the purposes of § 1983, Brooks v. Santiago, is
factually distinguishable, and its legal reasoning is both
rejected by and not binding upon this Court. Factually, in
Brooks, the store security guard and the police officers acted in
tandem.*fn4 Legally, the gravamen of Brooks is that New
York General Business Law Section 218, which allows as a defense
to torts such as false imprisonment a retailer's reasonable
detention of a person attempting to commit larceny on their
premises, may convert security guards into state actors if the
police arrest an alleged shoplifter after failing to conduct
their own follow-up investigation.
The district courts in Klein, 1977 U.S. Dist. LEXIS 14673 at
*3-4, and Iodice, 416 F. Supp. at 1055, both specifically
rejected the Brooks court's view of N.Y. GEN. BUS. § 218. This
Court shares the view of the Klein and Iodice courts. Section
218, the defense of lawful detention, states that in any action
for, e.g., false imprisonment, brought by a person detained at
a retail establishment for the investigation of the ownership of
any merchandise, it shall be a defense to such action that the
person was detained in a reasonable manner and for a reasonable
time to permit such investigation by, e.g., the authorized
employee of the owner of the retail establishment.
The statute is an affirmative defense against tort claims. It
in no way establishes store security guards as state actors.
See People v. Jones, 47 N.Y.2d 528, 532; 393 N.E.2d 443, 445;
419 N.Y.S.2d 447, 449 (1979) (citing § 218 and stating that
"employees of retail stores are empowered to arrest or detain
individuals suspected of shoplifting . . . in exercising this
authority store employees are generally held to act as private
individuals and not as police officers or State officials"). Even
if the police subsequently arrest a shoplifter on the basis of a
guard's statements, absent joint action by the guard and the
police, or special patrolman status on the part of the guard, the
guard's complaint to a police officer is no different than that
of any other civilian witness to a crime.
The actions of the Kohl's store security guard towards
Plaintiffs' daughters, therefore, were not the actions of the
state, and they implicate neither the Fourth Amendment nor
42 U.S.C. § 1983. Plaintiffs' Section 1983 claim is therefore
dismissed. Yet the Court in no way intends to minimize the
conduct of the Kohl's employee.
If Plaintiffs' allegations are true, the Court observes,
without presuming to decide, that Kohl's may have committed
tortious acts against these girls under New York State law when
their store security guard forced them to strip. While N.Y. GEN.
BUS. § 218 permits store security guards to reasonably detain
and investigate suspected shoplifters, inasmuch as it immunizes
such behavior from certain tort actions, the reasonableness
standard contained in the statute means it most likely does not
immunize a store if its guards strip-search juvenile customers in
pursuit of de minimis amounts of inexpensive merchandise.
However, these observations point to possible State law tort
claims against Kohl's, not to a federal civil rights claim
For the foregoing reasons, Kohl's motion to dismiss is
GRANTED, WITHOUT PREJUDICE in any State proceeding, as to
Plaintiffs' federal claims. Even if Plaintiffs' allegations are
accepted as true, and all reasonable inferences are drawn in
Plaintiffs' favor, Plaintiffs are still not entitled to the
relief sought, because the Court lacks jurisdiction over
Plaintiffs' § 1983 claim, as the Kohl's security guard is not a
state actor within the meaning of the civil rights statute. The
Court also declines to exercise its supplemental jurisdiction
over Plaintiffs' remaining State law claims.