                           United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ____________

                                    No. 00-3980
                                   ____________

Carl Youngblood                          *
                                         *
                   Appellant             *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Western District of Missouri
Hy-Vee Food Stores, Inc.                 *
                                         *
                   Appellee              *

                                   ____________

                               Submitted: June 15, 2001
                                   Filed: September 17, 2001
                                  _____________


Before McMILLIAN and RICHARD S. ARNOLD, Circuit Judges, and DAWSON,1
District Judge.

DAWSON, District Judge.

      Carl Youngblood, an African-American, instituted a civil rights action against
Hy-Vee Food Stores, Inc. (Hy-Vee), asserting that Hy-Vee violated his rights under 42
U.S.C. §§ 1981 and 1983 and also subjected him to malicious prosecution and false
imprisonment when they detained him on suspicion of shoplifting and had him arrested


      1
       The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
and pressed charges against him. The district court2 granted Hy-Vee summary
judgment, concluding that Hy-Vee's actions did not deprive Youngblood of his right to
contract under Section 1981, as Youngblood had completed his purchase; that Hy-Vee
did not violate the full-and-equal-benefits clause of Section 1981, as its actions
constituted private and not state action; that because Hy-Vee's actions did not constitute
state action, Youngblood's Section 1983 claim likewise failed; and that Youngblood
could not establish malicious prosecution or false imprisonment, as there was probable
cause for his arrest and his detention was reasonable.

       On appeal, Youngblood argues that the contract rights protected by Section 1981
include the right to the enjoyment of all benefits, privileges, terms, and conditions of
the contractual relationship, and that the district court therefore erred in concluding that
Section 1981 provided Youngblood no protection once he completed the contract by
making his purchase. Youngblood further argues that the full-and-equal-benefits clause
of Section 1981 applies to private actors, and that, in any event, Hy-Vee acted under
color of state law so as to implicate Youngblood's rights under both Sections 1981 and
1983. Finally, Youngblood argues that probable cause did not exist to arrest him and
thus, summary judgment was inappropriate on his malicious-prosecution and false-
imprisonment claims.

       For reasons stated herein, we AFFIRM the decision of the district court.

I.   Background.

        On or about April 13, 1998, Youngblood entered Hy-Vee and proceeded to the
section of the store that contained canisters of beef jerky. Youngblood spent some time
in this area before selecting a canister and walking up the aisle towards the check-out


       2
       The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

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area. A store employee observed Youngblood and thought his behavior unusual for it
appeared to the employee that Youngblood had his hands underneath his shirt. After
taking a few steps up the aisle, Youngblood turned and returned to the beef-jerky
section, placed the original canister back on the shelf and picked up another canister.
It appeared to the store employee that Youngblood placed the second canister
underneath his shirt. Youngblood then proceeded to the cash register and purchased
a single canister of beef jerky. The store employee checked the canister Youngblood
placed back on the shelf and discovered that most of the beef jerky inside was missing.
As Youngblood headed toward the exit, the employee stopped Youngblood and asked
for his receipt. Youngblood gave him the receipt and his bag. The store employee
opened the canister Youngblood had purchased and observed that it was "crammed
full" of beef jerky. The stop of Youngblood in the front of the store lasted two to five
minutes and Youngblood then waited in an upstairs office for approximately twenty
minutes until the police arrived. The door to the office remained open during this time
and Youngblood was not physically restrained in any manner. When the police officer
arrived, he asked what Youngblood had done and the store employee told the officer
that Youngblood had taken most of the contents of one beef-jerky canister and placed
it into another. After examining the contents of the canister, the officer arrested
Youngblood. The criminal charges against Youngblood were ultimately dismissed.

II.   Discussion.

      We review the district court's grant of summary judgment de novo. See Beck
v. Skon, 253 F.3d 330, 333 (8th Cir. 2001). We reverse an award of summary
judgment only if we find that a material issue of fact exists or that the district court
made an incorrect conclusion of law. See Fed. R. Civ. P. 56(c). In deciding whether
Hy-Vee is entitled to summary judgment, we view the summary judgment record in




                                           3
a light most favorable to Youngblood, affording him the benefit of all reasonable
inferences. See Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001).

             A.     Section 1981's Right-to-Contract Clause

       Section 1981 provides that all persons shall have the same right to "make and
enforce contracts." See 42 U.S.C. § 1981 (a). In 1991, Congress expanded the scope
of Section 1981 to include the right to "the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship." See 42 U.S.C. § 1981 (b). Hy-Vee
removed the beef jerky from Youngblood after the point of purchase and Hy-Vee did
not refund Youngblood's money even after the charges against him were dismissed.
Hy-Vee further did not return the beef jerky to Youngblood as Hy-Vee discards all
damaged items associated with a suspected shoplifting. The question we must
determine is whether any contractual relationship remained once Youngblood
completed his purchase and if the taking of the beef jerky denied Youngblood a benefit
of the contractual relationship.

       While there is scant precedent, courts that have addressed the issue have
concluded that once the purchase is completed, no contractual relationship remains.
See e.g., Lewis v. J. C. Penney Co. Inc., 948 F. Supp. 367, 372 (D. Del. 1996); see
also Rogers v. Elliott, 135 F. Supp.2d 1312, 1315 (N.D. Ga. 2001). Youngblood
correctly points out that in these cases the customers did not have the merchandise they
purchased taken away. This distinction is of little significance, however, as the key is
whether any contractual duty remained after Youngblood made his purchase. 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. This case is distinguishable
from Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091 (10th Cir. 2001), where the
Tenth Circuit found a contractual relationship existed after the purchase. In Hampton,
the customer received a coupon for a fragrance sample as a benefit of her purchase and
the Tenth Circuit concluded that the store had a contractual duty to allow the customer

                                            4
to redeem the coupon. See id. at 1103-05. In this case, nothing that happened after the
sale created any further contractual duty on Hy-Vee's part. Accordingly, Hy-Vee
cannot be said to have deprived Youngblood of the benefit of any contractual
relationship, as no such relationship existed when it took the beef jerky away from
Youngblood.

       The dissent suggests that Youngblood was blatantly discriminated against in this
case. While we disagree, Section 1981 does not provide a general cause of action for
race discrimination if in fact it occurred. The requirement remains that a plaintiff must
point to some contractual relationship in order to bring a claim under Section 1981.
This conclusion does not mean that there is no remedy in cases where a store
wrongfully confiscates items purchased by a customer. The nature of the action,
however, is not in contract, but in tort. Specifically, under Missouri law, a cause of
action for conversion lies for the tortious taking of a chattel. See Koger v. Hartford
Life Ins. Co., 28 S.W.3d 405, 415 (Mo. Ct. App. 2000).

              B.     Section 1981's Full-and-Equal-Benefit Clause

       Section 1981 provides that all persons shall have the right to "the full and equal
benefit of all laws and proceedings for the security of persons and property." 42 U.S.C.
§ 1981(a). "Because the state is the sole source of the law, it is only the state that can
deny the full and equal benefit of the law." Chapman v. Higbee Co., 2001 WL
753504, *3 (6th Cir. July 5, 2001); see also Mahone v. Waddle, 564 F.2d 1018, 1029
(3d Cir. 1977) (concept of state action is implicit in full-and-equal-benefit clause), cert.
denied, 438 U.S. 904 (1978). As discussed below, Hy-Vee's actions did not constitute
state action and Hy-Vee was therefore entitled to summary judgment on Youngblood's
claim under the full-and-equal-benefit clause.




                                             5
             C.     Section 1983

       Only state actors can be held liable under Section 1983. See Adickes v. S. H.
Kress & Co., 398 U.S. 144, 150 (1970). A private party who willfully participates in
joint activity with the State or its agents is considered a state actor. See id. at 152. A
store may be considered to be acting jointly with police when the police detain accused
shoplifters without making an independent investigation or pursuant to a customary
plan between the store and the police department. See Murray v. Wal-Mart, Inc., 874
F.2d 555, 558-59 (8th Cir. 1989). In Murray, the court found that Wal-Mart acted in
concert with the police because Wal-Mart had a practice of working with the police
department in prosecuting shoplifters; the store security guard was an employee of the
police department; and the police relied on the guard's incomplete version of the facts
without any independent investigation. See id. at 559.

       The present case is distinguishable from Murray, as the store employee who
witnessed the incident was not employed by the police department and the police
officer summoned to the scene investigated the incident by speaking with the store
employee and examining the contents of the beef jerky canister. Youngblood relies on
a state statute which authorizes merchants to detain suspected shoplifters in a
reasonable manner and for a reasonable length of time to investigate whether there has
been a shoplifting, see Mo. Rev. Stat. § 537.125 (2000), and argues that as Hy-Vee
acted under this statute, its conduct constituted state action. The Supreme Court has
held that a private party's mere invocation of state legal procedures does not constitute
state action. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 n.21 (1982); cited
in Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir. 1997).

      D.     State-Law Claims of Malicious Prosecution and False Imprisonment

      The district court properly granted Hy-Vee summary judgment on these claims,
as probable cause existed to suspect Youngblood of shoplifting. See Jacobs v. Bonser,

                                            6
46 S.W.3d 41, 49 (Mo. Ct. App. 2001) (to make submissible case of malicious
prosecution, plaintiff must show lack of probable cause for prosecution); Edwards v.
McNeill, 894 S.W.2d 678, 683 (Mo. Ct. App. 1995) (probable cause is complete
defense to cause of action for false arrest). A store employee thought he observed
Youngblood put a canister of beef jerky under his shirt, then return that canister to the
shelf and place another one under his shirt. The employee examined the can placed
back on the shelf and only a couple of pieces remained in it. When the employee
examined the canister Youngblood had purchased, it appeared to be "crammed full."
These facts provided "reasonable grounds for suspicion, supported by circumstances
. . . sufficiently strong to warrant a cautious man in his belief" that Youngblood had
committed the offense of shoplifting. See Thompson v. Wal-Mart, Inc., 890 S.W.2d
780, 782 (Mo. Ct. App. 1995).

III.   Conclusion.

       Based on the foregoing, we hereby affirm the district court's rulings in their
entirety.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

       Under 42 U.S.C. § 1981, all persons in the United States have the same right “to
make and enforce contracts.” 42 U.S.C. § 1981(a). In 1991, Congress amended the
statute to explain that this clause includes the right to “the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” § 1981(b). Our job
is to decide what rights are conferred by this statute.

       The statute, in its entirety, reads as follows:

       § 1981. Equal rights under the law



                                            7
      (a)    Statement of equal rights

             All persons within the jurisdiction of the United States shall have
      the same right in every State and Territory to make and enforce contracts,
      to sue, be parties, give evidence, and to the full and equal benefit of all
      laws and proceedings for the security of persons and property as is
      enjoyed by white citizens, and shall be subject to like punishment, pains,
      penalties, taxes, licenses, and exactions of every kind, and to no other.

      (b)    “Make and enforce contracts” defined

            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.

      (c)    Protection against impairment

             The rights protected by this section are protected against
      impairment by nongovernmental discrimination and impairment under
      color of State law.

42 U.S.C. § 1981.

      The Court holds in this case that a customer (Youngblood) who is detained by
employees of a retail store (Hy-Vee) immediately after he has paid for a consumer item,
who has that item taken from him by those employees, and who is not refunded the
money with which he purchased the item—all of which events occur on the store
premises—cannot maintain an action under § 1981 based on his right to enjoy the
“benefits” of the contractual relationship.” § 1981(b). The Court reasons that at the




                                          8
time of these events, no contract existed between Youngblood and Hy-Vee because the
retail sale had been concluded.3

       Underlying the Court’s reasoning is a narrow view of the scope of the contract
right conferred by § 1981. There are several reasons to think that this view is too
narrow, and that Congress actually conferred a more expansive right under the statute.

       First, the language of the statute itself—particularly the detailed explanatory
language of subsection (b)—is broad and inclusive. Subsections (b) and (c) of the
statute are recent amendments that were enacted as part of the Civil Rights Act of
1991, Pub. L. 102-166, 105 Stat. 1071. By its terms, subsection (b) interprets § 1981's
“make and enforce contracts” clause to include “the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship.” § 1981(b). Moreover, the Act’s
statement of purposes explicitly describes the Act as “expanding the scope of relevant
civil rights statutes in order to provide adequate protection to victims of
discrimination.” Civil Rights Act of 1991 § 3(4) (emphasis added). Therefore, as a
matter of statutory construction, the “make and enforce contracts” clause is to be
interpreted broadly.

       Second, the legislative history of the recent amendments confirms what the
statutory language implies—that Congress intended to broaden the scope of the


      1
        In the Court’s words, “[o]nce Youngblood paid the cashier and received the
beef jerky from the cashier, neither party owed the other any duty under the retail-sale
contract.” Ante, at 4. As a result, the Court determines, “Hy-Vee cannot be said to
have deprived Youngblood of the benefit of any contractual relationship, as no such
relationship existed when it took the beef jerky away from Youngblood.” Id. at 4-5.
Instead of an action under § 1981, the Court suggests, Youngblood has a state-law
action for conversion. Id. at 5.


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contract right conferred by the statute. As the House Report to the Act indicates, “[t]he
list set forth in subsection (b) is intended to be illustrative rather than exhaustive.” H.R.
Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1991), reprinted in 1991 U.S. Code Cong.
& Admin. News 549, 630. Moreover, Congress passed subsection (b) specifically in
response to the Supreme Court’s narrow construction of the “make and enforce
contracts” clause in Patterson v. McLean Credit Union, 491 U.S. 164 (1989). See
Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) (discussing amendment of §
1981). In Patterson, an employment discrimination case, the Court held that the clause
did not provide employees with a cause of action for discrimination occurring after the
formation of an employment contract. 491 U.S. at 171. The House Report
demonstrates Congress’s disagreement with such a limited reading of the statute. See
H.R. Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1991), reprinted in 1991 U.S. Code
Cong. & Admin. News 549, 630 (“The Committee . . . finds that the Court’s
interpretation [in Patterson] of one of our most important federal civil rights laws [§
1981] crippled the statute’s deterrent value . . . . As a consequence, the Committee
concludes that there is a compelling need for legislation to overrule the Patterson
decision and ensure that federal law prohibits all race discrimination in all phases of the
contractual relationship.”). Accordingly, § 1981 now covers “all phases and incidents
of the contractual relationship.” Rivers, 511 U.S. at 302.

       Third, civil rights legislation—such as § 1981, which is designed to address
invidious racial discrimination—is generally interpreted broadly in keeping with its
remedial purpose. It is written in general language with the understanding that courts
have wide latitude in construing it to achieve the remedial purposes that Congress
identifies. See, e.g., Patterson, 491 U.S. at 171, 174 (reaffirming Runyon v. McCrary,
427 U.S. 160 (1976), and discussing “our society’s deep commitment to the eradication
of discrimination based on a person’s race or the color of his or her skin”); Bob Jones
University v. United States, 461 U.S. 574, 593 (1983) (“[E]very pronouncement of this
Court and myriad Acts of Congress and Executive Orders attest a firm national policy


                                             10
to prohibit racial segregation and discrimination.”); see also Brown v. Board of
Education, 347 U.S. 483 (1954); Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
(Harlan, J., dissenting) (“The law regards man as man, and takes no account of his . .
. color when his civil rights as guaranteed by the supreme law of the land are
involved”). Failing to construe § 1981 liberally could remove certain racially
discriminatory conduct—conduct that Congress intended to prohibit—from the purview
of the statute.

       Fourth, what case law there is on § 1981 is not inconsistent with a broad reading
of the statute. The particular question at issue—the scope of the contract right
conferred by the statute in the context of a retail sales contract—has not appeared
before in this circuit or elsewhere. None of the cases cited by the Court to the contrary
is persuasive. In Lewis v. J.C. Penney Co., 948 F. Supp. 367 (D. Del. 1996), the
plaintiff was stopped and questioned by a security guard, but was permitted to leave
with her purchase following the inquiry. Id. at 369-70. The court noted that the result
might have been different (in fact, had been different in an earlier case) had there been
a policy of treating customers differently based on race. In Rogers v. Elliot, 135 F.
Supp. 2d 1312 (N.D. Ga. 2001), the plaintiffs were harassed by an individual cashier
in a Wal-Mart store after making their purchase (which they kept), and there is no
indication that any discriminatory intent existed on the part of anyone other than the
cashier. Id. at 1313. Finally, in Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091
(10th Cir. 2001), the court allowed the § 1981 claim to proceed, recognizing that the
plaintiff’s ability to redeem a coupon given to her when she made her purchase was a
benefit of the sales contract. Id. at 1103-05.

       There is evidence of racial discrimination in this case. The District Court
determined that Youngblood had produced enough evidence to show Hy-Vee’s
discriminatory intent, Youngblood v. Hy-Vee Food Stores, Inc., No. 99-0629-CV-W-2-
ECF, slip op. at 24 (W.D. Mo. Dec. 15, 2000), and statements in the record confirm


                                           11
this determination. Regarding Hy-Vee’s practices, there is evidence from several
former store employees that Hy-Vee had a discriminatory pattern and practice of
targeting, surveilling, stopping, and prosecuting black customers disproportionately to
white customers. See Appellant’s Appendix at 704, 709-10, 713-14.

       Regarding the incident itself, Youngblood states that while he was being
detained upstairs in the store, he was prevented from making a telephone call, and Hy-
Vee employees were laughing and smirking. Id. at 429, 430. When he suggested that
there was nothing funny about the situation, a Hy-Vee manager said: “I see a whole
lot funny about it.” Id. at 429. When Youngblood asked for his money back, he was
told by the manager: “You and your people have to pay back double the amount.” Id.
at 430.

       Given this background, I conclude that Hy-Vee’s alleged actions come within
§ 1981, and that Youngblood should be allowed to proceed with his suit. A person’s
right to leave a store where he has purchased an item without being surrounded,
detained, and having the item removed from his possession (and his money not
returned) can easily be understood as a “benefit” of the contract. Cf. Perry v. Burger
King Corp., 924 F. Supp. 548, 552 (S.D.N.Y. 1996) (denying motion to dismiss where
customer finished and paid for meal and sought to use restaurant’s restroom; noting that
plaintiff may be “considered to have contracted for food and use of the bathroom” as
benefit of contractual relationship).

       Accepting Youngblood’s version of the facts (which we must for present
purposes) racial discrimination pervaded the entire contracting process, not just the
moment that Youngblood exchanged money for beef jerky. Youngblood was singled
out for surveillance by the store clerk before he made his purchase, singled out for
suspicion as he walked to the register to make his purchase (when the store clerk
alerted the manager), and singled out for detention by three store employees as he tried


                                          12
to leave the store with his purchase. In short, the entire contracting process—from the
time Youngblood entered the store until the time he was prevented from leaving with
the beef jerky he had paid for—was tinged with racial discrimination, if Youngblood’s
evidence is believed. Given § 1981's remedial purpose, whether Youngblood had been
detained and the beef jerky seized prior to his paying for it, as he was paying for it, or
as he was heading for the exit with it should not make a difference under § 1981.

       Finally, it is important to separate the question of guilt and innocence from the
question of whether a civil rights violation has occurred. In this case, we are not
presented with the question of Youngblood’s guilt or innocence of shoplifting. (The
criminal case against him was dismissed.) Rather, we are faced with determining when
victims of racial discrimination can bring suit under § 1981. The statute protects the
guilty as well as the innocent from racially discriminatory practices. Thus, while it is
certainly the case that the innocent should not be singled out for arrest because of their
skin color, it is equally the case that the guilty should not be singled out for suspicion,
investigation, and arrest simply because of their skin color.

      For these reasons, I respectfully dissent.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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