SOUTHEAST TEXAS RECORD

On Nov. 6, a Jefferson County jury found that Dillard's at Parkdale Mall had not been engaging in racial profiling. Three teens brought the department store to trial on claims that a security guard had falsely accused them of shoplifting and was acting in accordance with Dillard's practice of targeting black customers.

Plaintiffs in Joseph McCarty et al vs. Dillard's Inc. et al were seeking $15 million in compensatory damages for false imprisonment and negligence. The teens were represented by Mickey Washington and Cletus Ernster.

The jury found not only that there was no evidence of racial profiling by Dillard's or that the officer had falsely imprisoned the plaintiffs, but found two of the teens to be the ones guilty of negligence for causing the altercation with the security officer in the first place.
The recent trial in Judge Milton Shuffield's 136th District Court was the second victory for Dillard's in a racial discrimination suit.

On Aug. 30, the Texas Ninth District Court of Appeals upheld a decision by Shuffield to throw out a jury verdict that awarded a plaintiff $350,000. Plaintiff Shannon McDowell, also represented by Washington and Ernster, brought suit against Dillard's for false imprisonment and negligence.

In a 2005 trial in Shuffield's court, a jury rendered a verdict in favor of McDowell, an African American, and awarded him $250,000 for past mental anguish and $100,000 for future mental anguish. Dillard's filed a motion for judgment notwithstanding the verdict and the trial court granted the motion and entered a judgment that McDowell take nothing from Dillard's.

McDowell appealed the trial court's decision, arguing that the court erred in ruling that Dillard's was not liable for his arrest made by a police officer employed as a Dillard's security officer.

The Ninth Court of Appeals affirmed Shuffield's judgment notwithstanding the verdict.

McDowell's suit, No. A166-912, began when he wanted to exchange a pair of shoes at Dillard's. He found a pair of shoes that cost $10 more than the pair he sought to exchange, and asked the salesperson for an even exchange. According to McDowell, a department manager made a telephone call to David Hawkins, the store's manager, and Hawkins refused to offer an even exchange.

McDowell testified that he continued to negotiate a discount until Hawkins asked him to lower his voice. Hawkins then called security, and Officer Juan San Miguel, a Beaumont police officer employed by Dillard's as a security officer, arrived and talked to Hawkins.

During Officer San Miguel's conversation with Hawkins, McDowell attempted to interject. Officer San Miguel informed McDowell that he was a Beaumont police officer and told McDowell to "shut up."

McDowell testified that he was not disrespectful, did not yell and did not say anything offensive. He testified that as he turned to leave, Officer San Miguel grabbed him, said he was under arrest, and attempted to throw him to the ground.

The two men struggled, and Officer San Miguel threw McDowell over the store counter to handcuff him. Officer San Miguel took McDowell to a small room in a basement area and another officer transported McDowell to jail. He was later acquitted of a charge of disorderly conduct.

But in Hawkins version of events, when he approached McDowell and introduced himself, McDowell began to yell. Hawkins testified that McDowell was angry, yelling and disrupting business. Hawkins asked McDowell to lower his voice and said he felt threatened and asked an employee to call security.

According to Officer San Miguel, when he arrived he found McDowell yelling, screaming and talking in a loud voice. He identified himself as a police officer and asked McDowell to be quiet and when McDowell spoke out again the officer touched McDowell on the arm and told him he was under arrest.

The officer testified that Hawkins did not tell him to arrest McDowell and he was not enforcing the store's rules. Officer San Miguel testified that McDowell was arrested for making loud noise in a public building.

McDowell brought suit against Dillard's for, among other things, false imprisonment and negligence. A jury rendered a verdict in favor of McDowell, and awarded him $250,000 for past mental anguish and $100,000 for future mental anguish.

The jury found that Officer San Miguel had acted in the course and scope of his employment as an employee of Dillard's, and that therefore Dillard's falsely imprisoned McDowell.

Dillard's filed a motion for judgment notwithstanding the verdict. Dillard's argued it was not vicariously liable for Officer San Miguel's actions because the officer was not acting in the course and scope of employment for Dillard's but acting as a police officer. Dillard's further argued that it was not liable for false imprisonment because Hawkins, a Dillard's employee, did not detain McDowell. The court granted the motion and entered a judgment that McDowell take nothing from Dillard's.

"Officer San Miguel was acting in his official capacity as a police officer," the Appeals Court wrote. "Dillard's is not liable for his conduct. We overrule McDowell's issue. The trial court's judgment is affirmed."

However Washington and Ernster are now taking the McDowell case, No. 09-06-216-cv, to the Texas Supreme Court. A petition for review was submitted to the Supreme Court on Oct. 4.