Jury finds in favor of Dillard's in racial profiling trial

By Marilyn Tennissen | Nov 6, 2007

Jefferson County jurors found no evidence that Dillard's department store engaged in racial profiling, and instead found the plaintiffs liable for causing the altercation with a store security guard who they claimed had singled them out because they were black.

Three teens, Joseph McCarty, LaPrecious Powell and Kellie LaDay, sued Dillard's, claiming the store has a policy of racial profiling.

The trial began Oct. 31in the 136th District Court of Judge Milton Shuffield. The three plaintiffs were seeking damages of $5 million each for a March 2003 incident.

The teens said they were shopping at Dillard's in Parkdale Mall when a security guard falsely accused them of trying to shoplift, threatened them and shoved them out of the store. LaDay said the security guard, off-duty Beaumont police Sgt. Jay Waggoner, injured her shoulder as he forcibly removed the trio from the store.

Among the questions posed to jurors, the first was to determine if at the time of the incident Waggoner was acting as an employee of Dillard's.

According to the Charge of the Court, an off-duty law enforcement officer employed as a security guard ceases to act as an employee of the private business and becomes an on-duty law enforcement officer if he sees a crime being committed, detains an individual upon a reasonable suspicion of a crime or is effecting an arrest based on probable cause of a crime.

Waggoner had testified that he approached the young people after a black sales clerk, who had never been identified or offered testimony, summoned him because she saw a group of teens acting suspiciously.

The teens testified that Waggoner immediately accused them of shoplifting and made verbal threats. Waggoner said the teens "gave him lip" as soon as he approached and he then escorted them out of the store in lieu of a citation for disorderly conduct.

Jurors, 10 whites and two blacks, deliberated about four hours on the morning of Nov. 6 and found that Waggoner was acting as a law enforcement officer at the time of the incident. Answering "no" to the first question on the court's charge punched a hole in the plaintiffs' case.

Plaintiffs' attorneys Mickey Washington and Cletus Ernster had tried to show that he was enforcing "rules and regulations promulgated by the employer," specifically -- targeting blacks.

From there the jurors then said, no, Dillard's did not falsely imprison the teens and Waggoner did not assault Kellie LeDay.

The plaintiffs' were also hoping that jurors would find Dillard's negligent for failing to properly supervise its employee Waggoner.
But jurors instead placed the blame for the entire incident on McCarty and Powell.

In dynamic closing arguments Monday, defense attorney Brock Akers of Houston told jurors that if they believed the plaintiffs' story about the incident, then he had some swampland in Florida they might be interested in.

Akers also questioned the plaintiffs' claims of mental anguish from the scene at Dillard's.

"They say they have had many sleepless nights because of what happened," Akers said. "But these young people have had no trouble sleeping through the testimony in this trial. If they can't even stay awake then what are we doing here? You should be offended."

The plaintiffs were represented by Mickey Washington and Cletus Ernster of Houston. Washington is a Jefferson County native and former cornerback with the Washington Redskins. He was the featured cover story for the 2007 Texas Monthly Super Lawyers edition. The Washington & Ernster Web site said the firm is "Well known for our consumer racial profiling work against a large department store chain."

Washington told jurors that the case was a "jigsaw puzzle" that Dillard's did not want pieced together.

Case No. A166-912

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