By Jessica Lussenhop
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On the evening of May 22, 2004, Tosha Jasper and Denetra Hughley were led out of Westfield Shoppingtown South County mall in handcuffs for disturbing the peace after shopping at Dillard's. Based on the department store's track record, they're lucky they weren't hog-tied and pushed out on a dolly, gasping for life.
Hughley, a young mother who works for an AIDS organization in south city, has two small sons, whom she was intent on outfitting in matching shirts for a family portrait on that Saturday last May.
"It was kind of out of our way, but we went down there because we heard they had good children's stores," says Jasper, who is Hughley's cousin. "Our main goal was to have Denetra's two boys in matching clothes so they could look beautiful for their picture."
The women visited JCPenney and a handful of other stores, but by suppertime, they still hadn't found outfits that matched. So they decided to swing into Dillard's, an Arkansas-based department store chain that is the ninth largest in the nation and boasts outlets throughout the metro region.
As Hughley pushed a stroller containing her two-month-old son into the store, she and her cousin say, they immediately received ultra-attentive service from two Dillard's employees positioned near the store's front entrance.
"They gave each other eye contact, like, 'Watch them,'" recalls Hughley. "They were at every corner we stopped at."
While Hughley picked out a pair of polo shirts for her boys, Jasper plopped down in a chair near the store's cash registers, exhausted after hours of shopping. There, she fed Hughley's infant son a bottle of formula. Before long, Hughley paid for the polo shirts and the women exited the store.
Ten feet from Dillard's property in the mall's commons area, they heard someone shout at them. Startled, the women turned around to meet a store manager and uniformed police officer, who they assumed was working store security. The officer, they say, stated he'd seen Hughley snatch an outfit from the children's section and that he'd like to have a look inside her bag. Hughley produced a diaper set purchased at JCPenney. Satisfied that this settled things, the women turned to walk away.
But the store manager then told the officer that there were more bags that merited searching "under the stroller" that contained Hughley's baby boy.
"That's when things really got crazy," says Hughley.
"He actually reached between her legs" to get at the bags stowed under the stroller, claims Jasper. "The stroller was up on one wheel."
"I yanked my son away from him and told [the officer] not to say anything else," recounts Hughley. "That's when he told me he was a police officer and could say anything he wants."
"We had no idea he was on duty," says Jasper. "He came across as their security officer."
At this point, the store manager "literally walked away," recalls Jasper, and a couple of Westfield security guards arrived on the scene.
"A fat security guard walked up and told us to get the fuck out of the mall," remembers Hughley.
At this point, the women say, the Dillard's-employed police officer vanished, leaving them in the custody of the Westfield security guards.
"They were yelling at us," says Jasper. "That fat guy said, 'You belong in the city' and called us black bitches. So we exchanged words."
Escorted to the mall's ground floor, the pair was met by two new county cops and a throng of gawking shoppers.
"There was a mob of bystanders," says Jasper. "You would have thought that everyone in the mall just stopped shopping."
Wandering amid this crowd of onlookers was Hughley's four-year-old son, Jelani.
"I went to get him, and an officer grabbed my wrist," says Hughley. "I yanked it away. As soon as I did that, my other arm was in cuffs."
"The children could have been kidnapped," fumes Jasper, who was handcuffed as well and led out to a squad car along with Hughley, where the two were issued summonses for disturbing the peace (these charges were later reduced to $50 littering citations, a curious prosecutorial concession).
"The only peace disturbed was ours," says Jasper. "We'd been falsely accused, mistreated, bullied and definitely racially profiled."
Representatives from the Westfield mall and Dillard's declined to comment on the women's accusations.
Early this year, Hughley and Jasper asked the Missouri Human Rights Commission to investigate the south-county Dillard's incident. After the commission's probe is concluded later this month, the women plan to proceed with a lawsuit similar to a class-action filing against Dillard's -- which involves a dozen African-American plaintiffs from three different states -- that is expected to go to trial next year in the 22nd Judicial Circuit Court of Missouri.
In their eight-count lawsuit, these twelve plaintiffs -- one from St. Louis, four from Arkansas and seven from Florida -- accuse Dillard's and the off-duty cops in their employ of false imprisonment, battery, negligence, defamation, intentional infliction of emotional distress, invasion of privacy, conspiracy and a final count of gross negligence and malice.
The local plaintiff is Allen Vaught, whose suit stems from a November 2000 altercation at the now-defunct St. Louis Centre Dillard's. Upon entering the store with a gift card from his mother, Vaught was met by a clerk, who shouted, "There he is!" Vaught was quickly confronted by store security (off-duty police officers).
According to the lawsuit, it was explained to Vaught that he fit the description of a man who'd "hit" the store earlier that day. Vaught insists that store personnel said they didn't care whether he had a valid gift card or not before ordering the security officers to escort him off the premises. Vaught claims a Dillard's employee laughed at him as he was led away.
"They're saying that since he looked like somebody who might have done something earlier, this is a basis for confrontation?" asks Chris McGoey, a California-based security consultant and vocal critic of Dillard's security procedures. "There's nothing in the law, or Dillard's policy, that allows something like that to occur."
But over the past decade-plus, dustups like Vaught's have occurred with increasing frequency at Dillard's stores around the nation, six times resulting in the deaths of customers at the hands of off-duty police officers. The most horrifying of these incidents involved Darryl Robinson, who was beaten, hog-tied and carted to an ambulance on a freight dolly by security officers at a Houston-area Dillard's following a verbal altercation in the store in 1994.
Robinson sustained injuries so severe that he lapsed into a coma and later died. His family later settled with the department store for an undisclosed amount after a jury ordered Dillard's to pay the family $1.5 million.
"The damages for a dead person were so modest that it indicates a compromise verdict," Dillard's attorney Brock Akers told the Houston Chronicle at the time of the verdict. "We're not disappointed with the amount."
While neither Robinson nor any of the other five deceased were carrying weapons, at least two of these deaths resulted from the discharge of a Dillard's security guard's firearm. According to a report in the Houston Press (a sister paper of the Riverfront Times), these two officers were exonerated, as was Dillard's -- the result of an ongoing legal tactic employed by company counsel, which argues that the triggermen were acting in official police capacity at the time of the altercations, therefore exempting Dillard's from liability.
"You are neverjustified in shooting someone who's fleeing a property crime unarmed," says McGoey. "Thousands of other retail stores out there operate without that level of force every day. But Dillard's has off-duty cops treating customers like they would a suspect in an alley at three o'clock in the morning."
By way of comparison, the department store Nordstrom says it hires its own loss-prevention personnel and puts them through extensive training and certification, prior experience notwithstanding. Conversely, since 1990 Dillard's has hired primarily off-duty cops as security guards and does not put them, or even the private security personnel it contracts with, through any sort of training.
"These are trained professionals who are hired from local law-enforcement agencies," says Dillard's spokesman Skip Rutherford, who declined to comment on the impending litigation, as did local defense lawyers from the Bryan Cave law firm. "When Dillard's uses private security guards, we go through companies that have strong training programs."
No other major department store chain in America regularly employs active off-duty police officers as security staff, says McGoey.
"The retail environment is unique," adds the security consultant, who has provided his services to Nordstrom, Neiman Marcus, Macy's and Wal-Mart, among other stores. "You want your customers to pick up merchandise and try it on. And yet you have officers who could look at that and say, 'Well, that's suspicious,' then take all these liberties that ordinarily wouldn't be available to private security entities or even a street cop. You can't just walk up to someone without just cause.
"Dillard's is trying to walk the fence and take advantage of the municipal immunity that police officers provide," continues McGoey. "When they get sued, that's their first defense: that the officer was not a Dillard's employee at the time. And yet he punches a Dillard's time clock and is protecting only Dillard's property. It's very arrogant."