# Chapman v. Higbee Co.

> Court of Appeals for the Sixth Circuit · July 5, 2001 · 256 F.3d 416

URL: https://www.frixlaw.com/law-library/cases/7001002

## Case

- **Full name:** Lynette CHAPMAN v. The HIGBEE COMPANY, d/b/a Dillard Department Stores, Inc.
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 5, 2001
- **Citations:** 256 F.3d 416; 2001 WL 753504
- **Precedential status:** Published
- **Opinion:** Dissent by Moore
- **Judges:** Edmunds, Moore, Suhrheinrich
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Lynette Chapman v. The Higbee Company, Doing Business as Dillard Department Stores, Inc., 270 F.3d 297 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7001002

## How later opinions describe it (automated extraction)

- explaining that it is difficult to determine whether a private individual is a state actor and that it is “particularly [difficult] in the area of off-duty police officers acting as security guards”

## Opinion text

MOORE, Circuit Judge,
dissenting.
I respectfully dissent from both the majority’s determination that the “full and equal benefit” clause in 42 U.S.C. § 1981 does not apply to private conduct and its conclusion with respect to the § 1983 claim that there is no genuine issue of material fact as to whether the Dillard security guard’s actions were fairly attributable to the state.
I. “FULL AND EQUAL BENEFIT” CLAUSE
I begin, as I must, by examining the language of the statute. Hudson v. Reno, 130 F.3d 1193, 1199 (6th Cir.1997) (“A familiar canon of statutory construction is that the starting point for interpreting a statute is the language of the statute itself.”). Section 1981 states:
(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 *438 subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
íjí 4* «I* H* H*
(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 (a), (c).
I believe that the language of this statute is perfectly clear: according to subsection (c), the rights protected by subsection (a), i.e., the rights “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,” are protected against impairment by private acts of discrimination. Subsection (c) does not state that some rights in the section are protected but others are not; there ip no modifier limiting the word “rights” to only certain phrases in subsection (a). On my reading of the literal language of the two sections, as written and then purposefully amended by Congress, the “rights protected by this section” must, according to that phrase’s natural meaning, mean all enumerated rights in subsection (a). 1 The “full and equal benefit” clause is one of those rights.
The majority contends that the statute is unambiguous and that it is clear that the word “rights” means only certain rights. According to the majority, “[ijmplicit in the concept of ‘full and equal benefit of all laws and proceedings for the security of *439 persons and property’ is state action.” Supra at 420. I believe the majority’s analysis is inherently flawed. First, the majority does not interpret the plain language of the statute, as it should; instead, the majority admittedly imputes meaning to the language when it looks to what is “implicit” in the phrase “full and equal benefit of all laws.” The majority states that “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.” Supra at 421. Because the majority insists on assigning its own meaning to the statute’s language, the majority is compelled to segregate awkwardly certain phrases in subsection (a) from the application of the language in subsection (c). Thus, on the majority’s reading, only one of the enumerated rights in subsection (a), the right to make and enforce contracts, may be violated by a private act of discrimination while the other enumerated rights may not. I discern no basis in the statute’s language for such a strained, unnatural reading of the statute. Cf. Franceschi v. Hyatt Corp., 782 F.Supp. 712, 718-19 (D.P.R.) (“We will not adhere to the dubious and illogical position that the first half of § 1981 does not have a state action requirement while the second does.”). Indeed, I believe that, had Congress intended to cramp the meaning of the word “rights,” it easily could have done so when it amended the statute and added subsection (c). As noted above, however, Congress included no such limiting language in the statute. The majority claims that Chapman’s reading of the statute is internally inconsistent. As the preceding discussion reveals, I believe it is the majority that must engage in interpretive contortions to arrive at its desired result.
Second, I disagree with the substance of the majority and the concurrence’s assertion that the full and equal benefit clause requires state action because “[o]nly the state can prescribe laws, and [therefore] only the state can deprive an individual of the benefit of those laws.” Supra at 431. I accept the concurrence’s quotidian premise, but I reject its conclusion as logically flawed. Although the state does make the law, one private actor may deprive another of the full and equal benefit of those laws just as readily as a state actor, as when the state provides for equal access to public facilities by law and private persons design to deny racial minorities access to such places through intimidation, or when a private actor subjects another to a physical attack which was racially inspired.
Tellingly, the only support the majority can muster for its assessment that “the full and equal benefit clause of subsection (a) can only refer to state action,” supra at 421, is a Third Circuit decision, Mahone v. Waddle, 564 F.2d 1018 (3d Cir.1977), authored before the 1991 amendments adding the language in subsection (c). Left unstated by the majority is the fact that neither the Supreme Court nor this court has ever limited the application of subsection (c) to the “make and enforce contracts” clause in subsection (a). While it is true that the “make and enforce contracts” clause is the most litigated clause of the statute, none of the other enumerated rights have been read out of the statute by the Supreme Court. With no legal authority to guide it, the majority would have done well to err on the side of caution by giving the words of subsection (c) their “ordinary, contemporary, common meaning.” Hudson, 130 F.3d at 1199 (citing Perrin v. United States, 444 U.S. 37, 42 , 100 S.Ct. 311 , 62 L.Ed.2d 199 (1979)). Instead, the majority’s conclusion that the word “rights” in subsection (c) refers only to the rights to make and enforce a contract places an undue restriction upon the language of the statute which is not dictated or even suggested by our precedent.
*440 The majority also claims that Chapman’s reading of the statute produces “the absurd result of federalizing state tort law.” Supra at 421. First, I believe the majority misuses the doctrine of statutory interpretation which obliges a reviewing court to eschew the literal language of a statute when it produces an absurd result. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 , 109 S.Ct. 1026 , 103 L.Ed.2d 290 (1989) (“The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. In such cases, the intention of the drafters, rather than the strict language, controls.”) (internal quotation omitted). A result is not absurd merely because it does not comport with the reviewing court’s notion of what constitutes good policy. We typically embark upon the exceptional task of divining Congress’s intent outside the literal language of the statute only when the statute produces a result, not which we dislike, but which is patently illogical.or contrary to Congress’s intent.
Second, the majority has failed to consider adequately the limiting language surrounding the “full and equal benefit” clause which serves to cabin both the number and nature of claims that may be brought under this clause. Of course “we should be and are ‘reluctant to federalize’ matters traditionally covered by state common law.” Patterson v. McLean Credit Union, 491 U.S. 164, 183 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989) (internal quotation omitted). The clause at issue, however, may only be invoked when one party denies another the “full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981 (a) (emphasis added). The “security of persons and property” clause clearly limits the potential class of cases which may be brought under this section. A litigant must demonstrate that he or she was either denied the benefit of a law or proceeding that protected a cognizable property right or that involved a claim of personal security. 2 Moreover, to bring successfully a § 1981 claim, a litigant must prove intentional discrimination on the basis of race, which involves a high threshold of proof. Because of these significant limitations, I do not believe that the proper reading of the statute makes actionable a wide swath of conduct traditionally covered by state common law, nor do I foresee a flood of litigation in the federal courts. 3
The majority’s analysis is neither borne out by the language nor the legislative *441 history of this statute. There is nothing in the legislative history of the 1991 amendments that gives me reason to believe that the word “rights” has a meaning less robust than a natural reading of the word would permit. The majority asserts that “[t]he legislative history reflects that in adding subsection (c) to the statute, Congress merely codified Runyon v. McCrary, 427 U.S. 160 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976), which held that § 1981’s contract clause applied to private entities.” Supra at 421. I find the legislative history remarkable only for the paucity of commentary on subsection (c). Of the two House Committee Reports on the Civil Rights Act of 1991, only one even mentions subsection (c) and that discussion is terse. The House Judiciary Committee authored H.R. Report No. 102-40(11), which states not only that Congress intended to codify Runyon but also that Congress intended subsection (c) “to prohibit racial discrimination in all contracts, both public and private.” H.R.Rep. No. 102-40(11), at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 731. I do not believe that Congress’s failure to discuss the application of subsection (c) to the other rights enumerated in subsection (a) may properly give rise to the narrow meaning ascribed to the word “rights” by the majority, especially in light of the broad language Congress employed in subsection (c). Congress’s failure to comment upon statutory language does not offer a reviewing court carte blanche to rewrite the statute to fit its own subjective understanding of Congress’s unstated intent. 4 Moreover, I note that the majority ignores the committee’s stated purpose in drafting the 1991 amendment: “to strengthen existing protections and remedies available under federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination.” H.R.Rep. No. 102-40(11), at 1, reprinted in 1991 U.S.C.C.A.N. at 694.
Finally, I believe that the majority’s analysis fails to account for § 1981’s constitutional legacy. Present-day civil rights statute 42 U.S.C. § 1981 is derived from § 1 of the Civfl Rights Act of 1866 (“1866 Act”), ch. 31, § 1, 14 Stat. 27 . 5 See General Bldg. Contractors Ass’n v. Penn., 458 U.S. 375, 384 , 102 S.Ct. 3141 , 73 L.Ed.2d *442 835 (1982). Congress passed the 1866 Act during the Reconstruction Era pursuant to its power under § 2 of the then recently ratified Thirteenth Amendment to the Constitution, 6 which does not require state action, “to determine what are the badges and the incidents of slavery, and ... to translate that determination into effective legislation.” Runyon, 427 U.S. at 170 , 96 S.Ct. 2586 (quoting Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968)); accord Watson v. Fraternal Order of Eagles, 915 F.2d 235, 241 (6th Cir.1990) (“Congress enacted § 1981 pursuant to the Thirteenth Amendment ... to ensure that all of the badges and incidents of slavery faded into an ignominious past.”). Section 1 of the 1866 Act was substantially reenacted 7 at § 16 of the Enforcement Act of 1870, ch. 114, § 16, 16 Stat. 140 , 144, "which was passed pursuant to the Fourteenth Amendment and applies only to state action. 8 Section 1 of the 1866 Act and § 16 of the 1870 Act were later recodified in § 1977 of the Revised Statutes of 1874 and ultimately recodified in 42 U.S.C. § 1981 . Id. at 385 , 102 S.Ct. 3141 . The 1866 Act, when first enacted, clearly applied to private conduct.
According to the Supreme Court, the scope of the 1866 Act was not altered when it was reenacted in 1870 pursuant to the Fourteenth Amendment, despite the fact that “some members of Congress supported the Fourteenth Amendment in order to eliminate doubt as to the constitutional validity of the Civil Rights Act [of 1866] as applied to the States.” Jones, 392 U.S. at 436 , 88 S.Ct. 2186 (internal quotation omitted). Moreover, the Court has rejected the idea that the adoption of the Fourteenth Amendment or the reenactment of the 1866 Act “were meant somehow to limit the statute’s application to state action.” Id.; accord General Bldg. Contractors, 458 U.S. at 387-88 , 102 S.Ct. 3141 .
The Supreme Court has repeatedly remarked upon the evidence of private discrimination that motivated the original statute’s drafters. In Jones v. Alfred H. *443 Mayer Co., the Supreme Court, in discussing why the 1866 Act was passed, noted that Congress had before it evidence of pervasive private discrimination and racial violence, as well as the fact of the southern states’ recently-enacted Black Codes:
[T]he same Congress that wanted to do away with the Black Codes also had before it an imposing body of evidence pointing to the mistreatment of Negroes by private individuals and unofficial groups, mistreatment unrelated to any hostile state legislation. ‘Accounts in newspapers North and South, Freedmen’s Bureau and other official documents, private reports and correspondence were all adduced’ to show that ‘private outrage and atrocity’ were ‘daily inflicted on freedmen.... ’ The congressional debates are replete with references to private injustices against Negroes — references to white employers who refused to pay their Negro workers, white planters who agreed among themselves not to hire freed slaves without the permission of their former masters, white citizens who assaulted Negroes or who combined to drive them out of their communities.
Jones, 392 U.S. at 427-28 , 88 S.Ct. 2186 (internal citations and footnotes omitted). The Supreme Court rejected the suggestion that the 1866 Act was passed exclusively in response to restrictive state laws, noting that “the Civil Rights Act was drafted to apply throughout the country, and its language was far broader than would have been necessary to strike down discriminatory statutes.” Id. at 426-27 , 88 S.Ct. 2186 . In Jones , the Supreme Court held that because 42 U.S.C. § 1982 , a sister statute to § 1981, was derived from § 1 of the Civil Rights Act of 1866 and the Act was passed pursuant to the Thirteenth Amendment, § 1982 must reach private acts of racial discrimination. See Jones, 392 U.S. at 436 , 88 S.Ct. 2186 (noting that “[i]n light of the concerns that led Congress to adopt it and the contents of the debates that preceded its passage, it is clear that the Act was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein....”).
Thereafter, in Runyon v. McCrary, the Supreme Court affirmed that § 1981 prohibits racial discrimination in the making and enforcement of private contracts by private actors. Runyon v. McCrary, 427 U.S. 160, 168 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976). The Court’s holding in Runyon was based upon its earlier decision in Jones . Noting that both §§ 1981 and 1982 derive from § 1 of the 1866 Act, the Court in Runyon determined that there was no reason to construe the legislative history differently for § 1981 than it had for § 1982; consequently, the Court held that the “make and enforce contracts” clause of § 1981 must apply to private as well as public contracts. See Runyon, 427 U.S. at 170-71 , 96 S.Ct. 2586 .
Reviewing the history of the 1866 Act in General Bldg. Contractors , Chief Justice Rehnquist noted:
[T]his Court has found in the legislative history of the 1866 Act evidence that Congress sought to accomplish more than the destruction of state-imposed civil disabilities and discriminatory punishments. We have held that both § 1981 and § 1982 ‘prohibit all racial discrimination, whether or not under col- or of law, with respect to the rights enumerated therein.’
General Bldg. Contractors, 458 U.S. at 387 , 102 S.Ct. 3141 (quoting Jones, 392 U.S. at 436 , 88 S.Ct. 2186 ). Indeed, the Chief Justice observed that, in passing the 1866 Act, Congress “acted to protect the [newly] freedmen from intentional discrim *444 ination by those whose object was ‘to make their former slaves dependent serfs, victims of unjust laws, and debarred from all progress and elevation by organized social prejudices.’ ” Id. at 388, 102 S.Ct. 3141 (quoting Cong. Globe, 39th Cong., 1st Sess., 1839 (1866) (Rep.Clarke)). Clearly, then, the drafters of the 1866 Act had private as well as state-inflicted discrimination in mind when they passed the Act, from which the “full and equal benefit” clause derives verbatim.
I believe that the history of § 1981, as explicated by the Supreme Court in numerous decisions, gives rise to the inescapable conclusion that the “full and equal benefit” clause, like the “make and enforce contracts” clause and the other protections offered by the statute, does not require state action. I cannot ignore, as do the majority and the concurrence, that the 1866 Act was passed pursuant to the Thirteenth Amendment and the Congress which considered the Act had before it ample evidence of private acts of racial discrimination against the newly emancipated slaves. 9
Consistent with my understanding of § 1981’s history, I believe the statute deserves a broad interpretation because it is part of a remedial statute. The majority’s reading patently violates the canon of statutory construction that commands courts to interpret remedial statutes broadly. It does so in the name of a competing canon: that of interpreting federal statutes narrowly so as not to invade upon areas of traditional state concern. As I have already demonstrated, however, the majority’s over-reliance on this principle is in error, as there is no likelihood that my reading of the statute will result in a flood of litigation in federal courts that properly belongs in state court. Because I am firmly convinced that the majority’s reasoning is faithful neither to the statute’s language nor to its deeply-rooted constitutional origins, I dissent from Part III.A of the majority’s opinion requiring state action for a cause of action under the “full and equal benefit” clause. I would reverse the district court’s grant of summary judgment to Dillard on this issue.
II. STATE ACTION
As an alternative to her § 1981 claim that Dillard denied her the “full and equal benefit” of the law, Chapman also seeks relief under 42 U.S.C. § 1983 for alleged violations of her right to be free from unreasonable searches and seizures under the Fourth Amendment and her due process rights under the Fifth Amendment. As the majority noted, a litigant bringing a claim under § 1983 must show that her rights were violated under color of state law. See 42 U.S.C. § 1983 . The majority affirmed the district court’s grant of summary judgment on this claim to Dillard. I believe that there is a genuine issue of material fact as to whether the Dillard security guard’s actions may “be fairly attributed to the state.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir.2000); Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). Therefore, I respectfully dissent from Part III.B of the majority’s opinion as well.
*445 The majority has correctly identified the legal standard for evaluating whether the acts of an off-duty police officer serving as a security guard may be deemed state action. As we have noted, “[t]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act performed ... which determines whether the officer has acted under color of law.” Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.1975) (internal quotation omitted). Thus, my analysis turns primarily on whether the officer was acting pursuant to his official duty or a police department policy. See Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980) (holding that officer who shot plaintiff while officer was off-duty acted under col- or of state law because officer’s authority to carry weapon derived from his status as police officer, conflict between officer and plaintiff arose out of officer’s official duties, and plaintiff threatened officer in officer’s official capacity); Stengel, 522 F.2d at 441 (concluding that off-duty police officer who shot and killed two men and paralyzed a third in a barroom brawl acted under color of law because mace spray used by officer was issued by police department, and officer carried his pistol and intervened in dispute pursuant to department regulations). The majority has failed, however, to examine closely the record in this case to analyze whether there is a genuine issue of material fact to support Chapman’s claim. Instead, the majority’s analysis merely asserts:
[T]he Dillard security guard who stopped and searched Chapman was an off-duty sheriffs deputy, wearing his official sheriffs department uniform, badge, and sidearm. He briefly stopped and searched Chapman, but did not arrest or threaten to arrest her, nor did he contact the sheriffs department. Under the circumstances of this case, the off-duty deputy did not act pursuant to his official duties and thus did not engage in state action.
Supra at 429.
Although in certain circumstances “it is possible to determine the question whether a person acted under color of state law as a matter of law, there may remain in some instances unanswered questions of fact regarding the proper characterization of the actions for the jury to decide.” Layne, 627 F.2d at 13 (internal citations and quotations omitted). Based on my review of the record, I am convinced that Chapman has alleged sufficient facts to establish a genuine issue as to whether the security guard’s actions satisfy the nexus test. 10 The nexus test requires a sufficiently close relationship between the state and the private actor so that the action taken by the latter may be fairly attributed to the state itself. See Wolotsky, 960 F.2d at 1335 ; see also Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 , 121 S.Ct. 924, 930 , 148 L.Ed.2d 807 (2001) (noting that a challenged activity may be state action “when it is entwined with governmental policies or when government is entwined in [its] management or control.”) (internal quotation omitted).
In this case, the Dillard security guard was obligated to obey Dillard’s policies and regulations, which are developed by the corporation, while he was on-duty at the store. J.A. at 150 (Dillard’s Rules and Procedures for Security Personnel). The state played no part in the promulgation of these policies. The policy does, however, directly implicate the state in one of its provisions. This provision, which offers the *446 store’s policy on strip-searching 11 customers suspected of shoplifting, provides: “Strip searches are prohibited. If you suspect that stolen objects are hidden on [the shopper’s] person, call the police.” J.A. at 150.
According to the deposition testimony of Angelo Malena, senior security officer at Dillard and a police officer for the city of Cleveland, a security guard working at the Dillard at issue in this case cannot strictly comply with this corporate policy because, as he observed, “I guess we got to call ourselves, because we are the police.” J.A. at 262 (Malena Test.). Malena testified that he informed Dillard’s management of the conflict in the provision, but “they said, well, this came from the corporate, so it is a generalization of Dillard’s policy throughout the country.” J.A. at 262.
As the majority correctly noted, the Dillard security guard did not represent himself as a police officer, threaten to arrest Chapman, wave his badge or weapons, or establish any contact with the sheriffs department during the incident. The incident at issue in this case does, however, include the moment when Chapman was asked by the security guard to enter a fitting room with the sales manager to inspect her clothing. According to Dillard’s official corporate policy, the security guard should have called the police at this point because he knew that the search involved the removal of Chapman’s clothing. However, as Malena noted, the security officer cannot call the police pursuant to the policy because the security guard is the police.
Although the majority states that “the security guard in this case did not perform or seek to perform his official duties as a sheriffs deputy,” supra at 429, I believe there is a genuine issue of material fact as to whether, at the moment the security guard was required to seek the assistance of the police, that is, when the guard asked Chapman to enter the fitting room with the sales manager so that Chapman’s clothes and person could be searched, the security guard became a state actor under the corporate policy. Because the majority failed to consider these facts, I believe that the majority’s analysis is flawed and that summary judgment is inappropriate. I would reverse the district court’s judgment on this issue as well.
. In his concurring opinion, Judge Suhrhein-rich states that my analysis of § 1981 must be incorrect because "[n]o one can seriously argue that an individual can subject another individual to unequal punishment or taxes” and that therefore the "like punishment” clause must require state action. Supra at 431. He argues that "[t]he only way the dissent's argument works is if one strips the language of the second and third subclauses of subsection (a) of their plain meaning.” Supra at 433. Judge Suhrheinrich’s analysis has superficial appeal because our present-day understanding of the terms ''punishment,” "pains,” "penalties,” etc., calls to mind state involvement. In our experience, it is the state that usually imposes punishment, etc. upon its citizens. Such was not the case, however, when the Act of 1866, the precursor to § 1981, was passed. At that time, Congress was especially concerned with prohibiting those incidents of private, racially motivated violence — the punishment, pains, or penalties — which were commonplace in the South. The Congress that debated the 1866 Act had before it reports that "described a pattern of private violence 'by men who announce their determination to take the law into their own hands.... ’ This violence was not random, based on mere racial animosity, but frequently was aimed at preventing the Freedmen from exercising their new rights.... ” Bany Sullivan, Historical Reconstruction, Reconstruction History, and the Proper Scope of Section 1981, 98 Yale L.J. 541 , 553 (1989) (footnote omitted). Indeed, the 1866 Act "was proposed and finally adopted against [a] background of restrictive laws, private discrimination, and violence.” Barry L. Refsin, The Lost Clauses of Section 1981: A Source of Greater Protection After Patterson v. McLean Credit Union, 138 U. Pa. L.Rev. 1209, 1217 (1990).
As my discussion, infra, of the history surrounding the passage of the 1866 Act reveals, the statute's original phrasing, which included the language "punishment, pains, and penalties,” was directed to private conduct. While later language, including the phrase "taxes, licenses, and exactions," which was added in 1870, may indeed refer primarily to state action, this would only mean that the "like punishment” clause may be invoked by either private or state action, depending on which explicit guarantee of equal treatment is implicated. Indeed, I believe the 1870 language was added to expand the protections of the "like punishment” clause, not to minimize them. In any case, I do not believe that possible ambiguity surrounding the "like punishment” clause detracts from my argument that the "full and equal benefit” clause may be invoked by public and private conduct, as it is incontestible that this language has been present in the statute since its inception.
. Several cases that have allowed "full and equal benefit” claims to go forward without state action have involved serious threats to a person’s security in the form of physical violence. See, e.g., Carey v. Rudeseal, 703 F.Supp. 929 , 930 n. 1 (N.D.Ga.1988) (noting that court had allowed "full and equal benefit” claim against private actor involved in Ku Klux Klan incident because § 1981 “provides a cause of action against private individuals for racially-motivated, intentionally-inflicted injury and does not require state action in the deprivation of rights”); Hawk v. Perillo, 642 F.Supp. 380, 386-87, 390
(N.D.Ill.1986) (construing language and history of statute to allow claim against private individual who engaged in vicious beating of plaintiffs motivated by racial animus).
. Moreover, I note that the argument that Chapman's reading of the statute would improperly federalize state tort law was once embraced by the Supreme Court in Patterson, 491 U.S. at 183 , 109 S.Ct. 2363 , as support for the Court's decision that the "make and enforce contracts” clause did not cover claims of employment discrimination involving anything more than the formation of a contract, a decision which was then legislatively overruled by Congress in the Civil Rights Act of 1991. See 42 U.S.C. § 1981 (b).
. Judge Suhrheinrich believes that "Congress did not need to explain that the equal benefit and like punishment clauses of subsection (a) do not apply to private conduct because they logically cannot." Supra at 433. I have already explained why I believe that Judge Suh-rheinrich's logic is flawed: first, there is nothing in either the language or statutory history of § 1981 that restricts the "equal benefit” clause to state action, notwithstanding Judge Suhrheinrich's claims to the contrary; and second, his analysis of the "like punishment” clause ignores the historical context from which § 1981 derives.
. Section 1 of the Civil Rights Act of 1866 provided:
[C]itizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27 . 42 U.S.C. § 1982 also derives from the Civil Rights Act of 1866 and was recodified in § 18 of the Enforcement Act of 1870, ch. 114, § 18, 16 Stat. 144 . The current statute provides that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal properly.” 42 U.S.C. § 1982 .
. The Thirteenth Amendment, which was ratified on Dec. 18, 1865, provides that "[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const, amend. XIII, § 1. Under the second section of the Amendment, Congress is granted the "power to enforce this article by appropriate legislation.” U.S. Const, amend. XIII, § 2. Less than three weeks after the passage of the Amendment, the bill that was to become the Civil Rights Act of 1866 was introduced. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 713-14 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989).
. According to the Supreme Court, "[sjection 16 differed from § 1 of the 1866 Act in at least two respects. First, where § 1 of the 1866 Act extended its guarantees to 'citizens, of every race and color,' § 16 of the 1870 Act — and § 1981 — protects 'all persons.' Second, the 1870 Act omitted language contained in the 1866 Act, and eventually codified as § 1982, guaranteeing property rights equivalent to those enjoyed by white citizens.” General Bldg. Contractors, 458 U.S. at 385-86 , 102 S.Ct. 3141 (internal citation omitted). The entire 1866 Act was also re-enacted in § 18 of the Act of 1870, ch. 114, § 18, 16 Stat. 140 . Id. at 386 n. 11, 102 S.Ct. 3141 .
.The Fourteenth Amendment was sent to the states for ratification just two months after passage of the 1866 Act, and was ratified in 1868. Many who supported passage of the Fourteenth Amendment viewed it as the con-stitutionalization of the 1866 Act. See Jett, 491 U.S. at 722 , 109 S.Ct. 2702 . The Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1.
. To appreciate fully how implausible the majority and the concurrence's reasoning is, one need only turn to the original language of the 1866 Act: on their reading, we would have to believe that the first clause, the right to "make and enforce contracts," and the fifth clause, the right to inherit, purchase, lease, sell, hold, and convey real and personal property, would apply to private conduct, while the second, third, fourth, sixth and seventh clauses would not. See supra note 5 for text of Act. I cannot believe that the Congress that enacted the 1866 Act meant to create such an interpretive labyrinth.
. I agree with the majority that Chapman has alleged no facts to support a finding of state action under the public function test. See Wolotsky, 960 F.2d at 1335 (noting that public functions traditionally reserved to the state include holding elections or power of eminent domain).
. For the purposes of explaining the relationship between the store's policy and Chapman’s claim, I must elaborate upon the majority's recitation of the facts. The majority states only that the female manager "searched Chapman’s clothing.” See supra at 419. Chapman alleges, however, and it is not disputed, that she was asked to remove her coat and her suit jacket, and to pull her blouse up over her head before the manager was satisfied that she had not stolen any merchandise. Although Dillard's policy does not define strip-searching, I believe that, because Chapman was forced to remove clothing, she was strip-searched by the Dillard’s store manager, at the direction of the security guard.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7001002. Public record. Not legal advice.