Opposition Brief — Edwards v. Acadia Realty Trust, Inc.

Coua, US.

| FILED

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No. 01-1886 OFFICH OF THE: CRERK |

IN THE

Supreme Court of the United States

HELEN EDWARDS and CHRISTOPHER EDWARDS,

Petitioners,

V.

ACADIA REALTY TRUST, INC. and WELLS FARGO

GUARD SERVICES, INC. OF FLORIDA,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

ACADIA REALTY TRUST, INC.

J. Scott Kirk,

Counsel of Record

Curista CowArRT WERDER

RUMBERGER, Kirk & CALDWELL, P.A.

201 South Orange Avenue

P. O. Box 1873

Orlando, Florida 32802-187 Pe

(407) 872-7300

Attorneys for Respondent

Acadia Reaity Trust, Inc.

. a _ COUNSEL PRESS 5 ie . i.

1

PARTIES TO THE PROCEEDING AND

- STATEMENT PURSUANT TO RULE 29.6

In addition to the parties listed by Petitioners, two

additional parties warrant mention. Searstown Mall

Association, Inc. and the City of Titusville, Florida were

defendants in the proceeding below. The claims against

Searstown Mall and the City of Titusville were settled and,

as such, the Petition does not raise any issue with respect to

those parties.

Acadia Realty Trust, Inc. is a fully integrated, self-

managed and self-administered equity REIT focused on the

ownership, acquisition, redevelopment and management of

neighborhood and community shopping centers. To the best

of our knowledge, there is no publicly-held company that

owns ten percent (10%) or more of Acadia Realty Trust, Inc.’s

stock.

il

TABLE OF CONTENTS

Page

Parties to the Proceeding and Statement Pursuant to

FS fen eee ey i

TeRae OF COORD ons 5k Oe il

Table of Cited Authorities... . «5 ..s0cesusessecs IV

pembeenent OF SEEING oes io kde Oceteaeueee ee ]

Stntennert OF Che POGNE oo. 5 saan whee dees l

Reasons for Denying the Writ .................. 6

I. The Eleventh Circuit’s Ruling Does Not

Conflict With Other Circuit Court Decisions

Of Racial Discrimination In Places Of Public

ADCOMMDOEIID 6.65. 5.6 k's ke 5 eP eos 6

Il. The Eleventh Circuit’s Ruling Did Not

Address, Let Alone Conflict, With This Court

Or Other Circuit Court Opinions Regarding

Petitioner’s Standing To Bring A Claim Under

42 TEA. © Be a ee cen Ves 10

Ill. Certiorari Should Be Denied Because The

Eleventh Circuit’s Holding Follows The

Long-Established Rulings Of This Court

Requiring Proof of A Policy And Custom .. 11

lll

Contents

IV. Certiorari Should Be Denied Because

Petitioners Failed To Adduce Evidence Of

A Policy Or Custom Of Respondent To

Discriminate On The Basis Of Race ......

V. Certiorari Should Be Denied Because The

Eleventh Circuit’s Ruling Followed Well

Established Precedent Regarding Free

Association Claims Under § 1983 ........

VI. The Eleventh Circuit’s Ruling Does Not

Conflict With This Court’s Decisions

Regarding Equal Protection Claims .......

8

Page

14

20

22

23

iv

TABLE OFCITED AUTHORITIES

Page

Cases:

Adderley v. Florida, 385 U.S. 39 (1966) ......... 15

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ... 14-15

Adler v. Columbia Historical Society, 690 F. Supp. 9

ok oe ere ee rere rere eee 10

Ansley v. Heinrich, 925 F.2d 1339 (11th Cir. 1991)

PE ee Te Le eA ee ae hae ee ee 12-13

Bray v. RHT, Inc., 748 F. Supp. 3 (D.D.C. 1990) .. 7

Brown v. American Honda Motor Co., Inc., 939 F.2d

POL Gee Oa EEE. 6 dp eeckvexereeaeeees 6, 7,8

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989)

PEC ee ee Re ne Me ee or 20

Cummings v. DeKalb County, 24 F.3d 1349 (11th Cir.

FE sede ek eEs RRMA NASA ERO eee 20

DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d

Cae Sees 6445s eee eee eer ee ree 10

E & T Realty v. Strickland, 830 F.2d 1107 (11th Cir.

SEE cb ek eas Cee ees ee eae eee anaes 22

Faraca v. Clements, 506 F.2d 956 (Sth Cir. 1975) ... 10

Vv

Cited Authorities

Page

General Building Contractors Association v.

Pennsylvania, 458 U.S. 375 (1982) ........... 6

Gold v. City of Miami, 151 F.3d 1346 (11th Cir. 1998)

ie Ka Peale eke ee ERS Eee we kee eee 20

Gordon v. City of Cartersville, 522 F. Supp. 753

CPEs We POSE 4s cbne wr iea Geieee eee 10

Greer v. Spock, 424 U.S. 828 (1972) ............ 15

Harvey v. Harvey, 949 F. 2d 1127 (11th Cir. 1992) .

EE TEE TP er ee ee a eng oe 12, 14, 16, 17-18

Henson vy. City of Dundee, 682 F.2d 897 (11th Cir.

hs rm MAS recite pe ee Ar. 2 7

Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999

SERGE e SORTD 505 konse eee eee ee 11

Jackson v. Tyler's Dad’s Place, Inc., 850 F. Supp.

PO PRN ee SD Ci. da beset eee 7

Jones v. Winn-Dixie Stores, Inc., 75 F. Supp.2d 1357

Ca Ws Se 6 coer eae a eee 7

Laroche v. Denny’, Inc., 62 F. Supp.2d 1366 (S.D.

Fe AON onc aetinhia eels ene 8

Little v. City of North Miami, 805 F.2d 962 (11th

Ce BOOP 040 o6a3 exe dese yee 14,15

vi

Cited Authorities

Page

Little v. United Technologies, 103 F.3d 956 (11th Cir.

OPTS asave sks cunguns eye eee peas 10, 11

Local No. 48, United Bhd. of Carpenters & Joiners

v. United Bhd. of Carpenters & Joiners, 920 F.2d

FOG? Clee Ce: PPO bs cea esnd enema scoala 8

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)

Pee re ey to 15, 16

Mann vy. Hillsborough County Sheriff s Office, 946

F. Supp. 962 (M.D. Fla. 1996) ............... 18

McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994)

basey se eel SEES eee ee ee 20

Monell v. Department of Social Services of City of

New York, 436 U.S. 658 (1978) .............. 1]

NBC v. Communication Workers of America, AFL-

CIO, 860 F.2d 1022 (11th Cir. 1988) .......... 16

Riccobono v. Whitpain, 497 F. Supp. 1364 (E.D. Pa.

rr er rrr ren es 10

Richardson v. McKnight, 521 U.S. 399 (1997) ... 12, 13, 14

Rodriguez v. Lamer, 60 F.3d 745 (11th Cir. 1995) ... = 22

Sanders v. Sears Roebuck & Co., 984 F.2d 972 (8th

a BED 5 < ka ounce EN pees eee eee 12

Bole WILE LAEE A Aiea”

Vil

Cited Authorities

Page

Scutieri v. Estate of Philip Revitz, 683 F. Supp. 795

See: WU OU As web a vas vucath ceose cece 12

Smith v. Dallas County Board of Education, 480

F. Supp. 1324 (S.D. Ala. 1979) .............. 6

Southwest Community Resources, Inc., et. al. v.

Simon Property Group, LP, et. al., 108 F. Supp.2d

ESOP CPA, HEORIOO DOO) oc cess cccccscncess 17

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

SRN Wa uA eus ead eek chk sae ennr ene 10

White v. Denney, Inc., 918 F. Supp. 1418 (D.Colo.

| OR ee red OP re ern ane pone 7

United States Constitution:

PU a ee 15, 21

Fourteenth Amendment ....................... 15, 22

Statutes:

ae WANs eS esi veo ba bee eeaaeens 1, 6, 7, 10, 11

pit tee S| ere 1, 11, 12, 14, 15, 16, 18, 20, 22

l

STATEMENT OF THE CASE

This Petition was filed in an attempt by Petitioners to

radically alter the present, long-standing precedent underl ying

42 U.S.C. §§ 1981 and 1983 claims in an effort to elevate

the rights of non-minorities over minorities who suffer direct

discrimination. Petitioners argue that a “good faith belief”

of racial discrimination, rather than proof of intentional

discrimination, is the only proof that should be required to

prevail on the merits of a § 1981 claim. Further, Petitioners

seek to have this Court eliminate the requirement of

establishing a policy and custom of discrimination by private

employers in a § 1983 claim.

Neither the Eleventh Circuit’s ruling, nor the record

below, support such a radical change in the law. The ruling

is not in conflict with this Court’s opinions or the opinions

of other Circuit Courts in addressing racial discrimination

claims under §§ 1981 and 1983. As such, the Petition should

be denied.

STATEMENT OF THE FACTS

Searstown Mall is a shopping center located in Titusville,

Florida. It is privately owned and operated currently by an

entity known as Searstown Mall Association, and formerly

by a separate entity known as Acadia. (R4-114-12, 22-23).

At all times material, Wells Fargo, a private security company

was hired to provide security guard services at the Mall.

(R4-114-47). Wells Fargo and all security guards employed

therein, were not employees of Acadia but were merely

independent contractors. The security guards were directed

to patrol the Mali and to enforce the posted rules of the Mall.

(R4-114-47). One of the security guards employed by Wells

2

Fargo and assigned to work at the Mall was Andrew

Bankowski. (R4-116-35). The Mall manager at all times

relevant was Ms. Deborah Hardy. Ms. Hardy has successfully

been employed by Acadia Realty and Searstown Mall

Association. (R4-114-12.26).

The State of Florida leased space at the Mall and

established an employment office. (R5-141). The Mall had

no special relationship with the employment office that

was different than any other tenant at the Mall. (R5-141).

The security officers at the Mall had no special relationship

with the employment office that was different than any other

tenant of the Mall. (R4-116).

On November 20, 1998, Helen and Christopher Edwards

visited the Mall with their two sons and a friend of their

sons. (R4-108-32). On that night, Mr. Bankowski was

providing security guard services at the Mall. (R4-116-6).

While the boys saw a movie, Mr. and Mrs. Edwards ate dinner

at a Mall restaurant. (R4-111-41) During their dinner, they

had occasion to observe a group of young black girls eating

in the restaurant. Petitioners described the girls as well-

behaved. These children were not accompanied by an adult.

After dinner, Petitioners browsed the Mall and then

proceeded to sit on a bench near the movie theater to wait

for their sons to exit. (R4-111-43-44). While waiting on a

bench inside the Mall for their sons to exit the movie theatre,

they observed unaccompanied minors being disruptive in the

Mall. (R4-112). A group of Caucasian minors asked the

Petitioners for some change, which was a violation of Mall

policy. (R4-112). Petitioners did not make any complaint

about the behavior of the group of Caucasian children.

(R4-112). Petitioners did not observe a security guard

pA CNY Bid He ket i eR ure Deb WS

3

approach the white children and admitted that the security

guard may have escorted these children out of the Mall that

evening, but may not have witnessed it. (R4-111-112).

Later, Petitioners observed Mr. Bankowski and another

Wells Fargo security guard interacting with a group of young

black girls (R4-111-53, 54). As the guards approached the

girls, one of the guards asked the girls “what their business

was” in an authoritative voice. (R4-111-55, 56). The girls

told the guards that they were waiting inside for their parents

to pick them up. (R4-11-56). According to Petitioners,

Mr. Bankowski replied that he did not care and that the girls

needed to get their “black asses out of there.” (R4-111-56;

R4-112-151). The girls then left the Mall. (R4-11 1-57).

Thereafter, Petitioners sat on the bench for about ten to

fifteen minutes to wait for their sons. (R4-111-76,77). During

this time, Petitioners had an opportunity observe the security

guards approach another group of children, this time an

unaccompanied group of black boys. (R4-111-46). Again, the

guards asked the boys what they were doing with a reply

that they were there to see a movie. (R4-111-47). The guards

told them that they “needed to get there.” (R4-111-47).

At that time, Mrs. Edwards did not feel that the boys were

treated unfairly. (R4-111-48). Mr. Bankowski explained that

it was better from a security standpoint for the children to be

in well-lighted areas outside where the security guards can

keep an eye on them. (R4-116-23). Additionally, parents

picking their children up do not want to have to go inside

the Mall to pick up their children. (R4-116-23, 24).

Helen Edwards assumed that Mr. Bankowski was forcing

the girls to leave the Mall because the girls were black.

(R4-111-55, 56). As such, while Mr. Bankowski was in the

aie

4

process of escorting the young black girls from the Mall, a

verbal confrontation ensued between Mrs. Edwards and

Mr. Bankowski (R4-111-63, 64; R4-116-7-11). Mrs. Edwards

asked if there was a problem with the black girls and when

Mr. Bankowski tried to explain, she would not listen.

(R4-111-64, 66). Mrs. Edwards acknowledged that she did

not give him a chance to explain his actions. (R4-111-66).

As aresult of this confrontation, Mr. Bankowski telephoned

the Titusville Police Department, requesting the issuance of

a trespass warning against an adult couple sitting on the

benches inside near the movie theatres. (R4-116-6, 12; R).

In response to Mr. Bankowsk1’s call, Titusville police officers

were dispatched to the Mall. The Titusville police officers

were met by Mr. Bankowski upon their arrival and were

told to issue trespass warnings against Mrs. Edwards

who was in the process of exiting the Mall. (R4-116-14).

Upon questioning as to the issuance of the trespass warning,

Mr. Bankowski informed the Titusville police officers that

_Mrs. Edwards had been interfering with his duties as a

security guard by yelling at him. (R4-116-14, 15).

The police officers then performed their own

investigation by speaking with Petitioners. After doing so,

a trespass warning was issued to Mrs. Edwards, not

Mr. Edwards. This trespass warning was maintained on the

Mall premises by Debra Hardy. (R4-114-51, 52, 79).

Mrs. Hardy was not present when Mr. Bankowski contacted

the Titusville police officers nor during the confrontation

between Mr. Bankowski and the Petitioners. (R4-114).

Mrs. Hardy admits she was not in a position to know

what happened between Mr. Bankowski and the Petitioners

resulting in the issuance of the trespass warning. (R4-114).

Mrs. Hardy’s only knowledge of the incident was from the

5

written trespass warning which stated that Mrs. Edwards were

trespassed from the Mall based on a verbal confrontation

with a Wells Fargo security guard, Mr. Bankowski. (R4-114-

21). As such, Mrs. Hardy believed that Mr. Bankowski had

the legal right to exclude her from the Mall for interfering

with his duties as a security officer. (R4-114-21). After the

trespass warning was issued to Mrs. Edwards, the Petitioners

requested that Mall management rescind the trespass warning

so that they could be allowed to enter the Mall. (R4-114-10,

20-21). The Mall granted the Edwards’ request and the

trespass warning was rescinded. (R4-114-7).

Pursuant to the Titusville police department’s practice,

a police officer has the discretion to refuse to document a

trespass warning if the police officer believes that the request

has an unlawful basis. If there are any questions regarding

the appropriate action to take, the police officer is supposed

to contact supervisory personnel. The officers did not believe

that Mr. Bankowski had an unlawful basis for requesting that

Mrs. Edwards be given a trespass warning, and, therefore

did not contact supervisory personnel. (R4-118-7).

Mrs. Edwards testified that neither she nor her family

had any other encounter with the Mall security before

November 20, 1998 except on one occasion following

the incident. (R4-112-189, 193-195). According to

Mrs. Edwards, her sons and nephew were walking through

the Mall when security approached the unaccompanied

children and told them to get back with their parents.

(R4-112-193-195). Mrs. Edwards testified that she did not

believe the guards knew her sons or that they were motivated

by skin color on this occasion. (R4-112-193-195).

6

Respondent does not have a policy, practice, or custom

of discriminating against minorities in places of public

accommodation or elsewhere. Likewise, Respondent does not

have a policy, practice, or custom or discriminating against

non-minorities who accompany or speak out in opposition

to discrimination against minorities. (R4-112-223). Rather,

the Mall policy was that all children needed to be

accompanied by an adult and, if not, would be escorted from

the Mall.

REASONS FOR DENYING THE WRIT

I. The Eleventh Circuit’s Ruling Does Not Conflict

With Other Circuit Court Decisions Of Racial

Discrimination In Places Of Public Accommodation

It is apparent that Petitioners want this Court to grant

certiorari because they believe that their own perception

that several black children were being treated differently than

white children is sufficient to establish a claim under § 1981.

This argument is clearly erroneous.

Section 1981 prohibits purposeful discrimination on the

basis of race. General Building Contractors Association v.

Pennsylvania, 458 U.S. 375, 391 (1982). To recover, a

claimant must show that (1) they are members of a racial

minority; (2) the defendant intentionally discriminated on

the basis of race; and (3) the discrimination concerned a

right enumerated in the statute. Jd. Intentional race-based

discrimination is essential to recovery under § 1981.

Brown v. American Honda Motor Company, Inc., 939 F.2d

946 (11th Cir. 1991); Smith v. Dallas County Board of

Education, 480 F. Supp. 1324 (S.D. Ala. 1979). Mere

speculation, “belief’ or presumptions is not sufficient to

5

establish direct evidence of discrimination. Jones v. Winn-

Dixie Stores, Inc., 75 F. Supp. 2d 1357, 1362 (S.D. Fla. 1999).

In fact, the Eleventh Circuit has recognized that “the mere

utterance of an ethnic or racial epithet which engenders

offensive feelings” does not in and of itself prove intentional

discrimination as required under § 1981. See Henson v. City

of Dundee, 682 F.2d 897 (11th Cir. 1982).

The long-standing precedent of racial discrimination

claims in places of accommodation, including claims of

retaliation, demonstrate the need of establishing intentional

discrimination under § 1981. See Jackson v. Tyler’s Dad's

Place, Inc., 850 F. Supp. 53, 55 (D.D.C. 1994) (citing Bray

v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990) (wherein

summary judgment was granted in favor of a restaurant

because plaintiffs failed to allege any facts supporting their

charge that they were denied seating in the main dining room

because of their race); See also White y. Denney’, Inc.,

918 F. Supp. 1418, 1423-1424 (D. Colo. 1996) (wherein the

court granted summary judgment against four African-

American women because of their complete failure to show

that they were treated differently than other similarly situated

people in the restaurant).

Although Respondent would agree with Petitioners that

§ 1981 claims apply the same prima facie standards as those

claims brought pursuant to Title VII, Respondent disagrees

that a party must prove only a “good faith belief” that the

alleged discrimination existed under § 1981. Sucha premise

completely disregards established law that requires proof of

intentional discrimination under § 1981. Brown v. American

Honda Motor Co., Inc., 939 F.2d 946, 949 (11th Cir. 1991).

Rather, to establish a prima facie case under § 1981, outside

of the employment context, a claimant must prove each of

the following elements:

8

(1) That they are members of a protected class;

(2) That they attempted to afford themselves the

full benefits and enjoyment of a public

accommodation;

(3) That they were denied those benefits and

enjoyment; and

(4) That similarly situated persons who are not

members of the protected class received the

full benefits or enjoyment or were treated

better.

Laroche v. Denny's, Inc., 62 F. Supp.2d 1366, 1370

(S.D. Fla. 1999). Once the prima facie case is established,

the burden shifts to the defendant to come forward with

evidence of a legitimate, nondiscriminatory reason for its

conduct. Brown v. American Honda Motor Co., Inc., 939 F.2d

946, 949 (11th Cir. 1991).

Based upon the undisputed material facts presented in

the instant case, the Eleventh Circuit was correct in affirming

the order of the District Court. Most importantly, there is no

evidence that Petitioners were trespassed from the Mall based

upon any discriminatory motive on the part of Respondent.

Petitioners merely speculated that they were trespassed

because of their opposition to what they perceived to be race-

based discrimination. The law is clear, however, that

suspicion, perception, opinion and belief cannot be used to

defeat a motion for summary judgment. Local No. 48, United

Bhd. of Carpenters & Joiners v. United Bhd. of Carpenters

& Joiners, 920 F.2d 1047 (1st Cir. 1990).

OETA NT BR NERS LARA NEO OE BE

9

Likewise, Petitioners failed to prove that similarly

situated white individuals in the Mall were treated more

favorably. Petitioners attempt to do so by claiming that other

white children in the Mall were treated differently than the

black girls. The sum of Petitioners’ evidence presented on

this point is that the white children were misbehaving and

they did not witness any white children being ejected by mall

security. Despite this, Mrs. Edwards admitted that they didn’t

observe the security guards except during the 10 - 15 minutes

that they sat on the bench, nor do they know if other white

children were confronted or escorted out of the Mall by

security at any other point in the evening. As such, the

Eleventh Circuit was correct in its analysis that the Petitioners

cannot seek greater protection under the laws than those of

minorities themselves. |

Even if Petitioners were to establish a genuine issue of

material fact on their prima facie case, their claims still fail

as Respondent demonstrated legitimate, non-discriminatory

reasons for Mr. Bankowski’s actions of escorting the children

from the mall. Mr. Bankowski testified that it was his practice

to escort children out of the mall on weekends, not because

of race, but for the safety and security of the people. Given

that Petitioners failed to produce even a scintilla of evidence

to dispute these reasons, summary judgment in favor of

Respondent was warranted.

10

II. The Eleventh Circuit’s Ruling Did Not Address, Let

Alone Conflict, With This Court Or Other Circuit

Court Opinions Regarding Petitioner’s Standing To

Bring A Claim Under 42 U.S.C. § 1981

Nothing in the record below supports Petitioners’

assertion that the Eleventh Circuit relied upon Little v. United

Technologies, 103 F.3d 956 (11th Cir. 1997) in reaching its

decision. Rather, the Eleventh Circuit’s order clearly states

that it relied upon argument counsel and the orders of the

District Court in reaching its opinion. The record actually

reveals that although Respondents argued Petitioners lacked

standing to bring their claims, the District Court disagreed,

concluding Petitioners had standing to bring their claim of

retaliation for opposing racial discrimination based upon the

long-established holdings of this Court and of other Circuits

that addressed the issue, citing to Gordon v. City of

Cartersville, 522 F. Supp. 753, 756 (N.D. Ga. 1981); Sullivan

v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969)

(non-minority had standing to bring claim against subdivision

thai expelled non-minority for advocating the nght of a black

to lease the non-minority’s house); Faraca v. Clements, 506

F.2d 956 (Sth Cir. 1975) (non-minority had standing to bring

suit when non-minority was refused employment because

non-minority was marred to a black person); DeMatteis v.

Eastman Kodak Co., 511 F.2d 306 (2d Cir. 1975) (non-

minority had standing to bring action against former employer

who terminated him for selling non-minority’s home to

black); Adler v. Columbia Historical Society, 690 F. Supp. 9

(D.D.C. 1988); Riccobono v. Whitpain, 497 F. Supp. 1364

(E.D. Pa. 1980).

Further, the Eleventh Circuit’s opinion in Little v. United

Technologies, 103 F.3d 956 (11th Cir. 1997) should not be

)

NB PLANT AR a NB GREE a isso shee St oso Sope WEE geese ittsesd

se RES

1]

used as a basis for granting the petition as it is limited to the

facts and circumstances of that case. Little Clearly stands for

the proposition that retaliation claims brought pursuant to

Title VII and § 1981 are different. Respondent further

acknowledges that Little can be read to prohibit suits under

§ 1981 where the retaliation alleged is not based on the race

of the complainant. However, prior to the discussion of the

validity of Plaintiff’s § 1981 claim in Little, the Eleventh

Circuit analyzed at length Plaintiff’s failure to show that he

had engaged in statutorily protected conduct that would give

rise to a retaliation claim under Title VII. Therefore, Little

does not stand for the proposition asserted by Petitioners that

a white claimant alleging retaliation for opposing

discrimination never has standing to bring a claim under

§ 1981. In fact, in the same year Little was decided, the

Eleventh Circuit again addressed the issue and recognized

the ability of white claimants to bring claims of retaliation

for discrimination under § 1981. See Jackson v. Motel 6

Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997) (where

white employees allegedly were retaliated against for

complaining of discrimination against black employees,

white plaintiffs had standing to proceed under § 1981).

Thus, the petition should be denied on those grounds.

IlI. Certiorari Should Be Denied Because The Eleventh

Circuit’s Holding Follows The Long-Established

Rulings Of This Court Requiring Proof of A Policy

And Custom

This Court has placed strict limitations on municipal

liability under § 1983. See Monell v. Department of Social

Services of City of New York, 436 U.S. 658, 691 (1978).

The Eleventh Circuit, following this Court’s long-established

precedent in this regard, has held that a defendant cannot be

12

liable under § 1983 on a respondeat superior or vicarious

liability basis. Harvey v. Harvey, 949 F.2d 1127, 1129 (11th

Cir. 1992). Other Circuits have followed suit, including the

Eighth Circuit in Sanders v. Sears Roebuck & Co., 984 F.2d

972 (8th Cir. 1992) (wherein the court held that Sears could

not be held liable under § 1983 on a respondeat superior

theory even though the security guard was employed by

Sears). Id.; See also Scutieri v. Estate of Philip Revitz, 683

F. Supp. 795 (S.D. Fla. 1988) (holding that as a matter of

law, a private corporation cannot be liable strictly on the basis

of respondeat superior theory under § 1983).

Despite the well-established precedent, not only in the

Eleventh Circuit, but in most other Circuits, the Petitioners

argue for the reversal of existing law (i.e., private corporate

liability under respondeat superior) based on this Court’s

holding in Richardson v. McKnight, 521 U.S. 399 (1997).

In Richardson, this Court merely decided the very narrow

issue of whether employees of a private prison management

firm are entitled to a qualified immunity from suit by

prisoners charging a violation of 42 U.S.C. § 1983. However,

this Court stated that the holding of Richardson was limited

to the context in which a “private firm, systematically

organized to assume a major, lengthy administrative task

(managing an institution) with limited direct supervision by

the government, undertakes that task for profit and potentially

in competition with other firms.” Richardson 521 U.S. at

412. Thus, the focus of this Court was strictly related to the

issue of quality immunity, not liability. Jd.

First and foremost, qualified immunity generally

provides government officials with a shield from suit to avoid

the expense and disruption of going to trial and is not a

liability issue. See Ansley v. Heinrich, 925 F.2d 1339, 1345

13

(11th Cir. 1991). The respondeat superior and/or vicarious

liability doctrine, on the other hand, is a question of liability

and the mechanisms of holding a corporation liable for the

acts of its agent and/or employee. Thus, it addresses the merits

of a cause of action, not the entitlement to bring suit. These

distinct differences were not addressed by this Court in

Richardson and as such, the doctrines as set forth therein are

not applicable in the instant case.

Moreover, the concerns in Richardson do not appear to

be particularly relevant in the instant case. In Richardson,

the private entity faced competitive pressures from other

firms which would cause it to make sure that its guards were

acting appropriately. Richardson, 521 U.S. 399 (1997).

In other words, the employees who allegedly violated rights

were performing tasks pursuant to the entity’s fulfillment of

an administrative task as a contractor with the state. In this

case, however, we are dealing with a privately-owned Mall

and the issuance of trespass warnings for behavior which

interfered with private security guard duties. There is no

contract with the state to perform any types of tasks nor to

perform any functions which are traditionally those of the

state (i.e., management of prisons). Here, Respondent is not

competing with any other firm for government contracts.

In other words, Respondent does not have the same

competitive pressures that were identified in Richardson

because (1) it is not competing for government contracts,

and (2) the individual Defendants were performing tasks

incidental to the entity’s main purpose of providing services

to customers in the form of retail stores for shopping.

Therefore, the different factual posture of the instant case

from Richardson leads to the conclusion that the need for a

change and/or reversal of existing precedent as it relates to

the respondeat superior doctrine in this context is not

14

warranted. Thus, because the policy concerns which

prompted this Court in Richardson to preclude qualified

immunity for private parties performing traditional functions

of the state, are not applicable to the unique factual

circumstances presented by this case, the petition should not

be granted.

IV. Certiorari Should Be Denied Because Petitioners

Failed To Adduce Evidence Of A Policy Or Custom

Of Respondent To Discriminate On The Basis Of Race

Petitioners purport to allege that Respondent violated

their right of free speech as guaranteed by the United States

Constitution. They assert these violations in accordance with

the 42 U.S.C. § 1983 which provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State, or Territory or the District of Columbia,

subjects or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity or other

proper proceeding for redress.

42 U.S.C. § 1983. To recover under § 1983, a plaintiff must

establish that a defendant’s act or omission, done under color

of state law, deprived the plaintiff of a right, privilege,

or immunity protected by the Constitution or the laws of the

United States. See Harvey v. Harvey, 949 F.2d 1127, 1130

(11th Cir. 1992); Little v. City of North Miami, 805 F.2d 962,

965 (11th Cir. 1986) (citation omitted); see also Adickes v.

15

S.H. Kress & Co., 398 U.S. 144, 150 (1970). Section 1983

does not create substantive rights; it instead provides

remedies for denial of rights protected by the Constitution

or other federal law. Little, 805 F.2d at 965 (citation omitted).

The First Amendment provides individuals with the right

of free speech. However, “the guarantees of the First

Amendment have never meant that people who want to

[protest] have a constitutional right to do so whenever,

however and wherever they please.” Greer v. Spock, 424 US.

828, 836 (1972) (quoting Adderley v. Florida, 385 U.S. 39,

48 (1966)). The degree of protection guaranteed by the First

Amendment varies depending on the form in which the

speech occurs. Absent special circumstances, which are not

present in the instant case, the First Amendment does not

provide for the right of free speech on privately owned

property such as the Searstown Mall.

As Respondent argued below, Petitioners do not even

make it to the policy and custom element of a § 1983 claim

because Respondent is not a state actor subject to § 1983

liability. This Court discussed the “state action” pre-requisite

of the Fourteenth Amendment in relation to the “under color

of state law” element of § 1983 in Lugar v. Edmondson

Oil Co., 457 U.S. 922, 924 (1982) and set forth a two-

part test for deciding whether conduct allegedly denying a

plaintiff a federal right is “state action.” Jd. at 937. First,

“the deprivation must be caused by the exercise of some right

or privilege created by the State or by a rule of conduct

imposed by the State or by a person from whom the State is

responsible.” Jd. Second, the party denying the right must

be “a person who may fairly be said to be a state actor.” Jd.

This second element may be satisfied by finding that the party

is a state official, acted in concert with state officials, or

16

because his conduct is otherwise chargeable to the state. /d.

Accordingly, the concepts of “state action” and “color of state

law” combine when one accused of denying a federal right

is one whose official character is such as to lend the weight

of the state to his decision. Jd. However, the concepts remain

distinct when a private party is accused. /d.

The Eleventh Circuit has held that a private party rarely

may be considered a “state actor” for purposes of § 1983.

Harvey v. Harvey, 949 F. 2d 1127, 1130 (11th Cir. 1992).

In determining whether a private person’s or entities’ actions

amount to state action, the Eleventh Circuit has recognized

three separate tests: 1) the public function test; 2) the state

compulsion test: and 3) the nexus/joint action test. NBC v.

Communication Workers of America, AFL-CIO, 860 F.2d

1022, 1026 (11th Cir. 1988).

A private party is deemed to be a state actor under the

public function test only if it exercised powers traditionally

exclusively reserved to the state. Jd. at 1026. This has been

interpreted narrowly, generally applying only to functions

like holding elections and exercising eminent domain. In fact,

it has been held that even where a private party has powers

co-extensive with the state, there can be no staie action

unless private actors are given powers traditionally the

exclusive prerogative of the State. Harvey, 949 F.2d at 1131.

Few activities are reserved to the state and Petitioners have

failed to cite any authority for the premise that they have a

constitutional right to be free from a trespass warning.

Applying these principles to the case at hand,

Respondent’s conduct did not amount to state action under

the public function test. The Petitioners contend that the

exclusive state function that has been delegated in this case

17

is the control over access to the State of Florida

Unemployment Benefits Office located within the Mall and/

or the security guards alleged authority to guard this

governmental office. This argument fails, “because

controlling access to public facilities leased by the

government is simply not a function that has been

traditionally exclusively reserved to the state.” See Southwest

Community Resources, Inc., et. al. v. Simon Property Group,

LP, et. al., 108 F. Supp. 2d 1239 (D.C. Mexico 2000).

Likewise, Plaintiffs’ argument fails in that the Mall is

not a public forum. Private property does not lose its private

character merely because the public is generally invited to

use it or merely because governmental offices happen to be

located therein. Southwest Community, 108 F. Supp. 2d at

1255. It is clear that private property cannot become a public

forum unless the private owner specifically intends to

designate it as such. Jd. at 1256. “Plaintiffs argument

ultimately fails because the nature of the mall’s invitation to

the public is only to do business with the mall’s tenants

(including the government facilities) not to engage in any

expressive activities.” Jd. Such an invitation would be

insufficient to create a designated public forum.” Jd. Based

on the foregoing, Petitioners cannot demonstrate state action

on the part of Respondent under the public forum test merely

because a government unemployment office is located within

the Mall.

The evidence in the record also clearly demonstrates that

Respondent is not a state actor under the nexus/joint action

test because the Petitioners failed to prove that the

government has “so far insinuated itself into a position of

interdependence with the private party that it was a joint

participant in the enterprise.” Harvey v. Harvey, 949 F.2d at

18

1130. Petitioners purport to claim that this test is met because

of alleged contact between Respondent and the City of

Titusville in the issuance of trespass warnings. This evidence

is clearly not sufficient to establish a conspiracy or joint

action under the color of law. See Mann yv. Hillsborough

County Sheriff's Office, 946 F. Supp. 962, 968 (M.D. Fla.

1996) (although police presence during the entering of

plaintiff’s home without her presence and permission and

preventing plaintiff from access to her home may constitute

wrongs, it does not rise to the level of a conspiracy or joint

action necessary to show color state law required under

§ 1983).

Likewise, the undisputed facts in the instant case do not

rise to the level of state action on the part of Respondent

under the nexus/joint test. In fact, Mrs. Edwards admitted in

her deposition that no one from the Mall was present on the

night of the incident. Further, there is no evidence to support

that any one from Respondent was even aware of the situation

or the issuance of the trespass warning on the evening in

question. Mrs. Edwards testified that she was unaware of

any facts to support her contention that the Mall knew what

the security guard was doing. (R4-111-211-212). Further, the

record reveals that other than mere assumptions that the

police were contacted by the security guard, the Petitioners

have failed to come forth with any evidence to establish

contact between the-Mall and the City of Titusville Police

Department. (R4-112-220).

Despite the fact that the record clearly reveals that the

Respondent is not a state actor, the Petitioners also failed to

demonstrate a policy or custom of Respondent to discriminate

on the basis of race. Respondent did not have any official

policies or procedures evidencing racially discriminatory

Sea ate a

19

intent on its part in the issuance of trespass warnings.

Mrs. Edwards admitted during her deposition that she had

no personal knowledge or information regarding Mall

policies about race. (R4-112-223). Moreover, Mrs. Edwards

admitted that on numerous previous occasions at the Mall,

she was never subjected to any racially discriminatory policy

or practice of the Mall. (R4-112-223).

Mrs. Hardy also indicated that she was unaware of any

prior complaints of discrimination at the Mall. (R4-114-57).

Likewise, Petitioners failed to adduce any evidence

that Mr. Bankowski was a policy-making employee of

Respondent. Petitioners attempt to circumvent this proof

merely by conclusory statements-that Mr. Bankowski was an

“agent” of Respondent. Even assuming this to be true, this

alone does not prove that Mr. Bankowski was a policy-

making employee. Petitioners offered no evidence that

Mr. Bankowski created Mall policy, rules, regulation or

otherwise. Rather, Petitioners simply asserted through

conclusory statements that he implemented what was

perceived to be discriminatory issuance of a trespass warning.

In the same vein, Petitioners also failed to establish

that Mrs. Hardy was a policy-making employee. Although

admittedly she was the manager of the Mall running the

day-to-day activities, Petitioners did not prove that she was

the individual responsible for setting policies regarding the

issuance of the-trespass warnings. In fact, when questioned

about rescinding it, Mrs. Hardy informed that she would have

to contact her superiors regarding this policy. Without more,

there were insufficient facts to preclude the entry of summary

judgment.

r

20

Petitioners purport to prove a policy or custom based

upon a single incident by relying upon this Court’s opinion

in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).

However, the Eleventh Circuit in Gold v. City of Miami,

151 F.3d 1346 (11th Cir. 1998) recognized the narrowness

in which a single incident meets the policy or custom test:

To establish a deliberate or conscious choice or

such deliberate indifference, a plaintiff must

present some evidence that the municipality knew

of a need to train and/or supervise in a particular

area and the municipality made a deliberate choice

not to take any action.

Id. at 1349. Thus, without notice of a need to train, a

municipality is not liable as a matter of law for any failure to

train and supervise. Based on the foregoing, Petitioners

simply failed to adduce any evidence of a need to train or of

any policy or custom to discriminate, and therefore the

petition should be denied.

V. Certiorari Should Be Denied Because The Eleventh

Circuit’s Ruling Followed Well Established Precedent

Regarding Free Association Claims Under § 1983

As the District Court noted and the Eleventh Circuit

affirmed, there are only two forms of association which are

protected under the United States Constitution: “intimate

association” and “expressive association”. Cummings v.

DeKalb County, 24 F.3d 1349, 1354 (11th Cir. 1994)

(citations omitted). The right of intimate association

encompasses the personal relationships that attend

the creation of a family. McCabe v. Sharrett, 12 F.3d 1558

(11th Cir. 1994). Expressive association, on the other hand,

ie RAR anlnetad are

21

is protected by the First Amendment where the purpose of

the association is to engage in activities independently

protected by the First Amendment. Jd.

The only mention of any association in the Third

Amended Complaint is in paragraph 41, which reads:

“At all times relevant, all Defendants acted toward Plaintiffs

because of the Defendants’ association of Plaintiffs with

people of color.” The First Amendment does not provide a

constitutional right to associate with people of color per se.

Instead, the association with people of color is protected only

if it falls within the definition of intimate association or

expressive association. Contrary to the assertions made by

Petitioners, they did not allege in their Third Amended

Complaint that they had a familial relationship with the black

girls or that they were associating with the black girls

for any purpose independently protected by the First

Amendment. Petitioners’ assertion that it was unnecessary

to allege that they even made contact with the black children

completely defies clearly established law requiring

“association” for a violation.

Petitioners attempt to rescue their free association claim

by pleading association with each other still falls short of

asserting a recognizable free association claim. In this regard,

Petitioners state that Mr. Edwards was banished from the

mall solely because of his intimate association with

his wife, who voiced her opposition to discrimination;

and, Respondent associated Mr. Edwards with his wife.

This clearly does not satisfy the requirements of intimate

association as there is simply no allegation that Petitioners

were retaliated against because they chose to enter into and

maintain the intimate human relationship of marriage.

Moreover, there is no allegation that Petitioners were

22

associated with each other for purposes giving rise to

expressive association protections. Accordingly, the Eleventh

Circuit’s ruling in affirming the dismissal of Petitioners’

freedom of association claims was proper.

VI. The Eleventh Circuit’s Ruling Does Not Conflict With

This Court’s Decisions Regarding Equal Protection

Claims

In Count III of their Third Amended Complaint,

Petitioners claimed race-based denial of public

accommodation, in violation of the Equal Protection Clause

of the Fourteenth Amendment to the United States

Constitution brought under 42 U.S.C. § 1983. To determine

whether a party has violated the rights afforded persons under

the Equal Protection Clause of the Fourteenth Amendment,

it is necessary to demonstrate intentional racial discrimination

in addition to proof that the victim is being treated differently

on the basis of race than those persons who are similarly

situated. Rodriguez v. Lamer, 60 F.3d 745, 749 (11th Cir.

1995) (citations omitted). Different treatment of dissimilarly

situated persons does not violate the Equal Protection Clause.

E & T Realty v. Strickland, 830 F.2d 1107, 1109 (11th Cir.

1987).

Plaintiffs’ Third Amended Complaint is completely

devoid of any allegations alleging that they were treated

differently than similarly situated individuals, i.e. white

patrons who opposed racial discrimination of black patrons

of the mall. In fact, the Third Amended Complaint alleged

that all persons that the Mal! owners requested to have

trespassed were in fact trespassed by the police. As such,

Petitioners failed to plead that they were treated differently

than any other person who was trespassed or than any other

23

person who allegedly interfered with the security guards’

performance of their duties. Accordingly, dismissal of

Petitioners Equal Protection claim was appropriate.

CONCLUSION

Based on the foregoing facts and authorities, this Court

should deny the Petition for Writ of Certiorari.

| Respectfully submitted,

J. Scott Kirk,

Counsel of Record

CHRISTA COWART WERDER

RUMBERGER, KirK & CALDWELL, P.A.

201 South Orange Avenue

P. O. Box 1873

Orlando, Florida 32802-1873

(407) 872-7300

Attorneys for Respondent

Acadia Realty Trust, Inc.