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Rojas v. Alexander's Dep't Store, Inc.

United States Court of Appeals for the Second Circuit

September 13, 1990, Argued ; November 29, 1990, Decided

No. 91, Docket No. 90-7306


 [*407]  LUMBARD, Circuit Judge

Fernando Rojas appeals from a judgment for Alexander's Department Store, Inc. in the Eastern District of New York, Nickerson, Judge, after a jury returned a verdict in favor of Alexander's. Rojas sued under 42 U.S.C. § 1983 (1988) alleging that his constitutional rights had been violated when a security guard from Alexander's arrested him without probable cause for shoplifting. In response to two special interrogatories, the jury found that although there was no probable cause to arrest Rojas, Alexander's did not have a discriminatory [**2]  policy targeting Hispanics for arrest.

Rojas argues that because the jury found that Alexander's did not have probable cause to arrest him, he was entitled to damages under § 1983. Rojas also contends that he was entitled to a jury instruction and a special interrogatory that asked the jury whether the defendant had a policy of discriminating against "minorities" instead of merely against Hispanics. Finally, appellant claims it was reversible error to admit evidence that other New York City department stores kept records that designated the race or ethnic background of persons arrested for petit larceny. We agree with the rulings of the district court and affirm the judgment.

On November 9, 1984, Rojas, while waiting for his wife, went into the Alexander's Department Store on Queens Boulevard in Rego Park, New York City. He purchased an answering machine in the electronics department and left to pick up his wife. Rojas and his wife then returned to Alexander's to buy a second answering machine as a gift. While Rojas's wife waited for him on another level of the store, Rojas went to the electronics department where he took another answering machine from a display. According to Rojas's  [**3]  testimony,  [*408]  the closest cash register had a long line so he went looking for another register. Jerry Diaz, a security guard for Alexander's, testified that Rojas passed six registers before making his way to the department store exit. Rojas testified that he saw a display of women's blouses close to the exit. Rojas claims that he then approached a security guard at the exit to ask if he could purchase both the answering machine and a blouse at the same register. Before he could question the security guard, Rojas was arrested by Diaz. According to his own admission on cross-examination, Rojas was three feet from the exit door when he was arrested.

Rojas was led to an office where he was searched and handcuffed. Witnesses for Alexander's stated that Rojas was treated with respect. Rojas agreed with this assessment except he contends that at one point he was called a "***" or "*** mother fucker". Alexander's' witnesses denied this assertion. Rojas was held for a period of about two hours before he was released.

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924 F.2d 406 *; 1990 U.S. App. LEXIS 20797 **; 31 Fed. R. Evid. Serv. (Callaghan) 627

FERNANDO ROJAS, Plaintiff-Appellant, v. ALEXANDER'S DEPARTMENT STORE, INC., Defendant-Appellee

Prior History:  [**1]  Appeal from judgment entered in the Eastern District of New York, Nickerson, J., for Alexander's Department Store, Inc. after a jury verdict in its favor in a suit by Fernando Rojas under § 1983 illegal discrimination for his arrest for shoplifting without probable cause, pursuant to a policy of discrimination against Hispanics.

Disposition: Affirmed.


arrest, records, department store, shoplifting, customers, special interrogatory, probable cause, security guard, discriminating

Civil Rights Law, Protection of Rights, Section 1983 Actions, Scope, Immunity From Liability, Respondeat Superior Distinguished, Torts, Vicarious Liability, Employers, General Overview