HARRISBURG – The Gap is looking to dismiss consolidated litigation alleging several Derry Township police officers committed wrongful arrest and process by profiling and taking into custody Black women shopping at the store for supposed theft, before later releasing them when it was learned that they had in fact committed no crime.
Quashae Brown and Quanae Brown first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Feb. 1 versus The Gap, Inc. of San Francisco, Calif., Marygrace Kepple, Police Officers Dennis Eckenrode, Rian Bell, Rebecca Kessler, Tom Pavone (all c/o Derry Township Police Department) and Derry Township, all of Hershey.
“On or about Dec. 22, 2020, beginning at approximately 11 a.m. and continuing for approximately 1-2 hours, Quashae and Quanae were business invitees at the Tanger Outlets Hershey, located at 46 Outlet Square, Derry Township, Dauphin County, Pennsylvania, where they were lawfully and peacefully Christmas shopping at various retailers. At the same time and place aforesaid, Quashae and Quanae were accompanied by their cousin, Trinity Tiina Arlez Bellamy Reid, who had driven Quashae and Quanae to Tanger in a Chevrolet Cavalier owned by Trinity’s mother,” the suit said.
“Quashae, Quanae, and Trinity are each African-American individuals. At the time aforesaid, Quashae was a college student at Lincoln University while her younger sister Quanae was a high school senior at Dauphin County Technical School and her cousin Trinity was a high school senior at Central Dauphin East High School. While shopping at Tanger as aforesaid, Quashae, Quanae and Trinity legally purchased items from various retailers including but not limited to The Gap Outlet and Old Navy. As Quanae and Trinity walked out of The Gap Outlet toward the Chevrolet Cavalier, they were confronted in the Tanger parking lot by Officers Kepple and Eckenrode.”
The plaintiffs and Trinity were all accused of committing retail theft at Old Navy by the officers, who placed them all under custodial arrest – handcuffing them, engaging in searches of their belongings and confining them in nearby police vehicles.
Quashae, Quanae and Trinity each were transported by Derry Township police personnel from Tanger to the Derry Township police department headquarters, where they remained detained in custody for several hours until finally being released, when it was determined that they had committed no crime.
The suit explained the officers responded to reports from employees of the Old Navy and Gap stores in the Tanger Outlets Hershey, who advised that three young Black women were “acting suspicious” and may have stolen merchandise – however, surveillance footage from the Old Navy store “shows no evidence of Quashae, Quanae or Trinity committing retail theft or any other crime.”
“It is believed, and therefore averred, that the aforesaid conduct of the employees of Old Navy and The Gap outlet, as well as the aforesaid conduct of Officer Kepple, Officer Eckenrode, Officer Bell, Officer Kessler, and Det. Pavone were motivated by a predisposed bias due to the fact that Quashae, Quanae and Trinity are African-American individuals. Defendants initiated and continued the aforesaid accusations, detentions, arrests, incarcerations, searches and seizures of Quashae and Quanae without probable cause, in reckless disregard of their rights, and with malice,” the suit stated.
“Defendants initiated and continued the aforesaid detentions, arrests and confinements of Quashae and Quanae despite the existence of credible, exculpatory evidence which was known to defendants. Neither Quashae or Quanae committed any offense nor engaged in any conduct justifying their aforesaid detentions, arrests, incarcerations, searches or seizures.”
The Derry Township defendants filed a motion to dismiss for failure to state a claim on April 4, arguing that the plaintiffs had not stated assault and battery claims or claims based upon the Fourth or Fourteenth Amendments, had not stated a Monell claim against Derry Township and failed to state a claim for injunctive relief.
“Plaintiffs contend that they were subjected to unreasonable search and seizure in violation of their Fourth Amendment rights. Analysis of the applicable precedent demonstrates that neither of these conclusory allegations are supported by the facts as pled and the contemporaneously prepared public documents of record upon which those pleadings are, in part, based. The existence of probable cause is fatal to plaintiffs’ Fourth Amendment claims as well as to their claims based upon assault and battery,” per the dismissal motion.
“The existence of probable cause is also fatal to plaintiffs’ Fourteenth Amendment equal protection claims as there was an objectively reasonable basis to believe that a crime had been committed and that plaintiff had committed that crime. The existence of probable cause is also fatal to plaintiffs’ state law claims of false imprisonment and assault and battery. Moreover, plaintiffs cite no facts in support of their claim that the Derry Township defendants were motivated by a discriminatory purpose. Additionally, plaintiffs have failed to plead facts consistent with a Fourth Amendment seizure.”
The defendants added that the plaintiffs’ complaint “contains no factual reference to the existence of a specific policy, nor do plaintiffs state what that custom or policy was much less how it caused any harm to either plaintiff.”
All parties concerned motioned to consolidate the instant case and another one filed by Bellamy Reid on April 13, given the substantial parallels and amount of circumstances the separately-filed actions have in common. That consolidation was granted.
UPDATE
After the suits were consolidated, The Gap filed a brief in support of its motion to dismiss the litigation.
“Plaintiffs have sued Gap, Inc. seeking damages for the brief period they were held for questioning by law enforcement for suspected theft in connection with a shopping trip to Tanger Outlets. In attempting to pin liability on Gap, plaintiffs contend that the company engaged in malicious prosecution when store employees reported to police that plaintiffs were acting suspiciously in two Gap-owned stores. But to succeed on their claims, plaintiffs face the insurmountable hurdle of establishing (1) Gap acted without probable cause; (2) Gap acted maliciously; and (3) that the questioning at the police station constitutes the initiation of criminal proceedings. Plaintiffs’ allegations fail to establish these three required elements for their claim, and it must be dismissed,” according to The Gap’s dismissal brief.
“Since plaintiffs admit in their complaints that they were never charged with a crime, their claim fails before it starts. Moreover, the probable cause standard – requiring only that the initiating party have some reasonable grounds for suspicion – is met by Gap employees’ belief that plaintiffs were acting suspiciously in their stores. The employees were under no obligation to further investigate plaintiffs’ actions, detain them, or subject them to searches, and instead did what they should have: contacted law enforcement to further determine whether a crime had, in fact, occurred. At that point, Gap had no control on the actions of the officers, made no recommendations as to whether arrests should be made, and exerted no influence over the outcome of the matter. This Court should dismiss the wrongful use of process claim against Gap because there is no plausible claim against it.”
For multiple counts of wrongful use of process, injunctive relief, civil rights violations and state law claims, the plaintiffs are seeking the following relief:
• Compensatory damages;
• Punitive damages;
• A court order directing each defendant herein to adopt, promulgate, train, and/or participate in educational and training programs designed to inform and counsel participants regarding racial sensitivity and constitutional rights, as well as the implementation and enforcement of policies designed to consider racial profiling, racial bias and prejudice, and the constitutional right to equal protection of the laws;
• Reasonable attorney’s fees and costs; and
• Such other and further relief as appears reasonable and just, and a jury trial as to each defendant and as to each claim for relief.
The plaintiffs are represented by Richard M. Wiener of the Law Offices of Richard M. Wiener in Conshohocken and Thomas A. Archer of Mette Evans & Woodside, in Harrisburg.
The defendants are represented by Laura C. Bunting and Marla N. Presley of Jackson Lewis in Pittsburgh, plus Rolf E. Kroll of Margolis Edelstein, in Camp Hill.
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-00165
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com