## Facts

- Lorraine Alvarado shopped for about two hours at an Alco Discount Store in Dodge City, Kansas, and purchased several items; her bag was stapled shut with the receipt attached.
- It was undisputed that Alvarado paid for all items and did not steal merchandise.
- Robert Fox, an off-duty Dodge City police officer employed by Alco as a security guard, suspected Alvarado of shoplifting shoes.
- After Alvarado exited the store, Fox approached her, asked her to return, and, when she resisted, took her by the arm and escorted her back into the store.
- Alvarado was detained and searched during the investigation; she claimed she was unlawfully detained, assaulted, and falsely accused.
- Alvarado sued Fox, Alco, and the City for false imprisonment, assault, defamation, and civil-rights violations under 42 U.S.C. § 1983.

## Issues

1. Whether Kansas tort actions for false imprisonment, assault, and defamation were adequate postdeprivation remedies such that procedural due process was satisfied and a § 1983 claim was unavailable for an alleged random, unauthorized detention by an off-duty officer acting as store security.
2. Whether the City could be liable under § 1983 on a respondeat superior theory, or only if an official policy or custom caused the alleged injury.
3. Whether the statutory merchant’s defense (K.S.A. 21-3424(3)) applied in a civil action when the detention was performed by an off-duty police officer employed as a store security guard.
4. How K.S.A. 21-3424(2) (law-enforcement duty exclusion from unlawful restraint) related to application of the merchant’s defense in a civil case involving an off-duty officer.
5. Whether the jury should be instructed on the meaning of “probable cause” when the merchant’s defense is asserted, and how “detention” differs from “arrest” in this setting.

## Decision

- The Kansas Supreme Court held that state tort remedies provided an adequate postdeprivation remedy under the circumstances; dismissal of the § 1983 claim was proper.
- The court held the City could not be liable under § 1983 based on respondeat superior; dismissal of claims against the City was affirmed because no policy or custom was shown.
- The court held the merchant’s defense in K.S.A. 21-3424(3) could apply in a civil action even when the person detaining is an off-duty police officer working as store security.
- The court construed K.S.A. 21-3424(2) as exempting officers from unlawful-restraint criminal liability only when acting in performance of official duty, without preventing use of the merchant’s defense when the officer acts as a merchant’s agent.
- The court approved the trial court’s core merchant-defense framework and rejected the contrary analysis of the intermediate appellate court, leaving the defense verdict for Fox and Alco in place.
- The court stated that, when the merchant’s defense is asserted, an appropriate instruction defining “probable cause” should be given.

## Legal Principles

- When a liberty deprivation results from a random and unauthorized act and predeprivation process is impracticable, adequate postdeprivation state tort remedies can satisfy procedural due process, defeating a § 1983 due-process claim.
- A municipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory; liability requires that an official policy or custom caused the injury.
- Under K.S.A. 21-3424(3), a merchant or the merchant’s agent with probable cause to believe merchandise was unlawfully taken may detain a suspect in a reasonable manner and for a reasonable time for investigation without civil liability.
- K.S.A. 21-3424(2) excludes from the unlawful-restraint offense acts done by law-enforcement officers in the performance of duty; it does not bar application of the merchant’s statutory privilege when an off-duty officer acts as private store security.
- “Detention” is a temporary restraint; “arrest” is taking a person into custody so the person may answer for a crime.
- In civil cases invoking the merchant’s defense, the governing standard is the minimum statutory standard (not an employer’s stricter internal policies), and juries should be instructed on “probable cause.”

## Conclusion

The court affirmed dismissal of the § 1983 claims because Kansas tort remedies provided sufficient due process and the City lacked § 1983 liability absent a policy or custom, and it held that the merchant’s privilege could protect an off-duty officer acting as a store’s security agent, while directing that juries should be instructed on probable cause when the defense is asserted.


Alvarado v. City of Dodge City, 708 P.2d 174 (Kan. 1985)