The Old “We Don’t Just Bother African-Americans, We Also Get on Goths” Defense

Paul Blart doesn’t discriminate against

African-Americans or Goths.

The West Virginia Supreme Court of Appeals (the state’s highest court) overturned a finding that the a local mall, the Charleston Town Center (“the Mall”) and two of its finest rent-a-cops, discriminated against its African-American teenager patrons on the basis of race.

The Charleston Gazette provides a quick summary of what went down at the Mall —

On April 22, 2006, Steven M. Bumpus, then 16, and Kevin Streets, then 17, met another friend and began walking through the mall. They quickly noticed mall security guards were following them.

After a series of encounters with the guards and police, the night culminated with Charleston Police officers arresting Bumpus and Streets for trespassing as they stood on the sidewalk outside of Chili’s restaurant, waiting for Bumpus’ mother to give them a ride home.  [Those charges were later dropped.]

The teens’ families filed complaints with the West Virginia Human Rights Commission, and in May 2008, administrative law judge Robert B. Wilson found that the company that owns the mall had discriminated against them because they are black.

To overturn the finding of discrimination, the court held that the administrative law judge (“ALJ”) was “clearly wrong” and acted “arbitrarily” when he credited certain evidence to support his finding of racial animus.

That seems all good.  But it is not.  The court overreached.

Among the evidence that the court criticized the ALJ for considering, was a statement made by mall security to a family member of the teens —  that the “[security guards] don’t just bother African-Americans, they also get on Goths, you know, the white people that wear black clothing.”

This is crazy.

The court, however, said this statement was irrelevant — that it was too ambiguous to have any probative value.  Ambiguous?  Really?  To be fair, this is not a classic “smoking gun”; but it is absurd to suggest that this statement demonstrates nothing.  The statement is clear — security guards at the Mall target (or at least are perceived as targeting) other groups as well as African-Americans based on their appearance (instead of their conduct).  This statement is beyond idiotic; it is bigoted.  In the interest of full disclosure, the court also stated that it did not consider the statement because the identity of the employee who made the statement was unknown.  This justification makes some sense.   But still, there was no dispute that an employee of the Mall made the statement or that it was admissible.

This case turned on the rent-a-cops’ supposed reliance on a posted code of conduct similar to this one.

The decision gets worse from there.  Because the Mall relied on its “Code of Conduct” to justify it’s actions, the teens introduced  evidence to show that the Mall enforced the “Code of Conduct” in a discriminatory way — that not everyone is asked to leave the food court if they are sitting with friends who did not order food;  not everyone is asked to “keep moving” if they are standing outside a store; not everyone is instructed to leave the mall immediately upon closing time; and not everyone is arrested for trespassing while waiting outside the Mall for their mom to pick them up.

Specifically, the teens submitted the testimony of two Charleston police officers who stated that nearly all calls to eject patrons from the Mall concern African-Americans or other minorities.  It does not appear that the Mall introduced anything to dispute or challenge this testimony (which would have been easy for the Mall to do, by the way).  Nevertheless, the court tossed aside the ALJ’s findings based on this evidence.  The court simply stated that this testimony was not “meaningful.”  WTF.

Moreover, there was no evidence that the teens were boisterous, offensive, obnoxious, unruly, violent and/or disruptive.  Again, in the interest of full disclosure, the record does portray the teens as snarky.  At one point, a friend of theirs called the security guard a “rent-a-cop.”   Gasp.  And there is no dispute that the teens repeatedly questioned the security guard as to his actions.  At one point they even put the security on the telephone with their mom.   In any event, there is absolutely nothing in the Code of Conduct that prohibits snarkiness.

While there are some gaps in the ALJ’s opinion, a reviewing court still needs to clearly articulate its basis for substituting their judgment for that of the finder of fact.  If a court is going to declare some evidence as “meaningless” or “ambiguous” it better explain why this is so.  Otherwise it makes the entire opinion seem shady.

Siouxsie would like to live in a world where appellate courts do not reweigh the evidence on review.  And, where mall cops do not harass African-Americans or Goths.

Bonus Track:  Ben Folds — Rent-A-Cop 

Photo credit:


~ by siouxsielaw on December 17, 2009.

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