HUNTINGTON –- Charleston Town Center owners claim the eviction of black teens for exceeding a limit of four juveniles in a group didn't constitute discrimination, but they haven't enforced the rule against the white children of Chief Justice Brent Benjamin.
"I've been there with five children," Benjamin said on Sept. 22, at oral arguments in Huntington on Town Center's appeal of a state Human Rights Commission decision.
"I need to know this in case I need to leave the children at home," Benjamin told mall lawyer Kevin Levine of Charleston.
Last year, the rights commission found that Town Center security guards discriminated against Kevin Streets and Steven Bumpus on May 22, 2006.
Commissioners adopted a decision of administrative law judge Robert Wilson, who found that Streets and Bumpus were followed and watched for no reason but race.
"There is no question but that the mall security guards systematically harassed complainants the entire night," Wilson wrote.
Human rights commissioners ordered Town Center to prepare a plan for training guards to avoid profiling.
They recommended damages no less than $5,000 for distress and loss of dignity.
According to Wilson, guards followed Streets, Bumpus and another youth as soon as they entered the mall.
Wilson wrote that Bumpus called his mother, who said he wasn't doing anything wrong and shouldn't worry.
At the food court, Wilson wrote, the three joined four friends at a table.
A mall security guard with the last name of Hager told them they had to leave the food court because they weren't eating, Wilson wrote.
They didn't leave, he wrote, and Hager summoned two police officers.
He wrote that one youth refused to leave because he had a Coke and a sandwich.
He wrote that the officer, whose last name is Ross, "slammed some chairs around and threatened to taser the youths if they did not leave."
They left and window shopped, he wrote, but guards told them to keep moving.
Guards and police approached them on the first floor and escorted them out, he wrote.
Streets, Bumpus and their friend went to Chili's for dinner, he wrote, and when they finished they called parents to pick them up.
Outside Chili's, he wrote, a confrontation had started between police and a big group of young black males.
When Streets, Bumpus and their friend stepped out of Chili's, he wrote, guards told them to leave and go to the transit mall.
Bumpus's mother had instructed him to stay away from the transit mall, he wrote.
Bumpus didn't respond, he wrote, and Streets said they were waiting to be picked up.
"One of the police officers got in the face of one of the teens and was attempting to provoke him with taunts and insults," he wrote.
Officers arrested Streets and Bumpus, drove them away in a paddy wagon, and charged them with obstructing police and trespassing, he wrote.
"Steven Bumpus testified that they were searched and handcuffed and his wallet and cell phone were confiscated," he wrote.
"Just as his phone was being confiscated, Steven's mother called back, but he did not get to talk to her," he wrote.
Wilson found that Town Center through its agents indirectly denied and withheld them the advantages and privileges of a place of public accommodation "by making them feel unwelcome and harassing them on the basis of their race."
He wrote that the youths caused no commotion or disruption.
He wrote that guards clearly directed the actions of police.
"As Mr. Bumpus and Mr. Streets were not part of that group which was causing the disturbance, it is an act of racial discrimination to have prevented their lawful use of the Respondent's facilities," he wrote.
He found "racial animus" in Hager's conduct at the mall and in his demeanor at a hearing he held in 2007.
"He described the group repeatedly through his testimony as 'mouthing him,'" Wilson wrote.
"When it got down to it, this seems to have consisted in saying nothing more than we aren't doing anything, why are you bothering us and in the most extreme someone in a group saying he was a rent a cop," he wrote.
He wrote that Hager couldn't identify any of the other five youths at the table.
He wrote that "events cannot have occurred as Lt. Hager claims."
He wrote, "A citizen of this country has every right and expectation that they would be and should be permitted to await their ride outside the establishment they had just exited."
On appeal for Town Center, Levine argued that the decision impermissibly restricted police and security in promoting public safety.
He denied that guards followed Streets and Bumpus throughout the mall, and he wrote that each interaction resulted from a violation of the mall's code of conduct.
"If the testimony of officers who must respond to threats to public safety is given no weight, then their ability to protect the public will be significantly eroded by the fear of reprisal for simply performing their jobs," he wrote.
At oral argument, Justice Margaret Workman asked Levine if Streets and Bumpus did anything rowdy or bothered anybody.
Levine directed her attention to daily activity records of the guards. Workman cut him off and asked, "What did they do?"
Levine said there were three violations in the food court.
Workman asked again, "What did they do?"
Levine said, "There were multiple violations throughout the night." He quoted rules against more than four in a group and having no food in the food court.
Workman said, "I see more than four there all the time."
Benjamin emphasized her point from personal experience with his quintet.
Justice Menis Ketchum said the rules "sound like things that can be misused in a discriminatory manner."
Workman asked if their conduct was threatening. Levine said yes.
She asked what it was. He said, "They were ordered to leave."
She said she wanted to know what happened in the first place.
He said, "Every time they were approached, they mouthed off."
When deputy attorney general Paul Sheridan stood to argue for the rights commission, Benjamin asked if police put them on notice by telling them to leave.
Sheridan said, "I see that as a Rosa Parks moment for Mr. Streets and Mr. Bumpus."
He said 45 percent of Town Center evictions were African Americans.
He said it would be rare for a misbehaving teen to call his mother.
He said Hager fabricated or misrepresented events.
The Justices took it under advisement.