11

Special Police/Private Security

Background

Jay G. Williams was convicted in the District Court of the United States for the Southern District of Florida for a violation of the statute providing that whoever under color of any law willfully subjects inhabitants of a state to deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States shall be guilty of an offense, and he appealed. The United States Court of Appeals for the Fifth Circuit, affirmed the judgment, and the defendant brought certiorari.

Holding

The United States Supreme Court held that a jury could properly find that a private detective who held a special city police officer’s card and obtained confessions from suspects through the use of force and violence was acting under color of law within the meaning of the civil rights statute. Judgment affirmed.

The statute provides in pertinent part: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States … shall be fined not more than $1,000, or imprisoned not more than one year, or both.”

The facts are these: The Lindsley Lumber Co. suffered numerous thefts and hired petitioner, who operated a detective agency, to ascertain the identity of the thieves. Petitioner held a special police officer’s card issued by the City of Miami, Florida, and had taken an oath and qualified as a special police officer. Petitioner and others over a period of three days took four men to a paint shack on the company’s premises and used brutal methods to obtain a confession from each of them. A rubber hose, a pistol, a blunt instrument, a sash cord, and other implements were used in the project. One man was forced to look at a bright light for fifteen minutes; when he was blinded, he was repeatedly hit with a rubber hose and a sash cord and finally knocked to the floor. Another was knocked from a chair and hit in the stomach again and again. He was put back in the chair and the procedure was repeated. One was backed against the wall and jammed in the chest with a club. Each was beaten, threatened, and unmercifully punished for several hours until he confessed. One Ford, a policeman, was sent by his superior to lend authority to the proceedings. And petitioner, who committed the assaults, went about flashing his badge.

The indictment charged among other things that petitioner acting under color of law used force to make each victim confess to his guilt and implicate others, and that the victims were denied the right to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the state. Petitioner was found guilty by a jury. The court of appeals affirmed.

We think it clear that petitioner was acting under color of law, or at least that the jury could properly so find. We interpreted the phrase “misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law.” It is common practice for private guards or detectives to be vested with policemen’s powers. We know from the record that that is the policy of Miami, Florida. Moreover, this was an investigation conducted under the aegis of the State, as evidenced by the fact that a regular police officer was detailed to attend it. We need go no further to conclude that the lower court, to whom we give deference on local law matters, was correct in holding that petitioner was no mere interloper but had a semblance of policeman’s power from Florida. There was, therefore, evidence that he acted under authority of Florida law; and the manner of his conduct of the interrogations makes clear that he was asserting the authority granted him and not acting in the role of a private person.

The main contention is that the application of [the statute] so as to sustain a conviction for obtaining a confession by use of force and violence is unconstitutional. The argument is the one that a clear majority of the Court rejected in Screws v. United States, and runs as follows:

Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness. The statute, it is argued, lacks the necessary specificity when rights under the Due Process Clause of the Fourteenth Amendment are involved. We are pointed to the course of decisions by this Court under the Due Process Clause as proof of the vague and fluid standard for “rights, privileges, or immunities secured or protected by the Constitution” as used in [the statute]. We are referred to decisions where we have been closely divided on whether state action violated due process. More specifically we are cited many instances where the Court has been conspicuously in disagreement on the illegal character of confessions under the Due Process Clause. If the Court cannot agree as to what confessions violate the Fourteenth Amendment, how can one who risks criminal prosecutions for his acts be sure of the standard? Thus it is sought to show that police officers such as petitioner walk on ground far too treacherous for criminal responsibility.

Many criminal statutes might be extended to circumstances so extreme as to make their application unconstitutional. Conversely, as we held in Screws v. United States, a close construction will often save an act from vagueness that is fatal. The present case is as good an illustration as any. It is as plain as a pikestaff that the present confessions would not be allowed in evidence whatever the school of thought concerning the scope and meaning of the Due Process Clause. This is the classic use of force to make a man testify against himself. The result is as plain as if the rack, the wheel, and the thumbscrew—the ancient methods of securing evidence by torture, were used to compel the confession. Some day the application of [the statute] to less obvious methods of coercion may be presented and doubts as to the adequacy of the standard of guilt may be presented. There may be a similar doubt when an officer is tried under [the statute] for beating a man to death. That was a doubt stirred in the Screws case; and it was the reason we held that the purpose must be plain, the deprivation of the constitutional right willful. But where police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court. Hence when officers wring confessions from the accused by force and violence, they violate some of the most fundamental, basic, and well-established constitutional rights which every citizen enjoys. Petitioner and his associates acted willfully and purposely; their aim was precisely to deny the protection that the Constitution affords. It was an arrogant and brutal deprivation of rights which the Constitution specifically guarantees. The statute would be denied the high service for which it was designed if rights so palpably plain were denied its protection. Only casuistry could make vague and nebulous what our constitutional scheme makes so clear and specific.

The indictment charged that petitioners deprived designated persons of rights and privileges secured to them by the Fourteenth Amendment. These deprivations were defined in the indictment to include “illegal” assault and battery. But the meaning of these rights in the context of the indictment was plain: immunity from the use of force and violence to obtain a confession. Thus Count 2 of the indictment charges that the Fourteenth Amendment rights of one Purnell were violated in the following respects:

[T]he right and privilege not to be deprived of liberty without due process of law, the right and privilege to be secure in his person while in the custody of the State of Florida, the right and privilege not to be subjected to punishment without due process of law, the right and privilege to be immune, while in the custody of persons acting under color of the laws of the State of Florida, from illegal assault and battery by any person exercising the authority of said State, and the right and privilege to be tried by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the State of Florida; that is to say, on or about the 28th day of March, 1947, the defendants arrested and detained and caused to be arrested and detained the said Frank J. Purnell, Jr., and brought and caused him to be brought to and into a certain building sometimes called a shack on the premises of the Lindsley Lumber Co., at or near 3810 N.W. 17th Avenue, in said City of Miami, Florida, and did there detain the said Frank J. Purnell, Jr., and while he was so detained the defendants did then and there illegally strike, bruise, batter, beat, assault and torture the said Frank J. Purnell, Jr., in order illegally to coerce and force the said Frank J. Purnell, Jr., to make an admission and confession of his guilt in connection with the alleged theft of personal property, alleged to be the property of said Lindsley Lumber Co., and in order illegally to coerce and force the said Frank J. Purnell, Jr., to name and accuse other persons as participants in alleged thefts of personal property, alleged to be the property of the said Lindsley Lumber Co., and for the purpose of imposing illegal summary punishment upon the said Frank J. Purnell, Jr.

The trial judge in his charge to the jury summarized Count 2 as meaning that the defendants beat Purnell for the purpose of forcing him to make a confession and for the purpose of imposing illegal summary punishment upon him. He further made clear that the defendants were not here on trial for a violation of any law of the State of Florida for assault or for assault under any laws of the United States. There cannot be the slightest doubt from the reading of the indictment and charge as a whole that the defendants were charged with and tried for one of the most brutal deprivations of constitutional rights that can be imagined. It therefore strains at technicalities to say that any issue of vagueness of [the statute] as construed and applied is present in the case. Our concern is to see that substantial justice is done, not to search the record for possible errors which will defeat the great purpose of Congress in enacting [the statute].

CASE COMMENT

In this case, the private security officer vested with “special police” powers used his powers to coerce confessions from a prisoners. The U.S. Supreme Court held that the special police officer was a state actor who exercised the coercive punishment under color of law. Since the actions were done under color of law, the Fifth Amendment prohibition against coercive punishment applies. Notice that the Fifth Amendment would therefore have precluded the punishment from being used against the prisoner (Purnell) at his criminal trial. In this case, however, the security officer, Williams, was being tried in criminal court for the constitutional deprivations. The court upheld Williams’s criminal conviction for the Fifth Amendment deprivation.

Background

Defendants were convicted of criminal trespass upon premises of private amusement park. The Circuit Court for Montgomery County, Maryland, rendered judgment, and defendants appealed. The Maryland Court of Appeals affirmed the convictions. Certiorari was granted.

Holding

The Supreme Court held that person deputized as sheriff and was employee of park, under contract to protect and enforce racial segregation policy, in ordering Negroes to leave park and arresting them for trespassing denied them equal protection of the laws secured by the Fourteenth Amendment. Their convictions were required to be set aside.

Reversed

Petitioners were convicted of criminal trespass for refusing to leave a privately owned and operated amusement park in the State of Maryland at the command of an employee of the amusement park acting under color of his authority as a deputy sheriff.

The Glen Echo Amusement Park is located in Montgomery County, Maryland, near Washington, D.C. Though the park through its advertisements sought the patronage of the general public, it was (until recently) the park’s policy to exclude Negroes who wished to patronize its facilities. No signs at the park apprised persons of this policy or otherwise indicated that all comers were not welcome. No tickets of admission were required. In protest against the park’s policy of segregation a number of whites and Negroes picketed the park on June 30, 1960. The petitioners, five young Negroes, were participating in the protest. Hopeful that the management might change its policy, they entered the park, and encountered no resistance from the park employees, boarded the carousel. They possessed transferable tickets, previously purchased by others, entitling the holder to ride on the carousel.

The park employed one Collins as a special policeman by arrangement with the National Detective Agency. Although Collins was formally retained and paid by the agency and wore its uniform, he was subject to the control and direction of the park management. Apparently at the request of the park, Collins had been deputized as a sheriff of Montgomery County, wearing this badge on the outside of his uniform.

When Collins saw the petitioners sitting on the carousel waiting for the ride to begin, he reported their presence to the park manager. The manager told Collins that petitioners were to be arrested for trespassing if they would not leave the park. Collins then went up to the petitioners and told them that it was the park’s policy “not to have colored people on the rides, or in the park.” He ordered petitioners to leave within five minutes. They declined to do so, pointing out that they had tickets for the carousel. There was no evidence that any of the petitioners were disorderly. At the end of the five-minute period Collins, as he testified, went to each defendant and told them that the time was up and that they were under arrest for trespassing. Collins transported the petitioners to the Montgomery County police station. There he filled out a form titled “Application for Warrant by Police Officer.” The application stated:

Francis J. Collins, being first duly sworn, on oath doth depose and say: That he is a member of the Montgomery deputy sheriff Department and as such, on the 30th day of June, 1960, at about the hour of 8:45 p.m. he did observe the defendant William L. Griffin in Glen Echo Park which is private property. On order of Kebar Inc. owners of Glen Echo Park the defendant was asked to leave the park and after giving him reasonable time to comply the defendant refused to leave (and) he was placed under arrest for trespassing…. Whereas, Francis J. Collins doth further depose and say that he, as a member of the Montgomery County Police Department believes that [arrestee] is violating Sec. 577 Article 27 of the Annotated Code of Maryland.

Art. 27, Sec. 577, is a criminal trespass statute. On the same day a Maryland Justice of the Peace issued a warrant which charged that petitioner Griffin “did enter upon and pass over the land and premises of Glen Echo Park … after having been told by the Deputy Sheriff for Glen Echo Park, to leave the Property, and after giving him a reasonable time to comply, he did not leave … contrary to the … [Maryland criminal trespass statute] and against the peace, government and dignity of the State.” The warrant recited that the complaint had been made by “Collins Deputy Sheriff.” An amended warrant was later filed. It stated that the complaint had been made by “Collins, Deputy Sheriff” but charged Griffin with unlawfully entering the park after having been told not to do so by “an Agent” of the corporation which operated the park. Presumably identical documents were filed with respect to the other petitioners.

Petitioners were tried and convicted of criminal trespass in the Circuit Court of Montgomery County. Each was sentenced to pay a fine of $100. The Maryland Court of Appeals affirmed the convictions. That court, rejecting the petitioners’ constitutional claims, reasoned as follows:

The appellants in this case … were arrested for criminal trespass committed in the presence of a special deputy sheriff of Montgomery County (who was also the agent of the park operator) after they had been duly notified to leave but refused to do so. It follows—since the offense for which these appellants were arrested was a misdemeanor committed in the presence of the park officer who had a right to arrest them, either in his private capacity as an agent or employee of the operator of the park or in his limited capacity as a special deputy sheriff in the amusement park … the arrest of these appellants for a criminal trespass in this manner was no more than if a regular police officer had been called upon to make the arrest for a crime committed in his presence…. The arrest and conviction of these appellants for a criminal trespass as a result of the enforcement by the operator of the park of its lawful policy of segregation, did not constitute such action.

Collins—in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them—purported to exercise the authority of a deputy sheriff. He wore a sheriff’s badge and consistently identified himself as a deputy sheriff rather than as an employee of the park. Though an amended warrant was filed stating that petitioners had committed an offense because they entered the park after an “agent” of the park told them not to do so, this change has little, if any, bearing on the character of the authority which Collins initially purported to exercise. If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law. Thus, it is clear that Collins’s action was state action. The only question remaining in this case is whether Collins’s action denied petitioners the equal protection of the laws secured to them by the Fourteenth Amendment. If it did, these convictions are invalid.

It cannot be disputed that if the State of Maryland had operated the amusement park on behalf of the owner thereof, and had enforced the owner’s policy of racial segregation against petitioners, petitioners would have been deprived of the equal protection of the laws.

In the Board of Trusts case we were confronted with the following situation. Stephen Girard by will had left a fund in trust to establish a college. He had provided in his will, in effect, that only “poor white male orphans” were to be admitted. The fund was administered by the Board of Directors of City Trusts of the City of Philadelphia as trustee. In accord with the provisions of the will it denied admission to two Negro applicants who were otherwise qualified. We held:

“The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment.” The Board of Trusts case must be taken to establish that to the extent that the State undertakes an obligation to enforce a private policy of racial segregation, the State is charged with racial discrimination and violates the Fourteenth Amendment.

It is argued that the State may nevertheless constitutionally enforce an owner’s desire to exclude particular persons from his premises even if the owner’s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner’s ultimate purpose is immaterial to the State. In this case it cannot be said that Collins was simply enforcing the park management’s desire to exclude designated individuals from the premises. The president of the corporation which owned and managed the park testified that he had instructed Collins to enforce the park’s policy of racial segregation. Collins was told to exclude Negroes from the park and escort them from the park if they entered. He was instructed to arrest Negroes for trespassing if they did not leave the park when he ordered them to do so. In short, Collins, as stated by the Maryland Court of Appeals, was “then under contract to protect and enforce … [the] racial segregation policy of the operator of the amusement park.…” Pursuant to this obligation Collins ordered petitioners to leave and arrested them, as he testified, because they were Negroes. This was state action forbidden by the Fourteenth Amendment. Reversed.

CASE COMMENT

The racial segregation policy of the park, which was enforced by a special police officer, violated the Fourteenth Amendment. The court noted that the special police officer acted under color of law, even though he could be construed as acting as an agent for the business owner. By contemporary standards, this is an “easy” decision. Such racially discriminatory policies are reprehensible. The use of a special police officer to enforce these policies placed the state in the position of aiding and abetting the constitutional deprivation.

CHRISTOPHER YOUNG v. BOSTON

UNIVERSITY.

Background

Arrestee, who was arrested by university police officer for alleged violation of abuse prevention order requiring him to stay at least 30 yards away from a certain university student, brought action against the university, alleging assault and battery, false imprisonment, civil rights violations, and other claims based on allegation that university police lacked authority or probable cause to arrest him. The Superior Court Department, Suffolk County, granted summary judgment in favor of university. Arrestee appealed.

Holdings

The appeals court held that:

2. Officer had probable cause to make the arrest.

Affirmed

We summarize the undisputed facts, drawing inferences in favor of Young where they may reasonably be drawn from the facts. On February 27, 1996, Courtney Cronin, a BU student, obtained a G.L. c. 209A abuse prevention order against Young, a BU alumnus, requiring Young to stay at least 30 yards away from Cronin. On October 9, 1996, as Cronin left a BU building located at 1 University Road, she saw Young parked in his vehicle across the street. She immediately went back inside and called the BU police department to report an apparent violation of the c. 209A order, providing a description of Young’s vehicle. During this time, Young drove away from the area. Officers Daniel DiGiovine and Richard Camillo responded to Cronin’s call. Officer DiGiovine confirmed that there was a c. 209A order in place; he also observed that the area where Cronin stated Young was parked was within thirty yards of where Cronin left the building. Two hours later, the dispatcher informed a patrolling BU officer, Robert Casey, that Young was wanted for violating a c. 209A order and gave Officer Casey a description of Young’s car. When Officer Casey thereafter observed the vehicle on Commonwealth Avenue, he stopped and arrested Young, who was driving, near the intersection of Commonwealth Avenue and Babcock Street. Soon after the arrest, BU indefinitely barred Young from its property.

Arrest-Related Claims

Young argues that it was not established as a matter of undisputed fact that Officer Casey held an appointment as a special State police officer or a deputy sheriff in Suffolk County at the time of the arrest. Officer Casey’s affidavit, stating that on the day of the arrest he held an appointment as a special State police officer under G.L. c. 22C, Section 63, and a commission as a Suffolk County deputy sheriff, is unrebutted by sufficient evidence. In order to defeat a motion for summary judgment, a plaintiff cannot rely merely on allegations set forth in his pleadings or on bald assertions that facts are disputed.

Young next argues that, as matter of law, the officer lacked authority or jurisdiction to arrest Young on a public street near BU for an alleged violation of a c. 209A order occurring on BU property. General Laws provides that employees of a university who are appointed as special State police officers “have the same power to make arrests as regular police officers for any criminal offense committed in or upon lands or structures owned, used or occupied by such … university.” We conclude that, as a special State police officer, a BU police officer’s authority extends to the environs surrounding the campus when the “special vigilance of an officer might be required to keep the peace and preserve order amongst those frequenting the [university and] those carrying persons to and from it.” This case is similar to Commonwealth v. Mottola, where we held that police officers of the Massachusetts Bay Transportation Authority (MBTA) had the “authority to question and arrest the defendant at the East Boston High School, at least where … the offense originated on MBTA property and related to the protection of an MBTA passenger.”

We similarly reject Young’s argument that the officers did not have probable cause to arrest him. On the undisputed facts, the BU police had a reasonable belief that Young had violated the c. 209A order based on Cronin’s statements to the officers, the officers’ observations that the area where Cronin said Young was parked was within 30 yards of Cronin, and Officer DiGiovine’s confirmation of the existence of the restraining order. The arresting officer was justified in his reliance on the information gathered by other officers, as the knowledge of one officer is the knowledge of all.

We affirm the summary judgment.

CASE COMMENT

In this case, the fact that the university police officer has “special police” power gave him the legal authority to stop the driver and arrest him for the order of protection. The probable cause to affect the arrest was based on information obtained from other university police officers. As such, the stop and the subsequent arrest were valid, as they were within the authority vested in special police officers. In addition, the arresting officer reasonably relied on information from objective facts verified by other officers to substantiate the arrest.

Background

Casino patron sued casino and casino security officer in state court under Section 1983 and state law for unlawful and false arrest, which occurred when she took a 5-cent token from the tray of one slot machine and played it in another. Following a jury trial, the United States District Court for the Eastern District of Michigan entered judgment for patron, which included an $875,000 punitive damages award.

Holdings

The court of appeals held that security officer was a state actor as a matter of law.

Affirmed in part, vacated in part, and remanded

On August 7, 2001, Romanski, then 72 years old, and her friends Dorothy Dombrowski and Linda Holman, went to Defendant Detroit Entertainment’s Motor City Casino in Detroit, Michigan, to gamble and enjoy lunch at the buffet. After a spate of unsuccessful tries at the slot machines, Romanski took a walk around the gaming floor. During her walk, Romanski noticed a 5-cent token lying in a slot machine’s tray. Seeing no chair at the machine, she picked up the token and returned to the machine at which she had earlier played, intending to use the token there. Soon a uniformed male casino employee approached and asked that she accompany him to the office. She asked why but he did not answer. Romanski then noticed there were also three female casino employees, not in uniform, surrounding her; she felt she could not move.

One of these plain-clothed security officers was Defendant Marlene Brown, who had been assigned to patrol the casino floor at that time. Brown testified that she approached Romanski, displayed her casino security badge, and began to explain it was the casino’s policy not to permit patrons to pick up tokens, which appeared to be abandoned, found at other slot machines, a practice known as “slot-walking.” Romanski could not have known this at the time because the casino does not post the so-called policy anywhere. It is undisputed, therefore, that Romanski did not have—and could not have had—notice of the casino’s purported policy on slot-walking.

According to Brown, Romanski became loud and belligerent, so, at the advice of Brown’s supervisor, JoEtta Stevenson, Brown escorted Romanski to an off-the-floor room where Brown intended to explain the policy in detail. For her part, Romanski testified that Brown did not detain her because of her attitude but rather because Brown suspected her of theft.

It is undisputed that Brown and her colleagues escorted Romanski to what defendants alternately call the “security office” and the “interview room.” Whatever its name, the room is small and windowless, located off the casino’s floor. According to Romanski, once they had taken their seats, Brown accused Romanski of stealing the token, whereupon Brown counted Romanski’s money and removed one nickel from Romanski’s winnings. Stevenson asked Romanski to turn over her social security card and driver’s license. Romanski complied and these items were photocopied. Romanski was then photographed. Romanski testified that she acquiesced to these requests because Brown said she was a police officer, had a badge, and appeared to have handcuffs. Brown admitted having presented her badge and possessing handcuffs but testified that she identified herself only as a “security police officer,” not as a bona fide police officer. There is no dispute that a uniformed casino security officer stood just outside the room for the duration of the questioning.

Romanski was ejected from the casino for a period of 6 months. Stevenson made the final decision to eject, or “86,” Romanski. The precise ground for ejecting Romanski is unclear from the record. Although unknown to Romanski at the time, it is now undisputed that Brown and some of her colleagues on the casino’s security staff were licensed under state law as “private security police officer[s].” By virtue of being so licensed, a private security police officer has “the authority to arrest a person without a warrant as set forth for public peace officers … when that private security police officer is on the employer’s premises.” The statute additionally requires that private security police officers make arrests only when they are on duty and in “the full uniform of their employer.” It is undisputed that Brown was on duty during the events of this case. It is also undisputed that Brown was not wearing the uniform worn by some of the other security guards, but defendants have never contended that this rendered Brown out of uniform for purposes of the statute. Indeed, defendants have conceded from the beginning that the statute applies in this case. Their argument is simply that the power admittedly conferred on Brown by the statute did not make her actions under color of state law.

Brown was in charge of escorting Romanski to the valet parking area of the casino, where Romanski was to wait for her 3 p.m. bus home. Brown and her colleagues denied Romanski’s request to meet her friends for lunch at the buffet—indeed, they did not permit Romanski to eat lunch at all. In addition, they did not permit Romanski to enter the restroom by herself. Brown accompanied Romanski into the restroom and waited outside the stall. At 3 p.m., Romanski exited the valet area to board what she thought was her bus; it turned out not to be but instead of returning to the valet area she ran into her friends and stayed outside. It was extremely hot and humid and Dombrowski and Holman persuaded Romanski to return to the casino. Upon entering, the three were confronted by casino employees, who directed them to return to the valet area, which is air-conditioned; they waited there until the bus arrived.

It is undisputed that Brown prepared an incident report following Romanski’s ejection in which Brown referred to Romanski as a “suspect.” Romanski introduced the casino’s security manual into evidence; it instructs security employees to refer to patrons as “suspects” only if the employee arrested the patron and otherwise to refer to the patron as a “subject.” Stevenson confirmed that this policy was in effect when Romanski was ejected. Finally, it is undisputed that as a matter of course, the casino notifies the Michigan State Police when it ejects someone. The casino notified the Michigan State Police of Romanski’s ejection.

As these facts reflect, defendants’ treatment of Romanski was inexplicable and egregious. The district court aptly expressed the egregiousness of defendants’ conduct in its opinion denying defendants’ motion for summary judgment:

There is sufficient evidence to allow a jury to find that after [Romanski] picked up an abandoned token that defendants—by using the authority vested in them by the State of Michigan—surrounded her, arrested her, led her to the security office, prevented her from leaving the security office, and stole the 5 cents that she found from her. Afterwards, they surrounded her as they threw her out of the casino, and refused to let her use the restroom by herself. Defendants also prevented her from having lunch with her friends [and] falsely told her friends that she had stolen from them…. [A] jury could certainly exclaim “Outrageous.”

Indeed, a jury did make such an exclamation: it found in Romanski’s favor and made a substantial punitive damages award.

The plaintiff’s complaint asserts a claim under 42 U.S.C. Section 1983 that defendants had violated Romanski’s Fourth Amendment rights. Specifically, Romanski alleged that defendants, acting under color of state law, had arrested her without probable cause because the token she picked up was abandoned, i.e., not the casino’s property. The district court issued an order to show cause “as to whether defendants’ conduct was ‘under color of law’ for purposes of 42 U.S.C. Section 1983.” The court concluded that Brown was acting under color of state law because she possessed the same authority to make arrests that the police enjoy. Having determined that there was a proper basis for federal jurisdiction, the district court exercised its supplemental jurisdiction over Romanski’s state law claims.

The court held as a matter of law that defendants had acted under color of state law during the events of this case because Brown, the defendant who initiated Romanski’s detention, did so while on duty in her capacity as a licensed private security police officer empowered with the same arrest authority as a public police officer. The court further held that genuine factual disputes precluded summary judgment on the Fourth Amendment claim and Romanski’s state law claims.

State Action

Section 1983 makes liable only those who, while acting under color of state law, deprive another of a right secured by the Constitution or federal law. A private actor acts under color of state law when its conduct is “fairly attributable to the state.” “The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.”

The district court concluded that Brown and any of her colleagues similarly licensed as private security police officers were state actors under the public function test. Consistent with this holding, the district court took the state action issue out of the case, granting in effect judgment as a matter of law to Romanski on that issue.

Under the public function test, a private entity is said to be performing a public function if it is exercising powers traditionally reserved to the state, such as holding elections, taking private property under the eminent domain power, or operating a company-owned town. The Supreme Court has expressly left open the question whether and under what circumstances private police officers may be said to perform a public function for purposes of Section 1983. Nevertheless, as the district court observed, there is a growing body of case law to consult for guidance on this question.

For example, in a decision deemed by both parties and the district court to bear directly on the issue presented in this case, the Seventh Circuit held that private police officers licensed to make arrests could be state actors under the public function test. To be sure, Payton held that by virtue of their status as on-duty special police officers, licensed by the city of Chicago, the defendants enjoyed “virtually the same power as public police officers.” Indeed, the defendants in Payton operated under an ordinance which provided that special police officers “shall possess the powers of the regular police patrol at the places for which they are respectively appointed or in the line of duty for which they are engaged.”

This broad delegation of power, the Seventh Circuit reasoned, distinguished Payton from an earlier case in which the court had held that a private security guard endowed with more limited police-type powers was not a state actor. See Wade v. Byles. The defendant in Wade was permitted to carry a handgun and to use deadly force in self-defense but could arrest someone only for “trespass pending the arrival of the police” and could exercise these powers only in the lobbies of properties owned by the public housing authority for which he worked. The defendant was not a state actor because, as the court put it in Payton, “none of these powers had been exclusively reserved to the police—citizen’s arrests and the rights to carry handguns and use them in self-defense are available to individuals outside of the law enforcement community.”

Payton illustrates a line that has been drawn in the case law. The line divides cases in which a private actor exercises a power traditionally reserved to the state, but not exclusively reserved to it, e.g., the common law shopkeeper’s privilege, from cases in which a private actor exercises a power exclusively reserved to the state, e.g., the police power. Where private security guards are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test. (Cases and citations omitted.) The rationale of these cases is that when the state delegates a power traditionally reserved to it alone—the police power—to private actors in order that they may provide police services to institutions that need it, a “plaintiff’s ability to claim relief under Section 1983 [for abuses of that power] should be unaffected.”

On the other side of the line illustrated by Payton are cases in which the private defendants have some police-like powers but not plenary police authority. These are cases in which a private institution’s security employees have been dispatched to protect the institution’s interests or enforce its policies. The canonical example here is when a store avails itself of the common law shopkeeper’s privilege, the privilege at issue in this Court’s decision in Chapman v. Higbee Co., and the Fifth Circuit case upon which Chapman relied.

Like the district court, we think this case falls on the Payton side of the line. It is undisputed that Brown (and some of her colleagues) were private security police officers licensed under the state statute. This means that Brown’s qualifications for being so licensed were vetted by Michigan’s department of state police, and that Brown was subject to certain statutes administered by that department. More critical for present purposes are the undisputed facts that Brown was on duty and on the casino’s premises at all times relevant to this case. These undisputed facts lead to an inescapable conclusion of law—namely, that at all times relevant to this case, Brown “had the authority to arrest a person without a warrant as set forth for public peace officers….” One consequence of Brown’s possession of this authority, the authority to make arrests at one’s discretion and for any offenses, is clear: at all times relevant to this case, Brown was a state actor as a matter of law.

Unlike the common law privileges at issue in Wade (the use of deadly force in self-defense, the right to detain for trespass, and the right to carry a weapon) and Chapman (the shopkeeper’s privilege), which may be invoked by any citizen under appropriate circumstances, the plenary arrest power enjoyed by private security police officers licensed pursuant to the statute is a power traditionally reserved to the state alone.

Instead, a licensed private security officer’s arrest power is plenary in the sense that while on her employer’s property during her working hours, a private security officer can make warrantless arrests to the same extent as a public police officer. The instant case closely resembles Henderson, a case where the court found state action when the state delegated to university police officers a full power of arrest limited to campus property.

In contrast, the private security officers in Wade only had the power to “arrest people for criminal trespass….” As the Seventh Circuit later pointed out, the private security officers in Wade would have to “dial 911” if they witnessed a crime other than criminal trespass. Under Michigan law, a private security officer has no such limitation.

Defendants contend that Wade ought to control here because, as in that case, private security police officers’ power to make arrests is subject to spatial or geographic limits. But the spatial or geographic limitation in Wade was profound—it prohibited housing authority security guards from exercising their (already minimal) powers anywhere except in the lobbies of buildings operated by the housing authority. By contrast, [Michigan statute citation] invests private security police officers with full arrest authority on the entirety of their employer’s premises, which makes this case distinguishable from Wade and similar to Payton and Henderson, each of which involved a statute or ordinance that imposed or contemplated some spatial or geographic limits on the private defendants’ police powers. Furthermore, as we have discussed, private security police officers in Michigan are endowed with plenary arrest authority, while the defendant in Wade was permitted to exercise only what were in effect citizens’ arrests.

Finally, we address defendants’ repeated representation that although empowered to make arrests under [Michigan statute citation], Brown and the other casino employees licensed under the statute are, as a matter of casino policy, not permitted to exercise this statutory authority to effectuate arrests. For this argument defendants again rely on Wade, in which the very document that was the source of the defendant’s police-type powers, his contract with the public housing authority, at the same time imposed profound limits on those powers. Here the source of Brown’s power to make arrests is a statute that includes no qualitative limits on that power, so Wade is inapplicable. Defendants do not cite a case in which a private security officer licensed to make arrests as under [Michigan statute citation] was held not to be a state actor on the ground that the officer’s employer substantially circumscribed the arrest power conferred on the officer by having been licensed. The only arguable support we have found for defendants’ argument is the concurring opinion in Payton, in which Judge Ripple opined that while for pleading purposes the plaintiff’s claim of state action was viable, it might ultimately fail because “further development of the record might well establish … that the guards’ responsibilities were significantly circumscribed by their employer and that they performed well-defined functions quite narrow in scope….”

In this case, whatever development of the record occurred did not reveal circumscriptions of Brown’s authority, let alone circumscriptions of the sort contemplated by Judge Ripple in Payton. Indeed, it is noteworthy that defendants did not even make this argument at the summary judgment stage of the proceedings, arguing instead that while Brown and some of her colleagues do have the power to make arrests, Brown did not use it in this case. It is not surprising then, that in their brief to this court, defendants do not offer a single citation to the record in support of the contention that Brown’s arrest authority was substantially circumscribed. Furthermore, the jury found that defendants had in fact arrested Romanski and this aspect of the judgment is not on appeal (defendants’ jury instruction claim goes to whether probable cause existed, not whether an arrest occurred). Under these circumstances, we decline defendants’ invitation to look past [Michigan statute citation] express grant of plenary arrest authority to private security police officers. We similarly find unpersuasive the representation made on appeal that Brown was not acting pursuant to her [Michigan statute citation] authority when she initiated the unlawful arrest of Romanski, but rather was merely protecting the casino’s self-interest—conduct, defendants maintain, that was more in the nature exercising the shopkeeper’s privilege. Quite apart from the question whether Michigan’s version of the shopkeeper’s privilege even applies to casinos, there is no evidence in the record that could support the self-protection narrative defendants urge us to adopt. Indeed, all of the evidence was to the contrary: Brown was employed by the casino as a private security police officer and was on duty in that capacity when she initiated the detention of Romanski.

Consistent with the Seventh Circuit’s approach in Wade and Payton, we have focused on the specific powers that Brown, in her capacity as an on-duty and duly licensed private security police officer, had at her disposal. Because at least one of these powers, the plenary arrest power, is “traditionally the exclusive prerogative of the state,” and because it is undisputed that Brown was in fact duly licensed under [Michigan statute citation] and was in fact on duty at all times relevant to this case, the district court correctly held that Brown was a state actor as a matter of law.

Conclusion

We VACATE the punitive damages portion of the district court’ s judgment, AFFIRM the judgment in all other respects, and REMAND for proceedings consistent with this opinion.

CASE COMMENT

In this case, the Michigan statute providing arrest powers as a “private security police officer” is analogous to a “special police” officer noted in other cases. In its decision, the court provides an excellent overview of the distinction between a private security officer and a police officer. A key distinction relates to the question of whether the officer acted as a state actor under color of law. In this case, the Michigan statute provided plenary power to “private security police officers,” giving them broad arrest powers on the par with police (peace) officers. Given this broad legal authority afforded by the legislature, the court had no trouble finding that the officer was a state actor. Because the court reached this conclusion, the 1983 claim asserted by the plaintiff was actionable.

The jury award of $870,000 in punitive damages (reduced by the court to $600,000) to the plaintiff in a case that arose from a dispute over a nickel token from a slot machine serves as an ironic and instructive footnote to this case. Obviously when considered in light of the potentially enormous ramifications of a misstep by a security guard, the importance of clearly defined security policies and procedures cannot be overstated.

Background

Black customer brought action against store, alleging store security guards denied her equal benefit of the law under Section 1981 and violated Fourth Amendment when they detained her on suspicions of shoplifting. Store moved to dismiss.

Holdings

The district court held that:

1. Customer sufficiently alleged nexus between store and a state law for the protection of persons and property to support equal benefit claim under Section 1981, but

2. Fourth Amendment constrains state action, not purely private action.

Motion granted in part and denied in part

Plaintiff’s allegations arise out of an incident that occurred on September 20, 2002, at a J. C. Penney store in Queens, New York. After leaving the store without making a purchase, plaintiff was approached by J. C. Penney security guards on the street. She claims that they accused her of shoplifting and forced her to return to the store. She alleges that she was verbally and physically abused. It is undisputed that a search revealed no stolen merchandise. Plaintiff became increasingly upset, but was not allowed to leave the detention area for nearly three hours. She claims that the security guards attempted to force her to sign a false confession, which she refused to do. Plaintiff requested a copy of the incident report but never received one. Security personnel did not call the police or file a complaint against her. Plaintiff, however, filed a police complaint against the store on September 23, 2002.

Plaintiff alleges that she was singled out because she is black. She also claims that she saw only nonwhite shoppers in detention, although she had seen many white customers shopping in the store.

J. C. Penney moves to dismiss claiming that (1) plaintiff has not stated a Section 1981 equal benefit claim because there is no nexus between defendant’s actions and the state, and (2) that plaintiff cannot raise a Fourth Amendment claim against a nongovernmental actor.

A. Section 1981 Equal Benefit Claim

Section 1981(a) provides in relevant part that “all persons … shall have the same right … to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens….” To state a claim under Section 1981, a plaintiff must allege “(1) [membership in] a racial minority; (2) defendants’ intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute’s enumerated activities.”

1. Nexus to the State

Few cases in this circuit or elsewhere arise under the “equal benefit” clause of Section 1981. Although a number of circuits require allegations of state action for purposes of the equal benefit clause, the Second Circuit recently rejected this interpretation. The Second Circuit concluded that “although the phrasing of the equal benefit clause does suggest that there must be some nexus between a claim and the state or its activities, the state is not the only actor that can deprive an individual of the benefit of laws or proceedings for the security of persons or property.”

Other circuits have expressed concern that an attenuated connection between a private defendant and the state risks federalizing large areas of state tort law. The Third Circuit warned that not requiring state action would create a federal cause of action “whenever a white man strikes a black in a barroom brawl.”

The Phillip court was not persuaded by these concerns. The court emphasized that the equal benefit clause requires that a plaintiff demonstrate that the defendant’s actions were motivated by race. Furthermore, the court highlighted that nothing in the legislative history suggested Congress intended to limit the reach of the statute. As the court noted, the contract clause of Section 1981 prohibits racially motivated private conduct that interferes with rights under state contract law. There was no principled reason to suggest that Congress favored federalizing state contract law but not state tort law.

That said, Phillip provides little guidance on what type of link between a private actor and a state law or proceeding will satisfy the nexus requirement. In Phillip, the nexus was rather explicit. Private university security officers had summoned the police to help disperse a group of black students gathered on university property. Although the police arrested and held four black students overnight, all charges were subsequently dismissed. The university admitted that its security officers had treated the students in a racist manner. The court held that “assuming that Section 1981 requires a nexus to state proceedings or laws but not state action, plaintiffs’ allegations are sufficient because plaintiff’s claim that defendants attempted to trigger a legal proceeding against plaintiffs but would not have taken the same action had white students engaged in the same conduct” (private security guard “acted in concert with the authorities to cause plaintiff to be falsely arrested and maliciously prosecuted because of his race”).

J. C. Penney argues that under Phillip, this case should be dismissed because the store did not call the police, file a criminal complaint, or trigger a legal proceeding against plaintiff. The court agrees that plaintiff has not alleged a nexus to a state legal proceeding for the purposes of Section 1981 liability. However, the more difficult question is whether plaintiff’s claims are sufficient to allege a nexus between defendants and a state law for the protection of persons and property.

2. Nexus Established by Allegations of State

Law Violations

Plaintiff points to a number of state laws, the violation of which might satisfy the nexus requirement. For instance, plaintiff argues that the store violated (citation omitted) when it detained her. That section creates an affirmative defense for shopkeepers in civil actions who detain customers for a “reasonable time” if the store has “reasonable grounds” to believe the customer shoplifted. Defendant argues that Section 218 cannot supply the nexus, citing a handful of cases holding that a store’s actions pursuant to this type of statute are not “state action” for purposes of Section 1983 liability. However, as defendant itself acknowledges, Section 1981 does not require traditional state action. Thus, these cases are inapposite.

Plaintiff also alleges that defendants violated state laws against assault, battery, and false imprisonment. J. C. Penney does not address whether these state laws could provide the necessary nexus.

Thus, the question is whether allegations of standard-fare tort law, with no involvement by state actors, will suffice for purposes of the nexus element. The legislative history of Section 1981, reviewed by the Phillip court, offers some insight as to the types of state torts actionable under the equal benefit clause. The legislative history reflects particular “concern over private acts motivated by racial discrimination” (emphasis added). For instance, Congress considered reports that the “hatred toward the Negro as a freeman is intense among the low and brutal, who are the vast majority. Murders, shooting, whippings, robbing, and brutal treatment of every kind are daily inflicted upon them.” Senator Trumbull, who sponsored the legislation, identified “fundamental rights” to be protected by the statute, including “the enjoyment of life and liberty” and the freedom to “pursue and obtain happiness and safety.” Similarly, “during the Congressional debates, assaults on blacks by private citizens were referred to on several occasions. These private attacks were clearly viewed as the type of evil the [section] was designed to prevent.”

The two primary private-defendant Section 1981 cases involve this type of violent, racially motivated attack. Hawk and his cousin were attacked by a group of white men shouting racial epithets. Among other claims, the Hawk plaintiffs alleged violation of their equal benefit rights under Section 1981. Defendant Timothy moved to dismiss the equal benefit claim on the grounds that the plaintiffs failed to allege state action. The court denied the motion, concluding that “nothing in the wording of the statute compels the conclusion that state action is a prerequisite to Section 1981 liability.” The court emphasized that Congress’s intent was to reach “not only official acts of racial discrimination, but purely private injustices as well.” Similarly, Carey v. Rudeseal involved a violent attack on plaintiff by a defendant attending a nearby Ku Klux Klan gathering. Carey brought suit in federal court under 42 U.S.C. Section 1981 and Georgia tort law. The court concluded that “Section 1981 provides a cause of action against private individuals for racially motivated, intentionally-inflected injury and does not require state action in the deprivation of rights.”

Based on these cases, the court concludes that defendant’s motion to dismiss must be denied. Plaintiff alleges that defendants violated various state laws against assault, battery, and false imprisonment—laws clearly intended for the “security of persons.” To be sure, plaintiff does not allege the type of violent attack that originally concerned Congress. However, the severity of the harm does not offer a principled way to distinguish the cases. Furthermore, the racially motivated acts alleged here are examples of the more subtle, but no less invidious, type of private discrimination that seeks to deprive African Americans, and other people of color, of their civil rights. There is nothing in the text of the clause, or in the legislative history, to suggest that Congress did not intend to reach this form of invidious discrimination.

B. The Fourth Amendment Claim

Plaintiff contends that defendants violated her Fourth Amendment rights against search and seizure. Plaintiff appears to raise this claim both in the context of her Section 1981 claim and as an independent cause of action. J. C. Penney argues that these claims must be dismissed because the Fourth Amendment constrains state action, not purely private action. The court agrees.

Conclusion

For the foregoing reasons, J. C. Penney’ s Motion to Dismiss the Section 1981 Equal Benefit claim is denied. The motion is granted with respect to plaintiff’s Fourth Amendment claim.

SO ORDERED.

In this case, the plaintiff asserted a Section 1981 claim, instead of using the more common Section 1983 claim. Using Section 1981 to address allegations of racial discrimination proved to be a wise pleading decision. Notice that the court acknowledged that Section 1983 claims require state action. However, Section 1981 claims, which are designed to remedy racially motivated private action, logically does not require state action. While the court noted that traditionally Section 1981 claims were instituted in cases with extreme violence directed blacks motivated by racial discrimination, the court observed that the facts of this case do not preclude a Section 1981 action. Further, the court quickly dismissed the Fourth Amendment claim, as no state action was associated with this case. This was at least partly based on the fact that the security officer was not granted with any “special police” designation—as illustrated in previous cases.

Background

Former employee brought civil rights action against hospital under Fourth Amendment alleging use of excessive force. The United States District Court for the Northern District of Illinois dismissed action. Employee appealed.

Holdings

The court of appeals held that:

2. Single blow from walkie-talkie of hospital security guard to head of former employee was reasonable use of force to detain employee.

Affirmed

On March 23, 1999, plaintiff-appellant Pamela Johnson entered the lobby of her former employer, the LaRabida Children’ s Hospital to discuss a negative recommendation a potential employer allegedly received from LaRabida while she was applying for a new job. The stated purpose of her visit to the hospital that day was to review her personnel file with the director of the human resource department, Bill Koulias. Upon arrival, Johnson requested access to the human resources department and Koulias, but her request was denied by the hospital’s receptionist, Willie Williams. At this point, Johnson began to threaten Williams, allegedly screaming “Call the police [explicative] because I am going to kill you!” This prompted Williams to again deny Johnson’s requested audience with Koulias and place a call to hospital security. Prior to security arriving Johnson continued her tirade, allegedly threatening to beat and kill Williams and Koulias.

When security guard Tommy Stephens arrived on the scene, in the midst of Johnson’s ranting, he directed Williams to call 911. Stephens also told Johnson that she would not be allowed to go up to the human resource department to see Koulias. Johnson responded by asking whether Stephens had a gun. When Stephens told her that he did not, Johnson warned Stephens that he would need to find some people with guns to stop her. According to Stephens and Williams, Johnson claimed to have a gun.

As Johnson became more enraged, she attempted to walk around Stephens and proceed to the human resource department. Stephens grabbed Johnson to impede her advance and was subsequently kicked in the leg. Stephens responded by screaming out “that bitch kicked me.” Then, in an attempt to prevent Johnson from possibly doing harm to herself or others, Stephens, using a downward motion, struck Johnson in the head with the walkie-talkie he was holding in his left hand. It was only after Stephens struck Johnson that her verbal and physical barrage ceased and she left the hospital’s lobby, where she was met at the door by Chicago police called to the scene by Williams. Police took Johnson to a local hospital where she received thirteen stitches for her wound. While neither Johnson nor Stephens were arrested the day of the incident, Johnson was issued a citation for assault, battery, and disorderly conduct.

Although Johnson filed criminal battery charges against Stephens, the State’s Attorney’s Office elected not to pursue charges. Subsequently, Stephens, Koulias, and two other hospital employees prepared and signed misdemeanor criminal complaints against Johnson alleging disorderly conduct, telephone harassment, assault, and battery. The assault and battery charges were dismissed on April 4, 2000, and never reinstated. In return for the dismissal of those charges, Johnson pled guilty to the misdemeanor disorderly conduct and telephone harassment charges. She was sentenced to, and completed, one year of conditional supervision. In her plea agreement, Johnson admitted that she (1) acted in “an unreasonable manner”; (2) “threatened bodily harm” to persons at the hospital; (3) “provoked a breach of the peace”; (4) “battered Stephens”; and (5) “created dismay.”

Title 42 U.S.C. Section 1983 provides in pertinent part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” While generally employed against government officers, the language of Section 1983 authorizes its use against private individuals who exercise government power; that is, those individuals who act “under color of state law.” This court held in Payton v. Rush-Presbyterian-St. Luke’s Medical Center that a private party will be deemed to have acted under “color of state law” when the state either (1) “effectively directs or controls the actions of the private party such that the state can be held responsible for the private party’s decision”; or (2) “delegates a public function to a private entity.” Johnson argues, in accord with the latter theory, that Stephens should be considered a state actor due to his status as a special policeman, duly appointed under Chicago Municipal Code Section 4-340-100.

Chicago Municipal Code Section 4-340-100 declares that “[s]pecial policemen shall possess the powers of the regular police patrol at the places for which they are respectively appointed.” Furthermore, “for purposes of determining whether an individual is a state actor …, no legal difference exists between a privately employed special officer with full police powers and a regular Chicago police officer (emphasis added).” If, however, the privately employed special officers are “no substitute for the police” in that they are not “entrusted with all powers possessed by the police,” then the special officer is not considered a state actor. When, for example, a special officer’s only recourse in a given situation is to call the police for help, it is “a far cry from delegating all of the powers of the regular police patrol to the special officer.”

In United States v. Hoffman, for example, we held that privately employed railroad policemen, who were also Chicago special police officers, were state actors when they brutally beat vagrant trespassers. Of particular importance was the fact that the policemen were “authorized on a continuing and full-time basis to search actively for criminals and … to use the powers of the state when their search was successful.”

In Wade v. Byles, on the other hand, we held that a security guard working under contract with the Chicago Housing Authority (“CHA”) was not a state actor when, while on duty, the security guard got into an altercation with an individual at a CHA security checkpoint, and shot the man in the groin. Like the railroad policemen in Hoffman, the CHA had been officially delegated police authority. Unlike the situation in Hoffman, however, we held that Wade was not a case “where the state had delegated its entire police power to a private police force.” For that reason, the guard in Wade was not a state actor.

Under this standard, the district court did not err in finding that Stephens was not a state actor. Initially, it should be noted that Stephens did not, and was not authorized to, carry a firearm. Also, at the time of the incident, Stephens was not expected or authorized to carry out the functions of a police officer. Stephens was merely responsible for routine security duties only such as patrolling the interior and exterior of the hospital, observing potential safety hazards, manning an information desk, monitoring the alarm system, and providing escorts for patients and staff. In the event that a visitor to the hospital was to become unruly or disruptive, as Johnson clearly did, it was within Stephen’s discretion to ask that person to leave the premises. However, per hospital policy, when Johnson began acting belligerent and hostile and refused to leave, the only recourse Stephens had was “to call 911 for assistance in having the individual removed.” This is “a far cry from delegating all of the powers of the regular police patrol to … special officer [Stephens].”

Indeed, Stephens precisely followed this procedure on March 23, 1999. For when Stephens arrived on the scene (after responding to an assistance call from Williams) and perceived the threat that Johnson posed, he immediately directed Williams to dial 911. It was only after Stephens had been physically assaulted by Johnson, and legitimately feared for his safety and the safety of others present, that he used force to subdue Johnson, striking her once in the head with the only “weapon” he had, his walkie-talkie. Much like Wade, therefore, this is not a case “where the state had delegated its entire police power to a private police force.” Stephens was no substitute for the police and, therefore, not a state actor.

Nonetheless, assuming arguendo, that Stephens was a state actor, Johnson would still need to establish that Stephens deprived her of a constitutional right. She cannot do so. In her complaint, Johnson claims that Stephens used excessive force in seeking to detain her in violation of the Fourth Amendment. We disagree. Stephens’ use of force was reasonable as a matter of necessity and law.

“Determining whether the force used to affect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Furthermore, it is clear that, under the Fourth Amendment, “the right to make an arrest … necessarily carries with it the right to use some degree of physical coercion.” What is reasonable depends upon the particulars of a given case, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” In addition, what is reasonable “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Under this standard, it is clear that Stephens exercised reasonable force in attempting to detain Johnson. By her own admission, Johnson (1) acted in “an unreasonable manner”; (2) “threatened bodily harm” to persons at the hospital; (3) “provoked a breach of the peace”; (4) “battered Stephens”; and (5) “created dismay.” These admissions alone demonstrate that Stephens had reason to exercise physical coercion and that the single blow from his walkie-talkie was reasonable force given the situation. As such, even if we were to hold that Stephens was a state actor, he did not deprive Johnson of her Fourth Amendment right to be free from excessive force.

The judgment of the district court is AFFIRMED.

This case again distinguishes the factual circumstances to determine when a special police officer is a state actor. In assessing this question, the court noted several cases which provide guidance. The key determination is whether the special police officer is “entrusted with all powers possessed by the police.” If so, the special police officer will then be construed as a state actor. In this case, the special police officer was not deemed a state actor. In reaching this conclusion, the court noted that the policy of the hospital was for the special police officer to call Chicago police when an individual refused to leave the hospital. In addition, the hospital security personnel did not possess firearms. Based on this conclusion, the Section 1983 claim was dismissed, as the plaintiff could not show her constitutionally protected rights were violated by a state actor. Finally, the Fourth Amendment claim based on allegations of excessive use of force was also dismissed, as the court found the force used by the hospital security officer as reasonable under the circumstances. This is particularly relevant given the outrageous conduct exhibited by the plaintiff.

Background

Three nightclub patrons brought action against nightclub and nightclub security personnel following altercation, alleging assault, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and malice. The 353rd Judicial District Court, Travis County, entered judgment on jury verdict in favor of one patron, and against other two patrons. Parties appealed.

Holdings

The court of appeals held that:

2. Evidence supported finding that security guard was not acting as peace officer when he slammed patron’s head into a wall while making arrest; and

3. Nightclub was liable for acts committed by security personnel.

Affirmed

The facts of this case were hotly contested at trial. What is undisputed is that on September 16, 2000, Roberto Ramirez and his brother, Adolfo Ramirez, attended a party to celebrate the baptism of their cousin. After the party, around 12:30 or 1:00 a.m. on September 17, Roberto and Adolfo arrived at Club Rodeo with some friends. Roberto and Adolfo were, at some point, denied admission into Club Rodeo. West and Medrano, both of whom were working security in the Club Rodeo parking lot, were signaled by the Club Rodeo doorman and proceeded to the doorway of the club. An altercation between Roberto and West ensued, during which Roberto’s head struck a wall, fracturing a bone in his skull. Apparently, Adolfo intervened in the altercation between Roberto and West, causing Medrano to restrain Adolfo.

It should be noted, West and Medrano were employed as full-time campus police officers at Huston-Tillotson College. The night of the incident pertinent to this case, both were working as security for Fifth Club at Club Rodeo. They were wearing their duty belts and black shirts that stated “POLICE.”

Eventually, West and Medrano took Roberto, who was unconscious, and Adolfo into the parking lot and handcuffed them. Laura Ramirez, who was dropping off another brother at Club Rodeo, soon arrived to find her brothers Roberto, who had regained consciousness, and Adolfo lying handcuffed on the parking-lot pavement. She and West became embroiled in a verbal altercation, and West eventually handcuffed Laura and placed her under arrest as well. Both Medrano and an eyewitness called 911. Austin Police Department (APD) officers soon arrived and transported Roberto, Adolfo, and Laura Ramirez to the city jail.

West and Medrano asserted the affirmative defense of official immunity. At the time of this incident, peace officers outside of their jurisdiction could make a warrantless arrest of a person who commits a felony, a breach of the peace, or public intoxication within the officer’s presence or view. West and Medrano argued that they observed Roberto, Adolfo, and Laura commit felonies, breaches of the peace, public intoxication, or some combination thereof. Because West and Medrano were commissioned by Huston-Tillotson College to function as peace officers, they assert they were entitled to function as peace officers and were therefore entitled to official immunity (permitting private institutions of higher education to commission campus security personnel).

Based on its official-immunity findings, the jury did not reach any liability questions stemming from Laura’s and Adolfo’s complaints. The jury did, however, find both West and Fifth Club liable to Roberto and awarded him $80,000 for physical pain and mental anguish sustained in the past, $20,000 for mental anguish that he will reasonably sustain in the future, $2,100 for loss of earning capacity in the past, $7,000 for physical impairment sustained in the past, $1,198 for medical care in the past, and $35,000 as exemplary damages against Fifth Club.

Authority to Act as “Peace Officers”

Laura and Adolfo argue in one issue that they are entitled to a remand because the district court improperly submitted to the jury a question regarding official immunity for West and Medrano. West and Medrano were both employed by Huston-Tillotson College, a private institution of higher education, as campus security personnel. In empowering private institutions to hire security personnel, the legislature provided:

The governing boards of private institutions of higher education, including private junior colleges, are authorized to employ and commission campus security personnel for the purpose of enforcing the law of this state on the campuses of private institutions of higher education. Any officer commissioned under the provisions of this section is vested with all the powers, privileges, and immunities of peace officers while on the property under the control and jurisdiction of the respective private institution of higher education or otherwise in the performance of his assigned duties (emphasis added). Because this section states that a campus officer has the powers, privileges, and immunities of peace officers “while on the property … or otherwise in the performance of his assigned duties,” Laura and Adolfo argue that West and Medrano could not function as peace officers while working at Club Rodeo.

However, the statute unambiguously defines “officers commissioned under … Subchapter E, Chapter 51, Education Code” as “peace officers.”

A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony, a [disorderly conduct and related offenses], a breach of the peace, or public intoxication. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate.

We believe the interaction between these statutes is clear, establishing the jurisdiction for campus security personnel. Within this jurisdiction, campus security personnel are “vested with all the powers, privileges, and immunities of peace officers” (emphasis added). But the former statute acts as an exception to the general rule that a peace officer’s authority to act is limited to his own geographic jurisdiction. Outside of their primary jurisdiction, officers are vested with the limited authority to arrest for certain enumerated offenses committed within the officer’s presence or view.

After thoroughly analyzing the education code, the code of criminal procedure, and Texas case law, Laura and Adolfo argue that interpreting former to include campus security personnel commissioned under would lead to absurd results. First, they argue that expressly addresses the limited circumstances under which officers commissioned by private institutions may act as peace officers outside their ordinary jurisdiction. This section provides in part:

(b) The geographical area that is subject to designation under Subsection

(a) of this article may include only the private institution’s campus area and an area that:

(1) is adjacent to the campus of the private institution;

(2) does not extend further than a distance of one mile from the perimeter of the campus;

(3) is inhabited primarily by students or employees of the private institution.

(c) A peace officer serving as an adjunct police officer may make arrests and exercise all authority given peace officers under this code only within the geographical area designated by agreement between the appointing chief of police or sheriff and the private institution.

(d) A peace officer serving as an adjunct police officer has all the rights, privileges, and immunities of a peace officer but is not entitled to state compensation and retirement benefits normally provided by the state to a peace officer.

Here, we do not find that [the two statutes] conflict. The fundamental difference between these two articles is that [the current statute] provides the specific circumstances, including geographic restrictions, for when a campus security officer may exercise all the rights, privileges, and immunities of a peace officer, while former statute provides an additional situation where a peace officer, including a campus security officer, can exercise the limited function of arresting an individual for specific offenses committed within the officer’s presence or view.

The current statute allows a campus security officer functioning as an adjunct officer to make all arrests, but only within a specified geographic area. The former statute, on the other hand, allows a campus security officer to make a warrantless arrest without regard to geographic boundaries within the state only if the offense is committed “within the officer’s presence or view” and only if the offense observed is specifically listed. We conclude that the plain language of these two articles does not conflict, and we overrule Laura’s and Adolfo’s issue insofar as it is based on this reasoning.

Next, Laura and Adolfo point to [education statute] to support their argument that West and Medrano were not entitled to official immunity. This statute provides in part:

(b) Within a peace officer’s primary jurisdiction, a peace officer commissioned under this section:

(1) is vested with all the powers, privileges, and immunities of peace officers;

(2) may, in accordance with Chapter 14, Code of Criminal Procedure, arrest without a warrant any person who violates a law of the state; and

(3) may enforce all traffic laws on streets and highways.

(c) Outside a peace officer’s primary jurisdiction a peace officer commissioned under this section is vested with all the powers, privileges, and immunities of peace officers and may arrest any person who violates any law of the state if the peace officer:

(1) is summoned by another law enforcement agency to provide assistance;

(2) is assisting another law enforcement agency; or

(3) is otherwise performing his duties as a peace officer for the institution of higher education or public technical institute that employs the peace officer.

We disagree with Laura’s and Adolfo’s reading of the statutes in question. Indeed, in at least three instances courts have held when a campus officer at a public institution who is outside of his primary jurisdiction is “vested with all the powers, privileges, and immunities of peace officers and may arrest any person who violates any law of the state (emphasis added).” Section 51.203(c) is narrowly tailored to describe the circumstances under which a campus police officer maintains full peace-officer status, even if outside the officer’s jurisdiction. This does not conflict with former article 14.03(d), which empowers campus police officers—those employed by public and private institutions alike—to make warrant-less arrests for a small number of offenses committed within the officer’s presence or view. Because Section 14.03(d) applies equally to campus officers employed by public institutions and campus officers employed by private institutions and is not in conflict with Section 51.203, we overrule Laura’s and Adolfo’s issue insofar as it is based on this statute.

Finally, Laura and Adolfo cite numerous cases in support of their argument that former article 14.03(d) cannot apply to West and Medrano, but these cases are easily distinguishable from the situation now before us. In citing these cases, Laura and Adolfo focus on where West and Medrano were empowered to function with full peace-officer authority, yet they fail to address that the legislature specifically provided for limited situations in which peace officers, outside of their jurisdiction, may make warrantless arrests for a limited number of offenses committed within their presence or view.

We conclude that article 2.12(8) and former article 14.03(d) of the code of criminal procedure are clear and unambiguous and do not conflict with Section 51.203 or 51.212 of the education code, or with article 2.123 of the code of criminal procedure. We therefore hold that the district court properly submitted the question of official immunity to the jury. We overrule Laura’s and Adolfo’s sole issue.

Because all seven issues turn on an examination of the evidence presented at trial, a recounting of the evidence before the jury is necessary. The parties hotly contested what actually happened at Club Rodeo, and we will address their different accounts of the incident in turn.

Roberto and Adolfo both testified that when they were waiting in line in a front hallway to enter Club Rodeo, the club doorman allowed two men to cut in front of Roberto and Adolfo. Adolfo complained to the doorman, who then said Adolfo was not getting in. Adolfo apologized and showed his identification to the doorman, who said, “Get the [expletive] out of here.” Roberto told the doorman not to speak to Adolfo that way, and the doorman then said Roberto was not getting into Club Rodeo either.

At this point, Roberto was under the impression that his friends, who were at the cash register, had already paid for his and Adolfo’s admission. He told the doorman that if their money was returned, he and Adolfo would leave. Upon learning that their friends had not, in fact, already paid for their admission, Roberto and Adolfo turned around to leave. As Roberto was walking toward the exit, West approached from behind and grabbed his hands. When Roberto resisted West’s effort to restrain Roberto’s hands, West allegedly “got very mad” and pushed Roberto’s face against a limestone or concrete wall, fracturing a bone in Roberto’s skull and rendering him unconscious. When Roberto regained consciousness, he was lying handcuffed in the parking lot.

Adolfo testified that after West pushed Roberto into the wall, West “was beating [Roberto] several times,” prompting Medrano to tell West “that was enough.” When Adolfo tried to push West away from Roberto, Medrano grabbed Adolfo by the neck and threw him to the floor. Medrano dragged Adolfo outside, where Medrano and West allegedly kicked both Adolfo and Roberto after they had been handcuffed.

Laura Ramirez, who was dropping off another brother at Club Rodeo, soon arrived to find her brothers Roberto and Adolfo lying handcuffed on the parking-lot pavement. She exited her vehicle and attempted to ascertain what had happened from West, who was initially non-responsive. West told Laura to move her car, but Laura attempted to move closer to Roberto, whose face was swollen and bleeding. West again told Laura to move her car, allegedly telling her “it wasn’t [her] [expletive] business what was happening there.”

Laura inquired about Roberto’s injuries, which West admitted to causing. Laura stated she was going to call an attorney and returned to her truck to get her cellular phone. When Laura obtained her phone, West grabbed her from behind, threw her against a car, handcuffed her, told her she was under arrest, and pushed her to the ground. While Laura was handcuffed on the ground, Thomas Romero, Club Rodeo’s manager at that time, purportedly laughed at and mocked Laura’s predicament. Laura testified that at no point did West ever identify himself as a police officer, and at no point did she touch West or Medrano.

APD officers arrived after being called by both a witness to the incident and Medrano. APD officers transported Adolfo, Roberto, and Laura to jail. Roberto and Adolfo spent two days in jail, and were subsequently no-billed by the grand jury for assault on a police officer, the only crime with which they were charged. Laura spent three days in jail, purportedly for assault on a police officer, but was never charged with any crime.

Fifth Club, West, and Medrano present a much different account of the events of September 17. Fifth Club’s doorman testified that when he asked for Roberto’s identification to get into the club, Roberto seemed intoxicated and shoved his ID against the doorman’s chest. The doorman asked Roberto to leave, and Roberto refused. The doorman threatened to call the police if Roberto did not leave, and Roberto again refused. The doorman then signaled with a flashlight to West and Medrano that they were needed inside the club.

West was sitting in his car in the parking lot when the doorman signaled that he and Medrano, who was near the entrance, were needed inside the club. West and Medrano proceeded inside the club, where the doorman informed them that Roberto was intoxicated and should not enter the club. Roberto and Adolfo refused to leave, at which point Medrano grabbed Roberto by the wrist or hand to escort him out. Roberto pulled away and was then grabbed by West. As West was escorting Roberto to the door, Roberto kneed West in the groin, and West lost his grip on Roberto. West then pushed Roberto against a wall. Roberto attempted to strike West, at which point West began to throw a forearm at Roberto. Adolfo then punched West in the head, causing West and Roberto to fall either against the wall or onto the floor. Roberto was not moving, and West surmised he may have passed out. West handcuffed Roberto and moved him outside.

After Adolfo punched West, Medrano pushed Adolfo out the door of the club, and Adolfo tried to kick and punch Medrano. Both Medrano and Adolfo fell to the ground outside the door to the club. Adolfo repeatedly kicked Medrano while Adolfo was on the ground, causing Medrano to strike Adolfo with a flashlight several times while saying, “Police, stop kicking me.” Medrano eventually subdued and handcuffed Adolfo.

Laura soon arrived, parking her car where it would block APD efforts to arrest and transport Roberto and Adolfo. She immediately threatened to sue West, who repeatedly asked her to move her car. West escorted Laura by the elbow to her car, and Laura snatched her elbow away from West and elbowed him. West then informed Laura she was under arrest and handcuffed her. Romero, Club Rodeo’s manager, testified via deposition that he simply told Laura, “If you calm down, they’ll probably let you go.” APD officers then transported Roberto, Adolfo, and Laura to jail.

The jury was essentially asked to determine two questions. First, whether West was entitled to “switch hats” and transform from his role as private security for the club into a separate role as a peace officer. Next, if West was acting within his authority as a peace officer, the jury was asked to determine whether his actions were in good faith. Fifth Club and West argue that the evidence conclusively shows that West acted as a “reasonably prudent officer” and was entitled to immunity, but they ignore that the jury, from the evidence presented, could have concluded that Roberto never committed a crime within West’s presence or view that entitled him to function as a peace officer under former article 14.03(d) and arrest Roberto. There is, at best, conflicting evidence of whether Roberto committed any crimes at all, and the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony.

Additionally, Fifth Club and West assert that because West and another one of their witnesses testified that West’s actions were reasonable, the jury’s refusal to grant official immunity to West was based on factually insufficient evidence. We disagree. Even Officer Payne, an expert witness for Fifth Club and West, testified that he had never seen an officer slam someone’s head into a wall, and had never seen an officer hit a suspect who was already handcuffed, as West was alleged to have done. Officer Tidwell, an expert witness for Roberto, testified that the crimes allegedly committed by Roberto would not justify an officer slamming a suspect’s head against a wall. Officer Tidwell also testified it would not have been reasonable for West to grab Roberto’s arms from behind without announcing his presence as a police officer. We hold the evidence was both legally and factually sufficient to support the jury’s finding that West was not entitled to official immunity for his actions toward Roberto, and we overrule Fifth Club’s and West’s seventh issue.

This court has previously explained the process for determining when a security guard ceases functioning as an employee and functions instead as a peace officer:

In determining the status of a police officer, we ask,”[I]n what capacity was the officer acting at the time he committed the acts for which the complaint is made?” If the officer is performing a public duty, such as the enforcement of general laws, the officer’s private employer incurs no vicarious responsibility for that officer’s acts, even though the employer may have directed the activities. If the officer was engaged in protecting the employer’s property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier of fact decides whether the officer was acting as a public officer or as a servant of the employer (emphasis added). As explained above, there is both legally and factually sufficient evidence to support a conclusion that West was not acting as a peace officer under former article 14.03(d) when Roberto’s injuries were inflicted. We therefore reject Fifth Club’s contention that it is not responsible for West’s actions because he was functioning as a peace officer.

Fifth Club also asserts it is not responsible for West’s actions because he was an independent contractor. In the employment context, it is the right of control that commonly justifies imposing liability on the employer for the actions of the employee, and an employer may be vicariously liable for his independent contractor’s acts if he retains the “right to control the means, methods, or details of the independent contractor’s work.”

An employer can also be liable for the acts of an independent contractor if the “personal character exception” applies. If the duties being carried out by an independent contractor are of a personal character owed to the public by one adopting measures to protect his property, owners and operators of enterprises cannot, by securing independent contractors for the purpose of protecting property, obtain immunity from liability for at least the intentional torts of those hired.

Here, the uncontroverted evidence established that the doorman signaled West and Medrano to enter the club and remove Roberto and Adolfo. The doorman then directed West and Medrano to eject Adolfo and Roberto, which they did. Salim Salem, one of Fifth Club’s owners, testified that it was the club’s responsibility to ensure the safety of patrons and that one of the reasons for hiring outside security like West was to deter crime, both inside and outside the club. This is evidence that West was carrying out the exact functions he was hired to perform, and was performing those functions at the direction of Club Rodeo employees. We hold that the record contains both legally and factually sufficient evidence that West was acting in the furtherance of a mission for the benefit of Fifth Club and subject to control by Fifth Club as to the details of the mission. We overrule Fifth Club’s and West’s first issue.

Fifth Club also argues that the amount of $35,000 in exemplary damages is excessive. Exemplary damages must be reasonably proportioned to actual damages. There is no set rule of ratio between the amount of actual and exemplary damages that will be considered reasonable. An award of exemplary damages rests largely in the discretion of the fact finder and will not be set aside as excessive unless the amount is so large as to indicate that it is the result of passion, prejudice, or corruption, or that the evidence has been disregarded. Factors to consider when determining whether an exemplary-damages award is reasonable include: (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.

Here, the jury awarded over $110,000 in actual damages and $35,000 in exemplary damages. Examining the above factors to determine whether this proportion is reasonable, we note first that the nature of the wrong consists of serious bodily injury inflicted by Fifth Club personnel to Roberto, who subsequently spent two days in jail for crimes for which he was later no-billed. We concluded above that the evidence is legally and factually sufficient to support the jury’s findings that Fifth Club is responsible for West’s actions and that Fifth Club was itself grossly negligent.

Second, Fifth Club delegated the hiring of security officers to a third party, failed to perform background checks, did not require applications to be completed, did not provide policy manuals or instructions to outside security personnel, and was not even aware of the identities of the security personnel it was employing. Moreover, there is evidence in the record that Club Rodeo’s manager laughed at and mocked Laura while she was handcuffed. It is undisputed that West and Medrano were paid in full at the end of their shift and that Fifth Club took no action as a result of this incident.

Third, regarding Fifth Club’s culpability, the jury heard expert testimony that Fifth Club’s conduct constituted gross negligence and proximately caused Roberto’s injuries.

Fourth, considering the situation and sensibilities of the parties concerned, we concluded that the evidence is legally and factually sufficient to support the conclusion that Roberto suffered, and continues to suffer from, injuries proximately caused by Fifth Club’s gross negligence.

Finally, Fifth Club’s conduct offends a public sense of justice and propriety. Fifth Club representatives testified that personnel such as West were hired, in part, to protect its patrons. However, Fifth Club did nothing to ensure that the security personnel hired were qualified for employment. Furthermore, Fifth Club failed to inform its outside security personnel of club policies, as it did with other club employees. This is the type of conduct exemplary damages are meant to punish and deter. In light of these factors, the jury’s award of exemplary damages equal to approximately one third the amount of actual damages is not clearly wrong and unjust. We therefore overrule Fifth Club’s exemplary-damages issue.

Conclusion

The final judgment of the district court is therefore affirmed.

CASE COMMENT

This case provides another pointed analysis between the issue of legal authority, but with an additional element relating to this application of qualified immunity. The initial question regarding legal authority was largely a technical analysis of the statutes that imbue peace powers to officers similarly situated as West and Medrano. Next, the court held that even assuming that peace powers were conferred on these individuals, their physical maltreatment of the plaintiff does not make qualified immunity applicable. In essence, the court held that such bad conduct is not subject to the spirit and purpose of qualified immunity. Finally, while the punitive damage claim is beyond the scope of this chapter, I left the discussion largely intact due to the excellent analysis provided by the court. This discussion, again, serves to remind security professionals of the costly nature of bad actions and excessive force.

Background

Plaintiffs file action complaining about the “law enforcement” services provided by its property association. The trial court held that Disney’s creation of Reedy Creek was not designed to provide “law enforcement” services.

Holding

The appellate court held there is no support for the proposition that Disney was providing law enforcement on behalf of Reedy Creek. Reedy Creek did not create or participate in the creation of Disney. To the contrary, Disney prevailed upon the legislature to create Reedy Creek for the benefit of its property and for the benefit of neighboring property.

In the present case, however, not only was the Reedy Creek Development District not created for the purpose of providing law enforcement services for the inhabitants of the district, but its enabling act does not authorize it to perform that function. Reedy Creek is neither a county nor a city nor a substitute thereof. Reedy Creek does have the authority under its charter to “enter into agreements with any … firm … for the furnishing by such … firm … any facilities and services of the type provided for in this Act to the District and for or on behalf of the District to persons, firms, corporations and other public or private bodies and agencies to whom the District is empowered under this Act to furnish facilities and services…. ” It seems to follow that if the District is not empowered to provide police protection to the inhabitants of the district, it cannot contract for others to provide it in its stead. One can only imagine the outcry of the owners of the 3 percent of the property within the boundaries of Reedy Creek not owned by Disney if they were suddenly assessed their proportionate share of the costs of the 800 security personnel now serving Disney at its complex located within the Reedy Creek Development District.

Appellants point to the contract between Reedy Creek and Disney which provides that Disney will perform “such other services as the District may, from time to time, deem necessary to meet its needs for security….” It is urged that by this agreement, Disney has agreed to perform law enforcement on behalf of Reedy Creek throughout the district. The stretch is simply too great. First, the trial court found that security services referred to by the agreement meant “routine premises security in the nature of what is generally termed ‘night watchman’ services.” The record supports this finding. Appellants have not sought the records relating to this night watchman service. If they had, a different analysis might be required. Second, while the District inherently has the same right as any property owner to protect its own property, it has, as indicated above, no authority to provide law enforcement for anyone. This is consistent with the court’s interpretation of the word “security” in the agreement. Third, Disney simply does not provide “law enforcement” services. As the trial judge found, Disney issues only Mickey Mouse traffic citations.

Such citations are issued only to Disney employees, in order to encourage them to obey the speed limits and to otherwise drive safely on Disney property. The citations have no force of law—no fines are authorized and no points are assessed. The citations are placed in the employee’s personnel file for appropriate action based on the number and severity of the violations. Non-employees may be stopped by Disney security employees in order for the employees to caution such persons to slow down or otherwise drive more safely, but citations are not issued to non-employees. The actions of repeat or continuing non-employee offenders are reported to deputies of the Orange County Sheriff’s Department. This is no more law enforcement than the action of one asking his teenage neighbor to slow down while driving in the neighborhood because there are small children playing.

Indeed, the law imposes on Disney the obligation to take such action as it appropriately can in order to reduce the hazards within its complex. For example, the Howard Johnson Motor Lodge was held civilly liable in Orlando Executive Park, Inc. v. Robbins, because it failed to have sufficient security personnel on its own property under the circumstances of that case. Municipalities across the state have enacted ordinances requiring 24-hour convenience stores to provide security, usually in the form of additional personnel. It cannot be said that private employers who provide additional security on their own property, whether gratuitously, pursuant to a labor agreement, or in compliance with governmental action, are somehow providing “law enforcement” on behalf of the local police department or the county sheriff’s office and thereby subject their records to public scrutiny.

There is no evidence of public funding of the Disney security force. Although a relatively small amount is paid by Reedy Creek for the “night watchman” services performed by Disney, there is no evidence of a contribution toward the greater “law enforcement” services relied on by appellants herein.

Although a portion of Disney’s security activities is conducted on roads belonging to Reedy Creek, such activity is not law enforcement. But it is more in the nature of the duty imposed by the court in Gunlock v. Gill Hotels Co. Inc.: the “duty to provide its guests with reasonably safe passage across the highway.”

The greater security role assumed by Disney and provided on its complex is not a part of Reedy Creek’s decision-making process. Indeed, Reedy Creek has no authority to make a decision about providing security or law enforcement for others. The greater security activities performed by Disney would not be provided by Reedy Creek if Disney failed or ceased to provide it. Reedy Creek simply has no authority to provide such services for the inhabitants of its district.

Reedy Creek does not control Disney. In fact the contrary is true. Because Reedy Creek is governed by a one acre, one vote rule and because Disney owns 97 percent of the acres in Reedy Creek, Disney has substantial control over the operation of Reedy Creek. But this, standing alone, is not a Schwab factor. Certainly if Disney exerted its control to obtain a contract that met the Schwab test, then its records as they relate to that activity would be subject to the public records disclosure requirements. For example, if Disney, under an agreement with the Reedy Creek Development District Board of Supervisors, undertook to do the reclamation, drainage and erosion control activities throughout the district which the Reedy Creek charter provided that Reedy Creek would do, and certainly if Disney received public funds for this activity and used publicly owned facilities and equipment to do it, the Disney records relating to this activity would be open for inspection. Such is not the case here.

The trial judge was right in his analysis and ruling, and I concur in the affirmance of his judgment.

CASE COMMENT

In this case, the question is whether Disney performed a public function sufficient to require it to respond to a freedom of information request by a Reedy Creek property owner. In addressing this issue, the court provided a good overview of the issues involved when a private entity takes upon itself to perform a public function. In this case, the public function was law enforcement. Because Disney employed about 800 security officers, and provided certain security services to the Reedy Creek development, the plaintiffs assert that Disney was providing law enforcement services, thereby serving a public function. After analyzing the facts and the law, the court held to the contrary. Disney did not perform a law enforcement function, thereby implying that its security officers were not police officers.

Background

Principal arrested by bail bondsmen, and principal’ s wife, brought Section 1983 action against bail bond agency, agency’s underwriter, and individual bondsmen, alleging that couple had been assaulted by bondsmen in their attempt to arrest principal. Defendants moved to dismiss.

Holdings

The district court held that:

2. Bondsmen were not state actors under “nexus/joint action” test.

Motion granted

After being arrested on misdemeanor charges, Mr. Green procured a $500.00 bond from Abony. He was then released from custody on the condition that he appear before a court. On the scheduled date and time, however, Mr. Green inadvertently failed to appear. Accordingly, the defendants set out to arrest their principal.

On the night of November 11, 2003, Mr. and Mrs. Green heard a knock at their door. Shortly thereafter, the defendants busted through the front entranceway of their home with guns drawn. Although the Greens were unarmed, the defendants aimed their weapons directly at the plaintiffs’ heads. At no time, did the defendants announce their presence or properly identify themselves.

Startled by the turbulence, the Green’s dog began barking. In response, one of the defendants threatened to shoot the animal. When Mrs. Green attempted to contain her pet, a defendant forcibly grabbed her. That prompted Mr. Green to warn the defendants not to touch his wife or treat her in that manner.

At that time, the defendants converged on Mr. Green, striking him repeatedly with fists, batons, and flashlights. When Mr. Green went to his knees, the defendants continued their onslaught. In fact, they intensified their attack by incorporating stun guns.

Horrified by the events taking place in his residence, Mr. Green pleaded to the defendants for his life. In addition, he begged for his wife’s assistance. The defendants staved off Mrs. Green by threatening to kill her if she moved any closer toward her husband.

Eventually, the defendants handcuffed Mr. Green, yet, they continued to administer punishing blows and tasers. As a consequence, Mr. Green stood up. When he got to his feet, however, he was thrown into a wall and strangled. This continued until he again fell to the floor.

At the conclusion of the second struggle, Mr. Green found himself on the ground severely hemorrhaging from wounds to his head, back, and face. The violence left blood spattered all over the walls and floors of the house. Seeing her husband in agony, Mrs. Green again attempted to render assistance. When she moved towards her companion, however, a defendant struck her on the right thigh.

Once the turmoil subsided, Mr. Green informed the defendants that he was having difficulty breathing, and that he desperately needed an ambulance. A defendant responded by cavalierly stating “good, die!” Mrs. Green then attempted to call for medical assistance, but the defendants issued her another stern warning: “step back bitch.” On the threat of legal action, the defendants finally relented, permitting Mrs. Green to call 911.

As a result of his injuries, Mr. Green was rushed to a hospital. There, he was treated for trauma to his head, neck, arms, shoulders, and legs. In addition, a CAT scan was administered to determine if Mr. Green sustained brain damage. Ultimately, Mr. Green required hospitalization for twenty-three days. The severity of his injuries spawned a criminal investigation by an Assistant State’s Attorney.

Title 42 U.S.C. Section 1983 affords a remedy to plaintiffs deprived of rights, privileges, or immunities secured by the United States Constitution by one acting under color of state law. Accordingly, for a plaintiff to recover under Section 1983 there must be a showing of state action. Merely private conduct, nor matter how wrongful, is not actionable under Section 1983.

To satisfy the state action requirement, a plaintiff must demonstrate that the conduct at issue is “fairly attributable to the State.” Conduct is fairly attributable to a state where: (1) it is “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible”; and (2) where the party charged with the deprivation is a person who may “fairly be said to be a state actor.”

A. The State Right or Privilege Prong

In accordance with the “fairly attributable” test, this court will first consider whether the conduct alleged in the amended complaint was caused by the exercise of some right or privilege created by Florida law.

According to the complaint, the individual defendants here are bail bondsmen, employed by defendant, Abony, a bail bond agency. Bail bondsmen and bail bond agencies are heavily regulated in the State of Florida. In fact, “[a] person may not act in the capacity of a bail bond agent … or perform any of the functions, duties, or powers prescribed for bail bond agents … unless that person is qualified, licensed, and appointed as provided [by Florida law].”

Indeed applicable Florida statutes provide:

It is the public policy of this state … that a bond for which fees or premiums are charged must be executed by a bail bond agent licensed pursuant to this chapter in connection with the pretrial or appellate release of a criminal defendant and shall be construed as a commitment by and obligation upon the bail bond agent to ensure that the defendant appears at all subsequent criminal proceedings…. A person, other than a certified law enforcement officer, may not apprehend, detain, or arrest a principal on a bond, wherever issued, unless that person is qualified, licensed, and appointed as provided [by Florida law].

Since the defendants’ authority here—to affect the arrest of Mr. Green—was derived from Florida law, this court finds that the plaintiffs have satisfied the first prong of the “fairly attributable” test. They have alleged a constitutional deprivation (violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments) caused by the exercise of a right (a bail bondsman license) created by Florida law.

B. The State Actor Prong

Since the plaintiffs have satisfied the first prong of the “fairly attributable” test, this court will next consider whether the defendants were State actors for purposes of Section 1983.

A private party may be considered a State actor only when one of the following three conditions is met:

(1) [T]he State has coerced or at least significantly encouraged the action alleged to violate the Constitution (“State compulsion test”); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (“public function test”); or (3) the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise (“nexus/joint action test”).

In this instance, the plaintiffs have not alleged sufficient facts indicating that the State of Florida coerced or significantly encouraged the action alleged in the complaint. Florida law enforcement officers were not present when the defendants engaged in the knock-down-drag-out struggle at the plaintiffs’ residence. Nor have the plaintiffs established that the defendants were performing a public function that was traditionally within the exclusive prerogative of this State. Instead, it is apparent that bail bonding is a private function. The right of bail bondsmen to apprehend their principals, after all, “arises out of a contract between the parties and does not have its genesis in statute or legislative fiat.” In any event, history indicates that bail bonding has never been an exclusive privilege of the sovereign. Rather, since the inception of the American legal system, bail was administered by private citizens and businessmen. As such, this Order will concentrate on whether the State of Florida has so far insinuated itself into a position of interdependence with the defendants that it could be considered a joint participant in the alleged deprivation of plaintiffs’ constitutional rights.

The American system of bail, and the right of bounty hunters to search for and arrest criminal defendants, descends directly from the English common law. The origins of the practice of release on bail pending trial, antedating pre-Norman England, are unknown. Initially, sureties were literally bond body for body. If the defendant failed to appear for trial, the surety was liable to suffer the punishment that was hanging over the head of the released prisoner. Alternatively, sometimes an entire township served as surety for one of its citizens, and thus its populace was collectively responsible for the appearance of the accused.

By the thirteenth century, however, the system of bail had evolved to resemble its present state. Magistrates traveled between counties and were present in any particular locality for only a few months each year. To prevent prolonged detention of untried suspects, the sheriff often released the prisoner into the custody of a surety. Generally, a surety was a responsible individual from the community and an acquaintance of the accused who promised to pay the sheriff a certain sum, sometimes by the forfeiture of real property, in the event of the prisoner’s nonappearance at trial.

In spite of increased state regulation over bail bondsmen, the majority of courts continue to hold that they are not state actors for purposes of Section 1983. In Landry, for example, the Fifth Circuit Court of Appeals concluded that a bail bondsman was not a state actor under Section 1983 because “he neither purported to act pursuant to a warrant, nor enlisted the assistance of law enforcement officials in executing a warrant.” Likewise, the Ninth Circuit Court of Appeals concluded that a bail bondsman was not a state actor because bail bondsmen are “in the business in order to make money and are not acting out of a high-minded sense of devotion to the administration of justice.”

While the Eleventh Circuit Court of Appeals has yet to address the issue of whether bail bondsmen are state actors for purposes of Section 1983, the appellate court’s decision in Jaffe is instructive on this point. In Jaffe, Florida bounty hunters operating in Canada abducted the defendant and returned him to the State of Florida. There, he was tried and convicted on twenty-eight counts of unlawful land sale practices. The defendant then filed a writ of habeas corpus petition arguing that Florida authorities had no jurisdiction to try, convict, or incarcerate him because his abduction from Canada violated the 1971 Treaty on Extradition between the United States and Canada. That treaty affords Canada the right to either surrender fugitives or grant them asylum. “Absent governmental action,” however, “either through a direct violation of a treaty or through circumvention of the treaty, a fugitive has no basis upon which to challenge his/her return to the prosecuting jurisdiction.”

Following Jaffe, this court finds that the defendants were not state actors for purposes of Section 1983 when they attempted to affect the arrest of Mr. Green. Although their authority to arrest the plaintiff derived from the State of Florida, the complaint is bereft of allegations indicating that they received instructions, directions, aid, comfort, succor, or anything else from the State in pursuing their principal. Instead, the complaint indicates that they were acting unilaterally for their private financial interest. “When bondsmen unilaterally apprehend their principals without any assistance from law enforcement officials, courts have consistently found them not to be state actors.” This is especially the case where bail bondsmen do not identify themselves as agents of the state.

The fact that the State of Florida qualifies, licenses, and appoints its bail bondsmen is unavailing. If that were the litmus test, then doctors, engineers, lawyers, private investigators, and even concealed weapons holders would be considered state actors violating the proscription that “only in rare circumstances can a private party be viewed as a ‘State actor’ for Section 1983 purposes.”

Conclusion

Based on the foregoing, it is ORDERED that the defendants’ Motion to Dismiss Complaint is GRANTED. Since bail bondsmen are not state actors, the plaintiffs have no cause of action against the defendants pursuant to 42 U.S.C. Section 1983.

CASE COMMENT

This case takes a different twist, analyzing bail bondsmen as state actors. Of course, since the plaintiffs allege a Section 1983 cause of action, they must show the bail bondsmen were state actors. They failed to do so. The court initially examined the level of state involvement in the bail bondsmen business. Finding rather substantial government regulation, the court held it satisfied the State Right or Privilege Prong. However, the State actor requirements were not met in light of the three tests previously set out by the Supreme Court. Consequently, the case was dismissed.

DISCUSSION QUESTIONS

What factors distinguish special police from peace officers? Is one factor more important than any other? What test used to assess whether an individual is a “state actor” has the most application in contemporary America? In light of terrorism, does the need for government to provide for public safety impact the usage of special police officers? Explain your answer, regardless of your conclusion. Finally, consider a hypothetical case in which a terrorist may have information regarding a “dirty bomb” that is set to explode in a downtown business district. Please discuss the prohibition of the Fifth Amendment coerced confession and the Eighth Amendment prohibition against cruel and unusual punishment in light of the potential for massive death, financial dislocation, and property destruction that such a case would pose. Specifically, when is coerced confession or even certain torture appropriate, if at all?