John M. (Jack) Collins, Attorney, General Counsel, Massachusetts Chiefs of Police Association, Inc. unicipalities or state governments may mistakenly believe that they can avoid all liability claims when they privatize some law enforcement or corrections functions. Even by simply granting police powers to private citizens or by allowing regular officers to work for third parties, it is possible that traditional §1983 (the Federal Civil Rights Act) or similar claims may be brought against both the individuals and the governmental appointing authority. Unfortunately, there is no “one-size-fits-all” bright line rule that determines when civil rights or other liability claims may succeed, nor when such private or off-duty officers may assert a qualified immunity defense. Courts have made it clear that determinations wil be made on a case-by-case basis, with facts controlling the outcome.
In 1976, a federal study concluded that more than one million people are employed in private security work in the United States.1 Also, only about one-half of all crime-related security personnel work in the public sector; the other half are included in the group of so-called private police.2
The auditor appointed to oversee the Seattle, Washington, Police Department recommended earlier this year that they discontinue the practice of allowing retired officers to perform police duties such as traffic direction or security at sporting events, in part out of a concern for potential liablity, even though not a single claim had been reported. This recommendation is likely to bring this issue to the forefront across the United States.
If this is the case, then a thorough review of all potential sources of liability is in order. Similar to the types of threat analyses public safety executives have come to apply to a variety of situations following 9/11, chiefs and their legal advisors can assess the risks and take steps to minimize or eliminate the exposure to liability. In some cases, this may result in actions such as curtailing the use of special officers, restricting when and where off-duty officers work, and mandating enhanced training. In other circumstances, it may involve simply accepting the risk, but insisting on increased insurance coverage or indemnification agreements.
Section 1983 Claims
In the 1800s, before many communities had regular police departments, it was not uncommon to appoint private parties as “special” police officers for establishments such as pool halls, bowling alleys, theaters, and parks. Presently, granting police powers to security guards or allowing regular officers to provide police services to private employers is a widespread practice. When off-duty police officers or private citizens with special police power supply police services to private employers, traditional civil rights or other claims can be expected. Since tort claims are often dependent on a state’s Tort Claims Act or similar statute, chiefs should consult counsel for rulings in this area. This article will focus exclusively on §1983 cases.
In order to prevail on a claim under §1983, the plaintiff must establish “(1) that the conduct complained of has been committed under color of state law, and (2) that this conduct worked a denial of rights secured by the Constitution or laws of the United States.”3 Plaintiffs will often seek to establish that the private officer’s conduct was performed under color of state law based on two separate tests—the “public function” test and the “nexus” test. “Under the public function test, a private party is deemed a state actor if he or she exercised powers traditionally reserved exclusively to the state.”4 Public function is not always easy to justify, however. “In order to prevail on [a public function] theory, a plaintiff must show more than the mere performance of a public function by a private entity; he or she must show that the function is one exclusively reserved to the State.”5 Courts will look at the history of policing in United States, dating to the 19th century, to determine whether private parties have supplied police services. To prevail under the nexus test, “a plaintiff must show ‘a close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the State itself.’”6
Although many courts have yet to address the precise issue, some have found that under certain circumstances the actions of a private security officer may be sufficient to satisfy one or both of these tests. The U.S. Court of Appeals for the Sixth Circuit found that a private security officer was a state actor under the public function test where the undisputed facts showed that such officer was licensed as a private security police officer under state law, was subject to certain statutes administered by the department of state police, and had “the authority to make arrests at [his] discretion and for any offenses” at all times relevant to the case.7 In another Sixth Circuit case, the court concluded that a reasonable jury could find that a store security officer’s conduct in stopping and initiating a strip search of the plaintiff could fairly be attributable to the state under the nexus test where the officer was an “off-duty sheriff’s deputy, wearing his official sheriff’s uniform, badge, and sidearm” during the incident in question, and the officer was mandated by the store’s policies and regulations to seek “police intervention in strip search situations.” 8 The Seventh Circuit found that private security personnel who were licensed by the city as special police officers could be deemed state actors based on allegations that “no legal difference exists between the privately employed special officer with full police powers and a regular Chicago police officer.”9
When a plaintiff sued the City of Boston (Massachusetts), claiming that his civil rights were violated during his arrest by special police officers licensed by the city, the judge held that the complaint must be dismissed because the plaintiff had not proved that an official government policy or custom directly caused the alleged violation of his rights.10 The court noted, however, that the city could be held liable under §1983 for misconduct of licensed special officers to the same extent that it could be liable for the misdeeds of other city employees. Although a statute made the special officers’ employer liable for their misconduct, the statute also gave the special officers the power of police officers to preserve order and enforce the laws and ordinances of the city. In this case, the arrestee’s allegations that licensed special officers violated his civil rights by using excessive force in an apparently isolated incident failed to identify an official city policy that immediately caused the alleged constitutional violation and failed to allege that the city had reason to know that the special officers posed a risk, as required to state a claim for municipal liability under §1983.
In a case decided in late 2013, a judge deferred answering the question of whether a private security guard was acting under the color of state law. Since this requires a fact-intensive analysis, he determined that this question should be submitted to the jury. If they found he did act under color of law, the court would then look at the facts of this particular case and decide whether such individual was entitled to qualified immunity. 11
The question whether a private security officer was acting under color of state law must be evaluated in light of the specific facts of the case.12 Courts are unlikely to dismiss cases until all the facts are known, since resolving whether a special or off-duty police officer was acting under color of state law during a given incident “requires an assessment of the totality of the circumstances” (quotations and citations omitted).13 Moreover, while the general scope of the security guard or off-duty officer’s authority is relevant to the analysis, the critical issue for purposes of determining whether a defendant was acting under color of state law “is whether the actor, at the time in question, purposes to act in an official capacity or to exercise official responsibilities pursuant to state law.”14
Depending on the facts of a given case, it is possible for a court to conclude that a private police officer is entitled to qualified immunity. Some plaintiffs find this hard to believe, primarily because of the U.S. Supreme Court’s 1997 decision in Richardson v. McKnight.15 In Richardson, the court held that private prison guards employed by a private firm engaged by Tennessee to manage its prisons were not entitled to claim qualified immunity from a suit by prisoners seeking to hold them liable under §1983.16 However, the court issued a caveat in connection with its opinion, in which it observed that it had answered the immunity question “narrowly, in the context in which it arose.”17
That context was “one in which a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms.”18 Thus, the court did not preclude the possibility that qualified immunity might apply to private individuals acting under a different set of circumstances. The court noted that the case did not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential government activity, or acting under close official supervision.
In Downs v. Sawtelle, the First Circuit determined that “a private individual shown to have acted in concert with state officials” could not rely on a defense of qualified immunity.19 However, as the First Circuit subsequently explained, “Downs pre-dated Lugar [v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S. Ct. 2744, 73 L.Ed.2d 482 (1982)] in which the U.S. Supreme Court at least suggested that qualified immunity is available to private individuals in certain situations.”20
The First Circuit has held that in certain cases private individuals faced with claims under §1983 may assert a defense of qualified immunity. For example, a private physician was entitled to the defense of qualified immunity where “he was pressed into service by the State.”21 Similarly, a court found that such defense was possible where private individuals, through their employers, “were under contract to perform the duties statutorily required of the state.”22
The question whether private defendants are entitled to rely on a qualified immunity defense is complex and should be evaluated in light of the particular relationship between those defendants and the state. In many cases, chiefs and their legal advisors can conduct an analysis of most potential sources of liability and take steps to minimize or eliminate their agencies’ exposure. ♦
1National Advisory Committee on Criminal Justice Standards and Goals, Private Security: Report of the Task Force on Private Security (Washington, DC: 1976).
2James S. Kakalik and Sorrel Wildhorn, The Private Police: Security and Danger (Rand Corporation, 1977), 5.
3Grant v. John Hancock Life Ins. Co., 183 F. Supp. 2d 344, 355 (D. Mass. 2002) (quoting Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995) and Chongris v. Board of Appeals, 811 F.2d 36, 40 (1st Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987)).
4Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2005).
5Perkins v. Londonderry Basketball Club, 196 F.3d 13, 19 (1st Cir. 1999).
6Id. at 19 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L.Ed.2d 477 (1974)).
7Romanski v. Detroit Entm’t, LLC, 428 F.3d 629, 638 (6th Cir. 2005).
8Chapman, 319 F.3d at 834–35.
9Payton v. Rush–Presbyterian—St. Luke’s Med. Ctr., 184 F.3d 623, 630 (7th Cir. 1999).
10Miller v. City of Boston et al., 586 F. Supp. 2d 5 (D. Mass. 2008).
11Chavez v. Zachowski, Slip Copy, 2013 WL 6072874 (Civil Action No. 12-10251-JGD (D. Mass. 2013).
12Chapman, 319 F.3d at 834 (“[t]he inquiry is fact-specific, and the presence of state action is determined on a case-by-case basis”).
13Grant, 183 F. Supp. 2d at 335.
14Id. at 356 (quoting Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 449 (1st Cir.1997)).
15Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100, 138 L.Ed.2d 540 (1997); see also, Downs v. Sawtelle, 574 F.2d 1 (1978).
16Richardson, 521 U.S. at 401.
17Id. at 413.
19Downs, 574 F.2d at 15–16.
20Rodriques v. Furtado, 950 F.2d 805, 814 n. 11 (1st Cir. 1991).
21Id. at 815.
22Frazier v. Bailey, 957 F.2d 920, 928 (1st Cir. 1992).
Please cite as:
John M. (Jack) Collins, “Liability for Special or Private Police Officers,” Chief’s Counsel, The Police Chief 81 (April 2014): 14–15.