finding that an ordinance delegating “the powers of the regular police patrol” to special police officers and requiring them to follow all police rules “delegate[d] police powers otherwise exclusively reserved to the state, thus making those who act pursuant to it potentially liable under § 1983”
How later courts described this case
- finding that an ordinance delegating “the powers of the regular police patrol” to special police officers and requiring them to follow all police rules “delegate[d] police powers otherwise exclusively reserved to the state, thus making those who act pursuant to it potentially liable under § 1983”
- stating that “[a] plaintiff claiming fraud or mistake must do more pre-complaint investigation to assure that the claim is responsible and supported, rather than defamatory and extortionate.”
- finding state action where pursuant to a city ordinance appointing and licensing two private hospital security guards as "special police officers,” those guards beat, detained and arrested a hospital visitor
- holding that the doctrine applies “so long as all are working in the corporation’s (or governmental entity) interest”
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
concurring.
Crucial to the court’s holding today is the procedural posture of the case. In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, the district court may grant the motion only when the allegations of the complaint will not support relief “under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 , 104 S.Ct. 2229 , 81 L.Ed.2d 59 (1984).
Here, the court concludes that “for pleading purposes,” ante at 630, we must assume that the Ordinance made the defendants the de facto police on Rush’s premises. A charitable reading of the complaint permits that interpretation. I do not understand the court to hold, however, that, under all circumstances, the actions of a private security guard who has been appointed a special officer under the Chicago Ordinance can be considered “state action.” Such a result would stretch impermissibly -the relevant precedent of the Supreme Court and of this court. It would also require a very expansive reading of the Chicago Ordinance.
Placing aside the infrequently encountered symbiotic relationship test of Burton v. Wilmington Parking Authority, 365 U.S. 715, 723-25 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961), see also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991), the acts of an individual can be characterized as state action when the government delegates to a private individual a function that is “traditionally the exclusive prerogative of the State,” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 , 95 S.Ct. 449 , 42 L.Ed.2d 477 (1974), or when the state effectively directs, commands or encourages the actions of a private party. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 166 , 98 S.Ct. 1729 , 56 L.Ed.2d 185 (1978). In this case, no party suggests, nor do my colleagues, that this latter criterion affords any basis for characterizing the defendants’ actions as “state action.” Although the Chicago Ordinance makes clear that the City of Chicago has regulated the occupation of a private security guard through its Ordinance, the statute does not attempt to command or encourage the actions that, it is alleged, the defendant security guards took here. We therefore must determine whether, under the public function doctrine, the allegations of the complaint, read in light of the Ordinance, present the possibility that the plaintiff may be able to present facts that will warrant judgment in his favor.
*634 Turning to the text of the Ordinance, its regulatory purpose is immediately apparent. It defines “special policeman” to mean any person who guards, “for hire or reward, ... any building, structure, premises, person or property within the city” unless that individual is a police officer, sheriff or deputy sheriff. Ordinance § 4-340-010. With one exception not relevant here, the Ordinance further requires that any person engaging in the occupation of special policeman as defined by the Ordinance must first be appointed and obtain a license from the City. See Ordinance § 4-340-020. In a later section of extraordinary breadth and significant ambiguity, the Ordinance sets forth the powers and duties of a special policeman:
Every special policeman shall conform to and be subject to all the rules and regulations governing police officers of the city, and to such additional rules and regulations as the superintendent of police may make concerning special policemen. Special policemen 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.
Special policemen shall report in person to the superintendent of police at such times and places as may be required by him.
Ordinance § 4-340-100. Although I do not think that the matter is entirely free from doubt and would have much preferred the participation of the City in this appeal as amicus, I must agree with my colleagues that the Ordinance is susceptible to the broad reading they give it. Despite the obvious preoccupation of the bulk of the Ordinance with regulation of the occupation, it nevertheless appears that the City intended to allow all persons hired to guard any person or property in the City to have the same authority, at least at their place of employment, as a sworn Chicago police officer. I do not understand the court to hold, however, that every action taken by every security guard in the City of Chicago during the course of his employment amounts to “state action.” There is a significant difference between having authority and exercising that authority. Our focus must be on the “function performed.” Rendell-Baker v. Kohn, 457 U.S. 830, 842 , 102 S.Ct. 2764 , 73 L.Ed.2d 418 (1982). At this stage of the litigation, we must assume that the defendant guards were exercising the full range of police power delegated to them by the City of Chicago. Further development of the record might well establish, however, that the guards’ responsibilities were significantly circumscribed by their employer and that they performed well-defined functions quite narrow in scope— duties that cannot be considered an integral aspect of the exercise of a function that has been traditionally the exclusive prerogative of the state. See Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir.1996).
On this understanding, I join the judgment and the opinion of the court.