United States v. Lima

MACK, Associate Judge,

with whom Associate Judge KELLY joins dissenting but concurring in the result:

I believe that my colleagues, having spoken of the need for “case by case determination,” would concede that the question of “whether particular conduct is ‘private,’ on the one hand, or ‘state action’ on the other, frequently admits of no easy answer.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-50 , 95 S.Ct. 449, 452 , 42 L.Ed.2d 477 (1974), citing inter alia, Burton v. Wilmington Park Authority, 365 U.S. 715, 723 , 81 S.Ct. 856, 860 , 6 L.Ed.2d 45 (1961). I am struck here, therefore, by the ease with which the majority opinion invokes constitutional principles to provide answers without regard to the facts. It fails to take into account that “ ‘[differences in circumstances ... beget appropriate differences in law.’ ” Burton, supra at 726 , 81 S.Ct. at 862 , citing Whitney v. Tax Commission, 309 U.S. 530, 542 , 60 S.Ct. 635, 640 , 84 L.Ed. 909 (1940).

Obviously, I could not disagree with the general principle that the Fourth Amendment does not require suppression of evidence illegally seized by private citizens. Burdeau v. McDowell, 256 U.S. 465, 475 , 41 S.Ct. 574, 576 , 65 L.Ed. 1048 (1921). My difficulty with the majority’s approach stems from the strain of having to view a retail store security guard as a private citizen. Thus the government’s witness testified that she was a “store detective” hired by the store “to apprehend and arrest shoplifters and dishonest employees”; that when she saw customers enter fitting rooms “our job was to go and peer in the fitting room by way of the louvered doors”; that *122 she peered at the appellee through the door, followed her from the store, apprehended her on the sidewalk, and told her she was under arrest. The witness further testified that she held appellee’s arm, took her back inside to the security office, read the appel-lee her rights (that anything she said could be used against her and that she had a right to a lawyer), and began filling out the “required forms.” The witness confirmed that she searched the person of appellee and her pocketbook (but denied that she asked the appellee to remove her clothes — a fact disputed by appellee who testified that she was ordered to strip and did so).

It was these facts, coupled with the government’s argument that this was only a citizen’s arrest based on probable cause (see D.C.Code 1973, § 23-582(b)) that prompted the trial judge to inquire “Whoever heard of a citizen making an arrest and conducting a search and reading Miranda rights and everything else?” It was also these facts on which appellee, suing the store in a civil action, was able to recover compensatory and punitive damages on counts charging not only’ conversion of the blouse she allegedly stole, but also assault, invasion of privacy, false imprisonment, defamation and intentional infliction of emotional distress. 1

I would find less strain in embracing the majority’s approach if it had based its conclusion simply on the concession of the government that its witness (who was not a special police officer) had not been certified as a security officer — as was mandatorily required by a 1974 District of Columbia regulation. 2 Under these circumstances, it might be difficult to find “state action” where the District of Columbia had not placed its “imprimatur” on a practice. See Jackson, supra, 419 U.S. at 356-57 , 95 S.Ct. at 456 distinguishing Public Utilities Commission v. Poliak, 343 U.S. 451 , 72 S.Ct. 813 , 96 L.Ed. 1068 (1951). It would thus not be difficult for me to agree (in isolation) with the majority when it states that here the witness “was acting as a private individual and not as an agent or instrumentality of the state” or that “mere employees performing security duties are neither officials nor agents of the government” (emphasis supplied). The point of my departure comes when the majority concludes that a retail security guard licensed by the District of Columbia, unlike a special police officer (see Lucas v. United States, D.C.App., 411 A.2d 360 (1980)), is not acting as an agent of the state when arresting citizens and referring them for prosecution.

It is somewhat incongruous for the majority to concede on one hand (as it must) that the Fourth Amendment is called into play when a private party “in light of all the circumstances” must be regarded as having acted as an instrument or agent of the state, and on the other hand to reject out of hand the consideration of some of the circumstances — that is, the nature of the activities performed by a security guard. For it is the nature of the activities performed by a security guard in acting as a substitute policeman which brings into play the state action. Thus a retail store security guard, who does more than protect his employer’s property full-time, but who pursues, apprehends and detains criminals, who performs custodial searches (consensual or nonconsensual) or seizes and preserves evidence, and who interrogates and refers the criminal for prosecution is performing a police function exclusively reserved to the state. 3 Cf. Evans v. Newton, 382 U.S. 296 , 86 S.Ct. 486 , 15 L.Ed.2d 373 (1966); Terry v. Adams, 345 U.S. 461 , 73 S.Ct. 809 , 97 L.Ed. *123 1152 (1953); Marsh v. Alabama, 326 U.S. 501 , 66 S.Ct. 276 , 90 L.Ed. 265 (1946). The function involves the exercise of power traditionally associated, not just with public interest, but sovereignty. See Jackson, supra, 419 U.S. at 352 , 95 S.Ct. at 454 . In such a case, there is mutual benefit and interdependence. See Burton v. Wilmington Parking Authority, supra, 365 U.S. at 724-25 , 81 S.Ct. at 861 . The strength of the “symbiotic relationship” (see Jackson, supra, 419 U.S. at 357 , 95 S.Ct. at 456 , distinguishing Burton), is emphasized by the suggestion that today shoplifting crime is handled almost exclusively by private security instead of public police. (See comments discussed note 3, supra.) “Conduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental charter as to become subject to the constitutional limitations placed upon state action.” Evans v. Newton, supra, 382 U.S. at 299 , 86 S.Ct. at 488 . Thus a government, in encouraging, supporting, or even acquiescing in challenged conduct may be laying the groundwork sufficient for a finding of state action. Reitman v. Mulkey, 387 U.S. 369 , 87 S.Ct. 1627 , 18 L.Ed.2d 830 (1967); Evans v. Newton, supra; Terry v. Adams, supra; Public Utilities Commission v. Poliak, supra. Here, when the District of Columbia imposed the mandatory requirement of licensing for security guards, it placed its “imprimatur” upon the exercise of state power by a special group which should be subject to the same scrutiny for violations of constitutional rights as a special or public police officer. See Jackson, supra, 419 U.S. at 357 , 95 S.Ct. at 456 . If the license does not in effect accomplish this then there is no need for a license.

I would reverse, but solely on the ground that the store’s employee, acting without a license and therefore as a private citizen, was not acting under color of law which would bring into play the operation of the exclusionary rule. I would leave it to the District of Columbia to enforce penalties for hiring private citizens to perform security duties in violation of licensing regulations. I would hold that licensed security guards are acting as an agency or instrumentality of the state when arresting and referring citizens for prosecution.

. See Regulations Establishing Standards for Certification and Employment for Security Officers, 21 D.C.Reg. 1203, as amended by the Security Officer Licensing Act of 1977, 24 D.C. Reg. 421 .

. At the time of the writing of this opinion, the court had at its disposal the benefit of comments as to prevailing practices in retail security management outlined (by Mr. Steven Euller) in a law review article not yet published (scheduled for publication in Vol. 15, # 3 of the Harvard Civil Rights — Civil Liberties Law Review) but lodged with the court.