State Licensed Casino Security Guards Are Deemed to Be "State Actors" and Subject to §1983 Liability

State Licensed Casino Security Guards Are Deemed to Be "State Actors" and Subject to § 1983 Liability

By: Peter H. Webster The Michigan Court of Appeals recently held that as a matter of law PA 330 [MCL 338.1051 et seq., the Private Security Business and Security Alarm Act] certified security officers at the Motor City Casino acted under color of state law when detaining Plaintiff Douglas Moore for purposes of Moore's claim under 42 USC § 1983 that the Motor City Casino unreasonably searched and detained him in violation of the United States Constitution. The casino security guards and casino security manager stopped Moore, a casino customer, from entering the Motor City Casino because he appeared intoxicated. The casino security guards then arrested and detained Moore because they suspected Moore committed an assault and battery on one of the casino security officers when they stopped Moore from entering the casino. The arrest arose because Moore was only given the opportunity to either return to the casino to discuss the alleged assault or place himself in the custody of the Detroit Police who were then present. Ultimately, Moore chose to return to the casino where he underwent a search and inventory of his belongings, a 2 1/2 hour locked detention, and release after signing an "86 form" permanently banning him from the casino. The Court of Appeals found that the casino security guards' ability to arrest Moore derived solely from their special state licensure. The Court of Appeals then held that the facts of the case fell squarely within the facts and legal analysis presented in Romanski v Detroit Entertainment, LLC, 428 F3d 629 (CA6, 2005), which concluded as a matter of law that the state licensed private security officers involved in the casino detention acted under color of state law. The trial court record undisputedly established the following: 1. The security officers who were involved in plaintiff's detention had obtained state licensure pursuant to MCL 338.1079, and that the training they had received was under the tutelage of a Detroit police officer and through the Michigan State Police; 2. Because of their certification under MCL 338.1080, the security officers all possessed the power to arrest Moore on the casino premises for his alleged assault which was "a part of the police power" the state "had traditionally and exclusively reserved for itself;" 3. The security officers understood that their certifications gave them the authority to make certain arrests inside the casino; and 4. The security officers arranged for Moore to be held within the casino's security detention room on the basis of this statutory authority. The Court determined that the "color of state law" requirement to state a claim under 42 USC § 1983 had been met under facts even stronger than those in Romanski, because the casino security guards arrested Moore for an alleged assault and battery, as distinct from mere larceny. The Court noted that an arrest for assault and battery was more clearly a police power than an arrest of a mere larcenous customer. The Court also noted that all security guards in Michigan have the power to arrest customers for alleged theft under MCL 338.1079(2), but that even more authority was granted to the casino security guards, making the determination that they were state actors even easier. This decision provides greater risks to casino operators because of the additional legal theory available to plaintiffs, greater potential liability of punitive damages for unreasonable searches and seizures in violation of the United States Constitution, and the recovery of attorney fees for such violations. In this case, the jury awarded $125,000 in compensatory damages and $400,000 in punitive damages. The decision also leaves open the question of whether qualified immunities may be raised as affirmative defenses against such claims. Moore v. Detroit Entm't, L.L.C., __ Mich App __(2008); Mich Ct App No. 275157 (May 27, 2008).
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