I. Introduction
Universities have employed on-campus security for more than 110 years.[1] Over that time, the role of the campus officers has developed significantly. Currently, universities are able to establish campus security with police power under either state authority or municipal deputization. In fact, most states have enacted statutes specifically providing for campus police forces, while private schools or schools in states with no statute authorizing campus policing rely on municipal deputization for equipping the campus officers with authority. As campus crime continues to escalate, universities are consistently responding with an increase of campus policing forces. As a result, universities are forced to address the unique legal issues that are accompanied by the evolving role and number of campus police officers, including claims of racial discrimination and civil rights violations.
This article will first define the statutory causes of action that are typically made in racial discrimination cases, provide an outline of the cases the courts have wrestled with on the topic, and discuss recent news and updates on the issue to develop a broad overview of the challenges facing university police departments and the liability facing universities because of their security forces.
II. Statutory actions
A. 1983 Claims
1. Overview
A product of the Civil War and the Reconstruction era that followed, the Civil Rights Act of 1871 created a cause of action for the violation of constitutional rights by state actors against citizens.[2] Later codified as 42 U.S.C. § 1983, the statute was enacted to enforce the provisions of the Fourteenth Amendment to the Constitution, and to prevent racial discrimination following the war, and is the statute most commonly utilized in racial discrimination cases against campus police.[3] The statute provides that to maintain a cause of action a plaintiff must show that the defendant is a state actor that acted under color of state law and that the defendant caused the plaintiff to be deprived of a right secured by the Constitution and the laws of the United States.
Following it's passing in 1871, § 1983 received little attention from the Courts, and did not become prevalent until the Civil Rights Movement of the 1960s and the United States Supreme Court decision in Monroe v. Pape.[4]Monroe held that § 1983 provides a private right of action under federal law for parties deprived of their constitutional rights, and that police officers as individuals could be held liable for such violations.[5] This spawned a massive increase in cases under § 1983; many focusing on whether a police officer is a state actor which is a requirement to assert a claim of racial discrimination under the section.
The Supreme Court in Lugar v Edmondson Oil Co.,[6] defined a state actor as someone who has "acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state," and that the actions must be "fairly attributable to the State." Over time the Supreme Court has articulated four tests for determining whether a private party's actions amount to state action. First, the public function test[7] which provides that an individual is a state actor if she acts in a role "traditionally exclusively reserved to the State, such has holding elections, or eminent domain."[8]
Second, the joint action test,[9] states that individual defendants may face § 1983 liability if “the state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity.”[10] The Supreme Court has also held that under this test private actors can be considered state actors, if they were “willful participant[s] in joint action with the State or its agents.”[11]
Third, the state compulsion test[12] requires that a state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state; this requires more than mere approval or acquiescence in the initiative of the private party to hold the state responsible for those initiatives.[13]
Lastly, the governmental nexus test or the symbiotic relationship test holds that the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.[14] The Court has held that merely because a business is subject to state regulation does not by itself convert its action into state action.[15] Rather, it must be demonstrated that the state is intimately involved in the challenged private conduct in order for that conduct to be attributed to the state for purposes of § 1983.[16]
A private party's actions amount to state actions if any one of these tests is satisfied. Therefore, if a University police officer or campus security is found to pass any of these tests, a claim may be brought against that official under § 1983, even if the University is not a public university, however, courts are split as to whether campus police are state actors.[17] These § 1983 claims are typically brought against campus police or security for alleged claims of unlawful detention or excessive force in violation of the fourth and fourteenth amendments, of which § 1983 provides a cause of action for.
2. Fourth Amendment claims under § 1983
The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,[18] and the fourteenth amendment applies the fourth amendment to the states. The United States Supreme Court has held that under the fourth amendment, law enforcement may briefly and un-intrusively stop suspects based on reasonable suspicion of criminal activity alone.[19] Further, if officers have a reasonable suspicion that the suspect is armed, they may quickly frisk the suspect to check for weapons.[20] These Terry stops allow officers to briefly detain suspects as long as there is a reasonable basis. When determining the reasonableness of a Terry stop, “the court must first consider whether the officer's action was justified at its inception; and, second, whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place.”[21] In applying the two prong Terry test, courts must look to the totality of the circumstances and not consider any individual factor in isolation.[22]
Often these claims are made against campus police in racial discrimination cases under § 1983. If the campus officer can establish that the detention was a lawfully conducted Terry stop and not an arrest, the officer will only need to prove a reasonable basis instead of a probable cause for the search. A reasonable suspicion that a suspect had engaged, is engaging in, or will engage in criminal activity is enough to satisfy this standard. This lower standard of proof benefits the officers greatly in unlawful detention claims. Each Terry stop case is extraordinarily fact intensive looking not only at the basis for the initial detention, but also at the brevity and intrusiveness of the stop.
Similarly, to determine whether a party may prevail on a § 1983 excessive force claim, an arrestee must show that the arresting officer employed force that was unreasonable under all the circumstances.[23] The Supreme Court has articulated the balancing of whether force was reasonable:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: 'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.[24]
Thus, if a court determines that the force used by the officer was objectively reasonable, then the officer will not face liability for the use of excessive force under § 1983.
3. University Liability
Importantly, it is not only the campus police that may face liability for their actions under § 1983, aside from state and federal law, campus police are governed by the university and must adhere to university's policies. Thus, in a case of alleged campus police racial profiling, a plaintiff may also claim § 1983 municipal liability against the university. If a university has established customs or policies that either cause or enable a discriminatory action, the university may be held liable. To establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.”[25] A plaintiff must “demonstrat[e] actual or constructive knowledge [of the custom] of the policy-making official for the municipality.” Also, proof of a single instance, or even a handful of instances, are not sufficient to establish a custom or pattern. Multiple, similar acts must be pleaded. Therefore, under § 1983 claims, the cases largely turn on whether the campus security officer exhibited objectively reasonable behavior in temporarily detaining or using force in detaining a plaintiff, and both the officers and the university itself may be liable.
B. Section 1981 Claims
42 U.S.C. 1981 was originally enacted as the first section of the Civil Rights Act of 1866. Section 1981(a) provides the following:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to the like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Section 1981 prevents impairment of rights by government and non-government actors. A claim alleging racial discrimination against a state actor must be asserted under § 1983. The Fifth Circuit recognized, however, that a plaintiff may be able to assert a § 1981 suit against a government employee acting in her individual capacity.[26] To state such a claim for relief under § 1981, a plaintiff must allege “(1) that [she] is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerns one or more of the activities enumerated in the statute.”[27]
C. Title VI Claims
Under Title VI of the Civil Rights Act of 1964 an entity receiving federal financial assistance for its programs and activities may not discriminate on the basis of race, color and national origin. As noted by the legislative history, Title VI
[R]ests on the power of Congress to fix the terms on which Federal funds will be made available [and on] the principle that 'taxpayers' money, which is collected without discrimination, shall be spent without discrimination.' The mandate of Title VI is '[v]ery simple. Stop the discrimination, get the money; continue the discrimination, do not get the money.' Title VI imposes no obligations but simply 'extends an option’ that potential recipients are free to accept or reject.[28]
Thus, although there is no obligation to refrain from discrimination under Title VI, universities and colleges that are accused of racial discrimination are subject to investigation by the federal agencies that provide funds, and if necessary, the agency may terminate all federal funding.[29] The agency may also turn the matter over to the Justice Department to take appropriate legal action.[30]
Importantly, the Supreme Court has determined that there is an implied right under Title VI for individuals to bring an action at either the administrative agency providing the funding or in the appropriate federal court.[31] The Supreme Court noted, "[I]t is clear from [previous Supreme Court Decisions and] from Congress's amendments of Title VI. . . [that] private individuals may sue to enforce . . . Title VI and obtain both injunctive relief and damages."
While campus police departments may face administrative penalties, and civil actions by the U.S. Department of Justice, they may also be subject to individual claims for injunctive relief and damages assuming the university or college receives federal funding.
III. Case Law
A. Early Cases
1. Qualls v. Cunningham
Unlike a direct police discriminatory claim, in Qualls v. Cunningham[32], the Seventh Circuit considered the issue of whether campus police at Northern Illinois University could be held liable Title VI, § 1983 and state tort law for "deliberately [being] indifferent to the existence of a racially hostile educational environment that caused the plaintiff to receive poor grades and ultimately resulted in his academic dismissal."
Carl Qualls was an active participant in the NAACP which at one point supported a black campus police officer who was allegedly terminated for making complaints about other officers' discrimination against African American students. Qualls claimed that during this time he became increasingly fearful of retaliation from campus police officers, and eventually he ended his involvement with the NAACP to avoid such retaliation. In fact, Qualls argued that he was so fearful of retaliation that he was afraid to leave his apartment. This, Qualls argued, was what led to his unacceptable grade point average, which caused the University to dismiss Qualls from enrollment.
Qualls maintained that the campus police had fostered an environment, where because of his race and his views, he was unable to succeed academically. The Court disagreed however and held that "no reasonable person could find that Qualls was deprived of his educational opportunities just because the campus police kept tabs on him from a distance. The Police never threatened him, used racial slurs against him, or attempted to detain him." The Court did not consider the intention of the police officers, and dismissed the claims against the officers as the lower court had also done. Therefore, the campus police were not labile under any of the Federal or State claims merely for tracking a student, despite any racially or improper reasoning for doing so.
2. Thomas v. Humfield
Thomas v. Humfield[33] demonstrates the importance of a well-pled complaint and proper service in order to survive a motion for summary judgment in the context of racial discrimination by campus police.
Carl Thomas, an African American law student who claimed to be on a mission to convert Asian women to Christianity, alleged that he was targeted and harassed by campus security because of his race at the University of California, Berkley. Thomas claimed that because of his race, campus security informed Asian women to seek male escorts when traveling around the University's library where Thomas frequented, and prevented Asian women from interacting with him because of his race.
The Court did not reach the merits of Thomas' claims as it held that he did not plead his civil rights claim with enough particularity to survive a motion for summary judgment. The Court stated that in order to survive a motion for summary judgment in the context of a civil rights claim, a claimant must specifically identify each defendant's involvement in the alleged wrongdoing. Therefore, because Thomas only alleged that specific campus security officers engaged in racial discrimination, but did not provide the exact nature of the discrimination or specific incidences of discrimination, the claims could not survive.
Further, the Court noted that in order to hold the campus security agency liable he would need to show that campus security engaged in or created a "discriminatory policy giving rise to a constitutional infraction." The Court held that Thomas' complaint failed to allege such a policy in sufficient detail to survive summary judgment.
3. Oblio v. City University of the City of New York
In Oblio v. City University of the City of New York,[34] the Eastern District of New York held that two security officers at the City University of the City of New York ("CUNY") were not liable under § 1983 for a false arrest because they had probable cause to remove the plaintiff from his class and notify authorities.
Henry Oblio, an African American male, was removed from his class at CUNY by two campus security officers after a female accused Oblio of sexual assault. The officers escorted Oblio to their quarters where he was interrogated by the officers. Oblio denied all allegations, but the officers proceeded to notify the New York Police Department. Oblio was arrested by the NYPD and prosecuted for the sexual assault; however he was acquitted on all charges by the jury.
Following his acquittal, Oblio filed a § 1983 claim against the officers alleging that because of his race the officers failed to listen to his pleas of innocence, and subsequently notified the NYPD leading to his false arrest.
The Court, however, disagreed with Oblio's claim. It held that the officers were not liable under § 1983 because their initial detainment and eventual notification to the authorities was supported by probable cause. Therefore, because the arrest was not a false arrest as it was supported by probable cause, the officers could not be liable under § 1983.
4. Brown v City of Oneonta
In Brown v. City of Oneonta[35] the Second Circuit Court of Appeals held that where law enforcement officials, including campus security, possess a description of a criminal suspect, even though that description consisted primarily of the suspects race and gender, absent other evidence of discriminatory racial animus, they could act on the basis of that description without violating the Equal Protection Clause.
The plaintiffs in this case were several black residents of the City of Oneonta and black students of State University of New York College at Oneonta ("SUCO"). On September 4, 1992 an individual broke into a house just outside of the city and attacked a seventy-seven-year-old woman. When police responded to the scene the woman could not identify the attacker, but stated that he was a young black male. In response, state, local, and campus police at SUCO responded by approaching all black males in the city and at SUCO to question them about the attack.
The plaintiffs made several claims against the city and SUCO including § 1983 claims for racial discrimination in violation of the fourteenth amendment. The plaintiffs argued that the defendants "utilized an express racial classification by stopping and questioning plaintiffs solely on the basis of their race."
The Court, nevertheless, disagreed. It held that the act of interviewing all black males on the campus and in the city was race-neutral on its face, and thus not a violation of the plaintiffs' constitutional rights and thus the action under § 1983 was dismissed. "They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime. Defendants' policy was race-neutral on its face; their policy was to investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description." Therefore the Court held that the plaintiffs did not sufficiently allege discrimination, rather this was merely a case of disparate impact.
5. Robinson v. Commonwealth et al
In Robinson v. Commonwealth et al,[36] the Massachusetts Court of Appeals determined that although a University Police Force may not selectively deny protective services to minorities under the Federal Constitution's Equal Protection Clause, a plaintiff must allege a policy of inaction towards minority students, or demonstrate that such protective services were provided to non-minorities.
Plaintiff, a black student at the University of Massachusetts, was involved in an unruly mob at the University following the final game in the 1986 World Series where the Red Sox were defeated by the New York Mets. During the riot, the plaintiff claimed he was beaten by a group of white students because of his race. The Plaintiff filed suit under § 1983 alleging that the campus police were not adequately trained in crowd control and selectively denied him protective services because of his race.
The Court first noted, citing to DeShaney v. Winnebago County Dept of Social Servs., 489 U.S 189 (1989), that police forces may not selectively deny protection to citizens. However, the Court here noted that a claim to prove selective denial must be based on acts or omissions amounting at least to reckless or callous indifference to the constitutional rights of other. The Court noted that "the only facts the plaintiff alleges in his complaint are allegations that he was detained by the police during the melee but broke lose, while white students were not similarly detained and that police failed to provide protective services to him, as a black male." The Court noted that he did not allege a policy of inaction by police with regard to violence against black students, nor did he show that white students received such protection.
Thus, the Court dismissed the plaintiff's § 1983 claim.
6. Williams v. Lindenwood University
In Williams v. Lindenwood University,[37] the Court held there was a genuine issue of material fact as to whether Campus Security and the University acted in a racially discriminatory manner when a campus security officer's report and other verbal communications by the officer to University Officials led to the expulsion of the plaintiff.
Ronnell Williams hosted a small social gathering at his dormitory located on Lindenwood University's campus. Under the University's student housing policy, alcohol was prohibited from all campus buildings, and members of the opposite sex were not permitted to enter dorms designated for same sex students. Campus security, hearing noise coming from the dormitory, entered the residence and most of the individuals fled except for Mr. Williams. The campus security officer discovered alcohol and later identified some of the fleeing individuals to be females; both violations of University policy. Although Williams was not apprehended, the security officer submitted a lengthy report detailing the incident. This report did not include any mention of Williams' gang affiliation, however, University Officials stated that the officer did verbally report that Williams, or the people in the dorm at the time of the incident had gang connections. This led to Williams' expulsion from the University.
Williams filed a claim under § 1981 alleging that the University and the communications the security officer had with University officials led to his expulsion, and that these communications involved racially charged remarks and that the allegations of gang affiliation were merely because of his race. Williams cited to specific communications such as a university official's reference to "gang bangers" and "black guys" throughout the University's investigation. The campus security officer's report did not describe the incident in such a fashion, but the deposition of University Officials stated that the campus security officer did draw inferences of gang affiliation, and noticed pictures of African Americans in the dorm purportedly showing gang signs.
The Court determined that the University's motion for summary judgment was to be denied as there was clearly a genuine issue of material fact as to whether the University discriminated against Williams based on his race, thus his case under § 1981 could proceed. This case demonstrates the importance of well pled facts in order to survive a motion for summary judgment when alleging racial discrimination by campus police and security.
7. Phillip v. University of Rochester
In 2003, the Second Circuit in Phillip v. Univ. of Rochester[38] addressed whether state conduct was necessary for a § 1981 claim after the 1991 Amendments to 42 USC 1981.
The incident occurred in 1999 on the University of Rochester campus. Four African-American University of Rochester students were confronted by university security officer while socializing with other students in the university library lobby. The university security officer came into the lobby and told them to “break it up” or “take it outside.” The officer then told the students to present their student identification. When one student showed identification, the officer took the card and called for police back up. After walking out the officers followed the students and stood in front of their cars so they could not leave. When police assistance arrived, the officers placed all four plaintiffs under arrest and they spent the night in jail. All of the charges against the plaintiffs were dropped. Plaintiffs brought numerous claims against the university and two of the university officers, including a § 1981 equal benefits clause cause of action. Plaintiffs allege that the action was only taken against the African-American students, and the officers would not have removed the students if they were white.
The district court dismissed the § 1981 equal benefit claim because there was no state action. Plaintiffs appealed the § 1981 issue, and stipulated to the dismissal of all remaining claims. On appeal, the Second Circuit Court distinguished the Third and Eighth Circuits and held that private conduct is actionable under the equal benefits clause of § 1981. According to the Court, the 1991 amendments to § 1981 clearly establish that state action is not a requirement for § 1981 liability. The Court vacated and remanded the case, finding that the plaintiffs sufficiently pleaded a claim “that defendants, who were motivated by racial discrimination, attempted to deprive them of the ‘full and equal benefit’ of a state proceeding ‘for the security of persons and property.’”
B. Recent Cases
1. Boyle v. Torres
Boyle v. Torres[39] held that private university police are state actors for the purpose of § 1983. Further, the court held that the plaintiff could survive the university police officers' motion for summary judgment as there was an issue of material fact as to whether the officers used excessive force and unreasonably seized the plaintiff.
Charles Boyle and two of his friends were driving in a vehicle in Chicago when the vehicle's horn began to malfunction and continue to sound throughout the city streets. Two University of Chicago Police were on a side street when the vehicle passed with its horn blaring.
The police followed the car, and when they reached the vehicle Boyle and the group had pulled over and Boyle was under the hood attempting to fix the horn, which had stopped sounding. The police allegedly approached Boyle, and told him to "put his fucking hands up," followed by harsh demands for identification. The officers then attempted to bring Boyle over to the police cruiser for further questioning when a small altercation arose because Boyle did not want to go with the officers.
Boyle alleged that the officers then began kicking, punching, hitting Boyle with a flashlight, and attempting to pull down his pants. More officers of the University police arrived on scene and assisted in beating Boyle.
Boyle made several claims against the officers for this incident including claims under § 1983 for an unreasonable seizure, and use of excessive force. The officers argued that, first, they were not state actors because they were employed by a private university thus they were not subject to § 1983, and even if they were subject to § 1983, the officers claimed the seizure was reasonable, and they used a reasonable degree of force in apprehending Boyle.
The Court determined that despite being a private university, the University of Chicago Police are subject to § 1983 as they were acting under the color of law. "The UCPD officers themselves acknowledge the mere fact that they are employed by a private institution does not settle the question of whether they are state actors for the purposes of § 1983." Further, the Court looked to a state statute that gave the UCPD police powers to enforce the law and then concluded,
[T]here can be no question that the UCPD's role is one that has traditionally been the exclusive prerogative of the state: they carry guns, they wear police uniforms, and they patrol their territory in squad cards; they have an ongoing authority to detain citizens and place them in handcuffs; they have the authority to demand individuals furnish them with ID. When the ensemble of the officers' powers and functions is kept in view, there can be no doubt that they are state actors.
The Court then determined, after finding the police acted under the color of law, that there remained an issue of fact for the trier of fact to determine, and thus denied the summary judgment motion on the issues of excessive force and unreasonable seizure brought under § 1983.
9. Vouchides v. Houston Community College System
In Vouchides v. Houston Community College System[40] A federal district court recently addressed a variety of racial discrimination claims in a campus police stop and detention case in Texas.
Thalia Vouchides, of Indian descent, and Janis Thompson, an African-American, were both students at the Houston Community College System (HCC). Colleen Adams, a police officer for HCC, approached Vouchides on campus in 2010. Adams claimed that she received a report that Vouchides was heard discussing murders and making a terrorist threat. Despite denying the allegations, Adams instructed Vouchides to enter the HCC security office, and show both her green card and her driver’s license. Adams pinned Vouchides up against the wall to search her and made her empty her purse on the table. Vouchides texted her friend Thompson to come and meet her at the security office. When Vouchides asked Adams why she was being singled out Adams replied, “Because you look like a terrorist.” Adams kept both Vouchides and Thompson in the security office for an hour before allowing them to leave. After the incident, Vouchides and Thompson complained to various HCC departments. A news station covered the incident, which elicited negative reactions from the other students towards Vouchides and Thompson. HCC warned Vouchides and Thompson not to attend class for fear that they might be harmed or harassed by students and staff. Vouchides and Thompson brought suit against the campus police officer individually and also against the school system. The claims included violations of Title VI, 42 U.S.C. 1981, 42 U.S.C. 1983.
The court recognized that a Title VI suit can only be brought against public and private entities. For this reason, the Title VI claims against Adams were dismissed. Even though HCC is a public entity, the court confirmed that under Title VI there is no vicarious liability claim. As a result, HCC cannot be held vicariously liable for Adams’ actions under Title VI, but it could be liable as a public entity that discriminated against the plaintiffs. The court held that no facts were pleaded to show HCC intentionally discriminated against plaintiffs when advising them not to attend class. The court granted HCC’s motion to dismiss the Title VII claim for discrimination.
The plaintiffs alleged that Adams violated 42 USC 1981 because by discriminating against them, she modified the plaintiffs’ contract to attend HCC. The court dismissed this claim holding that the plaintiffs did not plead the specific contract or terms that Adams allegedly modified.
Lastly, the court did not dismiss the § 1983 unlawful stop and detention claims against Adams because Adams was held to be a state actor that had no reasonable basis to either initially stop plaintiffs or to detain them. For these reasons, the detention was not considered a lawful Terry stop. The court granted HCC’s motion to dismiss the § 1983 municipal liability allegation. The plaintiffs needed to establish more than one instance of unconstitutional activity to support a claim of municipal liability, but failed to do so.
10. Johnson v. University of San Diego
In Johnson v. University of San Diego[41] a federal district court recently shed light on a commonly litigated issue in campus police racial profiling cases: whether a private university campus officer qualifies as a state actor under § 1983.
Trumaine Johnson, a University of San Diego (USD) student, was stopped on campus by Baker, a public safety officer, in 2009. Johnson, an African-American, alleges that the stop and arrest was racially discriminatory and sued Baker, the university president, and several other university actors. Under § 1983, only state actors are liable, but private parties may also be liable if their conduct “amounts to government action for the purposes of § 1983.” The court identified the four tests used in this analysis. To determine if Baker was liable under the § 1983 claim, the District Court in the Southern District of California applied the public function test as law enforcement duties are a “function historically performed by the government.”
Johnson claimed that the private USD campus officers are granted authority by the City of San Diego because the campus officers are able to enforce misdemeanor crimes on campus. The court relied on long standing case law in concluding that a state must provide full authorization to a private officer in order for the officer to be considered a state actor. However, Johnson did not establish that either the State of California or the City of San Diego fully authorized USD campus policing.
The fact that USD campus officers merely had the ability to assist with misdemeanor crimes is insufficient to establish the full authorization required to be liable under § 1983. Consequently, the court dismissed this claim with prejudice.
11. El-Bey v. Menefee
A recent case El-Bey v. Menefee,[42] remains under consideration by the magistrate judge after being referred back to that judge following an appeal of its order to the district court judge.
The Plaintiff in this case alleges that he is of the Moorish ethnicity and that the actions of campus police violated § 1983 because the police engaged in racially discriminatory behavior including the use of excessive force and false arrest.
The incident began when El-Bey initiated an argument with the Bursar's office at Tuskegee University because his refund check could not be delivered to him that day. As the altercation became more severe the Bursar's office contacted university police to remove him from the building. The campus police requested that El-Bey leave the premises, and when he refused, he was handcuffed and allegedly thrown to the ground before being removed from the building. Tuskegee University brought student disciplinary charges against El-Bey for violating two rules of the student handbook: defiance of authority and conduct inappropriate for a Tuskegee University student. El-Bey later filed claims against the University, specifically for our purposes, § 1983 claims against the campus police alleging discriminatory acts.
The magistrate judge hearing the issue in October 2014 determined first that the campus police, although working for a private university, were acting under the color of state law and thus were subject to § 1983. The judge then reasoned that the campus police were not liable under § 1983 for the use of excessive force and false arrest as the officers used objectively reasonable force in El-Bey's apprehension and there was probable cause for his apprehension.
The District Court, however, in November 2014, remanded the decision regarding the § 1983 claims back to the magistrate judge for further consideration before the Court will grant summary judgment on these issues. The case is pending.
12. Akins v. Hedgecoth
In January of this year, the court in Akins v. Hedgecoth[43] denied a motion to dismiss a Plaintiff's complaint that alleged violations of § 1983 by campus police officers.
Rodney Atkins, an African American, attempted to use the campus mailroom to send mail to university teachers. One of the Defendants in this case, a mailroom attendant, would not permit Atkins to use the mail service as the spring semester had already ended and it was unlikely that the teachers Atkins was mailing documents to would receive his letters. This spawned an argument between Atkins and the attendant causing the attendant to call campus security.
When security arrived they attempted to speak with Atkins but Atkins refused and offered to leave the building. The officers insisted that he sit and speak with them, and when he declined to do so the officers put Atkins in handcuffs forced him to discuss the issues with them. Atkins filed a complaint against the campus security officer under § 1983 alleging that the officers used excessive force and illegally seized and stopped him based on his race.
The Court, after dismissing most of the claims filed by Atkins against the mail room attendant, refused to dismiss these complaints against the campus police officers. The Court reasoned that at this stage in the litigation, if the facts are broadly construed and taken in a light most favorable to Akins, he did state a claim on which relief could be granted; thus the case will move forward to later stages of litigation. Cases like Akins continue to show up in news outlets throughout the country, and are gaining enormous attention and creating a large public outcry.
IV. Recent News
Racial profiling continues to make headlines nationwide. It is important to stay aware of the suits and incidents occurring at other universities to best prevent similar events.
University of California Los Angeles (UCLA) recently settled a racial profiling and excessive force claim for $500,000.
While driving home from the gym, David S. Cunningham, an African-American Los Angeles County Superior Court Judge and a former police commission president, was pulled over by the UCLA campus police. The police stated that he was pulled over for failing to wear a seat belt. During the stop, Cunningham alleges that he was told to get out of his car, and then pushed up against his car. He further claims that the officers handcuffed him and locked him in the backseat of the police squad car.
Cunningham planned to file a lawsuit against the university in federal court; however, a settlement was reached. UCLA agreed to settle the case for $500,000. The settlement agreement provides that $350,000 of the award will establish “The David S. Cunningham, III Scholarship for Civil Rights,” to be administered by the university’s Black Alumni Association. Further, UCLA agreed to continue training campus police officers on issues of bias, diversity, and use of force and to hold a community forum conference at UCLA Law School to promote dialogue around the issue of “police/community relations, with emphasis on the issue of understanding diversity, bias, public engagement, racial profiling and effective strategies for ensuring equity in policing”[44]
In September 2014, UCLA campus police officers were involved in another alleged racial profiling incident. Claudius E. Gaines III was stopped by UCLA campus police while driving home. Gaines, an African-American, was returning home from his position in the facilities department of the university. Gaines claims that the officer had no legitimate reason to pull him over. The officers asked Gaines to present his identification and his proof of insurance. The officers allege that they repeatedly asked Gaines exit the vehicle, but Gaines refused, requesting to know why he was stopped. Initially the police said that it was due to a faulty brake light, but Gaines refuted the reasons stating that he just recently checked the brake light. Allegedly, the officers then said it was because he was seen using his cell phone. Again Gaines disagreed, taking his cell phone out to show the officers. At this point the officers threatened to use pepper-spray on Gaines and called for backup. The campus officers arrested Gaines for obstruction and resisting arrest. The university announced that there is still an ongoing investigation of the incident. No formal charges have been filed, but Gaines is reportedly considering suing the university and campus police department for racial profiling and discrimination.
Arizona State University has also been in the news for two racial profiling events in the past year. In May 2014, ASU professor Ersula Ore was leaving campus one evening when a campus police officer confronted Ore. Ore, an African-American woman, was not aware of the reason for the detention and the officer was demanding Ore present identification without disclosing the basis for the stop. Ore’s refusal led to the officers roughly restraining Ore, eventually putting her to the ground and arresting her. During the altercation, Ore reportedly kicked the officer’s leg.
The event between the officer and Ore was recorded. The officer stated that the reason for the initial stop was Ore’s jaywalking. According to Ore, walking across the middle of the street was the only option to cross safely because of a closed road due to construction. Ore was charged with resisting arrest, aggravated assault and several other misdemeanors following the detention.
After the video documenting the arrest was released publicly, Ore has received attention and an outpouring of support nationwide. A website titled “Stand Your Ground And Lift Your Voice” was created specifically to provide awareness of Ore’s case and gain funding through donations to help Ore retain counsel to defend the criminal charges against her. The website also encourages supporters to sign a petition requesting that the Arizona State University Police Department drop all charges against Ore and issue an unqualified apology. As of January 20, 2015, the petition garnered 14,981 signatures. ASU conducted an internal investigation, concluding that the arresting officer did not racially profile Ore, nor did he use excessive force against her. In August of 2014, the felony charge was dropped and Ore pled guilty under a plea agreement to one of the misdemeanor charges. The arresting officer was placed on a paid administrative leave while the FBI investigated the stop and arrest to determine if the ASU officers racially profiled Ore.
In November 2014, Ore filed a notice of claim against the arresting ASU campus officer for violation of her civil due process rights, false arrest, and use of excessive force. In January 2015, ASU released a statement of their intent to fire the arresting officer. The officer is appealing the decision and a termination hearing will be held. Ore will reportedly go forth with her $2 million charges against ASU despite the outcome of the termination hearing. There has been no report of a settlement offer as of January 20, 2015.
ASU faces another similar suit from Faith Maxson, an African-American student. In 2013, Maxson was approached by a campus officer while she and a friend were parked in her car. The officer told Maxson to present identification, without stating the reason for the request. Maxson refused, stating that there was no reason to need identification because she had not done anything illegal. The campus officer then attempted to remove Maxson from her vehicle. This altercation was also recorded and Maxson is heard shouting that the detention was illegal. The officers pushed Maxson to the ground, searched, and arrested her. In July 2014, the judge refused to dismiss Maxson’s case, holding that the officers did not establish a reasonable basis for the initial approach and request of Maxson to present identification. Subsequently, Maxson requested a delay of her case. It is possible that Maxson is awaiting the outcome of the investigation into the arresting officer before proceeding with her claims.
Some organizations are attempting to eradicate racial profiling at its source. At the University of Minnesota, members of the African American and African Studies, Black Faculty and Staff Association, Black Graduate and Professional Student Association, Black Men’s Forum, Black Student Union and Huntley House for African American Males issued a letter to the school president and vice president regarding campus-wide crime alerts. The letter requested that campus police stop including race in the school wide crime alerts suggesting that the result is detrimental racial profiling of black men. The school released a response letter acknowledging the concerns, but upholding the school’s policy of including race as part of the description in campus crime alerts. The vice president of University Services stated that “The information we share can include a complete description of suspects, unique identifying characteristics such as an accent or a distinctive piece of clothing, or the description of vehicles involved. We have reviewed what other Big Ten Universities and local colleges and universities include, and our practice of including the race of a suspect when it is available from a victim’s description is consistent with their practices.”
V. Conclusion
Just as ordinary police officers face liability under the various civil rights acts, campus police and security, too, must be trained appropriately in the law and realize the severe consequences they face both individually and as a university as a whole. Moreover, as this article has demonstrated, campus security and police can face this liability even if their agency is not a state sanctioned police force. Courts seem in favor of determining that campus police are actual police and tend to find that they pass one of the four tests under § 1983 for acting under the color of state law. Therefore, it is imperative that universities and colleges continue to train and make officers aware of the civil rights implications of their actions to avoid major liabilities.
Endnotes:
[1] Jamie P. Hopkins and Kristina Neff, Jurisdictional Confusion That Rivals Erie: The Jurisdictional Limits of Campus Police, 75 Mont. L. Rev. 23 (2014).
[2] Lacey Perkins, Note, A Circumstantial Defense: Determining the Applicability of the Good Faith Defense for Campus Security, 19 Suffolk J. Trial & App Advoc. 176 (2013-2014).
[3] Id. See also Monroe v. Pape, 365 U.S. 167.
[4] 365 U.S. 167.
[5] Id. See also Perkins supra note 1.
[6] 457 U.S. 922, 937 (1982).
[7] West v. Atkins, 487 U.S. 42, 49-50.
[8] Flagg Bros. v. Brooks, 436 U.S. 149 (1978).
[9] Dennis v. Sparks, 449 U.S. 24 (1980).
[10] Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir.1995).
[11] Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).
[12] Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
[13] Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982).
[14] See Jackson, 419 U.S. 345, 351; Burton v. Willington Parking Authority, 365 US 715, 745 (1961).
[15] Jackson 419 U.S. at 351.
[16] Bier v. Flemming, 717 F.2d 308 (6th Cir. 1983).
[17] Courts have held that the security or safety personnel are state actors only “where the state delegate[s] its entire police power” to them. Johnson v. LaRabida Children's Hosp., 372 F.3d 894, 898 (7th Cir.2004) (internal quotations omitted): See eg., Boyle v. Torres, 756 F.Supp.2d 983, 993–95 (N.D.Ill.2010) (University of Chicago police were state actors pursuant to Illinois law giving them “the powers of municipal officers and county sheriffs”); Harper v. Franklin & Marshall College, 2011 WL 2746644 at *5 (E.D.Penn. July 14, 2011) (mere fact that campus police were “appointed as Private Police under the Pennsylvania Private Police Act” did not clothe campus police with state authority); Scott v. Northwestern University School of Law, 1999 WL 134059 at *5 (N.D.Ill. Mar.8, 1999) (campus police officers were state actors because Illinois statute gave them the same powers as municipal police officers); Henderson v. Fisher, 631 F.2d 1115, 1118 (3d Cir.1980) (finding state action on the part of University of Pittsburgh police because “the Pennsylvania legislature has delegated to the campus police ... the very powers which the municipal police force of Pittsburgh possesses”).
[18] U.S. Const., amend. IV.
[19] Terry v. Ohio, 392 US 1, (1967).
[20] Id.
[21] United States v. Stanley, 915 F.2d 54, 55 (1st Cir. 1990).
[22] U.S. v. Dapolito, 713 F.3d 141 (1st Cir. 2013) (case citations and internal quotations omitted).
[23] Correia v. Feeney, 620 F.3d 9 (1st Cir. 2010).
[24] Graham v. Conor, 490 U.S. 386, 396 (1989) (citations omitted).
[25] Pineda v. City of Houston, 291 F.3d 325, 330 & n. 13 (5th Cir.2002).
[26] See Oden v. Oktibbeha Cnty, Miss., 246 F.3d 458 (5th Cir. 2001).
[27] McNulty v. J.C. Penney Co., 305 F. App'x 212, 217 (5th Cir.2008) (quoting Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.1994)).
[28] Guardians Ass'n v. Civil Serv. Comm'n of City of New York, 463 U.S. 582, 599 (1983) (legislative history citations omitted).
[29] See 28 C.F.R. ch. 1 § 50.3.
[30] Id.
[31] Alexander v. Sandoval, 532 U.S. 275, 279 (2002).
[32] 183 Fed.App'x 564 (2006).
[33] 32 F.3d 566 (5th Cir. 1994).
[34] No. CIV.A.CV-01-5118, 2003 WL 1809471 (E.D.N.Y. Apr. 7, 2003).
[35] 221 F.3d 329 (2nd Cir. 2000).
[36] 32 Mass. App. Ct. 6 (1992).
[37] 288 F3d 349 (8th Cir. 2002).
[38] 316 F.3d 291 (2003).
[39] 756 F. Supp.2d 983 (N.D. Il 2010).
[40] No. CIV.A. H-10-2559, 2011 WL 4592057, at *9-10 (S.D. Tex. Sept. 30, 2011).
[41] No. 1CV0504-LAB NLS, 2011 WL 4345842, at *5 (S.D. Cal. Sept. 16, 2011).
[42] No. 3:14-CV-47-WKW, 2014 WL 6633544 (M.D. Ala. Oct. 27, 2014) report and recommendation adopted in part, rejected in part, No. 3:14-CV-47-WKW, 2014 WL 6633484.
[43] No. 12CV576 BTM WVG, 2015 WL 46567, at *6 (S.D. Cal. Jan. 2, 2015).
[44] Joint Media Statement, University of California and Judge David S. Cunningham III reach a settlement, July 11, 2014, available at http://newsroom.ucla.edu/stories/university-of-california-and-judge-david-s-cunningham-iii-reach-a-settlement.
