49 F.3d 1442 (10th Cir. 1995), 93-4122, Gallagher v. Neil Young Freedom Concert

Docket Nº:93-4122.
Citation:49 F.3d 1442
Party Name:Kelly GALLAGHER, Donovan K. Gallagher, Barth Robinson, Gretchen Robinson, William Van Gelderen, Susan Larsen, Brad Larsen, Harold Wardell, and Mary C. Wardell, personally and on behalf of two classes of similarly situated persons, Plaintiffs-Appellants, P. Constable, D. Constable, F.G. Maestas, D.R. Maestas, Chris Fornelius, Kim Sloan, Richard S. A
Case Date:February 28, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1442

49 F.3d 1442 (10th Cir. 1995)

Kelly GALLAGHER, Donovan K. Gallagher, Barth Robinson,

Gretchen Robinson, William Van Gelderen, Susan Larsen, Brad

Larsen, Harold Wardell, and Mary C. Wardell, personally and

on behalf of two classes of similarly situated persons,

Plaintiffs-Appellants,

P. Constable, D. Constable, F.G. Maestas, D.R. Maestas,

Chris Fornelius, Kim Sloan, Richard S. Allen, Jr.,

Laura A. Allen, Plaintiffs,

v.

"NEIL YOUNG FREEDOM CONCERT," Rick James, Director of the

Huntsman Center, University of Utah, United Concerts, Inc.,

a corporation, Contemporary Services Corporation, a

California corporation, Richard Roes 1-6, Jane Does 1

through 12, and John Does 1 through 12, Defendants-Appellees.

No. 93-4122.

United States Court of Appeals, Tenth Circuit

February 28, 1995

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[Copyrighted Material Omitted]

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Brian M. Barnard (John Pace with him, on the briefs), Utah Legal Clinic, Salt Lake City, UT, for plaintiffs-appellants.

Paul S. Felt (Cameron M. Hancock with him, on the brief), Ray, Quinney, & Nebeker, Salt Lake City, UT, for defendant-appellee Rick James.

Raymond M. Berry, Richard A. Van Wagoner, Snow, Christensen, & Martineau, Salt Lake City, UT, for defendant-appellee United Concerts, Inc. Tracy H. Fowler, Campbell, Maack, & Sessions, Salt Lake City, UT, for defendant-appellee Contemporary Services Corp. with him, on the brief.

Before SEYMOUR, Chief Judge, HENRY, Circuit Judge, and DAUGHERTY, Senior District Judge. [*]

HENRY, Circuit Judge.

Appellants challenge the district court's order granting summary judgment against them in an action filed pursuant to 42 U.S.C. Sec. 1983. They assert that, prior to entering an arena on the University of Utah campus to attend a concert, they were subjected to unreasonable pat-down searches in violation of the Fourth Amendment. The district court found that because the searches were conducted by employees of a private security company, they did not constitute the state action necessary to support a Section 1983 claim.

We review the district court's grant of summary judgment de novo, applying the same standard as the district court under Fed.R.Civ.P. 56(c). Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). Summary judgment is warranted when there is no dispute over the material facts such that the moving party is entitled to judgment as a matter of law. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The court must view the evidence in the light most favorable to the nonmoving party. Id.

For the reasons set forth below, we affirm the decision of the district court.

I. BACKGROUND

On March 20, 1991, singer Neil Young performed a concert at the John M. Huntsman Center on the University of Utah campus in Salt Lake City, Utah. The defendant-appellee United Concerts, Inc., promoted the concert and leased the Huntsman Center from the University on the evening of the

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concert. United Concerts hired the defendant-appellee Contemporary Services Corp. to provide certain security services for the concert.

United Concerts negotiated the lease of the Huntsman Center pursuant to a University operations manual that required sponsors of events to offer a discount to University students, faculty, and staff and to pay specified rental charges and direct expenses incurred by the University. The manual also stated that the requirements for "support personnel" for each Huntsman Center event, including police and internal security, "shall be determined by the Director after consultation with the sponsor of the event." Aplt.App. at 268. The manual explained the University's obligation to provide security as follows:

The University Public Safety department shall provide, for each JMHC event, qualified personnel for crowd control, building security, public safety and fire control, traffic control, and any other services at the cost of the sponsoring organization.

Aplt.App. at 270.

United Concerts' lease established a base rental charge as well as an additional fee calculated as a percentage of gross ticket sales up to a maximum amount. The lease stated that United Concerts was responsible for costs incurred by the University in providing certain support personnel for the concert, including sound technicians, electricians, and ushers. It also stated that United Concerts would pay the University an hourly fee for security and police services provided by officers from the University's Department of Public Safety.

Prior to the concert, United Concerts contacted Contemporary Services, and the two companies entered into an oral contract under which Contemporary Services agreed to provide crowd management services for the concert. United Concerts had contracted with Contemporary Services to provide similar services for other concerts, including several concerts at the Huntsman Center at which pat-down searches were performed. The decision to hire Contemporary Services for security for the Neil Young concert was made by United Concerts personnel and not by University officials. However, the lease reflected United Concerts' decision, stating that United Concerts would supply and pay crowd management personnel and specifically designating Contemporary Services as the firm that would provide crowd management. Aplt.App. at 263.

Contemporary Services had previously adopted a written policy that provided, "For 'rock', [sic] 'rap' or a 'go-go' concert, we will always conduct a full pat down search." Aplt.App. at 286. Contemporary Services' policy described the procedure for conducting these searches and listed the items that were not allowed at most events. Prohibited items included bottles, cans, cameras, drugs, tape recorders, video cameras, and weapons. Aplt.App. at 286. Representatives from Contemporary Services indicated that the company's practice was to follow this policy unless specifically directed to do otherwise by the firm that hired it. The defendant-appellee Rick James, in his capacity as Director of the Huntsman Center, had previously hired Contemporary Services directly to provide security at several events at the Huntsman Center. Pat-down searches were not performed at those University-promoted events.

Approximately two weeks before Mr. Young's Huntsman Center performance, representatives of United Concerts, Contemporary Services, and the University met to discuss arrangements for the concert. United Concerts representatives directed Contemporary Services personnel to perform the pat-down searches generally performed by Contemporary Services at rock concerts. At a meeting held approximately two hours before the concert, United Concerts representatives discussed the procedures for the pat-down searches with Contemporary Services personnel and with University officials. According to United Concerts officials, Mr. James was present at both meetings. Mr. James acknowledged that he attended the meeting on the day of the concert, but did not remember attending the earlier meeting.

On March 20, 1991, outside the Huntsman Center, Contemporary Services employees performed pat-down searches of individuals

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attending the concert. 1 Contemporary Services employees wore yellow jackets with the initials "C.S.C." on the front and the words "Event Staff" on the back. They sought to discover the items specifically barred from the concert by Contemporary Services' policy. 2 Uniformed officers from the University's Department of Public Safety observed entering concert patrons from inside the Huntsman Center, approximately six to ten feet away. According to Contemporary Services officials, their employees distributed fliers to the concert patrons informing them of the items that would not be allowed in the Huntsman Center. Contemporary Services officials also indicated that their employees informed concert patrons if they did not wish to be searched they could obtain a refund of the ticket price. However, several concert patrons stated that they were never informed of this opportunity to obtain a refund. After the concert began, Contemporary Services employees assisted University officers with security and crowd control inside the building.

Approximately 8,000 people attended the Neil Young concert at the Huntsman Center. After collecting the revenue from ticket sales and deducting appropriate amounts for sales taxes, rental charges, and direct expenses incurred, the University paid United Concerts $112,282.51. The rental charges retained by the University totalled $11,500.00.

The appellants, a group of individuals who attended the Neil Young concert and were subjected to pat-down searches before entering the Huntsman Center, filed this action alleging that the searches violated the Fourth Amendment to the United States Constitution and Article I, Sec. 14 of the Utah Constitution. They named Mr. James, United Concerts, and Contemporary Services as defendants. The district court dismissed the appellants' state law claims without prejudice and granted summary judgment in favor of all the defendants on the Fourth Amendment claims, reasoning that the pat-down searches did not constitute state action and were not performed under color of law. Invoking the various tests for state action, the appellants contend that the district court erred in reaching this conclusion.

II. DISCUSSION

The Fourteenth Amendment to the United States Constitution provides in part: "No State shall ... deprive any person of life, liberty, or property, without due process of law." That language establishes an "essential dichotomy" between governmental action, which is subject to scrutiny under the Fourteenth Amendment, and private conduct, which " 'however discriminatory or wrongful,' " is not subject to the Fourteenth Amendment's prohibitions. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95...

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