On September 16, 2020, the Seventh Circuit Court of Appeals decided the United States v. Green[i], in which the court examined whether a security guard working for a company that provided security for the Chicago Housing Authority (CHA) was a “state actor,” such that the Fourth Amendment would apply to searches and seizures the guard conducted. The relevant facts of Green, taken directly from the case, are as follows:
On January 27, 2017, when Green was visiting a friend at a CHA public housing unit in Trumbull Park. Sirjohn Hudson, a security guard employed by AGB Investigative Services (AGB), dropped off another guard before entering the unit. In the laundry room, Hudson attempted to stop and search Green. Hudson subdued Green outside the CHA unit and recovered a handgun before calling the Chicago Police Department.[ii]
Green was subsequently indicted under federal law for being a convicted felon in possession of a firearm. Green filed a motion to suppress and argued that the guard violated the Fourth Amendment when he stopped and searched him because the security guard lacked reasonable suspicion. The district court held that the security guard lacked reasonable suspicion but denied the motion. The district court reasoned that the security guard was not a state actor, and as such, the Fourth Amendment did not apply to his actions. Green entered a guilty plea with the right to appeal the denial of his motion to suppress.
On appeal, the issue was whether the security guard, who worked for a company that was under contract to provide security guards to the Chicago Housing Authority (CHA), was subject to the requirements of the Fourth Amendment.
The court first noted that, under Supreme Court precedent,
The Fourth Amendment is inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any government official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (citation omitted).[iii]
It is important to note that the CHA has a police department with full police powers under the laws of the State of Illinois. On appeal, Green argued that the CHA delegated its municipal police power to the security company, AGB, and that delegation made the security guard a state actor such that the Fourth Amendment would apply to his actions. However, the court of appeals noted that under Illinois law, CHA’s police powers are distinct from its power to employ security guards who work for private companies. In fact, there is a CHA contract that designates AGB as an “independent contractor to perform security services included ensuring unauthorized people do not enter and reporting incidents to the property manager.”[iv]
The Seventh Circuit also examined their relevant precedent, particularly Wade v. Byles[v]. In Byles, a security guard that worked for a company, T Force, was providing security in the lobby of a CHA building. A group of males entered the building. The security guard got into a scuffle with Wade, a male in the group. The security guard shot Wade in the groin during the scuffle. Wade sued CHA for excessive force under the Fourth Amendment.
In Wade, the Seventh Circuit stated
The sole issue on this appeal is whether the district court erred in concluding that Byles, a private citizen employed by a private company to provide security at CHA buildings, was not a state actor when he shot Wade. It is well established that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 92 L. Ed. 1161, 68 S. Ct. 836 (1948)).[vi]
Thus, in Wade, the court had to determine whether the security guard was a state actor. The court stated that in order for a private person’s conduct to be legally considered “state action,” there must be nexus between the state and private conduct such that the state must somehow be responsible for the unlawful action conducted by the private person. The Seventh Circuit stated that there are two ways for a plaintiff to establish that nexus between the private action and the state.
The first way a private person’s actions can be attributed as state action occurs when
[A] state effectively directs, controls, or encourages the actions of a private party. In these cases, “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id.; see, e.g., Hinman v. Lincoln Towing Serv., 771 F.2d 189, 192-93 (7th Cir. 1985); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 166, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978); Jackson, 419 U.S. at 357.[vii]
Wade did not argue that this circumstance applied in his case, as there was no evidence to suggest that the state directed the security guard to shoot Wade.
The second way a private person’s actions can be attributed to the state is when a private person
[P]erforms functions that are “traditionally the exclusive prerogative of the State.” Jackson, 419 U.S. at 353. Such functions are so closely associated with government that a state cannot limit its accountability for their performance, even if they are carried out by private parties. Thus, although a state remains free to delegate the performance of these functions to private entities, the private entities are treated as arms of the state for purposes of § 1983 and the Fourteenth Amendment.[viii]
The court also noted that it is “not enough that a private entity performs a service that serves the public…”[ix] This alone does not create state action. Further, CHA’s contract with T Force did not delegate its entire police power to the private company; rather, it designated building security to the company, per contract. Additionally, the court noted that the power to make arrests and the right of self-defense is not exclusive powers of the state. Private citizens can affect a citizen’s arrest and can use force to defend themselves. The court thus held, in Wade, that the security guard was not a state actor and CHA had no Fourth Amendment liability for the guard’s actions.
After its examination of Wade, the court of appeals applied those principles to Green’s case. The court held that the security guard in Green’s case was not a state actor, and as such, was not governed by the Fourth Amendment. Thus, even if the guard lacked reasonable suspicion to detain and frisk Green, which produced the gun, the state need not apply the exclusionary rule. Therefore, the Seventh Circuit affirmed the denial of the motion to suppress.
[i] No. 19-2330 (7th Cir. Decided September 16, 2020)
[ii] Id. at 1-2
[iii] Id, at 2-3 (emphasis added)
[iv] Id. at 3
[v] 83 F.3d 902 (7th Cir. 1996)
[vi] Id. at 5 (emphasis added)
[vii] Id. at 7 (emphasis added)
[viii] Id. at 8