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Can store security personnel be sued as ‘state actors?’

Yes. Store security personnel can be sued as ‘state actors’

“Section 1983”, more formally Title 42 § USC 1983 of the Civil Rights Act of 1871, states that a private individual or entity that carries out a public duty engages in state action and is thus a state actor. If that private individual or entity carried out a public duty and, in the process, violated a person’s constitutional rights, he or she can be sued and may be held liable for abuse of state power.

For example, if employees’ in the hospitality services or courier industries participates in “joint searches” with law enforcement, they could be treated as state actors. If the police did not have probable cause to search their subjects’ persons, properties, or things, they could be sued for an illegal search in violation of the Fourth Amendment of the United States Constitution. Their agents, the hospitality services or courier service employees’ may be sued and may be held liable under the same theory. Similarly, the same result would occur if the employees’ are security personnel employed by stores, supermarkets, malls, and amusement parks.

Generally Store Security Personnel Are NOT State Actors

Generally, store security personnel hired by a business are not state actors under Section 1983. Bishop v. Toys “R” Us–NY LLC, 414 F.Supp.2d 385 (S.D.N.Y.2006); Guiducci v. Kohl’s Dep’t Stores, 320 F.Supp.2d 35, 37–38 (E.D.N.Y.2004). Store security personnel in their capacity act as agents for their employer when they discharge their duties to protect the employees, invitees or shoppers, and store property. While performing those duties, inquiries and searches that directly relate to the business, they cannot be held liable as state actors and charged with violating the Fourth Amendment of the United States Constitution. In other words, inspecting customer packages, requesting checkout receipts and even detaining a person suspected of shoplifting are not violative of the Fourth Amendment of the United States Constitution.

Additionally, the furnishing of information by private security personnel to police officers who ultimately make an arrest typically does not constitute joint action under color of state law. Ginsberg v. Healy Car & Truck Leasing, Onc., 189 F.3d 268, 272 (2D Cir. 1999). However, “joint activity” with the state may occur “when the police arrest the suspect solely based on the security guard’s request, without making any ‘independent investigation’ of the matter.”

For example, Melissa Stewart v. Victoria’s Secret, LLC, et al., the court held that the security personnel were not state actors, therefore not liable under Section 1983.

Plaintiff alleged that on June 10, 2010, inside of Green Acres Mall, defendant Delfin Ruiz, employed as the Loss Prevention Manager, allegedly observed a Black female, later identified as her entering the Mall. Defendant Ruiz returned to the Store to review surveillance tape of a prior theft. After reviewing the tape, defendant Ruiz gave a statement to a Nassau County Police Officer Alvarez. In that statement, defendant Ruiz identified Stewart as the woman on the Store’s surveillance tape. According to Stewart’s federal lawsuit, defendant Ruiz “recklessly, carelessly and negligently reported” to Officer Alvarez that the woman in the surveillance video was her stealing merchandise from Victoria’s Secret.

After defendant Ruiz gave his statement to Officer Alvarez, defendant Ruiz is alleged to have viewed a photo array provided to him by Nassau County Detective Dezelic. That photo array included a photograph of Stewart, and upon review thereof, defendant Ruiz identified Stewart as the thief in the surveillance video. This identification is alleged to have been a part of the plan of Officer Ruiz and Detective Dezelic to falsely accuse Stewart of theft.

There were no specific allegations that defendant Ruiz entered into conspiracy with Officer Ruiz and Detective Dezelic to violate her constitutional rights.
The court declined to exercise supplemental jurisdiction over her state law claims.

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