Arthur D'amario, III v. The Providence Civic Center Authority

783 F.2d 1, 1986 U.S. App. LEXIS 21480

• Court: Court of Appeals for the First Circuit
• Decided: January 24, 1986
• Docket: 85-1357
• Status: Published

Opinions

TORRUELLA, Circuit Judge.

The issue presented by this appeal is whether there is sufficient state involvement in the activities conducted by appellees in the Providence Civic Center (Civic Center) as to constitute action “under color of state law” within the meaning of the Civil Rights Act, 42 U.S.C. § 1983;¹ i.e., whether there was “state action.” ² This question was decided adversely to plaintiff-appellant by way of summary judgment, and we thus must rule upon whether the undisputed facts establish as a matter of law that the district court is correct.

The controversy arises in the context of a prohibition against the entry of photographic equipment and picture taking, referred to by all parties as the “no camera rule,” at some of the artistic performances that take place in the Civic Center. Appellant, a free lance commercial photographer, claims that his free speech rights as guaranteed by the first amendment are violated by the enforcement of this rule, which prevents him from photographing various performers at the Civic Center. It has been his practice in the past to sell such photographs to various interested publications. Appellant contends that there is sufficient involvement by the state in the enforcement of the no-camera rule so as to constitute state action under the nexus test, the symbiotic relationship test or the public function test.

An analysis of the record and the case law leads us to differ with the conclusion reached by the district court.

The Civic Center is a public facility in Providence, Rhode Island, which is leased to non-profit and commercial enterprises by the operating entity of the Civic Center, a public corporation known as the Providence Civic Center Authority (Authority), one of the appellees herein, for the purpose of carrying out diverse civic, cultural and athletic events.³ Appellee Frank J. Russo, a promoter of musical events, is one of the users of the Civic Center through his company, appellee Gemini Concerts, Inc. (Gemini). Russo reserves space at the Civic Center, matches it with available performers, and then Gemini leases the Civic Center and contracts with the performer.

The source of this appeal’s controversy lies in one of the conditions that is sometimes incorporated in the so-called “rider clause” of the contracts negotiated between some performers and Gemini. This provision contains the specific demands and requests of the performers such as any special catering needs, limousine service, or security arrangements and, in some instances, a demand that no cameras be allowed in the auditorium during performanees. None of the appellees have a “no-camera” policy independent of the dictates contained in the rider clauses that may be negotiated by Gemini.

There is no question that the Authority in no way participates in the negotiation of these conditions or that there exists any relationship, other than a contractual one, between the various appellees. It is on this evidence that the court below focused in its bench ruling, an emphasis that has been pursued on appeal by all parties. We find that the district court gave undue attention to the Civic Center’s indirect contractual association with the no-camera rule. The record shows that the Civic Center was wholly responsible for enforcing the rule, and we conclude that there is sufficient state involvement in that activity to find state action. We reach this conclusion even in the face of our recent decision in Ponce v. Basketball Federation, 760 F.2d 375 (1st Cir.1985), a case blissfully ignored by all.

Ponce is a case that, in light of its complicated factual content, could very well be described as a close call. The court there was faced with a challenge under § 1983 to a rule promulgated by a private sporting organization. It made persons who were not born in Puerto Rico ineligible to play basketball in Puerto Rico unless they met certain residency requirements or came within established exceptions. The court found that, despite the use of government facilities and the receipt of governmental financial aid by the sports federation, the lack of state participation in the enactment or enforcement of the discriminatory regulation prevented the application of § 1983. The court ruled that the Puerto Rican government’s involvement did not establish “the requisite nexus, [because it] failed to identify any affirmative state action as required under Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). Ponce, 760 F.2d at 379. The court, again citing Blum, held that “ ‘mere ... acquiescence in the initiatives of a private party’ ” was not enough. Ponce, 760 F.2d at 379. It went on to say:

Had Ponce produced evidence of prelitigation action taken by the state showing that the Secretary [of the Puerto Rico Sports and Recreation Department] shared responsibility for the promulgation or enforcement of the eligibility standards ... we might well have a different case.

Id. (Emphasis supplied.)

The record in this case is crystal clear that the enforcement of the “no-camera” rule is carried out by state actors, for example, the executive director, the heads of the security and ushering departments, the supervisors of these departments, and the ticket takers, ushers, and security personnel of the Civic Center. It is upon these employees that rests the primary, front-line duty of enforcing the private “no-eamera” rule negotiated between the promoter and the performers. The undisputed record establishes how these private agreements are implemented by the Civic Center employees.

Once the “no-camera” rule is negotiated between Gemini and the performer, Russo or Gemini’s production and security manager contact Mr. Stephen Morrison Lombardi, the Executive Director of the Civic Center, to inform him orally of the “no-camera” prohibition. Lombardi then calls a staff meeting and informs the concerned department heads that a “no-camera” rule is in effect for a particular event. This supervisory staff follows up on these instructions right up into the concert, which includes posting signs to this effect. The personnel at the turnstiles prevent those who openly display photographic equipment from entering the premises, and the ushering and security staff continue to enforce the rule throughout the concert. In fact, neither Russo nor Gemini’s personnel become directly involved in enforcement of their rule. When they see potential violators of the “no-camera” rule, they will go to the nearest Civic Center supervisor and alert that supervisor of the infringement. The supervisor then proceeds to take appropriate action through the individual ushers or security personnel.

The district court and appellees have relied heavily on the fact that the Civic Center employees are paid by Gemini, as an indication of a lack of state involvement. The record is not clear as to whether Gemini directly pays these persons, or there is merely a reimbursement to the Civic Center for the cost of providing these services. We can assume the most favorable factual circumstances to appellees, i.e., direct payment, as this is a distinction without significance in this case. There is no question that these persons remain at all times within the control and direction of the Civic Center, the determinative factor in finding an employment relationship.⁴

There is no question that the enforcement of the “no camera” rule by the Civic Center employees supplies the state involvement nexus that is a jurisdictional requisite under 42 U.S.C. § 1983. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45-47, 103 S.Ct. 948, 954-56, 74 L.Ed.2d 794 (1983); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937-42, 102 S.Ct. 2744, 2753-56, 73 L.Ed.2d 482 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177-79, 92 S.Ct. 1965, 1973-74, 32 L.Ed.2d 627 (1972); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 569 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985). International Society for Krishna Consciousness, Inc. v. New Jersey Sports and Exposition Authority, 691 F.2d 155, 159 (3d Cir.1983); Post Newsweek Stations-Connecticut, Inc. v. Travelers Insurance Co., 510 F.Supp. 81, 85 (D.Conn.1981). See Blum v. Yaretsky, 457 U.S. 991, 1003-05, 102 S.Ct. 2777; 2785-86, 73 L.Ed.2d 534 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 839-43, 102 S.Ct. 2764, 2770-72, 73 L.Ed.2d 418 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. at 171-77, 92 S.Ct. at 1970-73; Adickes v. S.H. Kress & Co., 398 U.S. at 171, 90 S.Ct. at 1615; Ponce, 760 F.2d at 377-82; Johnson v. Educational Testing Service, 754 F.2d 20, 23 (1st Cir.), cert. denied, — U.S. -, 105 S.Ct. 3504, 3505, 87 L.Ed.2d 635 (1985). See also Shelley v. Kraemer, 334 U.S. 1,19, 68 S.Ct. 836, 845, 92 L.Ed. 1161 (1948). It is only this enforcement that provides any practical substance to the private “no-camera” agreement, just as in Shelley the private discriminatory covenants lacked any operative effect until they were backed by the full coercive power of the state courts. Id.

We remark that it is unlikely this issue would have been before us if the Civic Center had been enforcing a rider clause that prohibited members of some racial group from entering a particular concert. We stress that the issue of state action is separate from the constitutional issue lying at the heart of a § 1983 action. Institutions about the outcome of the constitution^ al issue must not affect consideration of the very different issue of state action. In this case, whether or not appellant’s first and fourteenth amendment rights were violated there was state action for purposes of § 1983.

The district court did not decide the merits of the validity of the “no-camera” rule but rather dismissed the case on jurisdictional grounds. Although the merits of the validity of the “no camera” rule have been briefed by some of the parties on appeal, we do not think it appropriate for us to rule on this issue without first giving the district court the opportunity to decide this matter. We do not, of course, indicate what the outcome of said ruling should be.

Reversed and Remanded.

1 . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

2 . The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights "fairly attributable to the State?” Lugar v. Edmondson Oil Co., post, at 937 [102 S.Ct. at 2753],

Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982).

3 . The Civic Center Authority was created by the State of Rhode Island and is authorized in the Providence Home Rule Charter. It consists of five members appointed by the mayor of Providence and two members from the city council. It receives funds from city bond issues and from direct appropriations from city revenues, and it will be dissolved, with the city succeeding to its rights, liabilities and powers, upon payment of all the bonds and notes issued by the city for Civic Center purposes. See 1969 R.I.Pub.Laws ch. 3, §§ 1 et seq.

4 . In addition to what has already been discussed of relevance to this issue, Lombardi testified: " We have approximately a hundred people working on (sic) every event.” (Emphasis supplied.)