Romanski v. Detroit Entertainment, L.L.C.

Chapter provided subject 75 of the CSRA DISMISSAL for of While lack matter rights jurisdiction. procedural “re- substantive

movals”, expressly excluded individuals employment category.

in Leistiko’s Id. found that this exclusion evinced clear

We deny

congressional employ- intent to these judicial protections, including re-

ees Id.

view. “Because Col. Leistiko has thus protections excluded

been from the

Chapter logic of Fausto is that his ROMANSKI, Plaintiff-Appellee, Stella position removal from the technicians subject judicial review.” Id. Fur- ther, we the APA acknowledged gen- ENTERTAINMENT, DETROIT erally judicial L.L.C., agency allows review final MotorCity Casino, Michigan adequate action when there no other d/b/a/ Liability Company; Limited remedy, except pre- statues Marlene when other Brown, Defendants-Appellants, Fausto, Relying clude this on review. found that preclude

we did CSRA Brown; Edwards; Gloria Robert right Leistiko’s of review under the APA. Stevenson, JoEtta Defendants. Id.4 Likewise, we find that the Veterans’ No. 04-1354. Act effectively judicial Benefits precludes Fligiel. express Appeals, review for Act’s ex- United States Court DAB clusion of in 38 review U.S.C. Sixth Circuit.

and its inclusion of DAB review and subse- Argued: April 2005. judicial quent clearly review in congressional demonstrates intent to limit Decided and Oct. 2005. Filed: governed review adverse actions Fligiel § 7463. may not circumvent this judicial

limitation invoking the review

provision the APA.

IV

Conclusion reasons,

For the aforementioned

judgment of the court granting district

summary judgment to the Veterans Ad- VACATED,

ministration is with RE- entry

MAND to the court for an Frank, Fausto, (6th Harper See also recognize 985 F.2d 285 we held "[in] 1993). Harper, postal Cir. we held that a comprehensive Congress scheme es- governed by Reorganiza worker Postal addressing tablished in the PRA for review of (PRA) right Act tion had no administrative personnel postal employees, matters for judicial postal review for her claim likewise, statutory find 'no entitlement to re- regulations service did not follow own view’ at 290. within PRA.” Id. Relying promotion. when it denied her a Cavanagh,

ARGUED: K. Megan Garan Miller, P.C., Detroit, Lucow Michigan, for Fink, Appellants. Neil H. Law Offices of Fink, Birmingham, Michigan, H. for Neil award, with nitive in accordance Megan K. Cav- ON BRIEF: Appellee. Rochkind, F. Ma- anagh, Rosalind Robert a new opinion, of this the instructions Miller, P.C., De- Garan Lucow cAlpine, punitive damages. trial issue troit, H. Michigan, Appellants. Neil make it facts of this case remarkable Fink, Fink, Neil H. Bir- Law Offices of indisputable that a substantial Richard Lewan- mingham, Michigan, G. Defendants’ damages award warranted. McNeill, dowski, Freeman S. David and a particularly egregious conduct was McNeill, Michigan, Ap- Birmingham, higher to deter the casino award pellee. future was sanctioning such conduct in the But an appropriate. FARRIS, KEITH, CLAY, and Before: just interests adequately will serve the Judges.* Circuit and fits punishment of and deterrence CLAY, J., opinion the the delivered more, comfortably puni- in the ballpark court, KEITH, J., joined. in which in simi- upheld tive that have been awards FARRIS, 650-52), (pp. J. delivered remittitur lar therefore order a cases. We dissenting opinion. separate chooses, or, if to amount Romanski so damages. a new trial on

OPINION CLAY, I. BACKGROUND Judge. Circuit jury 7, 2001, Romanski, District Michi- A the Eastern then 72 August On Detroit gan found Defendants Entertain- old, years Dorothy Dom- and her friends ment, L.L.C., operates and which owns Holman, to De- browski and Linda went (we MotorCity refer to as “the Casino both fendant Detroit Entertainment’s MotorCi- Brown, casino”), of the and Marlene one Detroit, ty Michigan, gamble Casino security and a personnel casino’s enjoy and lunch at the buffet. After security police officer with ma- spate of unsuccessful tries at the slot arrest, liable under U.S.C. chines, took a around the Romanski walk unlawfully arrest- law walk, During floor. her Romanski gaming ing Stella Romanski. Defendants contend in a slot lying noticed a five cent token judgment must be reversed and a new Seeing chair at the tray. machine’s no granted trial the district court because machine, picked up token and re- she instructed as a matter of law that had to the machine at which she turned color law Defendants acted under of state intending token played, earlier to use the at all times to this Defen- relevant case. em- there. a uniformed male casino Soon dants also other raise instruction-related ac- ployee approached asked that she alternative, claims. In ask why company him to the office. asked She us to remit some of but not answer. Romanski then he did order a new trial on the award or noticed there were also three female casi- damages. issue of uniform, no sur- employees, these judgment We AFFIRM the of the dis- her; felt not move. rounding she she could trict court in that we respects except all plain-clothed security One of these offi- portion judgment VACATE the Brown, cers Defendant Marlene who was comprised by casino pu- assigned patrol and REMAND a remittitur of the had been * Farris, Circuit, Judge sitting by designation. The Honorable Jerome Circuit Ninth Appeals the United States Court of for the at that “security officer,” floor time. Brown testified that police not as a bona Romanski, approached displayed she her fide officer. There is no dispute security badge, began casino to ex- that a uniformed security casino officer plain policy just not to per- stood outside the room for the dura- casino’s tokens, patrons pick up mit ap- which tion of questioning. abandoned, peared be found at other ejected Romanski was from the casino machines, a practice slot known as “slot- period months; for a of 6 Stevenson made walking.” Romanski could not have the final eject, “86,” decision to Roman- known this at the time because the casino ski. precise ground for ejecting Ro- not post policy any- does the so-called manski is unclear from the record. Al- therefore, It undisputed,

where. though time, unknown to Romanski at the Romanski did not have—and could not it is now undisputed that Brown and some have had—notice of the purported casino’s of her colleagues on the security casino’s policy slot-walking. staff were licensed under state law as “pri- Brown, According to security Romanski became vate police officer[s].” Mich. so, loud and belligerent, (M.C.L.) at the Comp. advice of Laws By 338.1079. vir- (a supervisor, Brown’s JoEtta licensed, Stevenson tue being so below), defendant Brown escorted Roman- police officer has “the to arrest a ski to an off-the-floor room where Brown person without a warrant as set forth for explain intended to policy in detail. public peace officers ... when that part, For her Romanski testified that security police officer is on employer’s Brown did not detain her because premises.” of her M.C.L. 338.1080. The stat- attitude but rather because Brown sus- ute additionally requires secu- pected her of theft. rity police officers make only arrests when they are on duty and in full “the uniform undisputed It is that Brown and her of the[ir]employer.” Id. It undisputed colleagues escorted Romanski to what De- that Brown duty was on during the events alternately fendants call “security of- of this case. It is undisputed also fice” and the “interview room.” Whatever Brown was uniform wearing not worn name, the room is small and window- by some of security the other guards, but less, located off the casino’s floor. Accord- Defendants have never contended that this Romanski, ing to they once had taken rendered Brown out of uniform for pur- seats, their Brown accused Romanski of poses 338.1080; indeed, §of token, stealing the whereupon Brown have conceded from beginning that the counted money Romanski’s and removed applies statute argu- this case. Their one nickel from winnings. Romanski’s ment is simply that the admittedly Stevenson asked Romanski to turn over by conferred on Brown the statute did not her social card and driver’s li- make her actions under color of state law. cense; Romanski complied and these See U.S.C. photocopied. items were Romanski was then photographed. Romanski testified charge Brown was in of escorting Ro- acquiesced she requests these be- manski to the valet parking area of the officer, cause Brown said casino, she was a where Romanski was to wait had a badge, appeared to have hand- her 3 p.m. bus home. Brown and her cuffs. Brown having admitted presented colleagues request denied Romanski’s her badge possessing handcuffs but meet her friends for lunch at the buffet— indeed, testified that she identified herself they as permit did not Romanski to addition, Afterwards, they her as they In her. surrounded eat lunch at all. did casino, by they her out of to enter the restroom threw permit Romanski herself; accompanied refused to let her use restroom Brown Romanski prevented also her and waited herself. Defendants into restroom outside lunch with her having [and] the valet friends p.m., stall. At 3 Romanski exited that she falsely told her friends had stolen thought area what she was her to board bus; jury certainly from them .... could [A] out not to be but it turned instead ” ‘Outrageous.’ exclaim Romanski v. De- to the valet area she ran into her returning Entertainment, L.L.C., F.Supp.2d stayed outside. It ex- troit friends and (E.D.Mich.2003) (citations humid and tremely hot and Dombrowski 848-49 omitted). Indeed, did an to re- make such persuaded and Holman Romanski favor Upon entering, exclamation: it found Romanski’s turn to the casino. employ- and made a substantial three were confronted casino ees, award. who directed them return area, air-conditioned; they

valet which is Romanski De- November sued until the bus waited there arrived. MotorCity fendants Casino and two un- It Brown an named of the casino in undisputed prepared employees the Cir- County, following ejec- Wayne Michigan, cuit Court of report incident Romanski’s arrest, alleging imprisonment, false tion in which Brown referred to Romanski false defamation, as a Romanski introduced the and intentional infliction of “suspect.” evidence; In an security manual into emotional distress. amended com- casino’s security employees plaint, to refer to Romanski named as defendants De- instructs Entertainment, L.L.C., only if troit patrons “suspects” employee MotorC- d/b/a Casino, Brown, Brown, ity patron the and to refer Marlene Gloria arrested otherwise Edwards, Stevenson, “subject.” Robert and patron the as a Stevenson Joetta policy being the confirmed that was in effect individual defendants the em- detention, ejected. Finally, ployees when was it is in Romanski’s Romanski involved course, undisputed ejection questioning, that as matter of the and from the casino. Michigan complaint casino the Police The also included a notifies State amended someone; action, namely, a ejects when it the notified new claim under casino cause the Police of 42 U.S.C. that State Romanski’s Defendants had vio- ejection. lated Fourth Romanski’s Amendment rights. Romanski that Specifically, alleged reflect, As these facts Defendants’ treat- Defendants, acting under color of state ment inexplicable of Romanski was and law, had arrested her without probable egregious. aptly The district court ex- up cause because the token she was picked pressed egregiousness the Defendants’ abandoned, i.e., not the casino’s property. denying opinion conduct in its Defendants’ summary judgment: motion for “There is Defendants removed the action to feder- to allow a al in Eastern jury sufficient evidence to find district court the District of Michigan. that picked after an The district court an up [Romanski] aban- issued doned that by using token order show cause “as to whether Defen- Defendants — authority the vested in them dants’ ‘under color law’ for the State conduct was her, of Michigan purposes arrested of 42 U.S.C. 1983” and consid- —surrounded her, security office, ered the on the prevent- parties’ led her to the briefs issue. The office, leaving acting ed her the and court that Brown security concluded pos- stole that she law the five cents found from color of state because she authority guing jury to make arrests should be the same instructed to sessed Having determined police enjoy. find as a matter of fact whether Defen- there was a basis for federal proper acting dants were under color of state law. the district court exercised its jurisdiction, The district court disagreed instructed jurisdiction over Romanski’s supplemental jury “Acting as follows: under color of law claims. state in law this case means simply acting in capacity one’s as a licensed officer parties discovery from The conducted February powers with an through make arrest on the September 6, 2003, premises. March moved for you On Defendants casino I instruct as a mat- summary claims. judgment on all On the ter of law that the defendants were acting claim, argued they § 1983 under color of law at time of this acting of state law in were under color incident you may find that this ele- had any probable this case and event ment has been established.” The other published to detain In a cause Romanski. issues the case were submitted to the decision, the denied Defen- district court jury, which found the casino and Brown summary judgment. dants’ motion for on liable the Fourth Amendment wrongful (E.D.Mich.2003). F.Supp.2d 835 The court claim arrest and the casino alone liable on as a matter of that Defendants held law the state law false arrest and impris- false state law during had acted under color of jury any onment claims. The did not find Brown, events of this case because defendants liable defamation or who Romanski’s deten- defendant initiated intentional infliction of emotional distress tion, duty in her capacity did so while on but, based on on its verdict Romanski’s security police as a licensed officer claims, jury other awarded $279.05 with the same arrest empowered compensatory damages. Based exclusively public police Id. at as a officer. 841-43. on verdict in favor Romanski on her genuine court further held that factual claim, § 1983 awarded $500 summary disputes precluded judgment on Brown, punitive damages against Fourth and Roman- Amendment claim punitive damages against state law at 844-49. ski’s claims. Id. casino. began The trial 2003. At the July a judgment Defendants moved for case-in-chief, close Romanski’s Defen- or, withstanding in the alterna- the verdict a judgment dants moved for as matter of tive, 50, for a new trial. See Fed.R.Civ.P. on all claims the district law and asked motion, 59. The district court denied the court to reconsider conclusion on the resting largely reasoning expressed on the action1 district question. state court summary ruling. in its judgment The casi- motion, reserving declined to rule on the (the only no and Brown defendants found a ruling. charge later At the confer- jury) brought timely liable this and during parties’ exchange ence (1) instructions, They argue that: it was im- jury appeal. proposed question, they court to again proper raised the state action ar- the district hold Throughout opinion § purposes.” we use the state law’ for Brentwood terms 1983 “acting Academy Secondary "state actor” or "state action” v. Tenn. Sch. Athletic interchangeably. Ass'n, 2, under color of state law” As 288, 924, n. 531 U.S. 295 121 S.Ct. Supreme a "[i]f Court has held: defen- (2001) (citing Lugar 148 L.Ed.2d 807 v. dant's conduct the state-action re- satisfies 922, 935, Co., U.S. Edmondson Oil 457 102 Amendment, quirement of the Fourteenth 2744, (1982)). S.Ct. 73 L.Ed.2d 482 also action 'under color conduct constitutes 636 Bros., 157, S.Ct. 1729 436 at 98 Flagg U.S. matter of law and actors as a

were state Co., (same); & 398 v. S.H. Kress Adickes judg- a new trial or either accordingly seek 1598, 144, 170, 26 L.Ed.2d 90 S.Ct. claim; U.S. § 1983 favor on the in their ment (1970) (state test); Burton compulsion 142 (2) claim Romanksi’s with connection Auth., Parking 365 U.S. Wilmington v. cause to probable lacked that Defendants 856, 715, 721-26, 6 L.Ed.2d 45 81 S.Ct. her, gave court an erro- the district arrest (1961) relationship or nexus (symbiotic on the issue jury instruction neous test). (3) abandoned; ap- the token whether only Defen- in connection with parently that Brown concluded The district court a instruction desire for dants’ own li colleagues similarly any of her right private law common purported officers private censed as suspected of patrons to detain businesses § 338.1079 were state pursuant to M.C.L. erroneously theft, de- the district court public function test. actors under in- proposed Defendants’ accept clined to with this F.Supp.2d at 841-43. Consistent (4) struction; court took the state holding, the district award, exclusively on imposed granting out of the action issue liability jury’s finding of of the basis law to as a matter of judgment effect 1983, is so excessive U.S.C. Consequently, on that issue. Romanski process. with due comport that it does not aspect action we review the state claim in turn. consider each We and view court’s decision de novo district light in the most favorable all facts II. DISCUSSION v. In Alpine States Defendants. United (6th dus., Inc., 1017, 352 F.3d Cir. A. State Action 2003); Spencer County v. Pub. Sch. Vance liable Section 1983 makes (6th Cir.2000). Dist., 253, 231 F.3d who, acting under color of those while test, public function law, Under the right another of se deprive state entity performing to be law. is said cured or federal Constitution 1983; Bros., exercising powers function if it is public Inc. v. Flagg 42 U.S.C. state, Brooks, 149, 155, traditionally to the such as reserved 98 S.Ct. U.S. elections, (1978); taking private property Chapman Higbee holding L.Ed.2d 185 (en (6th Cir.2003) power, oper Co., under the eminent domain 319 F.3d Huhn, Flagg town. banc); ating company-owned Wolotsky (6th Cir.1992). Bros., 157-58, A actor acts elections); Metropoli Jackson v. (holding when its under color of state law conduct 345, 352-53, Co., 419 Lugar state.” tan Edison U.S. “fairly attributable (1974) (exercis Co., 42 L.Ed.2d 477 v. Edmondson Oil Alabama, (1982). domain); ing Marsh v. L.Ed.2d 482 eminent 102 S.Ct. 501, 505-509, developed has three 326 U.S. Supreme “The Court (1946) (operating company- L.Ed. 265 determining tests for the existence of state town). (1) has Supreme Court public owned particular action in a case: (2) test, test, open question left whether compulsion expressly function the state (3) private po circumstances relationship or nexus what symbiotic perform to may lice officers be said (citing F.3d at 833 Chapman, test.” 1335). §of public purposes function for Wolotsky, 960 F.2d at See West Bros., Atkins, 42, 49-50, 98 S.Ct. 1729. Flagg Nevertheless, (1988) function); district court ob- as the (public L.Ed.2d served, growing body there is a of case law citizen’s arrests and the rights carry guidance question. to consult for on this handguns and use them in self-defense are available to individuals outside of the law example, by For in a decision deemed enforcement community.” Payton, 184 parties both and the district court to bear Wade, 906). F.3d at 629 (citing 83 F.3d at directly presented on the issue in this that private police Payton Seventh Circuit held illustrates a line that has been officers licensed to make arrests could be drawn in the case law. The line divides public state actors under the function test. private cases which a actor exercises a Payton Rush-Presbyterian, power traditionally state, reserved to the (7th Cir.1999). sure, 627-30 To be exclusively it, but not reserved e.g., Payton appeal was an of a pur- dismissal common shopkeeper’s law privilege, from 12(b)(6), suant to Fed.R.Civ.P. but we cases in private which a actor exercises a think this distinction power is of little relevance exclusively state, reserved to the since the crucial e.g., fact that case—as- police power. private Where se indisputable sumed be true there but curity guards by are endowed law with by here —was that virtue of their plenary police status as powers such that they are on-duty officers, special police officers, licensed they may qualify as defacto city Chicago, enjoyed the defendants state actors under public function test. “virtually the public police Payton, 630; same See 184 F.3d at Henderson v. Indeed, Fisher, (3d officers.” Cir.1980) Id. at 629. the defen- 631 F.2d 1115 (per curiam) dants in Payton operated under an ordi- (university policemen plena with nance provided special which police ry police authority throughout the univer officers licensed under it possess sity’s “shall campus); Rojas v. Dept. Alexander’s powers Store, regular police Inc., (E.D.N.Y. patrol at the 654 F.Supp. 856 1986) (New places they for which are respectively ap- City special York patrolman pointed or in duty the line of plenary which with police authority patrolling a they store). engaged.” are Id. at (quoting department The rationale of these (1993)). Chicago City Code 4-340-100 cases is that delegates when the state power traditionally reserved to it alone— This broad delegation power, the Sev police power in or actors —to reasoned, enth Circuit distinguished Pay- they may der that provide police services ton an earlier case which the court it, institutions that “plaintiffs need had private security held guard ability to claim relief under [for endowed with more limited police-type of that power] abuses should be unaffect powers was not a state actor. See Wade v. Payton, 629; ed.” 184 F.3d at cf. (7th Cir.1996). Byles, 83 F.3d 905-906 Henderson, 631 F.2d at 1118. The defendant in permitted Wade was carry a handgun deadly and to use force On the other side of the line illustrated self-defense but only by Payton could arrest someone are cases in which the for “trespass pending the arrival of the police-like defendants have some powers police” and could powers exercise these plenary police but not authority. Wade, in the properties 906-907; lobbies of owned 83 F.3d at Johnson v. public housing authority for which he LaRabida Hospital, Children’s (7th worked. Cir.2004) Id. at 906. The defendant was 896-97 (hospital securi- because, not a state actor put ty guards as the court authority who had patrol to and in Payton, powers eject “none of these had people carry but not to guns and who exclusively been police— reserved to the had to call if someone became casi- duty and on the that Brown was on A of these subset belligerent).

hostile relevant to this private premises a institu- at all times cases which no’s cases are facts, dis- security employees have been lead to an undisputed tion’s case. These institution’s inter- protect patched namely, to inescapable conclusion law — The canonical policies. ests or enforce case, relevant to that at all times itself a store avails example here is when a authority to arrest Brown “ha[d] shopkeeper’s privilege, of the common law as set forth for without a warrant person ” in this Court’s en at issue privilege .... M.C.L. officers public peace Co., Higbee Chapman banc decision of Brown’s consequence § 338.1080. One upon case which and the Fifth Circuit authority, of this possession Chapman, See Chapman relied. and for at one’s discretion to make arrests (discussing White v. Scrivner at 833-34 offenses, all times relevant any is clear: at (5th Cir.1979)). 140, 142 Corp., a a state actor as to this Brown was court, think this Like the district matter of law.2 Payton the line. on the side of case falls privileges common law Unlike the (and Brown some of undisputed It is (the deadly force in issue Wade use of security po- private colleagues) her were self-defense, right to detain for tres- licensed under M.C.L. lice officers right carry weapon) to pass, and the quali- § This means that Brown’s 338.1079. (the shopkeeper’s Chapman privilege), vetted being fications for so licensed were by any citizen under may which be invoked police, of state by Michigan’s department circumstances, plenary ar- appropriate (1), subject to id. § and that Brown was security po- power enjoyed by private rest by that de- certain statutes administered pursuant to M.C.L. lice officers licensed see M.C.L. (2); Id. partment. traditionally re- power § 338.1079 is a 338.1067, §§ More critical for 338.1069. Payton, alone.3 facts served to the state present purposes undisputed are the against City will. He repeated dant was not held his 2. The dissent's reliance on office; go security he was Rapids Impens, Mich. asked to to the Grand There, (1982), pri- misplaced. sign indica- N.W.2d 278 is a form. There was no asked security suspected the defendant vate officers tion of arrest. distinction, however, shoplifting. Id. at 279. and two others of key is that the The The officers asked the three individuals power security exercise exclu- officers did not security officers come to the office. sively The contested reserved to the states. and found merchandise on searched the three security conduct was the officers' elicitation one of the other individuals. Id. The officers Simply put, of the defendant’s statements. from the defendant then elicited information setting asking questions in a non-custodial complete Department a "Loss Prevention power province of not within the exclusive Voluntary Id. The officers read Statement.” the state. asked the the statement to the defendant and it, sign which he did. Id. "There misinterprets defendant this Court's lan- 3. The dissent would not "plenary was no indication that defendant guage respect phrase with signed.” were not be released if the statement power.” agree with the dissent arrest We trial, law, Id. Prior to his the defendant moved Michigan that under licensed statement, signed arguing suppress that it power equiva- security officer has a arrest Miranda. Id. The was obtained in violation of only public police officer lent to that held security Court held that the property employer on the of her give required to officers were not Miranda during The Court has never her work hours. warnings. Id. at 282. gives pri- contended that M.C.L. 338.1080 to malte war- the instant vate officer One obvious distinction between she Impens rantless arrests and whenever Impens did not in- wherever case and There, pleases. any the defen- volve an arrest in form.

639 Henderson, Henderson, 630; to Payton 631 F.2d at similar each F.3d at 184 858; 1118; at Rojas, F.Supp. Thomp involved a or 654 which statute ordinance that F.Supp. 409-10 McCoy, imposed 425 contemplated spatial son or some or (D.S.C.1976). United States v. See also geographic private limits on the defen- (7th Cir.1974) 879, 881 Hoffman, 498 F.2d police powers. See Payton, dants’ police pos railroad (holding private at (special police officers “shall public police as sessing powers the same possess powers regular of the police actors). Screws v. officers were state Cf. at patrol places they which are States, 91, 109-10, 65 United ”) added) respectively appointed (emphasis (1945) (observing L.Ed. 1495 S.Ct. (citation Henderson, omitted); 631 F.2d at only to arrest power that one has the when (authority university 1117-19 police authority is “clothed with the of state one university campus was limited to the law”) (citation omitted); Rodriguez v. Furthermore, question). as we have dis- Inc., Co., 338 F.3d Packing Smithfield cussed, private security officers (4th Cir.2003) (observing po that “the Michigan plenary are endowed with arrest lice function is ‘one of the most basic func 338.1080, authority, § see while the defen- ” government’ tions of and “an arrest is permitted dant Wade was exercise commonly ‘the function most associated only what were effect citizens’ arrests. ”) Foley v. police’ (quoting with the Conne Wade, 906; 83 F.3d at see also Payton, lie, 291, 297, F.3d at 629-30. (1978)). L.Ed.2d Finally, we address Defendants’ re- ought that Wade Defendants contend that, peated representation although em- because, in that pri- control here as powered to make arrests security police power officers’ to make vate 338.1080, § Brown and the other casino subject spatial geographic arrests are, employees licensed under the statute § 338.1080. But limits. See M.C.L a policy, permitted as matter of casino spatial or limitation in geographic Wade statutory authority to exercise this to ef- au- profound prohibited housing was —it argument fectuate arrests. For this De- thority security guards exercising from Wade, again rely fendants in which minimal) (already powers anywhere their very document that the source of the except buildings operated in the lobbies of powers, Wade, police-type his con- authority. defendant’s housing See housing authority, contrast, public tract with the at in- By F.3d at 906. 338.1080 profound imposed the same time limits on private security police vests officers with Wade, powers. those 905- entirety arrest on the full power Here Brown’s employer’s which the source of premises, their makes make arrests is a statute includes no distinguishable this case Wade and contrast, Instead, security private security officers in a licensed officer’s power plenary arrest the sense that while power people Wade to “arrest had the employer's property during on her her work- trespass 83 F.3d at 906. criminal ....” As hours, ing security a officer can make out, pointed pri- the Seventh Circuit later same extent warrantless arrests to the vate Wade would have to officers in public police closely officer. The instant case they "dial 911” if witnessed crime other Henderson, case resembles where the court Payton, trespass. criminal 184 F.3d at than delegated the state found state action when law, private security 630. Under university police officers full of arrest officer has no such limitation. campus property. limited to 631 F.2d at 646). (citing 71 Pa. Stat. Ann. circumstances, in- we decline Defendants’ is power, that so Wade limits on qualitative express § past to look 338.1080’s not cite a vitation Defendants do inapplicable. authority plenary arrest grant officer a private in which case similarly find officers. We security police arrests as under to make licensed made on representation the unpersuasive actor held not to be state § was 338.1080 acting pursuant not that Brown was employer appeal officer’s that the ground on the she initi- 338.1080 when the arrest to her circumscribed substantially Romanski, but unlawful arrest of by having ated the the officer conferred on power merely the casino’s protecting only arguable support rather licensed. been conduct, main- Defendants argument have found for Defendants’ self-interest — tain, in exercis- that was more the nature in which Payton, in concurring opinion the See, e.g., shopkeeper’s privilege. plead- ing opined that while Judge Ripple Quite 319 F.3d at 833-34. Chapman, claim of state plaintiffs ing purposes the Michi- question whether viable, ultimately apart fail might action was shopkeeper’s privilege of the gan’s of the rec- version development “[f]urther because (see M.C.L. applies to casinos ... that even might well establish ord discussion in the next § 600.2917 and our significantly were guards’ responsibilities section) no in the record there is evidence employer their circumscribed nar- self-protection support functions that could well-defined they performed ” In- urge adopt. us to .... at rative Defendants scope in 184 F.3d quite narrow deed, con- of the evidence was to the J., all concurring). (Ripple, casino trary: employed Brown was case, development In this whatever security police officer and was as a circum- record occurred did reveal duty capacity in that when she initiated alone authority, Brown’s let scriptions of the detention of Romanski. contemplated circumscriptions of the sort Indeed, with the Seventh Circuit’s Payton. in it is Consistent by Judge Ripple Payton, we have approach did not even Wade noteworthy that Defendants Brown, specific powers on the summary judg- at focused argument make this duly capacity on-duty in her as an proceedings, arguing stage ment of the officer, had private security police Brown and some of her licensed instead that while at Payton, 184 F.3d disposal. to make at her colleagues do have the Wade, 629-30; at 905-906. Be arrests, it in case. Brown did not use this then, powers, the brief cause at least one of these surprising It is not their “traditionally the Court, plenary power, do not offer a arrest to this state,” prerogative of the Jack support exclusive single citation to the record Co., Metropolitan Edison that Brown’s arrest authori- son the contention 449, and because it is substantially Fur- ty was circumscribed. duly thermore, undisputed that Brown was fact jury that Defendants found under M.C.L. 338.1079 and was had in fact arrested Romanski and this licensed duty at all relevant to this appeal in fact on times aspect judgment is not on (Defendants’ correctly district court held goes claim instruction existed, not Brown was a state actor as matter cause probable whether occurred). these whether an arrest Under law.4 District of have concluded We in contrast to the district Eastern are aware that private security police holding in similar cases that below and our court's conclusion employed by casino were not act- officers opinion, two other district courts in Jury Instructions scintilla of evidence Defen- supporting

B. dants’ contention that the token the was that two Defendants also contend casino’s rather property than abandoned jury of the district court’s instructions by prior player at the slot Nor machine. jury were erroneous. We must “review did Defendants come forward with a basis as a if instructions whole to determine in law for their assertion the that adequately jury inform of the they the the token became casino’s once property ‘provide a ba relevant considerations prior player departed. the general The aiding jury reaching for the its sis law ” rule, court, as noted the district that Argentine decision.’ Steel United America, AFL-CIO, 287 F.3d playing workers a slot machine is the commence- (6th Cir.2002) Jones v. (quoting aleatory ment of an contract between the Rail Corp., Consolidated player and the casino. In the event the Cir.1986)). (6th will re Accordingly, we round, player wins a the casino “loses instruc jury verse a verdict on account of legal right the property, [play- and the “only tional error situations the where gains right.” er] that F.Supp.2d instruction, viewed as a ‘confus whole is (citing (Second), Restatement Con- ” ing, misleading, and prejudicial.’ (1981)). tracts 232 cmt. c Owens-Corning (quoting Barnes v. Fi Against backdrop, say this we cannot (6th Corp., berglas Cir. the district court erred when it instructed 2000)). standards, Applying these we find jury that: with respect no error instruc the two know, This as we all involves appeal. tions at this issue token, a cent plaintiff five token. The first The instruction to which De token, of a the finder lost or abandoned object they fendants related to whether superior has title to that token than does probable had cause to arrest Romanski. City determining the Motor Casino. In apparently argued they Defendants that token whether was lost or aban- probable had cause to Romanski believe doned, you your are to use common had stolen the five cent from the token sense consider was whether there i.e., casino, that the token not aban was any rational that other circumstance for into her doned when Romanski took it per- tray. token to be that The possession. Although the district court that superior right son who has judgment did conclude at the summary than plaintiff, token other is the stage there was a fide bona person person lost it or the who who question as to was whether the token it. abandoned abandoned, it nevertheless “that observed note patent insignifi- We must also likely explanation there is no other for the Assuming cance of a five cent token. for being in tray token slot ma genuinely moment F.Supp.2d chine.” at 845. dis (it suspected appears trict court’s statement is an reflection Romanski of theft apt record, which even a contains not from the record the real motive ing pending color of have state law. Smith Detroit our decision in this case. We L.L.C., F.Supp.2d Entertainment respective analy- reviewed district courts’ (E.D.Mich.2004); Lindsey, et En al. v. Detroit question cases sis of the state action in those L.L.C., Slip. Op., 03-CV- tertainment No. and, do opinion, for the reasons stated in this (E.D.Mich. 2004) (unpub Oct. persuasive opinion find either lished). appealed Both cases have been point. briefing abeyance Court held in 600.2917(1)(the theft may have occurred. M.C.L. poor treatment Romanski Michigan’s priv- “attitude”), shopkeeper codification of decision

been Defendants’ her otherwise, shopkeepers ilege). Were dispatching the situation deal with would privilege who insu- invoked be one of personnel team of least —at false liability lated from arrest. in effect a officer—to whom was short, contrary requested to Defendants’ offends interrogate detain and Romanski instruction, shopkeepers casino neither nor maxim de minimis non “venerable proprietors enjoy privilege an absolute trifles’).” (‘the law cares not curat lex for clear, therefore, patrons. It is that detain Dept. Revenue v. Wisconsin William of on probable the district court’s instructions Jr., Co., 214, 231, 112 Wrigley, 505 U.S. properly explained cause and false arrest (1992) (citing L.Ed.2d 174 S.Ct. any self-protection privilege the crux of cases). the circumstances of this Under the might enjoy. the To extent that casino court’s on the district instruction right-to-detain proposed confusing, was not mislead abandonment with instruction connection the state ing, prejudicial. Argentine, or question, already action we have held that F.3d at 484. this employed case the casino Brown jury Defendants’ second instruction capacity on-duty private security her anas pro to two it claim relates instructions officer, security guard not as a posed rejected. the district court De but charged protecting merely with the casi- requested first court fendants district property. no’s jury that “[a] instruct the busi sought by The second instruction right ness protect owner has the Defendants —an instruction the effect property may interests and business Michigan permits eject that a casino to suspected detain a patron theft.” The patron any for reason deems neces to adopt pro district court declined this sary immaterial likewise to the is —was posed ground instruction on the that the case; trouble, have no sues support cited Defendants in therefore, concluding that the district of it only shop related to the common law rejected gravamen court it. The properly keeper’s privilege to detain a sus patron relief is Romanski’s claim for not that pected privilege, theft —a the district that ejected she was but rather she was reasoned, court law does not cause, probable arrested without which to casinos. extend why she false arrest and sued for unlawful mate- proposed This instruction was not arrest, the latter Accord rial jury to an issue in the case. The ingly, goes claim for Romanski’s relief instructed Romanski’s false arrest principally to Defendants’ treatment of her claim depended proof legal on that some casino; ejected before she was cause) justification (usually probable and, remembered, it must be it is that lacking, detention was see Lewis conduct alone for which held De Inc., Div., Farmer Jack Mich. no fendants liable. error in the We see (1982); and, similarly, N.W.2d reject pro district decision to court’s depended proof her 1983 claim posed instruction. that probable lacking. cause was Damages C. Amount of the Punitive shopkeeper’s right suspected to detain Award thieves, assuming for the that it moment casinos, applies cognizable is a appeals jury’s defense The casino $875,000 in probable punitive assessment dam- where there is cause that malice, ages against ground deceit, it on the intentional trickery, or unconstitutionally amount excessive. mere accident. punitive damages Whether award is so Gore, (citing 576-77, 517 U.S. at process depends excessive as to offend due 1589). Merely S.Ct. because one of these “guide- on our assessment of the three factors is in given satisfied case does not posts” first enunciated in North BMW of punitive mean the damages award is con-

America, Gore, Inc. v. 116 stitutionally unassailable; however, “the (1996): 134 L.Ed.2d 809 absence of all of them any renders degree reprehensibility of the defen- suspect.” Id. In conducting our review of conduct, dant’s award’s ratio award, pre- we must award, compensatory and sanctions plaintiffs sume that a compensatory award 576-84, comparable misconduct. Id. at injuries. made her whole for her Id. Con- 116 S.Ct. 1589. We conduct “de novo re- sistent with the well-established purpose of application view of trial court’s of [these Gore, punitive damages, see 517 U.S. at guideposts] jury’s to the award.” State 568, cases), 116 (citing S.Ct. 1589 such Farm Mut. Campbell, Auto. Ins. Co. v. 538 “should be awarded if the 408, 418, 1513, 123 S.Ct. 155 L.Ed.2d culpability, defendant’s having after paid (2003) Indus., (citing Cooper 585 Inc. v. compensatory damages, reprehensi- is so Inc., Group, Leatherman Tool ble as to warrant the imposition of further 424, 1678, L.Ed.2d 674 punishment sanctions to achieve or deter- (2001)). Supreme recently As the Court 419, rence.” Campbell, 538 U.S. at said: “Exacting appellate review ensures S.Ct. 1513. that an punitive damages award of In conducting law, reprehensibility analy- upon an application based of rather sis, (in- the district court than a concluded that caprice.” decisionmaker’s harm caused quotation primarily ternal marks and the casino “was citation omit- ted); Gore, physical, see rather than economic.” U.S. at 116 S.Ct. The ba- 1589. sis for this conclusion was the fact that sick, Romanski “testified that she felt em- Reprehensibility barrassed, humiliated, intimidated and scared.” Romanski’s economic losses to- Supreme Court has said $9.05, taled the combined important most indicium of value of the “[t]he ($9) reasonableness of a lunch ticket revoked the casino award degree reprehensibility is the of the five-cent token the casino seized. The remaining the defendant’s Campbell, compensatory conduct.” of the $270 Gore, U.S. at (quoting S.Ct. 1513 was to make Romanski whole for the emo- 1589). 517 U.S. at We must tional distress she suffered as a result of “determine the reprehensibility of a defen Defendants’ conduct. We think the dis- by considering dant” whether: trict generally court was correct to de- primarily scribe Romanski’s harm as phys- physical the harm caused was op economic; ical in Although character. she did not posed to the tortious conduct injury, suffer actual physical jury could evinced an indifference to or a reckless reasonably disregard safety peculiar of the health or infer from the circum- of oth ers; target ques- stances of Romanski’s detention and the conduct had finan vulnerability; tioning cial process the conduct involved initiated on the casino —a repeated patrons by actions or was an isolated inci floor in front of a team of four dent; and the harm was the security personnel result of the threat of —that Indeed, colleagues to detain and her apparent. Brown force was

physical in a 72-year-old woman win- testimony interrogate that Brown threat- there cents? This is undisputed and it is room over five ened Romanski dowless disposal; jury’s at her conclu- light Brown had handcuffs true in especially addition, far as appears undisputed, so probable lacked sion that discern, perhaps that Brown and we can arrest Romanski. See Stamathis cause to (4th staff ac- member of the J, Inc., another Flying sum, theft. Romanski of Cir.2004) (“[A]s cused reprehensibility Circuit’s conclusion agree with the Second act, ignore we cannot conduct case that a defendant’s a similar did not have found that the defendants being reprehensible without highly can be cause.”); probable Williams Kaufman Edwards, Lee v. actually violent. See (5th Cir.2003) County, 352 F.3d Cir.1996) (2d (although the strip obviously (observing that search force police officer did not use defendant probable without cause evi- conducted maliciously prosecuting plaintiff, toward the denced “reckless indifference of state defendant’s invocation rights plaintiffs” constitutional plaintiff rights presented of his deprive reprehensi- strong hence was evidence real and threatened force “an element of knew bility). The fact that the Defendants jury”). that could have aroused the patrons casino’s own had been harm Roman- important More than the slot-walking provided with notice of the suffered, being that harm of such ski the Defendants’ prohibition makes “physical” rather than type that the label reprehensible. more conduct it, is the fundamental “economic” befits But Defendants’ remarkable abuse nature of conduct in this case. Defendants’ undisputed It is power did not end there. outset, indicated at the Defendants As we revoked Romanski’s lunch that the casino inexplicable treated Romanski an and, ejected, having been she was ticket Indeed, egregious way. on this record anywhere in casi- permitted not to eat reasonably that Brown jury could infer words, inhospita- no. In other the rather not with “intentional malice” and acted (it was humid and over 90 ble outside at Campbell, “mere accident.” 538 U.S. degrees) 72-year-old was the Romanski’s 1513. This is not a case of It only choice for lunch. is further undis- identity, nor one in which a law mistaken refused to allow puted that Defendants reasonably officer misread enforcement restroom her- Romanski enter the Defendants admit that the circumstances. self; instead, callously forced targeted picked because she Romanski was indignity having her to endure token. Brown up five cent Whether guard outside the stall. This Brown stand suspi- Romanski on subsequently detained question evidence of malice and is without Romanski’s “atti- cion of theft or because disregard of a conscious for Romanski’s Brown, point the crucial perturbed tude” well-being probative repre- and hence is reprehensibility purposes is Gore, at hensibility. 517 U.S. it and the manner which detention itself Cf. 1589; at Campbell, S.Ct. e.g., by a team of four was carried out — Finally, must note one S.Ct. 1513. security personnel surrounding Roman- that is partic- facet of the casino’sbehavior cir- egregious light ski—were so and fur- ularly deserving of condemnation naturally malice comes to cumstances that malice, motivation, namely, that ther indicative of other a reason- mind. What ask, was in effect a dispatched cause someone who might able observer would officer, all the ratio to the actual with harm inflicted on the Gore, Apparently, the casino was implies. plaintiff.” S.Ct. (citations omitted). security ordinary not content to have an When considered to make guard cases, without against the broad civil spectrum of —one 1) Romanski of the simply (3,135 inform the ratio in this case is unusu- arrests — purported slot-walking policy and leave it ally high compensatory damages and the is, consequently, a trou- at that. There Gore, unusually Compare low. bling in Defen- gratuitousness element 580-81, (reject- 517 U.S. at S.Ct. dants’ conduct. ing a 500-to-l ratio the compensa- where $4000); tory Campbell, award was In closing reprehensi- our discussion of 425-26, U.S. at (rejecting bility, appropriate quote we find it 145-to-l ratio compensatory where the court again, opin- district this time million). award was But $1 denying ion for a Defendants’ motion new 1983 case which the basis for the trial or a remittitur: case was not “[T]his plaintiffs award was the about the loss of a five-cent token or a plaintiffs unlawful arrest and the economic ticket; nine-dollar meal it was about [Ro- injury was so minimal essentially as to be right unreasonably manski’s] to be Supreme nominal. The Court’s cases on unreasonably seized .... detained [and] component the ratio of the excessiveness with at Defendants acted least indifference inquiry involved substantial com- [Romanski], safety to the health or an —which pensatory damages awards economic elderly woman. After Defendant Brown and measurable noneconomic harm5 —are play observed the five-cent to- [Romanski] Lee, of limited therefore relevance. See ken, was surrounded four [Romanski] 101 F.3d at 810-12. security guards, up led office, informed she had committed a recog This Court and other courts have crime, photographed, reported “injuries nized that where are without a police .... [T]he state Court finds ready value,” monetary such as invasions MotorCity’s employ- conduct of Defendant rights unaccompanied by of constitutional particularly reprehensible.” ees to be physical injury compensable or other sum,

In there is no evidence of harm, while higher compen ratios between past similar misconduct in the on the casi satory punitive or nominal award and the Gore, 576-77, 116 part, no’s see 517 U.S. at Argentine expected. award are to be v. 1589; 422-23, Campbell, Am., AFL-CIO, 538 at United Steel Workers of 1513, (6th Cir.2002) (sus in CLC, 476, 123 S.Ct. it is clear this case that 287 F.3d reprehensibility in guidepost weighs ratio, a taining a 42.5 to and thus punitive damages $400,000 award, favor of a substantial punitive injury where was award. campaign a national union’s sustained local against retaliation a branch because

2. Ratio expressed disagree some of its members perhaps union-promoted bargaining “The second and most common- ment with a Olibas, ly cited indicium of an also Dean v. agreement); unreasonable see (8th Cir.1997) 1001, 1007 a punitive damages (sustaining excessive award is Gore, (a turer); Campbell, 5. See 517 U.S. at 116 S.Ct. 1589 538 U.S. at (a compensatory damages compensatory $4000 $1 award for de- million preciation. ato car’s value due to an undis- award for economic harm and emotional dis- tress). re-painting performed by closed the manufac- ratio, rights “in civil cases to find punitive and thus a courts other Lee, award, 101 F.3d at proportions.” the unlawful arrest of the limits and where DiSorbo, 189; 811; 343 F.3d at primarily him a kind of see also plaintiff caused terms). Williams, in F.3d at 1016 n. 78. This monetary harm not measurable Indeed, reasoned, necessarily approach is unscientific but the Second Circuit has identifying ballpark in us in a within correctly, we think cases where the aids $875,000 award at very low or nomi which to evaluate the compensatory award is nal, here. “any appreciable exemplary award issue appear produce would ratio would in only prior know of one ease which We Lee, excessive this measure.” 101 F.3d constitutionality of a we considered the 811; Fabri v. Technolo see also United pursuant award assessed (2d Intern., Inc., gies 387 F.3d liability finding to a 1983. The Cir.2004); Hoy, 343 F.3d DiSorbo case, Gregory Shelby County, quite (2d Cir.2003). The Fifth Circuit also however, distinguishable, because to this uncontroversial view. See adheres abuse, physical plaintiff “suffered severe Williams, 352 F.3d at 1016. long pain hours of conscious endured suffering, ultimately as a result These decisions the circuits are based died only much plausi- [of officer’s] on intuition as on the actions.” (6th Cir.2000). Furthermore, crucial interpretation ble dicta Gore wit, Campbell; compensatory Gregory as the said in award in was Court $778,000, punitive the first of those cases: “low awards of so the million $2.2 may compensatory damages properly sup- easily guidepost. satisfied Gore’s ratio turn, then, port higher high compensato- ratio than We to other courts’ treatment awards, if, ry example, particularly punitive rights awards civil cases. egregious act resulted in a small has Edwards, plaintiff Lee v. damages. higher amount of A economic compensatory damages awarded nominal may justified in ratio also be cases and the Second Circuit concluded injury which the is hard to detect or the prosecution malicious against verdict monetary value of noneconomic harm defendant, officer, a police support would might have been difficult to determine.” than damages award no more Gore, 517 U.S. at 116 S.Ct. 1589. $75,000; $200,000. had awarded conjunction Read with the Court’s con- 101 F.3d at 813. The basis for the court’s “rejection categorical ap- sistent of a closely conclusion was that had scruti proach” evaluating constitutionality to ultimately approved nized but awards of id.; awards, of punitive damages Camp- $200,000 substantially in less than cases bell, 1513, at U.S. these plaintiffs where the suffered “numerous effect, pronouncements appro- in about physical psychological and severe cases, priate compen- of a low or nominal harms.” Id. The defendant’s conduct in satory inquiry award on the excessiveness Lee, having plaintiff not caused the such See, weighty are e.g., Argentine, indeed. trauma, “remotely” acute not rep was Lee, 488; at at F.3d 101 F.3d In rehensible. Id. the later case of DiSor Consistent with principles, Hoy, these bo v. the Second Circuit remitted a $1,275 puni- think that to determine punitive damages whether the award of million $75,000; in tive award this case is within constitu- to the claims were excessive force limits, tional to in approach process. best com- and abuse of It was clear pare it punitive plaintiff severely awards examined DiSorbo that addition, tutionally police officer—the excessive. while we by the defendant beaten in- the case as have said that the unlawful arrest of Ro- described Second Circuit in police aggres- manski and the manner which Defen- volving “heinous acts sufficiently repre- and her sister dants treated her are arrested her sion”—who punitive 343 hensible to warrant a she resisted his advances. substantial because award, the harm that at befell Ro- 188-89. manski is not as the harm severe as suf- Olibas, Eighth Circuit In Dean v. just in plaintiffs fered the cases against punitive award sustained beaten, (e.g., being severely discussed him after the found bail bondsman strip-searched, subjected or to booking, causing police wrongfully liable for detention, jailhouse wrongful prosecu- 129 F.3d at plaintiff. arrest and book the tion). key component A of the Dean 1007-1008. that, Nevertheless, peculiar rationale was its concern as a a wrinkle to this court’s bondsman, might may “have case render an appropriate bail the defendant award initiate opportunities knowingly average punitive other exceeds the award civil people” rights involving the arrest of innocent and cause cases verdicts of casino, in indignity type. to suffer the of detention The defendant here is a them which, verdict, Finally, in jail prosecution. yielded at the time of the $1,000,000. daily nearly County, the Fifth intake of “Since a Williams Kaufman $15,000 per-plaintiff punish poor per sustained a fixed dollar award will Circuit one, punitive against police wealthy officer son more than a one can having illegal strip conducted searches of understand the relevance of defen [the position] at 1016. The dant’s financial in plaintiffs. State’s ” Gore, scrutiny, terest in .... award satisfied Gore court retribution concluded, J., (Breyer, it was. “not unreason- at concur because S.Ct. ring); in light Corp. able of the violations' that took see TXO Production Alli light Corp., and in of awards in similar ance 509 U.S. 462 & place” Resources n. 125 L.Ed.2d 366 cases. Id. S.Ct. (1993) Mut. (plurality opinion); Pacific Gregory and our review Our decision 1, 21-22, Haslip, Ins. Co. v. Life of these cases from other circuits leads us (1991). 113 L.Ed.2d 1 S.Ct. First, conclusions: sub- important two equally financial rel position defendant’s cases, punitive stantial awards deterrence, evant the State’s interest surprisingly, accompany tend to con- not purpose is also a valid which physical psychologi- duct that results in 21-22, damages. Haslip, 499 U.S. Second, typical cal harm. (citation Lee, 1032; 101 F.3d at 813 are award- case which omitted). ed, is an individual the defendant time, officer, police department or mu- At the same a defendant’s wealth (which, are, juror deeper heighten could the likelihood of ca- nicipality odds have officer), Supreme recently pockets deeply price. than the let alone a Thus the Court of a defendant pocketed company, which the casino indis- reiterated that wealth “[t]he justify in unconstitution- putably is. have not found a case cannot an otherwise We Campbell, damages punitive damages al award.” punitive which were awarded (citation 427, exclusively on a that the 538 U.S. at 123 S.Ct. finding based omitted). us an addi- unlawfully gives the Common sense plaintiff defendant arrested gener- the skeptically tional reason to view challenged and the award was as unconsti- Accordingly, post- Id. at 181. proposition high punitive ic that a award is injury. $600,000. necessary of the wealth of the punitive because remittitur award was said in Supreme directly defendant. The Court case is not on- Goodman imposed that sanction this “[t]he Gore of a point involved conduct different —it justified ground cannot on the that case be occurred here character than that which necessary future miscon- it was to deter award— compensatory and a substantial considering duct whether less without completing it assists us in but nevertheless expected drastic remedies could be backdrop against which to evaluate the 584, goal.” that at achieve U.S. punitive damages award as- size upshot S.Ct. 1589. The is two-fold: we against sessed casino. wealth

must take into account the casino’s that punitive to ensure award Comparable 3. Sanctions for Con- designed it is will further the interests duct advance; but we must also ensure that our “Comparing punitive damages award exacting appellate review results an or criminal that penalties and the civil significantly higher that than award imposed comparable could be miscon- necessary to further those interests. provides duct a third of excessive- indicium proceeding Before to the third Gore Gore, ness.” U.S. at a final guidepost, putting we take stab at purpose guidepost 1589. The re- $875,000 punitive damages elementary principle pro- flects an of due Lee, context. See 101 F.3d at 811. We namely, that must defendant cess— roughly analogous have reviewed one case have “fair provided been notice” in which a state court examined substan subject penalty conduct would it to a on punitive against corpo tial award levied punitive damages the order of the award. roughly rate defendant conduct similar 1589; at Campbell, S.Ct. to what occurred In that here. 123 S.Ct. 1513. Notice of plaintiff, pregnant shopping woman possible penalties is not to confused be children, Christmas eve with her two with notice of the unlawfulness of the un- brought prosecution a malicious claim conduct; derlying the latter is irrelevant against wrongly Wal-Mart after she was constitutionality of a dam- shoplifting telephone, accused of de Gore, ages award. 517 U.S. at store, briefly tained at the arrested 1589; DiSorbo, 186; Lee, 343 F.3d at theft, police, jailed, tried, charged for 101 F.3d at 809. all at Wal-Mart’s behest. Wal-Mart already We have canvassed the most Stores, Goodman, Inc. v. 789 So.2d found; indeed, comparable cases have (Ala.2000). A plain awarded the this case is an occasion where the ratio and tiff in compensatory damages for comparable guideposts conduct substan- anguish mental in punitive and million $3 Still, tially overlap. question here is damages, the latter because it was clear not whether similar punitive awards for steps Wal-Mart could have taken similar conduct were held constitutional quickly plain would have exonerated prior cases tiff. but whether the casino had fair Supreme Id. at 173. The Court notice that conduct of the permitted Alabama concluded that sort that oc- Gore punitive-compensatory might penalties, curred here result greater ratio of no fines, than ground 3-to-l on the on the order of Wal conduct, $875,000. Mart’s although reprehen Campbell, 538 U.S. at sible, 1513; Gore, 584, did not the plaintiff physical cause 123 S.Ct. at 116 U.S. rights in the civil cases we conduct some of do not address parties The 1589. S.Ct. addition, In the casino have canvassed. might conduct have Defendants’ whether have fair notice that a verdict for did not civil or criminal any Michigan implicated unaccompanied by a ver- unlawful would have such that arrest — penalties force, assault, excessive or mali- dict for We penalties. of specific on notice been inju- proof physical of prosecution, cious court concluded the district note that trauma— ry psychological or sustained would not arrest of Romanski the unlawful in a on the order of penalty would result any subjected Brown or the casino have , $875,000. statutory penal- civil or criminal specific However, we must consider Gore with this account take no issue ties. We and, totality further- guideposts in their question. on the parties’ silence light of more, punitive that a dam- we must ensure course, sense, of the casino general In a actually pur- achieves the twin ages award against that a verdict had fair notice As and deterrence. poses punishment violating someone’s consti actor for state it in Lee: “In aptly put Circuit the Second punitive in a rights might result tutional excessiveness, keep must we gauging if is sufficient award the conduct damages punitive damages: ‘to purpose mind the Wade, 461 U.S. See Smith ly egregious. him and to deter punish the defendant 1625, 30, 56, 75 L.Ed.2d 103 S.Ct. fu- similar conduct others from (1983). can rights cases we The civil ” (citing F.3d at Vasbinder ture.’ therefore, notice as vassed, provided some (2d Cir.1992)); Scott, damages awards punitive potential Gore, 517 U.S. at S.Ct. see also Accordingly, we conclude liability. § 1983 21-22, 1589; 111 S.Ct. Haslip, 499 U.S. at face might notice that it the casino had fair Furthermore, is direct- “deterrence type sanctioning damages punitive can afford to ly people to what related that Romanski en rights civil violation (citation Lee, 101 F.3d at 813 omit- pay.” it not have notice here but did dured Gore, ted); at also 517 U.S. see likely. was high an award as J., (Breyer, concurring). Con- S.Ct. 1589 at Campbell, 538 U.S. entirely appropriate for it was sequently, Gore, 1513; at S.Ct. craft a guidepost militates favor 1589. This to the casino’s financial that was sensitive reducing the award. be sensitive And we too must position. award. reality reviewing 4. Conclusion circumstances, totality of the Under this case leaves lasting impression has Supreme Court mindful jure egregious misconduct—a de is one of whether less “considering charged us with gratuitous power, abuse of police officer’s jury’s punitive [than drastic remedies casino, 72-year- by a that left a sanctioned expected could be damages award] indigni- of needless old the victim woman fu deterring goal the State’s achieve” terms, In moral 585, 116 and humiliation. Gore, ties misconduct, ture significantly repre- conduct was ensuring punish casino’s and with hensible; reprehensible achieved, surely deterrence are ment and $600,- enough greater to warrant a substantial no than an award of think terms, daily comparative of the casino’s sixty per award. cent 000— however, time of the verdict —would Romanski was not beat- intake at the because process of the due tried, satisfy demands en, the conduct here was charged or seriously contended be It cannot clause. as the defendants’ reprehensible not as an insignificant this is amount for the III. CONCLUSION Moreover, $600,000 casino.6 award is We VACATE the damages por- comfortably within ballpark pu- of the judgment, tion of the district court’s AF- nitive rights awards the civil judgment FIRM the respects, all other see esp. Good- canvassed, cases we have and REMAND for proceedings consistent man, (involving 789 So.2d at 171 a corpo- with opinion. defendant); rate reprehensible the less conduct in being this case counteracted FARRIS, Judge, Circuit dissenting. the need to make the award large enough Michigan The upon statute which the actually deter, punish and something majority places specific relies limitations ordinarily not a challenge civil private security guards distinguish rights cases. powers their of detention from those of remand, Accordingly, on the district See M.C.L. public peace-officers. give court must option Romanski of § Although security 338.1080. guards can agreeing to remit accept and to warrant, make arrests without a M.C.L. $600,000 punitive damages award or to § emphasizes 338.1080 authority their proceed with a new trial on the issue of private is limited bounds of their Meyers v. Wal-Mart damages. employment: They can detain indi- Stores, Inc., (6th 257 F.3d Cir. viduals on company property, during their 2001); Educ., Farber v. Massillon Bd. of employment, hours of while wearing a (6th Cir.1990); 917 F.2d Brewer company uniform.1 Inc., Uniroyal, v. (6th 498 F.2d Cir.1974); DiSorbo, 189; Lee, 343 F.3d at Michigan Supreme Court spe- has cifically rejected majority’s conclusion Likewise, 6. We note that neither Romanski nor the dis- Henderson Fisher also differs trict court requirement considered Gore's significantly from this case. In Henderson the that less drastic measures must be evaluated University court held that Pittsburgh, of penalty ensure that the imposed ultimate worked, campus police where the was essen comports process. with due Fisher, tially a state institution. Henderson v. (3d Cir.1980) ("[T]he 631 F.2d majority 1. The holdings Pay relies on the University Pittsburgh wholly of has lost its Rush-Presbyterian ton v. and Henderson v. private charter and has become an instrumen proposition Fisher for the geographi that the tality ...."). of the Commonwealth Further cal security guards' authority limitations on more, Pennsylvania statute cited in § M.C.L. 338.1080 "plenary” do not alter the authority campus Henderson extends the of 647.) power. nature (Op. of their Those beyond officers the bounds of state universi distinguishable cases are from this case. The ties, permitting pow them to "exercise those Chicago Payton ordinance cited in states that pursuant ers ... conferred to this section "possess powers officers municipality within the pur for the limited regular police patrol places at the for which pose aiding local emergency authorities in they respectively appointed are or in the line (2005). situations.” 71 Pa. Stat. Ann. duty they engaged.” for which Payton are Due comparative to M.C.L. 338.1080’s limi Rush-Presbyterian, (7th 184 F.3d tations on the 1999). statute, Cir. Unlike the guards, I believe this case is more akin to Chicago grants special police ordinance offi Byles, Wade v. Payton than either police cers broad powers specific without Byles, Henderson. See Wade v. Moreover, geographical limitations. the ordi (7th 1996) (finding Cir. special nance also an absence of state forces officers to comply guards action regulations govern pur with all rules where were not allowed to ing public requires officers and sue lobby city them to re individuals outside the hous port directly superintendent police. ing authority buildings). Bros., Flagg also Inc. tionally” public); see security guards are licensed, private Brooks, 149, 158, 1729, 645-46.) 98 S.Ct. v. U.S. (Op. necessarily state actors. (1978) (“[V]ery few [func 56 L.Ed.2d 185 licensing the believes [Defendant 'exclusively have reserved to been tions] security private regulate statutes which ” omitted)).2 (citation Romanski the State.’ degree requisite the demonstrate guards presented no evidence that the State has bring their activities action of state traditionally and exclu Michigan has law, subject to con- color of state under sively power to make war reserved disagree. We restraints. We stitutional contrary, To the rantless arrests. licensing of that the mere do not believe held that Michigan Supreme Court has constitutes sufficient security guards security guards do not act private licensed require involvement government detaining shoplifting as state actors in sus warnings. City Miranda giving of at 281. pects. Impens, 327 N.W.2d 667, 414 Mich. Rapids Impens, v. Grand (“Their [guards’] may role be viewed as an (1982). 278, 281 327 N.W.2d privilege to shopkeepers’ extension of the account, granting licenses By its own period a reasonable of time a detain for the State of security guards, private failure to suspected of theft or person to, attempted “cloak[] Michigan has pay.”). virtually the same individuals with private light the facts most fa- Viewing Payton, 184 officers.” See public as defendants, I am not convinced vorable to pri- But if the casino’s at 629. even un- security guards acted that the casino plenary hold ar- security guards did vate detaining Roman- der color of state law law, authority' under rest security guards approached four ski. The necessary to establish still be would off-the- and then later escorted Romanski authority dur- actually exercised this they they she had com- floor because believed of Romanski. ing the detention contend, and, guards a crime as mitted test, it is public interest applying belligerent when loud and she had become exercise, possession, of and not the explain poli- the casino’s they attempted exclusively the state belonging powers “slot-walking.” Even Romanski cy against the action was whether that determines her, not that Brown detained concedes Chapman v. color of state law. See attitude, but because of her simply because (6th Co., 825, Cir. 319 F.3d Higbee (Op. of theft. suspected Romanski she banc) (“Under 2003) (en public function 633-34.) very point law on this test, is deemed a state private party crime on Investigation possible of a clear: tradi powers if exercised actor he or she not trans- premises “does employer’s an state.”); exclusively to the tionally security reserved offi- of a form the actions Secondary Sch. Chapman, Acad. v. Tenn. Brentwood into state action.” cer 302-03, “trifle,” Ass’n, 288, was a Athletic 531 U.S. That the “crime” at 834. (2001) notes, (holding guard’s 924, opinion 148 L.Ed.2d 807 S.Ct. egregious an may have constituted attributed to actions that actions can be tort, tradi- is irrelevant. “exclusively and they state if were avoiding a con- preventing a state that cer- volve Supreme Court has held 2. While the Georgia duty by delegation, see they stitutional may public even if could actions be tain 53, 2348, McCollum, 42, 112 S.Ct. capacity, 505 U.S. undertaken in a have been Wade, (1992); 130, 135, 83 F.3d at 120 L.Ed.2d Maryland, see Griffin "purporting to (1964); parallel roles an actor with West v. 12 L.Ed.2d 754 Bros., role, Flagg 436 U.S. Atkins, state see act” in the 56 n. (1988), 98 S.Ct. 1729. in- at 163 n. these instances L.Ed.2d 40 in Chapman, guard As where a an strip

conducted unauthorized search of customer,

a female the behavior of the security guards

casino in this case was abusive,

outrageous clearly but was

meant to serve interests the em-

ployer. humiliating Id. The detention of solely

Romanski was based on the enforce- policy

ment of an inane casino and ulti-

mately personal involved collection of data prevent returning her from to the casi- However,

no for six months.

guards actually neither threatened nor in- during

voked the of the state

incident.3

Because the actions of the casino’s secu- action,

rity guards failed to constitute state

I would dismiss Romanski’s 1983 claim. subject-matter

In the jurisdic- absence of

tion, I would remand her case to the dis-

trict court with directions to vacate and

remand to state court.

I respectfully dissent. HARRISON,

James P. Petitioner-

Appellee, McBRIDE,

Daniel R. Superintendent,

Respondent-Appellant.

No. 04-1398.

United of Appeals, States Court

Seventh Circuit.

Argued May 2005.

Decided Oct. notes, majority 635-36.) 3. As the ejection. (Op. State regarding Police were notified Romanski's

Case Details

Case Name: Romanski v. Detroit Entertainment, L.L.C.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 28, 2005

Citation: 428 F.3d 629

Docket Number: 04-1354

Court Abbreviation: 6th Cir.