Jarvis v. Village Gun Shop, Inc. , 805 F.3d 1 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-2249
RUSSELL JARVIS, JAMES JARVIS, ROBERT CRAMPTON, and
COMMONWEALTH SECOND AMENDMENT, INC.,
Plaintiffs, Appellants,
v.
VILLAGE GUN SHOP, INC., D/B/A VILLAGE VAULT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Barron, Selya and Lipez,
Circuit Judges.
David D. Jensen, with whom David Jensen PLLC, Patrick M.
Groulx, and Grollman, LLP were on brief, for appellants.
Mark I. Zarrow, with whom Lian, Zarrow was on brief, for
appellee.
David R. Marks, Assistant Attorney General, with whom Maura
Healey, Attorney General, was on brief, for Commonwealth of
Massachusetts and Executive Office of Public Safety and Security,
amici curiae.
October 30, 2015
SELYA, Circuit Judge. There are circumstances in which
the actions of private parties become so entangled with the actions
of public entities that the former may become liable as state
actors under 42 U.S.C. § 1983. But the line that separates private
action from state action is sometimes difficult to plot. This
case, which involves the actions of a privately owned storage
facility with respect to firearms confiscated by Massachusetts
police officers, illustrates the point.
The district court, ruling at the summary judgment
stage, concluded that the storage facility that was sued here was
not a state actor and, accordingly, entered summary judgment in
its favor. After careful consideration, we affirm.
I. THE STATUTORY SCHEME
We begin our odyssey with a sketch of the key elements
of the Massachusetts statutory scheme for firearms ownership.
In Massachusetts, an individual who wishes to own or
possess a firearm in his residence or place of business must obtain
a Firearms Identification (FID) card. See Mass. Gen. Laws ch.
140, §§ 129B, 129C; Com. v. Gouse, 965 N.E.2d 774, 785 n.14 (Mass.
2012). Under certain defined circumstances, an FID card may be
denied, suspended, or revoked. See Mass. Gen. Laws ch. 140,
§§ 129B, 131(d), (f), (i). Pertinently, Massachusetts law provides
that if a court issues an abuse prevention order against a person
who presents "a substantial likelihood of immediate danger of
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abuse," the court must order that person to surrender all of his
firearms and his FID card (as well as any other firearms license).
Mass. Gen. Laws ch. 209A, § 3B. One who has surrendered his
firearms pursuant to an abuse prevention order yet wishes to
challenge the suspension or revocation of his FID card or license,
may petition the ordering court for relief — and a hearing must be
held within 10 days. See id.
An FID card will expire if the holder does not renew it
within the time fixed by law. See Mass. Gen. Laws ch. 140,
§ 129B(9). If an FID card expires, law enforcement officials are
authorized to confiscate both the expired card and any firearms
possessed by the former cardholder. See id. § 129B(12). The
holder may at any time take steps to renew his card and reclaim
his property.
The surrender of firearms pursuant to this statutory
scheme does not terminate a gun owner's ownership rights. After
such a surrender has occurred, the gun owner may arrange for the
firearms to be transferred or sold to any person with a valid FID
card or other firearms license within one year after the date of
surrender. See id. § 129D. The police cannot dispose of the
confiscated firearms for one year, but they are not required to
maintain custody of the firearms for that length of time. Rather,
the police "may transfer possession of such weapon[s] for storage
purposes to a federally and state licensed dealer of such weapons
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and ammunition who operates a bonded warehouse . . . that is
equipped with a safe for the secure storage of firearms . . . ."
Id. The statutory scheme therefore puts gun owners on constructive
notice that if they do not take action with respect to their
confiscated firearms, the police have a right to transfer those
firearms for storage.1
Once a licensed dealer takes possession of confiscated
firearms and any associated property, the dealer must inspect the
firearms, furnish the owner with a detailed inventory, and store
the items as specified by the statute. The gun owner becomes
liable for all "reasonable storage charges," but he may at any
time avoid the continuing accrual of such charges by selling or
transferring the firearms to a person with a valid FID card or
other firearms license. Id. If the owner does not either reclaim
the confiscated firearms or arrange for a permitted transfer of
them and then fails to pay the accumulated storage charges for a
period of no less than 90 days, the dealer is authorized to auction
the property in order to recoup its fees. See id. So, too, if
one year has elapsed and the owner still has not either reclaimed
1 While we need not — and do not — reach the due process
issue, it is well-established that such statutory notice is
sufficient to put gun owners on notice of the possibility that
their guns may be transferred. See, e.g., City of W. Covina v.
Perkins, 525 U.S. 234, 241 (1999); Gun Owners' Action League, Inc.
v. Swift, 284 F.3d 198, 207 (1st Cir. 2002); United States v.
DeBartolo, 482 F.2d 312, 316 (1st Cir. 1973).
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or transferred his confiscated property, the dealer may sell the
property at public auction and defray all accumulated storage
charges out of the proceeds. See id. Any surplus proceeds will
be remitted to the owner.2 See id.
II. FACTUAL BACKGROUND
With this foundation in place, we turn to the case at
hand. There are three groups of plaintiffs here: we rehearse their
facts and circumstances separately.
A. James and Russell Jarvis.
Plaintiff James Jarvis is a gun owner residing in
Cheshire, Massachusetts. In the early morning hours of July 9,
2010, Massachusetts State Police troopers arrested him for
domestic assault and battery. His wife proceeded to obtain an ex
parte temporary abuse protection order. Based on this order and
in pursuance of state law, see Mass. Gen. Laws ch. 209A, § 3B, the
state police confiscated all firearms and ammunition found in James
Jarvis's home. The confiscated property included firearms owned
by not only James Jarvis himself but also his son (James Jarvis,
Jr.) and his father (Russell Jarvis).
2
A similar regime is in effect for cases in which the police
choose to retain custody of the confiscated property rather than
transferring it to an authorized storage facility. See Mass. Gen.
Laws ch. 140, § 129D. If the police sell the property at public
auction, the proceeds are remitted to the state treasurer. Id.
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That same morning, James Jarvis and his wife appeared in
court. A state judge extended the protection order until August
9, 2010, and it was thereafter extended to August 2, 2011.
James Jarvis moved into his parents' residence in Adams,
Massachusetts, where he remained for two years. As long as the
order of protection was still velivolant, the state police could
not lawfully return his firearms to him. Moreover, his presence
in his parents' home inhibited the ability of the police to return
Russell Jarvis's firearms (and at any rate, Russell Jarvis did not
himself possess a valid FID card or other firearms license at that
time).
On August 11, 2010 — over a month after the firearms had
been taken from James Jarvis's home3 — the state police transferred
custody of the confiscated firearms to defendant Village Gun Shop,
Inc., doing business as "Village Vault" (the Gun Shop). As part
of its business, the Gun Shop operates a bonded warehouse for the
secure storage of firearms and ammunition. See Mass. Gen. Laws
ch. 140, § 129D. The Gun Shop inventoried the confiscated property
and, in a letter to James Jarvis dated that same day, laid out its
3 We note that the statute, on its face, permits an immediate
transfer of property from the police to a private storage facility.
Because the police waited for a month or more before transferring
the weapons confiscated from the Jarvis and Crampton residences,
we take no view as to how (if at all) such an immediate transfer
might impact our analysis.
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storage terms (including fees and costs). The letter, to which a
formal inventory was attached, explained James Jarvis's options
for exercising dominion over his firearms, noting that he could
"at any time transfer or sell [his] firearms to a firearms dealer
or a properly licensed individual." The inventory included Russell
Jarvis's firearms; and even though the Gun Shop did not send a
separate letter to Russell Jarvis, he has acknowledged that he saw
the Gun Shop's letter and was generally aware that the police had
transferred his property (along with his son's) to the Gun Shop.
On September 11, 2010, the Gun Shop sent James Jarvis
its initial invoice. This invoice listed out the accumulated
storage charges, the administrative fee, and the handling fee.
When over 9 months elapsed without payment, the Gun Shop sold the
confiscated firearms and associated property at public auction.
B. Robert Crampton.
Plaintiff Robert Crampton is a gun owner domiciled in
Tewksbury, Massachusetts. In the spring of 2010, Crampton reported
a burglary at his home, and the local police discovered that
Crampton owned several firearms for which he did not possess a
valid license. In point of fact, Crampton's FID card had expired
decades earlier. On June 2, 2010, the police confiscated
Crampton's guns and associated paraphernalia and explained to him
that he needed to acquire a new FID card.
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Crampton did nothing, and on November 15, 2010 — over
five months after the firearms had been taken from his home — the
police transferred the guns to the Gun Shop for storage. That
same day, the Gun Shop wrote to Crampton, furnishing him with an
inventory and delineating the sundry charges that he would be
incurring. When arrearages mounted and Crampton failed to pay
them for a period of more than 90 days, the Gun Shop sold his
firearms at public auction.
C. Commonwealth Second Amendment, Inc.
Plaintiff Commonwealth Second Amendment, Inc. (CSA) is
a non-profit corporation, which has a stated purpose of "education,
research, publishing and legal action focusing on the
constitutional right to privately own and possess firearms." CSA
asserts that it "expends significant resources assisting those
people whose firearms are held by bonded warehouses under the
authority of [Massachusetts law]." It does not allege that any
firearms owned by it have been either confiscated or auctioned.
III. TRAVEL OF THE CASE
In 2012, James Jarvis, Russell Jarvis, Robert Crampton,
and CSA brought suit in the United States District Court for the
District of Massachusetts against the Gun Shop and Mary E.
Heffernan, in her official capacity as Secretary of the Executive
Office of Public Safety and Security. The plaintiffs sought relief
under 42 U.S.C. § 1983, maintaining that they had been deprived of
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their Fourteenth Amendment right to due process. Specifically,
they alleged that they were forced to pay storage charges and were
permanently deprived of their property (the firearms) without
proper notice and opportunity to be heard. Both the Gun Shop and
Heffernan denied any constitutional breach.
In due course, the plaintiffs moved for partial summary
judgment against the Gun Shop. They sought a ruling that the Gun
Shop was a state actor, which could be held liable for damages
under section 1983. The district court demurred, concluding that
the Gun Shop was not a state actor for purposes of a section 1983
action. See Jarvis v. Village Gun Shop, 53 F. Supp. 3d 426, 437
(D. Mass. 2014). Accordingly, the court denied the plaintiffs'
motion for partial summary judgment and granted summary judgment
on the state action issue to the Gun Shop. See id.; see also Fed.
R. Civ. P. 56(f)(1).
Following some procedural wrangling — including the
dismissal of the plaintiffs' claims against Heffernan — the
district court entered a final judgment in favor of the Gun Shop.
This timely appeal ensued.4
4 Since CSA owned no guns and suffered no loss of any
property, its case was dead on arrival. See, e.g., Grajales v.
P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir. 2012) (explaining that
an essential element of a section 1983 claim is that the plaintiff
demonstrate some deprivation of rights guaranteed by the
Constitution or laws of the United States). In this court, CSA
makes no reasoned attempt to challenge the judgment against it.
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IV. THE MERITS
We divide our discussion of the merits into two segments.
We begin with the standards applicable to appellate review of
summary judgments and the essential elements of the section 1983
framework. We then examine the theories of state action
undergirding the plaintiffs' claim.
A. The Legal Landscape.
We afford plenary review to a district court's grant of
summary judgment. See Santiago v. Puerto Rico, 655 F.3d 61, 67
(1st Cir. 2011). Where, as here, "a party moves for summary
judgment and the court, sua sponte, grants judgment the other way,
the usual approach to appellate oversight of Rule 56 orders must
be inverted." Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884
F.2d 1510, 1513 (1st Cir. 1989). Consequently, we view the facts
and all reasonable inferences derived therefrom in the light most
hospitable to the summary judgment loser (here, the plaintiffs).
See id. We will affirm the entry of summary judgment as long as
the record reveals no genuine issue as to any material fact and
shows that the prevailing party is entitled to judgment as a matter
of law. See Santiago, 655 F.3d at 68; Fed. R. Civ. P. 56(a).
Consequently, we treat that judgment as final, see United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that claims
not developed on appeal are deemed abandoned), and our subsequent
references to the plaintiffs exclude CSA unless the context
indicates otherwise.
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In this context, an issue is "genuine" if the record
permits a rational factfinder to resolve that issue in favor of
either party. See Borges ex rel. S.M.B.W. v. Serrano-Isern, 605
F.3d 1, 4 (1st Cir. 2010). Within this rubric, a fact is "material"
"if its existence or nonexistence has the potential to change the
outcome of the suit." Id. at 5.
Here, the correctness of the summary judgment ruling
depends on the district court's application of 42 U.S.C. § 1983.
In order to put this appeal in perspective, then, it is necessary
to revisit the well-plowed terrain of section 1983.
"Section 1983 supplies a private right of action against
a person who, under color of state law, deprives another of rights
secured by the Constitution or by federal law." Redondo-Borges v.
U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005)
(quoting Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). A
cause of action under this provision comprises two essential
elements: first, the conduct complained of must have been carried
out "under color of state law," and second, that conduct must have
worked a deprivation of rights guaranteed by the Constitution or
laws of the United States. Grajales v. P.R. Ports Auth., 682 F.3d
40, 46 (1st Cir. 2012) (quoting Martinez v. Colon, 54 F.3d 980,
984 (1st Cir. 1995)).
In this instance, we train the lens of our inquiry on
the "under color of state law" requirement (which was the lone
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issue before the district court at summary judgment). Because
this requirement is the functional equivalent of the Fourteenth
Amendment's "state action" requirement, see Perkins v. Londonderry
Basketball Club, 196 F.3d 13, 17 n.1 (1st Cir. 1999), "we regard
case law dealing with either of these formulations as authoritative
with respect to the other, and we use the terminologies
interchangeably," Santiago, 655 F.3d at 68.
B. The Plaintiffs' Claim.
The centerpiece of the plaintiffs' section 1983 claim is
their allegation that they were deprived of their due process
rights by the Gun Shop. Specifically, they allege that their
Fourteenth Amendment rights were abridged because they were forced
to pay storage charges and, when they did not do so, their property
was peremptorily sold at public auction.
It is true — if somewhat of a tautology — that the
Fourteenth Amendment applies only to state action performed by "a
person who may fairly be said to be a state actor." Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982). When the named
defendant in a section 1983 case is a private party, the plaintiff
must show that the defendant's conduct can be classified as state
action. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). The
state action inquiry is preliminary to, and independent of, the
due process inquiry. If there is no state action, the plaintiff's
claim fails. See id.
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The bar for such a showing is set quite high, and we
have cautioned that "[i]t is '[o]nly in rare circumstances' that
private parties can be viewed as state actors." Estades-Negroni
v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005)
(quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)
(alterations in original). This inquiry is typically factbound.
See Brentwood Acad. v. Tenn. Secondary Sch. Athl. Ass'n, 531 U.S.
288, 295-96 (2001); Burton v. Wilmington Parking Auth., 365 U.S.
715, 722 (1961) (explaining that "[o]nly by sifting facts and
weighing circumstances can the nonobvious involvement of the State
in private conduct be attributed its true significance").
The Supreme Court has mapped out three routes that can
lead to a finding that a private party "may fairly be said to be
a state actor." Lugar, 457 U.S. at 937. State action may be found
if the private party "assumes a traditional public function when
performing the challenged conduct," or if the private party's
conduct is "coerced or significantly encouraged by the state," or
if the private party and the state have become so intertwined that
they were effectively "joint participant[s]" in the challenged
conduct. Santiago, 655 F.3d at 68 (quoting Estades-Negroni, 412
F.3d at 5). Unless the facts of record here, viewed in the light
most favorable to the plaintiffs, are capable of supporting a
finding that the plaintiffs have successfully travelled one or
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more of these avenues, the entry of summary judgment must stand.
See id. at 69. We turn, then, to this inquiry.
1. Joint Action. We start with the pathway on which
the plaintiffs have placed their heaviest emphasis: joint action.
To establish state action through this route, a plaintiff must
show that the state has "so far insinuated itself into a position
of interdependence with the [private party] that it was a joint
participant in [the challenged activity]." Santiago, 655 F.3d at
68 (quoting Estades-Negroni, 412 F.3d at 5) (alterations in
original). The relevant inquiry demands a deep dive into the
totality of the circumstances, with heightened attention to
certain specific factors. See Perkins, 196 F.3d at 21. Those
factors include whether the private party is (or is not)
independent from the state in conducting its day-to-day affairs,
see id.; whether the private party has shared profits generated
from its challenged conduct with the state, see Barrios-Velazquez
v. Asociacion de Empleados del Estado Libre Asociado de P.R., 84
F.3d 487, 494 (1st Cir. 1996); and whether the private party has
used public facilities, see Burton, 365 U.S. at 723-24. In the
case at hand, the plaintiffs do not — and cannot — come close to
making the requisite showing.
Here, the record reveals no relationship between the
activities of the police and those of the Gun Shop, with one
exception: a Massachusetts statute authorizes the police to
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transfer possession of lawfully confiscated firearms and
associated property to licensed storage facilities, see Mass. Gen.
Laws ch. 140, § 129D, and the Gun Shop operates such a facility.
Although this transfer may occur without a gun owner's express
authorization, the statute puts such owners on notice that their
property may be transferred if they fail to avail themselves of
other options. Taken alone, that statutory authorization is too
fragile a link: for purposes of demonstrating the required nexus
between state action and private action, we think it insufficient
simply to point to a state statute authorizing the actions of the
private entity. See Jackson v. Metro. Edison Co., 419 U.S. 345,
350 (1974); Perkins, 196 F.3d at 20.
Nor can the plaintiffs bridge this gap by showing that
the state acquiesced in the actions of the Gun Shop. After all,
where the state "has merely announced the circumstances under which
its courts will not interfere with a private sale," state action
is not present. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-
66 (1978).
Such a tenuous connection between the state and the Gun
Shop is surely not enough to ground a finding of state action —
and the record discloses nothing more. For example, there is a
complete dearth of evidence that the Gun Shop depends on the state
in any respect for the day-to-day operation of its business. See
Perkins, 196 F.3d at 21. Rather, the Gun Shop operates
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independently in all relevant respects. Once the police
transferred possession of the plaintiffs' firearms to the Gun Shop,
the police ceased to have any involvement with the storage and
eventual auctioning of the confiscated property: all
correspondence regarding the storage charges and the sale of the
confiscated property went directly between the Gun Shop and the
various plaintiffs.
By the same token, there is no question but that the Gun
Shop wholly owns the facility in which it operates its business.
See Burton, 365 U.S. at 723-24. Nor is there anything in the
record indicating that the police helped set the Gun Shop's storage
charges, shared in those charges, or received any part of the
auction proceeds collected by the Gun Shop. See Perkins, 196 F.3d
at 21. Under the statutory scheme, the state garners proceeds
from confiscated property only if the police abjure the use of a
private storage facility, retain possession of the confiscated
property, and the owner fails to transfer or reclaim the property
within one year. See Mass. Gen. Laws ch. 140, §129D.
In an effort to forestall the conclusion that there is
no joint activity sufficient to constitute state action, the
plaintiffs make three arguments. These arguments are
unconvincing.
First, the plaintiffs argue that the activities of the
police "led to and facilitated the actions that injured" them.
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This argument amounts to nothing more than an suggestion that the
police are the "but-for" cause of the Gun Shop's challenged
conduct: had the police not confiscated the plaintiffs' firearms,
the Gun Shop would never have gained possession of the firearms
and, thus, could not have imposed storage charges and sold the
weapons at public auction. This argument proves too much. If
but-for causation could constitute a sufficient basis for a finding
of joint action, the line between state and private action would
be blurred beyond recognition. Any time the state performs an
action that sets in motion some subsequent action by a private
party — say, issuing a driver's license — the private party could
be deemed to have acted jointly with the state. So expansive a
definition of "state action" would eviscerate the state action
requirement.
The plaintiffs' second argument begins with the
proposition that the Gun Shop "was performing duties that the
police would otherwise have been obligated to perform themselves."
This proposition is simply wrong. The plaintiffs rely principally
on the decision in West v. Atkins, 487 U.S. 42 (1988). In that
case, however, state action was found because the state had
delegated an affirmative constitutional obligation to a private
party by contract. See id. at 56-57. Here, unlike in West, the
police had no affirmative obligation to retain possession of the
plaintiffs' property. See Mass. Gen. Laws ch. 140, § 129D.
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Rather, the statutory scheme expressly allowed the police to
transfer the confiscated firearms to a licensed storage facility
at any point after taking possession of them. See id.
The plaintiffs counter, however, that even if the police
were not obliged to keep their firearms, the Gun Shop "inherited"
this state obligation when the police transferred the plaintiffs'
firearms. Assuming for argument's sake that such an obligation
was delegated to the Gun Shop when the Gun Shop took custody of
the confiscated firearms,5 that circumstance would not avail the
plaintiffs. The statutory scheme at issue here affords gun owners
ample alternatives for how to direct their confiscated property
and thereby avoid unwanted storage charges. See Mass. Gen. Laws
ch. 140, § 129D; see also id. ch. 209A, § 3B. The plaintiffs chose
to eschew these alternatives, which included challenging the
revocation of the FID card or firearms license, transferring the
confiscated property to some person with a valid firearms license
or to a licensed dealer of the owner's choice, or acquiring (or
5We note that the statutory scheme itself is less than
pellucid in this regard. On the one hand, it imposes an obligation
on the police to hold confiscated firearms for up to a year. See
Mass. Gen. Laws ch. 140, § 129D. On the other hand, if the police
transfer the weapons to an authorized storage facility, the statute
appears to allow that facility to sell the guns after 90 days (if
the storage charges go unpaid). See id. Here, moreover, the
summary judgment record is opaque: it contains no evidence that
the police purposed to delegate their state obligation to the Gun
Shop. Nor is there any evidence that the Gun Shop agreed to hold
the transferred firearms for any fixed period of time.
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re-acquiring) a valid firearms license in order personally to
reclaim the confiscated weapons. See Mass. Gen. Laws ch. 140, §
129D; see also id. ch. 209A, § 3B. Given this range of unexercised
options, we think it follows that the plaintiffs impliedly
consented to the transfer of their property to the Gun Shop. Put
another way, the plaintiffs' passive acquiescence in the transfer
of their property sufficed to break any meaningful link between
the actions of the police and those of the Gun Shop.
The plaintiffs' third argument is really a subset of
their second argument. They attempt to draw sustenance from
several cases in which the owner of a towing or impoundment company
was found to be a state actor and, thus, potentially liable under
section 1983. These cases — like West — are readily
distinguishable.
In Smith v. Insley's Inc., the defendant towed and stored
the plaintiff's car in connection with an ongoing murder
investigation. See 499 F.3d 875, 878 (8th Cir. 2007). The
defendant was therefore "performing the traditional governmental
function of seizing and securing property for a criminal
investigation." Id. at 880. That is not true here. In fact, had
a criminal investigation been afoot, the Massachusetts statutory
scheme would have required the police to retain possession of the
confiscated firearms rather than transferring them to a third party
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(such as an authorized storage facility). See Mass. Gen. Laws ch.
140, § 129D.
In Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1982),
the court found it to be of decretory significance that the private
towing company had participated in the initial seizure of the
affected property. As the Tenth Circuit explained, the towing
company there actually seized the plaintiff's property but also
proceeded to hold the property "for the [s]tate, not for [the
plaintiff]." Id. at 1345. Here, by contrast, the Gun Shop had no
involvement at all with either the police decision to confiscate
the plaintiffs' property or the implementation of that decision.
And unlike in Coleman — where the towing company sold the
plaintiff's property to satisfy the storage fees incurred by the
police, see 697 F.2d at 1343 — the transfer of the plaintiffs'
property to the Gun Shop foreclosed any possibility that the state
might derive any economic benefit from that property.
To be sure, in Stypmann v. San Francisco, 557 F.2d 1338
(9th Cir. 1977) — a case factually similar to Coleman — the state
would not have been able to accomplish its larger purpose of
removing vehicles from roadways when their presence created a
safety risk without the involvement of the towing company. See
557 F.2d at 1340 n.2, 1341. But that is at a considerable remove
from our case, in which the summary judgment record contains
nothing to suggest that the police required any assistance from
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the Gun Shop in order to confiscate and store the plaintiffs'
firearms. The Gun Shop simply provided the police with an
alternative to storing the firearms themselves. And the plaintiffs
had at least a month (and in Crampton's case over 5 months) to
choose to store their confiscated property elsewhere before the
police transferred the property to the Gun Shop.
That ends this aspect of the matter. After scouring the
record, we conclude that there is no showing of joint action
sufficient to satisfy section 1983's state action requirement.
2. Public Function. We turn next to the public function
pathway. To navigate that route, a plaintiff must show that the
private party has performed a service that, traditionally, the
state has exclusively undertaken. See Santiago, 655 F.3d at 69.
In this regard, we have emphasized both that "[e]xclusivity is an
important qualifier" and that "the activities that have been held
to fall within the state's exclusive preserve for purposes of the
public function test are few and far between." Id.
This avenue does not lead to a finding of state action
here. As the plaintiffs themselves have admitted, a licensed
storage facility (such as the Gun Shop) exercises "statutory powers
that police departments do not enjoy," notably the ability to
charge storage fees. Given this admission, a finding of
exclusivity is well beyond the plaintiffs' reach.
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The Supreme Court's decision in Flagg Bros. is
instructive on this point. There, the petitioner (a storage
company) was entrusted with the respondent's goods after the
respondent was evicted from her apartment. See 436 U.S. at 153.
When several months passed and no storage fees were paid, the
petitioner purposed to sell the goods — an action expressly
authorized by state statute. See id. at 151-53. In bringing a
section 1983 suit against the storage company, the petitioner
alleged that the storage company had become a state actor because
the state had delegated to it a power "traditionally exclusively
reserved to the [s]tate." Id. at 157 (quoting Jackson, 419 U.S.
at 352). The Court disagreed, concluding that the facts showed no
more than a "purely private dispute" between a debtor and a
creditor. Id. at 160. The respondent could resolve such a
dispute, the Court said, through a raft of state-law "rights and
remedies." Id. A section 1983 action was, therefore, unwarranted.
See id. at 160-61.
The facts in this case are of a piece with those of Flagg
Bros. The plaintiffs do not challenge here the original
confiscation of their firearms by the police but, rather, challenge
only the Gun Shop's storage charges and its auctioning of their
confiscated property. Moreover — as we already have explained —
the statutory scheme provides gun owners with a plethora of
alternatives for how to direct their confiscated property and
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thereby avoid unwanted storage charges. See Mass. Gen. Laws ch.
140, § 129D; see also id. ch. 209A, § 3B. The plaintiffs chose
not to avail themselves of any of these alternatives. Viewed in
this light, the case at hand — like Flagg Bros. — adds up to
nothing more than a garden-variety dispute between a debtor and a
creditor. This type of purely private dispute cannot be elevated
to the level of an exclusive state concern. See Flagg Bros., 436
U.S. at 160-61; see also Perkins, 196 F.3d at 19 (explaining that
the "short list of activities" falling within the state's
"exclusive preserve" includes, for example, "'the administration
of elections, the operation of a company town, eminent domain,
peremptory challenges in jury selection, and, in at least limited
circumstances, the operation of a municipal park'") (quoting
United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 907
(4th Cir. 1995)).
3. State Compulsion. This leaves only the state
compulsion avenue. Traveling this route demands that an inquiring
court ask whether the state has used coercive power or has provided
such a substantial degree of encouragement that the private party's
decision to engage in the challenged conduct should fairly be
attributed to the state. See Rendell-Baker, 457 U.S. at 840
(citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Contrary to
the plaintiffs' importunings, the facts of this case make clear
that the state compulsion route is a dead end.
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We can be brief. Nothing in the Massachusetts statutory
scheme either requires or compels the Gun Shop — or any other
private storage company — to provide its services to the police.
The opposite is true; a firearms dealer, such as the Gun Shop,
must affirmatively seek a license to offer such storage services.
What is more, the police are at liberty to transfer confiscated
firearms to any licensed dealer who satisfies the statutory
requirements. Given that both the state and the private storage
companies have unfettered freedom of choice with respect to their
participation in this statutory scheme, a finding of state
compulsion will not lie. See Adickes v. S. H. Kress & Co., 398
U.S. 144, 170 (1970).
V. CONCLUSION
We summarize succinctly. In their action against the
Gun Shop, the plaintiffs do not challenge either the confiscation
of their firearms or the police's authority to transfer those
firearms to a bonded warehouse for storage. Rather, they challenge
the imposition of storage charges and the subsequent auctioning of
their firearms after they failed to pay those storage charges.
But the facts evidenced in the summary judgment record, even when
viewed in the light most favorable to the plaintiffs, do not show
that state action, as opposed to private action, produced these
asserted harms. Although the activities undertaken by the Gun
Shop were authorized by state law, mere compliance with the
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strictures of state law cannot transmogrify private action into
state action. Nor is it enough that the state set in motion the
subsequent actions taken by the Gun Shop: but-for causation is
simply insufficient to conjure a finding of state action. Whatever
rights (if any) the plaintiffs may have against the Gun Shop, they
have made out none under section 1983.
We need go no further. We have combed through the
plaintiffs' arguments in support of their state action rationale
and found them wanting. It follows that the judgment of the
district court must be
Affirmed.
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