Private security officer selection and training guideline

Security Officer Training And Selection Criteria

Discussion Questions: Based upon research of your state of residence or home state compare current training and selection criteria against criteria covered in the ASIS guide. (Please choose either Hawaii, which is my current state; or North Carolina which is my home state. Whichever one you can find the most information.) What are the shortcomings and what recommendations would you suggest?

Instructions: Fully utilize the materials that have been provided to you in order to support your response. Your initial post should be at least 350 words. Please follow APA format. Please be sure to quote the attached sources in addition to any others.

8 Selected Case Readings

CHAPTER OUTLINE

Introduction................................................................................................................................... 335

Notes.............................................................................................................................................. 481

Introduction The following cases have been properly labeled “benchmark” precedents in the world of

private security. Use them as reference points and as catalysts for further discussion.

The cases emphasize the legal nuances of private sector justice, and, even more compel-

lingly, they tell the story of privatization and its apparent invincibility. Since Burdeau

v. McDowell, the kingpin of private security cases, decided in 1921, the courts at both

the state and federal levels have consistently ruled on this well-settled area of law. While

activists on many fronts wish constitutional extension to private sector operations, the

reticence of jurists, even in the age of judicial activism, is quite remarkable. To be sure,

the courts have been dependable and even more predictable. That sort of uniformity is

rare and a reflection of how high the stakes are in the law of private security.

AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC. 182 F.3d 376 (5th Cir. 1999)

Before Garwood, Duhe, and Benavides, circuit judges.

Opinion:

John M. Duhe, Jr., circuit judge:

Aetna Casualty & Surety Company (“Aetna”) sued Pendleton Detectives of Mississippi, Inc.

(“Pendleton”) for recovery of the amount of claims it paid for losses to its insured, The Merchants

Company, Inc. (“Merchants”), resulting from Pendleton’s negligence or breach of contract. The jury

awarded Aetna $174,000 in damages. Subsequently, the district court granted Pendleton’s Motion

for Judgment as a Matter of Law and entered judgment for Pendleton. Aetna appeals arguing the

district court erred, because Aetna presented sufficient evidence to sustain the jury’s verdict.

We agree, and reverse the district court’s judgment and reinstate the jury’s verdict.

BACKGROUND

In August 1993, Pendleton contracted with Merchants to provide security for Merchants’

Jackson, Mississippi distribution warehouse facility. Merchants quickly determined that it was

unsatisfied with Pendleton’s service. Merchants complained that the gate was left open at times,

guards arrived at work intoxicated, made personal phone calls, and entertained members of the

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AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC.—CONT’D

opposite sex while on duty. In early 1995, Merchants determined through its inventories an

unusually high amount of loss from its warehouse. Merchants suspected nightshift employee

theft was responsible for the increased losses. Merchants fired its nightshift manager and

notified Pendleton, but the problem only grew worse. After Merchants notified Pendleton again

of the problem, it hired a private investigator posing as an employee to investigate the problem.

The private investigator concluded employee theft was responsible for the losses. Additionally,

several nightshift employees, while taking lie detector tests administered by a hired expert,

admitted stealing large amounts of food from the warehouse. After receiving Merchants’

complaints, Robert H. Pendleton, chairman of the board of Pendleton, sent Merchants a memo

acknowledging that the guards’ performance was below what was expected.

On January 31, 1996, Merchants submitted a claim of $430,266.68 for losses resulting

from theft at its Jackson, Mississippi warehouse. After settling the claim, Aetna sued to

recover the amount as Merchants’ legal subrogee and contractual assignee. Although the jury

awarded $174,000 in damages to Aetna, the district court granted Pendleton’s Motion for

Judgment as a Matter of Law and entered a judgment for Pendleton on May 8, 1998.

Merchants appeals.

DISCUSSION

We review the district court’s grant of a motion for judgment as a matter of law de novo,

applying the same standard it used. See Hill v. International Paper Co., 121 F.3d 168, 170 (5th

Cir. 1997). A court may grant a judgment as a matter of law if after a party has been fully heard

by the jury on an issue, “there is no legally sufficient evidentiary basis for a reasonable jury to

have found for that party with respect to that issue.” Fed. R. Civ. P. 50; Conkling v. Turner, 18

F.3d 1285, 1300 (5th Cir. 1994). A court should view the entire record in the light most favorable

to the nonmovant, drawing all factual inferences in favor of the nonmoving party, and “leaving

credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts to the jury.” Conkling, 18 F.3d at 1300 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)).

The district court based its ruling on Merchants’ failure to introduce conclusive evidence

that the thefts occurred while Pendleton guards were on duty. Although Pendleton’s security

expert, Robert Vause, testified that it was more likely than not that the theft occurred because of

Pendleton’s substandard service, the district court disregarded his testimony because his belief

was based on the lax security environment created by Pendleton employees at Merchants’

warehouse.

Merchants contends that it presented sufficient evidence to support the jury’s verdict, while

Pendleton asserts that Merchants did not prove its employees proximately caused Merchants’

losses. Specifically, Pendleton argues Merchants failed to present direct evidence that

Pendleton guards were on duty when the thefts occurred. While admitting that its security

services were substandard, Pendleton contends that Merchants’ restrictions on its security

service caused the losses rather than Pendleton’s substandard services.

To prove negligence, “a plaintiff must prove by a preponderance of the evidence each

element of negligence: duty, breach of duty, proximate causation, and injury.” Lovett v.

Bradford, 676 So. 2d 893, 896 (Miss. 1996). Circumstantial evidence is sufficient to prove

proximate cause under Mississippi law. See K-Mart, Corp. v. Hardy, 735 So. 2d 975, 1999 Miss.

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AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC.—CONT’D

LEXIS 102, 1999 WL 145306, at *5 (Miss. 1999). “Negligence may be established by

circumstantial evidence in the absence of testimony by eyewitnesses provided the

circumstances are such as to take the case out of the realm of conjecture and place it within the

field of legitimate inference.” Id. (quoting Downs v. Choo, 656 So. 2d 84, 90 (Miss. 1995)); see

Davis v. Flippen, 260 So. 2d 847, 848 (Miss. 1972). (“when the case turns on circumstantial

evidence it should rarely be taken from the jury.”)

Merchants presented the following evidence of Pendleton’s negligent security practices:

(1) guards slept on the job; (2) guards watched T.V. on the job; (3) guards drank on the job;

(4) guards entertained guests of the opposite sex on the job; (5) guards left the gate to the

warehouse open;(6) Pendleton’s admission of failing to perform sufficient background checks

on its guards; (7) the private investigator’s conclusion that nightshift employees were

responsible for the losses; (8) several of Merchants’ nightshift employees’ confessions to

stealing large amounts of food;(9) Pendleton’s contractual obligation to provide security from

4 P.M. to 8 A.M. and 24 hours a day on weekends; (10) Merchants’ repeated reports of

suspected employee theft to Pendleton; (11) the report of a person wearing a Pendleton

baseball cap selling Merchants’ products from the trunk of his car; and (12) Merchants’

security expert’s testimony that it was more probable than not that Pendleton’s lax security

practices caused the losses. Merchants argues the above evidence is sufficient to support

the jury’s verdict.

Pendleton argues that Merchants’ restrictions on its security service caused the losses, and

that, because of the limited nature of the security service Merchants requested, the loss

would have occurred even had Pendleton performed its duties perfectly. Pendleton contends

the following restrictions placed upon its service by Merchants prevented it from deterring the

losses: (1) Pendleton was not allowed to go inside Merchants’ warehouse; (2) Pendleton was not

allowed to inspect the inside of trucks or employee vehicles leaving the facility; (3) Pendleton

did not provide 24 hour a day protection 7 days a week; and (4) the Pendleton security officer’s

view of the employee parking lot was obstructed for a short period of time every hour while he

conducted rounds of the premises.

At trial, Pendleton theorized that Merchant’s former night shipping manager was involved in

a large-scale scheme to steal food by colluding with truck drivers to falsify shipping documents

and send sealed trucks full of food to nonexistent locations. Pendleton contended that because

its guards lacked the authority to search sealed trucks as they left the gates of Merchants’

facility, it was unable to prevent the losses Merchants suffered. However, Pendleton did not

offer evidence that Merchants accused its truck drivers of stealing or that it ever suspected or

investigated any occurrences of falsified shipping documents. Moreover, Merchants’ evidence

established that the substantial losses from theft continued long after Merchants fired the night

shipping manager.

Merchants’ evidence at trial sufficiently supports the jury’s inference of causation between

Pendleton’s lax security practices and the losses Merchants suffered. The Security Instructions

developed by Pendleton exclusively for Merchants expressly stated that the mission of

Pendleton’s post was “to maintain security of the property and prevent fires, theft, etc. during

all hours.” The Security Instructions required that Merchants’ employees enter the facility only

(Continued)

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AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC.—CONT’D

through a gate located next to the guard house and that Pendleton guards be stationed at the

guard house during their entire shift except during the brief period of their rounds. These

instructions also authorized Pendleton’s guards to stop Merchants’ employees and inspect any

packages or bundles they were carrying, and mandated that Pendleton guards keep a “close

check on the employee parking area to deter outsiders, or other employees, from tampering

with or damaging employee vehicles.” (emphasis added). Additionally, while the guards’ view of

the employee parking lot was obstructed for a short period of time every hour during the

rounds of the premises, the guards were to perform these rounds randomly rather than at a set

time of day and were supposed to lock the gate while away, requiring employees to wait until

the guard’s return to exit the facility, thereby reducing the likelihood of employee theft during

this brief absence.

The period of loss claimed by Merchants extended from October 1994 to December 1995.

During this period Merchants employed up to 90 nightshift employees, and Pendleton was

required to conduct nearly 1,000 shifts of security services. The jury’s award of $174,000 to

Aetna, an amount substantially smaller than the $430,266.68 Aetna demanded, evidences the

jury’s implicit conclusion that Pendleton caused at least some of Merchants’ losses. The jury

obviously concluded that while the night shipping manager Merchants fired in July 1995 caused

some of the losses, Pendleton’s substandard security practices also caused $174,000 of the

losses Merchants suffered.

Based on the above evidence, a reasonable juror could not only have concluded that

Pendleton’s poor security practices allowed Merchants’ nightshift employees to steal with

impunity, but that in fact Pendleton’s security officers were also involved in the theft from

Merchants themselves. For the above reasons, we reverse the district court’s decision and

reinstate the jury’s verdict.

REVERSED AND JURY VERDICT REINSTATED

ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.

212 Ill. App. 3d 717; 571 N.E.2d 783 (1991)

Justice White delivered the opinion of the court. Cerda, P. J., and Rizzi, J., concur.

Defendants appeal from a judgment entered by the circuit court of Cook County that

reversed the revocation of plaintiffs’ licenses to practice. We affirm the judgment of the

circuit court.

Defendants are the Department of Registration and Education (the Department), now

known as the Department of Professional Regulation; Gary L. Clayton (the Director), who was

Director of Registration and Education at the pertinent times; the Illinois Private Detective,

Private Alarm, and Private Security Board (the Board); and the Board’s chairman, and five other

members.

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

One plaintiff is Arthur Letourneau, to whom the record sometimes refers as Arthur

LeTourneau. The other plaintiffs are the detective division, the security division, and the

alarm division of Investigations International (the company). Of the four licenses and

certificates revoked, two licenses (as a private detective and a private security contractor) were

issued in Letourneau’s name, and two certificates (as a private detective agency and as a private

security contractor agency) were issued to Letourneauin the names of the company’s detective

division and security division, respectively. For convenience when referring collectively in this

opinion to plaintiffs’ licenses and certificates, the general term “licenses” is used.

A certificate as a private alarm contractor agency, issued in the name of the company’s alarm

division, and a license as a private alarm contractor, issued in Letourneau’s name, were neither

revoked nor involved in the disciplinary proceedings, but as licensees the holders thereof have

joined as plaintiffs.

The central issue is whether revocation of plaintiffs’ licenses was contrary to the manifest

weight of the evidence, unsupported by substantial evidence, or arbitrary and unreasonable.

I. STATUTORY BACKGROUND AND PROCEDURAL HISTORY

Under the Private Detective, Private Alarm, and Private Security Act of 1983 (Ill. Rev. Stat. 1985,

ch. 111, par. 2651 et seq.) (the Act or the present Act), a licensee is subject to disciplinary

sanctions for enumerated violations. (Ill. Rev. Stat. 1985, ch. 111, par. 2672(a).) A range of

sanctions, including license revocation, is provided. Ill. Rev. Stat. 1985, ch. 111, par. 2675. In this

cause, the department filed formal charges seeking disciplinary action against Letourneau and

the company as respondents. The charges named Letourneau and the company’s detective and

security divisions as holders of the licenses in question. The charges alleged three substantive

acts or omissions, said to constitute violations of the Act or of its precursor statute (the 1933

Act) (Ill. Rev. Stat. 1983, ch. 111, par. 2601 et seq.) (repealed eff. Jan. 5, 1984)1 and therefore to

constitute grounds for license revocation or suspension under section 22 of the Act (Ill. Rev.

Stat. 1985, ch. 111, par. 2672). The alleged violations were:

(a) Failure by the company since 1979 to register its employees with the department, in

violation of section 10b(4) of the 1933 Act and section 15(c) of the present Act (Ill. Rev. Stat.

1983, ch. 111, par. 2622(4);Ill. Rev. Stat. 1985, ch. 111, par. 2665(c)).

(b) Practice by the company as “a detective” while its “license” was nonrenewed from 1977 to

October 1983, said to be in violation of section 3 of the 1933 Act (Ill. Rev. Stat. 1983, ch. 111,

par. 2603).2

(c) Practice by Ernest Rizzo since 1979 as a detective for the company despite a 1978

revocation of his detective license, in violation of sections 16(b) and (f) of the 1933 Act and

sections 22(a)(3), (a)(14), (a)(15), and (a)(19) of the present Act (Ill. Rev. Stat. 1983, ch. 111,

pars. 2628(b), (f); Ill. Rev. Stat. 1985, ch. 111, pars. 2672(a)(3), (a)(14), (a)(15), (a)(19)).

Under the version of the Act applicable to this cause, it was a continuing requirement for

agency certification such as here that the agencies each have a full-time Illinois-licensed

private detective or private security contractor in charge and that each such person reside in

Illinois. (Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f).) “Residency” meant having established an

(Continued)

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

actual domicile in Illinois for at least one year. (Ill. Rev. Stat. 1985, ch. 111, par. 2652(m).) The

1933 Act contained similar requirements for detective agencies. (Ill. Rev. Stat. 1983, ch. 111,

pars. 2601, 2621.) The present Act has now been amended to repeal the requirement that a

licensee in charge reside in Illinois. See Pub. Act 85—981, art. III, } 5, eff. Jan. 1, 1988 (amending Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d) through (f)).

During several sessions between January and July 1986, a hearing officer received testimony

from 11 witnesses and admitted 75 exhibits into evidence. Attending from time to time and

sometimes participating in the proceedings were several members of the board. On January 22,

1987, the board made and submitted its written findings of fact, conclusions of law, and

recommendation that the licenses at issue be revoked. See Ill. Rev. Stat. 1985, ch. 111, par. 2674(d).

The board’s factual findings were that:

Letourneau had been a Florida resident since at least 1980 and, while holding the licenses at

issue, had falsely reported to the Department since 1980 that he was an Illinois resident.

Letourneau and the company had practiced as a detective and detective agency from

October 1977 to October 13, 1983, and from January 4, 1984, to January 7, 1985, without a

license and without registering employees.

Letourneau and the company had since at least 1980 allowed Ernest Rizzo to practice as a

detective without a license or supervision.

Letourneau and the company had practiced as a security contractor and security contractor

agency from January 4, 1984, to January 7, 1985, without registering employees.

The board’s legal conclusion was that Letourneau had violated the sections of the present

Act and of the 1933 Act that he and the company were charged with violating.

Letourneau filed a motion for rehearing, but the director denied it. Adopting the board’s

findings of fact, conclusions of law, and recommendation, he then ordered that licenses at

issue be revoked.

On April 28, 1987, Letourneau filed his complaint for administrative review in the circuit

court of Cook County, seeking to have the director’s revocation orders vacated. After briefing

and argument, the court entered an order on August 10, 1988, reversing the department’s

revocation decision.

The trial judge stated that he was reversing the revocation orders because the findings

of fact were without substantial foundation in the evidence. Specifically, the judge found that

there was no evidence to support the director’s finding that Letourneau had been a Florida

resident since 1980 and that there was evidence that Letourneau had been an Illinois resident

at the times in question. The judge also found that there was no evidence to support the

director’s finding that Letourneau had allowed Rizzo to practice as an unlicensed private

detective and that the department’s evidence in general was not strong enough to support the

result of revocation. At a hearing on defendants’ motion for reconsideration, the judge

again stated that there was insufficient evidence to support the director’s findings of fact

and conclusions of law. Accordingly, he denied the motion for reconsideration, and this

appeal followed. This opinion will refer to matters of evidence as required for discussion of

the issues.

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

II. ANALYSIS

A. Standard for Reviewing Findings of Fact

In reviewing the factual determinations made by the director, this court is limited to

ascertaining whether his decision accorded with the manifest weight of the evidence and was

supported by substantial evidence. Massa v. Department of Registration & Education (1987), 116

Ill. 2d 376, 385, 507 N.E.2d 814, 818; Bruce v. Department of Registration & Education (1963), 26

Ill. 2d 612, 622, 187 N.E.2d 711, 717; Irving’s Pharmacy v. Department of Registration &

Education (1979), 75 Ill. App. 3d 652, 658, 394 N.E.2d 627, 632.

The findings and conclusions of an administrative agency regarding questions of fact are to

be considered prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3-110; Murdy v.

Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.) However, this does not mean that a

court should automatically approve an agency decision merely because the agency heard

witnesses and made findings. Viera v. Illinois Racing Board (1978), 65 Ill. App. 3d 94, 99, 382

N.E.2d 462, 466.

B. Letourneau’s Residency

Defendants appear to regard Letourneau’s residency as being relevant for two reasons, either of

which might support disciplinary action.

First, as the sole individual to whom the company’s agency licenses were issued, Letourneau

(or some person employed by him) was required to be in charge of agency operations as a full-

time, individually licensed Illinois resident, and failure to comply would violate the law. (See Ill.

Rev. Stat. 1985, ch. 111, pars. 2664(d), (f); Ill. Rev. Stat. 1983, ch. 111, par. 2621.) Letourneau

employed no such person; the question is whether Letourneau himself met the requirement.

Second, Letourneau was required to avoid fraud or material deception in connection with

licensure and to report his correct address and practice location to the department (Ill. Rev.

Stat. 1985, ch. 111, pars. 2671(a), 2672(a)(1); Ill. Rev. Stat. 1983, ch. 111, pars. 2616, 2628(a));

according to defendants, failure to report a Florida residence would violate the law. However,

though the department’s briefs discuss such residency questions at length, its formal charges

never clearly specified violation of either of these residency-related requirements. The only

formal charge that even arguably might be read as pertaining to one or both of them was the

charge that Rizzo had unlawfully practiced as a detective for the company.

Despite any deficiencies in the formal charges, one of the director’s findings of fact was that

Letourneau had been a Florida resident who falsely reported Illinois residency—thereby

presumably violating the requirements that he report his correct address and avoid fraud or

material deception (see Ill. Rev. Stat. 1985, ch. 111, pars. 2671(a), 2672(a)(1)). And one of the

director’s conclusions of law was that Letourneau had permitted his license to be used by an

unlicensed person in order to operate without Letourneau’s supervision or control (see Ill. Rev.

Stat. 1985, ch. 111, par. 2672(a)(15))—which comes close to saying that Letourneau violated the

requirement that he keep a full-time, Illinois-licensed individual who resides in Illinois in

charge of his agencies (see Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f)).

The implication of defendants’ treatment of the residency question is that Letourneau’s

nonresidency, failure to report a correct address, failure to keep a full-time licensed resident

in charge, and facilitation of Rizzo’s unlicensed practice are actually all of a piece in common

(Continued)

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

sense, and all unlawful under one statutory section or another. For the additional reason that

plaintiffs make no issue of any incongruity in formal charges, findings of fact, and conclusions

of law, Letourneau’s alleged nonresidency is treated in this opinion as if it had been duly framed

as a violation from the outset.

Defendants point to testimony by Letourneau’s business partner and two alleged former

employees (who testified under grants of immunity) that they never saw Letourneau in

Illinois during the period in question. Defendants also point to evidence that departmental

investigators were never able to find Letourneau at his Illinois addresses, that the company

maintained a Florida office, and that Florida had issued detective licenses to an Arthur

Letourneau. From this, defendants argue that they were entitled to use their expertise regarding

normal conduct of a licensee in order to infer that Letourneau was not an Illinois resident.

Though Ernest Rizzo (whom, according to the formal charges, Letourneau had helped to

engage in unlicensed practice) testified that he had known Letourneau for 20 years and that

Letourneau was an Illinois resident, defendants argue that they were entitled to judge Rizzo’s

credibility adversely because of his failure to explain adequately a number of past actions and

statements suggestive of unlicensed practice. In addition, defendants point to the testimony

of one witness, a longtime Letourneau acquaintance, that he had dined with Letourneau in

Florida in 1983 and that Letourneau, in the witness’ words, had then “indicated” that he

was a Florida resident.

Documentary evidence in the form of mail and utility bills shows Illinois addresses for

Letourneau, but defendants argue that the addresses were actually Rizzo’s. As a fact from

which an adverse inference can be drawn, defendants point to Letourneau’s refusal to answer

questions at the administrative hearing on grounds of potential self-incrimination after the

Department’s counsel had referred to the possibility of criminal charges. Accordingly,

defendants contend that the finding of Letourneau’s nonresidency in Illinois was not against

the manifest weight of the evidence.

In reply, besides referring to evidence already noted, plaintiffs point to other evidence that

Letourneau was an Illinois resident. The department’s investigator testified that he saw a

license on the wall at an address previously stated by Letourneau to be his own. The

department’s investigators testified that mailboxes bearing Letourneau’s name and containing

mail addressed to him existed at addresses given by Letourneau. Responses in Letourneau’s

name were received by the department, after it had sent mail to Letourneau at his Illinois

address, though defendants contend that the responses either did not bear Letourneau’s

personal signature at all or bore discrepant personal signatures. Letourneau also appeared

before Illinois notaries public. In the circuit court, the trial judge referred to the need for “facts

established by evidence,. . .evidence that is understood in law as being evidence.”

He continued:

This is not a case which turns on the weight of the evidence or the credibility of the

witnesses, quite frankly.

This is a case which must be reversed I believe because the findings are without substantial

foundation in the evidence. A case by the state cannot be made from inferences, from

presumptions, or from suspicions, or from indirect evidence. They have to be made by

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

evidence that’s credible, and sufficiently strong to warrant the result that is reached. There is no

strong evidence here to support the result of revocation of Letourneau’s license.

After referring to the department’s grant of immunity to its witnesses, the trial judge

remarked:

The only basis for the conclusion that Mr. Letourneau resides in Florida is that one witness

had dinner with Mr. Letourneau once in Florida in 1983 I believe, and yet the charge is

that he lived there since 1980. That same witness said I hadn’t seen him around, and I had

dinner with him in ‘83. The fact that that witness had not seen Letourneau in Illinois does

not mean that Letourneau resided in Florida during all of that hiatus.

The trial judge acknowledged the evidence of Florida detective licenses in the name of an

Arthur Letourneau but stated:

I am not sure that this Mr. Letourneau is the only Arthur Leto[ur]neau in the USA, and

there was no attempt to demonstrate the Arthur Letourneau in Florida is the Arthur

Letourneau that we are talking about here in Illinois.

So there clearly is no evidence to support the finding. . .that Letourneau has lived in Florida

since 1980.

The judge then referred to evidence that Letourneau had received mail in his Illinois

mailbox, was paying utility bills in Illinois, had registered his automobile in Illinois, and had

responded to department notices mailed to Illinois. The judge also cited Rizzo’s testimony that

Letourneau lived in Illinois:

Clearly the department is free to ignore Mr. Rizzo’s testimony, but I find it incredible that

they would ignore that testimony and accept testimony from someone who said he had

dinner with Mr. Letourneau in Florida and give greater weight to the latter while giving

no weight to the former.

Defendants were entitled to draw reasonable inferences from the evidence. (Raymond

Concrete Pile Co. v. Industrial Comm’n (1967), 37 Ill. 2d 512, 517, 229 N.E.2d 673, 676.) In an

administrative proceeding, defendants could also, in conjunction with other evidence, draw an

inference adverse to Letourneau from his refusal to testify on grounds of potential self-

incrimination. (Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 613-14,

411 N.E.2d 1110, 1116.) If the issue is merely one of conflicting testimony and a witness’

credibility, the administrative agency’s determination should be sustained. (Keen v. Police Board

(1979), 73 Ill. App. 3d 65, 70-71, 391 N.E.2d 190, 195.) An administrative agency may properly

base its decision on circumstantial evidence. Ritenour v. Police Board (1977), 53 Ill. App. 3d 877,

882-83, 369 N.E.2d 135, 139.

In finding “no” evidence of Letourneau’s nonresidency, the trial judge overlooked testimony

that, in what may have been admissions against interest (see Cox v. Daley (1981), 93 Ill. App. 3d

593, 596-97, 417 N.E.2d 745, 748), Letourneau had said in about 1979 that he planned to move

to Florida and had “indicated” in 1983 that he was now a Florida resident. In any event, the

department presented what it contends was circumstantial evidence of Letourneau’s Florida

(Continued)

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

residency: the Florida licenses, inability to find him in Illinois, accumulation of several weeks’

worth of mail in a mailbox, identity between Letourneau’s claimed Illinois addresses and

Rizzo’s addresses, irregularities in Letourneau’s purported signature on answers to mail sent to

him at Illinois addresses, and the adverse inference from Letourneau’s refusal to testify on the

question of his residency.

Although the trial judge erred in concluding that there was no evidence that Letourneau

had lived in Florida since 1980, the question remains whether the evidence offered by the

department sufficiently supported the director’s decision so that the decision can be said not to

have been against the manifest weight of the evidence.

Defendants have not cited and we have not found any requirement that one must be a

Florida resident in order to be licensed as a detective in that state, so the mere fact of Florida

licensure would carry relatively little weight even if plaintiff were shown to have been the

Florida licensee.

The Act did not expressly require the person in charge of a private detective agency always to

remain within Illinois; all it required was that the person in charge be a resident of this State

and be a “full-time Illinois licensed private detective.” (See Ill. Rev. Stat. 1985, ch. 111, par. 2664

(d).) Assuming that Letourneau did spend some time in Florida, such a fact is not substantial

evidence that he thereby gave up Illinois residency, that while he was in Florida his Illinois

agency operations actively continued without him, or that he was thereby prevented from

being as much a “full-time Illinois licensed” individual as any other licensee who took

vacations or went on trips out of state. The fact that departmental investigators failed to find

Letourneau but found his mail in the mailbox is evidence that he was absent; it falls short of

being substantial evidence that he was nonresident.

Assuming that any connection between Rizzo and Letourneau was lawful, a coincidence

between Letourneau’s Illinois addresses and Rizzo’s is of little probative value. Any

relationship between Letourneau and Rizzo in the nature of business association,

friendship, or employment (unless of a type prohibited by the Act) is substantial

evidence neither of Letourneau’s nonresidency nor of his facilitation of unlicensed

practice by Rizzo.

Letourneau would ordinarily have had a right to appoint someone his agent for signing

documents; thus, purported irregularities in his signature are not substantial evidence of

nonresidency. Because Letourneau’s refusal to testify can lead to an adverse inference only in

conjunction with other evidence (Giampa, 89 Ill. App. 3d 606, 411 N.E.2d 1110), the lack of

other substantial evidence impairs the probative value of his refusal. And, given the other

evidentiary shortcomings, a naked assertion of departmental expertise in judging licensees’

conduct amounts to ipse dixit.

If the department had produced substantial evidence on the residency issue and it were

simply a matter of weighing that evidence against Letourneau’s or of judging the credibility

of witnesses, the presumption of correctness in the director’s findings would prevail over mere

disagreements by plaintiffs or even by this court. However, as did the circuit court, we believe

that no substantial evidence supported the director’s finding of Letourneau’s Florida residency

and false statements of Illinois residency.

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

Still, the matter does not end here. The parties agree that the most serious charge against

Letourneau was that he permitted the use of his agency certificates by Rizzo in order for

Rizzo to engage in unlicensed practice. Thus, we must address the sufficiency of the director’s

findings on that issue.

C. Rizzo’s Activities

Defendants point to considerable evidence as proving that Letourneau permitted Rizzo to

use Letourneau’s licenses and thus to operate without being licensed himself.

Repeated coincidences were demonstrated between Rizzo’s address and those of Letourneau

and the company. Letourneau, accompanied by Rizzo, had once attempted to obtain an

agency certificate in the name of Ernest D. Rizzo, Ltd. In addition, Rizzo had contacted the

department in behalf of Letourneau to discuss an agency name change and what kind of work

Rizzo (whose license had been revoked) could now permissibly do for the company. Insurance

procured by Letourneau was carried in Rizzo’s name until corrected after departmental

rejection. Checks payable to Rizzo had been deposited to the company’s account. Rizzo signed

purchase papers as owner of cars purchased by the company.

Raymond Rocke, testifying under a grant of immunity, said he had performed security work

for the company under Rizzo as “boss.” Though Rizzo testified that the witness was working

without authority and was discharged by Letourneau, the testimony was impeached by

Letourneau’s certification to the department that the witness had been an employee after the

“discharge.” Rizzo also attempted to explain such matters as his deposition testimony that he

was employed by the company, a magazine account of investigations he supposedly was

conducting as a company subcontractor without being licensed, and a telephone directory

advertisement for the company that carried Rizzo’s name. Defendants argue that the credibility

of Rizzo’s explanations was simply judged adversely.

In addition, Letourneau refused to answer questions about Ed Rossi, whom he had listed as

an employee and whose name the department contended was an alias for Rizzo. Rizzo matched

the age and physical description of Rossi, and his social security number was a slightly

transposed version of Rossi’s. Rizzo acknowledged having used the name Ed Ross.

But plaintiffs respond that no witness, not even Rocke, testified to personal knowledge that

since 1980 Rizzo had actually engaged in activities legally constituting practice as a private

detective. One witness testified to Rizzo’s having told him that Rizzo planned to be an employee

but not a principal of a company to be formed by Letourneau. Rizzo himself denied having

practiced as a detective in Illinois since 1978 or 1979.

Defendants contend that, despite Rizzo’s denial of practicing as a detective, he admitted

that he had investigated Rocke, ascertained the address and business of another person,

conducted electronic sweeps to discover surveillance devices, and conducted “investigations

for pay” on cases for Letourneau’s attorney. However, these contentions by defendants lack

force, because none of the described activity, unless it is part of a paid investigation, legally

constituted practice as a private detective—except possibly, of course, for the very conduct

of “investigations for pay.” (See Ill. Rev. Stat. 1985, ch. 111, par. 2652(h).) As for the latter

conduct, the most to which Rizzo’s testimony admitted was serving a subpoena and checking

(Continued)

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

for wiretaps at the attorney’s request, apparently for pay in both cases. Neither serving a

subpoena nor checking for a wiretap, even for pay, was itself necessarily practice as a

private detective; it would only have been so if part of a paid investigation made to obtain

information regarding several subjects specified by statute. (See Ill. Rev. Stat. 1985, ch. 111,

par. 2652(h).) There was no testimony that Rizzo’s admitted activity was part of any such

statutorily specified investigation, much less that it was performed by use of Letourneau’s

licenses.

The director was entitled to judge the credibility of witnesses and to draw inferences from

the evidence. However, the evidence offered to prove Rizzo’s unlicensed practice did not

constitute the substantial evidence required by law on what was admittedly the most

serious charge against Letourneau. Thus, the circuit court correctly rejected the director’s

finding that Letourneau had permitted Rizzo to practice without a license by using

Letourneau’s licenses.

D. Other Disputed Factual Points

Defendants extensively discuss their contention that the director’s findings regarding practice

on inactive licenses and regarding nonregistration of employees should not have been reversed

by the circuit court. Plaintiffs reply at length. Yet, the circuit court never “reversed” the

Director’s findings on these issues.

The circuit court’s order as drafted by plaintiffs’ counsel did read that “the Court, having

found no evidence to support the findings entered by the Department, orders that the

Decision of the Department revoking the licenses of Arthur Letourneau be and is hereby

reversed.” (Emphasis added.) However, the transcript reveals that the court focused entirely on

the lack of substantial evidence for the findings on residency and on allowing Rizzo’s

unlicensed practice. Because of that lack, the court declared that “the decision by the

department therefore is arbitrary and constitutes an abuse of the department’s discretion. For

all of these reasons the decision is reversed.”

It is evident that the circuit court based reversal on the residency and Rizzo issues and on no

other. We need not consider the director’s findings and conclusions on other issues if his

reversible findings on the residency and Rizzo issues were so central as to render his revocation

decision an abuse of discretion.

E. License Revocation

An agency’s exercise of discretion may be set aside if it was arbitrary or unreasonable or

clearly violated the rule of law. (Commonwealth Edison Co. v. Illinois Commerce Comm’n

(1988), 180 Ill. App. 3d 899, 907, 536 N.E.2d 724, 729.) The courts will not reweigh the

evidence but will determine whether the final administrative decision just and reasonable

in light of the evidence presented. Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469,

471, 269 N.E.2d 713, 714; Sircher v. Police Board (1978), 65 Ill. App. 3d 19, 20-21, 382 N.E.2d

325, 327.

The applicable rule, as phrased by many authorities, is that courts may not interfere with an

administrative agency’s discretionary authority unless it is exercised arbitrarily or capriciously

or unless the administrative decision is against the manifest weight of the evidence. (E.g.,

Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 388, 507 N.E.2d

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

814, 819; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; People ex rel.

Stephens v. Collins (1966), 35 Ill. 2d 499, 501, 221 N.E.2d 254, 255.) In terms of that formulation

of the rule, it has been said that, when determining whether an administrative decision is

contrary to the manifest weight of the evidence, a court should consider the severity of the

sanction imposed. Cartwright v. Illinois Civil Service Comm’n (1980), 80 Ill. App. 3d 787,

793, 400 N.E.2d 581, 586; Kelsey-Hayes Co. v. Howlett (1978), 64 Ill. App. 3d 14, 17, 380 N.

E.2d 999, 1002. Contra Epstein v. Civil Service Comm’n (1977), 47 Ill. App. 3d 81, 84, 361

N.E.2d 782, 785.

An alternative formulation of the rule is that, when judging whether an agency sanction is

arbitrary or unreasonable, manifest weight of the evidence is not the applicable standard of

review, because the reasonableness of the sanction, not the correctness of the agency’s findings

or reasoning, is the issue. E.g., Brown v. Civil Service Comm’n (1985), 133 Ill. App. 3d 35, 39, 478

N.E.2d 541, 544.

In any event, however, courts will not hesitate to grant relief from an adverse agency

decision if that decision is not supported in the record by sufficient evidence. (Basketfield v.

Police Board (1974), 56 Ill. 2d 351, 359, 307 N.E.2d 371, 375; Feliciano v. Illinois Racing Board

(1982), 110 Ill. App. 3d 997, 1003, 443 N.E.2d 261, 266.) Thus, a court may reverse an order for

imposing an unwarranted sanction. See Feliciano, 110 Ill. App. 3d at 1005, 443 N.E.2d at 267;

Cartwright, 80 Ill. App. 3d at 793-94, 400 N.E.2d at 586.

On the questions of Letourneau’s residency and Rizzo’s activities, which clearly were the

most important to the department and the director, the director’s findings were unsupported

by substantial evidence. We believe that the director’s decision to revoke plaintiffs’ licenses,

based as it was primarily on such unsupported findings, represented an arbitrary and

unwarranted sanction.

Accordingly, we affirm the judgment of the circuit court, which reversed the director’s

revocation of plaintiffs’ licenses.

AFFIRMED.CERDA, P. J., AND RIZZI, J., CONCUR.

STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC. 195 F.3d 715 (4th Cir. 1999)

Before WIDENER and TRAXLER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Judge Traxler wrote the opinion, in which Judge Widener and Senior Judge Butzner joined.

Paramount Parks, Inc. (“Paramount”) operates an amusement park in Hanover County,

Virginia known as “Paramount’s Kings Dominion” (“Kings Dominion” or “the park”). While

visiting Kings Dominion in May 1994, Stephanie P. Austin (“Austin”) was positively identified

by two of Kings Dominion’s employees as a woman who had passed a bad check at the

park less than one week earlier. After questioning Austin for several hours, a special police

officer of the Kings Dominion Park Police Department caused a warrant to be issued for Austin’s

(Continued)

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

arrest on a charge of grand larceny. The same officer thereafter caused a second warrant

to be issued, this time for Austin’s arrest on charges of forgery and uttering a forged writing. The

Commonwealth’s Attorney’s Office, with the assistance of the arresting officer, actively prepared

the case against Austin over the next nine months. The charges were dismissed before trial,

however, once the Commonwealth’s Attorney’s Office realized that one of the employees who

had identified Austin as having passed the bad check in question had later identified another

park guest in connection with the same offense.

Austin subsequently brought this civil action against Paramount, asserting a variety of

claims arising from her arrests and prosecution on the preceding charges. At trial, the jury

returned general verdicts for Austin on her claim under 42 U.S.C.A. } 1983 (West Supp. 1998) and on several claims under Virginia law, and awarded her compensatory and punitive

damages. The district court ultimately entered judgment in favor of Austin, denied Paramount’s

motion for judgment as a matter of law, and awarded Austin attorney’s fees and expenses under

42 U.S.C.A. } 1988 (West Supp. 1998) upon finding her to be a prevailing party on the } 1983 claim. This appeal followed.

We conclude that Paramount was entitled to judgment as a matter of law on Austin’s } 1983 claim because Austin failed to establish that any deprivation of her federal rights was caused by

an official policy or custom of Paramount. We further conclude that Virginia law compels

judgment as a matter of law in favor of Paramount on Austin’s state-law claims because Virginia

law shields a private employer from liability when a special police officer takes an action in

compliance with a public duty to enforce the law. Accordingly, we reverse the denial of

Paramount’s motion for judgment as a matter of law, vacate the judgment in favor of Austin,

vacate the award of attorney’s fees and expenses, and remand with instructions that judgment

as a matter of law be entered in favor of Paramount.

I.

The Loss Prevention Department at Kings Dominion (“Loss Prevention”) is responsible for

providing safety to park guests and employees, preserving park assets, and enforcing Virginia

law and park rules and regulations. The security operations group of Loss Prevention consists

of special police officers associated with the Kings Dominion Park Police Department, and

seasonal uniformed security officers. Unlike the uniformed security officers, the special police

officers are sworn conservators of the peace who are authorized to carry firearms, make arrests,

and perform the same functions that law enforcement officers in the Commonwealth of

Virginia perform. The special police officers derive this authority from an appointment order

issued annually, on Paramount’s application, by the judges of the Circuit Court of Hanover

County under Va. Code Ann. } 19.2-13 (Michie Supp. 1999). The Sheriff of Hanover County had supervisory authority over the special police officers of

the Park Police Department that was expressly acknowledged in both the Circuit Court’s

appointment order and the Park Police Department’s Policy and Procedure Manual (“Manual”)

in force at the time of the events in question. Specifically, the appointment order provided that

the special police officers “work only under the control and direction of the Sheriff of Hanover

County.” This directive was reiterated in the Manual, which provided that the Park Police

Department “has direct affiliation with the Hanover County Sheriff’s Department and is under

the direction of the Sheriff of Hanover County.” The Manual further provided: The Chain of

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

Command and authority for all Kings Dominion Park Police shall be as follows involving official

law enforcement:

a. Sheriff of Hanover County

b. Lieutenant of Kings Dominion Park Police

c. Kings Dominion Park Police Sergeant

d. Kings Dominion Park Police Corporal

e. Kings Dominion Park Police Officer

Although the Park Police Department fell under Loss Prevention in the organizational

structure at Kings Dominion, the testimony at trial established that the special police officers

performed their law enforcement duties without interference from park management.

Chancellor L. Hester (“Hester”), who served as Manager of Loss Prevention at the time of the

events in question, provided uncontradicted testimony that his role in matters of law

enforcement was limited to ensuring that guests suspected of committing crimes at the park

were treated courteously and professionally. As to decisions pertaining to law enforcement,

however, Hester testified that he “let the police officers do the work,” knowing that those

officers received assistance and direction from the Hanover County Sheriff’s Department and

the Commonwealth’s Attorney’s Office. The annual training that the special police officers

received reflected this division. Hester provided instruction on interpersonal skills, while the

Sheriff’s Department and the Commonwealth’s Attorney’s Office taught law enforcement

classes on such topics as the laws of arrest, the conducting of interviews, self-defense,

and searches and seizures.

The principal events giving rise to the present litigation occurred at Kings Dominion on

May 15, 1994, when a guest arrived at the park’s Season Pass office and submitted a check

for $360 under the name of “Donita Morgan.” Japata Taylor (“Taylor”), a park cashier, accepted

the check and proceeded to retrieve $360 worth of Kings Dominion currency, known as

“Scooby dollars,” which guests use to purchase merchandise for sale within the park.

Meanwhile, a guest at the next window submitted a check under the name of “Catherine May”

to Joshua Stone (“Stone”), another park cashier. Because the Season Pass office did not have

enough Scooby dollars to cash the two checks, Taylor and Stone contacted their supervisor,

Deborah Samuel (“Samuel”). Samuel then had a chance to observe “Donita Morgan” and

“Catherine May” after obtaining a sufficient amount of Scooby dollars from the park’s

Cash Control office.

Several days later, Loss Prevention learned that both the “Donita Morgan” check accepted by

Taylor and the “Catherine May” check accepted by Stone were fraudulent. In fact, numerous

fraudulent checks under these and other names had been passed at Kings Dominion during the

May 14-15 weekend. Loss Prevention suspected that a group of individuals were operating an

illegal check-cashing scheme at the park using fraudulent identification cards and fraudulent

checks, and provided the park’s cashiers with a memorandum listing various names under

which bad checks had already been passed, including “Catherine May.” The cashiers were

directed to immediately inform Loss Prevention should a guest submit a check under a

listed name.

(Continued)

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

Sergeant Cindy Gatewood (“Gatewood”) of the Park Police Department supervised the

investigation into the apparent check-cashing scheme. On the morning of Saturday, May 21,

1994, six days after Taylor and Stone had accepted the “Donita Morgan” check and the

“Catherine May” check, respectively, Gatewood obtained verbal descriptions of the suspects

from Samuel, Taylor, and Stone. According to Gatewood’s testimony at trial, Samuel described

“Donita Morgan” as a “middle-aged black woman with twisted hair.” Taylor described the

suspect as “a black female, five foot five, five foot six, average build, twisted hair braids,

sunglasses.” After obtaining verbal statements, Gatewood asked each of the three employees to

prepare written statements. In her written statement, Taylor described “Donita Morgan” as a

woman who had braided hair and wore Chanel sunglasses. Samuel, in her written statement,

described her as “a middle-aged black woman with glasses, long twisted braids, and

a lot of children.”

Austin, an African American woman who at the time was a twenty-three-year-old student at

the University of Maryland, was among the more than 20,000 guests of Kings Dominion on

Saturday, May 21. That evening, Taylor saw Austin in the park and identified her as the “Donita

Morgan” suspect from the previous weekend. Taylor alerted Loss Prevention accordingly.

Officer Michael Drummer (“Drummer”) of the Park Police Department subsequently

approached Austin and escorted her to the Loss Prevention office. After being contacted at

home and apprised of the situation, Gatewood arranged for Investigator Robert Schwartz

(“Schwartz”) of the Hanover County Sheriff’s Department to meet her at the Loss Prevention

office. In the interim, Samuel went to the Loss Prevention office and, like Taylor, identified

Austin as the “Donita Morgan” suspect from the previous weekend.

After arriving at the Loss Prevention office, Schwartz advised Austin of her Miranda rights.

He and Gatewood then informed Austin that two employees had positively identified her as

having passed a fraudulent “Donita Morgan” check at the Season Pass office on May 15, 1994,

and questioned Austin for several hours as to her whereabouts on that date. According to

Gatewood’s testimony at trial, Austin stated that she was at a banquet at the University of

Maryland on May 15, 1994, but Austin refused to provide any information which would allow

that statement to be verified. Consistent with his role as Manager of Loss Prevention, Hester

occasionally appeared for several minutes to observe the questioning. Hester testified at trial

that his purpose in doing so “was to make sure that our folks were handling their duties

properly, that the police were in the process of moving this situation forward, and that the

people involved in it were being handled professionally and properly.”

Based primarily upon the accounts of Taylor and Samuel, whom Gatewood described at trial

as “more than a hundred percent sure that Miss Austin was the one who had written a check to

them,” Gatewood decided to arrest Austin. Before doing so, however, Gatewood contacted

Seward M. McGhee (“McGhee”) of the Commonwealth’s Attorney’s Office, who advised

Gatewood that Austin could be charged only with grand larceny until the bank had processed

and returned the bad “Donita Morgan” check at issue. Schwartz thereafter transported Austin

to the Hanover County Magistrate’s office, where Gatewood caused a warrant to be issued

for Austin’s arrest on a charge of grand larceny in violation of Va. Code Ann. } 18.2-95 (Michie Supp. 1999).

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

On the following day, Sunday, May 22, 1994, a significant development occurred with respect

to the investigation into the check cashing scheme at Kings Dominion. Specifically, a guest

named Annette Williams arrived at the Season Pass office and submitted a check under the

name of “Catherine May.” The park cashier who accepted the check recognized “Catherine

May” from the memorandum distributed in connection with the scheme and immediately

contacted Loss Prevention. Simultaneously, a guest named Tonya Williams submitted a check

at the Season Pass office under the name of “Demetry Gordon.”

Gatewood subsequently arrived at the Season Pass office in response to the cashier’s call.

When Gatewood asked Annette Williams to come to the Loss Prevention office, Tonya

Williams became visibly agitated. Gatewood described the situation at trial in the following

manner: “a friend of [Annette Williams] got very verbal and upset and said she didn’t

understand why I was taking her friend away, so I invited her to come to the office with me.”

During this encounter, Samuel saw Tonya Williams, an African-American woman who had

braided hair, and identified her as the woman who had submitted the “Donita Morgan” check

to Taylor one week earlier.

Gatewood subsequently brought Annette Williams and Tonya Williams to the Loss

Prevention office for questioning. During the questioning, the women maintained their

respective false identities as Catherine May and Demetry Gordon. Later that day, after Annette

Williams and Tonya Williams had left the park, Gatewood discovered their actual identities

when a guest named Gladys Ann Williams was brought to the Loss Prevention office after

submitting a fraudulent check at the Season Pass office under the name of “Michelle Lockhart.”

In a detailed confession, Gladys Ann Williams confirmed the existence of a check-cashing

scheme, provided the names and aliases of the other participants in the scheme, and provided

information concerning the source from whom they had obtained fraudulent identification

cards and fraudulent checks.

That evening, Samuel alerted Hester at Loss Prevention that she had recognized Tonya

Williams as the woman who had submitted the “Donita Morgan” check to Taylor on May 15,

1994. Hester’s unrefuted testimony indicates that he personally informed Gatewood of this

development later that evening. Samuel’s observation, along with written statements filed by

other park employees, led Gatewood and Hester to conclude that Tonya Williams was one of

several women who had passed bad checks at the park under the name of “Donita Morgan.”

When asked at trial whether she specifically informed McGhee that Samuel had identified

Tonya Williams as “Donita Morgan,” Gatewood responded that “I’m not sure if I told him those

exact words, but he was advised that there was more than one Donita Morgan.” Ultimately,

Gatewood testified, McGhee advised her that “there’s more than one person, you have

your witnesses, and we’re going to go forward with the case, if there’s a scheme, and bust

the scheme.”

Gatewood thereafter caused a warrant to be issued for Austin’s arrest on charges of forgery

and uttering a forged writing in violation of Va. Code Ann. } 18.2-172 (Michie 1996). According to Gatewood’s uncontradicted testimony at trial, she did so only after consulting

McGhee once the “Donita Morgan” checks from May 15, 1994, had been processed by the bank

(Continued)

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and returned to Kings Dominion. Specifically, Gatewood testified that McGhee “told me when

the checks came in, I was to give him a call. I did, and he advised me to go get the warrants.”

Gatewood subsequently informed Hester that she spoke to McGhee and that she intended to

bring additional charges against Austin. In this regard, Hester testified at trial that Gatewood

“indicated to me somewhere in that period of time, I don’t remember the exact date or

anything, that [McGhee] and she had had a conversation, and the charges were being amended,

yes, sir, I was aware of that.” Gatewood did not serve Austin with the second arrest warrant until

July 14, 1994, when Austin returned to the Hanover County Magistrate’s Office for a preliminary

hearing on the charge of grand larceny. Austin was not further detained and was allowed to

remain out on her original bond.

In January 1995, a Hanover County general district court conducted a preliminary

hearing on the charges pending against Austin. Based primarily upon Gatewood’s testimony,

the court found probable cause to certify the charges for trial. In so doing, the court

indicated that it would have dismissed the charges had Austin presented any evidence

supporting her alibi: “if I would have had any evidence at all that there was a banquet on

May the 15th and if, in fact, [Austin] could have come in here and presented that [she]

attended a banquet on May the 15th, then there would be no question in my mind.” Although

a Hanover County grand jury subsequently indicted Austin on the charges, the matter did not

proceed to trial. Rather, in April 1995, McGhee had the charges dismissed. McGhee did so

apparently upon learning that Samuel, only one day after identifying Austin as having

passed the “Donita Morgan” check to Taylor on May 15, 1994, identified Tonya Williams

in connection with the same offense.

II.

Austin initiated the present litigation by filing a civil action in Maryland state court, naming

Paramount as the only defendant. Following Paramount’s removal of the action to the district

court, Austin filed an eight-count second amended complaint, counts one through five of

which contained claims arising under Virginia law for false arrest, false imprisonment,

malicious prosecution, assault and battery, and negligence, respectively. Counts six through

eight, on the other hand, contained claims arising under federal law. With respect to her } 1983 claim asserted in count six, Austin alleged primarily that she suffered a deprivation of her

federal constitutional rights as a result of Paramount’s policy of causing individuals suspected

of passing bad checks at Kings Dominion to be detained, arrested, and prosecuted, even

without probable cause, to deter other park guests from engaging in such conduct. Austin also

alleged that Paramount failed to exercise due care in the hiring, retention, training, and supervision

of employees who participated in the investigation, detention, and arrest of individuals suspected

of passing bad checks at Kings Dominion, and that such failure manifested a conscious disregard

for Austin’s rights. These latter allegations essentially reiterated the allegations supporting Austin’s

state-law negligence claim asserted in count five.

B.

Paramount next maintains that it was entitled to judgment as a matter of law on Austin’s

} 1983 claim either because Paramount was not a state actor or because Austin failed to establish that an official policy or custom of Paramount caused a deprivation of her

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federal rights. We review de novo a district court’s denial of a Rule 50(b) motion for judgment as

a matter of law, viewing the evidence in the light most favorable to the prevailing party and

drawing all reasonable inferences in her favor. See Konkel v. Bob Evans Farms Inc.,

165 F.3d 275, 279 (4th Cir.), cert. denied, 145 L. Ed. 2d 155, 1999 U.S. LEXIS 5882, 120

S. Ct. 184 (U.S. 1999).

Section 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State. . .subjects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or other proper proceeding

for redress.

42 U.S.C.A. } 1983. To prevail against Paramount on her } 1983 claim, Austin had the burden to establish that she was “deprived of a right secured by the Constitution or laws of the

United States, and that the alleged deprivation was committed under color of state law.”

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130

(1999). Paramount does not dispute that Austin’s rights under the Fourth and Fourteenth

Amendments were violated when Gatewood effected the July 14, 1994 arrest without

probable cause. However, Paramount does dispute that it was a state actor for purposes of

} 1983 merely because it employed Gatewood as a special police officer. The question of whether Paramount was a state actor is a thorny one, but one which we need

not decide here because Austin’s clear failure to show that an official policy or custom of

Paramount was the moving force behind Austin’s July 14, 1994 arrest negates the necessity of

addressing the issue. For purposes of our reviewwewill assume,without holding, that Paramount

was a state actor and proceed to consider Paramount’s challenge to Austin’s assertion that

Paramount had an official policy or custom justifying the imposition of liability under } 1983. Our analysis begins with general principles of municipal liability. In Monell v. Department of

Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the Supreme Court held that

municipalities and other local governmental bodies constitute “persons” within the meaning of

} 1983, see id. at 688-89. The Court, however, has consistently refused to impose } 1983 liability upon a municipality under a theory of respondeat superior. See Board of the County Comm’rs v.

Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997). Rather, under Monell and its

progeny, a municipality is subject to } 1983 liability only when “it causes such a deprivation through an official policy or custom.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)

(emphasis added). We have determined that “municipal policy may be found in written

ordinances and regulations, in certain affirmative decisions of individual policy-making

officials, or in certain omissions on the part of policy-making officials that manifest deliberate

indifference to the rights of citizens.” Id. (internal citations omitted). Municipal custom, on the

other hand, may arise when a particular practice “is so persistent and widespread and so

permanent and well settled as to constitute a custom or usage with the force of law.” Id.

(internal quotation marks omitted).

(Continued)

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We have recognized, as has the Second Circuit, that the principles of } 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that

employs special police officers. Specifically, a private corporation is not liable under } 1983 for torts committed by special police officers when such liability is predicated solely upon a theory

of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Rojas v.

Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir. 1990); see also Sanders v. Sears, Roebuck & Co.,

984 F.2d 972, 975-76 (8th Cir. 1993) (concluding that private corporation is not subject to } 1983 liability under theory of respondeat superior regarding acts of private security guard employed

by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (same).

Rather, a private corporation is liable under } 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights. See Rojas, 924 F.2d at 408; Sanders,

984 F.2d at 976; Iskander, 690 F.2d at 128.

In her second amended complaint, Austin primarily alleged in support of her } 1983 claim that she suffered a deprivation of her federal constitutional rights as a result of Paramount’s

policy of causing individuals suspected of passing bad checks at Kings Dominion to be

detained, arrested, and prosecuted, even without probable cause, to deter other park guests

from engaging in such conduct. At trial, however, Austin was unable to present any evidence to

substantiate those allegations. Rather, Austin’s evidence focused on her alternative theory of

} 1983 liability, also alleged in the second amended complaint, that Paramount failed to exercise due care in training employees who participated in the investigation, detention, and

arrest of individuals suspected of passing bad checks at Kings Dominion, and that such failure

manifested a conscious disregard for Austin’s rights. Indeed, the district court, in denying

Paramount’s motion for judgment as a matter of law on the } 1983 claim at the close of Austin’s evidence, relied solely upon this theory:

I think there’s evidence from which [Austin] can argue in this case that really it was a

pretty patchy situation at [Kings Dominion], that they really didn’t have any clear-cut

training program to educate their personnel on dealing with customers who are suspected

of passing bad checks. They did something, but arguably it was pretty patchy, and it seems

to me it could be argued that it was deliberately indifferent.

On appeal, however, Austin has abandoned the preceding theory of } 1983 liability, obviously because the general verdict in favor of Paramount on the negligence claim contained in count

five and the adverse interrogatory answers on the } 1983 claim showed that the jury rejected Austin’s claim of inadequate training. Now, Austin presents a theory of } 1983 liability that resembles the reasoning offered by the district court in disposing of Paramount’s Rule 49(b)

motion and is purportedly reconcilable with the jury’s verdict. Specifically, Austin argues that

Hester was a policy-maker who acquiesced in Gatewood’s intention to effect the July 14,

1994 arrest of Austin on charges of forgery and uttering a forged writing, and who thereby

subjected Paramount to liability. We find this claim untenable.

1. The Supreme Court has recognized that, under appropriate circumstances, a municipality

may incur } 1983 liability for a single decision of a policy-making official. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (plurality

opinion) (holding county liable under } 1983 when county prosecutor instructed sheriff’s

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deputies to forcibly enter plaintiff’s place of business to serve capiases upon third parties);

Carter, 164 F.3d at 218 (“Municipal policy may be found. . .in certain affirmative decisions

of individual policy making officials, or in certain omissions on the part of policy-making

officials that manifest deliberate indifference to the rights of citizens.”) (internal citations

omitted). In determining whether an individual constitutes a “policy-making official” in this

sense, courts inquire whether the individual speaks “with final policy-making authority for

the local governmental actor concerning the action alleged to have caused the particular

constitutional or statutory violation at issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737,

105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989); see Pembaur, 475 U.S. at 481 (“Municipal liability

attaches only where the decision maker possesses final authority to establish municipal policy

with respect to the action ordered.”). Whether the individual in question exercises such

authority “is not a question of fact in the usual sense.” City of St. Louis v. Praprotnik, 485 U.S.

112, 124, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). Rather, the inquiry “is dependent upon an

analysis of state law,” McMillian v. Monroe County, Alabama, 520 U.S. 781, 786, 138 L. Ed. 2d 1,

117 S. Ct. 1734 (1997), requiring review of “the relevant legal materials, including state and

local positive law, as well as custom or usage having the force of law.” Jett, 491 U.S. at 737

(internal quotation marks omitted). A district court’s determination of whether an individual

exercises final policy-making authority in a particular area is reviewed de novo. See Scala

v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997); Gillette v. Delmore, 979

F.2d 1342, 1349 (9th Cir. 1992).

The foregoing principles of } 1983 “policy-maker” liability were articulated in the context of suits brought against municipalities and other local government defendants. Nevertheless,

these principles are equally applicable to a private corporation acting under color of state law

when an employee exercises final policy-making authority concerning an action that allegedly

causes a deprivation of federal rights. See Howell v. Evans, 922 F.2d 712, 724-25, vacated after

settlement, 931 F.2d 711 (11th Cir. 1991) (assessing whether prison medical director employed

by private corporation exercised final policy-making authority for employer concerning

equipment and staff procurement). In the present appeal, Austin asserts that Paramount’s

liability under } 1983 derives from Hester’s single decision to acquiesce in Gatewood’s intention to effect Austin’s July 14, 1994 arrest on charges of forgery and uttering a forged writing.

Accordingly, the relevant “policy-maker” inquiry is whether Hester, as a matter of state and

local positive law, or custom or usage having the force of law, see Jett, 491 U.S. at 737, exercised

final policy-making authority concerning arrests effected by the special police officers of the

Park Police Department. We are satisfied that he did not.

First, nothing in the positive law of the Commonwealth of Virginia or of Hanover County

granted Hester any policy-making authority concerning arrests effected by the special police

officers. In particular, nothing in the Virginia statute authorizing the appointment of special

police officers granted a private corporation or any of its employees authority over the law

enforcement functions performed by those officers. See Va. Code Ann. } 19.2-13(A). Moreover, nothing in the appointment order issued by the Circuit Court of Hanover County granted any

authority over the special police officers’ law enforcement functions to any of Paramount’s

employees, including the Manager of Loss Prevention. Indeed, the appointment order explicitly

(Continued)

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