Romanski v. Detroit Entertainment, L.L.C. ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0429p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
STELLA ROMANSKI,
-
-
-
No. 04-1354
v.
,
>
DETROIT ENTERTAINMENT, L.L.C., d/b/a/ MotorCity -
-
-
Casino, a Michigan Limited Liability Company;
Defendants-Appellants, -
MARLENE BROWN,
-
-
-
GLORIA BROWN; ROBERT EDWARDS; and JOETTA
STEVENSON, -
Defendants. -
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-73358—Lawrence P. Zatkoff, District Judge.
Argued: April 27, 2005
Decided and Filed: October 28, 2005
Before: KEITH, CLAY, and FARRIS, Circuit Judges.*
_________________
COUNSEL
ARGUED: Megan K. Cavanagh, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for
Appellants. Neil H. Fink, LAW OFFICES OF NEIL H. FINK, Birmingham, Michgian, for
Appellee. ON BRIEF: Megan K. Cavanagh, Rosalind Rochkind, Robert F. MacAlpine, GARAN
LUCOW MILLER, P.C., Detroit, Michigan, for Appellants. Neil H. Fink, LAW OFFICES OF
NEIL H. FINK, Birmingham, Michgian, Richard G. Lewandowski, S. David McNeill, FREEMAN
McNEILL, Birmingham, Michigan, for Appellee.
CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. FARRIS, J. (pp.
18-19), delivered a separate dissenting opinion.
*
The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting
by designation.
1
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. A jury in the Eastern District of Michigan found Defendants Detroit
Entertainment, L.L.C., which owns and operates the MotorCity Casino (we refer to both as “the
casino”), and Marlene Brown, one of the casino’s security personnel and a private security police
officer with the power to arrest, liable under 42 U.S.C. § 1983 and under Michigan law for
unlawfully arresting Stella Romanski. Defendants contend the judgment must be reversed and a new
trial granted because the district court instructed the jury as a matter of law that Defendants acted
under color of state law at all times relevant to this case. Defendants also raise other instruction-
related claims. In the alternative, Defendants ask us to remit some of the $875,000 punitive damages
award or order a new trial on the issue of damages.
We AFFIRM the judgment of the district court in all respects except that we VACATE the
portion of the judgment comprised by the punitive damages award and REMAND for a remittitur
of the punitive damages award, in accordance with the instructions of this opinion, or a new trial on
the issue of punitive damages. The remarkable facts of this case make it indisputable that a
substantial punitive damages award is warranted. Defendants’ conduct was particularly egregious
and a higher award to deter the casino from sanctioning such conduct in the future was appropriate.
But an award of $600,000 will just as adequately serve the interests of punishment and deterrence
and fits more comfortably in the ballpark of punitive awards that have been upheld in similar cases.
We therefore order a remittitur to that amount or, if Romanski so chooses, a new trial on damages.
I. BACKGROUND
On August 7, 2001, Romanski, then 72 years old, and her friends Dorothy Dombrowski and
Linda Holman, went to Defendant Detroit Entertainment’s MotorCity Casino in Detroit, Michigan,
to gamble and enjoy lunch at the buffet. After a spate of unsuccessful tries at the slot machines,
Romanski took a walk around the gaming floor. During her walk, Romanski noticed a five cent
token lying in a slot machine’s tray. Seeing no chair at the machine, she picked up the token and
returned to the machine at which she had earlier played, intending to use the token there. Soon a
uniformed male casino employee approached and asked that she accompany him to the office. She
asked why but he did not answer. Romanski then noticed there were also three female casino
employees, these not in uniform, surrounding her; she felt she could not move.
One of these plain-clothed security officers was Defendant Marlene Brown, who had been
assigned to patrol the casino floor at that time. Brown testified that she approached Romanski,
displayed her casino security badge, and began to explain it was the casino’s policy not to permit
patrons to pick up tokens, which appeared to be abandoned, found at other slot machines, a practice
known as “slot-walking.” Romanski could not have known this at the time because the casino does
not post the so-called policy anywhere. It is undisputed, therefore, that Romanski did not have – and
could not have had – notice of the casino’s purported policy on slot-walking.
According to Brown, Romanski became loud and belligerent, so, at the advice of Brown’s
supervisor, JoEtta Stevenson (a defendant below), Brown escorted Romanski to an off-the-floor
room where Brown intended to explain the policy in detail. For her part, Romanski testified that
Brown did not detain her because of her attitude but rather because Brown suspected her of theft.
It is undisputed that Brown and her colleagues escorted Romanski to what Defendants
alternately call the “security office” and the “interview room.” Whatever its name, the room is
small and windowless, located off the casino’s floor. According to Romanski, once they had taken
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 3
their seats, Brown accused Romanski of stealing the token, whereupon Brown counted Romanski’s
money and removed one nickel from Romanski’s winnings. Stevenson asked Romanski to turn over
her social security card and driver’s license; Romanski complied and these items were photocopied.
Romanski was then photographed. Romanski testified that she acquiesced to these requests because
Brown said she was a police officer, had a badge, and appeared to have handcuffs. Brown admitted
having presented her badge and possessing handcuffs but testified that she identified herself only
as a “security police officer,” not as a bona fide police officer. There is no dispute that a uniformed
casino security officer stood just outside the room for the duration of the questioning.
Romanski was ejected from the casino for a period of 6 months; Stevenson made the final
decision to eject, or “86,” Romanski. The precise ground for ejecting Romanski is unclear from the
record. Although unknown to Romanski at the time, it is now undisputed that Brown and some of
her colleagues on the casino’s security staff were licensed under state law as “private security police
officer[s].” Mich. Comp. Laws (M.C.L.) § 338.1079. By virtue of being so licensed, a private
security police officer has “the authority to arrest a person without a warrant as set forth for public
peace officers . . . when that private security police officer is on the employer’s premises.” M.C.L.
§ 338.1080. The statute additionally requires that private security police officers make arrests only
when they are on duty and in “the full uniform of the[ir]employer.” Id. It is undisputed that Brown
was on duty during the events of this case. It is also undisputed that Brown was not wearing the
uniform worn by some of the other security guards, but Defendants have never contended that this
rendered Brown out of uniform for purposes of § 338.1080; indeed, Defendants have conceded from
the beginning that the statute applies in this case. Their argument is simply that the power
admittedly conferred on Brown by the statute did not make her actions under color of state law. See
42 U.S.C. § 1983.
Brown was in charge of escorting Romanski to the valet parking area of the casino, where
Romanski was to wait for her 3 p.m. bus home. Brown and her colleagues denied Romanski’s
request to meet her friends for lunch at the buffet – indeed, they did not permit Romanski to eat
lunch at all. In addition, they did not permit Romanski to enter the restroom by herself; Brown
accompanied Romanski into the restroom and waited outside the stall. At 3 p.m., Romanski exited
the valet area to board what she thought was her bus; it turned out not to be but instead of returning
to the valet area she ran into her friends and stayed outside. It was extremely hot and humid and
Dombrowski and Holman persuaded Romanski to return to the casino. Upon entering, the three
were confronted by casino employees, who directed them to return to the valet area, which is air-
conditioned; they waited there until the bus arrived.
It is undisputed that Brown prepared an incident report following Romanski’s ejection in
which Brown referred to Romanski as a “suspect.” Romanski introduced the casino’s security
manual into evidence; it instructs security employees to refer to patrons as “suspects” only if the
employee arrested the patron and otherwise to refer to the patron as a “subject.” Stevenson
confirmed that this policy was in effect when Romanski was ejected. Finally, it is undisputed that
as a matter of course, the casino notifies the Michigan State Police when it ejects someone; the
casino notified the Michigan State Police of Romanski’s ejection.
As these facts reflect, Defendants’ treatment of Romanski was inexplicable and egregious.
The district court aptly expressed the egregiousness of Defendants’ conduct in its opinion denying
Defendants’ motion for summary judgment: “There is sufficient evidence to allow a jury to find that
after [Romanski] picked up an abandoned token that Defendants – by using the authority vested in
them by the State of Michigan – surrounded her, arrested her, led her to the security office,
prevented her from leaving the security office, and stole the five cents that she found from her.
Afterwards, they surrounded her as they threw her out of the casino, and refused to let her use the
restroom by herself. Defendants also prevented her from having lunch with her friends [and] falsely
told her friends that she had stolen from them . . . . [A] jury could certainly exclaim ‘Outrageous.’”
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 4
Romanski v. Detroit Entertainment, L.L.C., 265 F. Supp. 2d 835, 848-49 (E.D. Mich. 2003)
(citations omitted). Indeed, a jury did make such an exclamation: it found in Romanski’s favor and
made a substantial punitive damages award.
In November 2001, Romanski sued Defendants MotorCity Casino and two un-named
employees of the casino in the Circuit Court of Wayne County, Michigan, alleging false arrest, false
imprisonment, defamation, and intentional infliction of emotional distress. In an amended
complaint, Romanski named as defendants Detroit Entertainment, L.L.C., d/b/a MotorCity Casino,
Marlene Brown, Gloria Brown, Robert Edwards, and Joetta Stevenson, the individual defendants
being the employees involved in Romanski’s detention, questioning, and ejection from the casino.
The amended complaint also included a new cause of action, namely, a claim under 42 U.S.C.
§ 1983 that Defendants had violated Romanski’s Fourth Amendment rights. Specifically, Romanski
alleged that Defendants, acting under color of state law, had arrested her without probable cause
because the token she picked up was abandoned, i.e., not the casino’s property.
Defendants removed the action to federal district court in the Eastern District of Michigan.
The district court issued an order to show cause “as to whether Defendants’ conduct was ‘under
color of law’ for purposes of 42 U.S.C. § 1983” and considered the parties’ briefs on the issue. The
court concluded that Brown was acting under color of state law because she possessed the same
authority to make arrests that the police enjoy. Having determined that there was a proper basis for
federal jurisdiction, the district court exercised its supplemental jurisdiction over Romanski’s state
law claims.
The parties conducted discovery from September 2002 through February 2003. On March 6,
2003, Defendants moved for summary judgment on all claims. On the § 1983 claim, Defendants
argued that they were not acting under color of state law in this case and in any event had probable
cause to detain Romanski. In a published decision, the district court denied Defendants’ motion for
summary judgment. 265 F. Supp. 835 (E.D. Mich. 2003). The court held as a matter of law that
Defendants had acted under color of state law during the events of this case because Brown, the
defendant who initiated Romanski’s detention, did so while on duty in her capacity as a licensed
private security police officer empowered with the same arrest authority as a public police officer.
Id. at 841-43. The court further held that genuine factual disputes precluded summary judgment on
the Fourth Amendment claim and Romanski’s state law claims. Id. at 844-49.
The trial began on July 15, 2003. At the close of Romanski’s case-in-chief, Defendants
moved for judgment as a matter of law on all claims and asked the district court to reconsider its
conclusion on the state action1 question. The district court declined to rule on the motion, reserving
it for a later ruling. At the charge conference and during the parties’ exchange of proposed jury
instructions, Defendants again raised the state action question, arguing that the jury should be
instructed to find as a matter of fact whether Defendants were acting under color of state law. The
district court disagreed and instructed the jury as follows: “Acting under color of law in this case
simply means acting in one’s capacity as a licensed security officer with powers to make an arrest
on the casino premises. I instruct you as a matter of law that the defendants were acting under color
of law at the time of this incident and you may find that this element has been established.” The
other issues in the case were submitted to the jury, which found the casino and Brown liable on the
Fourth Amendment wrongful arrest claim and the casino alone liable on the state law false arrest and
false imprisonment claims. The jury did not find any of the defendants liable for defamation or
1
Throughout this opinion we use the terms “state actor” or “state action” and “acting under color of state law”
interchangeably. As the Supreme Court has held: “[i]f a defendant’s conduct satisfies the state-action requirement of
the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”
Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (citing Lugar v. Edmonson
Oil Co., 457 U.S. 922, 935 (1982)).
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 5
intentional infliction of emotional distress but, based on its verdict on Romanski’s other claims, the
jury awarded $279.05 in compensatory damages. Based exclusively on the verdict in favor of
Romanski on her § 1983 claim, the jury awarded $500 in punitive damages against Brown, and
$875,000 in punitive damages against the casino.
Defendants moved for a judgment not withstanding the verdict or, in the alternative, for a
new trial. See Fed. R. Civ. P. 50, 59. The district court denied the motion, resting largely on the
reasoning expressed in its summary judgment ruling. The casino and Brown (the only defendants
found liable by the jury) brought this timely appeal. They argue that: (1) it was improper for the
district court to hold they were state actors as a matter of law and accordingly seek either a new trial
or judgment in their favor on the § 1983 claim; (2) in connection with Romanksi’s claim that
Defendants lacked probable cause to arrest her, the district court gave an erroneous jury instruction
on the issue of whether the token was abandoned; (3) apparently in connection only with
Defendants’ own desire for a jury instruction on a purported common law right of private businesses
to detain patrons suspected of theft, the district court erroneously declined to accept Defendants’
proposed instruction; and (4) the $875,000 punitive damages award, imposed exclusively on the
basis of the jury’s finding of liability under 42 U.S.C. § 1983, is so excessive that it does not
comport with due process. We consider each claim in turn.
II. DISCUSSION
A. State Action
Section 1983 makes liable only those who, while acting under color of state law, deprive
another of a right secured by the Constitution or federal law. 42 U.S.C. § 1983; Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 155 (1978); Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (en
banc); Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). A private actor acts under color of
state law when its conduct is “fairly attributable to the state.” Lugar v. Edmonson Oil Co., 457 U.S.
922, 947 (1982). “The Supreme Court has developed three tests for determining the existence of
state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the
symbiotic relationship or nexus test.” Chapman, 319 F.3d at 833 (citing Wolotsky, 960 F.2d at
1335). See West v. Atkins, 487 U.S. 42, 49-50 (1988) (public function); Flagg Bros., 436 U.S. at 157(same); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970) (state compulsion test); Burton v.
Wilmington Parking Auth., 365 U.S. 715, 721-26 (1961) (symbiotic relationship or nexus test).
The district court concluded that Brown and any of her colleagues similarly licensed as
private security police officers pursuant to M.C.L. § 338.1079 were state actors under the public
function test. 265 F. Supp. 2d at 841-43. Consistent with this holding, the district court took the
state action issue out of the case, granting in effect judgment as a matter of law to Romanski on that
issue. Consequently, we review the state action aspect of the district court’s decision de novo and
view all facts in the light most favorable to Defendants. United States v. Alpine Indus., Inc., 352
F.3d 1017, 1022 (6th Cir. 2003); Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 258 (6th
Cir. 2000).
Under the public function test, a private entity is said to be performing a public function if
it is exercising powers traditionally reserved to the state, such as holding elections, taking private
property under the eminent domain power, or operating a company-owned town. See Flagg Bros.,
436 U.S. at 157-58 (holding elections); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53
(1974) (exercising eminent domain); Marsh v. Alabama, 326 U.S. 501, 505-509 (1946) (operating
a company-owned town). The Supreme Court has expressly left open the question whether and
under what circumstances private police officers may be said to perform a public function for
purposes of § 1983. Flagg Bros., 436 U.S. at 163. Nevertheless, as the district court observed, there
is a growing body of case law to consult for guidance on this question.
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 6
For example, in a decision deemed by both parties and the district court to bear directly on
the issue presented in this case, the Seventh Circuit held that private police officers licensed to make
arrests could be state actors under the public function test. Payton v. Rush-Presbyterian, 184 F.3d
623, 627-30 (7th Cir. 1999). To be sure, Payton was an appeal of a dismissal pursuant to Fed. R.
Civ. P. 12(b)(6), but we think this distinction is of little relevance since the crucial fact in that case
– assumed to be true there but indisputable here – was that by virtue of their status as on-duty special
police officers, licensed by the city of Chicago, the defendants enjoyed “virtually the same power
as public police officers.” Id. at 629. Indeed, the defendants in Payton operated under an ordinance
which provided that special police officers licensed under it “shall possess the powers of the regular
police patrol at the places for which they are respectively appointed or in the line of duty for which
they are engaged.” Id. at 625 (quoting Chicago City Code § 4-340-100 (1993)).
This broad delegation of power, the Seventh Circuit reasoned, distinguished Payton from an
earlier case in which the court had held that a private security guard endowed with more limited
police-type powers was not a state actor. See Wade v. Byles, 83 F.3d 902, 905-906 (7th Cir. 1996).
The defendant in Wade was permitted to carry a handgun and to use deadly force in self-defense but
could arrest someone only for “trespass pending the arrival of the police” and could exercise these
powers only in the lobbies of properties owned by the public housing authority for which he worked.
Id. at 906. The defendant was not a state actor because, as the court put it in Payton, “none of these
powers had been exclusively reserved to the police – citizen’s arrests and the rights to carry
handguns and use them in self-defense are available to individuals outside of the law enforcement
community.” Payton, 184 F.3d at 629 (citing Wade, 83 F.3d at 906).
Payton illustrates a line that has been drawn in the case law. The line divides cases in which
a private actor exercises a power traditionally reserved to the state, but not exclusively reserved to
it, e.g., the common law shopkeeper’s privilege, from cases in which a private actor exercises a
power exclusively reserved to the state, e.g., the police power. Where private security guards are
endowed by law with plenary police powers such that they are de facto police officers, they may
qualify as state actors under the public function test. See Payton, 184 F.3d at 630; Henderson v.
Fisher, 631 F.2d 1115 (3d Cir. 1980) (per curiam) (university policemen with plenary police
authority throughout the university’s campus); Rojas v. Alexander’s Dept. Store, Inc., 654 F. Supp.
856 (E.D.N.Y. 1986) (New York City special patrolman with plenary police authority patrolling a
department store). The rationale of these cases is that when the state delegates a power traditionally
reserved to it alone – the police power – to private actors in order that they may provide police
services to institutions that need it, a “plaintiff’s ability to claim relief under § 1983 [for abuses of
that power] should be unaffected.” Payton, 184 F.3d at 629; cf. Henderson, 631 F.2d at 1118.
On the other side of the line illustrated by Payton are cases in which the private defendants
have some police-like powers but not plenary police authority. See Wade, 83 F.3d at 906-907;
Johnson v. Larabida Children’s Hospital, 372 F.3d 894, 896-97 (7th Cir. 2004) (hospital security
guards who had authority to patrol and eject people but not to carry guns and who had to call the
police if someone became hostile and belligerent). A subset of these cases are cases in which a
private institution’s security employees have been dispatched to protect the institution’s interests
or enforce its policies. The canonical example here is when a store avails itself of the common law
shopkeeper’s privilege, the privilege at issue in this Court’s en banc decision in Chapman v. Higbee
Co., and the Fifth Circuit case upon which Chapman relied. See Chapman, 319 F.3d at 833-34(discussing White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir. 1979)).
Like the district court, we think this case falls on the Payton side of the line. It is undisputed
that Brown (and some of her colleagues) were private security police officers licensed under M.C.L.
§ 338.1079. This means that Brown’s qualifications for being so licensed were vetted by Michigan’s
department of state police, id. § (1), and that Brown was subject to certain statutes administered by
that department. Id. § (2); see M.C.L. §§ 338.1067, 338.1069. More critical for present purposes
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 7
are the undisputed facts that Brown was on duty and on the casino’s premises at all times relevant
to this case. These undisputed facts lead to an inescapable conclusion of law – namely, that at all
times relevant to this case, Brown “ha[d] the authority to arrest a person without a warrant as set
forth for public peace officers . . . .” M.C.L. § 338.1080. One consequence of Brown’s possession
of this authority, the authority to make arrests at one’s discretion and for 2any offenses, is clear: at
all times relevant to this case, Brown was a state actor as a matter of law.
Unlike the common law privileges at issue in Wade (the use of deadly force in self-defense,
the right to detain for trespass, and the right to carry a weapon) and Chapman (the shopkeeper’s
privilege), which may be invoked by any citizen under appropriate circumstances, the plenary arrest
power enjoyed by private security police officers licensed pursuant to M.C.L. § 338.1079 is a power
traditionally reserved to the state alone.3 See Payton, 184 F.3d at 630; Henderson, 631 F.2d at 1118;
Rojas, 654 F. Supp. at 858; Thompson v. McCoy, 425 F. Supp. 407, 409-10 (D.S.C. 1976). See also
United States v. Hoffman, 498 F.3d 879, 881 (7th Cir. 1974) (holding that private railroad police
possessing the same powers as public police officers were state actors). Cf. Screws v. United States,
325 U.S. 91, 109-10 (1945) (observing that one has the power to arrest only when one is “clothed
with the authority of state law”) (citation omitted); Rodriguez v. Smithfield Packing Co., Inc., 338
F.3d 348, 355 (4th Cir. 2003) (observing that “the police function is ‘one of the most basic functions
of government’” and “an arrest is ‘the function most commonly associated with the police’”)
(quoting Foley v. Connelie, 435 U.S. 291, 297 (1978)).
Defendants contend that Wade ought to control here because, as in that case, private security
police officers’ power to make arrests is subject to spatial or geographic limits. See M.C.L
§ 338.1080. But the spatial or geographic limitation in Wade was profound – it prohibited housing
authority security guards from exercising their (already minimal) powers anywhere except in the
lobbies of buildings operated by the housing authority. See Wade, 83 F.3d at 906. By contrast,
2
The dissent’s repeated reliance on City of Grand Rapids v. Impens, 327 N.W.2d 278 (Mich. 1982), is
misplaced. There, private security officers suspected the defendant and two others of shoplifting. Id. at 279. The
officers asked the three individuals to come to the security office. Id. The officers searched the three and found
merchandise on one of the other individuals. Id. The officers then elicited information from the defendant to complete
a “Loss Prevention Department Voluntary Statement.” Id. The officers read the statement to the defendant and asked
the defendant to sign it, which he did. Id. “There was no indication that defendant would not be released if the statement
were not signed.” Id. Prior to his trial, the defendant moved to suppress the signed statement, arguing that it was
obtained in violation of Miranda. Id. The Michigan Court held that the private security officers were not required to
give Miranda warnings. Id. at 282.
One obvious distinction between the instant case and Impens is that Impens did not involve an arrest in any
form. There, the defendant was not held against his will. He was asked to go to the security office; he was asked to sign
a form. There was no indication of arrest.
The key distinction, however, is that the security officers did not exercise power exclusively reserved to the
states. The contested conduct was the security officers’ elicitation of the defendant’s statements. Simply put, asking
questions in a non-custodial setting is a power not within the exclusive province of the state.
3
The dissent misinterprets this Court’s language with respect to the phrase “plenary arrest power.” We agree
with the dissent that under Michigan law, a licensed private security officer has a power of arrest equivalent to that held
by a public police officer only on the property of her employer and only during her work hours. The Court has never
contended that M.C.L. § 338.1080 gives a private security officer the power to make warrantless arrests wherever and
whenever she pleases.
Instead, a licensed private security officer’s arrest power is plenary in the sense that while on her employer’s
property during her working hours, a private security officer can make warrantless arrests to the same extent as a public
police officer. The instant case closely resembles Henderson, a case where the court found state action when the state
delegated to university police officers a full power of arrest limited to campus property. 631 F.2d at 1118 (citing 71 PA.
STAT. ANN. § 646).
In contrast, the private security officers in Wade only had the power to “arrest people for criminal trespass . . . .”
83 F.3d at 906. As the Seventh Circuit later pointed out, the private security officers in Wade would have to “dial 911”
if they witnessed a crime other than criminal trespass. Payton, 184 F.3d at 630. Under Michigan law, a private security
officer has no such limitation.
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 8
§ 338.1080 invests private security police officers with full arrest authority on the entirety of their
employer’s premises, which makes this case distinguishable from Wade and similar to Payton and
Henderson, each of which involved a statute or ordinance that imposed or contemplated some spatial
or geographic limits on the private defendants’ police powers. See Payton, 184 F.3d at 625 (special
police officers “shall possess the powers of the regular police patrol at the places for which they are
respectively appointed”) (emphasis added) (citation omitted); Henderson, 631 F.2d at 1117-19(authority of the university police was limited to the university campus in question). Furthermore,
as we have discussed, private security police officers in Michigan are endowed with plenary arrest
authority, see § 338.1080, while the defendant in Wade was permitted to exercise only what were
in effect citizens’ arrests. Wade, 83 F.3d at 906; see also Payton, 184 F.3d at 629-30.
Finally, we address Defendants’ repeated representation that, although empowered to make
arrests under § 338.1080, Brown and the other casino employees licensed under the statute are, as
a matter of casino policy, not permitted to exercise this statutory authority to effectuate arrests. For
this argument Defendants again rely on Wade, in which the very document that was the source of
the defendant’s police-type powers, his contract with the public housing authority, at the same time
imposed profound limits on those powers. See Wade, 83 F.3d at 905-906. Here the source of
Brown’s power to make arrests is a statute that includes no qualitative limits on that power, so Wade
is inapplicable. Defendants do not cite a case in which a private security officer licensed to make
arrests as under § 338.1080 was held not to be a state actor on the ground that the officer’s employer
substantially circumscribed the arrest power conferred on the officer by having been licensed. The
only arguable support we have found for Defendants’ argument is the concurring opinion in Payton,
in which Judge Ripple opined that while for pleading purposes the plaintiff’s claim of state action
was viable, it might ultimately fail because “[f]urther development of the record might well establish
. . . that the guards’ responsibilities were significantly circumscribed by their employer and that they
performed well-defined functions quite narrow in scope . . . .” 184 F.3d at 634 (Ripple, J.,
concurring).
In this case, whatever development of the record occurred did not reveal circumscriptions
of Brown’s authority, let alone circumscriptions of the sort contemplated by Judge Ripple in Payton.
Indeed, it is noteworthy that Defendants did not even make this argument at the summary judgment
stage of the proceedings, arguing instead that while Brown and some of her colleagues do have the
power to make arrests, Brown did not use it in this case. It is not surprising then, that in their brief
to this Court, Defendants do not offer a single citation to the record in support of the contention that
Brown’s arrest authority was substantially circumscribed. Furthermore, the jury found that
Defendants had in fact arrested Romanski and this aspect of the judgment is not on appeal
(Defendants’ jury instruction claim goes to whether probable cause existed, not whether an arrest
occurred). Under these circumstances, we decline Defendants’ invitation to look past § 338.1080’s
express grant of plenary arrest authority to private security police officers. We similarly find
unpersuasive the representation made on appeal that Brown was not acting pursuant to her
§ 338.1080 authority when she initiated the unlawful arrest of Romanski, but rather was merely
protecting the casino’s self-interest – conduct, Defendants maintain, that was more in the nature
exercising the shopkeeper’s privilege. See, e.g., Chapman, 319 F.3d at 833-34. Quite apart from
the question whether Michigan’s version of the shopkeeper’s privilege even applies to casinos (see
M.C.L. § 600.2917 and our discussion in the next section) there is no evidence in the record that
could support the self-protection narrative Defendants urge us to adopt. Indeed, all of the evidence
was to the contrary: Brown was employed by the casino as a private security police officer and was
on duty in that capacity when she initiated the detention of Romanski.
Consistent with the Seventh Circuit’s approach in Wade and Payton, we have focused on the
specific powers that Brown, in her capacity as an on-duty and duly licensed private security police
officer, had at her disposal. See Payton, 184 F.3d at 629-30; Wade, 83 F.3d at 905-906. Because
at least one of these powers, the plenary arrest power, is “traditionally the exclusive prerogative of
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 9
the state,” Jackson v. Metropolitan Edison Co., 419 U.S. at 353, and because it is undisputed that
Brown was in fact duly licensed under M.C.L. § 338.1079 and was in fact on duty at all times4
relevant to this case, the district court correctly held that Brown was a state actor as a matter of law.
B. Jury Instructions
Defendants also contend that two of the district court’s jury instructions were erroneous. We
must “review jury instructions as a whole to determine if they adequately inform the jury of the
relevant considerations and ‘provide a basis in law for aiding the jury in reaching its decision.’”
Argentine v. United Steelworkers of America, AFL-CIO, 287 F.3d 476, 484 (6th Cir. 2002) (quoting
Jones v. Consolidated Rail Corp., 800 F.2d 590, 592 (6th Cir.1986)). Accordingly, we will reverse
a jury verdict on account of instructional error “only in situations where the instruction, viewed as
a whole is ‘confusing, misleading, and prejudicial.’” Id. (quoting Barnes v. Owens-Corning
Fiberglass Corp., 201 F.3d 815, 822 (6th Cir.2000)). Applying these standards, we find no error
with respect to the two instructions at issue in this appeal.
The first instruction to which Defendants object related to whether they had probable cause
to arrest Romanski. Defendants apparently argued that they had probable cause to believe Romanski
had stolen the five cent token from the casino, i.e., that the token was not abandoned when
Romanski took it into her possession. Although the district court did conclude at the summary
judgment stage that there was a bona fide jury question as to whether the token was abandoned, it
nevertheless observed “that there is no other likely explanation for the token being in the tray of the
slot machine.” 265 F. Supp. 2d at 845. The district court’s statement is an apt reflection of the
record, which contains not even a scintilla of evidence supporting Defendants’ contention that the
token was the casino’s property rather than abandoned by a prior player at the slot machine. Nor
did Defendants come forward with a basis in Michigan law for their assertion that the token became
the casino’s property once the prior player departed. The general rule, as noted by the district court,
is that playing a slot machine is the commencement of an aleatory contract between the player and
the casino. In the event the player wins a round, the casino “loses its legal right to the property, and
the [player] gains that right.” 265 F. Supp. 2d at 845 (citing Restatement (Second), Contracts § 232
cmt. c (1981)).
Against this backdrop, we cannot say the district court erred when it instructed the jury that:
This case, as we all know, involves a token, a five cent token. The plaintiff
as the finder of a lost or abandoned token, has superior title to that token than
does the Motor City Casino. In determining whether the token was lost or
abandoned, you are to use your common sense and consider whether there
was any other rational circumstance for that token to be in that tray. The
only person who has a superior right to that token other than the plaintiff, is
the person who lost it or the person who abandoned it.
We must also note the patent insignificance of a five cent token. Assuming for the moment
that Defendants genuinely suspected Romanski of theft (it appears from the record that the real
motive for the poor treatment of Romanski may have been her “attitude”), Defendants’ decision to
4
We are aware that in contrast to the district court’s conclusion below and our holding in this opinion, two
other district courts in the Eastern District of Michigan have concluded in similar cases that private security police
officers employed by the casino were not acting under color of state law. Smith v. Detroit Entertainment L.L.C., 338
F. Supp. 2d 775 (E.D. Mich. 2004); Lindsey, et al. v. Detroit Entertainment L.L.C., Slip. Op., No. 03-CV-71129 (E.D.
Mich. Oct. 14, 2004) (unpublished). Both cases have been appealed to this Court and briefing was held in abeyance
pending our decision in this case. We have reviewed the respective district courts’ analysis of the state action question
in those cases and, for the reasons stated in this opinion, do not find either opinion persuasive on that point.
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 10
deal with the situation by dispatching a team of security personnel – at least one of whom was in
effect a police officer – to detain and interrogate Romanski offends the “venerable maxim de
minimis non curat lex (‘the law cares not for trifles’).” Wisconsin Dept. of Revenue v. William
Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) (citing cases). Under the circumstances of this case, the
district court’s instruction on abandonment was not confusing, misleading, or prejudicial. See
Argentine, 287 F.3d at 484.
Defendants’ second jury instruction claim relates to two instructions it proposed but the
district court rejected. Defendants first requested the district court to instruct the jury that “[a]
private business owner has the right to protect its business interests and property and may detain a
patron suspected of theft.” The district court declined to adopt this proposed instruction on the
ground that the authority cited by Defendants in support of it related only to the common law
shopkeeper’s privilege to detain a patron suspected of theft – a privilege, the district court reasoned,
that Michigan law does not extend to casinos.
This proposed instruction was not material to an issue in the case. The jury was instructed
that Romanski’s false arrest claim depended on proof that some legal justification (usually probable
cause) for the detention was lacking, see Lewis v. Farmer Jack Div., Inc., 327 N.W.2d 893, 894
(Mich. 2003); and, similarly, that her § 1983 claim depended on proof that probable cause was
lacking. The shopkeeper’s right to detain suspected thieves, assuming for the moment that it applies
to casinos, is a cognizable defense only where there is probable cause that a theft occurred. M.C.L.
§ 600.2917(1) (the codification of Michigan’s shopkeeper privilege). Were it otherwise,
shopkeepers who invoked the privilege would be insulated from liability for false arrest. In short,
contrary to Defendants’ requested instruction, neither shopkeepers nor casino proprietors enjoy an
absolute privilege to detain patrons. It is clear, therefore, that the district court’s instructions on
probable cause and false arrest properly explained the crux of any self-protection privilege the
casino might enjoy. To the extent that Defendants proposed the right-to-detain instruction in
connection with the state action question, we have already held that in this case the casino employed
Brown in her capacity as an on-duty private security police officer, not as a security guard charged
merely with protecting the casino’s property.
The second instruction sought by Defendants – an instruction to the effect that Michigan
permits a casino to eject a patron for any reason it deems necessary – was likewise immaterial to the
issues in the case; we have no trouble, therefore, concluding that the district court properly rejected
it. The gravamen of Romanski’s claim for relief is not that she was ejected but rather that she was
arrested without probable cause, which is why she sued for false arrest and unlawful arrest, the latter
under § 1983. Accordingly, Romanski’s claim for relief goes principally to Defendants’ treatment
of her before she was ejected from the casino; and, it must be remembered, it is that conduct alone
for which the jury held Defendants liable. We see no error in the district court’s decision to reject
this proposed instruction.
C. Amount of the Punitive Damages Award
The casino appeals the jury’s assessment of $875,000 in punitive damages against it on the
ground that the amount is unconstitutionally excessive. Whether a punitive damages award is so
excessive as to offend due process depends on our assessment of the three “guideposts” first
enunciated in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996): the degree of
reprehensibility of the defendant’s conduct, the punitive award’s ratio to the compensatory award,
and sanctions for comparable misconduct. Id. at 576-84. We conduct “de novo review of a trial
court’s application of [these guideposts] to the jury’s award.” State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 418 (2003) (citing Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532
U.S. 424 (2001)). As the Supreme Court recently said: “Exacting appellate review ensures that an
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 11
award of punitive damages is based upon an application of law, rather than a decisionmaker’s
caprice.” Id. (internal quotation marks and citation omitted); see Gore, 517 U.S. at 436.
1. Reprehensibility
The Supreme Court has said that “[t]he most important indicium of the reasonableness of a
punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Campbell,
538 U.S. at 419 (quoting Gore, 517 U.S. at 576). We must “determine the reprehensibility of a
defendant” by considering whether:
the harm caused was physical as opposed to economic; the tortious conduct evinced
an indifference to or a reckless disregard of the health or safety of others; the target
of the conduct had financial vulnerability; the conduct involved repeated actions or
was an isolated incident; and the harm was the result of intentional malice, trickery,
or deceit, or mere accident.
Id. (citing Gore, 517 U.S. at 576-77). Merely because one of these factors is satisfied in a given case
does not mean the punitive damages award is constitutionally unassailable; however, “the absence
of all of them renders any award suspect.” Id. In conducting our review of the punitive damages
award, we must presume that a plaintiff’s compensatory award made her whole for her injuries. Id.Consistent with the well-established purpose of punitive damages, see Gore, 517 U.S. at 568 (citing
cases), such damages “should only be awarded if the defendant’s culpability, after having paid
compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to
achieve punishment or deterrence.” Campbell, 538 U.S. at 419.
In conducting its reprehensibility analysis, the district court concluded that the harm caused
by the casino “was primarily physical, rather than economic.” The basis for this conclusion was the
fact that Romanski “testified that she felt sick, embarrassed, humiliated, intimidated and scared.”
Romanski’s economic losses totaled $9.05, the combined value of the lunch ticket revoked by the
casino ($9) and the five-cent token the casino seized. The remaining $270 of the compensatory
award was to make Romanski whole for the emotional distress she suffered as a result of
Defendants’ conduct. We think the district court was generally correct to describe Romanski’s harm
as primarily physical in character. Although she did not suffer actual physical injury, the jury could
reasonably infer from the peculiar circumstances of Romanski’s detention and questioning – a
process initiated on the casino floor in front of patrons by a team of four security personnel – that
the threat of physical force was apparent. Indeed, there was testimony that Brown threatened
Romanski and it is undisputed that Brown had handcuffs at her disposal; in addition, it appears
undisputed, so far as we can discern, that Brown and perhaps another member of the security staff
accused Romanski of theft. In sum, we agree with the Second Circuit’s conclusion in a similar case
that a defendant’s conduct can be highly reprehensible without being actually violent. See Lee v.
Edwards, 101 F.3d 805, 810 (2d Cir. 1996) (although the defendant police officer did not use force
in maliciously prosecuting the plaintiff, the defendant’s invocation of state power to deprive the
plaintiff of his rights presented “an element of real and threatened force that could have aroused the
jury”).
More important than the harm Romanski suffered, that harm being of such a type that the
label “physical” rather than “economic” befits it, is the fundamental nature of Defendants’ conduct
in this case. As we indicated at the outset, Defendants treated Romanski in an inexplicable and
egregious way. Indeed, on this record a jury could reasonably infer that Brown acted with
“intentional malice” and not “mere accident.” Campbell, 538 U.S. at 419. This is not a case of
mistaken identity, nor one in which a law enforcement officer reasonably misread the circumstances.
Defendants admit that Romanski was targeted because she picked up a five cent token. Whether
Brown subsequently detained Romanski on suspicion of theft or because Romanski’s “attitude”
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 12
perturbed Brown, the crucial point for reprehensibility purposes is that the detention itself and the
manner in which it was carried out – e.g., by a team of four security personnel surrounding
Romanski – were so egregious in light of the circumstances that malice naturally comes to mind.
What other motivation, a reasonable observer might ask, would cause Brown and her colleagues to
detain and interrogate a 72-year-old woman in a windowless room over five cents? This is
especially true in light of the jury’s conclusion that Defendants lacked probable cause to arrest
Romanski. See Stamathis v. Flying J, Inc., 389 F.3d 429, 443 (4th Cir. 2004) (“[A]s to the
reprehensibility of the act, we cannot ignore that the jury found that the defendants did not have
probable cause.”); Williams v. Kaufman County, 352 F.3d 994, 1015 (5th Cir. 2003) (observing that
a strip search obviously conducted without probable cause evidenced “reckless indifference toward
the constitutional rights of plaintiffs” and hence was strong evidence of reprehensibility). The fact
that the Defendants knew that the casino’s own patrons had not been provided with notice of the slot-
walking prohibition only makes the Defendants’ conduct more reprehensible.
But Defendants’ remarkable abuse of power did not end there. It is undisputed that the
casino revoked Romanski’s lunch ticket and, having been ejected, she was not permitted to eat
anywhere in the casino. In other words, the rather inhospitable outside (it was humid and over 90
degrees) was the 72-year-old Romanski’s only choice for lunch. It is further undisputed that
Defendants refused to allow Romanski to enter the restroom by herself; instead, Defendants
callously forced her to endure the indignity of having Brown stand guard outside the stall. This is
without question evidence of malice and of a conscious disregard for Romanski’s well-being and
hence is probative of reprehensibility. Cf. Gore, 517 U.S. at 556; Campbell, 538 U.S. at 419.
Finally, we must note one facet of the casino’s behavior that is particularly deserving of
condemnation and further indicative of malice, namely, that it dispatched someone who was in effect
a police officer, with all the authority that that implies. Apparently, the casino was not content to
have an ordinary security guard – one without the power to make arrests – simply inform Romanski
of the purported slot-walking policy and leave it at that. There is, consequently, a troubling element
of gratuitousness in Defendants’ conduct.
In closing our discussion of reprehensibility, we find it appropriate to quote the district court
again, this time from its opinion denying Defendants’ motion for a new trial or a remittitur: “[T]his
case was not about the loss of a five-cent token or a nine-dollar meal ticket; it was about
[Romanski’s] right not to be unreasonably seized [and] unreasonably detained . . . . Defendants acted
with at least indifference to the health or safety of [Romanski], an elderly woman. After Defendant
Brown observed [Romanski] play the five-cent token, [Romanski] was surrounded by four security
guards, led up to the security office, informed she had committed a crime, photographed, and
reported to the state police . . . . [T]he Court finds the conduct of Defendant MotorCity’s employees
to be particularly reprehensible.”
In sum, while there is no evidence of similar misconduct in the past on the casino’s part, see
Gore, 517 U.S. at 576-77; Campbell, 538 U.S. at 422-23, it is clear in this case that the
reprehensibility guidepost weighs in favor of a substantial punitive damages award.
2. Ratio
“The second and perhaps most commonly cited indicium of an unreasonable or excessive
punitive damages award is its ratio to the actual harm inflicted on the plaintiff.” Gore, 517 U.S. at
580 (citations omitted). When considered against the broad spectrum of civil cases, the ratio in this
case (3,135 to 1) is unusually high and the compensatory damages award is unusually low.
Compare Gore, 517 U.S. at 580-81 (rejecting a 500-to-1 ratio where the compensatory award was
$4000); Campbell, 538 U.S. at 425-26 (rejecting a 145-to-1 ratio where the compensatory award was
$1 million). But this is a § 1983 case in which the basis for the punitive damages award was the
plaintiff’s unlawful arrest and the plaintiff’s economic injury was so minimal as to be essentially
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 13
nominal. The Supreme Court’s cases on the ratio component of the excessiveness inquiry – which
involved substantial compensatory damages awards for economic and measurable noneconomic
harm5 – are therefore of limited relevance. See Lee, 101 F.3d at 810-12.
This Court and other courts have recognized that where “injuries are without a ready
monetary value,” such as invasions of constitutional rights unaccompanied by physical injury or
other compensable harm, higher ratios between the compensatory or nominal award and the punitive
award are to be expected. Argentine v. United Steel Workers of Am., AFL-CIO, CLC, 287 F.3d 476,
488 (6th Cir. 2002) (sustaining a 42.5 to 1 ratio, and thus a $400,000 punitive award, where injury
was a national union’s sustained campaign of retaliation against a local branch because some of its
members expressed disagreement with a union-promoted bargaining agreement); see also Dean v.
Olibas, 129 F.3d 1001, 1007 (8th Cir. 1997) (sustaining a 14 to 1 ratio, and thus a $70,000 punitive
award, where the unlawful arrest of the plaintiff caused him primarily a kind of harm not measurable
in monetary terms). Indeed, the Second Circuit has reasoned, we think correctly, that in cases where
the compensatory award is very low or nominal, “any appreciable exemplary award would produce
a ratio that would appear excessive by this measure.” Lee, 101 F.3d at 811; see also Fabri v. United
Technologies Intern., Inc., 387 F.3d 109, 126 (2d Cir. 2004); Disorbo v. Hoy, 343 F.3d 172, 187 (2d
Cir. 2003). The Fifth Circuit also adheres to this uncontroversial view. See Williams, 352 F.3d at
1016.
These decisions in the circuits are based as much on intuition as on the only plausible
interpretation of crucial dicta in Gore and Campbell; to wit, as the Court said in the first of those
cases: “low awards of compensatory damages may properly support a higher ratio than high
compensatory awards, if, for example, a particularly egregious act has resulted in only a small
amount of economic damages. A higher ratio may also be justified in cases in which the injury is
hard to detect or the monetary value of noneconomic harm might have been difficult to determine.”
Gore, 517 U.S. at 582. Read in conjunction with the Court’s consistent “rejection of a categorical
approach” to evaluating the constitutionality of punitive damages awards, id.; Campbell, 538 U.S.
at 425, these pronouncements about the effect, in appropriate cases, of a low or nominal
compensatory award on the excessiveness inquiry are weighty indeed. See, e.g., Argentine, 287 F.3d
at 488; Lee, 101 F.3d at 811.
Consistent with these principles, we think that to determine whether the punitive award in
this case is within constitutional limits, the best approach is to compare it to punitive awards
examined by courts “in other civil rights cases to find limits and proportions.” Lee, 101 F.3d at 811;
see also Disorbo, 343 F.3d at 189; Williams, 352 F.3d at 1016 n.78. This approach is necessarily
unscientific but aids us in identifying a ballpark within which to evaluate the $875,000 award at
issue here.
We know of only one prior case in which we considered the constitutionality of a punitive
damages award assessed pursuant to a finding of liability under § 1983. The case, Gregory v. Shelby
County, is quite distinguishable, however, because the plaintiff “suffered severe physical abuse,
endured long hours of conscious pain and suffering, and ultimately died as a result [of a police
officer’s] actions.” 220 F.3d 433, 445 (6th Cir. 2000). Furthermore, the compensatory award in
Gregory was $778,000, so the $2.2 million punitive award easily satisfied Gore’s ratio guidepost.
Id. We turn, then, to other courts’ treatment of punitive awards in civil rights cases.
In Lee v. Edwards, the plaintiff was awarded nominal compensatory damages and the Second
Circuit concluded that the malicious prosecution verdict against the defendant, a police officer,
5
See Gore, 517 U.S. at 565 (a $4000 compensatory damages award for depreciation to a car’s value due to an
undisclosed re-painting performed by the manufacturer); Campbell, 538 U.S. at 415 (a $1 million compensatory damages
award for economic harm and emotional distress).
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 14
would support a punitive damages award of no more than $75,000; the jury had awarded $200,000.
101 F.3d at 813. The basis for the court’s conclusion was that it had closely scrutinized but
ultimately approved awards of substantially less than $200,000 in cases where the plaintiffs suffered
“numerous and severe physical and psychological harms.” Id. The defendant’s conduct in Lee, not
having caused the plaintiff such acute trauma, was not “remotely” as reprehensible. Id. In the later
case of Disorbo v. Hoy, the Second Circuit remitted a punitive damages award of $1.275 million to
$75,000; the claims were excessive force and abuse of process. It was clear in Disorbo that the
plaintiff was severely beaten by the defendant police officer – the Second Circuit described the case
as involving “heinous acts of police aggression” – who arrested her and her sister because she
resisted his advances. 343 F.3d at 188-89.
In Dean v. Olibas, the Eighth Circuit sustained a $70,000 punitive award against a bail
bondsman after the jury found him liable for causing the police to wrongfully arrest and book the
plaintiff. 129 F.3d at 1007-1008. A key component of the Dean court’s rationale was its concern
that, as a bail bondsman, the defendant might “have other opportunities to knowingly initiate the
arrest of innocent people” and cause them to suffer the indignity of detention in jail and prosecution.
Id. Finally, in Williams v. Kaufman County, the Fifth Circuit sustained a $15,000 per-plaintiff
punitive award against a police officer for having conducted illegal strip searches of the plaintiffs.
352 F.3d at 1016. The award satisfied Gore scrutiny, the court concluded, because it was “not
unreasonable in light of the violations that took place” and in light of awards in similar cases. Id.
Our decision in Gregory and our review of these cases from other circuits leads us to two
important conclusions: First, substantial punitive awards in § 1983 cases, not surprisingly, tend to
accompany conduct that results in physical or psychological harm. Second, in the typical § 1983
case in which punitive damages are awarded, the defendant is an individual police officer, not the
police department or municipality (which, odds are, have deeper pockets than the officer), let alone
a deeply pocketed company, which the casino indisputably is. We have not found a case in which
punitive damages were awarded based exclusively on a finding that the defendant unlawfully
arrested the plaintiff and the award was challenged as unconstitutionally excessive. In addition,
while we have said that the unlawful arrest of Romanski and the manner in which Defendants treated
her are sufficiently reprehensible to warrant a substantial punitive damages award, the harm that
befell Romanski is not as severe as the harm suffered by the plaintiffs in the cases just discussed
(e.g., being severely beaten, strip-searched, or subjected to booking, jailhouse detention, and
wrongful prosecution).
Nevertheless, a wrinkle peculiar to this case may render appropriate an award that exceeds
the average punitive award for civil rights cases involving verdicts of this type. The defendant here
is a casino, which, at the time of the verdict, yielded a daily intake of nearly $1,000,000. “Since a
fixed dollar award will punish a poor person more than a wealthy one, one can understand the
relevance of [the defendant’s financial position] to the State’s interest in retribution . . . .” Gore, 517
U.S. at 591 (Breyer, J., concurring); see TXO Production Corp. v. Alliance Resources Corp., 509
U.S. 443, 462 & n.28 (1993) (plurality opinion); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21-
22 (1991). The defendant’s financial position is equally relevant to the State’s interest in deterrence,
which is also a valid purpose of punitive damages. Haslip, 499 U.S. at 21-22; Lee, 101 F.3d at 813(citation omitted).
At the same time, a defendant’s wealth could heighten the likelihood of juror caprice. Thus
the Supreme Court recently reiterated that “[t]he wealth of a defendant cannot justify an otherwise
unconstitutional punitive damages award.” Campbell, 538 U.S. at 427 (citation omitted). Common
sense gives us an additional reason to view skeptically the generic proposition that a high punitive
award is necessary because of the wealth of the defendant. The Supreme Court said in Gore that
“[t]he sanction imposed in this case cannot be justified on the ground that it was necessary to deter
future misconduct without considering whether less drastic remedies could be expected to achieve
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 15
that goal.” 517 U.S. at 584. The upshot is two-fold: we must take into account the casino’s wealth
to ensure that the punitive damages award will further the interests it is designed to advance; but we
must also ensure that our exacting appellate review results in an award that is not significantly
higher than is necessary to further those interests.
Before proceeding to the third Gore guidepost, we take a final stab at putting the $875,000
punitive damages award in context. See Lee, 101 F.3d at 811. We have reviewed one roughly
analogous case in which a state court examined a substantial punitive award levied against a
corporate defendant for conduct roughly similar to what occurred here. In that case, the plaintiff,
a pregnant woman shopping on Christmas eve with her two children, brought a malicious
prosecution claim against Wal-Mart after she was wrongly accused of shoplifting a telephone,
detained briefly at the store, arrested by the police, charged for theft, jailed, and tried, all at Wal-
Mart’s behest. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 171 (Ala. 2000). A jury awarded
the plaintiff $200,000 in compensatory damages for mental anguish and $3 million in punitive
damages, the latter because it was clear that Wal-Mart could have taken steps that would have
quickly exonerated the plaintiff. Id. at 173. The Supreme Court of Alabama concluded that Gore
permitted a punitive-compensatory ratio of no greater than 3-to-1 on the ground that Wal-Mart’s
conduct, although it was reprehensible, did not cause the plaintiff physical injury. Id. at 181.
Accordingly, the post-remittitur punitive award was $600,000. The Goodman case is not directly
on-point – it involved conduct of a different character than that which occurred here and a
substantial compensatory award – but it nevertheless assists us in completing the backdrop against
which to evaluate the size of the punitive damages award assessed against the casino.
3. Sanctions for Comparable Conduct
“Comparing the punitive damages award and the civil or criminal penalties that could be
imposed for comparable misconduct provides a third indicium of excessiveness.” Gore, 517 U.S.
at 583. The purpose of this guidepost reflects an elementary principle of due process – namely, that
the defendant must have been provided “fair notice” that its conduct would subject it to a penalty
on the order of the punitive damages award. Id. at 584; Campbell, 538 U.S. at 428. Notice of
possible penalties is not to be confused with notice of the unlawfulness of the underlying conduct;
the latter is irrelevant to the constitutionality of a punitive damages award. Gore, 517 U.S. at 580;
Disorbo, 343 F.3d at 186; Lee, 101 F.3d at 809.
We have already canvassed the most comparable cases we have found; indeed, this case is
an occasion where the ratio and comparable conduct guideposts substantially overlap. Still, the
question here is not whether similar punitive awards for similar conduct were held constitutional in
prior cases but whether the casino had fair notice that conduct of the sort that occurred here might
result in penalties, fines, or punitive damages on the order of $875,000. See Campbell, 538 U.S. at
428; Gore, 517 U.S. at 584. The parties do not address whether Defendants’ conduct might have
implicated any Michigan civil or criminal penalties such that Defendants would have been on notice
of specific penalties. We note that the district court concluded that the unlawful arrest of Romanski
would not have subjected Brown or the casino to any specific statutory civil or criminal penalties.
We take no issue with this account in light of the parties’ silence on the question.
In a general sense, of course, the casino had fair notice that a verdict against a state actor for
violating someone’s constitutional rights might result in a punitive damages award if the conduct
is sufficiently egregious. See Smith v. Wade, 461 U.S. 30, 56 (1983). The civil rights cases we
canvassed, therefore, provided some notice as to potential punitive damages awards for § 1983
liability. Accordingly, we conclude the casino had fair notice that it might face punitive damages
for sanctioning the type of civil rights violation that Romanski endured here but it did not have
notice that an award as high as $875,000 was likely. See Campbell, 538 U.S. at 428; Gore, 517 U.S.
at 584. This guidepost militates in favor of reducing the award.
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 16
4. Conclusion
The lasting impression this case leaves is one of egregious misconduct – a de jure police
officer’s gratuitous abuse of power, sanctioned by a casino, that left a 72-year-old woman the victim
of needless indignities and humiliation. In moral terms, the casino’s conduct was significantly
reprehensible; it surely was reprehensible enough to warrant a substantial punitive damages award.
In comparative terms, however, because Romanski was not beaten, charged or tried, the conduct
here was not as reprehensible as the defendants’ conduct in some of the civil rights cases we have
canvassed. In addition, the casino did not have fair notice that a verdict for unlawful arrest –
unaccompanied by a verdict for assault, excessive force, or malicious prosecution, or proof of
physical injury or sustained psychological trauma – would result in a penalty on the order of
$875,000.
However, we must consider the Gore guideposts in their totality and, furthermore, we must
ensure that a punitive damages award actually achieves the twin purposes of punishment and
deterrence. As the Second Circuit aptly put it in Lee: “In gauging excessiveness, we must keep in
mind the purpose of punitive damages: ‘to punish the defendant and to deter him and others from
similar conduct in the future.’” 101 F.3d at 809 (citing Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir.
1992)); see also Gore, 517 U.S. at 568; Haslip, 499 U.S. at 21-22. Furthermore, “deterrence is
directly related to what people can afford to pay.” Lee, 101 F.3d at 813 (citation omitted); see also
Gore, 517 U.S. at 591 (Breyer, J., concurring). Consequently, it was entirely appropriate for the jury
to craft a punitive damages award that was sensitive to the casino’s financial position. And we too
must be sensitive to this reality in reviewing the award.
Under the totality of the circumstances, mindful that the Supreme Court has charged us with
“considering whether less drastic remedies [than the jury’s punitive damages award] could be
expected to achieve” the State’s goal of deterring future misconduct, Gore, 517 U.S. at 585, and
with ensuring that punishment and deterrence are achieved, we think an award of no greater than
$600,000 – sixty per cent of the casino’s daily intake at the time of the verdict – would satisfy the
demands of the due process clause. It cannot be seriously contended that this is an insignificant
amount for the casino.6 Moreover, a $600,000 award is comfortably within the ballpark of the
punitive damages awards in the civil rights cases we have canvassed, see esp. Goodman, 789 So.2d
at 171 (involving a corporate defendant); the less reprehensible conduct in this case being
counteracted by the need to make the award large enough to actually punish and deter, something
that is ordinarily not a challenge in civil rights cases.
Accordingly, on remand, the district court must give Romanski the option of agreeing to
remit $275,000 and to accept a $600,000 punitive damages award or to proceed with a new trial on
the issue of damages. See Meyers v. Wal-Mart Stores, Inc., 257 F.3d 625, 636 (6th Cir. 2001);
Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1396 (6th Cir. 1990); Brewer v. Uniroyal, Inc.,
498 F.2d 973, 976 (6th Cir. 1974); Disorbo, 343 F.3d at 189; Lee, 101 F.3d at 813.
III. CONCLUSION
We VACATE the punitive damages portion of the district court’s judgment, AFFIRM the
judgment in all other respects, and REMAND for proceedings consistent with this opinion.
6
We note that neither Romanski nor the district court considered Gore’s requirement that less drastic measures
must be evaluated to ensure that the ultimate penalty imposed comports with due process.
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 17
_________________
DISSENT
_________________
FARRIS, Circuit Judge, dissenting. The Michigan statute upon which the majority relies
places specific limitations on private security guards that distinguish their powers of detention from
those of public peace-officers. See M.C.L. § 338.1080. Although security guards can make arrests
without a warrant, M.C.L. § 338.1080 emphasizes that their authority is limited by the bounds of
their private employment: They can only detain individuals on company property, during their hours
of employment, while wearing a company uniform.1
The Michigan Supreme Court has specifically rejected the majority’s conclusion that
licensed, private security guards are necessarily state actors. (Op. 13.)
[D]efendant believes that the licensing statutes which regulate private security guards
demonstrate the requisite degree of state action to bring their activities under color
of state law, subject to constitutional restraints. We disagree. We do not believe that
the mere licensing of security guards constitutes sufficient government involvement
to require the giving of Miranda warnings. City of Grand Rapids v. Impens, 327
N.W.2d 278, 281 (Mich. 1982).
By its own account, in granting licenses to private security guards, the State of Michigan has
not attempted to, “cloak[] private individuals with virtually the same power as public officers.” See
Payton, 184 F.3d at 629. But even if the casino’s private security guards did hold plenary arrest
authority under Michigan law, it would still be necessary to establish that they actually exercised
this authority during the detention of Romanski.
In applying the public interest test, it is the exercise, and not the possession, of powers
belonging exclusively to the state that determines whether the action was under color of state law.
See Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003) (en banc) (“Under the public
function test, a private party is deemed a state actor if he or she exercised powers traditionally
reserved exclusively to the state.”); Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 302-03 (2001) (holding that actions can only be attributed to the state if they were
“exclusively and traditionally” public); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158
1
The majority relies on the holdings in Payton v. Rush-Presbyterian and Henderson v. Fisher for the proposition
that the geographical limitations on security guards’ authority in M.C.L. § 338.1080 do not alter the “plenary” nature
of their power. (Op. 14.) Those cases are distinguishable from this case. The Chicago ordinance cited in Payton states
that private officers “possess the powers of the regular police patrol at the places for which they are respectively
appointed or in the line of duty for which they are engaged.” Payton v. Rush-Presbyterian, 184 F.3d 623, 625 (7th Cir.
1999). Unlike the Michigan statute, the Chicago ordinance grants special police officers broad police powers without
specific geographical limitations. Moreover, the ordinance also forces special police officers to comply with all rules
and regulations governing public officers and requires them to report directly to the superintendent of police. Id.Likewise, Henderson v. Fisher also differs significantly from this case. In Henderson the court held that the University
of Pittsburgh, where the campus police worked, was essentially a state institution. Henderson v. Fisher, 631 F.2d 1115,
1118 (3d Cir. 1980) (“[T]he University of Pittsburgh has lost its wholly private charter and has become an
instrumentality of the Commonwealth . . . .”). Furthermore, the Pennsylvania statute cited in Henderson extends the
authority of campus officers beyond the bounds of state universities, permitting them to “exercise those powers . . .
conferred pursuant to this section within the municipality for the limited purpose of aiding local authorities in emergency
situations.” 71 Pa. Stat. Ann. § 646 (2005). Due to M.C.L. § 338.1080’s comparative limitations on the authority of
private security guards, I believe this case is more akin to Wade v. Byles, than either Payton or Henderson. See Wade
v. Byles, 83 F.3d 902, 904 (7th Cir. 1996) (finding an absence of state action where guards were not allowed to pursue
individuals outside the lobby of city housing authority buildings).
No. 04-1354 Romanski v. Detroit Entertainment, et al. Page 18
(1978) (“[V]ery few [functions] have been ‘exclusively reserved to the State.’” (citation omitted)).2
Romanski has presented no evidence that the State of Michigan has traditionally and exclusively
reserved the power to make warrantless arrests. To the contrary, the Michigan Supreme Court has
held that licensed private security guards do not act as state actors in detaining shoplifting suspects.
Impens, 327 N.W.2d at 281. (“Their [guards’] role may be viewed as an extension of the
shopkeepers’ privilege to detain for a reasonable period of time a person suspected of theft or failure
to pay.”).
Viewing the facts in the light most favorable to defendants, I am not convinced that the
casino security guards acted under color of state law in detaining Romanski. The four security
guards approached and then later escorted Romanski off-the-floor because they believed she had
committed a crime and, as the guards contend, she had become loud and belligerent when they
attempted to explain the casino’s policy against “slot-walking.” Even Romanski concedes that
Brown detained her, not simply because of her attitude, but because she suspected Romanski of
theft. (Op. 3.) The law on this point is very clear: Investigation of a possible crime on an
employer’s premises “does not transform the actions of a private security officer into state action.”
Chapman, 19 F.3d at 834. That the “crime” was a “trifle,” as the opinion notes, and that the guard’s
actions may have constituted an egregious tort, is irrelevant.
As in Chapman, where a security guard conducted an unauthorized strip search of a female
customer, the behavior of the casino security guards in this case was outrageous and abusive, but
it was clearly meant to serve the interests of the employer. Id. The humiliating detention of
Romanski was based solely on the enforcement of an inane casino policy and ultimately involved
collection of personal data to prevent her from returning to the casino for six months. However, the3
security guards neither threatened nor actually invoked the authority of the state during the incident.
Because the actions of the casino’s security guards failed to constitute state action, I would
dismiss Romanski’s § 1983 claim. In the absence of subject-matter jurisdiction, I would remand her
case to the district court with directions to vacate and remand to state court.
I respectfully dissent.
2
While the Supreme Court has held that certain actions may be public even if they could have been undertaken
in a private capacity, see Griffin v. Maryland, 378 U.S. 130, 135 (1964); West v. Atkins, 487 U.S. 42, 56 n.15 (1988),
these instances involve preventing a state from avoiding a constitutional duty by delegation, see Georgia v. McCollum,
505 U.S. 42, 53 (1992); Wade, 83 F.3d at 906, or an actor with parallel roles “purporting to act” in the state role, see
Flagg Bros, 436 U.S. at 163 n.14.
3
As the majority notes, the Michigan State Police were notified regarding Romanski’s ejection. (Op. 5.)