J. Quinn Dorgan
614.280.1123
April 30, 2013
David Horning
Gamma-Xi Chapter Alumni Association
3811 N Bank Rd NE
Millersport, OH 43046
Re: Opinion on the Search Conducted by Denison University Security Officers
Dear Mr. Horning,
The Gamma-Xi Chapter Alumni Association of Kappa Sigma Fraternity has asked me to review the search of a locked closet that Campus Security officers conducted on February 27, 2013, within the Fraternity’s lodge. Based on the relevant legal authority, there are good reasons to think that the University violated federal law and could be held civilly liable.
BACKGROUND:
The Gamma-Xi Chapter Alumni Association owns a three-story building that is located on land that it leases from Denison. Inside the building, the fraternity has exclusive use of the first floor “lodge space,” and the Alumni Association then leases the second and third floors to the University for use as student housing.1 According to the land lease, campus security may make “routine inspections periodically throughout the year (normally three times) relative to health and safety needs to be met.”2 The Chapter’s relationship with the University is also governed by guidelines that obligate the fraternity to comply with, and to maintain its facilities in compliance with, all laws and any University rules, policies and other requirements that apply to
all fraternities and to all Denison students and organizations. But other than the routine inspections authorized by the land lease, there is no law, rule, policy or agreement that allows the University to search areas that it does not own or operate.3
1. See “Lease Agreement” at 2.
2. “Updated Lease Dated 12-4-86” at 3.
3. The “Student Residence Agreement” specifically grants the University the right to search students’ residential
spaces, but it does not apply to the fraternity’s lodge, which is not used for student housing.
Based on scribbled notes that security officers seized from a fraternity member’s dormitory room on February 24, 2013, the University locked all of the members out of their lodge pending the outcome of an investigation into possible violations of the Student Code. The University advised the fraternity of this decision sometime during the day on February 27, 2013.4 That afternoon, several members the fraternity arrived at the lodge space to pick up clothes and other personal items. They did not know about the suspension, however, and finding the doors locked, they ultimately entered through an emergency exit. When the alarm sounded, the members waited for security to arrive. The officers allowed the members to collect their belongings, and the officers then escorted them outside and re-secured the building. Campus security received two more alarm signals on February 27, around 9:00pm and 10:00pm. Security officers returned but found no one inside, and they were not able identify the intruder(s). After the last alarm, security officers apparently guessed that the attempted break-ins had something to do with a hidden, locked closet in the lodge. Without contacting either the fraternity or the owner of the lodge, the officers broke the lock off the closet and searched it.5 This search was not one of the University’s periodic inspections, and there are no other laws, rules, policies or agreements that expressly authorize such a search.
FOURTH AMENDMENT:
When a person has a reasonable expectation of privacy in a particular object or place, the Fourth Amendment forbids government agents from searching that object or place without a warrant, consent, or probable cause plus exigent circumstances (i.e., circumstances that make it impractical for the officers to wait to get a warrant). See Florida v. Royer, 460 U.S. 491, 497 (1983). Given that the closet was hidden in the wall and then secured with a non-University lock6, the fraternity members undoubtedly had a reasonable expectation of privacy in that closet. Whatever the officers may have believed about their right to search the lodge in a general sense, it should have been obvious to them that someone meant to keep exclusive control over this closet and thus that the officers needed a warrant, consent, or probable cause plus exigent
circumstances. They had none of these justifications. Denison is a private institution, of course, and is not typically subject to Fourth Amendment requirements. However, federal courts around the country have held that private security officers can be state actors for purposes of civil rights violations when a state statute
authorizes them to act as the police. For example, in Scott v. Northwestern Univ. Sch. of Law, 1999 U.S. Dist. LEXIS 2815, 1999 WL 134059, *3-6 (N.D. Ill. 1999), the court ruled that a Northwestern University security officer was a state actor because an Illinois statute authorized him to act in every way like a commissioned police officer. See also Boyle v. Torres, 756 F.Supp.2d 983, 993-96 (N.D.Ill. 2010) (same); Torres v. Univ. of Notre Dame Du Lac, 2012 U.S. Dist. LEXIS 40038, 13-23 (N.D. Ind. Mar. 23, 2012) (same, under an analogous Indiana statute).
4. See 2/27/13 Letter from Assoc. Dean Phlegar to Kevin Naud.
5. See 2/27/13 Incident Report.
6. There is no reason to think that it was improper for the fraternity to lock this closet or that the fraternity had to
get permission to do so.
Like Illinois and Indiana, Ohio has a statute, R.C. 1713.50, that authorizes a private university to “establish a campus police department and appoint members of the campus police department to act as police officers[,]” and “[s]uch officers are vested, while directly in the discharge of that member’s duties as a police officer, with the same powers and authority that are vested in a police officer of a municipal corporation or a county sheriff.” Id. (emphasis added). It is our understanding that Denison’s campus security office is established under R.C. 1713.50 and therefore that its officers are vested with the power and authority of a commissioned police officers or deputy. And because nothing else authorized the search of the fraternity’s closet, Denison’s security officers were acting pursuant to their statutory power – i.e., as the police. Accordingly, there is a valid reason to believe that these officers violated the fraternity members’ Fourth Amendment rights and also that they might be liable under Ohio law. If the fraternity is inclined to file a federal lawsuit based on this incident, I believe that a complaint could be drafted that would survive a motion to dismiss and that there would be sufficient factual disputes that the court could justify conducting a trial. And while your damages in this case would be relatively low (compared to a wrongful death case, for instance), a successful plaintiff
in a civil rights case may be entitled to recover both his attorney’s fees and punitive damages against the defendant. In fact, attorney’s fees are often the largest component of what plaintiffs recover in civil rights cases. Success is never guaranteed, of course, but we would certainly make every effort on your
behalf. I look forward to hearing from you soon.
Very truly yours,
/s/ J.Quinn Dorgan
J. Quinn Dorgan
JQD/jqd