Tsao v. Desert Palace, Inc.

Under 42 U.S.C. § 1983, a claim against a private casino is not frivolous where the casino acted under color of state law by arresting the plaintiff for trespass, because the casino could be considered a state actor.

Plaintiff Laurie Tsao was a professional gambler who had been “trespassed” from the Defendant’s casino prior to the incident which led to this suit. However, she received a promotional offer which she saw as an invitation and a revocation of that trespass and subsequently returned. Upon returning she was detained by casino security acting under state law which allows properly trained security personnel to issue summons for criminal trespassing so long as the person is sufficiently identified and if they cannot be identified, the personnel can detain the person and call police. The charges for trespassing were subsequently dropped by the prosecution. Tsao filed suit for compensatory and punitive damages against the casino and the police officer who arrested her claiming a constitutional violation under 42 U.S.C. § 1983 for unreasonable search and seizure and claims for the common-law torts of battery, false imprisonment, and defamation. The district court granted the casino and police officer’s motion for summary judgment and awarded costs and attorney’s fees. The Ninth Circuit held that Tsao could assert a § 1983 claim against the casino since it was acting under color of state law. However, her claim failed the reasonableness test for a violation of constitutional rights since the security guard and police officer had sufficient probable cause to conduct the search and detain her. The Court also affirmed the grant of summary judgment to the claims of common law false arrest, battery and defamation against the police officer. Other remaining state law claims directed solely at the casino were remanded for further proceedings. The Court reversed the district court’s award of attorney’s fees since they found the § 1983 claims did not meet the standard of being “groundless, without foundation, frivolous, or unreasonable.” AFFIRMED in part, VACATED in part, and REMANDED.