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A recent federal court ruling will allow Joe Klunder ’10 to go forward with a lawsuit against the University and President Ruth Simmons for alleged violations of his civil rights. The University had motioned for Klunder’s civil rights claim, brought last October, to be dismissed.

Klunder was ejected from campus after being accused of sexually harassing two University employees and threatening undergraduate students in separate incidents. A University disciplinary committee ultimately found him responsible for sexual harassment, but not for making a threat, and suspended him. Klunder charged that the behavior was caused by medication prescribed to him by a University employee, that he was targeted by administrators for his conservative political views and that the University violated his civil rights.

His suit sought to hold the University and its employees liable under Section 1983 of the Civil Rights Act of 1871, which applies only to state actors, such as municipal or state governments and their employees. He argued that because Brown was originally chartered by Rhode Island’s colonial legislature as a “body politic” and because Department of Public Safety officers exercise police powers usually reserved for the state, the University could be held liable under the civil rights law.

In a July decision, Chief Judge Mary Lisi of the United States District Court for the District of Rhode Island ruled that the University itself has always functioned as a private corporation and that its actions were generally not covered by the Civil Rights Act. But the ruling also concluded that some DPS actions, because the department’s officers exercise full police powers, may be subject to the law.

According to his attorney Lee Blais, Klunder was falsely arrested on campus by DPS Sergeant Robert Enos despite never having been charged with an offense. Enos ordered Klunder to stay in a hotel, forbade him from setting foot on certain public streets and compelled him to leave Rhode Island, according to Blais, who said the University did not have the authority to do any of these things. Enos died earlier this year.

The lawsuit highlights the peculiar and problematic status of DPS officers, who sometimes act as campus security guards and other times act as sworn police officers with powers usually reserved for government agents. The issue may become more salient as Brown’s campus expands further into the city, and DPS’s presence expands with it.

The court must now determine whether Enos was acting as a police officer — liable to civil rights claims — or as a campus security guard in his interactions with Klunder.

Beverly Ledbetter, the University’s vice president and general counsel, was not available for an interview but wrote in a statement to The Herald, “The University maintains that the officer was not acting as a sworn police officer but instead as a University security guard in his interactions with Klunder.”

Erwin Chemerinsky, founding dean of the University of California at Irvine School of Law and renowned scholar of constitutional law, said though private actors are not constrained by constitutional limits on government action, federal law would apply if there is “significant entanglement” between the government and a private actor.

Establishing this connection, though, appears difficult when the precedent set by case law is examined. In the case of Rockwell v. Cape Cod Hospital, referenced in Lisi’s order, the First Circuit Court of Appeals ruled that “private institutions meet the state action requirements only in rare circumstances.”

Blais said he is confident he can demonstrate that Enos was exercising powers typically delegated to the state, pointing to DPS’s authority to makes arrests and engage in search and seizure operations.

But Steven Brown, the executive director of the Rhode Island affiliate of the American Civil Liberties Union, said that Lisi’s opinion suggests “there are a variety of factors that need to be considered.”

The Rockwell decision states that, “In order for a private actor to be deemed to have acted under color of state law, it is not enough to show that the private actor performed a public function. The plaintiff must show that the private (actor) assumed powers traditionally exclusively reserved to the State.”

The job description for DPS officers posted on the DPS website states, “The campus police officer is licensed by the Superintendent of the State Police under Title 12, Chapter 2.1, of the General Laws of Rhode Island.”

That section of the law, “Appointment of special police,” states that private employees designated as special officers “have the same immunities and may exercise in and upon the lands and buildings of the institution by which he is employed, and upon streets and highways immediately adjacent to said lands, the same powers and authority of a police officer.”

Though the U.S. Supreme Court has left open the question of whether private police forces are state actors, Blais said he would not need to rely on case law precedents because it is “abundantly clear” that DPS is carrying out state functions.

Ledbetter wrote in her statement that the University would appeal any decision that found that Enos’ actions were subject to the Civil Rights Act.

Blais said DPS is charged with two sets of duties that “cannot properly be executed at the same time” — enforcing the regulations of the University and the laws of the state of Rhode Island.

Whatever the final decision may be, Chemerinsky said it could have significant implications: “All private Universities have private security forces, so the issue would come up across the country,” he said.

A court conference with the judge will be held in the next week or two, and a schedule will be laid down for subsequent motions.



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