Mark v. Borough of Hatboro

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

3-31-1995

Mark v Borough of Hatboro
Precedential or Non-Precedential:

Docket 94-1722

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________

No. 94-1722
_________________

JOHN D. MARK,

Appellant

v.

BOROUGH OF HATBORO, THOMAS E. McMACKIN,
CHARLES J. ACKER, BUCKY L. CLARK, ROBERT S. DOORLEY,
DOTTIE NEWSOME, JOHN G. YOUNGLOVE, ESQUIRE,
ALFRED F. ZOLLERS, ROBERT STAUCH, MICHAEL BARGER
ROY THOMAS, JOSEPH READING, JOHN SINE,
WILLIAM MARLEY, III, ENTERPRISE FIRE COMPANY

_________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 92-cv-7354)
_______________

Argued December 20, 1994

BEFORE: GREENBERG, SAROKIN, and WEIS, Circuit Judges

(Filed: March 31,1995)
______________

Robert W. Small (argued)
Berlinger & Small
1494 Old York Road, Suite 200
Abington, PA 19001

Attorney for Appellant

Larry D. Jackson (argued)
Harris & Silverman
1650 Arch Street
25th Floor
Philadelphia, PA 19103

Attorney for Appellee the
Enterprise Fire Company
 Juliana P. Maffei (argued)
Joseph A. Santarone
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street Tower
Philadelphia, PA 19103

Attorneys for Appellees
Borough of Hatboro,
Thomas E. McMackin,
Charles J. Acker, Bucky
L. Clark, Robert S.
Doorley, Dottie Newsome,
John G. Younglove,
Esquire, Alfred F.
Zollers, Robert Stauch,
Michael Barger, Roy
Thomas, Joseph Reading
and John Sine

_______________________

OPINION OF THE COURT
_______________________

GREENBERG, Circuit Judge.

I. Introduction

On March 5, 1991, defendant William Marley III, a

member of the Enterprise Fire Company, a volunteer fire company

in the Borough of Hatboro, Pennsylvania, set fire to and

destroyed plaintiff John D. Mark's automobile repair business.

The question on this appeal is whether the Borough and Enterprise

can be held liable under 42 U.S.C. § 1983, the federal civil

rights statute, for damages resulting from the arson. The

district court granted defendants' motions for summary judgment,
basing the decision on its finding that Enterprise was not a

state actor for section 1983 purposes, and that it operates

independently of the Borough. We conclude that the district

court erred in holding that Enterprise is not a state actor.

Nonetheless, our review of the record compels the conclusion that

the defendants cannot be held responsible under section 1983 for

the harm that occurred.1 We, therefore, will affirm the grant of

summary judgment.

II. Factual background and procedural history

Enterprise is a private association of volunteers which

has served the Borough of Hatboro since 1890. Mark v. Borough of

Hatboro, 856 F. Supp. 966, 968 (E.D. Pa. 1994). In its day to

day operations, Enterprise essentially acts autonomously; it owns

the fire station and the fire fighting equipment, elects its own

officers, prepares its own budget and maintains its own

recruitment and training practices. However, on September 28,

1987, Enterprise signed an agreement with the Borough, agreeing

to provide fire protection services to the Borough in return for

the latter's imposition of a fire tax. The Borough insures

Enterprise's equipment, and the fire tax funds Enterprise's

operations and expenditures. Id. at 973-74.
According to Enterprise's by-laws (as of June

16, 1989), "[a]ny person shall be eligible to

1
. Of course, we can affirm on a ground on which the district
court did not rely but which was raised before it. See Neely v.
Zimmerman, 858 F.2d 144, 149 (3d Cir. 1988).
be a regular member of the Company if they

are eighteen (18) years of age or older and

they are of good moral character."

Enterprise Fire Company of Hatboro,

Pennsylvania By-Laws at app. 59. The by-laws

provide the following procedure for admitting

an applicant to membership: (1) An

application for regular member [sic] must be

made in writing on forms provided by

[Enterprise]. The applicant must submit the

completed form co-signed by a regular member

in 'good standing' who shall be considered

the 'proposing member'. A fee of three

($3.00) dollars shall accompany the

application.

(2) The Membership Committee shall be in
charge of membership and they shall be
responsible for the production, distribution
and receipt of completed application forms
and fees.

(3) Following the submission of the
completed application and payment of the fee
the Membership Committee shall arrange for
the applicant and proposing member to attend
the next regular membership meeting when both
parties are available.

(4) The applicant and proposing member shall
appear at the regular membership meeting at
which time the Membership Committee shall
introduce the applicant to the regular
membership. The application shall then be
referred to the Membership Committee for an
investigation and recommendation for
'probationary membership'.
 (5) At the subsequent regular membership
meeting the Membership Committee shall report
on the application. If a 'favorable report'
is submitted than [sic] the regular
membership shall vote to determine whether
the applicant shall be accepted for
'probationary membership.' Said vote shall
be made by the show of hands and three (3) or
more negative votes shall be necessary to
defeat the application . . . .

By-laws at app. 59-60. The application is a two-page

questionnaire that asks, among other things, whether the

applicant has "every [sic] been under the care of or committed to

any institution for any nervous condition, mental illness,

alcoholism or use of drugs." App. 1-2.

Marley filled out and signed the application on May 9,

1986, and answered "no" to the foregoing question. Id. On May

19, 1986, Enterprise made him a probationary member, and it

appears that in May, 1988 he became a regular member. Id. at 1.2

It is undisputed that prior to the Mark fire, Enterprise "never

considered the need for psychological testing to identify

firefighters having a propensity to commit arson. . . . Neither
did it receive any advice as to whether existing members or

applicants for firefighter status could be identified as

potential arsonists." Brief of Enterprise Fire Company at 10.

According to Mark's interpretation of expert reports, however,

Marley had a psychologically troubled background which would have

2
. The delay between Marley's probationary membership and
regular membership apparently was due to the fact that Marley
only turned 18 on May 3, 1988.
indicated to trained observers that he was not fit to be a

firefighter. Additionally, while working as a volunteer

firefighter, Marley had a serious drinking problem and, on one

occasion, "was cautioned by other members to stay away from the

fire officers at the scene [of a fire] because he smelled so

strongly of alcohol." Supplemental Statement of Dian Williams,

President of Center for Arson Research, July 11, 1993 at app.

946.

On December 23, 1992, Mark filed a complaint against

the Borough, several Borough officials, and Enterprise in the

United States District Court for the Eastern District of

Pennsylvania to recover his losses from the fire.3 His complaint

alleged that Enterprise's and the Borough's failure to follow

adequate policies to ensure that applicants to the fire

department were screened sufficiently for tendencies towards

arson caused the damage to his property.4 Mark claimed that this

duty to screen is compelled constitutionally, and that the danger

of volunteer firefighters committing arson is so grave and so

obvious that the defendants' failure to follow such a policy

evinced willful disregard for the rights of individuals with whom

the firefighters came in contact. Mark further alleged that if

3
. The complaint also stated common law tort claims against
Marley but these claims are not before us on this appeal and we
do not address them.
4
. Mark also claims that the defendants had a duty to perform
periodic screenings of firefighters and to train firefighters to
identify potential arsonists in the company. We discuss all of
these claims under the rubric of "failure to screen."
Enterprise had a policy of psychologically screening applicants

or of training its firemen to spot potential arsonists, it would

have discovered that Marley was unfit to serve as a volunteer

firefighter and it never would have admitted him into membership,

so that Marley would not have started the fire. Mark claimed

relief pursuant to 42 U.S.C. § 1983 and under state law. The

parties have considered the Borough officials on the same basis

as the Borough itself, and consequently we shall treat this case

as involving only two defendants, Enterprise and the Borough.5

On February 25, 1993, the Borough moved to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to

state a claim upon which relief could be granted. On March 2,

1993, Enterprise made a similar motion. On April 8, 1993, the

district court granted Enterprise's motion to dismiss counts 2

and 3, which alleged, respectively, negligence and willful and

wanton conduct, but the district court denied the remainder of

the motions.

On December 28, 1993, the defendants moved for summary
judgment pursuant to Fed. R. Civ. P. 56(b). In their motion

papers, they made a series of alternative arguments, including

the following: (1) Enterprise was not a state actor for section

1983 purposes, and therefore Mark had no federal cause of action;

(2) the Due Process Clause of the Fourteenth Amendment imposes no

duty upon local governments to provide adequate fire protection

5
. Mark did not specify whether he was suing the individual
defendants in their official or individual capacities.
or to protect the public from fire; (3) no local governmental

entity has a due process duty to protect the public against

violent acts of private persons; (4) even if Mark's

constitutional rights were violated, he failed to demonstrate

that the defendants' failure to screen applicants psychologically

for membership evinced deliberate indifference; (5) the causal

link between the failure to screen and the arson was too remote

to support the imposition of liability.

In an opinion and order dated June 30, 1994, reported

at 856 F. Supp. 966 (E.D. Pa. 1994), the district court granted

defendants' motion. The court first addressed the state actor

argument, and found that firefighting in Pennsylvania never has

been an exclusive function of the government, and that there is

an insufficient connection between the municipality and

Enterprise to justify imposing state actor status on Enterprise.

Id. at 970-76. It went on to reason that "[s]ince [the Borough]

has no control over [Enterprise's] employment practices in the

first place, and since [Enterprise's] acts do not fairly

represent official policy, the Borough's policy or lack of policy

regarding [Enterprise's] screening of new applicants is not

actionable under § 1983." Id. at 976. Upon dismissing the

federal claims against both the Borough and Enterprise, pursuant

to 28 U.S.C. § 1367(c)(3) the district court declined to exercise

supplemental jurisdiction over the remaining state law claims,

and thus it dismissed those claims without prejudice.

Mark filed a timely notice of appeal from the district

court's order. We have jurisdiction pursuant to 28 U.S.C. §
1291, as the appeal is from a final order disposing of all claims

in the complaint. The district court had jurisdiction pursuant

to 28 U.S.C. §§ 1331 and 1343. We exercise plenary review over

the district court's grant of summary judgment. Allegheny Int'l,

Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1423 (3d Cir.

1994). Thus, "we must determine whether 'the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that [the moving party]

is entitled to a judgment as a matter of law.'" Id. at 1423

(quoting Fed. R. Civ. P. 56(c)). As we recently described:
'[I]n applying this standard, "all inferences
must be drawn against the movant, . . . and
in favor of the nonmovant."' [FDIC v.
Bathgate, 27 F.3d 850, 860 (3d Cir. 1994)]
(quoting Erie Telecommunications, Inc. v.
City of Erie, 853 F.2d 1084, 1093 (3d Cir.
1988)). However, '"where the movant has
produced evidence in support of its motion
for summary judgment, the nonmovant cannot
rest on the allegations of pleadings and must
do more than create some metaphysical
doubt."' Id. (quoting [Petruzzi's IGA
Supermarkets, Inc. v. Darling-Delaware Co.,
998 F.2d 1224, 1230 (3d Cir.), cert. denied,
114 S.Ct. 554 (1993)]).

Id. at 1423.

III. Discussion

In cases involving the scope of liability under a

federal statute, it always is appropriate to begin with the

statutory language. 42 U.S.C. § 1983 provides in pertinent part

that:
 Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory, 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.

"By its terms, of course, the statute creates no substantive

rights; it merely provides remedies for deprivations of rights

established elsewhere." City of Oklahoma City v. Tuttle, 471

U.S. 808, 816, 105 S.Ct. 2427, 2432 (1985) (plurality opinion).

Thus, "[t]o establish a claim under 42 U.S.C. § 1983, [a

plaintiff] must demonstrate a violation of a right secured by the

Constitution and the laws of the United States [and] that the

alleged deprivation was committed by a person acting under color

of state law." Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.

1993). Here, Mark claims that he was deprived of his substantive

due process rights guaranteed by the Fourteenth Amendment. The

district court opinion focused principally on whether Enterprise
could be considered a state actor for section 1983 purposes.

That is where, then, we will begin our analysis.

A. Is Enterprise a State Actor?

"Although a private [party] may cause a deprivation of

. . . a right, [it] may be subjected to liability under § 1983

only when [it] does so under color of law." Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733 (1978). The
Supreme Court has clarified that "[i]n cases under § 1983, 'under

color' of law has consistently been treated as the same thing as

the 'state action' required under the Fourteenth Amendment."

United States v. Price, 383 U.S. 787, 794 n.7, 86 S.Ct. 1152,

1157 n.7 (1966) (quoted in Lugar v. Edmondson Oil Co., 457 U.S.

922, 928, 102 S.Ct. 2744, 2749 (1982) [hereinafter "Lugar"]), and

Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-70

(1982). The state action principle is stated succinctly as

follows: "[A]t base, 'constitutional standards are invoked only

when it can be said that the [government] is responsible for the

specific conduct of which the plaintiff complains.'" Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 632, 111 S.Ct. 2077, 2089

(1991) [hereinafter "Edmonson"] (O'Connor, J. dissenting)

(quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777,

2785-86 (1982)) (alterations in original). Put differently,

deciding whether there has been state action requires an inquiry

into whether "there is a sufficiently close nexus between the

State and the challenged action of [Enterprise] so that the

action of the latter may be fairly treated as that of the State

itself." Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786
(internal citation omitted).

The Supreme Court in varying circumstances appears to

utilize three discrete tests to determine whether there has been

state action. See Haavistola v. Community Fire Co. of Rising

Sun, 6 F.3d 211, 215 (4th Cir. 1993). The first inquiry asks

whether "the private entity has exercised powers that are

traditionally the exclusive prerogative of the state." Blum v.
Yaretsky, 457 U.S. at 1004-05, 102 S.Ct. at 2786 (emphasis added)

(internal citation omitted). Years ago, the Court applied this

test somewhat liberally, holding, for example, that a town owned

by a private company performs a public function and therefore is

a state actor, see Marsh v. Alabama, 326 U.S. 501, 507, 66 S.Ct.

276, 279 (1946), and that a private organization conducting pre-

primary elections for the purpose of sending its candidates to

the primary election, engaged in an exclusive public function.

Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809 (1953). See also

Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486 (1966) (public park

could not be operated with racial restriction even when trustees

had no connection to city government).

However, the Court came increasingly to emphasize the

"exclusivity" aspect of the test, and rarely found that

plaintiffs had met that rigorous standard. Thus, in Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449 (1974), the

Court held that a private utility company, extensively regulated

by the state, and apparently holding at least a partial monopoly

in its territory, did not act under color of state law, in part

because the state where the utility was engaged in business had

"rejected the contention that the furnishing of utility services

is either a state function or a municipal duty." Id. at 353, 95
S.Ct. at 454. Similarly, in Rendell-Baker v. Kohn, the Court

held that a private entity engaged in the education of

maladjusted high school students did not perform an exclusively

public function because "[the state's] legislative policy choice

[to fund the private school] in no way makes these services the
exclusive province of the State." 457 U.S. at 842, 102 S.Ct. at

2772; see also Black v. Indiana Area Sch. Dist., 985 F.2d 707,

710-11 (3d Cir. 1993) (private contractor providing state school

bus program at state expense not performing exclusive state

function). In sum, the exclusive public function test rarely

could be satisfied.

The second discrete inquiry asks whether "the private

party has acted with the help of or in concert with state

officials." McKeesport Hospital v. Accreditation Council for

Graduate Medical Ed., 24 F.3d 519, 524 (3d Cir. 1994). Thus, in

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598 (1970),

the Court held that a conspiracy between a private party and a

state official to engage in unlawful discrimination constituted

action "'under color' of law for purposes of the statute." Id.

at 152, 90 S.Ct. at 1606. Similarly, in Lugar a private party's

prejudgment attachment of another party's property, pursuant to a

state statute, constituted state action under section 1983.

Lugar, 457 U.S. at 941-42, 102 S.Ct. at 2756.

Finally, the third scenario involves situations in

which "[t]he State has so far insinuated itself into a position

of interdependence with . . . [the acting party] that it must be

recognized as a joint participant in the challenged activity."

Krynicky v. University of Pittsburgh, 742 F.2d 94, 98 (3d Cir.
1984) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715,

725, 81 S.Ct. 856, 862 (1961)), cert. denied, 471 U.S. 1015, 105

S.Ct. 2018 (1985) (alterations in original). Burton was a
classic application of this symbiotic relationship test. There,

the Court deemed a private restaurant's discriminatory act state

action because the restaurant was located in a building owned by

the Wilmington Parking Authority, an agency of the state.

Because of the arrangement between the Parking Authority and the

restaurant, under which the State of Delaware benefitted

financially from its lessee's business, the Court held that

Delaware could be responsible for the restaurant's discriminatory

acts. Burton, 365 U.S. at 725, 81 S.Ct. at 862. Following the

reasoning in Burton, we have held that actions taken by the

University of Pittsburgh and Temple University constitute state

action because the universities "receive present financial

support [and] the state has committed itself to future financial

aid and sets an annual appropriation policy and tuition rate."

Krynicky, 742 F.2d at 102.6

In Edmonson, the Supreme Court clarified the Lugar

joint participation test and enunciated an approach that applies

to this case. In cases such as this, courts must ask "first

whether the claimed constitutional deprivation resulted from the

6
. The Supreme Court, interpreting the symbiotic relationship
test, has commented that "while 'a multitude of relationships
might appear to some to fall within the Amendment's embrace,'
differences in facts beget differences in law, limiting the
actual holding [of] Burton to lessees of public property."
Jackson, 419 U.S. at 358, 95 S.Ct. at 457 (citation omitted). At
least one court has held that this language "limited the
symbiotic relationship analysis." Haavistola, 6 F.3d at 215.
We, however, have held that the Burton test remains a viable
framework for assessing state actor status. See Krynicky v.
University of Pittsburgh, 742 F.2d at 100-01; McKeesport Hospital
ACGME, 24 F.3d at 526 n.1 (Becker, J., concurring in judgment).
exercise of a right or privilege having its source in state

authority; and second, whether the private party charged with the

deprivation could be described in all fairness as a state actor."

Edmonson, 500 U.S. at 620, 111 S.Ct. at 2082-83 (emphasis added)

(internal citations omitted). In describing the second prong of

the test, the Court explained as follows:
Our precedents establish that, in determining
whether a particular action or course of
conduct is governmental in character, it is
relevant to examine the following: the
extent to which the actor relies on
governmental assistance and benefits, see
Tulsa Professional Collection Services, Inc.
v. Pope, 485 U.S. 478, 108 S.Ct. 1340 (1988);
Burton v. Wilmington Parking Authority, 365
U.S. 715, 81 S.Ct. 856 (1961); whether the
actor is performing a traditional
governmental function, see Terry v. Adams,
345 U.S. 461, 73 S.Ct. 809 (1953); Marsh v.
Alabama, 326 U.S. 501, 66 S.Ct. 276 (1946);
cf. San Francisco Arts & Athletics, Inc. v.
United States Olympic Committee, 483 U.S.
522, 544-45, 107 S.Ct. 2971, 2985-86 (1987);
and whether the injury caused is aggravated
in a unique way by the incidents of
governmental authority, see Shelley v.
Kraemer, 334 U.S. 1, 68 S.Ct. 836 (1948).

Edmonson, 500 U.S. at 621-22, 111 S.Ct. at 2083.7

Edmonson itself involved the question of whether

peremptory challenges removing jurors in civil cases constituted

7
. Edmonson inquires into whether the practice involved a
"traditional public function" rather than an exclusive
governmental function. While, as Justice O'Connor pointed out in
her dissenting opinion, the majority might have altered the
traditional public function test as a discrete test, the Edmonson
majority can be read to say that in conducting the joint
participation discrete test, whether the private actor performed
a traditional public function is one factor to consider. But see
Judge Greenberg's concurrence.
state action under the Fifth Amendment Due Process Clause. After

weighing the relevant factors, the Court concluded (1) this was a

situation in which "private parties make extensive use of state

procedures with the 'overt, significant assistance of state

officials.'" Id. at 622, 111 S.Ct. at 2084 (quoting Tulsa

Professional Collection Serv., Inc. v. Pope, 485 U.S. 478, 486,

108 S.Ct. 1340, 1345 (1988)); (2) peremptory challenges involve

"[a] traditional function of government." Edmonson, 500 U.S. at

624, 111 S.Ct. at 2085; (3) allowing race discrimination to

proceed with impunity in a courtroom "mars the integrity of the

judicial system and prevents the idea of democratic government

from becoming a reality." Edmonson, id. at 628, 111 S.Ct. at

2087. Thus, the plaintiff's allegation that peremptory

challenges were discriminatory could properly be considered under

the Constitution.

We now consider whether Enterprise fairly can be found

to be a state actor. Courts addressing the status of volunteer

fire companies in other jurisdictions have reached differing

results. See, e.g., Goldstein v. Chestnut Ridge Volunteer Fire
Co., 25 F.3d 1039 (table), 1994 WL 233356 (4th Cir. 1994)

(question of whether fire fighting is traditionally exclusive

government function in Maryland is question of fact); Haavistola,

6 F.3d at 218 (same); Yeager, 980 F.2d at 340-43 (volunteer fire

company in Texas not state actor); Janusaitis v. Middlebury

Volunteer Fire Dep't, 607 F.2d 17, 23 (2d Cir. 1979) (volunteer

fire department in Connecticut state actor); Versarge v. Township
of Clinton, No. 90-257, 1991 WL 247611 at *4 (D.N.J. Nov. 18,
1991) (act of expelling member from New Jersey volunteer fire

company considered state action), aff'd on other grounds, 984

F.2d 1359 (3d Cir. 1993); Kronmuller v. West End Fire Co., 123

F.R.D. 170, 174 (E.D. Pa. 1988) (disputed issues of fact existed

about whether volunteer fire company was state actor); Libin v.

Town of Greenwich, 625 F. Supp. 393, 397 (D. Conn. 1985) (For

establishment clause purposes, "[t]he near 'symbiotic

relationship' between the Town and the Company requires the

conclusion that the Company is, in fact, a state actor."). Of

course, since the question must be resolved by reference to the

particular local facts, by definition none of these cases is

controlling.

As noted above, the first question under Edmonson is

whether the claimed constitutional deprivation resulted from the

exercise of a right or privilege having its source in state

authority. This prong of the test "only asks whether the private

actor who caused the harm to another person was acting in

conformity with the law of the jurisdiction when he caused the

harm." Rotunda & Nowak, § 16.1 at 527. In other words, we ask,

under what authority did the private person engage in the

allegedly unlawful acts. Moose Lodge No. 107 v. Irvis, 407 U.S.
163, 92 S.Ct. 1965 (1972), provides a good illustration of how

this first prong of the inquiry is applied. In that case, a

black plaintiff sued the Moose Lodge, a private fraternal

organization, alleging that the Lodge's refusal to serve him

alcoholic beverages violated his right to be free from racial

discrimination under the Constitution. The plaintiff "claimed
that because the Pennsylvania liquor board had issued . . . Moose

Lodge a private club license that authorized the sale of

alcoholic beverages on its premises, the refusal of service to

him was 'state action' for purposes of the Equal Protection

Clause of the Fourteenth Amendment." Id. at 165, 92 S.Ct. at

1967. The Court reasoned that because "the Pennsylvania Liquor

Control Board plays absolutely no part in establishing or

enforcing the membership or guest policies of the club that it

licenses to serve liquor," id. at 175, 92 S.Ct. at 1972-73, there

was no relationship between the relevant state policy and the

discrimination. Thus, the plaintiff failed to satisfy the first

prong of the test.

Here, however, the allegation of an unconstitutional

deprivation is related directly to the Borough's agreement with

Enterprise that the latter would be the official provider of fire

services in the Borough. Pennsylvania law authorizes boroughs

"[t]o make regulations, within the borough, or within such limits

thereof as may be deemed proper, relative to the cause and

management of fires and the prevention thereof." Pa. Stat. Ann.

tit. 53, § 46202(21). Pursuant to this provision, on September

28, 1987, the Borough entered into an agreement with Enterprise

under which "[Enterprise] shall provide fire suppression and fire

protection within the corporate limits of the Borough" and

pursuant to which "[t]he [fire] chief shall be charged with the

responsibility of providing fire suppression and fire protection

and appropriate emergency assistance in accordance with

[Enterprise's] training and expertise as required within the
corporate limits of the Borough." Agreement by Enterprise Fire

Company to Provide Fire Protection for the Borough of Hatboro

(hereinafter "Agreement"), at app. 169, 170. Thus, the first

prong of the test is satisfied.

The second question under Edmonson requires us to

decide whether, all things considered, it is fair to hold that

Enterprise is engaged in state action. As noted above, one

factor we consider is the extent to which the provision of fire

services is a traditional public function in Pennsylvania. In

Jackson, the Supreme Court equated the question of whether

something is a public function with the question of whether the

particular state imposed a duty to perform the relevant function.

Jackson, 419 U.S. 353, 95 S.Ct. at 454. In that case, the Court

refused to hold that providing utility services is state action

under the public function test, because "while the Pennsylvania

statute imposes an obligation to furnish service on regulated

utilities it imposes no such obligation on the State. The

Pennsylvania courts have rejected the contention that furnishing

of utility services is either a state function or a municipal

duty." Id. at 353, 95 S.Ct. at 454. The question of whether

there is a municipal duty to provide the services, and thus,

whether fire protection is a governmental function, must be

answered in light of "the history, tradition and local law

surrounding volunteer fire departments." Yeager v. City of

McGregor, 980 F.2d at 340.

We conclude that in Pennsylvania, the provision of fire

protection is a governmental function. Pennsylvania courts
repeatedly have recognized, notwithstanding the permissive

language of the authorizing statute quoted above, Pa. Stat. Ann.

tit. 53, § 46202(21), that volunteer fire companies are engaged

in a public function and that municipalities have a public duty

to provide fire protection. The Supreme Court of Pennsylvania

long ago said that "[t]he protection of the city from fire is a

municipal function of the highest importance." Commonwealth v.

Barker, 61 A. 253, 254 (Pa. 1905). In another case, the Court

opined that volunteer firemen are analogous to police officers,

and that volunteer fire companies were entitled to governmental

immunity:
It has been held in this state that the duty
of extinguishing fires, and saving property
thereupon is a public duty, and the agent to
whom such authority is delegated is a public
agent, and not liable for the negligence of
its employees. . . . The same reason which
exempts the city from liability for the acts
of its policemen, applies with equal force to
the acts of the firemen. And it would seem
from this and other cases to make no
difference, as respects to the legal
liability, whether the organization
performing such public service is a volunteer
or not.

Fire Ins. Patrol v. Boyd, 15 A. 553, 556-57 (Pa. 1888) (emphasis
added). Relying on these cases, the Commonwealth Court of

Pennsylvania more recently concluded that "volunteer fire

companies, because of their distinct creation and present

relationship to municipalities, presently enjoy governmental

immunity." Zern v. Muldoon, 516 A.2d 799, 805 (Pa. Commw. Ct.
1986) (emphasis added), appeal dismissed, 541 A.2d 314 (Pa.

1988)). The court reasoned:
This conclusion is supported by a recognition
that the functions and accomplishments of
volunteer fire departments affix to their
continued existence a public, governmental
character. The extensive statutory
legislation which enhances and directs the
organization of volunteer fire companies
demonstrates an adoption by the Commonwealth
and its citizenry of the governmental
characteristic of volunteer fire companies.
The charitable emphasis [of older cases] has
been replaced by the critical realization of
the need for continued public protection from
fire and the realization that a governmental
duty can be capably performed by mostly
volunteer organizations.

Zern, 516 A.2d at 805. Even more recently, the Supreme Court of

Pennsylvania, interpreting a Pennsylvania statute providing

governmental immunity to governmental agencies, held that a

volunteer fire company is a local agency entitled to governmental

immunity under 42 Pa. Cons. Stat. Ann. § 8541 (1982), and that

"governmental immunity [applies] even when they are not engaged

in fire-fighting activities." Guinn v. Alburtis Fire Co., 614
A.2d 218, 219, 220 (Pa. 1992).8

Enterprise argues that Guinn is inapplicable because a

holding that an entity is a governmental agency entitled to

governmental immunity under a local law is fundamentally distinct

8
. Guinn's holding has been interpreted to apply only to fire
companies that "(1) have been created pursuant to relevant law
and (2) that are legally recognized as the official fire company
for a political subdivision." Kniaz v. Benton Borough, 642 A.2d
551, 554 (Pa. Commw. Ct. 1994). In this case there is no
question that both of these requirements have been met.
from a holding that a party is a state actor under section 1983.

Indeed, in Krynicky, we noted the distinction between government

agency status under state law and state actor status under

section 1983. Krynicky, 742 F.2d at 103 n.12. But whether an

entity is a state agency may, in certain cases, be relevant in

determining whether it is a state actor for section 1983

purposes. Here, the rationale behind Guinn and the other cases

discussed above was that in Pennsylvania firefighting is a public

duty and a public function. Thus, Guinn is certainly relevant to

our analysis.9

Moreover, an analysis of Pennsylvania courts' treatment

of volunteer fire companies in other situations leads inevitably

to the conclusion that volunteer fire companies in Pennsylvania

are state actors. In Harmony Volunteer Fire Co. and Relief Ass'n

v. Commonwealth of Pennsylvania, 459 A.2d 439 (Pa. Commw. Ct.

1983), the Commonwealth Court of Pennsylvania discussed whether a

volunteer fire company is an employer under Pennsylvania's Human

Relations Act, Pa. Stat. Ann. tit. 43 §, 954(b) (1991). In the

course of its decision, the court discussed Janusaitis v.
Middlebury Volunteer Fire Dep't, 464 F. Supp. 288 (D. Conn. 1979)

9
. In Krynicky, we opined that "a state court construction of a
state statute has no bearing on whether an entity that is
connected with the state is a 'state actor' for purposes of the
fourteenth amendment and § 1983." 742 F.2d at 103 n.12. While
it is certainly true that a state court's determination that an
actor is private cannot bind a federal court's determination of
whether the action is nonetheless public, a state's converse
finding certainly has more weight.
(Janusaitis I), and Janusaitis v. Middlebury Volunteer Fire

Dep't, 607 F.2d 17 (2d Cir. 1979) (Janusaitis II), two opinions

addressing whether a volunteer fire company is a state actor

under section 1983. In Janusaitis, the district court found that

the company was not a state actor, but the court of appeals

disagreed. The Harmony court noted that "many of the

considerations involved in the present case are also a part of a

state action determination," see Harmony Volunteer Fire Co., 459

A.2d at 442-43, and rejected the reasoning of Janusaitis I.

Instead, it quoted the court of appeals' statement that "[f]ire

protection is a function public or governmental in nature . . .

which would have to be performed by the Government but for the

activities of volunteer fire departments." Id. at 443 (quoting

Janusaitis II, 607 F.2d at 24). The Harmony court continued: "We

concur with that statement and with the position of the

commission that the fire company's primary function, the

provision of fire and emergency services, is governmental in

nature." Harmony Volunteer Fire Co., 459 A.2d at 443.

Our conclusion is reinforced further by a Pennsylvania

appellate court's determination that a volunteer fire department

may be held liable under section 1983 for violating a plaintiff's

constitutional rights. In that case, Tallon v. Liberty Hose Co.
No. 1, 485 A.2d 1209 (Pa. Super. Ct. 1984), the plaintiff alleged

that a volunteer fire company "had denied her application for

membership solely on the basis of her sex," id. at 1211, and

claimed relief under section 1983 and the Fourteenth Amendment.

After the parties entered into a consent decree, the plaintiff
moved for attorney fees pursuant to 42 U.S.C. § 1988.10 Upon

finding that the company was unable to pay, the trial court

declined to award fees. The Superior Court reversed, holding

that "an award of fees cannot be denied on the basis of

appellee's perceived inability to pay," and remanded the matter

for a determination of the proper amount of fees to be awarded.

Id. at 1214.

Under section 1988, in a section 1983 case a plaintiff

may receive an award of attorneys fees only if a prevailing

party, and the Tallon court noted that "we agree[] that appellant

met the requirements of the Act in that she was the prevailing

party in a section 1983 cause of action." Id. at 1212. In order

to prevail in a section 1983 cause of action, a party must

establish that the defendant acted under color of state law, or

was a state actor. Therefore, in holding that the court could

award attorneys fees, the Superior Court necessarily believed

that the volunteer fire company was a state actor under section

1983. Otherwise, it could not have awarded fees.

Importantly, our conclusion cannot be avoided by the

fact that Tallon involved interpretation of a consent decree,

10
. This statute provides in pertinent part that:

In any action or proceeding to enforce a
provision of section[] . . . 1983 . . . the
court, in its discretion, may allow the
prevailing party, other than the United
States, a reasonable attorney's fee as part
of the costs.

42 U.S.C. § 1988(b).
because in that decree the defendant expressly contended that it

violated no federal law. See Tallon, 485 A.2d at 1211 (In the

consent decree, "Liberty Hose made no admission that it had

violated federal law."); id. at 1212 n.3 ("Appellee avers that

appellant's claim against appellee did not involve any right

guaranteed by the Constitution or laws of the United States and

therefore she cannot recover counsel fees under 42 U.S.C. §

1988."). The court nonetheless found "this argument to be

meritless." Id.

Tallon is particularly significant because there, as

here, the volunteer fire company operated with much autonomy.

The consent decree provided that:
[A]ppellant would be admitted as a
probationary member of the hose company, and
if she fulfilled the probationary
requirements, which applied to all members,
she would be admitted as a permanent member.
The consent decree further stated that the
constitution and by-laws of the hose company
would be amended to specify that no person
would be rejected from membership on the
basis of gender.

Id. at 1211. In other words, the company had its own by-laws,

its own constitution, and the authority to adopt its own policies

and regulations. The case at hand is indistinguishable from that

case. We therefore hold that as Enterprise, in accordance with

its agreement with the Borough, is "the duly appointed Fire

Company to service the Borough" and under applicable state law is

performing an exclusively governmental function.11

11
. The district court also relied on several treatises for the
proposition that firefighting generally, and in Pennsylvania in
 Because Pennsylvania courts view firefighting as a

public duty and treat volunteer fire companies for all relevant

purposes as state entities, and because Enterprise is the duly

appointed fire company of the Borough, we probably could end our

analysis here. We nonetheless continue to consider factors

relevant to the question of whether Enterprise is engaged in

state action. We thus look at the extent to which Enterprise

relies on governmental assistance and benefits, see Edmonson, and

the extent of the nexus between the state and the volunteer fire

company. McKeesport Hospital, 24 F.2d at 526 (Becker, J.

(..continued)
particular, historically has been the province of private actors.
For instance, it states that "[i]n 1986, only 49 of the
Commonwealth's 2,550 fire departments were paid or partially paid
units. The remaining 2,501 were all-volunteer fire companies."
Mark, 856 F. Supp. at 973 (citing John Clements, Pennsylvania
Facts at 23 (1987)). In the first place, this fact does not
answer the question of whether these private companies are
performing a traditional governmental function, or whether a fire
company duly appointed by a municipality is essentially an arm of
the municipality. Second, Pennsylvania courts' treatment of the
issue is more significant than a single fact.

We are also aware that in Yeager, the court relied on
several treatises and newspaper articles for the proposition that
"there are a variety of private sector fire fighting
alternatives; and fire fighting is not generally an exclusive
government function." Yeager, 980 F.2d at 341. The problem with
this analysis is threefold. First, the Yeager court was supposed
to be inquiring into the history of the particular municipality,
not the general history of volunteer firefighting. Second, the
existence of private volunteer firefighting companies says
nothing about whether the State or the municipality has a public
duty to provide firefighting. Finally, the Yeager court
improperly applied the "exclusive public function" test. When
the question is whether the state can delegate a responsibility
and thereby avoid the strictures of the Fourteenth Amendment, it
is illogical to view the delegation of that very responsibility
as evidence that the responsibility can be delegated.
concurring in judgment). We also consider the degree to which

the State has "exercised coercive power or has provided . . .

significant encouragement, either overt or covert." Blum, 457

U.S. at 1004, 102 S.Ct. at 2786.

"[T]he history, structure, organization and public duty

of volunteer fire companies distinguish them from any other

organization in existence in this Commonwealth today." Temple v.

Milmont Fire Co., 525 A.2d 848, 851 (Pa. Commw. Ct. 1987), appeal

denied, 533 A.2d 95 (Pa. 1987); Scrima v. Swissvale Area

Emergency Serv., 599 A.2d 301, 303 (Pa. Commw. Ct. 1991)

(distinguishing volunteer fire companies from volunteer ambulance

associations, which only "provide an important service to the

community"). One court has explained the intertwining of the

state and volunteer fire companies in detail:
Numerous legislative enactments . . .
interweave the functioning of the government
and the fire company. Several statutes
provide the fire company with particular
benefits and powers: volunteer firefighters
may become special fire police with full
power to regulate traffic, control crowds and
exercise all other police powers necessary to
facilitate the fire company's work at a fire
or any other emergency; volunteer fire
associations are exempt from vehicle title
and registration fees; and fire companies are
eligible for low interest state loans in
order to purchase equipment. Other statutes
also recognize the intimate relationship
between a volunteer fire company and
governmental entities: the borough is liable
for the negligent operation of equipment by a
volunteer firefighter responding to an
emergency; an employer may not terminate a
volunteer firefighter for missing work while
responding to a fire call; firefighters are
government employees under the workmen's
compensation act; firefighter relief
 associations are entitled to receive a two
percent tax on all foreign fire insurance
premiums; the borough may make regulations
for fire safety and may make appropriations
to fire companies; the state may regulate
relief companies; and the fire station is
exempt from property taxes.

Harmony Volunteer Fire Co., 459 A.2d at 443. Moreover,

Pennsylvania law prohibits municipalities from replacing

volunteer fire companies by paid companies "except by a majority

vote in a local referendum." Temple, 525 A.2d at 851-52. Its

agreement with the Borough provides Enterprise with still more

financial benefits. Under it, "[t]he Borough agrees to provide

[Enterprise] sufficient funds for its operation and capital

expenditures by the imposition of a fire tax." Agreement at app.

169. By using funds obtained by the fire tax, the Borough may

purchase equipment or property for Enterprise, and Enterprise

will keep its equipment and facilities in good repair. Id. at

170-71. Further still, the Borough agrees to "maintain insurance

for [Enterprise] as regards to personal injury or property damage

from its general operating funds." Id. at 171.

In exchange for taking over the municipality's public

duty, Enterprise is designated as the "duly appointed Fire

Company to service the Borough of Hatboro." Agreement at app.

170. Enterprise must "prepare and submit an annual budget to

Borough Council," which the Borough Council then decides whether

or not to approve. The agreement further requires the Fire Chief

to attend meetings of the Borough Council and to "[p]rovide a

written report to Borough Council at the first regular council or
committee meeting of each calendar month as to the Company's

current status relating to operations within the Borough." And,

directly pertinent to Mark's allegations of insufficient

screening and training, "[t]he fire chief and president of

[Enterprise] shall . . . [a]ssure that the operation of

[Enterprise's] personnel and equipment meets satisfactory

standards for fire prevention and control." Agreement at app.

172. Finally, we note that the individual act alleged to be

wrongful -- the method of electing firefighters -- is directly

related to the state-created duty to provide fire protection in

the first place. See Blum, 457 U.S. at 1007-08 & n.17, 102 S.Ct.

at 2787 & n.17.

It is apparent, then, that the Borough and Enterprise

are intertwined to a great extent, that Enterprise depends in

large part on the municipality for funding, and that through the

granting of benefits and the appointing of Enterprise as a "duly

appointed fire company," the Borough actively encourages it to

perform a municipal duty. In the circumstances, we hold that

Enterprise is a state actor for purposes of this case.

B. Was Mark deprived of a constitutional right?

The fact that Enterprise is a state actor does not end

our inquiry. In order to prove a section 1983 claim, a plaintiff

must show that he or she was deprived of a constitutional right.

Mark bases his theory of liability against both defendants on

Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018
(1978), and later cases building on Monell, holding that a
municipal entity may be liable when its policymakers made a

deliberate choice from among various alternatives to follow a

particular course of action, where the policy reflected

deliberate indifference to the constitutional rights of the

municipality's inhabitants, and where the policy was the moving

force behind a constitutional violation. Mark further predicates

his claim that there was a constitutional violation on the "state

created danger theory," which, in turn, derives from language

used in the Supreme Court opinion of DeShaney v. Winnebago County

Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998 (1989). The

defendants contend that under several cases decided after Monell,

including DeShaney, Mark's claim must be dismissed.

In Monell, the Supreme Court held that "when execution

of a government's policy or custom, whether by its lawmakers or

by those whose edicts or acts may be fairly said to represent

official policy, inflicts the injury then the government as an

entity is responsible under § 1983." 436 U.S. at 694, 98 S.Ct.

at 2037-38. Post-Monell cases often have reflected confusion

with the actual standard governing the imposition of liability,

but two subsequent Supreme Court cases have delineated those

situations more clearly. In City of Canton v. Harris, 489 U.S.
378, 388, 109 S.Ct. 1197, 1204 (1989), the Court held that "the

inadequacy of police training may serve as the basis for § 1983

liability . . . where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come

into contact." In that case, however, the Court "assume[d] that

respondent's constitutional right . . . was denied by city
employees," id. at 389 n.8, 109 S.Ct. 1205 n.8, and went on to

assess whether the failure to train ever could give rise to

municipal responsibility. Thus, the case cannot be read to stand

for the proposition that a policy evincing willful disregard,

though not causing a constitutional violation, can be the basis

for section 1983 liability. In short, City of Canton dealt with

responsibility for an assumed constitutional violation.

In Collins v. City of Harker Heights, 503 U.S. 115, 112

S.Ct. 1061 (1992), the Court clarified still further the issue of

when a municipality may be liable. In that case, the plaintiff's

decedent, a city employee, died of asphyxia after entering a

manhole. The plaintiff claimed that her decedent "had a

constitutional right to be free from unreasonable risks of harm

to his body, mind and emotions and a constitutional right to be

protected from the City of Harker Heights' custom and policy of

deliberate indifference toward the safety of its employees." Id.

at ____, 112 S.Ct. at 1064. The Court this time assumed that the

municipality was responsible for the injury and asked whether the

injury was of constitutional proportions. Thus, it reversed its

focus from that in City of Canton. In so doing, it inquired

into: (1) whether "the Due Process Clause supports petitioner's

claim that the governmental employer's duty to provide its

employees with a safe working environment is a substantive

component of the Due Process Clause," id. at ____, 112 S.Ct. at

1069; and (2) whether "the city's alleged failure to train its

employees, or to warn them about known risks of harm, was an

omission that can properly be characterized as arbitrary, or
conscience-shocking, in a constitutional sense." Id. at ____,

112 S.Ct. at 1070. Reasoning that there was no affirmative

constitutional duty, and that the city's actions were not

conscience-shocking or arbitrary, a unanimous Court held that

there could be no section 1983 liability. It did not matter

whether a policy enacted with deliberate indifference to city

employees caused the injury, because the injury could not be

characterized as constitutional in scope.

Thus, Collins made clear that in a Monell case, the

"proper analysis requires us to separate two different issues

when a § 1983 claim is asserted against a municipality: (1)

whether plaintiff's harm was caused by a constitutional

violation, and if so, (2) whether the city is responsible for

that violation." Id. at ____, 112 S.Ct. at 1066; see also

Searles v. Southeastern Pa. Transp. Auth., 990 F.2d 789, 791 (3d

Cir. 1993) (quoting Collins).

Against this backdrop, we first address whether Mark

can demonstrate that a constitutional injury was inflicted upon

him. He claims that the defendants directly caused the harm by

creating the danger; in other words, he argues that "by cloaking

Marley with state authority to set fires, Defendants prompted him

to set fires he otherwise would not have set." Reply Br. at 4

(citing Complaint). The defendants respond by characterizing the

alleged constitutional violation as a failure to protect Mark

from the risk of arson committed by private citizens. They then

argue that Collins and DeShaney foreclose Mark's theory of
constitutional injury. We turn to DeShaney now.
 In the Supreme Court's own words, the facts of DeShaney

were "undeniably tragic": Although a Winnebago County Department

of Social Services caseworker knew of a number of suspicious

injuries to Joshua DeShaney, which strongly indicated that a

member of the child's household was severely physically abusing

him, the caseworker nonetheless took no action to protect the

child. Soon thereafter, the child's father "beat 4-year-old

Joshua so severely that he fell into a life-threatening coma

[after which] he suffered brain damage so severe that he is

expected to spend the rest of his life confined to an institution

for the profoundly retarded." DeShaney, 489 U.S. at 193, 109

S.Ct. at 1001-02. Nevertheless the Court unequivocally held that

states generally are under no affirmative duty to protect

citizens from torts committed by private individuals. The Court

explained:
The [Due Process] Clause is phrased as a
limitation on the State's power to act, not
as a guarantee of certain minimal levels of
safety and security. It forbids the State
itself to deprive individuals of life,
liberty, or property without 'due process of
law,' but its language cannot fairly be
extended to impose an affirmative obligation
on the State to ensure that those interests
do not come to harm through other means.

DeShaney, id. at 195, 109 S.Ct. at 1003. The Court held that no

constitutional right had been violated because, absent a special

relationship, "a State's failure to protect an individual against

private violence simply does not constitute a violation of the

Due Process Clause." DeShaney, id. at 197, 109 S.Ct. at 1004.

There is a special relationship only in those limited
circumstances where the plaintiff is essentially in the

defendant's custody. Thus, the Due Process Clause "requires the

State to provide adequate medical care to incarcerated

prisoners," who are unable to procure such care for themselves.

DeShaney, id. at 198, 109 S.Ct. at 1005 (citing Estelle v.

Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91 (1976)).

Similarly, states must "provide involuntarily committed mental

patients with such services as are necessary to ensure their

'reasonable safety' from themselves and others." Id. at 199, 109

S.Ct. at 1005 (citing Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct.

2452 (1982)). See also Collins (state had no constitutional duty

to protect employee from foreseeable risks at work); Searles v.

Southeastern Pa. Transp. Auth., 990 F.2d at 792 (the Constitution

"'[does not] impose[] a duty on SEPTA [, a passenger train line,]

to provide a safe passenger environment.'" (quoting Searles v.

Southeastern Pa. Transp. Auth., Civil Action Nos. 91-6687 & 92-

1065, 1992 WL 150701, at *4 (E.D. Pa. June 19, 1992)).

As a preliminary matter, we reject Mark's attempt to

distinguish DeShaney by contending that Marley was a state actor

when he committed the arson. Marley, the underlying active

tortfeasor, acted in a purely private capacity when he committed

the arson. It is well settled that an otherwise private tort is

not committed under color of law simply because the tortfeasor is

an employee of the state. Rather, in order for the tortfeasor to

be acting under color of state law, his act must entail "[m]isuse

of power, possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state
law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct.

1031, 1043 (1941); Barna v. City of Perth Amboy, 42 F.3d 809,

815-16 (3d Cir. 1994). "[U]nder color of law means under

'pretense' of law. Thus, acts of officers in the ambit of their

personal pursuits are plainly excluded. Acts of officers who

undertake to perform their official duties are included whether

they hew to the line of their authority or overstep it." Screws

v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040 (1945)

(plurality opinion). See Barna, 42 F.3d at 815-16; Navarro v.

Otero de Ramos, 797 F. Supp. 87, 90 (D.P.R. 1992). But even

"acts committed by a police officer . . . while on duty and in

uniform are not under color of state law unless they are in some

way 'related to the performance of police duties.'" Briscoe v.

LaHue, 663 F.2d 713, 721 n.4. (7th Cir. 1981) (quoting Johnson v.

Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968)), aff'd, 460 U.S.

325, 103 S.Ct. 1108 (1983). As the Court of Appeals for the

Second Circuit has explained, if a person's actions "were not

'committed in the performance of any actual or pretended duty,'"

the actions were not committed under color of law. Bonsignore v.
City of New York, 683 F.2d 635, 639 (2d Cir. 1982) (quoting

Johnson v. Hackett, 284 F. Supp. at 937). See, generally, Barna

42 F.3d at 815-17.

On this point, this case is not even close, unlike, for

example, cases in which police officers moonlight as security

guards and dress in their police uniforms. See D.T. by M.T. v.
Independent Sch. Dist. No. 16, 894 F.2d 1176, 1190-91 (10th Cir.

1990) (collecting cases), cert. denied, 498 U.S. 879, 111 S.Ct.
213 (1990). Marley set a fire when his obligation was to put out

fires. He apparently did it secretly, giving no one the

impression that he was acting on behalf of Enterprise. While

Mark contends that Marley lit the fire so that he could put it

out, he points to no evidence in the record directly supporting

that proposition. Moreover, even if the allegation is true, it

is not relevant in the circumstances here, as Mark does not

contend that the officers or indeed anyone else from Enterprise

knew that Marley intended to start the fire. Marley clearly was

pursuing his own goals and was not in any way subject to control

by Enterprise when he started the fire. Furthermore, it would be

bizarre to hold that inasmuch as Enterprise was in the "business"

of putting out fires, Marley furthered Enterprise's functions by

providing it with an opportunity to fight a fire. In this case

the defendants did not abuse their authority and Marley was a

private actor when he caused the harm. Thus, DeShaney certainly

applies, and the question becomes whether that case leaves open

the possibility of state liability when private actors commit the

underlying tort.

In this regard, it is important to recognize that in

DeShaney, the "Court's baseline [was] the absence of positive
rights in the Constitution and a concomitant suspicion of any

claim that seems to depend on such rights." DeShaney, 489 U.S.

at 204, 109 S.Ct. at 1008 (Brennan, J., dissenting). And when

the Court characterized "the DeShaneys' claim [as being] first

and foremost about inaction (the failure, here, of respondents to

take steps to protect Joshua)," id. (Brennan, J., dissenting),
the result became clear. Thus, the proposition that "a State's

failure to protect an individual against private violence simply

does not constitute a violation of the Due Process Clause," id.

at 197, 109 S.Ct. at 1004, does not necessarily preclude

liability where the harm -- though at the hands of a private

actor -- is the product of state action that legitimately can be

characterized as affirmative conduct. Indeed, the DeShaney Court

explicitly noted that under the facts of that case, "[w]hile the

State may have been aware of the dangers that Joshua faced in the

free world, it played no part in their creation, nor did it do

anything to render him any more vulnerable to them." DeShaney,

id. at 201, 109 S.Ct. at 1006.

Several courts have interpreted this language to mean

that "[w]hen state actors knowingly place a person in danger, the

due process clause of the constitution . . . render[s] them

accountable for the foreseeable injuries that result from their

conduct". Johnson v. Dallas Independent Sch. Dist., 38 F.3d 198,

199 (5th Cir. 1994); Bowers v. De Vito, 686 F.2d 616, 618 (7th

Cir. 1982) ("If the state puts a man in a position of danger from

private persons and then fails to protect him, it will not be

heard to say that its role was merely passive; it is as much an

active tortfeasor as if it had thrown him into the snake pit.").

For our part, we have yet to decide definitively

whether the state-created danger theory is a viable mechanism for

finding a constitutional injury. In D.R. by L.R. v. Middle Bucks
Area Vo. Tech. School, 972 F.2d 1364 (3d Cir. 1992) (in banc),

cert. denied, U.S. , 113 S.Ct. 1045 (1993), while we
analyzed the plaintiffs' claims under the state-created danger

theory, we consistently referred to the claim as "plaintiffs'

theory," only going so far as to acknowledge that other courts

have recognized the theory. See D.R., 972 F.2d at 1373

("Plaintiffs' counsel asserts that this [state created danger]

claim exists apart from the claim based on the compulsory

attendance law."); id. at 1375 ("We now turn to the final two

cases cited by plaintiffs to support their theory of state-

created danger.") (emphasis added). Similarly, in Brown v.

Grabowski, 922 F.2d 1097, 1114-16 (3d Cir. 1990), cert. denied,

501 U.S. 1218, 111 S.Ct. 2827 (1991), we acknowledged that other

courts of appeals had applied the state created danger theory,

but we simply distinguished those cases on the facts. Finally,

after noting in Searles v. Southeastern Pa. Trans. Auth.

plaintiff's argument that "the injury [was] directly caused by a

state actor's affirmative act in the traditional sense," we

quickly concluded that, even assuming the viability of the

theory, the facts of the case did not fall within its purview.

Searles, 990 F.2d at 793.

After undertaking a thorough review of our caselaw

touching upon the underlying constitutional violation in a

Monell/Collins case, we have found language in the cases
supporting and opposing the existence of a state-created danger

theory. Perhaps at some point we will have to harmonize our

cases. But we have not reached that day, because even assuming

that a plaintiff can state a constitutional violation based on
the state-created danger theory, there can be no liability in

this case.

The Court of Appeals for the Fifth Circuit recently

concluded that in order to prove liability under the state

created danger theory, "the environment created by the state

actors must be dangerous; they must know it to be dangerous; and

. . . they must have used their authority to create an

opportunity that would not otherwise have existed for the third

party's crime to occur. Put otherwise, the defendants must have

been at least deliberately indifferent to the plight of the

plaintiff." Johnson v. Dallas Indep. Sch. Dist., 38 F.3d at

201.12

Our review of the cases supports these observations.

For instance, in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989),

cert. denied, 498 U.S. 938, 111 S.Ct. 341 (1990), a state

trooper, after arresting the driver of a car and impounding the

car, left the driver's female passenger stranded alone in a

neighborhood with the highest aggravated crime rate in the county

at 2:30 A.M. The plaintiff was raped. The court held that the

plaintiff "has raised a genuine issue of fact tending to show

that [the trooper] acted with deliberate indifference to

[plaintiff's] interest in personal security under the fourteenth

amendment." Id. at 588. In Cornelius v. Town of Highland Lake,

880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 110

12
. In that case, the Court of Appeals declined to decide
whether such a theory is viable.
S.Ct. 1784 (1990), the state allowed a prisoner with a history of

committing violent crimes to participate in a work release

program where he had access to "axes, picks, machetes, knives and

saws," and was supervised only by an unarmed civilian member of

the community. The inmate abducted the town clerk at knife point

and held her hostage for three days, during which time he

threatened to abuse her sexually and physically and to kill her.

Id. at 350.

Cases like these have four things in common: (1) the

harm ultimately caused was foreseeable and fairly direct; (2) the

state actor acted in willful disregard for the safety of the

plaintiff; (3) there existed some relationship between the state

and the plaintiff; (4) the state actors used their authority to

create an opportunity that otherwise would not have existed for

the third party's crime to occur. Thus, in Brown v. Grabowski we

pointed out that in Wood, the plaintiff and state actors had

"more than fleeting and merely prefatory . . . contact." Brown,

922 F.2d at 1116. Similarly, Brown noted that "[i]n Cornelius,

the plaintiff introduced evidence that the defendants who

employed her exercised a control over her work environment that

arguably was sufficient to create a special, quasi-custodial

relationship between them." Brown, 922 F.2d at 1115.
Accordingly, in Brown we emphasized that cases applying the

theory focused on the fact that a relationship existed between

the state and the plaintiff, under which the state qua state

placed the plaintiff in danger of a foreseeable injury.
 The cases where the state-created danger theory was

applied were based on discrete, grossly reckless acts committed

by the state or state actors using their peculiar positions as

state actors, leaving a discrete plaintiff vulnerable to

foreseeable injury. In Wood, for example, the woman eventually

was raped, and the court held that a jury could find that the

officer, using his power as an officer, placed the plaintiff in a

situation entailing a foreseeable risk of danger. Indeed,

assuming the facts are true, it would be unfair to say that the

state actor was not responsible for the rape.

But this case is not like those cases at all. When the

alleged unlawful act is a policy directed at the public at large

-- namely a failure to protect the public by failing adequately

to screen applicants for membership in a volunteer fire company -

- the rationale behind the rule disappears -- there can be no

specific knowledge by the defendant of the particular plaintiff's

condition, and there is no relationship between the defendant and

the plaintiff. Therefore, we cannot say that an oppressive act

of the defendants, made possible by virtue of the fact that they

were acting in a public capacity, caused Mark's injury.13
13
. Nor, for the reasons discussed above, and discussed below in
our "deliberate indifference" section, can we say that
Enterprise's and the Borough's actions in failing
psychologically to screen applicants shocks the conscience and
therefore that the policy itself caused the harm. In this
regard, we note that there is some inconsistency in our circuit
as to the standard governing the underlying constitutional
violation in policy, custom or practice cases. Collins, in
assessing whether the plaintiff had established a constitutional
violation predicate to municipal liability, asked first whether
she had established a duty, and second whether the defendant's
actions shocked the conscience. In Fagan v. City of Vineland, 22
 We conclude, therefore, that Mark has failed to

demonstrate that he was deprived of a constitutional right.

Consequently, neither Enterprise nor the Borough can be liable in

this case.

C. Were defendants deliberately indifferent?

(..continued)
F.3d 1296 (3d Cir. 1994) (in banc), we interpreted Collins to
mean that in all substantive due process cases, the appropriate
constitutional test is whether the defendant's actions shock the
conscience. But in Fagan v. City of Vineland, 22 F.3d 1283 (3d
Cir. 1994) (panel opinion), in articulating the constitutional
standard for municipal liability, we said:

[I]n a substantive due process case arising
out of a police pursuit, an underlying
constitutional tort can still exist even if
no individual police officer violated the
Constitution. . . . The pursuing police
officers are liable under section 1983 if
their conduct 'shocks the conscience.' The
City is liable under section 1983 if its
policymakers, acting with deliberate
indifference, implemented a policy of
inadequate training and thereby caused the
officers to conduct the pursuit in an unsafe
manner and deprive the plaintiffs of life or
liberty.

Id. at 1292 (emphasis added) (citation omitted). Therefore, the
Fagan panel opinion appeared to hold that a plaintiff can
establish a constitutional violation predicate to a claim of
municipal liability simply by demonstrating that the
policymakers, acting with deliberate indifference, enacted an
inadequate policy that caused an injury. It appears that, by
focusing almost exclusively on the "deliberate indifference"
prong of the Collins test, the panel opinion did not apply the
first prong -- establishing an underlying constitutional
violation. At any rate, as discussed in detail in the text, we
believe that the defendants' actions and omissions not only fail
to shock the conscience, but cannot be characterized as
deliberately indifferent.
 Notwithstanding our foregoing conclusion, we will

assume that Mark was deprived of a constitutional right.

Nevertheless, we conclude that the defendants cannot be

responsible for his losses even though Mark asserts that they

were deliberately indifferent in failing to establish and impose

prudent membership screening requirements. In City of Canton v.

Harris, the Court discussed the meaning of the deliberate

indifference standard:
It may seem contrary to common sense to
assert that a municipality will actually have
a policy of not taking reasonable steps to
train its employees. But it may happen that
in light of the duties assigned to specific
officers or employees the need for more or
different training is so obvious, and the
inadequacy so likely to result in the
violation of constitutional rights, that the
policymakers of the city can reasonably be
said to have been deliberately indifferent to
the need. In that event, the failure to
provide proper training may fairly be said to
represent a policy for which the city is
responsible, and for which the city may be
held liable if it actually causes injury.

489 U.S. at 390, 109 S.Ct. at 1205. As an example, the Court

noted that it may be obvious that when the city has armed its

police officers with firearms, and the city knows the officers

will be required to arrest fleeing felons, "the need to train

officers in the constitutional limitations on the use of deadly

force can be said to be 'so obvious,' that failure to do so could

properly be characterized as 'deliberate indifference' to

constitutional rights." Id. at n.10.
 Mark's evidence that the defendants' failure to screen

applicants psychologically for tendencies toward arson amounts to

deliberate indifference consists of the following: Joseph

Reading of Enterprise and others representing Enterprise and the

Borough, testified that arsonists pose a greater danger to the

community when members of fire departments, see app. 417, and

that in recent years there have been a number of instances in

which volunteer firemen, though not members of Enterprise, set

fires. App. 447. Mark also includes a series of expert reports

tending to show that Marley exhibited a "thrill seeking"

personality and a history of alcohol and drug abuse and that

therefore he should not have been made a member of the fire

department. According to Mark's evidence, Marley appeared

visibly drunk at fires. Third, Mark has attached a series of

newspaper articles demonstrating the risk of volunteer

firefighters committing fires. Finally, Mark submitted a report

from George E. Friedell, Deputy Chief (Retired) of the New York

City Fire Department and Assistant Professor of Fire Science at

City University of New York, stating that "physical and mental

capabilities of applicants and members should be tested at levels

commensurate with the duties of a fire fighter." App. 993. The

report points out that "[i]t is well known that certain arsonists

set fires either for the thrill of watching the fire or the

thrill of participating in extinguishing the fire." Id.

Moreover, "[i]t is well known that virtually all professional and

many volunteer fire companies have adopted a policy of doing

psychological testing and background investigation of applicants
and of members suspected of having problems and that, where such

testing is performed, arson fires by fire fighters have been

reduced essentially to zero." Id. at 995.

But the report provides no statistical evidence that

psychological testing substantially has reduced such arsons.

Consequently, we are asked to take Friedell's word for it. In

any event, even if we do so, Enterprise did have a screening

procedure -- the state police performed a background check on

each applicant at Enterprise's expense. And, prior to the Marley

fire, Enterprise's firefighters had not committed a single arson

in the past 100 years.14 Thus, any allegation that the need for

psychological screening was "obvious" would have to measure the

extent to which psychological screening provides a better

benchmark for discovering potential arsonists than the police

background check Enterprise already employed. We cannot say on

the record before us that psychological testing provides such a

better method of screening that a failure to use it can be held

to evince deliberate indifference to members of the community.

14
. While a "policy which ordered or authorized an
unconstitutional act can be established by a single decision by
proper municipal policymakers", see Pembaur v. City of
Cincinnati, 475 U.S. 469, 482 n.11, 106 S.Ct. 1292, 1300 n.11
(1986), the fact that only a single unconstitutional act is
alleged can support a conclusion that the act was not caused by a
policy, see id. (citing Tuttle, 471 U.S. at 823-24, 105 S.Ct. at
2436), or that the need for heightened training or screening was
not obvious. City of Canton, 489 U.S. at 390 n.10, 109 S.Ct. at
1205 n.10 ("It could also be that the police, in exercising their
discretion, so often violate constitutional rights that the need
for further training must have been plainly obvious to the city
policymakers, who, nevertheless, are 'deliberately indifferent'
to the need.").
 In reaching our conclusions, we accept the proposition

that psychological screening would tell more about a person's

background than a state police background check -- including

characteristics that are compatible with the characteristics of

arsonists. Yet such screening in itself can lead to difficulties

as it may exclude too many people and perhaps be constitutionally

deficient in that way. Thus, if we held that Mark could survive

the motions for summary judgment because at trial the trier of

the fact might conclude that there should have been psychological

screening, we effectively might be requiring volunteer fire

companies to initiate a process which in other cases will expose

it to liability by reason of having excluded an applicant from

membership. In this regard, we point out that we have held that

Enterprise is a public actor.

Moreover, an overbroad screening process, even if not

leading to lawsuits by excluding applicants, could infringe on

their privacy rights. In fact, Reading testified that Enterprise

stopped having a background check performed by local police

because "the right to privacy came in . . . ." App. 412. Cf.

DeShaney, 489 U.S. at 203, 109 S.Ct. at 1007 ("In defense of [the
county workers] it must also be said that had they moved too soon

to take custody of the son away from the father, they would

likely have been met with charges of improperly intruding into

the parent-child relationship."). The totality of these

circumstances establishes that the record cannot support a

conclusion that Enterprise was deliberately indifferent with
respect to screening applicants. The most that can be said is

that in some persons' views there was a better way to screen.15

IV. CONCLUSION

Based on the foregoing, we conclude that (1) Enterprise

is a state actor; (2) there was no underlying constitutional

violation in this case for which the defendants can be held

responsible; (3) even if liability could attach, it may not be

imposed in this case because the defendants did not enact a

policy evincing willful disregard or deliberate indifference to

plaintiff's rights. Therefore, for all the reasons detailed

above, we will affirm the order for summary judgment of June 30,

1994.

15
. We hasten to add that we are not holding that screening is
necessary, as that issue is not before us since Enterprise did
screen applicants.
Mark v. Hatboro, No. 94-1722

Greenberg, Circuit Judge, concurring.

I write separately in this case because I believe

Edmonson should be read to alter the interpretive landscape for

all state action inquiries into whether a private actor should be

considered a state actor for a particular action or course of

conduct. I believe that the discrete test approach did not

survive Edmonson.

I.

As the majority opinion notes, the Edmonson Court

described the state action doctrine as follows:
Our precedents establish that, in determining
whether a particular action or course of
conduct is governmental in character, it is
relevant to examine the following: the
extent to which the actor relies on
governmental assistance and benefits, see
Tulsa Professional Collection Services, Inc.
v. Pope, 485 U.S. 478, 108 S.Ct. 1340 (1988);
Burton v. Wilmington Parking Authority, 365
U.S. 715, 81 S.Ct. 856 (1961); whether the
actor is performing a traditional
governmental function, see Terry v. Adams,
345 U.S. 461, 73 S.Ct. 809 (1953); Marsh v.
Alabama, 326 U.S. 501, 66 S.Ct. 276 (1946);
cf. San Francisco Arts & Athletics, Inc. v.
United States Olympic Committee, 483 U.S.
522, 544-45, 107 S.Ct. 2971, 2985-86 (1987);
and whether the injury caused is aggravated
in a unique way by the incidents of
governmental authority, see Shelley v.
Kraemer, 334 U.S. 1, 68 S.Ct. 836 (1948).

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621-22, 111

S.Ct. 2077, 2083 (1991). Yet the majority concludes that this

language applies only to one of the discrete state action

inquiries, and assumes that the entire panoply of discrete tests
survived Edmonson. I recognize that a number of courts have,

like the district court and majority opinion in this case,

continued to apply the discrete test approach. See, e.g., United

Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th

Cir. 1995); Sherman v. Community Consolidated Sch. Dist., 8 F.3d

1160, 1168-69 (7th Cir. 1993); Haavistola v. Community Fire Co.,

6 F.3d 211, 215 (4th Cir. 1993); Yeager v. City of McGregor, 980

F.2d 337, 339-40 (5th Cir.), cert. denied, ____ U.S. ____, 114

S.Ct. 79 (1993); Moore v. Wyoming Medical Center, 825 F. Supp.

1531, 1540 (D. Wyo. 1993). And because prior precedents of this

Court similarly have ruled, I wrote the majority opinion that

way. Groman v. Township of Manalapan, No. 94-5200 (3d Cir. Feb.

16, 1995).

But I believe that interpretation is wrong. In the

first place, as the Supreme Court itself has pointed out, it

never has been clear "[w]hether these different tests are

actually different in operation or simply different ways of

characterizing the necessarily fact-bound inquiry that confronts

the Court in [each] situation". Lugar v. Edmondson Oil Co., 457

U.S. 922, 939, 102 S.Ct. 2744, 2755 (1982). Thus, to say that

there are no discrete tests is not saying anything new or

radical. And, as is apparent by the description and application

of the various scenarios in the majority opinion, utilization of

the discrete test approach has created nothing short of an

analytical muddle. For one thing, the discrete tests collapse
into each other and overlap significantly. See 2 Ronald D.

Rotunda & John E. Nowak, Treatise on Constitutional Law § 16.4 at

554-55 (2d ed. 1992). Moreover, "[u]nfortunately, [the Supreme

Court] cases deciding when private action might be deemed that of

the state have not been a model of consistency." Edmonson, 500

U.S. at 632, 111 S.Ct. at 2089 (O'Connor, J. dissenting) and

therefore it is unclear when and whether to apply particular

tests. See also Lebron v. National R.R. Passenger Corp., 115

S.Ct. 961, 964 (1995) (quoting Justice O'Connor). Further still,

what is the use of having a strict "exclusive government function

test" if an action otherwise deemed private under that test can

become public under the "symbiotic relationship" test. Finally,

the discrete test approach forced courts into pursuits of the

viability of one or another test, rather than into an inquiry of

whether under the facts of a particular case, there had been

"state action." See, e.g., Majority Typescript at 14 n.6

(discussing question of whether symbiotic relationship test

remains viable).

In my view, Edmonson provided a way out of the muddle,

and we should take it. Rather than stating a series of discrete

tests and applying them separately to determine whether each by

itself is satisfied, the Court considered a number of factors,

and weighed them to determine whether, all things considered, the

otherwise private actor fairly could be deemed to be a state

actor. Under that new framework, courts should consider the
principles furthered by the previous tests as part of a single

balancing and weighing approach. And it should apply to all

cases involving the question of whether a private actor is

engaged in state action.

The state action confusion certainly stemmed in part

from the fact that the Court created what appeared to be discrete

tests but then utilized them to address particular factual

scenarios. See Burton v. Wilmington Parking Auth., 365 U.S. 715,

722, 81 S.Ct. 856, 860 (1961) (courts must determine whether

there is state action by "sifting facts and weighing

circumstances"). Thus, the courts applied the different

formulations on an ad-hoc basis to determine whether a party is

attempting to hold the state or entity liable based on private

actions "for which they cannot fairly be blamed." Lugar, 457

U.S. at 936-37, 102 S.Ct. at 2753. I believe the Edmonson

language takes us full circle back to those principles and

provides us a way out of the muddle by mandating that we apply a

different -- and better and more flexible -- framework than the

prior cases.

II.

Edmonson's discussion of the public function test
further supports my conclusion that it set forth a new framework

for deciding state-action issues. As noted above, prior to

Edmonson, in order to constitute state action under the public
function test, the action had to be traditionally within the

exclusive prerogative of the state. But in Edmonson, the Court

inquired only whether "the action in question involves the

performance of a traditional function of the government."

Edmonson, id. at 624, 111 S.Ct. at 2085. It appears that the

Court intentionally deleted the exclusivity requirement for

Justice O'Connor's dissent suggested that the majority had

"misstated the law" by holding that "state action may be imputed

to one who carries out a 'traditional governmental function.'"

Id. at 639, 111 S.Ct. at 2093 (O'Connor, J., dissenting). The

dissent continued: "In order to constitute state action under

[the public function] doctrine, private conduct must not only

comprise something that the government traditionally does, but

something that only the government traditionally does." Id. at

640, 111 S.Ct. at 2093 (O'Connor, J. dissenting). In other words,

Edmonson seems consciously to have eliminated the "exclusivity"

requirement from the public function inquiry.16 See also

McKeesport Hospital v. Accreditation Council for Graduate Medical

Ed., 24 F.3d 519, 528 (3d Cir. 1994) (Becker, J., concurring in

16
. Judge Sarokin concurs that in Edmonson the Supreme Court
deleted the "exclusivity" requirement from the public function
inquiry. He concludes, however, in accordance with this
concurring opinion that we are bound by the contrary holdings in
Black, McKeesport, and Groman. See concurring opinion typescript
at 2.
judgment) ("Edmonson . . . seemed to eliminate the 'exclusivity'

requirement of the public function test for state action.").17

17
. The Court of Appeals for the Fourth Circuit, in analyzing
the effect of Edmonson, held that "exclusivity" still is part of
the public function test. It reasoned as follows:

[W]e do not believe the Supreme Court would
have attempted to change radically the
government function standard set forth in
Jackson, 419 U.S. at 353, and thereafter
applied consistently in Flagg Bros., 436 U.S.
at 157-58, Rendell-Baker, 457 U.S. at 842,
Blum v. Yaretsky, 457 U.S. 991, 1005, 1011-12
(1982), [San Francisco Arts & Athletics v.
United States Olympic Comm., 483 U.S. 522,
544-45 (1987)], and NCAA v. Tarkanian, 488
U.S. 179, 197-98 n.18 (1988), through the
transparent puerilism of simple omission. If
it had intended to change the law in this
respect, we believe it would have said so
explicitly. Moreover, the ultimate reasoning
of the Court in Edmonson was that juror
selection was traditionally an exclusive
governmental function. See, e.g., Edmonson,
500 U.S. at 627 ("The selection of jurors
represents a unique governmental function
delegated to private litigants by the
government and attributable to the government
. . . ." (emphasis added)).

United Auto Workers, 43 F.3d at 906 n.2. While the United Auto
Workers court's point is well taken, its rationale is based on a
premise I reject -- that the public function test necessarily
remains, in and of itself, a method of imposing state actor
status. As discussed in the text, infra, I agree that the
Supreme Court would not simultaneously have retained the public
function test yet deleted the exclusivity requirement. That
would be a breathtaking expansion of the state action doctrine.
But it does make sense to delete the "exclusivity" requirement
and use the public function concept as part of a broader state
action inquiry. Thus, in my reading of Edmonson, it does not
constitute such a radical change in the law that an explicit
statement that "we abandon the exclusivity requirement" is
required. After all, other than exclusivity, all the other
 But, if Justice O'Connor's conclusion was correct --

that under the majority's analysis state action could be found

simply from the fact that the challenged action occurred within a

"traditional government function," the Court would have widened

significantly the category of "public functions." After all,

"many functions have been traditionally performed by

governments." Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 158, 98

S.Ct. 1729, 1734 (1978). Yet, if the three-test approach, under

which satisfaction of one of the discrete tests is enough, is the

only approach after Edmonson, then the Court in Edmonson would in

fact have expanded greatly the circumstances in which there had

been state action and the possibility of section 1983 liability.

I doubt that the Court intended that result and thus Edmonson is

best understood if it is recognized that an inquiry into whether

a private party performs a public function merely is one

important factor to consider in determining whether state action

exists.18
(..continued)
components of the public function test delineated in the prior
caselaw, such as that "receipt of public funds and the
performance of a function serving the public alone are not enough
to make a private entity a state actor," see Groman v. Township
of Manalapan, No. 94-5200, slip op. at 21 (3d Cir. Feb. 16,
1995), remain part of the test.
18
. It is true, as the Court of Appeals for the Fourth Circuit
recently pointed out, that in Edmonson, the Supreme Court
described jury selection as a unique governmental function.
United Auto Workers, 43 F.3d at 906 n.2. But if "unique" is to
be equated with "exclusive" under the discrete test approach, the
Court could have stopped at that point. It did not; rather, the
Court went on to consider other factors as well.
 In my reading, then, the three tests no longer (if they

ever did) constitute discrete, dispositive tests to the exclusion

of a broader approach. Instead, a court should consider the

principles embodied in those tests in determining whether it is

fair to find state action in a particular case. Thus, the fact

that the action constituted a traditional governmental function,

while certainly relevant, does not in itself necessarily mean

there has been state action. Rather, a court generally should go

on to consider other relevant factors.