Jarvis v. Village Gun Shop, Inc.

United States Court of Appeals
For the First Circuit

No. 14-2249

RUSSELL JARVIS, JAMES JARVIS, ROBERT CRAMPTON, and
COMMONWEALTH SECOND AMENDMENT, INC.,

Plaintiffs, Appellants,

v.

VILLAGE GUN SHOP, INC., D/B/A VILLAGE VAULT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]
[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Barron, Selya and Lipez,
Circuit Judges.

David D. Jensen, with whom David Jensen PLLC, Patrick M.
Groulx, and Grollman, LLP were on brief, for appellants.
Mark I. Zarrow, with whom Lian, Zarrow was on brief, for
appellee.
David R. Marks, Assistant Attorney General, with whom Maura
Healey, Attorney General, was on brief, for Commonwealth of
Massachusetts and Executive Office of Public Safety and Security,
amici curiae.

October 30, 2015
 SELYA, Circuit Judge. There are circumstances in which

the actions of private parties become so entangled with the actions

of public entities that the former may become liable as state

actors under 42 U.S.C. § 1983. But the line that separates private

action from state action is sometimes difficult to plot. This

case, which involves the actions of a privately owned storage

facility with respect to firearms confiscated by Massachusetts

police officers, illustrates the point.

The district court, ruling at the summary judgment

stage, concluded that the storage facility that was sued here was

not a state actor and, accordingly, entered summary judgment in

its favor. After careful consideration, we affirm.

I. THE STATUTORY SCHEME

We begin our odyssey with a sketch of the key elements

of the Massachusetts statutory scheme for firearms ownership.

In Massachusetts, an individual who wishes to own or

possess a firearm in his residence or place of business must obtain

a Firearms Identification (FID) card. See Mass. Gen. Laws ch.

140, §§ 129B, 129C; Com. v. Gouse, 965 N.E.2d 774, 785 n.14 (Mass.

2012). Under certain defined circumstances, an FID card may be

denied, suspended, or revoked. See Mass. Gen. Laws ch. 140,

§§ 129B, 131(d), (f), (i). Pertinently, Massachusetts law provides

that if a court issues an abuse prevention order against a person

who presents "a substantial likelihood of immediate danger of

- 2 -
abuse," the court must order that person to surrender all of his

firearms and his FID card (as well as any other firearms license).

Mass. Gen. Laws ch. 209A, § 3B. One who has surrendered his

firearms pursuant to an abuse prevention order yet wishes to

challenge the suspension or revocation of his FID card or license,

may petition the ordering court for relief — and a hearing must be

held within 10 days. See id.

An FID card will expire if the holder does not renew it

within the time fixed by law. See Mass. Gen. Laws ch. 140,

§ 129B(9). If an FID card expires, law enforcement officials are

authorized to confiscate both the expired card and any firearms

possessed by the former cardholder. See id. § 129B(12). The

holder may at any time take steps to renew his card and reclaim

his property.

The surrender of firearms pursuant to this statutory

scheme does not terminate a gun owner's ownership rights. After

such a surrender has occurred, the gun owner may arrange for the

firearms to be transferred or sold to any person with a valid FID

card or other firearms license within one year after the date of

surrender. See id. § 129D. The police cannot dispose of the

confiscated firearms for one year, but they are not required to

maintain custody of the firearms for that length of time. Rather,

the police "may transfer possession of such weapon[s] for storage

purposes to a federally and state licensed dealer of such weapons

- 3 -
and ammunition who operates a bonded warehouse . . . that is

equipped with a safe for the secure storage of firearms . . . ."

Id. The statutory scheme therefore puts gun owners on constructive

notice that if they do not take action with respect to their

confiscated firearms, the police have a right to transfer those

firearms for storage.1

Once a licensed dealer takes possession of confiscated

firearms and any associated property, the dealer must inspect the

firearms, furnish the owner with a detailed inventory, and store

the items as specified by the statute. The gun owner becomes

liable for all "reasonable storage charges," but he may at any

time avoid the continuing accrual of such charges by selling or

transferring the firearms to a person with a valid FID card or

other firearms license. Id. If the owner does not either reclaim

the confiscated firearms or arrange for a permitted transfer of

them and then fails to pay the accumulated storage charges for a

period of no less than 90 days, the dealer is authorized to auction

the property in order to recoup its fees. See id. So, too, if

one year has elapsed and the owner still has not either reclaimed

1 While we need not — and do not — reach the due process
issue, it is well-established that such statutory notice is
sufficient to put gun owners on notice of the possibility that
their guns may be transferred. See, e.g., City of W. Covina v.
Perkins, 525 U.S. 234, 241 (1999); Gun Owners' Action League, Inc.
v. Swift, 284 F.3d 198, 207 (1st Cir. 2002); United States v.
DeBartolo, 482 F.2d 312, 316 (1st Cir. 1973).
- 4 -
or transferred his confiscated property, the dealer may sell the

property at public auction and defray all accumulated storage

charges out of the proceeds. See id. Any surplus proceeds will

be remitted to the owner.2 See id.

II. FACTUAL BACKGROUND

With this foundation in place, we turn to the case at

hand. There are three groups of plaintiffs here: we rehearse their

facts and circumstances separately.

A. James and Russell Jarvis.

Plaintiff James Jarvis is a gun owner residing in

Cheshire, Massachusetts. In the early morning hours of July 9,

2010, Massachusetts State Police troopers arrested him for

domestic assault and battery. His wife proceeded to obtain an ex

parte temporary abuse protection order. Based on this order and

in pursuance of state law, see Mass. Gen. Laws ch. 209A, § 3B, the

state police confiscated all firearms and ammunition found in James

Jarvis's home. The confiscated property included firearms owned

by not only James Jarvis himself but also his son (James Jarvis,

Jr.) and his father (Russell Jarvis).

2
A similar regime is in effect for cases in which the police
choose to retain custody of the confiscated property rather than
transferring it to an authorized storage facility. See Mass. Gen.
Laws ch. 140, § 129D. If the police sell the property at public
auction, the proceeds are remitted to the state treasurer. Id.
- 5 -
 That same morning, James Jarvis and his wife appeared in

court. A state judge extended the protection order until August

9, 2010, and it was thereafter extended to August 2, 2011.

James Jarvis moved into his parents' residence in Adams,

Massachusetts, where he remained for two years. As long as the

order of protection was still velivolant, the state police could

not lawfully return his firearms to him. Moreover, his presence

in his parents' home inhibited the ability of the police to return

Russell Jarvis's firearms (and at any rate, Russell Jarvis did not

himself possess a valid FID card or other firearms license at that

time).

On August 11, 2010 — over a month after the firearms had

been taken from James Jarvis's home3 — the state police transferred

custody of the confiscated firearms to defendant Village Gun Shop,

Inc., doing business as "Village Vault" (the Gun Shop). As part

of its business, the Gun Shop operates a bonded warehouse for the

secure storage of firearms and ammunition. See Mass. Gen. Laws

ch. 140, § 129D. The Gun Shop inventoried the confiscated property

and, in a letter to James Jarvis dated that same day, laid out its

3 We note that the statute, on its face, permits an immediate
transfer of property from the police to a private storage facility.
Because the police waited for a month or more before transferring
the weapons confiscated from the Jarvis and Crampton residences,
we take no view as to how (if at all) such an immediate transfer
might impact our analysis.
- 6 -
storage terms (including fees and costs). The letter, to which a

formal inventory was attached, explained James Jarvis's options

for exercising dominion over his firearms, noting that he could

"at any time transfer or sell [his] firearms to a firearms dealer

or a properly licensed individual." The inventory included Russell

Jarvis's firearms; and even though the Gun Shop did not send a

separate letter to Russell Jarvis, he has acknowledged that he saw

the Gun Shop's letter and was generally aware that the police had

transferred his property (along with his son's) to the Gun Shop.

On September 11, 2010, the Gun Shop sent James Jarvis

its initial invoice. This invoice listed out the accumulated

storage charges, the administrative fee, and the handling fee.

When over 9 months elapsed without payment, the Gun Shop sold the

confiscated firearms and associated property at public auction.

B. Robert Crampton.

Plaintiff Robert Crampton is a gun owner domiciled in

Tewksbury, Massachusetts. In the spring of 2010, Crampton reported

a burglary at his home, and the local police discovered that

Crampton owned several firearms for which he did not possess a

valid license. In point of fact, Crampton's FID card had expired

decades earlier. On June 2, 2010, the police confiscated

Crampton's guns and associated paraphernalia and explained to him

that he needed to acquire a new FID card.

- 7 -
 Crampton did nothing, and on November 15, 2010 — over

five months after the firearms had been taken from his home — the

police transferred the guns to the Gun Shop for storage. That

same day, the Gun Shop wrote to Crampton, furnishing him with an

inventory and delineating the sundry charges that he would be

incurring. When arrearages mounted and Crampton failed to pay

them for a period of more than 90 days, the Gun Shop sold his

firearms at public auction.

C. Commonwealth Second Amendment, Inc.

Plaintiff Commonwealth Second Amendment, Inc. (CSA) is

a non-profit corporation, which has a stated purpose of "education,

research, publishing and legal action focusing on the

constitutional right to privately own and possess firearms." CSA

asserts that it "expends significant resources assisting those

people whose firearms are held by bonded warehouses under the

authority of [Massachusetts law]." It does not allege that any

firearms owned by it have been either confiscated or auctioned.

III. TRAVEL OF THE CASE

In 2012, James Jarvis, Russell Jarvis, Robert Crampton,

and CSA brought suit in the United States District Court for the

District of Massachusetts against the Gun Shop and Mary E.

Heffernan, in her official capacity as Secretary of the Executive

Office of Public Safety and Security. The plaintiffs sought relief

under 42 U.S.C. § 1983, maintaining that they had been deprived of

- 8 -
their Fourteenth Amendment right to due process. Specifically,

they alleged that they were forced to pay storage charges and were

permanently deprived of their property (the firearms) without

proper notice and opportunity to be heard. Both the Gun Shop and

Heffernan denied any constitutional breach.

In due course, the plaintiffs moved for partial summary

judgment against the Gun Shop. They sought a ruling that the Gun

Shop was a state actor, which could be held liable for damages

under section 1983. The district court demurred, concluding that

the Gun Shop was not a state actor for purposes of a section 1983

action. See Jarvis v. Village Gun Shop, 53 F. Supp. 3d 426, 437

(D. Mass. 2014). Accordingly, the court denied the plaintiffs'

motion for partial summary judgment and granted summary judgment

on the state action issue to the Gun Shop. See id.; see also Fed.

R. Civ. P. 56(f)(1).

Following some procedural wrangling — including the

dismissal of the plaintiffs' claims against Heffernan — the

district court entered a final judgment in favor of the Gun Shop.

This timely appeal ensued.4

4 Since CSA owned no guns and suffered no loss of any
property, its case was dead on arrival. See, e.g., Grajales v.
P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir. 2012) (explaining that
an essential element of a section 1983 claim is that the plaintiff
demonstrate some deprivation of rights guaranteed by the
Constitution or laws of the United States). In this court, CSA
makes no reasoned attempt to challenge the judgment against it.
- 9 -
IV. THE MERITS

We divide our discussion of the merits into two segments.

We begin with the standards applicable to appellate review of

summary judgments and the essential elements of the section 1983

framework. We then examine the theories of state action

undergirding the plaintiffs' claim.

A. The Legal Landscape.

We afford plenary review to a district court's grant of

summary judgment. See Santiago v. Puerto Rico, 655 F.3d 61, 67

(1st Cir. 2011). Where, as here, "a party moves for summary

judgment and the court, sua sponte, grants judgment the other way,

the usual approach to appellate oversight of Rule 56 orders must

be inverted." Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884

F.2d 1510, 1513 (1st Cir. 1989). Consequently, we view the facts

and all reasonable inferences derived therefrom in the light most

hospitable to the summary judgment loser (here, the plaintiffs).

See id. We will affirm the entry of summary judgment as long as

the record reveals no genuine issue as to any material fact and

shows that the prevailing party is entitled to judgment as a matter

of law. See Santiago, 655 F.3d at 68; Fed. R. Civ. P. 56(a).

Consequently, we treat that judgment as final, see United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that claims
not developed on appeal are deemed abandoned), and our subsequent
references to the plaintiffs exclude CSA unless the context
indicates otherwise.
- 10 -
 In this context, an issue is "genuine" if the record

permits a rational factfinder to resolve that issue in favor of

either party. See Borges ex rel. S.M.B.W. v. Serrano-Isern, 605

F.3d 1, 4 (1st Cir. 2010). Within this rubric, a fact is "material"

"if its existence or nonexistence has the potential to change the

outcome of the suit." Id. at 5.

Here, the correctness of the summary judgment ruling

depends on the district court's application of 42 U.S.C. § 1983.

In order to put this appeal in perspective, then, it is necessary

to revisit the well-plowed terrain of section 1983.

"Section 1983 supplies a private right of action against

a person who, under color of state law, deprives another of rights

secured by the Constitution or by federal law." Redondo-Borges v.

U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005)

(quoting Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996)). A

cause of action under this provision comprises two essential

elements: first, the conduct complained of must have been carried

out "under color of state law," and second, that conduct must have

worked a deprivation of rights guaranteed by the Constitution or

laws of the United States. Grajales v. P.R. Ports Auth., 682 F.3d

40, 46 (1st Cir. 2012) (quoting Martinez v. Colon, 54 F.3d 980,

984 (1st Cir. 1995)).

In this instance, we train the lens of our inquiry on

the "under color of state law" requirement (which was the lone

- 11 -
issue before the district court at summary judgment). Because

this requirement is the functional equivalent of the Fourteenth

Amendment's "state action" requirement, see Perkins v. Londonderry

Basketball Club, 196 F.3d 13, 17 n.1 (1st Cir. 1999), "we regard

case law dealing with either of these formulations as authoritative

with respect to the other, and we use the terminologies

interchangeably," Santiago, 655 F.3d at 68.

B. The Plaintiffs' Claim.

The centerpiece of the plaintiffs' section 1983 claim is

their allegation that they were deprived of their due process

rights by the Gun Shop. Specifically, they allege that their

Fourteenth Amendment rights were abridged because they were forced

to pay storage charges and, when they did not do so, their property

was peremptorily sold at public auction.

It is true — if somewhat of a tautology — that the

Fourteenth Amendment applies only to state action performed by "a

person who may fairly be said to be a state actor." Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982). When the named

defendant in a section 1983 case is a private party, the plaintiff

must show that the defendant's conduct can be classified as state

action. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). The

state action inquiry is preliminary to, and independent of, the

due process inquiry. If there is no state action, the plaintiff's

claim fails. See id.

- 12 -
 The bar for such a showing is set quite high, and we

have cautioned that "[i]t is '[o]nly in rare circumstances' that

private parties can be viewed as state actors." Estades-Negroni

v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005)

(quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)

(alterations in original). This inquiry is typically factbound.

See Brentwood Acad. v. Tenn. Secondary Sch. Athl. Ass'n, 531 U.S.

288, 295-96 (2001); Burton v. Wilmington Parking Auth., 365 U.S.

715, 722 (1961) (explaining that "[o]nly by sifting facts and

weighing circumstances can the nonobvious involvement of the State

in private conduct be attributed its true significance").

The Supreme Court has mapped out three routes that can

lead to a finding that a private party "may fairly be said to be

a state actor." Lugar, 457 U.S. at 937. State action may be found

if the private party "assumes a traditional public function when

performing the challenged conduct," or if the private party's

conduct is "coerced or significantly encouraged by the state," or

if the private party and the state have become so intertwined that

they were effectively "joint participant[s]" in the challenged

conduct. Santiago, 655 F.3d at 68 (quoting Estades-Negroni, 412

F.3d at 5). Unless the facts of record here, viewed in the light

most favorable to the plaintiffs, are capable of supporting a

finding that the plaintiffs have successfully travelled one or

- 13 -
more of these avenues, the entry of summary judgment must stand.

See id. at 69. We turn, then, to this inquiry.

1. Joint Action. We start with the pathway on which

the plaintiffs have placed their heaviest emphasis: joint action.

To establish state action through this route, a plaintiff must

show that the state has "so far insinuated itself into a position

of interdependence with the [private party] that it was a joint

participant in [the challenged activity]." Santiago, 655 F.3d at

68 (quoting Estades-Negroni, 412 F.3d at 5) (alterations in

original). The relevant inquiry demands a deep dive into the

totality of the circumstances, with heightened attention to

certain specific factors. See Perkins, 196 F.3d at 21. Those

factors include whether the private party is (or is not)

independent from the state in conducting its day-to-day affairs,

see id.; whether the private party has shared profits generated

from its challenged conduct with the state, see Barrios-Velazquez

v. Asociacion de Empleados del Estado Libre Asociado de P.R., 84

F.3d 487, 494 (1st Cir. 1996); and whether the private party has

used public facilities, see Burton, 365 U.S. at 723-24. In the

case at hand, the plaintiffs do not — and cannot — come close to

making the requisite showing.

Here, the record reveals no relationship between the

activities of the police and those of the Gun Shop, with one

exception: a Massachusetts statute authorizes the police to

- 14 -
transfer possession of lawfully confiscated firearms and

associated property to licensed storage facilities, see Mass. Gen.

Laws ch. 140, § 129D, and the Gun Shop operates such a facility.

Although this transfer may occur without a gun owner's express

authorization, the statute puts such owners on notice that their

property may be transferred if they fail to avail themselves of

other options. Taken alone, that statutory authorization is too

fragile a link: for purposes of demonstrating the required nexus

between state action and private action, we think it insufficient

simply to point to a state statute authorizing the actions of the

private entity. See Jackson v. Metro. Edison Co., 419 U.S. 345,

350 (1974); Perkins, 196 F.3d at 20.

Nor can the plaintiffs bridge this gap by showing that

the state acquiesced in the actions of the Gun Shop. After all,

where the state "has merely announced the circumstances under which

its courts will not interfere with a private sale," state action

is not present. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-

66 (1978).

Such a tenuous connection between the state and the Gun

Shop is surely not enough to ground a finding of state action —

and the record discloses nothing more. For example, there is a

complete dearth of evidence that the Gun Shop depends on the state

in any respect for the day-to-day operation of its business. See

Perkins, 196 F.3d at 21. Rather, the Gun Shop operates

- 15 -
independently in all relevant respects. Once the police

transferred possession of the plaintiffs' firearms to the Gun Shop,

the police ceased to have any involvement with the storage and

eventual auctioning of the confiscated property: all

correspondence regarding the storage charges and the sale of the

confiscated property went directly between the Gun Shop and the

various plaintiffs.

By the same token, there is no question but that the Gun

Shop wholly owns the facility in which it operates its business.

See Burton, 365 U.S. at 723-24. Nor is there anything in the

record indicating that the police helped set the Gun Shop's storage

charges, shared in those charges, or received any part of the

auction proceeds collected by the Gun Shop. See Perkins, 196 F.3d

at 21. Under the statutory scheme, the state garners proceeds

from confiscated property only if the police abjure the use of a

private storage facility, retain possession of the confiscated

property, and the owner fails to transfer or reclaim the property

within one year. See Mass. Gen. Laws ch. 140, §129D.

In an effort to forestall the conclusion that there is

no joint activity sufficient to constitute state action, the

plaintiffs make three arguments. These arguments are

unconvincing.

First, the plaintiffs argue that the activities of the

police "led to and facilitated the actions that injured" them.

- 16 -
This argument amounts to nothing more than an suggestion that the

police are the "but-for" cause of the Gun Shop's challenged

conduct: had the police not confiscated the plaintiffs' firearms,

the Gun Shop would never have gained possession of the firearms

and, thus, could not have imposed storage charges and sold the

weapons at public auction. This argument proves too much. If

but-for causation could constitute a sufficient basis for a finding

of joint action, the line between state and private action would

be blurred beyond recognition. Any time the state performs an

action that sets in motion some subsequent action by a private

party — say, issuing a driver's license — the private party could

be deemed to have acted jointly with the state. So expansive a

definition of "state action" would eviscerate the state action

requirement.

The plaintiffs' second argument begins with the

proposition that the Gun Shop "was performing duties that the

police would otherwise have been obligated to perform themselves."

This proposition is simply wrong. The plaintiffs rely principally

on the decision in West v. Atkins, 487 U.S. 42 (1988). In that

case, however, state action was found because the state had

delegated an affirmative constitutional obligation to a private

party by contract. See id. at 56-57. Here, unlike in West, the

police had no affirmative obligation to retain possession of the

plaintiffs' property. See Mass. Gen. Laws ch. 140, § 129D.

- 17 -
Rather, the statutory scheme expressly allowed the police to

transfer the confiscated firearms to a licensed storage facility

at any point after taking possession of them. See id.

The plaintiffs counter, however, that even if the police

were not obliged to keep their firearms, the Gun Shop "inherited"

this state obligation when the police transferred the plaintiffs'

firearms. Assuming for argument's sake that such an obligation

was delegated to the Gun Shop when the Gun Shop took custody of

the confiscated firearms,5 that circumstance would not avail the

plaintiffs. The statutory scheme at issue here affords gun owners

ample alternatives for how to direct their confiscated property

and thereby avoid unwanted storage charges. See Mass. Gen. Laws

ch. 140, § 129D; see also id. ch. 209A, § 3B. The plaintiffs chose

to eschew these alternatives, which included challenging the

revocation of the FID card or firearms license, transferring the

confiscated property to some person with a valid firearms license

or to a licensed dealer of the owner's choice, or acquiring (or

5We note that the statutory scheme itself is less than
pellucid in this regard. On the one hand, it imposes an obligation
on the police to hold confiscated firearms for up to a year. See
Mass. Gen. Laws ch. 140, § 129D. On the other hand, if the police
transfer the weapons to an authorized storage facility, the statute
appears to allow that facility to sell the guns after 90 days (if
the storage charges go unpaid). See id. Here, moreover, the
summary judgment record is opaque: it contains no evidence that
the police purposed to delegate their state obligation to the Gun
Shop. Nor is there any evidence that the Gun Shop agreed to hold
the transferred firearms for any fixed period of time.
- 18 -
re-acquiring) a valid firearms license in order personally to

reclaim the confiscated weapons. See Mass. Gen. Laws ch. 140, §

129D; see also id. ch. 209A, § 3B. Given this range of unexercised

options, we think it follows that the plaintiffs impliedly

consented to the transfer of their property to the Gun Shop. Put

another way, the plaintiffs' passive acquiescence in the transfer

of their property sufficed to break any meaningful link between

the actions of the police and those of the Gun Shop.

The plaintiffs' third argument is really a subset of

their second argument. They attempt to draw sustenance from

several cases in which the owner of a towing or impoundment company

was found to be a state actor and, thus, potentially liable under

section 1983. These cases — like West — are readily

distinguishable.

In Smith v. Insley's Inc., the defendant towed and stored

the plaintiff's car in connection with an ongoing murder

investigation. See 499 F.3d 875, 878 (8th Cir. 2007). The

defendant was therefore "performing the traditional governmental

function of seizing and securing property for a criminal

investigation." Id. at 880. That is not true here. In fact, had

a criminal investigation been afoot, the Massachusetts statutory

scheme would have required the police to retain possession of the

confiscated firearms rather than transferring them to a third party

- 19 -
(such as an authorized storage facility). See Mass. Gen. Laws ch.

140, § 129D.

In Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1982),

the court found it to be of decretory significance that the private

towing company had participated in the initial seizure of the

affected property. As the Tenth Circuit explained, the towing

company there actually seized the plaintiff's property but also

proceeded to hold the property "for the [s]tate, not for [the

plaintiff]." Id. at 1345. Here, by contrast, the Gun Shop had no

involvement at all with either the police decision to confiscate

the plaintiffs' property or the implementation of that decision.

And unlike in Coleman — where the towing company sold the

plaintiff's property to satisfy the storage fees incurred by the

police, see 697 F.2d at 1343 — the transfer of the plaintiffs'

property to the Gun Shop foreclosed any possibility that the state

might derive any economic benefit from that property.

To be sure, in Stypmann v. San Francisco, 557 F.2d 1338

(9th Cir. 1977) — a case factually similar to Coleman — the state

would not have been able to accomplish its larger purpose of

removing vehicles from roadways when their presence created a

safety risk without the involvement of the towing company. See

557 F.2d at 1340 n.2, 1341. But that is at a considerable remove

from our case, in which the summary judgment record contains

nothing to suggest that the police required any assistance from

- 20 -
the Gun Shop in order to confiscate and store the plaintiffs'

firearms. The Gun Shop simply provided the police with an

alternative to storing the firearms themselves. And the plaintiffs

had at least a month (and in Crampton's case over 5 months) to

choose to store their confiscated property elsewhere before the

police transferred the property to the Gun Shop.

That ends this aspect of the matter. After scouring the

record, we conclude that there is no showing of joint action

sufficient to satisfy section 1983's state action requirement.

2. Public Function. We turn next to the public function

pathway. To navigate that route, a plaintiff must show that the

private party has performed a service that, traditionally, the

state has exclusively undertaken. See Santiago, 655 F.3d at 69.

In this regard, we have emphasized both that "[e]xclusivity is an

important qualifier" and that "the activities that have been held

to fall within the state's exclusive preserve for purposes of the

public function test are few and far between." Id.

This avenue does not lead to a finding of state action

here. As the plaintiffs themselves have admitted, a licensed

storage facility (such as the Gun Shop) exercises "statutory powers

that police departments do not enjoy," notably the ability to

charge storage fees. Given this admission, a finding of

exclusivity is well beyond the plaintiffs' reach.

- 21 -
 The Supreme Court's decision in Flagg Bros. is

instructive on this point. There, the petitioner (a storage

company) was entrusted with the respondent's goods after the

respondent was evicted from her apartment. See 436 U.S. at 153.

When several months passed and no storage fees were paid, the

petitioner purposed to sell the goods — an action expressly

authorized by state statute. See id. at 151-53. In bringing a

section 1983 suit against the storage company, the petitioner

alleged that the storage company had become a state actor because

the state had delegated to it a power "traditionally exclusively

reserved to the [s]tate." Id. at 157 (quoting Jackson, 419 U.S.

at 352). The Court disagreed, concluding that the facts showed no

more than a "purely private dispute" between a debtor and a

creditor. Id. at 160. The respondent could resolve such a

dispute, the Court said, through a raft of state-law "rights and

remedies." Id. A section 1983 action was, therefore, unwarranted.

See id. at 160-61.

The facts in this case are of a piece with those of Flagg

Bros. The plaintiffs do not challenge here the original

confiscation of their firearms by the police but, rather, challenge

only the Gun Shop's storage charges and its auctioning of their

confiscated property. Moreover — as we already have explained —

the statutory scheme provides gun owners with a plethora of

alternatives for how to direct their confiscated property and

- 22 -
thereby avoid unwanted storage charges. See Mass. Gen. Laws ch.

140, § 129D; see also id. ch. 209A, § 3B. The plaintiffs chose

not to avail themselves of any of these alternatives. Viewed in

this light, the case at hand — like Flagg Bros. — adds up to

nothing more than a garden-variety dispute between a debtor and a

creditor. This type of purely private dispute cannot be elevated

to the level of an exclusive state concern. See Flagg Bros., 436

U.S. at 160-61; see also Perkins, 196 F.3d at 19 (explaining that

the "short list of activities" falling within the state's

"exclusive preserve" includes, for example, "'the administration

of elections, the operation of a company town, eminent domain,

peremptory challenges in jury selection, and, in at least limited

circumstances, the operation of a municipal park'") (quoting

United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902, 907

(4th Cir. 1995)).

3. State Compulsion. This leaves only the state

compulsion avenue. Traveling this route demands that an inquiring

court ask whether the state has used coercive power or has provided

such a substantial degree of encouragement that the private party's

decision to engage in the challenged conduct should fairly be

attributed to the state. See Rendell-Baker, 457 U.S. at 840

(citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Contrary to

the plaintiffs' importunings, the facts of this case make clear

that the state compulsion route is a dead end.

- 23 -
 We can be brief. Nothing in the Massachusetts statutory

scheme either requires or compels the Gun Shop — or any other

private storage company — to provide its services to the police.

The opposite is true; a firearms dealer, such as the Gun Shop,

must affirmatively seek a license to offer such storage services.

What is more, the police are at liberty to transfer confiscated

firearms to any licensed dealer who satisfies the statutory

requirements. Given that both the state and the private storage

companies have unfettered freedom of choice with respect to their

participation in this statutory scheme, a finding of state

compulsion will not lie. See Adickes v. S. H. Kress & Co., 398

U.S. 144, 170 (1970).

V. CONCLUSION

We summarize succinctly. In their action against the

Gun Shop, the plaintiffs do not challenge either the confiscation

of their firearms or the police's authority to transfer those

firearms to a bonded warehouse for storage. Rather, they challenge

the imposition of storage charges and the subsequent auctioning of

their firearms after they failed to pay those storage charges.

But the facts evidenced in the summary judgment record, even when

viewed in the light most favorable to the plaintiffs, do not show

that state action, as opposed to private action, produced these

asserted harms. Although the activities undertaken by the Gun

Shop were authorized by state law, mere compliance with the

- 24 -
strictures of state law cannot transmogrify private action into

state action. Nor is it enough that the state set in motion the

subsequent actions taken by the Gun Shop: but-for causation is

simply insufficient to conjure a finding of state action. Whatever

rights (if any) the plaintiffs may have against the Gun Shop, they

have made out none under section 1983.

We need go no further. We have combed through the

plaintiffs' arguments in support of their state action rationale

and found them wanting. It follows that the judgment of the

district court must be

Affirmed.

- 25 -