(dissenting).
I respectfully dissent.
I would state the facts a little differently than the statement given in the majority opinion.
Plaintiff is a free-lance photographer who takes pictures of artists and celebrities in public places or during public performances. He sends the pictures to a sales representative in New York who circulates them to potential customers. If somebody buys the pictures, plaintiff gets paid. Plaintiff lives in Providence, Rhode Island and often takes pictures of performers at rock concerts and other events at the Providence Civic Center. Plaintiff once achieved some national notoriety by taking a picture of Linda Rondstadt during a performance by her in the Providence Civic Center.
The Civic Center is a government owned facility which is leased to various people and enterprises for various kinds of performances and events. For example, the NCAA Basketball Tournament was held there. Among the people who lease it on occasion is the defendant Russo, a concert broker and promoter, who operates in the corporate form as Gemini Concerts, Inc., also a defendant. When Russo decides that he might make some money booking a given musician or concert group into the Center, he checks with the performer on possible dates and with the Center as to its availability on those dates. If they match, he enters a one-time lease with the Center for the event.
Since the Center is a governmental facility, its employees are government employees. For what are probably good reasons, the Center apparently does not allow the tenants to provide their own ushers, ticket-takers or security people. Such functions are performed by the Center’s own employees. The majority assumes that the tenant reimburses the Center for the cost and services on the day of the tenant’s use. In my view, that fact is essentially irrelevant. The result would be the same if there were no reimbursement and the Center merely *5factored in the cost of such personnel in its rent schedule.
In negotiation with musicians and rock groups (and perhaps other performers) Russo sometimes, but not always, encounters a demand from the performers that no one be permitted to use cameras at their performances. When that demand is made, he yields to it and a provision to that effect is included in the contract between the performers and Gemini. Russo then orally informs the Center’s staff of the no-camera requirement, which is carried out by the Center’s ticket-takers, ushers and security people. The no-camera policy is not a policy of the Center. The Center has no interest in it one way or the other. Many, probably most, of the events at the Center allow cameras. The no-camera policy is not a policy attributable to Russo or Gemini. Neither originates or advocates it. The policy originates from some of the talent which they book.
Plaintiff D’Amario has in the past bought tickets for some of Gemini’s Center concerts which were no-camera events. He has been turned away at the door because he was carrying cameras. In this action, invoking 42 U.S.C. § 1983, he sues the Center, Russo and Gemini seeking damages and an injunction.
I agree with the majority that the Center’s ticket-takers, ushers and security people, being state employees, are state actors. But that does not end the inquiry. This court flatly stated in Johnson v. Educational Testing Services, 754 F.2d 20, 23 (1st Gir.1985) that “not all actions by state actors are state actions.” This Court held in Johnson that a plaintiff charging deprivation of constitutional rights under Section 1983 must meet a two-fold burden. In addition to showing that the party charged with the deprivation was a state actor, he must also show that the deprivation was caused by “the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state.” In Gilmore v. Salt Lake Community Action Program, 710 F.2d 632, 638 (10th Cir.1983) (cited with approval in Johnson), the second requirement was phrased as the need to show that the conduct complained of resulted from a “rule, policy or decision attributable to the state.”
The second requirement is simply not met in the present case. The Center’s no-camera policy is not attributable to the state. It was not created by the state. It is not imposed by the state. In my view, the fact that state employees perform the mechanical task of carrying out the private contractual arrangement between the promoter and the performer is not enough to constitute state action. The ticket-takers, ushers and security people are simply not carrying out a state policy, nor are they performing a function for which the authority of the state is needed. See Polk County v. Dodson, 454 U.S. 312, 319, 102 S.Ct. 445, 450, 70 L.Ed.2d 509 (1981).
I believe the majority’s statement that the Center is “wholly responsible” for enforcing the no-camera policy is not justified by the record. The responsibility for promulgating it and enforcing it falls on the promoter Russo-Gemini and the performers. The majority makes much of the fact that the event staff is under the “control and direction” of the Center. An event could not be held and handled satisfactorily otherwise. But that fact does not make the policy in question — the deprivation of which plaintiff complains — state policy or state action, at least as I read the record. As the Tenth Circuit stated in Gilmore, “by establishing a two-part test for state action, Lugar requires not only a correct characterization of the parties as state actors, but also a finding that alleged deprivation is related to a governmental objective.” 710 F.2d at 638 n. 13 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)) (emphasis added).
There is no basis in the record for concluding that plaintiff’s inability to get inside the Center while carrying cameras is related to any governmental objective or decision.
I would affirm the judgment.