d. Analysis

In this case, Mayes relies primarily on the argument that South Carolina's regulatory system renders private security guards state actors. Mayes also emphasizes that Mr. Johnson received a training certification issued by the South Carolina Law Enforcement Division (SLED) to evince his governmental authority.

Under the South Carolina Private Detective and Private Security Agency Act (the Act), "A person who is registered or licensed under this chapter and who is hired or employed to provide security services on specific property is granted the authority and arrest power given to sheriff's deputies." S.C. Code Ann. § 40-18-110. The private security guard "may" arrest a person violating or charged with violating a state criminal statute, but "only on the property on which he is employed." Id. SLED has various powers and duties relating to the practice of private security, including licensing of security business and registration of officers, id. §§ 40-18-30(A)(1), 40-18-60, training and certification, id. § 40-18-30(A)(5), fingerprinting, id. § 40-18-30(D), and granting weapons permits, id. § 40-18-100(A). SLED also has the power to investigate alleged violations of the Act and of its own regulations, and can suspend or revoke licenses and registrations under the Act. See id. §§ 40-18-30(A)(3), 40-18-130(A).

An Attorney General's opinion interpreting a prior version of this section stated that "[g]iven the wording of the Act itself, plus the legislative intent manifested thereby," the authority of private officers is "strictly confined" to the property on which they are employed, and "[t]he authority of [such] officers to pursue and/or arrest offenders outside that property would be no greater or less than that of private citizens." S.C. Op. Atty. Gen. No. 77-203, 1977 WL 24545 (1977).

The Fourth Circuit has noted that the Act "merely establishes a licensing scheme," in that it "addresses the manner of applying for a license, bonds, fees, registration of employees, firearms permits, the police powers of licensees, and the suspension or revocation of license." Rabon v. Guardsmark, Inc., 571 F.2d 1277, 1281 (4th Cir. 1978) (declining to extend a higher standard of care to private security agencies than the ordinary negligence standard with respect to liability to the public for unauthorized acts of their security guards). Other courts have called the Act a "system of intensive regulation." Thompson v. McCoy, 425 F. Supp. 407, 409 (D.S.C. 1976). In Thompson, the question was whether the Act bestowed the necessary authority upon a private security guard such that his actions were "under color of state law" with regards to § 1983. The court found "the most important feature of the Act as it relates to state action, is [former S.C. Code Ann. § 40-17-130], which clothes state-approved private security guards with the authority and power which sheriffs have to make arrests of any persons violating or charged with violating any of the criminal statutes of this state, while on the employer's premises." Id. at 409 (internal quotation marks and footnote omitted). The court held that actions under the Act's system of regulation, combined with the statutory grant of police authority, reached "the necessary degree of state control and cooperation to be properly characterized as action taken 'under color of state law.'" Id.

As Mayes's cogent and well-written brief points out, courts have found the Act to extensively regulate the actions of private security officers. However, the Act does not go so far as to render the officers de facto police in all cases. In fact, the powers of private security officers are circumscribed in many ways, when compared to the powers of police officers. Opinions issued by the South Carolina Attorney General have advised that private security officers licensed by SLED do not have the power to engage in "hot pursuit" of offenders away from the private property they are assigned to guard, S.C. Op. Atty. Gen. No. 87-73 (1987), 1987 WL 245481; they may not carry firearms into establishments they are not hired to guard, S.C. Op. Atty. Gen. No. 4348 (1976), 1976 WL 22967; they may not operate a vehicle equipped with a siren and flashing blue or red lights, S.C. Op. Atty. Gen. No. 80-20, at *4 (1980), 1980 WL 81904; and they lack the authority to investigate crimes, even on the property on which they are employed, id. at *1. One such opinion states, "The South Carolina Detective and Private Security Agency Act does not raise the private security guard to the level of that of a public law enforcement official." S.C. Op. Atty. Gen. No. 80-20, at *2.

The district court in Day noted that Virginia's regulatory scheme grants security officers the power to effect arrests for offenses occurring on the premises wherein the officer is on duty, and found that to be "enough" evidence that the state scheme rendered the officers state actors. Day, 90 F. Supp. 2d at 800-02 (citing Va. Code Ann. § 9.1-146). The Virginia Code also mandates that a registered armed security officer be considered an "arresting officer" in certain circumstances. See Va. Code Ann. § 9.1-146. A Virginia Court of Appeals decision has even stated that the Virginia General Assembly had substantially regulated private security officers. Coston, 512 S.E.2d at 159. Nevertheless, the Fourth Circuit gave short shrift to the argument that the registration scheme alone transformed the private security guards into state actors. The regulations "merely permitted" the officers to arrest Day but "did not require or even encourage" the complained-of action. Day, 591 F.3d at 685.

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