Can a Tennessee bar or restaurant refuse entry to people wearing motorcycle club colors, or does that violate civil rights laws?

Subject

Opinion No. 13-55, Public Establishments Denial of Admittance to Persons Wearing Motorcycle Club Insignia, July 12, 2013

Plain-English summary

Tennessee bars, restaurants, and similar establishments often refuse entry to patrons wearing motorcycle club "colors" or club insignia, sometimes enforcing the rule with off-duty police hired as security. Rep. John Deberry asked the AG four questions about whether that practice violates federal or state law.

First Amendment and Fourteenth Amendment (Q1). No. The constitutional speech and equal-protection guarantees restrain only government action. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 718 (Tenn. 1997); Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156 (1978). Private property doesn't lose its private character because the public is invited to use it. Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 569 (1972); Cent. Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972). California's Hessians Motorcycle Club v. J.C. Flanagans, 103 Cal. Rptr. 2d 552 (2001), reached the same conclusion on essentially the same facts (a sports bar that denied admittance to motorcycle club members who refused to remove their colors).

A private actor can be held to constitutional standards only when its conduct is "fairly attributable" to the state, evaluated under three Sixth Circuit tests: public function, symbiotic relationship/nexus, and state compulsion. Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003). None of those fit the bar/restaurant/tavern exclusion of motorcycle club members.

The opinion specifically addressed the use of off-duty law enforcement officers as private security. Even though off-duty officers may, under White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000), reassume their official duties during a security shift if circumstances require, the use of a hired off-duty officer doesn't transform the bar's exclusion decision into state action. Lansing v. City of Memphis, 202 F.3d 821, 833 (6th Cir. 2000), held that a private festival organizer doesn't become a state actor by enlisting police aid to remove someone. The "mere request for assistance from an available police officer cannot be sufficient to form a nexus between the state and the private action." Federspiel; Multari.

42 U.S.C. § 1983 (Q2). No. Section 1983 requires (1) a federally secured right and (2) deprivation by a person acting under color of state law. A private actor whose conduct isn't fairly attributable to the state isn't acting under color of state law. Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); Wittstock; Lansing.

Tennessee Human Rights Act (Q3). No. Tenn. Code Ann. § 4-21-501 prohibits a public accommodation from denying full and equal enjoyment "on the grounds of race, creed, color, religion, sex, age or national origin." Public accommodations include inns, restaurants, taverns, and similar establishments under § 4-21-102(15). But the THRA's protected classes are enumerated and motorcycle club membership isn't among them. The federal counterpart, 42 U.S.C. § 2000a, has the same enumerated-class structure. Phillips v. Interstate Hotels Corp., 974 S.W.2d 680, 683-84 (Tenn. 1998); Burnett v. Bredesen, 566 F. Supp. 2d 738, 745 (E.D. Tenn. 2008) (no protection for smokers under § 2000a). The THRA could still apply if exclusion based on club insignia were used as a pretext to discriminate on a protected ground (e.g., race), but absent pretext, the THRA doesn't reach club insignia exclusions.

18 U.S.C. §§ 241 and 242 (Q4). Moot. Those federal criminal statutes punish deprivation of rights under color of state law and conspiracies against rights. Since the exclusion isn't a deprivation of federal rights and isn't under color of state law, §§ 241 and 242 don't apply.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The state-action doctrine and the Tennessee Human Rights Act's enumerated-class structure have not changed materially since 2013. Several states have considered (and a few have enacted) statutes specifically protecting motorcycle club membership from public-accommodations discrimination; Tennessee has not. Anyone relying on this opinion for a current dispute should check whether any new state or federal protection has been added.

Background and statutory framework

State action doctrine. The Fourteenth Amendment "erects no shield against merely private conduct." Shelley v. Kraemer, 334 U.S. 1, 13 (1948). Private actors are held to constitutional standards only when their conduct "may be fairly attributed to the state." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Three Sixth Circuit tests for state action.

• Public function: Has the private actor exercised power "traditionally exclusively reserved to the state"? Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).
• Symbiotic relationship/nexus: Is there a sufficiently close nexus between the state and the challenged action so the action may be "fairly treated as that of the state itself"? Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (entwinement).
• State compulsion: Did the state exercise coercive power or provide significant encouragement to the private actor? Wolotsky.

Off-duty officer doctrine. White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000), recognized that an off-duty officer may act within the scope of public employment while performing private security duties. Tenn. Code Ann. § 62-35-103(a)(7) exempts full-time sworn peace officers performing private security from the Private Protective Services Act when working under a properly licensed contract. Lansing v. City of Memphis, 202 F.3d 821, 833 (6th Cir. 2000): private actor doesn't become a state actor by enlisting police aid; "[i]f this [police assistance] were all that was required to find state action, then every private citizen who solicited the aid of the police in resolving disputes or in ejecting unwanted persons would be transformed into a state actor."

Section 1983 elements. Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992): plaintiff must identify (1) a federally secured right and (2) a deprivation under color of state law. No state action = no § 1983 claim.

Tennessee Human Rights Act. Tenn. Code Ann. § 4-21-501:

Except as otherwise provided in this chapter, it is a discriminatory practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of a place of accommodation, resort or amusement, as defined in this chapter, on the grounds of race, creed, color, religion, sex, age or national origin.

§ 4-21-102(15) defines public accommodation broadly to include "any place, store or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public." Federal counterpart at 42 U.S.C. § 2000a uses the same enumerated-class structure. The THRA is intended to be "coextensive with federal law." Phillips v. Interstate Hotels Corp., 974 S.W.2d 680, 683-84 (Tenn. 1998); Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn. 1992).

Federal criminal counterparts. 18 U.S.C. § 241 (conspiracy against rights); § 242 (deprivation of rights under color of law). Both require state action or color of state law.

Common questions

My biker friends and I were turned away from a Nashville bar because we wouldn't take off our colors. Can we sue?

Based on this opinion, generally no federal civil rights claim is viable against a private bar. The First Amendment doesn't reach private property owners' admission decisions. The Tennessee Human Rights Act doesn't protect motorcycle club membership as a class. The only viable theories would be if the exclusion was a pretext for race, creed, religion, sex, age, or national origin discrimination, or if some additional state action could be shown (e.g., a city ordinance compelling exclusion, which doesn't exist in Tennessee).

The bar uses off-duty cops as security. Doesn't that make it state action?

No, under Lansing v. City of Memphis. The use of off-duty officers, even in police-style uniforms, doesn't convert private decisions into state action. The officers themselves can be state actors when they perform a clearly governmental function (e.g., arresting a patron), but the bar's underlying admission decision remains private.

I run a bar. Can I just have a "no colors" rule?

The opinion concluded yes, as long as the rule is enforced consistently and isn't a pretext for protected-class discrimination. Document the rule, train staff, apply it uniformly, and watch for any indicia that the rule is being selectively enforced against members of protected groups.

What if I'm a member of a motorcycle ministry, and the bar excludes my insignia even though I'm there for a religious purpose?

That changes the analysis. If exclusion turns on religious affiliation (creed/religion under § 4-21-501), the THRA may apply. Motorcycle ministries that wear insignia indicating a religious organization could potentially argue the exclusion is on the basis of religion, not generic club membership. Facts matter; the line between "we exclude all colors" and "we exclude this specifically religious patch" can be contested.

Could a city ordinance protect motorcycle club members from public-accommodations discrimination?

Tennessee local governments have some authority to expand on civil rights protections, subject to state preemption rules. The opinion doesn't address local ordinances. Some other states have considered (and a few have enacted) state-level protections for motorcycle club membership; Tennessee has not.

What about under federal law if the club is a religious or ethnic association?

If the club is structured around a protected characteristic (a religious club, an ethnic association), exclusion of its insignia could constitute exclusion on a protected basis, which the THRA and § 2000a do reach. Facts matter; an objectively religious patch is treated differently from a generic gang/club patch.

Citations

Tenn. Code Ann. § 4-21-501 (public accommodations); § 4-21-102(15) (public accommodation definition); § 62-35-103(a)(7) (off-duty officer security). 42 U.S.C. § 1983 (civil action for deprivation of rights); § 2000a (federal public accommodations). 18 U.S.C. §§ 241, 242 (criminal civil rights). U.S. Const. amend. I, XIV. Cases: Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997); Flagg Bros. Inc. v. Brooks, 436 U.S. 149 (1978); Hudgens v. NLRB, 424 U.S. 507 (1976); Cent. Hardware Co. v. NLRB, 407 U.S. 539 (1972); Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972); Hessians Motorcycle Club v. J.C. Flanagans, 103 Cal. Rptr. 2d 552 (2001); Shelley v. Kraemer, 334 U.S. 1 (1948); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003); Collyer v. Darling, 98 F.3d 211 (6th Cir. 1996); Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899 (6th Cir. 2003); Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992); Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001); White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000); Lansing v. City of Memphis, 202 F.3d 821 (6th Cir. 2000); Federspiel v. Ohio Republican State Cent. Comm., 867 F. Supp. 617 (S.D. Ohio 1994); Multari v. Cleveland Cmty Hosp., 2006 WL 1984376 (E.D. Tenn. July 14, 2006); Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992); Phillips v. Interstate Hotels Corp., 974 S.W.2d 680 (Tenn. 1998); Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119 (Tenn. 1992); Burnett v. Bredesen, 566 F. Supp. 2d 738 (E.D. Tenn. 2008).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-055.pdf

Original opinion text

July 12, 2013

Opinion No. 13-55

Public Establishments Denial of Admittance to Persons Wearing Motorcycle Club Insignia

QUESTIONS

1. Does a public establishment violate the First Amendment or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution if the establishment does not allow persons wearing motorcycle club insignia to enter its premises?

2. Is a public establishment subject to an action under 42 U.S.C. § 1983 if the establishment does not allow persons wearing motorcycle club insignia to enter its premises?

3. Does a public establishment violate the Tennessee Humans Rights Act or any other provision of Tennessee or federal law if the establishment does not allow persons wearing motorcycle club insignia to enter its premises?

4. If the exclusion of persons wearing motorcycle club insignia is improper, are 18 U.S.C. §§ 241 and 242 implicated in any way?

OPINIONS

1. No. The constitutional guarantees of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guard only against abridgment by the government. Absent an indication that a public establishment's denial of admittance of persons wearing motorcycle club insignia is fairly attributable to a governmental entity, the First Amendment and the Equal Protection Clause of the Fourteenth Amendment impose no restraint.

2. No. Private entities whose actions are not attributable to a state governmental entity are not subject to the constraints of the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. To successfully maintain a Section 1983 action, a plaintiff must identify a right secured by the United States Constitution and a deprivation of that right by a person acting under color of state law.

3. No.

4. Based on the information provided, this Office does not find a legal impediment to a public establishment's denying admittance to persons wearing motorcycle club insignia. Therefore, the question concerning the applicability of 18 U.S.C. §§ 241 and 242 is moot.

ANALYSIS

1. As a threshold consideration, the law is well settled that constitutional guarantees restrain government conduct and generally do not restrain the conduct of private individuals. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 718 (Tenn. 1997); see Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156 (1978) (observing that "most rights secured by the Constitution are protected only against infringement by governments"). Thus, the constitutional guarantee of free speech is a guarantee only against abridgment by government. Hudgens v Nat'l Labor Relations Bd., 424 U.S. 507, 513 (1976). The Constitution does not provide redress against a private corporation or person who seeks to abridge the free expression of others. Id.; Cent. Hardware Co. v. Nat'l Labor Relations Bd., 407 U.S. 539, 547 (1972). Moreover, the United States Supreme Court has made clear that property does not lose its private character merely because the public is invited to use it for a designated purpose. Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 569 (1972); see, e.g., Cent. Hardware, 407 U.S. at 547 (rejecting argument that privately owned hardware store was subject to the constraints of the First Amendment because its parking lot was "open to the public"). Accordingly, the First Amendment is not an impediment to a public establishment, such as an inn, restaurant, or tavern, deciding to deny admittance to persons wearing motorcycle club insignia. See, e.g., Hessians Motorcycle Club v. J.C. Flanagans, 103 Cal. Rptr. 2d 552, 556 n. 2 (2001) (relying on Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) in finding that the First Amendment did not reach sports bar that denied admittance to motorcycle club members who refused to remove their "colors").

Similarly, the guarantee of equal protection guards only against encroachment by the government; it "erects no shield against merely private conduct." Shelley v. Kraemer, 334 U.S. 1, 13 (1948). The Fourteenth Amendment is not a limitation on the conduct of an owner of private property used for private purposes. Cent. Hardware, 407 U.S. at 547. That an establishment is "open to the public" is of no import. In rejecting an argument that a privately owned hardware store was subject to the constraints of the Fourteenth Amendment because its parking lot was "open to the public," the United States Supreme Court reasoned that "[s]uch an argument could be made with respect to almost every retail and service establishment in the country." Id.

Accordingly, a private entity can be held to constitutional standards only when its actions so approximate state action that they may be fairly attributed to the state. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). There are three tests to determine whether the conduct of a private person is fairly attributable to the state: (1) the public function test; (2) the symbiotic relationship or nexus test; and (3) the state compulsion test. Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003); Collyer v. Darling, 98 F.3d 211, 232 (6th Cir. 1996). Under the public function test, the court conducts a historical analysis to determine whether the party has engaged in an action traditionally reserved to the state. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). Under the symbiotic relationship or nexus test, "the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself." Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). In order to show state action under this test, the state must be "intimately involved with the challenged conduct." Id.; see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (noting that a challenged activity may be state action "when it is entwined with governmental policies or when government is entwined in [its] management or control") (internal quotation omitted). Finally, state action exists under the state compulsion test if the "state exercise[s] such coercive power or provide[s] such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state." Wolotsky, 960 F.2d at 1335.

Employing these tests, it does not appear that the public establishments' actions that are the subject of this opinion request are fairly attributable to the government. First, public establishments, such as inns, restaurants, and taverns, are not engaged in action traditionally reserved to the State. Second, with respect to the symbiotic relationship or nexus test, there is no indication that the State is "intimately involved" with the public establishments' conduct. Finally, under the state compulsion test, no evidence exists that the State has coerced or encouraged public establishments to deny admittance to persons wearing motorcycle club insignia.

The only State involvement mentioned in this opinion request is the public establishments' employment of law enforcement officers to prohibit persons wearing motorcycle club insignia from entering public establishments. We assume the "employment" of "law enforcement officers" means the use of such officers as private security guards when these officers are off-duty. See Tenn. Code Ann. § 62-35-103(a)(7) (recognizing that a full-time sworn peace officer may at times receive compensation "for services as a guard, patrol or watchperson under a contract with a private business that is properly licensed by the state"). Nonetheless, the Tennessee Supreme Court has recognized that, even while off-duty and acting as a private security guard, the "special status of peace officers in this state permits an off-duty officer to act within the scope of his or her public employment, even while otherwise performing duties for the private employer." White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000). Thus, while employed as a security guard off-duty, circumstances could require the officer to render aid in his or her capacity as an officer. Such police aid that may occur while an officer is working as a security guard at a public establishment does not convert the public establishment's conduct into state action. See Lansing v. City of Memphis, 202 F.3d 821, 833 (6th Cir. 2000). In Lansing, the defendant, a private entity that had leased a public park in the City of Memphis for a festival, directed the plaintiff who was engaged in "street preaching" to leave the festival grounds. After the plaintiff refused, the defendant obtained police assistance in removing the plaintiff from the festival grounds. The plaintiff alleged infringement of his First Amendment right of free speech. The Sixth Circuit Court of Appeals held that the defendant's conduct did not constitute state action simply because the defendant received police assistance in removing the plaintiff from the premises. Id. at 833. The court reasoned that "[i]f this [police assistance] were all that was required to find state action, then every private citizen who solicited the aid of the police in resolving disputes or in ejecting unwanted persons would be transformed into a state actor." Id. The "[m]ere request for assistance from an available police officer cannot be sufficient to form a nexus between the state and the private action." Id.; see Federspiel v. Ohio Republican State Cent. Comm., 867 F.Supp. 617, 624 (S.D. Ohio 1994) (observing that calling the police or a security force to a function does not make that function "state action"); Multari v. Cleveland Cmty Hosp., No. 1:05-cv-359, 2006 WL 1984376, at *3 (E.D. Tenn. July 14, 2006) (holding that hospital's enlistment of police aid to remove plaintiff from premises did not convert hospital's conduct into "state action"). With no indication that the denial of admittance of persons wearing motorcycle club insignia is fairly attributable to a state governmental entity, the First Amendment and the Equal Protection Clause of the Fourteenth Amendment impose no restraint upon public establishments, such as inns, restaurants, and taverns, from such action.

2. Whether a public establishment is subject to action under 42 U.S.C. § 1983 if the establishment does not allow persons wearing motorcycle club insignia to enter its premises depends upon whether a plaintiff can identify a right secured by the Constitution and laws of the United States and a deprivation of that right by a person acting under color of state law. Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). As explained above, private entities whose actions are not attributable to the state are not subject to the constraints of the First Amendment or the Equal Protection Clause of the Fourteenth Amendment and, because they are not acting under the color of state law, would not be subject to Section 1983 liability. See, e.g., Wittstock, 330 F.3d at 902 (concluding that because tax sale purchaser of property did not function as state actor, purchaser was not subject to § 1983 claim for denial of due process resulting from purchaser's failure to provide owner notice and opportunity to be heard in quiet title action); Lansing, 202 F.3d at 833 (holding that § 1983 action for deprivation of First Amendment rights could not be lodged against private festival organizer because organizer did not act as state actor in ejecting street preacher).

3. The Tennessee Human Rights Act prohibits discrimination in places of public accommodation and provides in pertinent part:

Except as otherwise provided in this chapter, it is a discriminatory practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of a place of accommodation, resort or amusement, as defined in this chapter, on the grounds of race, creed, color, religion, sex, age or national origin.

Tenn. Code Ann. § 4-21-501. The Act defines "public accommodation" to include "any place, store or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public." Tenn. Code Ann. § 4-21-102(15).

While public establishments, such as inns, restaurants, and taverns are "public accommodations," the discrimination prohibited by the Act is limited to the enumerated grounds of "race, creed, color, religion, sex, age or national origin." The Act does not enumerate a class of persons that could be construed to include persons wearing motorcycle club insignia, and thus the Act would not be implicated unless such a ban was adopted by an establishment as a pretext to discriminating on the basis of "race, color, religion, sex, age or national origin."

Further, the relevant portions of Tennessee's public accommodation statute are virtually identical to the federal version codified at 42 U.S.C. § 2000a. Although the language differs slightly, the General Assembly intended the Tennessee Human Rights Act to be coextensive with federal law. Phillips v. Interstate Hotels Corp., 974 S.W.2d 680, 683-84 (Tenn. 1998) (citing Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn. 1992)). Under federal law, "[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation. . . . without discrimination or segregation on the ground of race, color, religion, or natural origin." In similar fashion as Tenn. Code Ann. § 4-21-501, this provision limits discrimination only on the enumerated grounds of "race, color, religion, or natural origin." To receive protection under this law, a person must show that he is a member of a protected class. See, e.g., Burnett v. Bredesen, 566 F.Supp.2d 738, 745 (E.D. Tenn. 2008) (concluding that 42 U.S.C. § 2000a provided no protection for discrimination against smoker). Again, the term "protected class" would not include persons wearing motorcycle insignia absent evidence that any such ban was adopted as a pretext to engage in unlawful discrimination.

4. In sum, this Office finds no legal impediment to a public establishment's non-discriminatory denial of admittance to persons wearing motorcycle club insignia, based on the information provided. Therefore, the question concerning the applicability of 18 U.S.C. §§ 241 and 242, which impose criminal penalties for the deprivation of federal rights under color of state law or for a conspiracy against the free exercise of such rights, is moot.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

LAURA KIDWELL
Senior Counsel

Requested by:

The Honorable John Deberry
State Representative
26 Legislative Plaza
Nashville, TN 37243