Ben was in Las Vegas for DEFCON, the world’s largest annual hacker convention. Ben’s day job is in the field of cybersecurity. He was staying at the Paris Las Vegas Hotel. Around 11pm on Sunday, August 14, he’s startled out of a sleep, in his dark hotel room. There’s pounding on the door. He walks to the peep hole in his underwear, peers through and sees what appears to be armed law enforcement in tactical gear. 

He’s ordered out of the room, in his underwear. They then search his room for firearms. They’re not law enforcement, but rather the hotel’s “Special Response Team.” They refuse to explain the basis for their belief that Ben has firearms in his room. In addition to working in cybersecurity, Ben is also involved in the firearms community, and operates the Open Source Ordinance Youtube channel, where he posted the originals of these videos. Here’s the main video:

Here’s the second one:

Many people know the basic rule that constitutional rights can only be violated by government officials, and that therefore they don’t protect us from private actors. At first blush, this seems to be the case here. Despite their appearance, these were private security guards. There may be Nevada state law protections at play, but it’s difficult to implicate federal civil rights protections. That would require a bit of legal gymnastics. But the more I research this, after having watched this footage, I think there are some possibilities. 

There are actually quite a few cases out there discussing private hotel security and constitutional rights. Many of these arise out of criminal cases. There are actually cases where federal courts have attributed state action, and Fourth Amendment violations, to private hotel security. However, these cases involve the question of suppressing evidence in criminal cases. Basically, if private security searches a hotel room, then police arrive, there may be a sufficient connection to establish state action by the private security. There was actually a Las Vegas casino found liable for Section 1983 violations in a Ninth Circuit opinion, where they had a system of working with the police in issuing citations, performing certain law enforcement functions. That was Tsao v. Desert Palace, Inc., from 2012.

In the last few years, with concern over active shooters, certain hotels in Las Vegas have apparently formed their own SWAT teams, so as to provide what is essentially a faster law enforcement response. There may be facts there, depending on the level of interaction between the hotels and local law enforcement, to show a similar system of privatization of law enforcement. Where that’s the case, government shouldn’t be allowed to avoid Section 1983 liability by merely delegating their law enforcement functions to private corporations. So there may be a theory of liability there. 

Another possibility, the thought of which is fueled by the speculation here regarding the source of the hotel’s belief that Ben had firearms in his room, is that perhaps the federal government is indeed compiling, maintaining, and sharing information about the firearms community with private corporations responsible for site security. We don’t know if that was the case here, but can we really take anything off the table at this point? If that were true, that could be another potential basis for federal civil rights liability. 

I suspect we will be seeing more of this type of activity in the future, just as we’ve been seeing troubling behavior out of the ATF, as well as the FBI. Instead of a social credit score, perhaps they have a firearms community score. Do you have access to machine guns? Well, you may have a great credit rating.