Opinions below

II. amesville playland acted under color of state law for purposes of 42 u.s.c. § 1983.

Amesville Playland acted “under color of state law” for purposes of 42 U.S.C. § 1983 when it forcibly detained Spencer McNeil and Juan Perez on July 26, 2003. (R.3-4) Section 1983 enforces “the Constitution on behalf of every individual citizen of the Republic.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982) (quoting Cong. Globe, 42d Cong., 1st Sess. 569 (1871)). To prove a violation of § 1983, McNeil and Perez must demonstrate that Playland (1) deprived them of a right secured by the Constitution; and (2) acted under color of state law. See Civil Rights Act of 1871, 42 U.S.C. § 1983 (2000); Lugar, 457 U.S. at 924. The first element is not under review in this appeal. (R.27) McNeil and Perez allege that Playland, through its owner Stanley Yaznetz, violated their Fourth Amendment right to be free from “unreasonable searches and seizures.” (R.5); U.S. Const. amend. IV.

The “under color of state law” element is satisfied because Playland “may be fairly said to be a state actor.” Lugar, 457 U.S. at 924; see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Yaznetz engaged in state action when he detained McNeil and Perez and delivered them into police custody, as he had done previously with at least eight other youths. (R.10) By enforcing the curfew, Playland acted for the state, with the state, and as the state. The resulting nexus of private-state interaction presents a genuine issue of material fact. Thus, the Court should reverse the grant of summary judgment.

A. The State Action Inquiry Is Fact-Bound.

In Lugar, the Court established a two-part state action analysis. First, the constitutional violation “must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.”² Lugar, 457 U.S. at 937. Second, “the party charged with the deprivation must be a person who may be fairly said to be a state actor.” Id.

Lugar’s second prong is the focus here. The Court has long recognized that analysis under the second prong is a “necessarily fact-bound inquiry.” Lugar, 457 U.S. at 939. “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). As the Court explained in Brentwood, there is no “simple line” between private conduct and state action. 531 U.S. at 295. McNeil and Perez’s case is just the most recent to show how government authority intersects with private parties in a complex web of law, rules, and relationships to produce conduct that can be “fairly attribut[ed] to the State.” See Lugar, 457 U.S. at 937.

The Court has “identified a host of facts that can bear” on state action. Brentwood, 531 U.S. at 296. In this case, the Court should consider both that the state coerced and significantly encouraged Playland to enforce the curfew and that Playland engaged in joint activity with the state. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Lugar, 457 U.S. at 941. In addition to applying the coercion and joint activity factors, the Court should embrace the totality concept of Brentwood. In Brentwood, the Court relied on the “entwinement” factor. 531 U.S. at 291 (finding state action where a private actor becomes “entwined” with governmental policies). Furthermore, it explained that “[w]hat is fairly attributable [to the State] is a matter of normative judgment, and the criteria lack rigid simplicity.” Id. at 295. As this case demonstrates, the encouragement and joint action tests can be seen as “simply different ways of characterizing” the same broad inquiry. Lugar, 457 U.S. at 939. The Curfew Act significantly encouraged Playland to enforce the curfew; in turn, Playland and the police engaged in joint activity when McNeil and Perez’s rights were violated. In short, a “nexus” between the private actor and the state is present. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).

In Brentwood, the Court looked beyond formal applications and recognized that state action could occur through “winks and nods.” 531 U.S. at 301. The hallmarks of state action are clear regardless of what they are called – be it encouragement, joint activity, entwinement, or something else. With vital constitutional rights and democratic accountability at stake, this case presents an important opportunity to affirm the Brentwood approach. This Court should allow a jury to sift the facts, weigh the circumstances, and evaluate the “winks and nods” created by the Ames curfew law and undertaken by Playland and the Amesville police.

B. The Coercive Curfew Act Made Playland a State Actor.

By statutorily requiring Playland and its staff to enforce the curfew, the state of Ames rendered Playland’s execution of the curfew state action. As the Court explained in Blum, a private party becomes a state actor when the state has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the [private actor’s] choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004. While Blum used the coercion/significant encouragement test to impute liability to the state, the same principle applies in finding a private party like Playland liable under § 1983. See Nat’l Broad. Co., Inc. v. Comm. Workers of Am., 860 F.2d 1022, 1025 (11th Cir. 1988) (“While specifically the Blum court spoke of holding the state liable pursuant to state action doctrine, the standard remains constant when a party seeks to hold a private actor liable under the state action doctrine.”). Under the coercion/significant encouragement test, the Curfew Act renders Playland a state actor.

1. The Curfew Act Requires Playland to Enforce the Curfew.

Through the Curfew Act, the Ames legislature drafted its private businesses to enforce the state’s curfew. The statute forbids an establishment from “knowingly allow[ing] a minor to enter or remain upon the premises of the establishment during curfew hours” and subjects the business to a $500 fine per offense. Ames Gen. L. ch. 87, §§ 4(C), 6(E). The statute mandates that merchants take action to enforce the curfew. The statute reads, “an establishment may question any person suspected of being a minor and take reasonable steps to prevent minors from entering or remaining on the premises during curfew hours.” (R.13) (emphasis added) However, “the mere use of ‘may’ is not necessarily conclusive of congressional intent to provide for a permissive or discretionary authority.” Cortez Byrd Chips, Inc. v Bill Harbert Constr. Co., 529 U.S. 193, 198-99 (2000) (citing United States v. Rogers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used in a statute, usually implies some degree of discretion [, but] [t]his common-sense principle of statutory construction … can be defeated … by obvious inferences from the structure and purpose of the statute.”)). To comply with section 4(C) of the Curfew Act, establishments must take reasonable steps to prevent minors from entering or staying. ch. 87, § 4(C). The Curfew Act is unlike permissive statutes such as the self-help statute in Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978), which laid out procedures that a private party may follow to perfect personal interests. See id. at 163 (finding warehouse’s sale of goods under permissive self-help statute not state action). The Curfew Act, in contrast, sets out requirements for private action that establishments like Playland must perform in the service of the state. The statute presents a false choice: unless Playland takes reasonable steps to enforce the curfew, it will break the law and face a fine.

Playland took “reasonable steps to prevent minors from entering or remaining” as the statute requires. See ch. 87, § 4(C). At midnight on July 26, McNeil and Perez had already entered Playland and wanted to stay until they used the the tokens they had purchased. (R.10) As the owner of an amusement park, Yaznetz, faced the ongoing prospect of enforcing the curfew against his patrons. By detaining McNeil and Perez and involving the police, Yaznetz fulfilled his statutory duty.

2. By Requiring Playland to Enforce the Curfew, the Statute Is Coercive.

The coercion inherent in the Curfew Act makes Playland’s enforcement of the curfew state action. “When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby to a significant extent has become involved in it, and, in fact, has removed that decision from the sphere of private choice.” Peterson v. City of Greenville, 373 U.S. 244, 248 (1963) (finding private enforcement of segregation ordinance state action) (internal quotation marks omitted). While statutes found to be mandatory are not always found to be coercive, the Curfew Act is both.

The state action inherent in Playland’s statutory role is underscored by contrasting the Curfew Act with the mandatory but non-coercive regulation in Jackson. 419 U.S. at 355. In Jackson, the Court held that a private utility did not become a state actor by complying with a state tariff regulation. Id. The Court declined to find the regulation coercive because the utility was acting based on its private motive. Id. While the regulation in Jackson required the private utility to follow state-mandated procedures in conducting its private business, the Curfew Act, in contrast, requires private parties to act in the service of the state and forgo their private interests. The only economic motive attributable to Playland is the motive provided by the state itself: the motive to avoid the fine it would face if it failed to assist the state in enforcing the curfew.

Threats of punishment by the state evince coercion. In Carlin Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F.2d 1291 (9th Cir. 1987), the Ninth Circuit found that the threat of prosecution made a private party’s response state action. Id. at 1295. When a telephone company provided service to an adult entertainment business, the state deputy attorney threatened to prosecute the telephone company for selling sexually explicit material to minors. Id. In response, the telephone company terminated service. Id. The court found, in the deputy attorney’s particularized threat to prosecute, that “Arizona ‘exercised coercive power’ over Mountain Bell and thereby converted its otherwise private conduct into state action for purposes of § 1983.” Id. Like the threat of prosecution in Carlin, the Curfew Act’s fine coerces a private party to carry out the state’s directions and forgo profit from would-be patrons. Moreover, Playland is required not just to refuse service, but also to patrol and investigate at the behest of the state. The particular vulnerability of Playland to curfew violations and the active and ongoing participation of the police in enforcement at Playland, (R.10), fulfill the particularized state action required by Carlin. Id. at 1295. By requiring Playland to enforce its curfew and relying on Playland’s action as necessary step in the state’s citation of McNeil and Perez, the state of Ames coerced Playland into state action.

This coercion harms America’s system of democratic accountability by hiding state policy under the appearance of private action. See Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996) (asserting that when functions are closely associated with government, “a state cannot limit its accountability for their performance”). If § 1983 claims are dismissed for lack of state action, citizens may never see that the State is actually behind the constitutional violations. The State – its executive, legislature, and local officials – will have thus limited their accountability.

3. The Coercive Nature of the Curfew Act Triggers Joint Action Between Playland and the Police.

By coercing Playland to act, the statute also triggers the relationship between Yaznetz and the police. The “reasonable steps” Yaznetz took to enforce the Curfew Act were to involve the police. See ch. 87, § 4(C). The joint action that resulted not only independently fulfills the state action requirement, but also flows directly from the statute. Statutes that authorize merchants to detain suspected shoplifters, even when not coercive, have been used as evidence of state action when coupled with joint activity in their enforcement. See El Fundi v. Deroche, 625 F.2d 195, 196 (8th Cir. 1980) (“[S]tate action is present when private security guards act in concert with police officers, … particularly when a state statute authorizes merchants to detain suspected shoplifters.”). The Curfew Act has a dual function. In addition to its coercive force, the statute triggers the joint action between Playland and the Amesville police. The statute shows that summary judgment should be reversed.

C. McNeil and Perez Present Sufficient Evidence of Joint Action to Raise an Issue of Material Fact.

Playland was transformed into a state actor not only by the Curfew Act, but also as a result of the joint action undertaken with the Amesville police to detain McNeil and Perez. As the Court held in Dennis v. Sparks, 449 U.S. 24 (1980), “to act ‘under color of’ state law for § 1983 purposes … [i]t is enough that [the private party] is a willful participant in joint action with the State or its agents.” Id. at 27. In order to find joint action between a private individual and the state, courts evaluate whether the two “act in concert … or pursuant to customary procedures.” El Fundi, 625 F.2d at 196. In the context of summary judgment, a court should not require a “‘smoking gun’ when nothing more than an ‘understanding’ and ‘willful participation’” is necessary. Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990). On July 26, Yaznetz acted jointly with the Amesville police and both were motivated by the same goal – enforcing the Curfew Act. Moreover, Yaznetz and his employees were acting consistent with a customary plan with the Amesville police, reflected in at least eight such previous detentions in the less than two years since the curfew was enacted. (R.10) McNeil and Perez have provided sufficient evidence of such joint activity to satisfy the state action requirement and the grant of summary judgment to Playland should thus be reversed.

1. Playland’s Enforcement of the Curfew Demonstrates Coordinated Action with the Police.

Playland and the Amesville police acted in concert to detain and cite McNeil and Perez. In cases where a private party is alleged to have acted together with the police to detain or arrest an individual, a “substantial degree of cooperative action” between the private individual and the police will defeat summary judgment. Collins v. Womancare, 878 F.2d 1145, 1154-55 (9th Cir. 1989). Joint activity has been found where (1) the private individual initiates a detention and calls for police assistance to help complete the detention, search and arrest, see Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8th Cir. 1989); (2) where the police fail to independently investigate the circumstances of the detention, see Smith v. Brookshire Brothers, Inc., 519 F.2d 93, 94 (5th Cir. 1975); and (3) where the state and private actor are working toward the same goal and the state “accepts the benefits derived from unconstitutional behavior,” National Collegiate Athletic Association v. Tarkanian, 488 U.S 179, 192 (1988).

First, Yaznetz and his employees relied on police assistance in enforcing the curfew. Because Playland is an “amusement park and arcade” open until 2 a.m. on Friday nights, it is likely to attract minors. (R.9) When Yaznetz began approaching patrons at 12:15 a.m., only fourteen minutes after the curfew became active, he was likely to find straggling minors in his establishment. (R.10) In Murray, the court found state action where a store security guard detained a shoplifter and, after an unfruitful search, called the police to request “the assistance of an officer.” 874 F.2d at 559. Similarly, Yaznetz forced McNeil and Perez into his office and then called for the police, (R.10), using his office as a police sub-station while he waited for back-up to arrive. The fact that almost a full hour elapsed between Yaznetz’s conversation with the police and their arrival further indicates joint conduct. (R.10); cf. Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983) (finding joint action where evidence was presented that police seemed to sanction a private eviction). Yaznetz did much more than simply complain to the police that McNeil and Perez were violating the curfew. See Wagenmann v. Adams, 829 F.2d 196, 211 (1st Cir. 1987) (affirming judgment that private individual was more than a “mere complainant” when he came to a collective decision with the police to make an arrest). Rather, the facts suggest that Yaznetz proceeded with police-sanctioned detention as part of a concerted action.

Second, joint action is indicated by the Amesville police’s failure to conduct an independent investigation of Yaznetz’s allegations before citing McNeil and Perez. Courts find evidence of joint action when the police arrest an individual based solely on the merchant’s “say-so.” Bartholomew v. Lee, 889 F.2d 62, 63 (5th Cir. 1989). The court found no independent investigation in Smith where the police arrested suspected shoplifters without being “told the manner in which the plaintiffs were apprehended [or] … the circumstances which led to the apprehension.” 519 F.2d at 94. Instead, the police “depended on the conclusory assessment” of the store managers. Id.

Officer Garrity, like the officer in Smith, cited McNeil and Perez without conducting an independent investigation. While Garrity did ask McNeil and Perez their ages, there is no evidence that he carried out the rest of the procedures required to determine whether a violation of the Curfew Act has taken place. See ch. 87, § 6(A). Specifically, there is no evidence that Garrity made a determination under section 6(A) as to whether “the minor has violated this section,” since the time Yaznetz apprehended McNeil and Perez was not ascertained. Id. Moreover, Garrity did not ask whether the youths had a “legal defense to the violation.” Id. Because Garrity did not comply with the minimum investigatory requirements under the statute, the Record suggests that he relied on Yaznetz’s “say-so” when he cited the youths. This form of joint action deputizes merchants, and underscores the importance of holding supposedly private actors accountable for civil rights violations under § 1983.

Finally, Yaznetz’s and Garrity’s pursuit of a common goal further emphasizes the joint nature of the detentions because the state “knowingly accept[ed] the benefits derived from unconstitutional behavior.” Tarkanian, 488 U.S. at 192. In such a scenario, courts require that the benefits of the private individual’s conduct flow to the state rather than to a private interest. In Brunette v. Humane Society of Ventura County, 294 F.3d 1205 (9th Cir. 2002), the Ninth Circuit found no evidence that a newspaper was a state actor when it accompanied a public entity, the Humane Society, on a search. Id. at 1214. While the two conducted the visit together, “[n]either the Media nor the Humane Society assisted the other in performance of its separate and respective task. [The] news gathering mission was entirely distinct from the Humane Society’s investigation of animal cruelty charges …. Lacking was the requisite substantial cooperation between the Media and the Humane Society.” Id. at 1212. Unlike the private actor in Brunette, Yaznetz acted with the same motivation as the police – the enforcement of the Curfew Act – and not to further some independent objective. Yaznetz was acting as a joint participant in the statute’s enforcement and, thus, as a state actor.

When government works in tandem with private parties, it must ensure that those parties treat citizens as the government would. See West v. Atkins, 487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody.”). Once Yaznetz and his employees were charged with enforcing government policy, constitutional restraints should have guided their actions. McNeil and Perez’s rights were diminished when the Amesville police conscripted Playland to enforce the curfew. By reversing summary judgment, this Court will send a message that, even as the need for new policies comes and goes, constitutional rights remain unchanged.

2. Yaznetz and the Police Operated Pursuant to a Customary Plan.

McNeil and Perez also provide sufficient evidence of the existence of a customary plan between Playland and the Amesville police. Courts find joint action when there is an understanding between the private party and the police, evinced by a customary plan, procedures, or policy. See Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) (reversing summary judgment where evidence indicated an understanding between employee and police officer to deny petitioner’s constitutional rights). A customary plan need not be explicitly established by the two parties, but may be tacitly understood. See Alexis v. McDonald’s Rests. of Mass., Inc., 67 F.3d 341, 352 (1st Cir. 1995).

Yaznetz and the Amesville police carried out such a customary plan. In Smith, there was sufficient evidence of a “pre-arranged plan” where the police officer testified that as part of his job, “when merchants would call in that they had caught somebody … [he] would go out and pick them up” without any independent investigation. 519 F.2d at 94-95. Like the merchant in Smith, Yaznetz picked up his suspects, detained them, called the police, and the police came and cited them without conducting an independent investigation. (R.10)

Events prior to the night of July 26 provide further evidence of a customary plan. Repetition is a key factor in establishing a customary plan. See Mershon v. Beasley, 994 F.2d 449, 452 (8th Cir. 1993) (holding that merely “multiple contacts” between creditor and prosecutor did not demonstrate that they were “jointly engaged” but that evidence those contacts led the creditor to seek criminal prosecution of other defaulting debtors could have indicated state action); cf. United States v. Walther, 652 F.2d 788, 793 (9th Cir. 1981) (affirming suppression motions where an airline employee who searched luggage was considered to be acting as an agent of the state for Fourth Amendment purposes, having previously searched luggage “with no discouragement from the” federal agents). Yaznetz has “previously detained at least eight (8) other minors and delivered them to the police at Playland.” (R.10) There is no evidence the Amesville police discouraged him from the detention practice. And, the police’s leisurely arrival on the scene fifty-five minutes after the initial apprehension of the youths indicates that they expected Yaznetz to be in control of the situation. (R.10)

The eight incidents reflect sufficient repetition to indicate a customary plan. The district court compared the evidence here to the finding in Allen v. Columbia Mall Inc., 47 F. Supp. 2d 605, 613 (D. Md. 1999), that three previous complaints were not adequate evidence of a customary plan. (R.23) Like Allen, Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268 (2d Cir. 1999) rejected joint action, in part, based on evidence “that police officers have come … only twice in the past thirty-two years in connection with customer-related disturbances, including the incident in question.” Id. at 271. In contrast to these cases, the eight incidents at Playland are sufficient to indicate a customary plan. Rather than occurring three times in a large shopping mall, like in Allen, or twice in thirty-two years, like in Ginsberg, Yaznetz has followed his plan with the Amesville police in eight previous instances during the less than two years since the curfew was enacted. (R.10) These detentions took place in a small town that had only nineteen juvenile arrests in the year before the Curfew Act went into effect. (R.15) When the detentions on July 26 are added to the eight other incidents over less than two years, McNeil and Perez can successfully demonstrate that the repetitive activity was part of a customary plan.

D. Viewed in Totality, the Circumstances Show that Playland Was a State Actor.

Spencer McNeil and Juan Perez present sufficient facts for a reasonable juror to conclude that the strong relationship between Playland and the State constitutes state action. Yaznetz was significantly encouraged to enforce the curfew and acted jointly with the Amesville police in doing so. While application of these tests to McNeil and Perez’s detention demonstrates state action, the Court has also embraced a broader perspective.

The flexible approach reaffirmed in Brentwood is applicable here. The Court stressed: “What is fairly attributable [to the state] is a matter of normative judgment, and the criteria lack rigid simplicity.” Brentwood, 531 U.S. at 295; see Burton, 365 U.S. at 723-24. The Court used the concept of “entwinement” to describe the relationship between the state and the Tennessee Secondary School Athletic Association. Brentwood, 531 U.S. at 302. Among the factors pointing to state action was that public officials were overwhelmingly making the association’s decisions. See id. at 300. In Brentwood, public actors were implementing purportedly private policy. Here, a purportedly private actor is implementing public policy. When Yaznetz took McNeil and Perez to his office, they became at least the ninth and tenth minors to have been detained at Playland for violating the curfew. (R.10) Although the Record does not reveal how many curfew citations have been issued since the law was enacted, the ten citations at Playland is likely a significant number, particularly in light of Amesville’s population of only 12,243 and its only nineteen juvenile arrests in 2000. (R.15)

It seems that a fair portion of Amesville’s curfew enforcement involves the strong relationship between Playland and the police. Whether this arrangement is mutually advantageous, see Johnson v. Rodrigues, 293 F.3d 1196, 1204-05 (10th Cir. 2002) (asserting that “entwinement” is related to the concept of symbiosis), or whether the police pressured Yaznetz to become a “surrogate,” Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1279 (11th Cir. 2003), is beside the point. See Brentwood, 531 U.S. at 302 (noting that the entwinement in that case both emanated from the State and flowed to the State). What matters is that Playland is intimately involved in enforcing a governmental policy. See id. at 296. In sum, the entwinement concept shows how the various state action tests compliment each other in this case and lead to the conclusion of state action.

The state action doctrine exists “to assure that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Id. at 295 (internal quotation marks omitted) (emphasis in original). The “host of facts,” id. at 296, that point to state action in this case also reveal that the district court’s decision threatens to erode this principle of responsibility. If entities like Playland and individuals like Yaznetz enforce state laws but remain free of § 1983 liability, citizens may face increasing threats to their constitutional freedoms. Moreover, responsibility for such injuries may go unassigned.

When the facts and circumstances of this case are considered in total, summary judgment is inappropriate. It is the function of the jury to make this type of “normative judgment” and to evaluate the “winks and nods” visible here. Id. at 295, 301. When state policy threatens essential constitutional rights, it is particularly appropriate for the voice of the community to decide whether a private actor wielded enough state authority to be liable under § 1983. McNeil and Perez present sufficient evidence of state action and summary judgment should be reversed.

CONCLUSION

For the foregoing reasons, the appeals court’s rulings that the Ames Juvenile Curfew Act is constitutional under the Fourteenth Amendment and that Playland did not act “under color of state law” for purposes of 42 U.S.C. § 1983 should be reversed.

Respectfully Submitted,

Bryce Callahan

Andrew Cooper

Jordan Heller

Joshua Hurwit

Nathan Kitchens

Jason Vollbracht

John Hart Ely Memorial Team

Attorneys for the Petitioners

1 The Curfew Act only provides an exception for interstate travel originating outside Ames and terminating outside Ames. See Ames Gen. L. ch. 87, § 5(5). The Act thus protects the right to interstate travel differently based on the point of origin.

2 The lower courts did not address this “state policy” prong. The requirement is met here because Playland acted pursuant to its statutory authority to “question any person suspected of being a minor and take reasonable steps” to prevent minors from remaining on the premises. (R.13); see Lugar, 457 U.S. at 940-41 (inferring state policy from statute). Also, where a private party acts jointly with state officials as is the case here, such conduct satisfies both prongs simultaneously. Jackson v. Pantazes, 810 F.2d 426, 429 (4th Cir. 1987); see also Lugar, 457 U.S. at 937 (noting that the second prong serves as a “limit” on the first).