                                 _____________

                                  No. 95-3581
                                 _____________


Ross Reinhart,                          *
                                        *
     Appellant,                         *
                                        *   Appeal from the United States
     v.                                 *   District Court for the
                                        *   District of South Dakota
City of Brookings, a South              *
Dakota Municipal Corporation,           *
                                        *
     Appellee.                          *

                                  __________

                         Submitted:      May 16, 1996

                             Filed:    May 30, 1996
                                 __________

Before MURPHY and ROSS, Circuit Judges, and VAN SICKLE,* District Judge.
                               __________


MURPHY, Circuit Judge.


     Ross   Reinhart   appeals   from   a   judgment   in   the   district   court1
dismissing his civil rights claim under 42 U.S.C. § 1983.         Reinhart alleged
that the City of Brookings prevented him from campaigning for public office
during an arts festival in a public park in violation of the First and
Fourteenth Amendments.   We affirm.




     *
      The HONORABLE BRUCE M. VAN SICKLE, United States
     District Judge for the District of North Dakota,
     sitting by designation.
     1
      The Honorable John B. Jones, United States District Judge
for the District of South Dakota, presiding.
     The Arts in the Park Festival is held annually in a public park in
Brookings, South Dakota.    The weekend festival is free and attracts some
75,000 people.   It is fully funded and organized by a private, non-profit
group of volunteers called the Arts in the Park Festival Committee.


     The committee and the City of Brookings agree that the committee
undertakes responsibility for everything that happens in the park during
the festival weekend.   The committee maintains its own liability insurance
during the festival.    There are approximately 180 booths at the festival
relating to art, entertainment, and food, and committee members select the
booth operators from over 500 applicants.   The committee pays several city
employees to provide security and maintenance during the festival.     The
committee also establishes the rules which govern the festival's operation.
One rule prohibits people who do not have a booth from distributing
literature inside the park.    The purpose of the rule is to limit litter
problems, keep pedestrian traffic moving safely, and limit activities to
those consistent with the festival's art theme.     The festival committee
does not grant political candidates booths or permit them to hand out
literature for campaign purposes.


     In July 1993, the Brookings City Commission passed a resolution which
stated that violation of the festival committee's rules constituted a
violation of a city ordinance barring peddlers from public grounds.   This
resolution applied to the use and access of Pioneer Park in connection with
the 1993 festival, and none was adopted in connection with the 1994
festival.


     Ross Reinhart was an independent candidate for Governor of South
Dakota in 1994, and he appeared at the festival on Sunday morning, July 17.
He approached people at the festival and handed out business cards which
he was using for his campaign.    A security guard approached him and said
that campaigning was prohibited in




                                     2
the   park, but Reinhart continued his activities.         Later a festival
committee member acting as a security guard saw Reinhart distributing the
cards and allegedly advised him that he had to distribute his cards outside
park property, a few feet back from where he was standing.   Reinhart claims
that he was told only that campaigning was not permitted inside the park
and that he would be arrested if he did not stop, but that he could
continue his activity on the sidewalk adjacent to the park entrance.     In
any event, Reinhart moved to the park entrance without further discussion
and distributed his campaign cards from there.     He left the area around
6:00 p.m., after handing out some 1500 cards that day.


      The district court granted summary judgment to the city on the
grounds that there was no municipal liability based on the actions of the
festival committee and that Reinhart's rights were not violated in any
event since he had reasonable alternative access to the crowd.     Reinhart
now appeals, arguing that the city is liable under § 1983 for the festival
committee's actions and policies, that the committee rule is not a
reasonable restriction of free speech under the First Amendment, and that
numerous issues of material fact preclude summary judgment.      A grant of
summary judgment is reviewed de novo with all facts and inferences drawn
in the light most favorable to the party who lost below.   Qualls v. Hickory
Springs Mfg. Co., Inc., 994 F.2d 505, 507 (8th Cir. 1993).


      The federal civil rights statute in question, 42 U.S.C. § 1983,
prohibits any person under color of state law from depriving another "of
any rights, privileges, or immunities secured by the Constitution and laws.
. . ."   A municipality constitutes a person for purposes of § 1983, but is
liable only when "action pursuant to official municipal policy of some
nature caused a constitutional tort."    Monell v. Dept. of Soc. Serv. of
City of N.Y., 436 U.S. 658, 691 (1978); Coleman v. Watt, 40 F.3d 255, 261
(8th Cir. 1994).   The challenged action must have either been taken




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by the municipality or by a private person whose action may be fairly
treated as that of the municipality itself.       See Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 157 (1978).     Private action is not converted into
state action unless the state, by its law, has compelled the act; mere
acquiescence is not enough.    Id. at 165.


      The festival committee is a private group which does not receive any
funding from Brookings.   It is comprised of volunteer citizens and had sole
responsibility for planning, advertising, cleaning, managing, and securing
the 1994 festival.   Except for a Brookings police officer who patrolled the
area, the committee reimbursed the city for any city employee who helped
clean and secure the festival grounds.


      It is undisputed that the festival committee had sole discretion to
establish the rules concerning the operation of the festival.    It decided
who could occupy booths in the festival and denied booths to groups or
individuals that did not promote the festival's art theme, such as a 1994
application for a campaign booth by Attorney General Mark Barnett.      The
committee also prohibited any distribution of literature by individuals
other than through a booth.    Consistent with this policy, politicians or
candidates were free to talk to people at the festival but could not pass
out literature.   Although the city commission passed a resolution in 1993
making violation of the festival committee's rules a violation of a city
ordinance, that resolution expressly applied only to the 1993 festival and,
as Reinhart himself admits, was never made effective by adoption of an
ordinance.


      The fact that Brookings permitted the committee to adopt rules and
enforce them does not convert the private action of the committee into
state action.   See Flagg Bros., Inc., 436 U.S. at 167.   Nor does the fact
that a private organization was temporarily using public property transform
its   actions into state action.      See United Auto Workers v. Gaston
Festivals, Inc., 43 F.3d 902, 910




                                     4
           (4th   Cir. 1995) (private, non-profit corporation that organized and
           promoted an annual festival held on public streets was not a state actor
           subject to § 1983).


                  Since the festival committee's policy and actions may not fairly be
           said to be those of the City of Brookings, the city may not be held liable
           under § 1983.   See Monell, 436 U.S. at 691.   The judgment in favor of the
           city is affirmed.


                  A true copy.


                        Attest:


CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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