Casey

Opinion by Judge BRUNETTI; Concurrence by Judge REINHARDT.

I. INTRODUCTION

Appellant Fred Meyer, Inc. (“Fred Meyer”) brought a 42 U.S.C. § 1983 claim against appellee defendants. Fred Meyer is a Dela *1413 ware corporation which operates approximately forty freestanding, large retail stores in Oregon. The defendants are organizers and proponents of two initiative petitions. The district court dismissed the action for failure to state a claim, because it found that Fred Meyer failed to show that defendants were acting under color of state law. This appeal followed. We review the district court’s dismissal de novo. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1507 (9th Cir.1990); Bergquist v. County of Cochise, 806 F.2d 1364, 1367 (9th Cir.1986). We affirm.

II. FACTUAL BACKGROUND

Beginning on December 14, 1991, certain of defendants entered onto properties of Fred Meyer without its permission to solicit signatures of registered voters to qualify two initiatives for election. The first initiative for which the defendants sought signatures would have amended the charter of the City of Portland to restrict the ability of the City of Portland to pass or…

concurring:

The question in this case is whether private individuals gathering signatures on Fred Meyer’s property are state actors. I agree with the majority that they are not and, therefore, that the district court properly dismissed Fred Meyer’s section 1983 claim. I do not, however, agree with the majority’s confusing and misleading explanation of why the defendants are not state actors. My colleagues make the problem far more complicated than it is, rely on the wrong law, and leave the erroneous impression that our answer might be different but for the niceties of Oregon appellate court decisions.

My colleagues reach their conclusion for two overlapping and equally irrelevant reasons: first, that the right of access to certain property articulated in State v. Cargill, 100 Or.App. 336 , 786 P.2d 208 (1990), aff'd by an equally divided court, 316 Or. 492 , 851 P.2d 1141 (1993), has been limited by later Oregon state court eases; second, that Fred Meyer may impose reasonable time, place and manner restrictions on the activities of signature-gatherers. Rather than resting on these wholly irrelevant grounds, the first of which has the additional vice of being based on an…