State Action, Color of Law and Section 1983
I blogged on February 19, 2015, about the Fourteenth Amendment’s state action requirement. Much earlier, on November 29, 2009, I blogged about the seminal section 1983 decision in Monroe v. Pape and its ruling that, where state action is present, section 1983’s color of law requirement is thereby met. Readers should check these posts for important background.
The following cases, from the First, Third and Ninth Circuits, address state action and color of law. Keep in mind that there are several state action tests, including nexus, symbiotic relationship, public/state function and entwinement, any one of which may lead to a finding of state action.
The First Circuit’s Decision in Jarvis v. Village Gun Shop
In Jarvis v. Village Gun Shop, Inc., 805 F.3d 1 (1st Cir. 2015), gun owners and a nonprofit corporation sued a gun shop as operator of a bonded warehouse alleging violations of due process in connection with the auctioning off of their guns—confiscated by police and transferred to the gun shop– after the owners failed to pay gun shop storage fees. The First Circuit held that the gun shop was not a state actor:
(1) There was no real joint action or interdependence between the activities of the police and the gun shop; it was not sufficient that a state statute authorized police to transfer possession of confiscated firearms to licensed storage facilities.
(2) The public function test was also not satisfied: a licensed storage facility such as the gun shop did not perform a traditionally exclusive government function.
(3) The state compulsion test was similarly not satisfied: nothing in the state statutory scheme required the gun shop, or any licensed private storage company, to provide its services to the police.
The Third Circuit’s Decision in P.R.B.A. Corp. v. HMS Host Toll Roads, Inc.
In P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221, 225 (3rd Cir. 2015), a “gentlemen’s club” operator sued the private company that ran service plazas on state highway, alleging First and Fourteenth Amendment violations for the removal of the plaintiff’s brochures from the common areas of the service plazas.
The Third Circuit found no state action under the entwinement test or any other test: there was no active and pervasive involvement by the state either in the decision to remove the brochures or in the day-to-day operations of the service plazas. The Third Circuit observed: “[T]he presence of government signs and images of state officials in the service plazas—without more—does not constitute entwinement.”
The Ninth Circuit’s Decision in Naffe v. Frey
In Naffe v. Frey, 789 F.3d 1030 (9th Cir. 2015), the plaintiff, a political activist, sued a county deputy district attorney for publishing allegedly derogatory statements about her on his personal Internet blog and on Twitter.
Affirming the district court’s dismissal of her § 1983 claim, the Ninth Circuit determined that the defendant did not act under color of law because he published for purely personal reasons and the communications were unrelated to his work as a county prosecutor. Further, both his blog and his Twitter page had disclaimers that the opinions expressed were the personal opinions of the defendant and did not represent the opinions of his employer.
In short, the defendant did not exercise government power: even though he used his experiences as a deputy district attorney to inform his blog posts and Tweets, he pursued “private goals via private actions.”
Plaintiffs in section 1983 cases sometimes try to sue private parties or entities for Fourteenth Amendment violations as a way of getting into federal court and, if they win, getting attorney’s fees under 42 U.S.C. section 1988. These private parties or entities may also have deeper pockets than some government officials or employees.
The First and Third Circuit cases are relatively straightforward state action cases: these courts marched through the various state actions tests, determined that none of them applied and, as a result, found that the plaintiffs did not state section 1983 claims since the Fourteenth Amendment was not implicated.
In marked contrast, the Ninth Circuit case deals with a different but related question: when does a government official lose his state actor status and act as a private person not subject to the Fourteenth Amendment and section 1983? I call this the “converse of the typical state action question” in chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016; West).
Thus, the Ninth Circuit determined that the deputy district district attorney acted as a private person, and not as a government official or employee, when he published the challenged statements on his personal blog and on Twitter. He did not exercise government power either in reality or apparently.
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