Nahmod Law

“A Lark and a Frolic” and the Public/Private Distinction: When Does a Nominal State Actor Lose That Status?

The Fourteenth Amendment (with its due process, equal protection and incorporated Bill of Rights components) has a constitutional state action requirement, meaning that the Fourteenth Amendment is not applicable to purely private conduct. Rather, it governs the conduct of state and local government officials and employees, as well as states and local governments themselves.

(On state action, see my post, Know Your Constitution (8): What is State Action? which can be found here: https://nahmodlaw.com/2015/02/19/know-your-constitution-8-what-is-state-action/)

In contrast, section 1983 has a statutory color of law requirement. So what is the connection between state action and color of law? The answer, as it turns out: where state action is present, so is color of law.

(On color of law and section 1983, see my post, State Action, Color of Law and Section 1983, which can be found here: https://nahmodlaw.com/2016/11/21/state-action-color-of-law-and-section-1983/)

However, there are situations where a state or local government official whose conduct would ordinarily be considered to be state action for Fourteenth Amendment purposes (and therefore color of law for section 1983 purposes), is not considered to be a state actor and therefore as not having acted under color of law. For instance, off-duty police officers who work as private security guards. I call this the converse of the typical state action question.

(I discuss and collect such cases in sec. 2:13 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2017)(West & Westlaw).

To explain: the typical state action question is whether the challenged conduct should be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The converse of the typical state action question is whether the challenged conduct of a government official or employee, ordinarily state action and color of law, should not be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The following Seventh Circuit decision is an example of the latter.

Luce v. Town of Campbell

In Luce v. Town of Campbell, 872 F.3d 512 (7th Cir. 2017), a police chief “messed” with Tea Party protestors who had criticized the police department for alleged mistreatment by posting the name and address of one of the protestors on websites catering to gay men and consumers of pornography. The police chief also posted comments on the local newspaper’s website falsely accusing the protestor of failing to pay taxes and his debts. The police chief tried to hide his role but he was discovered and thereafter resigned. Affirming the district court, the Seventh Circuit found that the police chief was not a state actor when he “messed” with the protestor: he did not use official information or privileged access. More important, acting like a vigilante was not part of a police officer’s job. Rather, it was “a lark and a frolic.” Accordingly, he could not be subject to section 1983 liability: because his conduct was not state action under the Fourteenth Amendment, he did not act under color of law for section 1983 purposes.

Comment

Both the state action and converse state action inquiries are very fact-specific. There are no real bright line rules: the inquiry focuses on whether the state or local government official exercised governmental power. To put this another way: the ultimate state action and color of law question is whether the state or local government is responsible for the challenged conduct.

I invite you to follow me on Twitter: @NahmodLaw

 

Written by snahmod

June 21, 2018 at 2:25 pm

<span>%d</span> bloggers like this: