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Know Your Constitution (8): What is State Action?

This is the eighth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon.

Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process.

This post deals with the important concept of state action. Non-lawyers should understand that private persons as such cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.

The Basics

The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.

In a very real sense, the state action requirement serves a gatekeeper function: you don’t get to the question of whether 14th Amendment rights have been violated unless there is state action.

Over the years, the Court has developed several technical tests for determining when the conduct of a nominally private person or entity constitutes state action: (1) the public function test, (2) the joint action/symbiotic relationship test and (3) the nexus test. These are beyond the scope of this post.

Why Do We Care About State Action?

The obvious reason is that the 14th Amendment explicitly imposes this requirement. But there are sound policy reasons as well for this public/private distinction.

1. Freedom First is the interest in personal autonomy or freedom. As private persons we do not necessarily want to be subject to constitutional requirements or norms, even if we think some of those norms are good ones. Further, if these norms applied to private persons, then that would invite federal judicial intervention and supervision, thereby interfering with our private choices. Nobody wants to be sued and hauled into federal court.

2. Federalism The second policy reason is a bit more complicated, but it is related to the first. Ours is a federal system in which states should, and do, play a major role in protecting individual rights of all kinds. If private persons are regulated by the 14th Amendment, then the federal judiciary would be monitoring and evaluating private conduct, whereas that is a primary role of the states in our federal system.

This federalism concern also arises in connection with section 5 of the 14th Amendment which gives Congress the power to enforce section 1 of that amendment. If the 14th Amendment covered private conduct, it would follow that Congress could regulate much more private conduct than it can with the state action requirement in place.

Some Caveats

Keep in mind that I’ve been writing about state action and the 14th Amendment only. In contrast, the 13th Amendment, which prohibits involuntary servitude, applies to private persons as well.

In addition, there are other ways for Congress to regulate private conduct irrespective of section 5 of the 14th Amendment. Perhaps the best example is the Commerce Clause. Of course, Congress may not violate our constitutional rights even under the Commerce Clause.

Which brings me to my last point. Though Congress is obviously not a state, it may nevertheless not violate equal protection and due process because of the Fifth Amendment’s due process clause. Similarly, Congress may not violate the provisions of the Bill of Right because its provisions expressly apply to the federal government.

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Written by snahmod

February 19, 2015 at 2:27 pm

Posted in Constitutional Law

Know Your Constitution (7): What Is Substantive Due Process/Right of Privacy?

This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural due process.

The immediately preceding post and this post deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. These have virtually identical language.

The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).

The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

Distinguishing Between Procedural Due Process and Substantive Due Process

The immediately preceding post deals with procedural due process which focuses on fair and timely procedures.

It is far less complicated and controversial than substantive due process, the subject of this post, which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.

One reason that substantive due process is so controversial is that it is not explicitly based in the text of the Constitution, thereby suggesting to some that the Supreme Court has acted improperly and has simply (or not so simply) made it up.

The History of Substantive Due Process: Economic Regulation/Family

The term “substantive due process” is a bit of an oxymoron since “due process” suggests procedure in contrast to substance. Nevertheless, the Supreme Court, beginning in the late 19th century and ending in the mid-1930’s, used substantive due process to strike down many state regulations dealing with economic matters such as employment relationships, work conditions and other attempts to regulate business interests.

Interestingly, perhaps the first use of substantive due process by the Supreme Court was in the infamous Dred Scott case in antebellum America. Here, the Court held that the Missouri Compromise was unconstitutional because it took away the property of slaveholders and thus violated substantive due process.

Even though substantive due process was typically identified with economic regulation, there was an important component that dealt with liberty in family matters. For example, in the 1920’s the Supreme Court ruled (in Meyer v. Nebraska and Pierce v. Society of Sisters) that states violated substantive due process when they prohibited parents from arranging to have their children learn the German language and also when they required all children to attend a public school while prohibiting them from attending religious private schools. These decisions thus address the non-economic, family related liberty component of substantive due process.

The Retreat from Substantive Due Process in Economic Matters

The high-water mark of substantive due process in economic regulation matters may have been reached in the early part of the 20th century in the (in)famous Lochner v. New York case. Here the Court struck down a New York statute that regulated the maximum hours that bakers could work as a violation of the liberty of contract of employers and employees to negotiate hours and working conditions in general without government interference.

But starting in the mid-1930’s, the Court retreated dramatically from intervening judicially in such matters (one aspect of what some have called “the switch in time that saved nine” in response to President Roosevelt‘s court-packing plan). Eventually the Court became incredibly deferential to state (and federal) regulation of economic matters, using in most such cases what lawyers call a “conceivable rational basis” test. In other words, so long as an economic regulation could be considered to have a rational basis, it did not violate substantive due process.

Current Substantive Due Process/Privacy Doctrine

Even though meaningful substantive due process review is now effectively dead in economic regulation matters, it has survived and subsequently thrived as applied to liberty in family and sexual matters.

There were hints of what was to come in Skinner v. Oklahoma, a 1942 equal protection decision that struck down sterilization as criminal punishment. Here, Justice Douglas famously said: “Marriage and procreation are fundamental to the very existence and survival of the [human] race.” But it was only in Griswold v. Connecticut, a 1965 decision invalidating a criminal prohibition against the use of contraceptives by married persons, that the Court expressly recognized a constitutional right of marital privacy, though there remained some question of its source in the text.

Thereafter, the Court expanded this right of privacy beyond marriage to include the right of a woman to terminate a pregnancy in certain circumstances, largely on family/personal autonomy grounds. Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which modified Roe, are the leading cases so ruling on the basis of substantive due process. However, the Court in 2007 cut back somewhat on the scope of the right in Gonzalez v. Carhart, at least in cases dealing with statutes prohibiting so-called “partial birth abortions.”

Finally, in Lawrence v. Texas, a blockbuster 2003 decision, the Court held, in an opinion by Justice Kennedy, that states may not criminalize intimate homosexual conduct. The ground here was expressly personal autonomy: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

As things now stand, Roe, as modified by Casey and Carhart, is still good law. Lawrence remains good law as well.

The hot issue regarding homosexual conduct that is currently percolating in the circuits is the substantive due process question whether the right to marry someone of your own sex is a fundamental right
 protected by substantive due process.

Written by snahmod

September 29, 2014 at 4:29 pm

Know Your Constitution (6): What Is Procedural Due Process?

This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause and considered free speech and hate speech.

This and subsequent posts will deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. These have virtually identical language.

The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).

The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

Distinguishing Between Procedural Due Process and Substantive Due Process

This post deals with procedural due process which focuses on fair and timely procedures. It is far less complicated and controversial than substantive due process which focuses on  government regulation of conduct such as abortion, sexual conduct and certain family matters.

Life, Liberty and Property Interests

Procedural due process may be implicated whenever the government threatens to take a life, liberty or property interest from an individual.

The meaning of  a “life” interest is self evident. The meaning of property and liberty interests is more tricky. As a general matter, both are brought into existence by state and local law. However, whether they constitute property and liberty interests for procedural due process purposes is a matter of federal constitutional law.

For example, a mere expectation of continued employment by a terminable-at-will public employee is not a property interest because there is no “legitimate claim of entitlement.” In contrast, if that public employee has a contract and is terminated in the middle of that contract period without any kind of a hearing, then that may constitute a property interest triggering procedural due process protections.

Although it is too complicated to get into here, liberty interests may include an individual’s interest in not being imprisoned (from the tort of false imprisonment), in not having his or her physical integrity interfered with (from the tort of battery) and in not having his or her privacy invaded (from the tort of privacy)

What Kind of Hearing and When?

Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in.

Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings.

The best example of a pre-deprivation hearing with maximum procedural protections is a criminal trial. In contrast, pre-deprivation hearings directed at property interests do not necessarily have to be conducted by judges. Very often administrative proceedings are sufficient for procedural due process purposes so long as they provide the minimum protections described above: notice, the government’s evidence, the opportunity to respond and an impartial decision-maker.

Next: Substantive Due Process

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Written by snahmod

February 7, 2014 at 9:55 am

Posted in Constitutional Law

Know Your Constitution (5): Free Speech and Hate Speech

This is the fifth in a series of posts, intended for a general audience, discussing the Constitution.   Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution and addressed the Equal Protection Clause.

Today’s post deals with hate speech and that part of the First Amendment that declares: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”.

I want to emphasize three important take-away points at the outset. One is that the First Amendment protects us from the government; it does not apply to relations between private persons. Second, the First Amendment, like all individual rights in the Constitution, is not absolute. And last, freedom of speech has costs.

What is freedom of speech anyway? There is the joke told years ago by the Russian comedian Yacov Smirnoff. He was confronted by an American bragging about freedom of speech. Smirnoff retorted: “Big deal! We also have freedom of speech in Russia. What we don’t have is freedom after speech.”

One of the most controversial free speech issues involves hate speech, including but not limited to the anti-Semitic kind. Hate speech and anti-Semitism are major concerns in Europe and the Middle East and remain a nagging concern in the US as well. Hate speech can be defined as speech directed at a historically oppressed religious or racial minority with the intent to insult and demean. Hate speech undermines social attitudes and beliefs, it isolates its targets and it tends to silence them because they are often stunned and unable to respond. Hate speech also traumatizes (think of the effect it had on survivors and other Jews when the Nazis threatened to march in Skokie). We all know some of the hateful slurs that are too often directed against Jews, blacks, Latinos and Italians in this country.

What does the First Amendment, through interpretations by the Supreme Court, have to say about hate speech? The short answer is that the First Amendment prohibits government from regulating such speech altogether. This is a very different approach from that of countries in Western Europe that often prohibit such speech, including denials of the Holocaust.

But why should that be? After all, despite the children’s saying about sticks and stones, we know that words can in fact hurt and lead to terrible acts. Words have power.  Words have costs.

One answer is that the First Amendment creates a marketplace of ideas in which everyone can participate. Everyone can try to sell his or her ideas to the marketplace and the buyers in the marketplace eventually decide which ideas have value and which do not, which ideas are truthful and which are not. We are all sellers and buyers in this marketplace.

What is the government’s role in this marketplace of ideas? Basically, the government must stay neutral; it must keep its hands off of the marketplace. The Enlightenment assumption—the assumption of the Framers of the Constitution—that underlies the marketplace of ideas is that people are ultimately rational, they may be persuaded by reason, even though emotions and passions play a major rule in political decision-making.

What kinds of ideas are out there in the marketplace of ideas? Political ideas, artistic ideas, scientific ideas, social ideas of all kinds, whether smart, crazy, far-out, brilliant, dangerous.

However, despite what I’ve just said, there are some communications that are not allowed in the marketplace of ideas. Obscene speech, for one, carefully defined by the Supreme Court, is excluded from the marketplace of ideas. Another kind of communication, child pornography, is also not allowed because its production involves child abuse. The reasons for these exceptions include history and the belief that these kinds of communications have little or no redeeming social value.

So now you’re thinking the following: if there are some exceptions under the First Amendment and its marketplace of ideas, why not also include hate speech as an exception? After all, hate speech surely has little or no redeeming social value. It insults, it demeans, it traumatizes, it silences and there is a consensus in American society that it is valueless at best and dangerous at worst. Why should government not be allowed to prohibit it?

The Supreme Court’s answer to this particular question is that even hate speech contains political ideas, however horrible these ideas may be. When you regulate such speech, you are also regulating ideas. Think of George Orwell’s Animal Farm and forbidden words. The Supreme Court has also made clear that just because speech offends people, this is never a justification under the First Amendment for punishing it. Furthermore, we are justifiably suspicious of government when it attempts to regulate speech and ideas. After all, government may have its own political agenda in regulating hate speech—which groups would be protected against hate speech and which not?

Finally, and perhaps most important, think about how the marketplace of ideas functions: even if hateful ideas are communicated, the theory (hope?) is that counter-speech will emerge to rebut it and to fight it. In other words, more speech rather than less is the remedy.

IMPORTANT UPDATE: I lectured on this topic on November 30, 2016. The audio of my lecture is here: https://nahmodlaw.com/2016/12/14/my-lecture-on-the-supreme-court-free-speech-and-hate-speech-audio/

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Written by snahmod

December 4, 2013 at 9:16 am

Know Your Constitution (4): What Is Equal Protection?

This is the fourth in a series of posts about the Constitution that is intended for a general audience.  Previous posts introduced the Constitution and then rebutted some commonly held myths about the Constitution.

Background

The equal protection clause of the Fourteenth Amendment prohibits states and local governments from denying persons the equal protection of the laws: similarly situated persons must be treated in the same way. The equal protection clause also applies to the federal government through the Fifth Amendment‘s due process clause.

The equal protection clause was originally intended to protect newly freed blacks from being treated disadvantageously because of the their race. However, it is written in broader terms and covers discrimination against persons in general. But this does not mean that whenever government discriminates or classifies, it violates equal protection. Governments could not function if they could not draw lines or classify when they legislate.

The Four Equal Protection Tests

Over the years, the Supreme Court has developed four different tests that it uses, depending on the kind of government discrimination or classification involved.

Strict Scrutiny. When government discriminates or classifies on grounds of race or ethnic origin, the Court uses “strict scrutiny.” This means that in order for the challenged discrimination to be upheld, the government must overcome a heavy burden. It must show that the discrimination promotes a compelling government interest and is narrowly tailored to achieve that interest. Under this test, racial classifications that disadvantage racial minorities never pass strict scrutiny, while those that advantage racial minorities and disadvantage a racial majority (as in affirmative action) sometimes survive strict scrutiny.

Intermediate Level Scrutiny. When government discriminates or classifies on the basis of sex or gender, the Court uses “intermediate level scrutiny.” This is not as burdensome on government as strict scrutiny but it does have “bite”: here, the government must show that the discrimination promotes an important government interest and is substantially related to achieving that interest. In these cases, the Court is sensitive to the improper use of sexual stereotypes.

Rational Basis Review. When government discriminates or classifies in connection with economic regulation and business, then the Court uses “rational basis review.” This kind of equal protection review is very deferential to government. When applied, rational basis review almost invariably results in a determination that the government classification is constitutional.

Actual Purpose Review. This kind of review is a relatively recent arrival on the scene. The Supreme Court announced several decades ago that the equal protection clause prohibits government from discriminating against persons just because of who they are. The Court used this principle some years ago, in Romer v. Evans, to strike down a Colorado constitutional amendment that disadvantaged homosexuals: it found that the amendment was actually motivated by animus toward them.

Thus far, actual purpose review has been used sparingly by the Supreme Court. However, it may come into play in the same-sex marriage cases that are currently before the Court. So too could intermediate level scrutiny.

Written by snahmod

January 31, 2013 at 10:50 am

Posted in Constitutional Law

Know Your Constitution (3): Myths About the Supreme Court

I blogged on November 29, 2012, regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.

This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.

The First Myth. The Supreme Court’s primary function is to do justice.

Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.

Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.

Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.

What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century.

On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century. Read the rest of this entry »

Written by snahmod

December 6, 2012 at 11:12 am

Know Your Constitution (2): Myths About the Constitution

My post of November 12, 2012, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens about the Constitution and the Supreme Court with a minimum of legal jargon.

This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.

The First Myth The Constitution is a sacred document or is at least divinely inspired.

Reality  The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.

Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.

Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.

The Second Myth  The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.

Reality The Constitution is far from a perfect document.

The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.

More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.

Next in the Series: Myths about the Supreme Court

Written by snahmod

November 29, 2012 at 3:11 pm

Know Your Constitution (1): The Structure of Government

Constitutional Education for Citizens

United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.

However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.

What I would like to do in this and in occasional succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.

This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.

What is Separation of Powers?

The first three articles of the Constitution create and set out the powers of the three branches of government.

First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate  and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.

Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.

Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts. Read the rest of this entry »

Written by snahmod

November 12, 2012 at 2:04 pm

All My Constitutional Law Posts to 10-12-15

This is Part II of the All My Posts Series to 10-12-15. Part I, also posted today, deals with Section 1983.

Please search within the post for any cases, topics and the like that you are interested in.

PART II: CONSTITUTIONAL LAW

All My Videos: Constitutional Law, Section 1983 and SCOTUS

Know Your Constitution (1): The Structure of Government

Know Your Constitution (2): Myths About the Constitution

Know Your Constitution (3): Myths About the Supreme Court

Know Your Constitution (4): What Is Equal Protection?

Know Your Constitution (5): Free Speech and Hate

Know Your Constitution (6): What Is Procedural Due Process?

Know Your Constitution (7): What Is Substantive Due Process/Right of Privacy?

Know Your Constitution (8): What is State Action?

A Short Video on Equal Protection Basics

Class-of-One Equal Protection Claims: Uncertainty in the Seventh Circuit

Marbury v. Madison: Some Additional Lessons

McCulloch v. Maryland: Exegesis and Constitutional Education

The Commerce Clause

The Dormant Commerce Clause

Brown v. Board of Education

Affirmative Action

Affirmative Action and Fisher v. University of Texas: A Video Discussion

The Fisher Case on Affirmative Action and the Shelby County Case on Voting Rights: Two of a Kind

The Equal Protection Clause and Fundamental Interests

Supreme Court Decisions, 2007-2008: A Video Presentation

Supreme Court Review: 2009 Term (video)

Anti-SLAPP Statutes in Federal Courts

The Patient Protection and Affordable Care Act: The Commerce Clause and Constitutional Trust

Individual Mandate Upheld–Medicaid Expansion Upheld (Mostly)

The Health Care Act Decision: A Video Discussion

The Constitutionality of the Patient Protection and Affordable Care Act: A Video Presentation

Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago

The Second Amendment and Gun Control: Unanswered Questions

DeShaney in the Circuits: Affirmative Duties and Danger-Creation

DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation

DeShaney in the Circuits (III): The Fifth Circuit En Banc Holds the Line

DeShaney in the Circuits (IV): The Seventh Circuit’s Reformulation

DeShaney in the Circuits (V): The Third and Tenth Circuits Weigh In

DeShaney in the Circuits (VI): Some Recent Decisions

Oyez’s Fourth Amendment Deep Dive

Kingsley v. Hendrickson: New Supreme Court Pretrial Detainee Excessive Force Decision

Written by snahmod

October 12, 2015 at 2:50 pm

Posted in Constitutional 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