March 30, 2000

Good afternoon. My name is Sheldon Nahmod and I am Distinguished Professor of Law at Chicago-Kent College of Law, Illinois Institute of Technology. I write and teach extensively in the areas of civil rights and constitutional law and am the author of a leading and much-cited two-volume treatise on section 1983, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4^th ed. 1997) ("CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION"), and of many law review articles. I lecture regularly on section 1983 to plaintiffs’ and defense lawyers across the county as well as to federal judges under the auspices of the Federal Judicial Center, the educational arm of the federal judiciary. In addition, I frequently consult with lawyers and with state and local governments regarding section 1983.

What I would like to do is make a few introductory remarks about the purposes and present scope of section 1983, and then move directly into an assessment of several aspects of the Bounty Hunter Responsibility Act of 1999 ("Act").

Some Fundamentals of Section 1983

Section 1983, enacted by the 42^nd Congress in 1871 pursuant to its powers under section 5 of the Fourteenth Amendment, creates a Fourteenth Amendment damages action against state and local government officials, as well as local governments, who violate the Fourteenth Amendment rights of citizens and others. The statute does not cover states as such because they are not "persons" under Will v. Michigan Dept. of Police, 491 U.S. 58 (1989). Section 1983 is expressly intended to enforce the Fourteenth Amendment by compensating for constitutional harm caused and thereby deterring unconstitutional conduct. Compensatory and punitive damages are available against individuals successfully sued under section 1983, while only compensatory damages are available against local governments. State and local legislators, judges and prosecutors are protected from damages liability by absolute immunity, while all other government officials are protected by qualified immunity only. As I will discuss briefly later, private parties who are successfully sued for damages under section 1983 are not protected by either kind of immunity.

For the purposes of evaluating the Act, two things are worth noting. First, inasmuch as section 1983 is intended to enforce the Fourteenth Amendment, and the Fourteenth Amendment has a state action requirement (that is, the Fourteenth Amendment does not apply to purely private conduct), section 1983 damages actions are available only where the challenged conduct of individual defendants constitutes state action. Once the state action requirement is satisfied, though, section 1983's statutory color of law requirement is also satisfied. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).

Second, the Supreme Court’s current interpretation of section 1983 makes abundantly clear that respondeat superior liability does not apply under section 1983 either with regard to to local governments or supervisors. Monell v. Dept. of Social Services, 436 U.S. 658 (1978). What is currently required for supervisory liability is that the supervisor have acted personally in an unconstitutional manner or with deliberate indifference with respect to the unconstitutional conduct of his or her subordinates. See CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION sec. 3:90. And what is currently required for local government liability is that the unconstitutional conduct have been engaged in pursuant to an official policy or custom of the local government. This includes liability for a local government’s deliberately indifferent failure to train. City of Canton v. Harris, 489 U.S. 378 (1989). See generally CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION ch. 6.

The Act: State Action and Color of Law

The Act, which amends section 1983, provides in relevant part that a surety on a bail bond, an agent of such a surety or any bounty hunter "seeking to obtain or exercise custody over a person admitted to bail under the laws of a State is acting under color of a statute, ordinance, regulation, custom, or usage of that State."

The obvious purpose of this part of the Act is to subject sureties, their agents and bounty hunters to the constraints of section 1983 by characterizing their conduct as color of law. However, even though color of law is statutory in nature and thus theoretically amendable by Congress, what really matters is that the underlying state action requirement is constitutional in nature and thus not amendable by Congress except insofar as Congress is acting within its powers under section 5 of the Fourteenth Amendment. It is seriously questionable whether Congress can expand the scope of section 1983's color of law requirement to include purely private conduct that is not covered by the Fourteenth Amendment’s state action requirement. City of Boerne v. Flores, 117 S. Ct. 2157 (1997). In my view, what this means is that those whom Congress seeks to cover in the Act–sureties, agents and bounty hunters–can only be held liable under section 1983 if their conduct is state action, a determination that must be made judicially on a case by case basis. However, a Congressional declaration that such conduct is under color of law might assist courts in making that determination.

There are four somewhat technical tests for determining when nominally private conduct can be considered state action and thus covered by the Fourteenth Amendment and section 1983. See generally CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION ch. 2. The first test, symbiotic relationship, is that category of cases in which government and the private actor are so closely related and interdependent that it is difficult to ascertain where the government stops and the private conduct begins. The leading case is Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Indeed, this test was one of those used by the Fourth Circuit in Jackson v. Pantazes, 810 F.2d 426 (1987), to find that the challenged conduct of the bounty hunter sued there was state action. The Fourth Circuit relied on the symbiotic relationship between bail bondsmen and the Maryland criminal court system. Although this approach was rejected by the Eighth Circuit in Dean v. Olibas, 129 F.3d 1001 (8^th Cir. 1997), the argument that sureties, their agents and bounty hunters are interdependent with the state both financially and with regard to the operation of the criminal justice system is, in my view, a powerful one.

The second test, nexus, under which the question is whether the government was significantly involved in the nominally private conduct. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). The easiest case in which to find a nexus is where the government compels the challenged conduct. However, it is not enough under this test that government simply permits the challenged conduct. Flagg Bros. v. Brooks, 436 U.S. 149 (1978). Since sureties, their agents and bounty hunters are ordinarily not compelled by the state to seek to obtain or exercise custody, it is not likely that their allegedly unconstitutional conduct would constitute state action under the nexus test. Compare Landry v. A-Able Bonding, Inc., 75 F.3d 200 (5^th Cir. 1996)(the mere possession by a bail bondsman of an arrest warrant, without his using it to arrest the plaintiff and without the participation of law enforcement authorities, not state action) and Ouzts v. Md. National Insurance Co., 505 F.2d 547 (9^th Cir. 1974)(citizen’s arrest by bail bondsman not state action).

The third test is the government function test, with the classic case being Marsh v. Alabama, 326 U.S. 501 (1946), the "company town" case. Under this test, where government delegates a government function to a private party, the private party’s conduct in exercising that function is considered state action. This test was found by the Fourth Circuit in Jackson v Pantezes to be satisfied because the bounty hunter there "was exercising powers conferred on him by state law" which included the right to arrest and to enter private property in order to effect the arrest. Although the Supreme Court has narrowly construed this test and applied it only in circumstances where the delegated government function is both a traditional and exclusive government function, see Rendell-Baker v. Kohn, 457 U.S. 830 (1982), it is my view that this test furnishes the soundest basis for finding the challenged conduct of sureties, their agents and bounty hunters to be state action.

Finally, the fourth test, closely related to nexus, covers those situations in which the private actor acts jointly, conspiratorially or otherwise, with a government official. See Adickes v. Kress, 398 U.S. 144 (1970)(private restaurant and police) and Dennis v. Sparks, 449 U.S. 24 (1980). Since it is often the case that bounty hunters have the cooperation of government law enforcement officers, as was the case in the Fourth Circuit’s Jackson v. Pantazes case, state action can sometimes be found on this basis.

Because the Supreme Court has declared that "the under color of state law requirement does not add anything not already included within the state action requirement of the Fourteenth Amendment," Lugar, 457 U.S. at 935 n.18, the Act must be understood as reflecting Congressional intent to have section 1983 cover sureties, their agents and bounty hunters only insofar as the Fourteenth Amendment does so. Although the symbiotic relationship test is helpful, the firmest grounding for such a general determination is probably the government function test for state action because sureties, their agents and bounty hunters are delegated police powers. Of course, in individual cases it will also be helpful for plaintiffs to show that a surety, agent or bounty hunter has received assistance from law enforcement officials.

The Act: Basis of Liability and Respondeat Superior

In contrast to the state action issue which is a matter of Fourteenth Amendment law, the basis of liability under section 1983 is purely an issue of statutory interpretation and can be changed by Congress if it wishes to do so. Along these lines, the Act not only renders liable in damages a surety or bounty hunter who personally acts against a citizen or another in an allegedly unconstitutional manner. It also appears to render a surety liable in damages for the allegedly unconstitutional conduct of its agent through respondeat superior.

As noted earlier, this is currently not the law under section 1983: respondeat superior liability is not available. The Act changes that in part and allows respondeat superior liability in connection with the unconstitutional conduct of agents of sureties, but not that of other potential section 1983 defendants such as local governments and supervisors. Such a change is obviously intended to encourage sureties to exercise greater control over their agents, including bounty hunters, in connection with Fourteenth Amendment compliance by providing a financial incentive to do so.

An Observation About Defenses

Under current law, private section 1983 defendants acting under color of law are not entitled either to absolute immunity or qualified immunity protection, both of which are limited to government officials. However, the Supreme Court has indicated that they may be entitled to an affirmative defense of good faith and probable cause. See Wyatt v. Cole, 504 U.S. 158 (1992) and 994 F.2d 1113 (5^th Cir. 1993)(on remand from Supreme Court). Thus, even if a surety, agent or bounty hunter is sued for damages under 1983 and a constitutional violation made out, it is still possible that the defendant could avoid damages liability on this basis, which does not seem unfair.