Testimony to be Presented before the House

Subcommittee on the Constitution March 30, 2000

Mr. Chairman and members of the Subcommittee,

My name is Roger Moore. I am a private attorney in Austin, Texas, and I appear before the Subcommittee today in opposition to the passage of H.R. 2964. I have attached to these remarks a copy of my curriculum vitae. During the past two years neither I nor any entity I represent at this hearing has been the recipient of any federal grant, contract or subcontract.

Since 1988 a major part of my law practice has been litigation arising under state and federal civil rights statutes, including litigation under 42 U.S.C. §1983. My opposition to H.R. 2964 primarily concerns what I view as its unwarranted expansion of that statute and its singling out of one private industry for that expansion.

In order to understand the nature of the changes that H.R. 2964 proposes to make to 42 U.S.C. §1983, it is necessary to understand the existing state of the law. 42 U.S.C. §1983 is one of several statutes enacted by Congress soon after the end of the Civil War. At that time, Congress was particularly concerned about the protection of the civil rights of newly-freed slaves in the states that had been part of the Confederacy. There were reports about wide-spread abuses directed at these citizens that were being carried out by state officials or by private persons who had the assistance of state officials. Moreover, there were concerns that existing common-law remedies might be ineffective to remedy these wrongs. Chief among these concerns was the belief that an African-American citizen would be unlikely to receive justice from a state court judge or jury in these southern states. Accordingly, Congress created a federal remedy for the deprivation of any federal right by any person acting under color of state law.

In its early years, most of the cases brought under § 1983 were cases involving violations of civil rights by southern officials. However, the statute was never limited to wrongs committed in southern states, and it was not limited to violation of civil rights. Rather, it has always been a very broad remedial statute. In the modern era, § 1983 has become the primary vehicle for the enforcement of a wide range of federally protected rights.

Sec. 1983, however, is not a remedy that is available whenever a person’s federally protected rights have been violated. Court cases have developed an extensive body of law dealing with two very important limitations upon the remedy. First, the defendant must have been acting under color of state law at the time that he violated the plaintiff’s federally protected right. Second, a person cannot be held liable under § 1983 on a respondeat superior theory. The proposed legislation would significantly change each of these important limitations, but only for a single private industry.

The Requirement of State Action

A great deal of jurisprudence has developed concerning this requirement. When a person clothed with state or local official authority acting pursuant to that authority violates a person’s federally protected rights, the state action requirement is easily satisfied. For example, a sheriff who wrongfully arrests a person is acting under color of state law because he makes the arrest under authority of his position as a state or local official. This kind of situation is easy with respect to the state action requirement of § 1983.

More difficult are cases in which a private person violates a federally protected right. In these cases, the courts have held that there is no state action unless there is a "symbiotic relationship" between the private actor and the state. The test is whether the overall interest of the government and the private actor overlap to such an extent as to virtually coincide. Chan v. City of New York, 803 F.Supp. 710 (S.D. N.Y. 1992), aff’d 1 F.3d 96, cert. denied 114 S.Ct. 472.

Generally, private use of a state-sanctioned remedy is not deemed to be state action, but extensive use of overt, significant assistance of state officials may lead to a finding of state action. Apostol v. Landau, 957 F.2d 339 (7^th Cir. 1992). The state’s mere approval of or acquiescence in private action is not sufficient to establish state action. The state can normally be held responsible for private action only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choices made by the private actor should be deemed to be those of the state. Integrated Information Service, Inc. v. Mountain States Tel. & Tel. Co., 739 F.Supp. 488 (D. Neb. 1990). Even extensive and detailed regulation is not generally sufficient to support a finding of state action. The state must affirmatively support and be directly involved in the specific conduct being challenged. Cannon v. Univ. of Chicago, 559 F.2d 1063 (7^th Cir. 1976), rev’d on other grounds 99 S.Ct. 1946. Many courts have emphasized that the test for determining whether a private actor’s conduct should be deemed to be state action is a fact-specific inquiry that must be decided on a case-by-case basis.

Using these guidelines, courts have held that a citizen’s arrest for trespass is not state action, Carey v. Continental Airlines, Inc., 823 F.2d 1402 (10^th Cir. 1987), and that a private store’s detention of a shoplifter is not state action, Zebrowski v. Denckla, 630 F.Supp. 1307 (E.D. N.Y. 1986). Similarly, the fact that the defendants were licensed by the state as private detectives and were authorized by state statute to detain suspected thieves did not mean that they were acting under color of law. Weyandt v. Mason’s Stores, Inc., 279 F.Supp. 283 (D. Pa. 1968).

In the context of bail bondsmen, a number of courts have considered whether state action was present when the bondsmen brought back into custody persons whose appearance the bondsmen had guaranteed. Like any other private actor case, these cases depend upon the specific facts. For example, courts have found that bondsmen were acting under color of state law when they sought and received extensive assistance from local law enforcement officials. See, Jackson v. Pantazes, 810 F.2d 426 (4^th Cir. 1987); Bailey v. Kenney, 791 F.Supp. 1511 (D. Kan. 1992); Hill v. Toll, 320 F.Supp. 185 (D. Pa. 1970). On the other hand, courts have found no state action when the bondsmen acted alone and without such assistance. Hunt v. Steve Dement Bail Bonds, Inc., 914 F.Supp. 1390 (W.D. La. 1996), aff’d 96 F.3d 1443; Ouzts v. Maryland Nat. Ins. Co., 505 F.2d 547 (9^th Cir. 1974), cert. denied 95 S.Ct. 1681; Landry v. A-Able Bonding, Inc., 75 F.3d 200 (5^th Cir. 1996). In the latter case, although Louisiana law allowed a bail bondsman to obtain and execute a warrant for the arrest of a person who failed to appear in court and although the defendant bondsman had such a warrant, the court found that he was not acting under color of state law because he did not display the warrant, purport to rely upon it or enlist the help of any local law enforcement officials in executing it. Id. At 204-05. He was thus not clothed with state authority at the time of the conduct at issue.

It must also be emphasized that the plaintiff in a §1983 action has the burden of proof on this issue. Because the requirement that the defendant was acting "under color of state law" is an element of the cause of action, the plaintiff has the burden to plead and prove this element by a preponderance of the evidence, and when he fails to do so the defendant is entitled to judgment in his favor.

The proposed legislation would abandon this well-established fact specific, case-by-case inquiry into the existence of state action and replace it (only in the case of claims against bondsmen) with an a priori rule that deems them to be state actors for purposes of claims brought under §1983. In other words, the bill would entirely remove from the plaintiff any burden to show that a private bondsman was so clothed with the authority of the state that he should be treated as if he were an instrumentality of the state.

Respondeat Superior

A second major limitation upon §1983 claims is that a person cannot be held liable under §1983 on a respondeat superior theory. For example, in order to impose liability upon a governmental entity because of a wrong committed by an employee of that entity, a plaintiff must show that the employee’s wrongful conduct was caused by an official policy of the final decision-makers of the governmental body, and that the official policy was the actual moving force for the wrongful conduct. Monell v. New York City Dept. of Social Services, 98 S.Ct. 2018 (1978); City of Oklahoma City v. Tuttle, 105 S.Ct. 2427 (1985). The policy can be formal or informal, but the conduct must directly flow from that policy. Thus, it can be said that the governmental entity itself was involved in the commission of the wrong.

With respect to supervisory liability, the test is similar. Neither respondeat superior nor negligent supervision of subordinates will support a claim under §1983. Wilson v. City of Chicago, 6 F.3d 1233 (7^th Cir. 1993). The plaintiff must show personal involvement by the supervisor in the unconstitutional conduct. Green v. Bauvi, 46 F.3d 189 (2^nd Cir. 1995). Accord, Eason v. Thaler, 73 F.3d 1322 (5^th Cir. 1996). Federal courts of appeals have uniformly held that, in general, a supervisor can be held liable under §1983 only when the facts show personal participation or a direct causal connection between the actions of the supervisor and the wrong. Hegarty v. Somerset County, 53 F.3rd 1367 (1^st Cir. 1995); Black v. Coughlin, 76 F.3d 72 (2^nd Cir. 1996); Keenan v. City of Philadelphia, 983 F.2d 459 (3^rd Cir. 1992); Lopez v. Robinson, 914 F.2d 486 (4^th Cir. 1990); Thompkins v. Belt, 828 F.2d 298 (5^th Cir. 1987); Knop v. Johnson, 977 F.2d 996 (6^th Cir. 1992); Antonelli v. Sheahan, 81 F.3d 1422 (7^th Cir. 1996); Burgess v. Moore, 39 F. 3d 216 (8^th Cir. 1994); Mackinney v. Nielson, 69 F.3d 1002 (9^th Cir. 1995); Gagan v. Norton, 35 F. 3d (10^th Cir. 1994); Dean v. Barber, 951 F.2d 1210 (11^th Cir. 1992).

The proposed legislation appears to attempt to impose such respondeat superior liability upon the surety on a bond for the acts of any bounty hunter who seeks to obtain or exercise custody over a person admitted to bail. Thus, the bill would impose liability upon the surety without proof that the surety was involved at all in the wrongful conduct complained of. This would be a significant broadening of §1983 liability for only a single class of defendants.

Lack of Justification for these Expansions of Liability

As I mentioned at the outset, §1983 was originally created as a supplemental federal remedy because of perceptions that local bias might prevent certain citizens from receiving redress for grievous wrongs. Thus, §1983 gave them the ability to seek redress in federal courts that might be less likely to be affected by local bias.

Those justifications do not exist with respect to claims against bounty hunters and the bail bondsmen who hire them. There is no evidence that a person wronged by such a bounty hunter would be subject to local bias or would be unable to obtain adequate redress for the wrong. Indeed, every state in the United States permits recovery for the common-law torts of assault and battery, false arrest, false imprisonment and defamation. In most states, these wrongful acts by a bounty hunter are also punishable as criminal acts. Thus, a person wronged by a bounty hunter can obtain complete relief under state law. Moreover, as I discussed above, under present law and under appropriate facts, a person wronged by a bounty hunter can already bring a claim under §1983.

There also is no justification for treating the bail bond industry differently than any other private industry with respect to claims brought under §1983. A brief look at the annotation to 42 U.S.C. §1983 reveals the wide variety of private actor defendants who have been sued under that statute. These private actor defendants have included accountants, attorneys, bank officials, cemetery owners, child care institutions, credit reporting services, detectives, engineers, hotel owners, insurers, land developers, landlords, nurses, physicians, radio station owners, restaurant owners, store owners, towing service owners and warehouse owners. In some of the cases the defendants were found to have been acting under color of state law, and in others they were not. However, in every one of the cases, the courts analyzed the specific facts of the case to make that determination. Not one of these professions and commercial enterprises have been subjected to an a priori rule that deems them to be state actors regardless of what the facts might show.

Thank you for your consideration.

Roger Moore