Tuesday, May 13, 2014

Second Circuit clarifies how to plead a "state actor" conspiracy claim

Non-lawyers sometimes think constitutional protections apply whenever someone is wronged. This is common when a private entity silences someone. The victim asserts his First Amendment rights to speak, but that goes nowhere because the government did not silence the victim, a private entity did. More broadly, none of our constitutional provisions apply without "state action," a clunky phrase that means the government has to be responsible for the rights deprivation.

The case is Betts v. Shearman, decided on May 2. This case began as a domestic dispute when the wife, Shearman, went beserk and Betts hid out in a spare bedroom while Sherman called the police to falsely complain that Betts had assaulted her. Betts was arrested for assault, but the charges were later dropped. The general false arrest claim (dismissed under Federal Rule 12 for failure to state a claim) is summarized here. Betts also says that Sherman's bad acts are imputed to the government for state action purposes because the police worked with her to falsify the charges. That claim also fails.

In dismissing this claim, the Second Circuit (Winter, Walker and Wesley) summarizes the state of the law on state actor conspiracy, using a Second Circuit and two district court rulings as examples. It is settled law that "a private actor can only be a willful participant in joint activity with the State or its agents if the two share some common goal to violate the plaintiff's rights." But the Court of Appeals uses the lower court rulings for illustration for lack of any good ones from the Court of Appeals.

In one case, Ginsburg v. Healey Leasing, 189 F.3d 268 (2d Cir. 1999), the leasing manager called the police to report that plaintiff did not pay his rental fee. But there was no joint state actor claim because "Healey Leasing's requesting police assistance and providing information that led to police action did not make Healey Leasing a joint participant in state action." But in two district court cases, the courts found potential joint actor liability. In Bang v. Utopia Restaurant, 923 F. Supp. 2d 46 (1996), the police arrested the plaintiff after speaking to the restaurant owner for 20 minutes. The court said it was reasonable to infer that, during that 20 minute conversation, the police and the business owner agreed to arrest the plaintiff without probable cause. Had the police arrested plaintiff as soon as they showed up at the restaurant, there would not  have been time to hatch the conspiracy. And in White v. Moylan, 554 F. Supp. 2d 263 (D. Conn. 2008), the plaintiff alleged a joint state action claim for a bogus shoplifting arrest because he alleged that security guards and the arresting officer reviewed surveillance footage and worked in tandem to arrest him for theft after determining that his merchandise was not in fact stolen.

So that's how joint action conspiracy works in constitutional cases. It does not work in this case. The husband argues that the wife conspired with the police to falsely arrest him for assault, but that does not work because "Betts's allegation that Shearman was coached by the the Officers into making false accusations is not plausible given that Sherman first called the police and reported that she was assaulted prior to her interaction with the officers."

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