• John H. Ray, III

REASSESSING THE LIMITS OF CIVIL RIGHTS LIABILITY AGAINST THE STATE IN LIGHT OF THE ARBERY CASE

What do you call a person who is authorized by the state to drive almost anywhere around the state making arrests of any person upon suspicion of a crime, while carrying a gun in public, and where necessary using lethal force, including shooting the “suspect” to death? A state police officer, correct? Yes, in part; that person may also be nearly any private citizen in Georgia (and several other states). Under Georgia law, “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.” (Georgia Code § 17-4-60.) In addition, “Any person who is not prohibited by law from possessing a handgun or long gun may have or carry on his or her person a long gun without a valid weapons carry license, provided that if the long gun is loaded, it shall only be carried in an open and fully exposed manner.” (Georgia Code § 1-11-126(b).) And, “A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force.” (Georgia Code § 16-3-21.)

While one might question the sanity of such laws (separately, or in combination)—certainly in the wake of the shooting of African-American Ahmaud Arbery by two private white Georgia citizens—the question one ought to ask is why is the State of Georgia not liable for excessive force when it authorizes private citizens like Greg and Travis McMichael to troll the streets with guns, and without badges, uniforms, supervision or training, trying to arrest or kill whomever they feel warrants arrest based upon loose notions of “reasonable and probable grounds of suspicion” and “self-defense,” when the shooting was excessive, as many who watched the video in the Arbery case (rightly) believe.


If the Georgia legislature authorizes such vigilante justice, shouldn’t it be liable when it all goes wrong? And shouldn’t Georgia be especially penalized if, as many believe in the Arbery case, it authorized racists to persecute and kill blacks for merely jogging in their neighborhoods?

The answer is probably not, but constitutional law in this area is ripe for reconsideration. The law, 48 U.S.C. § 1983, only makes states liable for individual acts carried out “under color of” state law. Specifically, a plaintiff must show that “the conduct allegedly causing the deprivation of a federal right [was] fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

It is well established that the constitution “erects no shield against merely private conduct, however discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quotingShelley v. Kraemer, 334 U.S. 1, 13 (1948)). But the question of “whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349–50 (1974).

In general terms, a private actor may be deemed a state actor if he or she performs functions that are “traditionally the exclusive prerogative of the State.” Jackson, 419 U.S. at 353. “Such functions are so closely associated with government that a state cannot limit its accountability for their performance, even if they are carried out by private parties. Thus, although a state remains free to delegate the performance of these functions to private entities, the private entities are treated as arms of the state for purposes of § 1983 and the Fourteenth Amendment.” Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996).

The question of private security or citizens making arrests as a basis for state liability has been addressed by the federal courts, usually landing on the side of finding that the state is not liable. See, e.g., Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989) (clinic employees' citizen’s arrest of protestors was not state action); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987) (citizen’s arrest by airport security does not constitute state action); White v. Scrivner Corp., 594 F.2d 140, 142–43 (5th Cir.1979) (grocery store assistant manager detention of suspected shoplifter is not an exclusive state function).

While a citizen’s arrest might look like state action, most cases have found that the line is not whether some police authority has been delegated to private citizens, but whether something resembling all police authority has been delegated. See, e.g., Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 637 (6th Cir. 2005) (finding cases establish that where individuals “are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test.”) (citing Payton v. Rush–Presbyterian, 184 F.3d 623, 627–30 (7th Cir.1999) (“Underlying all of these cases is the notion that if the state cloaks private individuals with virtually the same power as public police officers, and the private actors allegedly abuse that power to violate a plaintiff's civil rights, that plaintiff's ability to claim relief under § 1983 should be unaffected.”); see also U.S. v. Day, 591 F.3d 679, 688 (4th Cir. 2010) (finding no delegation of plenary arrest authority, without finding such delegation sufficient to constitute a public function, because individuals did not possess the same power to make warrantless arrests afforded to Virginia police officers).

But a limited line in Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr., supra, may suggest another possibility, that the authority, even if not complete or plenary, must be circumscribed in geographical reach. Rejecting state liability in Payton, the United States Court of Appeals for the Seventh Circuit (in Chicago), found in a security guard special police officer arrest case that “none of th[e] powers [exercised by the security officers] had been exclusively reserved to the police—citizen’s arrests and the rights to carry handguns and use them in self-defense are available to individuals outside of the law enforcement community.” Id. at 629 (citing Wade, 83 F.3d 906). Exactly the same circumstances in the Arbery case, in Georgia. But Payton also noted an additional significant limitation: “the area in which the defendant was authorized to act was strictly circumscribed—he could only perform his responsibilities in the lobby of CHA properties.” Payton, 184 F.3d at 629.

And that distinction makes sense. The combination of citizen arrest power, and the power to carry a handgun and use lethal force in self-defense is a uniquely powerful combination. Within a building or even a shopping mall (private property), such power is facially reasonable and sufficiently limited. Across the entirety of the state, it is not. Every person reasonably expects to submit some authority to a private person or business on their property. But no one expects that they have submitted to any Tom, Dick or Dirty Harry while walking, jogging or driving on the street. That latter circumstance begins to appear to be similar to the exclusive authority of the police, and likely therefore, an exclusively public function.

There are no doubt circumstances in which private citizen’s arrests are a significant value to society, and we want private citizens to do their civic duty to detain a person reasonably suspected of a crime until the police arrive. There are also circumstances in which we want private citizens to use lethal force to protect either themselves or others from a person using lethal force. But a private citizen introducing a firearm into a situation where the suspected person did not have a weapon and was not using force against anyone until he was first approached by the private citizen in a place where he had every right to be, is not a situation anyone would want to encourage. It is reckless and irresponsible escalation, unless conducted by a trained professional (i.e., the police). Such escalation authority is in that regard authority that any reasonable person would expect is a public function, and state action, for which the state would be liable for unreasonable or excessive use of force.

Stated differently, no state should allow private citizens to possess a firearm during or use deadly force to initiate a citizen’s arrest. If they do, then they should be liable for the conduct of the citizen as they would for any police officer. But even if courts adopted such an approach, the problem still remains that the state cannot be both liable for delegating public functions and the person guilty of a crime for exceeding the scope of the law. See, e.g., Collins v. Womancare, 878 F.2d 1145, 1153 (9th Cir. 1989) (“Their challenge to the citizen’s arrests based on a delegation by statute argument fails because their claim depends upon the violation of California’s citizen’s arrest statute.”). That is to say, in the Arbery case, either the McMichaels are guilty of a crime, or the State of Georgia may be liable for their apparent excessive force, but not both.

But if the McMichaels are acquitted of their current charges, there should be a serious discussion, likely in the context of a federal lawsuit against the State of Georgia, whether these kinds of citizen’s arrest statutes should give rise to constitutional liability.

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