Intelligence Law School - Course 1: Lesson 3.1.4 Outsourcing Constitutional Violations: The Joint-Venture Doctrine and the Civil Rights Act


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LESSON 3: CONSTITUTIONAL LAW


3.1 Introduction to Constitutional Law


3.1.4 Outsourcing Constitutional Violations: The Joint-Venture Doctrine and the Civil Rights Act


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3.1.4 Outsourcing Constitutional Violations: The Joint-Venture Doctrine and the Civil Rights Act

3.1.4.1 Hypothetical Fact Pattern: Warrantless Search Conducted for Police by Private Landlords

So does the governmental action requirement mean that private persons can violate the Constitutional rights of fellow Americans with impunity?

No.

Not at all.

As with most general legal principles, there’s an exception to the rule.

 

Ø  “Monthly Bug Inspection” Hypothetical: Consider a hypothetical.

o   Let’s say you’re a civil rights attorney specializing in domestic intelligence abuses living in a rented apartment in a rural Virginia town.

o   Your landlord is a private citizen not directly governed by the Constitution.

o   One day you decide to publish online a few critical blog posts that enrage several individuals working for the U.S. Intelligence Community.

o   The next day, one of these federal intelligence officials, wishing to disrupt any further First Amendment activities critical of his work, contacts your local sheriff’s office.

o   He tells them that you are a national security threat and ask the locals to keep an eye on you.

o   He gives no specific details about why you’re considered a threat—revealing that kind of classified information might damage national security.

o   As a result of this selective “information sharing,” the local cops never learn that you’re only being targeted because of your First Amendment activities.

o   After this “information sharing” from the feds, the local police and sheriffs department become energized.

o   They finally have an opportunity to work with the feds to protect America from a dangerous thought-criminal like you.

o   As you might expect, they immediately spring into action to protect their small community.

Ø  Warrantless Search by Private Proxy: The local police are aware that they do not have probable cause for a search warrant,[1] but they would really like to search your apartment anyway.

o   Luckily, some officers in the department have developed a relationship with local landlords and property management companies including the one that services your apartment complex.

o   They contact your landlord and property management company and tell them that you’re a national security threat living in one of their buildings.

o   They ask some perfunctory questions about whether or not they’ve noticed anything strange going on in your apartment.

o   They then ask if somebody could go and take a look inside your apartment and report back anything strange that they see.

o   The next day, a representative from your property management company comes into your apartment unannounced.

o   When you ask why she’s there, she tells you “Monthly Bug Inspection.”

o   You have lived there for years and never once had one of these “monthly” bug inspections.

o   The private employee of the management company searches your apartment and—finding no evidence of criminal conduct—leaves to report back to the police on her findings.

 

3.1.4.2 Constitutional Analysis: Application of Constitutional Law to Private Landlord under the Joint-Venture Doctrine

Ø  Constitutional Law Question Presented: Question: Can you hold your private landlord or the property management company directly liable under the Fourth Amendment for helping police conduct a warrantless search of your apartment?

o   The answer is maybe.

Ø  Joint-Venture Analysis for Direct Application of the Fourth Amendment to Search by Private Proxy: Had the police conducted this search directly, it would have clearly required a warrant from a neutral and detached magistrate to comply with the Fourth Amendment.

o   The problem is this governmental action requirement we just talked about.

o   The Fourth Amendment only applies to the actions of governmental actors.

o   Even worse, there is a Supreme Court case called Burdeau v. McDowell that held that the Fourth Amendment doesn’t apply to even illegal searches and seizures conducted by private person, even if that person runs and turns over the evidence they’ve illegally seized to the police.[2]

o   How can you hold a private landlord responsible under a law that doesn’t govern her activities?

o   Well, because there’s an exception to this governmental action requirement for joint ventures.[3]  

o   When the government is acting effectively in a joint venture with private actors, then the actions of those private actors can be considered to be acting as agents of the government.[4]

o   Their unconstitutional activities can therefore be attributed to the government for purposes of constitutional application.

o   Ultimately, it would depend on the nature and extent of the police involvement in the pretextual premises inspection.

o   The greater their involvement in setting it up and controlling the operation, the greater your chances of convincing a judge that the private landlord was acting as a defacto government agent.[5] 

 

3.1.4.3 The FBI’s Use of Paid Informants to Spy on Americans in their Communities

Conspiracies with landlords are interesting, but they aren’t don’t represent the biggest set of governmental-action problems related to domestic intelligence abuses in America today.

There are also the issues raised by the monumental influx of paid informants on the government payroll.

Ø  The FBI’s Program to Hire 15,000 New Paid Informants to Spy on Americans in their Communities: In 2007, FBI Director Robert Mueller initiated a program to recruit 15,000 new covert informants inside the United States who the FBI trained and now pays to spy on Americans in their local communities.[6]

o   The degree to which these paid informants can be used to violate or at least circumvent the Constitutional rights of targeted Americans remains an under-tested question.

o   It’ll be up to America’s civil rights attorneys to fight back against any abuses that occur at the hands of this privatized secret police.

 

3.1.4.4 Civil Action for Deprivation of Rights: 42 U.S.C. § 1983 and Bivens Actions

The Civil Rights Act gives you a cause of action in federal district court against any person or persons acting under color of law who deprive you of any rights secured to you by the Constitution or laws of the United States. [7]

Specifically, the statute says

Ø  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress […]” [8]

 

The Civil Rights Act falls into the category of “statutory law,” so we’ll be discussing it in the next lesson—Lesson 4: Introduction to Statutory Law.

The problem of outsourcing constitutional or statutory law violations to private contractors is actually a huge problem right now, and it raises far more legal issues than I can address effectively in this course.[9]

That’s why I’ll be addressing the outsourcing problem in greater depth along with the Civil Rights Act and a case called Bivens[10] later on in other courses.

 

Footnotes

[1] Probable cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found,” Ornelas v. United States, 517 U.S. 690, 696 (1996); Illinois v. Gates, 462 U.S. 213, 238 (1983).

[2] Burdeau v. McDowell, 256 U.S. 465 (1921); see also generally United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973); see also generally United States v. Rodriguez, 596 F.2d 169 (6th Cir. 1979); see also generally United States v. Tripp, 468 F.2d 569 (9th Cir. 1972).

[3] See generally Joshua Dressler & George C. Thomas III, Criminal Procedure: Principles, Policies and Perspectives 66 (1999).

[4] United States v. Price, 383 U.S. 787, 794 (1966) (“Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”).

[5] United States v. Price, 383 U.S. 787, 794 (1966) (“Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”).

[6] Bill Press, Privacy Takes Another Hit with Return of Junior G-Men, Baltimore Sun, Aug. 1, 2007, at 11A (detailing the FBI's plan to recruit 15,000 covert informants inside the United States).

[7] 42 U.S.C. § 1983 (“Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”).

[8] 42 U.S.C. § 1983 (“Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”).

[9] After 9/11, intelligence agencies were inundated with new funding from Congress. As a result, a very large industry of private intelligence firms began to grow and flourish. The growth of this industry has some commentators concerned, and it has been unofficially dubbed the “Intelligence Industrial Complex” by many.

Concerns arise because billions of taxpayer dollars are now spent to pay private contractors to perform functions that have historically been reserved for intelligence agency employees only. Some civil liberties groups allege that the expansive use of contractors is an attempt by some intelligence officials to avoid legal limitations imposed by the Constitution and statutes like the Privacy Act, both of which apply primarily to government actors. Defenders of intelligence privatization say that government bureaucracies are not conducive to the kind of rapid innovation needed to stay at the forefront of technology in the Information Age. Proponents argue that the private sector is best adapted to meet the needs of the rapidly changing technological environment within which most modern intelligence activities take place.

[10] See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

 


© 2012 David Alan Jordan. All rights reserved.