Tyranny by proxy: state action and the private use of deadly force.

• Author: Watts, John L.

INTRODUCTION

Over the past decade there has been considerable public debate over the wisdom of the so-called "stand your ground" laws that allow for the use of deadly force in self-defense, even if the actor could safely retreat and avoid the threatening aggressor. (1) Supporters of the law maintain that law-abiding citizens should not have to cower from those threatening serious bodily harm. Rather they should be allowed to confront the threat with deadly force. (2) Opponents maintain that these laws leads to vigilante justice (3) and the needless escalation of disputes that could have been avoided had one party simply walked away. (4) While Florida's statute has garnered particular national attention, (5) stand your ground laws are neither new nor unique. (6) Currently, twenty-four states allow private citizens to use deadly force in self-defense without imposing a duty to retreat. (7) Furthermore, all states permit the police to use deadly force in self-defense without imposing a duty' to retreat. (8)

Despite the widespread focus on stand your ground laws, the continued existence of the common law fleeing felon rule has gone almost unnoticed. Several states permit private persons to use deadly force to protect property or prevent the escape of a fleeing felon even when the felon does not impose a threat of death or serious bodily harm. Under the common law fleeing felon rule, both law enforcement officers and private citizens enjoyed the privilege of using deadly force to secure the arrest of felons, but neither could use the privilege to secure the arrest of misdemeanants. (9) Although the fleeing felon rule was once the prevailing view in most American jurisdictions, in Tennessee v. Gamer, the Supreme Court held that a police officer's use of deadly force to prevent the escape of a suspected burglar violates the Fourth Amendment's prohibition against unreasonable seizures. (10) A police officer may constitutionally use deadly force only if the officer has probable cause to believe that the suspect poses a danger of serious physical harm to the officer or others. (11) Despite the Court's decision in Gamer, some states continue to allow private citizens to use deadly force to protect property or prevent the escape of nonviolent fleeing felons. (12) In these states, a private person may shoot and kill a common thief to prevent his escape even though a police officer is constitutionally prohibited from using deadly force under the same circumstances.

The common law fleeing felon rule, as it applies to private persons, is arguably constitutionally permissible because of the state action doctrine. (13) The state action doctrine and its exceptions are among the most fundamental, important, and misunderstood principles of constitutional law. (14) Under the state action doctrine, most of the Constitution's protections of individual liberties restrict the conduct of government actors, but they do not restrict the conduct of private actors. (15) There are, however, two exceptions to the state action doctrine that, when they apply, provide constitutional protections from infringements by private persons to the same extent as government actors. The entanglement exception applies when the state commands, encourages, or facilitates private action that the government is constitutionally prohibited from doing itself. (16) The second exception, the public function exception, imposes constitutional restrictions on private actors when they perform certain functions traditionally and exclusively performed by the government. (17) Unfortunately, the Supreme Court decisions discussing the doctrine and applying the exceptions have not been a "model of consistency," (18) and scholars have long regarded the exceptions as a "conceptual disaster area." (19)

This Article seeks to clarify the state action doctrine by reconsidering the purpose of the doctrine and its exceptions and redefining the public function exception so that it better fulfills its purpose. (20) First, it critically scrutinizes the historical justification for the state action doctrine--enhancing federalism and individual autonomy (21)--and explains why these rationales are inadequate. Although the state action doctrine may enhance federalism and autonomy, its raison d'etre can more generally be described as the prevention of government tyranny. Similarly, the exceptions seek to ensure that the Constitution's protections of individual liberties apply to all infringement attributable to the government, even if the most immediate cause of the infringement is the act of a private party. While the state action doctrine prevents direct abuse of government power, the exceptions to the state action doctrine prevent government abuse through the use of private proxies.

Second, the Article maintains that the "traditional and exclusive" state performance test of the public function exception improperly limits the application of the exception. (22) The definition freezes "into law a static conception of government" and formulates a judicial test for state action that "cease[s] to resemble contemporary experience." (23) More fundamentally, the test improperly defines governmental functions, not by the nature of the activity, but by the historic exclusive governmental status of the actors performing the task. This test is sufficient only if the government has not historically delegated basic governmental power or tasks to private actors. But in fact, the government has often delegated governmental functions, sometimes because of a lack of government resources to perform the tasks and sometimes because private actors could achieve the government's end free from constitutional limitations on the means. (24) Under the current test, neither law enforcement nor the private use of deadly force is a public function because the government has not traditionally and exclusively performed either task.

To correct the problems with the current test, this Article advances an alternative formulation of the public function exception that focuses on the governmental nature of the function being performed rather than the exclusive history of government performance. (25) I call this exception the non-delegable governmental duty exception because it is analogous to the non-delegable duty doctrine in tort law. It holds the government responsible for infringements of individual liberties caused by the delegation of certain governmental functions involving peculiar risks of abuse if those performing the function are not constitutionally constrained. (26) It utilizes social contract theory and the related concept of limited government to identify the non-delegable governmental functions. Social contract theory identifies law making, adjudication, and law enforcement as non-delegable government functions because these tasks create unique dangers when left in the hands of self-interested private parties. The peculiar dangers involved in the performance of these functions require that where the government allows private persons to perform these functions, the private person must act under the same limitations constitutionally imposed on government actors.

The Article begins in Part I with a discussion of the Supreme Court's opinion and holding in Tennessee v. Gamer. (27) It then describes the continuing application of the fleeing felon rule to private actors despite the Court's holding in Gamer. (28)

Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court's early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation of powers, democratic elections, jury trials, the Bill of Rights, equal protection, due process, and federalism. The state action doctrine, in effect, turns the Constitution on and off to prevent government tyranny.

Part III describes the two exceptions to the state action doctrine--the entanglement exception and the public function exception--and applies them to the private use of deadly force. It demonstrates--through a review of applicable cases and hypotheticals--that the entanglement exception applies only to the relatively rare cases when the state plays an active role by commanding, encouraging, or facilitating the private use of deadly force. It also explains the flaws of the traditional and exclusive government performance test for the public function exception and why that test fails to encompass the private use of deadly force to seize criminal suspects.

Part IV, the final and most significant section, discusses the proposed alternative non-delegable governmental duty exception. (29) It puts theory to practice by applying the proposed exception to the private use of deadly force to seize non-dangerous fleeing felons. (30) It establishes that the use of deadly force to seize non-violent criminals is a non-delegable governmental function subject to constitutional limits even when private actors exercise that force. (31) It also demonstrates how the non-delegable governmental function exception helps to explain and unify the seemingly inconsistent and patchwork history of the Supreme Court's state action decisions. (32)

1. THE CONSTITUTION AND THE FLEEING FELON RULE: TENNESSEE V. GARNER

   On the night of October 3, 1974, two Memphis police officers responded to a report of a prowler inside a residence. (33) When the officers arrived at the scene, a neighbor reported she had heard glass breaking next door and believed someone had broken into the home. (34) One officer ran to the back of the house where he heard a door slam and observed what he believed to be a small, teenaged male run across the backyard and stop at the base of a six-foot high chain-link fence. (35) The officer did not observe any weapons, and he...