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The Failure of Analogy in Conceptualizing Private Entity Liability Under Section 1983

32 Pages Posted: 24 May 2010  

Richard Frankel

Drexel University Thomas R. Kline School of Law

Date Written: May 19, 2010


This paper examines the liability rules that apply to the growing number of private entities that perform state functions and fall within the purview of Section 1983. In particular, this paper asserts that in Section 1983 cases, courts often determine the scope of private-entity liability by comparing private-entities to government actors, and that this act of comparison leads to poor results that impair victims of constitutional violations from vindicating their rights. Instead of focusing on comparison and analogy, this paper proposes that courts should recognize that private entities are their own separate category of defendants and should treat them as such. Rather than engaging in analogy, courts can utilize the huge body of law that already exists for determining the liability of private parties that commit injurious acts – tort law.

First, I briefly describe the current approach to determining private-entity liability and explains how courts often rely on analogy as their interpretive method. Second, I examine three recent Supreme Court decisions in Section 1983 or Bivens cases – two involving private defendants and one involving governmental defendants – and shows how the Court’s focus on analogy in each case leads to unsound or misguided results. Third, I offer some hypotheses about why courts tend to use analogy in the private-entity context. Finally, I suggest that courts should limit their focus on analogy and offers an alternative framework for assessing private-entity liability.

Because Section 1983 only applies to persons acting “under color” of state law, it deals primarily with governmental defendants -- public employees, municipalities, and States. Consequently, the liability rules that courts have crafted have been crafted primarily with governmental defendants in mind. When dealing with private-entity defendants, courts often have made liability determinations by analogizing to (or distinguishing from) particular government actors and then applying, or refusing to apply, the liability rules controlling those actors to the private entity. The use of analogy, however, can become very strategic because of the different liability rules that apply to different public actors. For example, municipalities are immune from punitive damages whereas individual governmental employees are not; individual public employees receive qualified immunity whereas municipalities do not; and state governments are exempt from damages entirely and may only be sued for equitable relief. Thus, the particular analogy that a court chooses to draw has significant implications for the relief available to a plaintiff seeking to recover for a private entity’s constitutional violations. However, when courts do rely on analogy, the focus on analogy can lead to misguided and unsound results.

A. Richardson v. McKnight, 521 U.S. 399 (1997). The Richardson Court held that employees of a private prison are not entitled to the defense of qualified immunity in § 1983 actions, even though employees of public prisons do receive qualified immunity. Richardson is a case where I believe the Court reached a good result, but based its decision on a flawed distinction between public and private actors that leaves the decision open to attack, and that may have caused the Court to create a caveat that has substantially limited the reach of its decision.

B. Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001). The Malesko Court held that a plaintiff cannot bring a Bivens action against a private entity that performs services for the federal government but can only bring a Bivens claim against the entity’s employees. This case is one in which I believe the central role of analogy in the Court’s decision-making causes the Court to lose focus on the underlying policy that the principles analogized to are supposed to serve.

C. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Iqbal Court, analogizing in part to § 1983’s rule that municipal defendants cannot be held vicariously liable for the torts of their employees but can be held liable only if a municipal custom or policy causes the constitutional violation, determined that high-level federal officials could not be held liable in a Bivens action under a theory of “supervisory liability,” even where they had actual knowledge of their subordinates’ misconduct and failed to act. To the extent that the Court relied on analogy to § 1983 in reaching its decision, the analogy it drew does not support the result. In contrast to the Court’s holding in Iqbal, § 1983 contemplates liability for supervisory employees, and permits municipal liability based on a municipal official’s actual or constructive knowledge of an employee’s constitutional violation and a failure to stop it.

A. The State Action Doctrine
B. A Veneer for Judicial Policymaking
C. Natural Difficulties with Categorizing Private Entities
IV. An Alternative Framework
Instead of determining private-entity liability based on the entity’s perceived similarities to or differences from government actors, courts should treat the private entity as a distinct type of defendant. It is neither a government entity nor an individual. Consequently, instead of analogizing to government actors, courts can apply laws and doctrines that have been specifically developed to deal with private entities, specifically private tort law. Private tort law generally does not bestow private parties with the kinds of immunities and protections provided under Section 1983, and it is not necessarily the case that private entities should receive such protections simply because they happen to act under color of state law. Although tort law principles have been used in the past to constrain liability under Section 1983, at least with respect to private-entity defendants, using a tort law framework could actually eliminate several unnecessary barriers to recovery in Section 1983 actions and better fulfill the statute’s purpose of protecting constitutional rights.

Keywords: constitutional law, civil rights, torts, privatization, public law, Supreme Court

Suggested Citation

Frankel, Richard, The Failure of Analogy in Conceptualizing Private Entity Liability Under Section 1983 (May 19, 2010). University of Missouri-Kansas City Law Review, Vol. 78, No. 4, 2010; Drexel University Earle Mack School of Law Research Paper No. 2010-A-09. Available at SSRN:

Richard Frankel (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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