James Proffitt, Special Administrator of the Estate of William R. Woodall v. Dean R. Ridgway

RIPPLE, Circuit Judge,

concurring in part and dissenting in part.

I join the judgment and the opinion of the court in sofar as it affirms the dismissal of this action against Officer Ridgway and the City of Pana, Illinois. I cannot, however, join the panel majority’s characterization of the actions of Mr. Lykins as those of a purely private actor who cannot be liable under § 1983 because he did not act under color of state law. The panel majority reaches that conclusion only by adopting a novel and overly restrictive view of the “under color of state law” requirement, a view that cannot be squared with the jurisprudence of the Supreme Court of the United States or of this court. Although a volunteer rather than an individual employed by the City, Mr. Lykins not only took part in a joint activity with a governmental officer but took directions from that officer throughout the episode. He therefore acted not only with and on behalf of the state but under its command and control. Under the existing case law that must govern our decision in this case, Mr. Lykins is clearly a state actor.

It cannot be doubted that Mr. Lykins acted in concert with Officer Ridgway. As the panel majority’s rendition of the facts makes clear, Mr. Lykins, coming upon the distressed officer, asked the officer whether he needed help. He received an affirmative reply. He then followed the officer’s direction: “Let’s take him to the ground.” As the fray continued, Mr. Ly-kins asked the officer whether Woodall could be rendered unconscious and then informed the officer that he planned to use a choke hold to do so. As Mr. Lykins applied pressure to Woodall’s neck, Officer *509 Ridgway, on several occasions, directed that he loosen his hold. Clearly, Mr. Ly-kins undertook the activity at the request and with the permission of the officer and, throughout the ensuing attempt to subdue Woodall, acted at the officer’s direction. Indeed, he sought the officer’s permission before taking specific action and kept the officer informed of his plans. Officer Ridgway, moreover, gave direction and clearly considered Mr. Lykins to be under his control.

The panel majority declares that, despite the fact that Mr. Lykins operated at the invitation, with the permission and under the control of Officer Ridgway, his actions cannot be characterized as those of a state actor because there is no evidence of a conspiracy between the Officer and Mr. Lykins to violate the constitutional rights of Woodall. Nor, in the view of the panel majority, can Mr. Lykins be said to have been “deputized by the City or by Officer Ridgway.”

The fundamental infirmity with the panel majority’s analysis is that it delineates the manner in which a private individual can be considered as acting on behalf of the state far too parsimoniously to be compatible with the existing — and controlling — case law. At the outset, it must be noted that the majority implies that the entire “state actor” concept is a great deal narrower than the Supreme Court says that it is. As Justice White, writing for the Court in Lugar v. Edmondson Oil, 457 U.S. 922, 939 , 102 S.Ct. 2744 , 73 L.Ed.2d 482 (1982), pointed out, “something more” than merely acting in conformity with a state statute is necessary to warrant the characterization that a private party is a “state actor.” Referring to the Court’s earlier decision in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 , 98 S.Ct. 1729 , 56 L.Ed.2d 185 (1978), the Justice continued, that “something more” can be articulated in a variety of ways:

The Court suggested that “something more” which would convert the private party into a state actor might vary with the circumstances of the case. This was simply a recognition that the Court has articulated a number of different factors or tests in different contexts: e.g., the “public function” test; the “state compulsion” test; the “nexus” test; and in the case of prejudgment attachments, a “joint action test.”

Lugar, 457 U.S. at 939 , 102 S.Ct. 2744 (internal citations omitted). That “something more” in this case is found in the agreement between Lykins and Ridgway to “take down” Mr. Woodall. There can be little question that the two engaged in concerted action with a common goal. He did not stop and attack Woodall on his own without receiving approval from Ridgway. Lykins looked to Ridgway for instruction throughout the episode and received direction from Ridgway.

Not only does the panel majority unduly narrow the entire state actor doctrine, but it narrows even further the formulations pertinent to this case. Certainly, a conspiracy between a governmental official and a private actor will suffice to justify characterizing the private individual’s action in furtherance of the conspiracy as state action. So too, the deputizing of a private individual by a state officer and the subsequent participation in joint activity by the two to violate the civil rights of an individual will suffice. But these particular instances of state-individual joint undertakings are hardly exhaustive of the circumstances that will necessitate the application of the state actor doctrine. As the Supreme Court has stated repeatedly, what is necessary — in pure and simple terms — is that the private actor be “a willful participant in joint action with the *510 State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27-28 , 101 S.Ct. 183 , 66 L.Ed.2d 185 (1980); see also Jackson v. Pantazes, 810 F.2d 426, 429-30 (4th Cir.1987) (holding that bail bondsman was state actor where he searched a home for a felon with a police officer; the court wrote that “in cases where a private party and a public official act jointly to produce the constitutional violation, both parts of the Lugar test are simultaneously satisfied”). This principle, formulated in United States v. Price, 383 U.S. 787, 794 , 86 S.Ct. 1152 , 16 L.Ed.2d 267 (1966), and confirmed by Justice Harlan in Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970), has become a cornerstone of § 1983 jurisprudence and followed consistently until today’s opinion. Indeed, the case law of this circuit acknowledges, quite straightforwardly, that what is essential to finding that a private actor has become a state actor is not the formality of his relationship with the state or its agent or the duration of that relationship. See Wade v. Byles, 83 F.3d 902, 904-05 (7th Cir.1996). What is important is whether the state or its agent is aware of the participation of the private individual and “effectively directs, controls, or encourages the actions of a private party.” Id. at 905 ; see also Payton v. Rush-Presbyterian-St. Luke’s Med. Center, 184 F.3d 623, 628 (7th Cir.1999); United States v. Shahid, 117 F.3d 322, 326 (7th Cir.1997).

These requirements are compatible with the purpose of § 1983. “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 , 112 S.Ct. 1827 , 118 L.Ed.2d 504 (1992); see also Fries v. Helsper, 146 F.3d 452 (7th Cir.1998). This section is designed, therefore, to curb abuses of state power. As applied to private individuals, the section attempts to curb those individuals who, vested with the indicia of governmental power, are emboldened to abuse it to the detriment of those who do not enjoy the same relationship with the state. Those who simply report criminal activity to authorities or give directions to a police officer upon his inquiry, or undertake on their own to be of assistance to the police have not acted with the knowledge or permission of the police nor have they acted under the control and the direction of the police. While the determination of whether an individual has become a state actor is a fact-specific inquiry, the judicial methodology for assessing those facts is well-established and compatible with the purpose of § 1983. It is not, as the panel majority puts it, “vague.” Although the panel majority says there is a “line,” one searches in vain for any indication of what line it proposes to substitute for the one established by the case law.

I can well appreciate the reluctance to hold liable for damages a private citizen who fulfills a moral duty to come to the assistance of a police officer who has asked for his help in an emergency situation. 1 But the solution does not lie in the disestablishment of settled doctrine with re *511 spect to the requirements for determining if an individual is a state actor. Rather, as the Supreme Court has noted in Richardson v. McKnight, 521 U.S. 399, 413-14 , 117 S.Ct. 2100 , 138 L.Ed.2d 540 (1997), the focus ought to be on whether such individuals ought to receive a form of immunity from suit or some similar protection from liability. See Richardson, 521 U.S. at 413 , 117 S.Ct. 2100 (“The case does not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision”). Indeed, the fact that the Court acknowledged the necessity to address this issue in terms of immunity casts additional doubt on the panel majority’s declaration that a bystander who renders brief ad hoc assistance to a police officer ought not be considered a state actor.

Because I believe that the working relationship between Ridgway and Lykins, evaluated in its totality, warrants a determination that Lykins was a state actor, I respectfully dissent from the contrary portion of the majority’s opinion.

. Some states require citizens to come to the aid of law enforcement officers in certain circumstances and citizens who fail to render such aid expose themselves to criminal sanctions. See, e.g., S.C.Code § 23-14-70 (“any person who shall fail to respond and render assistance when summoned by a deputy sheriff to assist in enforcing the laws and in arresting violators or suspected violators thereof shall be guilty of a misdemeanor”); Vt. Stat. tit. XXIV § 301 (“A person being required in the name of the state ... who neglects or refuses to assist such an officer in the execution of his office ... shall be fined not more than $500.”).