Opposition Brief — Hsien Peng v. Mei Chin Peng Hu

Supreme ¢ ourt, 7

ae FILED |

(2) JAN 2.62004

No. 03-768 OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

| 4

HSIEN I. PENG,

Petitioner,

V.

MEI CHIN PENG HU; JONATHAN HU,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

4

RESPONDENTS’ BRIEF IN OPPOSITION

Max C. CHIANG

Counsel of Record

18000 Studebaker Road

Suite 585

Cerritos, CA 90703

(562) 809-3210

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER-STATEMENT TO

QUESTION PRESENTED

In order to establish a right to recover under 42 U.S.C.

§1983 against private defendants, does a Plaintiff need to

prove a conspiracy between state official(s) and the private

defendants? Does the mere making of the report to the

police by a private person constitute a “state action” for

purposes of the Fourteenth Amendment?

TABLE OF CONTENTS

Counter-Statement to Question Presented

Statement of the CARS ....cscccsseccsessvecsenssecss

Reasons for Denying Review..................000

I. The Decision of the Ninth Circuit was Correct

and Consistent with this Court’s Prior Deci-

Sees eeseseeseereeee

II.

The Ninth Circuit was Correct in Finding

No Concerted Action between the State Of-

ficial and the two Private Parties...............

Both the District Court and the Ninth Cir-

cuit have found that the State Official,

Deputy Gage, had probable cause to arrest

Petitioner or in the alternative, had quali-

fied immunity when conducting the arrest.

Therefore, there was no “State Action” for

purposes of Fourteenth Amendment Viola-

tion on part of Deputy Gage, and there

could not be any conspiracy between Re-

spondents, the private parties, and the

Deputy Sheriff who did nothing wrong to

CORIO QUO ccicicsnissriaridmen

This Court in Lugar v. Edmondson Oil Co.,

457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982) has clearly set forth the rule for the re-

lationship between §1983 Requirement of “Ac-

tion under Color of State Law” and the

Fourteenth Amendment Requirement of “State

DIE vv nissnaiicucs een

TABLE OF CONTENTS -— Continued

Page

A. The “State-Action” and the “Under Color-

of-State-law” are identical if the 1983 ac-

tion is brought against a state official. As

to a 1983 action against a private person,

if the challenged conduct of private person

constitutes state action as delimited by

this Court’s prior decisions, then the con-

duct of the private person was also action

under color of state law............cceeeeeeeeeees 8

B. Whether the challenged conduct of a pri-

vate person constitutes a state action is

determined by private partys’ joint par-

ticipation with the state official in the

deprivation of rights of the victim.............. 11

ee eoasiviienbneutbiiovnanioesen 12

iv

TABLE OF AUTHORITIES

Page

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct.

Ss ee ee BN i occcerencsacsncenunmininndciecsniionnienaes 3

Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66

Ae IIE sdikicsncdistinacenlastalalchasibcincammctibaainemeciens, 5,6

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98

Res. heey Ge ae BOOP RF Fe vsecesostcrenetessccvonsevssnsnces 3

Lugar v. Edmondson Oil Co., 457 U.S. 922, 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982).................cccceeee passim

Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538,

ee PI EI uisicishcnnca tantesntacknendaedconcinesnonansnstacdons 2

United States v. Price, 383 U.S. 787, 86 S.Ct. 1152,

i Ie Ce icteinstirisacncicncnvdeacaneeancessaontenes 3, 4,5

STATUTES

Oe te EE siechinihiien iki sishisicenssansdunccentimiiasgurseonaiacin passim

Ree CE. FUERTE FANE nics cicticncnssncececscsscsctecses 1

U.S. Const., Fourteenth Amendment........................ passim

1

STATEMENT OF THE CASE

Petitioner Hsien I. Peng filed his civil rights action

under the Civil Rights Act, 42 U.S.C. §1983 against Los

Angeles County Deputy Sheriff Scott Gage who is no

longer in this proceeding, as well as his sister, Respondent

Mei Chin Peng Hu, and his nephew, Respondent Jonathan

Hu, alleging their violations of Peng’s Fourth Amendment

rights.

The District Court granted Deputy Sheriff’s Sum-

mary Judgment Motion on the ground that under the

totality of the circumstances, Deputy Gage’s belief that

probable cause existed to arrest Peng for robbery was

objectively reasonable. The District Court reasoned that

Deputy Gage did not rely solely on conclusory allegations

made by M. Hu, the alleged victim of the robbery. Rather,

M. Hu’s allegations were specific, based on personal

knowledge, and could support a reasonable police officer’s

conclusion that Peng used the threat of force to obtain the

title documents from her. The District Court also held that

whether Hus had asked Deputy Gage to arrest Peng is

immaterial to the existence of probable cause. (Petition

App. C at 42a)

Having granted the Deputy’s Summary Judgment

Motion, the District Court issued an Order to Show Cause

for Plaintiff-Appellant to show the reason why the action

under Section 1983 may proceed against the two remain-

ing private/individual defendants. After its review of the

parties’ written responses to Court’s Order to Show Cause,

the District Court ordered that the case as against the

individual defendants be dismissed on the ground that the

individual defendants were not state actors for purposes of

42 U.S.C. §1983 because there was no concerted action

ee

5 eS od a RR a a am

2

between them and Deputy Gage to have Petitioner ar-

rested and, in the alternative, the individual defendants,

M. Hu and J. Hu, did not have such control over Deputy

Gage’s conduct to be said to have proximately caused the

alleged constitutional tort. (Petition App. C at 26a-30a).

Petitioner filed an appeal to the Ninth Circuit to the

District Court’s Order for Summary Judgment, dismissing

Petitioner’s claim against Deputy Sheriff Gage and the

District Court’s Order re: Subject Matter Jurisdiction

dismissing Petitioner’s claim against his sister and

nephew.

The Ninth Circuit affirmed both orders of the District

Court, holding that Deputy Gage had probable cause to

arrest petitioner, and even if he did not have probable

cause, Gage was entitled to qualified immunity; and that

even though there were disputed facts as to whether Mei

Hu and Jonathan Hu had lied to Gage in causing his

arrest, there was no evidence that Gage knew that peti-

tioner was innocent of robbery to determine concerted

action to make Mei Hu and Jonathan Hu state actors for

purposes of §1983.

The Ninth Circuit relied on this Court’s decision in

Soldal v. Cook County, 506 U.S. 56, 60 n.6, 113 S.Ct. 538,

121 L.Ed.2d 450 (1992) which noted that “if the police

condone activities by private parties that they know to be

illegal, there exists sufficient evidence of conspiracy

between the private parties and the officer to foreclose

summary judgment.” Lacking evidence of police’s knowl-

edge of Peng’s alleged innocence, the Ninth Circuit, there-

fore, found no conspiracy between Deputy Gage and the two

private parties. The Ninth Circuit further held that a single

request to the police, without more, was not sufficient to

3

establish a claim against a private actor pursuant to

§1983. (Petition App. B at 17a, 19a and 21a-22a).

Petitioner requested a rehearing and a rehearing en

banc after the Ninth Circuit issued its opinion. The re-

quest for rehearing was denied, and Petitioner subse-

quently filed this Petition for Writ of Certiorari.

,%

v

REASONS FOR DENYING REVIEW

I. THE DECISION OF THE NINTH CIRCUIT WAS

CORRECT AND CONSISTENT WITH THIS

COURT’S PRIOR DECISIONS.

A. THE NINTH CIRCUIT WAS CORRECT IN

FINDING NO CONCERTED ACTION BE-

TWEEN THE STATE OFFICIAL, DEPUTY

GAGE, AND THE TWO PRIVATE PARTIES,

MEI HU AND JONATHAN HU.

This Court has consistently held that the involvement

of a state official in a conspiracy between state officials

and private persons would provide the state action needed

to show a direct violation of a victim’s Fourteenth Amend-

ment rights entitling her to relief under §1983 and that

private persons involved in such a conspiracy are acting

“under color” of law and can be liable under §1983.

(Adickes v. Kress & Co., 198 U.S. 144 (1970); Flagg Bros.,

Inc. v. Brooks, 436 U.S. 149 (1978); United States v. Price,

383 U.S. 787 (1966); Dennis v. Sparks, 449 U.S. 24 (1980))

This Court in Adickes v. Kress & Co., 198 U.S. 144

(1970) held that the involvement of a state official in a

conspiracy plainly provides the state action essential to

4

show a direct violation of the victim’s Fourteenth Amend-

ment equal protection rights, whether or not the actions of

the police were officially authorized, or lawful and that a

private party involved in such a conspiracy, even though

not an official of the State, can be liable under 1983. This

Court further held that “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 partici-

pant in joint activity with the State or its agents,” (citing

United States v. Price, 383 U.S. 787, 794 (1966).) Id., 398

U.S. at 153. This Court had placed the emphasis on the

issue whether the private person and the policeman

somehow reached an understanding to deny Miss Adickes

service or to cause her subsequent arrest.

In United States v. Price, 383 U.S. 787 (1966), this

court held that private persons, jointly engaged with state

officials in the prohibited action, are acting “under color”

of law for purposes of the statute [§1983]. 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. This Court noted

that in Price the brutal joint adventure was made possible

by state detention and calculated release of the prisoners

by an officer of the State. This action, clearly attributable

to the State, was part of the monstrous design described

by the indictment. State officers participated in every

phase of the alleged venture: the release from jail, the

interception, assault and murder. It was a joint activity,

from start to finish. Those who took advantage of partici-

pation by state officers in accomplishment of the foul

purpose alleged must suffer the consequences of that

5

participation. In effect, if the allegations are true, they

were participants in official lawlessness, acting in willful

concert with state officers and hence under color of law.

Id., 383 U.S. 787 at 795-796.

Hence, this Court has clearly set forth the rule that

private persons must have been participants in official

lawlessness and must have acted in willful concert with

state officers to be held liable under §1983. And, the Ninth

Circuit was correct in requiring a private party to be a

willful participant in joint action with the State or its

agents. (Petition App. B, at 21a.)

B. BOTH THE DISTRICT COURT AND THE

NINTH CIRCUIT HAVE FOUND THAT THE

STATE OFFICIAL, DEPUTY GAGE, HAD

PROBABLE CAUSE TO ARREST PETI-

TIONER OR IN THE ALTERNATIVE, HAD

QUALIFIED IMMUNITY WHEN CONDUCT-

ING THE ARREST. THEREFORE, THERE

WAS NO “STATE ACTION” FOR PURPOSES

OF FOURTEENTH AMENDMENT VIOLA-

TION ON PART OF DEPUTY GAGE, AND

THERE COULD NOT BE ANY CONSPIR-

ACY BETWEEN RESPONDENTS, THE

PRIVATE PARTIES, AND THE DEPUTY

SHERIFF WHO DID NOTHING WRONG TO

CONDUCT THE ARREST.

In Dennis v. Sparks, 449 U.S. 24 (1980), where it was

alleged a Texas state court’s judge had conspired with

private parties to illegally issue an injunction which was

subsequently dissolved by the appellate court, this Court

held that the judge’s immunity from damages liability for

an official act that was allegedly the product of a corrupt

ee ee

6

conspiracy involving bribery of the judge does not change

the character of his action or that of his co-conspirators.

Therefore, the action against the private parties accused of

conspiring with the judge is not subject to dismissal. Id.,

449 U.S. 24, 25.

This case is easily distinguished from the Dennis case

in that the state official, Deputy Gage, was held by both

the District Court and the Ninth Circuit not to have

violated Petitioner’s constitutionally protected rights and

that both courts have ruled that there was no concerted

action between Deputy Gage and the private parties, Mei

Hu and Jonathan Hu. In fact, the District Court had found

that Deputy Gage did not rely solely on conciusory allega-

tions made by M. Hu, the alleged victim of the robbery.

Rather, M. Hu’s allegations were specific, based on per-

sonal knowledge, and could support a reasonable police

officer’s conclusion that Peng used the threat of force to

obtain the title documents from her. The District Court

also held that whether Hus had asked Deputy Gage to

arrest Peng is immaterial to the existence of probable

cause. (Petition App. C at 42a) In Dennis, this Court did

not resolve the issue whether there actually existed any

conspiracy between the judge and the private parties. This

Court was called upon to decide the issue whether a 1983

action against the private parties can be maintained after

the alleged co-conspirator judge had claimed immunity

and was dismissed out of the case. This Court provided a

positive answer to the question.

In this case, Petitioner has limited his Petition for

Review to the Ninth Circuit’s decision affirming the

District Court’s order to dismiss the private persons on

the subject matter ground and framed his issue in the

fashion showing that Petition admitted that there was no

conspiracy between the arresting officer and the private

parties and that Petitioner is asking this Court to deter-

mine whether private parties by providing false state-

ments to State Officials to cause the State Officials’

independent arrest of Petitioner can be held liable under

42 U.S.C. §1983. Since there existed no conspiracy be-

tween Deputy Gage and Respondents, Mei Hu and Jona-

than Hu, following the well-established rules by this

Court, the private persons cannot be held to have acted

“under color” of law and cannot be liable under §1983.

II. THIS COURT IN LUGAR v. EDMONDSON OIL

CO., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482

(1982) HAS CLEARLY SET FORTH THE RULE

FOR THE RELATIONSHIP BETWEEN §1983

REQUIREMENT OF “ACTION UNDER COLOR

OF STATE LAW” AND THE FOURTEENTH

AMENDMENT REQUIREMENT OF “STATE

ACTION.”

In Lugar, the Respondent creditors filed suit in

Virginia state court on a debt owed by Petitioner, and

sought prejudgment attachment of certain of Petitioner’s

property. Pursuant to Virginia law, respondents alleged, in

an ex parte petition, a belief that petitioner was disposing

of or might dispose of his property in order to defeat his

creditors; acting upon that petition, a Clerk of the state

court issued a writ of attachment, which was executed by

the County Sheriff; a hearing on the propriety of the

attachment was later conducted; and 34 days after the

levy the trial judge dismissed the attachment for respon-

dents’ failure to establish the alleged statutory grounds for

attachment. Petitioner then brought this action in Federal

District Court under 1983, alleging that in attaching his

8

property respondents had acted jointly with the State to

deprive him of his property without due process of law.

The District Court held that the alleged actions of the

respondents did not constitute state action as required by

the Fourteenth Amendment, and that the complaint

therefore did not state a valid claim under 1983. The

Court of Appeals affirmed, but on the basis that the

complaint failed to allege conduct under color of state law

for purposes of 1983 because there was neither usurpation

or corruption of official power by a private litigant nor a

surrender of judicial power to the private litigant in such a

way that the independence of the enforcing officer was

compromised to a significant degree. Id., 457 U.S. at 922.

A. THE “STATE-ACTION” AND THE “UNDER-

COLOR-OF-STATE-LAW” ARE IDENTICAL

IF THE 1983 ACTION IS BROUGHT

AGAINST A STATE OFFICIAL. AS TO A 1983

ACTION AGAINST A PRIVATE PERSON, IF

THE CHALLENGED CONDUCT OF PRI-

VATE PERSON CONSTITUTES STATE AC-

TION AS DELIMITED BY THIS COURT'S

PRIOR DECISION, THEN THE CONDUCT

OF THE PRIVATE PERSON WAS ALSO AC-

TION UNDER COLOR OF STATE LAW.

This Court noted that the “state-action” and the

“under-color-of-state-law” requirements are obviously

related and that in a 1983 action brought against a state

official, the statutory requirement of action “under color of

state law” and the “state action” requirement of the

Fourteenth Amendment are identical. Id., 457 U.S. at 929.

As to a 1983 action against a private person, this Court

held that private use of the challenged state procedures

9

with the help of state officials constitutes state action for

purposes of the Fourteenth Amendment. This Court also

held that if the creditor-plaintiff violates the debtor-

defendant’s due process rights by seizing his property in

accordance with statutory procedures, there is little or no

reason to deny to the latter a cause of action under the

federal statute, §1983, designed to provide judicial redress

for just such constitutional violations. This Court further

noted that to read the “under color of any statute” lan-

guage of the Act in such a way as to impose a limit on

those Fourteenth Amendment violations that may be

redressed by the 1983 cause of action would be wholly

inconsistent with the purpose of the Civil Rights Act of

1871, 17 Stat. 13, from which 1983 is derived. Id., 457 U.S.

at 935. This Court, therefore, summarized the rule as

follows: If the challenged conduct of respondents consti-

tutes state action as delimited by the Court’s prior deci-

sions, then that conduct was also action under color of

state law and will support a suit under 1983.

As to what constitutes state action, this Court empha-

sized that careful adherence to the “state action” require-

ment preserves an area of individual freedom by limiting

the reach of federal law and federal judicial power. It also

avoids imposing on the State, its agencies or officials,

responsibility for conduct for which they cannot fairly be

blamed. The conduct allegedly causing the deprivation of a

federal right, according to this Court, must be fairly

attributable to the State. There is a two-part approach to

this question of “fair attribution.” First, the deprivation

must be caused by the exercise of some right or privilege

created by the State or by a rule of conduct imposed by the

State or by a person for whom the State is responsible.

Second, the party charged with the deprivation must be a

10

person who may fairly be said to be a state actor. This may

be because he is a state official, because he has acted

together with or has obtained significant aid from state

officials, or because his conduct is otherwise chargeable to

the State. Without a limit such as this, private parties

could face constitutional litigation whenever they seek to

rely on some state rule governing their interactions with

the community surrounding them. Id., 457 U.S. 938.

This Court clarify the issues of Lugar by stating that

the first question of the case is whether the claimed

deprivation has resulted from the exercise of a right or

privilege having its source in state authority. The second

question is whether, under the facts of this case, respon-

dents, who are private parties, may be appropriately

characterized. as “state actors.” Id., 457 U.S. at 940. This

Court stated that the resolution of the issue whether

Lugar’s ultimate claim of unconstitutional deprivation was

directed at the Virginia statute itself or only at its errone-

ous application to him is essential to the proper disposition

of the case. This Court determined that Petitioner actually

were challenging the state statute as procedurally defec-

tive under the Fourteenth Amendment and held that while

private misuse of a state statute does not describe conduct

that can be attributed to the State, the procedural scheme

created by the statute obviously is the product of state

action. This is subject to constitutional restraints and

properly may be addressed in a 1983 action, if the second

element of the state-action requirement is met as well.

11

B. WHETHER THE CHALLENGED CONDUCT

OF A PRIVATE PERSON CONSTITUTES A

STATE ACTION IS DETERMINED BY PRI-

VATE PARTIES’ JOINT PARTICIPATION

WITH STATE OFFICIALS IN THE DEPRI-

VATION OF RIGHTS OF THE VICTIM.

To determine whether the second element of the state-

action requirement is met, this Court went on to recite the

well-established rules by this Court as follows: |

“We have consistently held that a private party’s

joint participation with state officials in the sei-

zure of disputed property is sufficient to charac-

terize that party as a “state actor” for purposes of

the Fourteenth Amendment. The rule in these

cases is the same as that articulated in Adickes v.

S. H. Kress & Co., supra, at 152, in the context of

an equal protection deprivation”

“Private persons, jointly engaged with state offi-

cials 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 ac-

cused be an officer of the State. It is enough that

he is a willful participant in joint activity with

the State or its agents,’” quoting United States v.

Price, 383 U.S., at 794.” Id., 457 U.S. 922 at 942.

In sum, a private person may be held liable under

§1983 for his use of a procedurally defective State statute

to deprive another person’s Fourteenth Amendment rights,

if the private person join’ly participated with the state

officials in the deprivation of the other’s constitutionally

protected rights.

This Court in Lugar, therefore, has clearly set forth

the rule for the relationship between §1983 requirement of

12

“Action under Color of State Law” and the Fourteenth

Amendment Requirement of “State Action” both in the

context of a 1983 action against a state official and a 1983

action against a private person. There is no need for this

Court to readdress the same issue.

Moreover, the instant case can be distinguished from

Lugar in the following aspects: (1) In Lugar, the State

statute invoked by the respondent creditors was proce-

durally defective and hence unconstitutional, whereas in

the instant case Petitioner never challenged any Califor-

nia statute relied upon by the Deputy Gage to effectuate

the arrest of Petitioner; (2) In Lugar, the state action was

found in the enactment of the unconstitutionai statute, in

the instant case there was no illegal state action due to the

fact that the District Court and the Ninth Circuit both

ruled that Deputy Gage had probable cause to arrest

Petitioner; (3) In Lugar, respondent did not misuse the

state statute which was challenged as unconstitutional,

whereas in the instant case Petitioner readdressed the

issue in his Petition for Writ of Certiorari as whether by

making the false statement to the arresting officer, Re-

spondents Mei Hu and Jonathan Hu may be held liable

under 42 U.S.C. §1983. This Court in Lugar has answered

this particular question negatively when this Court held

that private misuse of a state statute does not describe

conduct that can be attributed to the State.

Ill. CONCLUSION

This Court in numerous prior decisions has already

addressed the issue concerning when a private person can

be deemed as a state actor and be held liable under 42

U.S.C. §1983. The Court also has adequately addressed

13

the issue concerning the relationship between the 1983

requirement of “action under color of state law” and the

Fourteenth Amendment requirement of “state action” in

the Lugar case. The Ninth Circuit did not err in character-

izing this Court’s prior case law in the instant case. There

is, therefore, no need to readdress the issue. The Respon-

dents respectfully request that the petition for writ of

certiorari be denied.

Respectfully submitted,

Max C. CHIANG .

Counsel of Record

18000 Studebaker Road

Suite 585

Cerritos, CA 90703

(562) 809-3210

Counsel for Respondent