Crime & Federalism

As is his custom, Fourth Circuit Judge Wilkinson refuses to follow Supreme Court precedent when that precedent would require an outcome with which he disagrees; and when his handiwork would likely escape Supreme Court review.  In Holly v. Scott (here), he and another activist judge reach the extraordinary conclusion that operating a federal prison is not a government function.  Thus, an employee of a private prison corporation cannot be sued under Bivens.

My mouth is still gaping open, as this outcome is so outrageously wrong that I am at a loss for words.  In Malesko (here) after all, the Supreme Court assumed that a person could sue a private prison guard.  The assumption was so obvious that it wasn't even stated in the opinion, since decades-old precedent holds that private actors performing traditional government functions act under color of law. This is so obvious that every first year law student in the country would realize that a private prison guard acts under color of law. 

Anyhow, if this case goes upstairs, it might very well be affirmed.  Scalia would overrule Bivens if he could, as Justice Thomas and soon-to-be-Justice Alito likely would.  Heck, the only marginally uncertain votes would be Chief Justice Roberts and Justice Kennedy.  Despite protests from conservative commentators, Justice Kennedy has shown marked hostility towards civil rights litigants.  And does anyone think Chief Justice Roberts would join the four liberal justices in a potentially watershed case like Scott v. Holly?  Like Gonzaga University v. Doe (here), Holly could be the, as Chief Justice Rehnquist characterized Gonzaga, the "sleeper case" of the next Term.

A constitutional revolution is coming, folks, and its victims will not include cases like Roe v. Wade.  It will be technical doctrines like state action and Bivens that find their heads on the chopping block.  The only issue with this case is this: Will Scalia be able to obtain four votes to obtain Court review when the cert. petition is invariably filed?  Or will he wait, concerned that Roberts and Alito might not quite be ready for the revolution?  If this case is reviewed, I predict a 5-4 outcome in favor of affirmance.

(Hat tips go to Donald Caster at All Deliberate Speed and Robert Loblaw, who have commentary here and here.)

Today the Seventh Circuit handed down an interesting opinion analyzing whether a private actor (a man named Redd) acted under color of state law (and thus could be sued under 42 U.S.C. 1983) when the private actor stole his wife's (Pepper) property while a police served as look-out. [This is wrong.  See the update, below.]  In other words: Did the private party conspire with a state actor to deprive the plaintiff of his property?  The panel said no, in an interesting opinion you can access here.  Pepper v. Village of Oak Park.  For what it's worth, I think the panel got this one wrong.  When I have some time tonight I'll pull up the briefs to see whether the panel got it wrong because of poor advocacy.

UPDATE: Oops.  I totally misread the case.  The issue was not whether a Redd acted under color of law when he stole Pepper's property.  The issue was whether the police officer conspired with Redd to steal Pepper's property.  The panel absolutely got this one right.  The plaintiff's lawyer absolutely got this one wrong by not suing Redd.  There was a very strong argument that Redd stole Pepper's property only because he felt like he could get away with it since he had duped a police officer into keeping Pepper from stoping him.  When the presence of a state actor "enables" the private party to do some conduct, the private party might have acted under color of law.  Here, the plaintiff's lawyer didn't even argue this.  That was, in my view, a major tactical mistake.

UPDATE2: I'll have much more to say about this case once I finish today's work.