Turns Out Our Civil Rights Come From... A Parking Garage in Wilmington, Delaware?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:02 Jenessa: So you're telling me your business benefits by discriminating. If you, God forbid, a Black person sat down in here, all hell would break loose.

0:00:17 Jenessa: And this is my favorite quote ever from any civil rights decision. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith.

0:00:34 Matt: Welcome to Opening Arguments. This is Matt Cameron, and with me is Jenessa Seymour, voting rights and civil rights and all kinds of other kind of attorney. Today on the schedule, we have Under Color of Law, and I have to say this is about the least I know going into an episode. So I'm playing the Thomas role today, and learn some things about what it means to operate under color of law and why it matters. And of course, because it's Monday, we're talking about a classic Warren Court case. The big one we're going to focus on today is Burden v. Wilmington Parking Authority. And I got to say the Wilmington Parking Authority is probably the least exciting defendant we're going to look at in these, even

0:01:06 Jenessa: I know. It sounds so impossibly boring, but I promise it's a very interesting and powerful civil rights decision.

0:01:17 Matt: Though it involves a parking lot in Delaware. Okay. All right. I'm just going to hold the faith here. I will assume that that is true. You haven't let me down yet. So I think this is a pretty important subject. And for reasons we'll talk about at the end, you know, from what I know about the concept of operating under color of law, it could really be a problem for the future if the Supreme Court were ever to water this down. Not that they would ever do such a thing to our civil rights.

0:01:19 Jenessa: I know, I

0:01:40 Matt: Yeah, I'm really interested to know more about the history of this and what the Warren Court had to say and what we can learn about it today. So any thoughts before we get going?

0:01:39 Jenessa: Know we will have to address the elephant in the room that I can't actually say the legal concept we're talking about under color of law it's it's those aw words that really get me man especially when they're single syllable the law I can totally say that word and you know what I meant so I'm I'm normally like, this is a legal podcast. We talk about statutes and rules and regulations that I never have to say the word law. Everybody better get on board. It's accent time anytime. I have to, I'm going to have to stay under color of law repeatedly today. I know, I know. It's that and the single syllable ones. Like when I lived in the Midwest, I was ordering one time and I said, can I get some salt? This guy was like, what? And I had to be like, salt. Huh? I can do it, right?

0:02:24 Matt: That word really does bring out the New York. Yeah, you can really hear it. Pretty good. Yeah, all right.

0:02:42 Jenessa: So yeah, law, soul, those ones are a little rough for me, but get on board. Here we go for an adventure.

0:02:52 Matt: All right, so we get a bonus charming regional accent on top of everything else. We will be right back with more Jenessa and law.

0:03:06 Matt: I'm basically familiar with the concept of state actors and how we have to decide whether or not they're operating under the authority of the government, whether it's a state or local or whatever.

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0:03:17 Matt: What is this concept and why does it matter more generally?

0:03:20 Jenessa: It's maybe going to feel a little less important today. I would argue for those of us who work in civil rights, particularly like plaintiff's side, we've talked on this podcast before about Section 1983. It's going to be very relevant there. It is exceptionally relevant in the time period of these cases. In this window, in between Brown v. Board of Education and the Civil Rights Act, we have Brown saying the government cannot discriminate on the basis of race. You cannot have segregation. Separate but equal is not, in fact, equal. But we do not yet have legislation that says private actors cannot discriminate.

0:04:07 Jenessa: So it meant the schools, the public schools, cannot be segregated. By an extension, really any public building could not be segregated, any government program could not be segregated but nothing was stopping a restaurant from discriminating. They didn't fall under the 14th Amendment. Private business, right?

0:04:25 Matt: Private actor. Right. Private business. Right. So we were talking 1954 is Brown, 1964 is the Civil Rights Act. So there's a magic decade here where it's kind of a free for all for private actors to try to to discriminate.

0:04:40 Jenessa: So we find a lot of people in this strange position where some states are trying to pass their own anti -discrimination laws. Federal law will eventually be going through a lot rough patches trying to figure out, okay, so you tried to make it so private actors can't discriminate? How dare you, the government, tell the private business what to do? That will get litigated like crazy. And in this whole window, it is still illegal for the government to do it. And if we can attribute your actions to the government you can't do it." What becomes the issue here is there's not actually a clear line between this is the government and that is not. When the state is so often sort of outsourcing its own behavior? What do you do if your state decides we just don't do public school? All right, well, there's no constitutional right to public school. But what if they said we're going to have a private school, but we'll give them tax dollars? We'll outsource it to a private School. What if they say, instead of having this this public service, this public service, we'll make those, we'll privatize them, but we'll fund them. Well, is that really a good way to get around discriminating? Oh, oh, if it was public, if it were us, we can't discriminate, so we'll just make it private, and then they can discriminate, right?

0:06:06 Matt: It's a libertarian dream. You get to both not have the government be involved and you get to be racist.

0:06:10 Jenessa: Yeah, basically.

0:06:12 Matt: Two things libertarians love.

0:06:14 Jenessa: So we're trying to get a round, like, that is not one weird trick, to get around the 14th Amendment. You can't say, well, well, we'll privatize it, except not really. We're going to taxpayer fund this whole thing. No, then it's public, right? So where is that line? Sometimes it's less obvious. The classic case, is this person acting under color of law, is the off -duty cop. If they're on duty, they've got their uniform, they're being paid, they say, stop, I'm a cop, don't do that. Well, well, then obviously they are a state actor. Their actions can be attributed to the state. The original cases on this issue have said, even if that person was abusing their authority, they were using quite literally the color of the law, the uniform they're wearing, to be able to make people do things. And so even their abuse of power, their illegal behavior that the state would not have endorsed, they got their power from the state. And so you can come after them. The famous case for this is Monroe v. Pape, if anybody wants to look it up. P -A -P -E. The off -duty cop issue comes up with, okay, if you're just a cop, that happens to be your job. But you're plainclothes. You're going about your day. You don't identify yourself as a cop. Nobody thinks of you as a pop. You get into into a bar fight and hit somebody, you're just a guy. It doesn't matter that you are technically a cop during your day job. That doesn't mean I can sue you because I can Sue the city because a cop beat me up. He wasn't a cop in that moment, right? Well, what if he's using the fact that he's a cop to get other people to not intervene? What if he uses that to investigate you first? The fact that he's able to access certain databases that other people wouldn't. It starts toeing the line, right? Now, when are you a cop and when are not? This will come up a lot with Fourth and Fifth Amendment, your ability to investigate someone. I could snoop on you and I might or might not violate some privacy law, I could snoop on you and give evidence to the cops and they'd just be like, thank you so much. But if they told me to do it, now I was acting under color of law. This is where it becomes so, so important to draw that line and protect your rights. I am not only a state actor when I have my uniform on. I am Not only a State Actor when when I identify myself as a state actor, this line is actually really blurry.

0:09:07 Matt: You're making me think of Sherlock Holmes, who is never a cop, but always acts like one and works with the cops and shows up with the cops and does cop stuff. But he's acting under color of law under the London police because they work with him, they consult with him. He seems to just show up and talk to people as if if he's a cop. So if Sherlock Holmes, I don't know, beat you up, you might have a claim, right? I mean, this is British law, but just trying to think of examples of these kinds of gray areas.

0:09:32 Jenessa: I could imagine the plaintiff who says, I never would have let him in my house or confessed to him or given him that if I knew he was a private person, I thought he worked for the police. I thought I had to. Then you know if that testimony is credible then his actions would be fairly attributable to the state because of the fact that the police also go along with that you know. If he impersonated a cop and the real cops were like we hate that guy we have never not once endorsed that guy that would be a different story but because he is so ingratiated with them yeah a reasonable person could think he was a cop and they have done nothing to dissuade the public of that notion and so that could make him a state actor yeah so it becomes really important in my line of work if somebody is violating a person's rights if their actions are fairly attributable to the state that opens up a whole new avenue of first of all the laws that apply there are things the state cannot do to you that a private actor can, and also the remedies available, all the things that we can do to ask that an action be stopped, to ask that you get damages. It's just, it's huge if you can establish that.

0:10:59 Matt: Remind everybody, your line of work is mostly voting rights these days. So there must be a lot of different opportunities to find that people are acting under code of law when they deny people voting rights. That must be coming up a lot.

0:11:09 Jenessa: I have not personally litigated one of these. I am more generally within disability law, like I handle the voting aspect of that. And it comes up a lot in disability because you can imagine how often a private entity might discriminate on the basis of disability we do have title two of the americans with disabilities act would let you actually go after a private actor for that the same way the civil rights act would for racial discrimination but as soon as you can attribute actually that was the state title three opens up equal protection equal protection doesn't do a ton for disability. Unfortunately, it's rational basis test, but it's not nothing. And the remedies will become huge. And really, the biggest thing is, as soon as we name the governor as a defendant, the attorney general as a dependent, guess who wants to settle that really fast and not be defending the fact that somebody did something terrible to people with disabilities? They don't like that.

0:12:15 Jenessa: They usually very quickly want to end that.

0:12:18 Matt: Well, I might be getting ahead of things here, but I was thinking about this as you're talking and because I don't really this matters to me but I don's think about disability rights very often it's just not really in my radar what if uh you have a private actor that just refuses to put in wheelchair access to the you know they're maybe on a second floor with stairs right and they just refuse to have any because they think it's too expensive and the state just lets them do it would that be enough to for a 1983 claim if they know that they're in

0:12:40 Jenessa: You know, that's a really interesting thought. So like, okay, just against the private actor, you'd have Title II. You would sue them. So you could get money damages for the fact that they didn't do it. You could, of course, get the declaratory relief. We need you to probably, I guess you would say a permanent injunction. You need to go do it, build the ramp, right? If the state refuses to enforce it, I think that's really, in a lot of ways, that's what Section 1983 was designed for.

0:12:59 Matt: Violation right Right.

0:13:10 Jenessa: So I guess we should talk about that history, right? Where does this all come from? The Ku Klux Klan Act or Ku Klucks? I never know how to say that. And honestly, I don't care. I'll dead name, misname them. Who cares? They're the worst. After the Civil War, you technically had all these rights, but the southern state governments just weren't enforcing it. And the Klan was basically acting like a rogue government out there. They were controlling the politics, controlling the whole environment. Yeah.

0:13:35 Matt: Terrorists, straight up. And keeping people from voting.

0:13:38 Jenessa: Voting one of the biggest things, intimidating people at the polls and like not intimidating, like, oh, stand in there scary. Like we're going to lynch you. Don't vote. Like really, really bad. We had a huge problem of best case scenario. Somebody reports it. And then like, you know, eventually like the National Guard had to go down there and try to enforce this stuff. And that was still really difficult. You don't know what's happening if people don't speak up. And of course, people are intimidated into not speaking up. What do you do? Yes, 13th, 14th, 15th Amendment are all requiring the integration of formerly enslaved people in the South. But if the local governments and the state governments won't do it because they are literally run by the Klan in many cases. Now what? They created Section 1983 to create a private right of action to say you can sue state and local governments, officials for violating your civil rights. It's not just enough to say you had this right and they got in the way of it, so stop getting in the way of that. You can actually get in trouble for it. So this comes up in so many contexts. For example, if you weaken Title II of the Americans with Disabilities Act, which we're very concerned is happening. Right now, if I sue you for not having a ramp, I could get money damages. You should have had a ramp. You were required to have a ramp Why did you not do this? If we make it so that the money damages are far less or like not accessible because you fixed it within a certain period of time, we're going to have a lot of people who don't put a ramp in until you complain.

0:15:20 Matt: Great.

0:15:21 Jenessa: Now I have to wait months and months and there was really no punishment for you. The punishment for not putting in a ramp was you had to put in a tramp when somebody called you out. That's not helping. A similar issue, you violate my fourth amendment rights. Well, great, great, we got to exclude the evidence, but like, why do you just keep doing this? Like, stop. You violated my right to vote. Okay, stop doing that. But how do we make you forever stop doing that? Money damages is a huge motivator. So that's where this comes from. And sending it to federal court so that you don't have to go to a state court, which is also run by the Klan, not helping thing if the judge is part of the problem we get around sovereign immunity where you don't sue a state official in their official capacity because you would be suing the state which you can't do you sue them in their private capacity but you say it was state action they were a state official but I'm going after your bank account stop doing this and this is where you often see like that that police officer who like all of a sudden the fire department is hosting like, you know, raffles and barbecues to try to pay off this person's debt because of some dumb crap they were doing. That's what that is. They may have lost one of these lawsuits. I took a class on this and my professor, who was actually an administrative law judge who handles these, he played us a video of a cop pulling someone over for flipping him off, which is extremely extremely well -established First Amendment law, you can flip off the cops. I don't recommend it because bad interactions end up happening, but you can. And in like peak white guy libertarian fashion, the cop's pulling him over and he's videotaping him. And he's like, what I do? What I do. What I do, the guy's like get out of the car. What do I do get out the car? What do. And he pulls out mace. And the guy is like, are you about to mace me, bro? And he sprays mace on him. And the end of the recording is him just going, I'm going to sue the shit out of you. And our professor stops the recording and says, he did. And they lost a lot of money.

0:17:36 Jenessa: Classic. Section 1983. You violated my First Amendment rights. And that guy, his personal bank account is getting hit. It was a state action, but we sued you in your personal capacity for the BS you're getting up to.

0:17:49 Matt: And qualified immunity being what it is, you know, this is powerful. If that resulted in an accident or something, chasing the guy down. And I will mention, of course, I'll probably say this more than once, but 1983, of of course, is talking about state actors. And on the federal level, as we've discussed before, Bivens, the Supreme Court case is about federal actors doing the same thing. And BivenS is pretty much on life support and has been for some time. But even you mentioned the example of a cop chasing somebody who flipped them off. I mean, ICE has done that more than once recently, including I think once resulted in a car accident. And there's nothing you can really do.

0:18:24 Matt: Thanks to Clarence Thomas and Egbert v. Boole, a case that brought me on to opening arguments a a few years ago, which pretty much killed the opportunity for the most part. I mean, again, that was about CBP at the border, but I think that from what I understand of that case, it's generally considered not to be possible. And very few Bivens cases have worked out at all. I just want to mention that. So we really are going to be talking about state actors here. I do want to talk about some federal stuff at the end, but, you know, I just wanted to mention it.

0:18:47 Matt: I think I just want to mentioned that because flipping off a nice officer could still leave you without any recourse and possibly dead at this point.

0:18:51 Jenessa: Yeah, like I don't recommend it. It is crystal clear, established under the First Amendment, you have every right to do that. And that's part of why you will get around qualified immunity. So the standard for qualified immunity is if it was clearly established that doing this is a violation of a person's civil rights, whichever right it may be, then qualified immunity will not apply. Apply.

0:19:17 Matt: That's the qualified part. Sure.

0:19:19 Jenessa: Qualified immunity will apply to civil suits. Always important to note that local elections, it's happening today as we're recording. Somebody who does something that maybe qualified immunity applies and it's really hard to sue them, they could still be disciplined, they could Still be fired, they Could still be prosecuted. Like a crime's a crime, right? But you may find, oh, well, it wasn't technically clearly established that this exact behavior behavior, violated your constitutional rights, so you're not going to get these private civil damages. You're going to Get Qualified Immunity against it. It's a huge problem. Sotomayor, I think, has written really beautifully about this, that like, hey, if we keep Qualified Immunity stops us from ever going to the merits, so we never go to the Merits and say this is a clear violation of rights, people are going to gets to do this forever because the standard is, Did someone tell you it's a clear violation of your rights?

0:20:20 Jenessa: Like, we have a circular problem. How many of these cases do we have to have before it's enough? Like, you are on notice now. So we do have a huge problem there. Don't get me wrong. But certain things like the flipping off a cop one, he was like, yeah, this one is so egregious. Even qualified immunity will not save you here. It's a violation of Your First Amendment rights. You don't get to mace somebody and pull them out of the car because they flipped you off. There's no crime. So it can be really powerful, even in cases with police.

0:20:20 Matt: Yep, all right. So in the context of everything we're talking about here, it does make sense that we We need to know who the state actors are and aren't, and that's going to be a really important part of all of this. And if you get a declaratory judgment saying that the person that did this to you was actually acting in some way under state authority, then you're probably going to win your 1983 claim as long as they were actually violating your civil rights, right?

0:21:13 Jenessa: And you could also, at that point, put them under all kinds of different protections. So it essentially means everything is now subject to your constitutional rights. So first of all, you could possibly win Section 1983 private civil damages. Is, you're also going to be able to say declaratory relief, injunctive relief, make them stop doing something that violates my free speech, my right to equal protection, because they're the state now, essentially.

0:21:47 Matt: Great.

0:21:47 Jenessa: You can't violate my free -speech rights. That doesn't make any sense. Like, we're just two people. But if you were the state, if I could prove you were a state somehow, all of a sudden you have to start respecting my right -to -free speech. It's going to get us potentially Section 1983 civil damages and also just generally a huge area of injunctive and declaratory judgment type relief opens up.

0:22:14 Matt: Well, that makes a lot of sense for setting this up. Let's come back and find out, because I'm on the edge of my seat, what this has to do with a parking lot in Delaware.

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0:24:18 Matt: This case has been on our list for a while, and I kept kind of passing by Burton v. Wilmington parking authority. And I just got to tell you, just seeing the name of it, my eyes glazed over. Why were they suing a parking authority? And how did this end up being a color of law case?

0:24:27 Jenessa: Well, if it's any consolation, they will do my favorite legal thing, which is that's too long to say. Let's make it shorter. And throughout the decision, they Will be referred to as the authority. Authority so it just it felt so on the nose to be like the authority has violated your rights the authority is allowing discrimination no

0:24:43 Matt: That's much better. That's good. Reminds me of my favorite Kid Rock meme. You must have seen that when he went to court. I mean, you have to pull up a picture, but it's Kid Rock standing in front of a local courtroom, and it has the door plate of the courtroom. And the tweet is, Hey, authority. And it's just Kid Rock with a smirk on his face, flipping off the courtroom door. So good. Yeah. All right. So I'll just think about this as authority. They're taking on authority. I forget the parking.

0:25:00 Jenessa: What okay man oh god yeah that's basically where we're at they are we have the usual proclamations where in order to have a public facility we can never just have nice things we can never just say wouldn't it be nice to have a public thing let's just do it because nothing says we can't we have to have some some crisis some emergency reason for the good of the public there's a parking emergency the city of Wilmington shall create the parking authority to create the and that ends up actually being critical because they're going going to say we must do this to solve a public problem and we're going to make a public parking garage and we will fund it with public tax dollars and also we will lease some space if we have to to keep it funded for public purposes and they just like over and over again like you know oh if we lease any of this space to anybody we're gonna do it for the sole purpose of funding the the existence of this public parking garage, which is so important. They lease part of this space. They buy a property. We're going to build a parking garage. And they find out the fees from charging people to park. That's going to cover maybe 30 % of the expense. We are going to have to lease off some of this property. And we don't sell it off. We need constant revenue. We will lease parts of it. We open up a bid to the public. And this one place buys a little restaurant, eagle coffee shop they are leasing it they are upgrading the property you know they're putting oh we got to put you know tables and chairs whatever that's their own property right but to whatever extent they decorate the interior of this thing well they're upgrading a piece of public property so it's tax exempt all the money they're spending here in the same way that the parking garage is tax exempt what's wilmington going to tax themselves it doesn't make any sense so they lease it to these people and they write up a lease there's a covenant in the lease they're going to follow all the laws I don't know why a lease should ever have that because you always have to follow the laws on your property it's just kind of a thing they could have but they did not put in the least anything about non -discrimination despite the fact that these are are restaurants and facilities open to the public?

0:27:38 Matt: Sure. And this is 1961. So there's no voting, no civil rights act. They don't have to. You can just be shitty if you want to.

0:27:57 Jenessa: But there's a state law that does say some weird stuff about inns and restaurants. It ends up kind of not being relevant because we're going to try to get to state action. But on the state law level, there's whole quibble about, is that going to apply? We lease out this restaurant to them and individual in question parks in the parking garage, walks around. There's no entrance technically from the parking carriage directly to it. He does have to go back out to the sidewalk and enter from a main entrance. And he goes in and he says, hi, I want to sit. And they say, you're black. No, thank you. And, they will not serve him.

0:28:36 Matt: I'm pretty sure they didn't say no, thank you. But sure.

0:28:39 Jenessa: Probably not. I'm paraphrasing. I don't know what exactly was said. So he sues. And what he's arguing here is that's not a private restaurant. That's the state. State action. If this is the state, that would be a violation of the 14th Amendment, equal protection. You cannot segregate on state property, in state facilities. If it's a private business, the federal constitution is not doing anything and we We don't yet have the Civil Rights Act. So they're kind of just allowed to do this terrible, awful thing, right?

0:29:15 Matt: I got to say so far, the most surprising part of this story is that a parking garage doesn't pay for itself.

0:29:20 Jenessa: One would think. Apparently not.

0:29:20 Matt: Maybe they didn't cost as much back then, but around here,

0:29:26 Jenessa: It says that the experts they retained to determine their own funding said, oh, the fees from this are only going to pay the 30 % at the most. And just charge more then, right. I guess at some point, if you charge too much, nobody will park in it. Like you did have to figure that out.

0:29:43 Matt: I guess back then you had to pay an attendant too, which most garages don't really have to do anymore.

0:29:47 Jenessa: Oh, back then, that's right. Right. There was no like little, you had to pay a salary. Yeah.

0:29:49 Matt: Tech was different. Probably a little too hung up on this, but I just think that parking garages are such a great business. I mean, they're a terrible business, such a ripoff, but okay. All right. So I'm not surprised about the racism.

0:30:01 Jenessa: Revealing a regionalism.

0:30:02 Matt: Certainly. Yeah, certainly. Everything's just too expensive in Boston. That's what I'm taking away from this.

0:30:07 Jenessa: We end up in this situation where we have to ask this question, are you a state actor? And the rule we're going to get here, this is Judge Clark. He's going to tell us, okay, OK, so if you're a private actor, it doesn't apply. The action inhibited by the Equal Protection Clause is only such action as may be fairly said to be that of the states. That amendment erects no shield against merely private conduct. State participation through any arrangement, management, funds or property will get you there. So we're starting to open this up. I love this old timey phrasing. I know 60s is not that old timey, like my parents would be so offended they were alive. Private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the state in any of its manifestations has been found to have become involved in it. So there's our general, you wouldn't necessarily call it a rule, right? We haven't gotten to like a step by step. And what he's going to tell us is there isn't one. We do not have a, oh, here are five factor test and you got to meet these factors. And the first three are that. No, we don't have that. We're going to have to, by sifting facts and weighing circumstances, figure out this non -obvious involvement. How are we going to do this? I really love the way he talks about this. And this feels very Warren court -y and it feels very not how we think about the court talking today where he says, because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed. That is like like anti -Alito, essentially, is, yeah, this right is meant to be extremely broad. And it's almost saying, so it's purposely vague.

0:32:20 Jenessa: We have not written in, oh, what exactly does equal protection under the law means? You'll know it when you see it, my friend. There's no factor test because that would necessarily exclude some of the many, many circumstances where we want you to enjoy the equal protection under the law yeah

0:32:40 Matt: I really like the expression, imprecision was necessary if the right were to be enjoyed. That is really good. It has got to be ambiguous. It is the opposite of void for vagueness, right? It is void for justice, basically, on purpose so that we can make sure that it includes as many of these people as possible because that is the point of the civil rights amendments.

0:32:45 Jenessa: Isn't it so good yes yes he's got one of my favorite civil rights quotes of all time in here we are coming to it he's essentially saying to us okay we're gonna have to look at all the facts here because there just isn't one test and I'm gonna warn you right now this this won't be the test for the next time like sorry you're gonna have come back to court this is like gorsuch's worst nightmare is like the idea that That you might come back to him tomorrow. God forbid he do his job repeatedly. We're just going to have to talk about the facts every single time. Sorry, everybody. Okay, we're on public land. You're paying money to this public facility. The entrance isn't in the parking garage. It does appear to, you know, the average person walks in. It looks like private business. There's signs on the building that say, Wilmington Parking Authority, public thing. There's a state flag and a federal flag, the US, our flag, flying on the building. It's got public building kind of vibes. It looks public -y. But really, some of the most critical things are you're enjoying tax exemption. Everything you do to the building is tax exempt. Critically, not just what the business is getting out of this, but what the state is is getting out of this. The business probably sunk everybody's case here. Eagle coffee shop. Eagle's affirmative allegation that for it to serve Negroes would injure its business.

0:34:29 Jenessa: Profits earned by discrimination not only contribute to, but also are indispensable elements in the financial success of a government agency.

0:34:39 Matt: That's what you get for saying it. Right.

0:34:41 Jenessa: Yeah, there's your critical issue. So So you're telling me your business benefits by discriminating. If you, God forbid, a black person sat down in here, all hell would break loose. This parking garage has told us we can only survive if we lease these premises to other people. So you need their lease money to keep this public government thing going. And their lease Money really only comes in if they discriminate. So you are discriminating?

0:35:11 Matt: And that's assuming that you buy that as a premise, which of course we don't. But the idea that, yeah, I mean, obviously if they were one of the only coffee shops in town that did serve the black community, then I would think they did pretty well. Assuming that this is a widespread issue in Wilmington, Delaware, which I know that actually we talked about this in the Brown episode that the first organized resistance to Brown v. Board was actually in Southern Delaware. So yeah, and you've got a lease. It was a 20 -year lease, right?

0:35:34 Jenessa: Mm hmm.

0:35:34 Matt: So the city is setting the terms and And they could cancel that lease anytime if they find out you're discriminating, right? They should. And the parking authority itself, just looking at the case here, was set up to relieve the parking crisis in Wilmington, Delaware. Right.

0:35:47 Jenessa: Yeah, that's the part I'm talking about with like, why? Why do you have to say you can't just say we were making a parking garage because we're making a park and garage. It's always got to be like, well, we wouldn't normally have authority to ever create a public utility because God forbid, socialism. Socialism. National emergency. Parking.

0:36:01 Matt: Socialism. Jinx. But it's got to be a crisis. It's got be a state of exception, because I just love the idea that Wilmingtown, Delaware is being overwhelmed with tourists. Activists. Sorry, Wilmington, but it's a very Boston thing for me to say. But the parking crisis, which threatens the welfare of the community where cars are stacked on top of each other. I mean, it's just incredible.

0:36:25 Jenessa: Oh, it's so silly. It's so ludicrous to read.

0:36:28 Matt: I love it. Sure.

0:36:29 Jenessa: That was the premise that actually sinks them because it says, oh, okay, so you didn't just make a parking garage for the sake of a parking grudge. You made a parking garage because there's some sort of national emergency that you're addressing. So this is is a state issue. And state, that doesn't have to inherently mean Delaware. State could be the municipality.

0:36:51 Matt: Just the government.

0:36:51 Jenessa: It's a generic term, government action. We ultimately come to the conclusion when you put all of these things together, would people perceive it to be a state actor? Does the state benefit from this supposedly private thing acting? Does this private thing benefit from its its relationship with the state, how intertwined are they really? They're ultimately going to say this is state action, not without continuing chastising throughout the whole thing. I really love this. It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the state to serve a public purpose, All persons have equal rights, while in another portion, also serving the public, a Negro is a second -class citizen, offensive because of his race, without rights, and unentitled to service. But at the same time, fully enjoys equal access to nearby restaurants in privately owned buildings. Yeah, there's a private restaurant across the street that doesn't discriminate, but the one in the public building, that one discriminates. Like how? No. It does, doesn't it? I always use my green highlighter when I'm like, that's a legal rule. So I've got this one greened up over here.

0:38:08 Matt: I'm going to put it that way. It sounds pretty bad.

0:38:19 Jenessa: No state may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them, whatever the motive may be. About as much as you could put this into a rule, I think that's pretty much telling you what you have to do. You have a responsibility to uphold the Constitution. You can't just ignore it. You can'T just pretend it's not happening, push it off onto somebody else, and let them violate the Constitution, no. You Have a Responsibility. And this is my favorite quote ever from any civil rights decision, it is of no consolation to an individual denied the equal protection of the laws that it was done in good faith. I can never decide if it would be too passive aggressive to make that my email signature. To whoever is writing to me with excuses about why you violated my client's rights, I don't want to hear it. No consolation.

0:39:29 Matt: You know, it's funny because what you're saying, the restaurant's dumbass excuse about how it's good for business to be racist, they probably, in their minds, thought that was a good faith reason to discriminate because, you know, obviously, I mean, I'm being extremely charitable. Obviously, I am sure they're just being racist. The better class of customers, right? We're going to be the white people. And I'm sure their thinking was that Wilmington, you'd let in all the wrong people if you started to allow non -white people into your establishment. But they could probably tell themselves that that was a good faith business reason. I'd try to tell the court that. And certainly, I guess maybe it says something that they didn't just come out and say that maybe in 1960 or whatever, that we don't want to serve black people. I don't know.

0:40:09 Jenessa: No, no, it's not us. It's our customers who hate them. It's not better.

0:40:11 Matt: Yeah, right, right. Just looking out for the bottom line here, guys. Of course, we would totally do it. Otherwise, we'd serve everybody.

0:40:19 Jenessa: Yeah, absolutely not. We ultimately have, the state has so far insinuated itself into a position of interdependence with Eagle Coffee Shop that it must be recognized as a joint participant in the challenged activity. That is, you are a state actor. You are acting under color of law. You are part of this state action that will be, therefore, applying the 14th Amendment.

0:40:47 Matt: It's a project, really. Like you're part of a project.

0:40:49 Jenessa: Yeah, exactly. This could not more clearly violate the 14TH Amendment. This is crystal clear. So once we reach state action, we're done here. That was the barrier. Obviously, segregating the restaurant would violate the 13th, except for the fact that they're alleging they're a private business. So that's why this is so important. Once we got over that hump, the whole rest of this case, you don't need to devote paragraphs to why segregation is wrong. That was Brown. We covered it. It's done. And we don't needs to talk about whether private businesses are allowed to do it once we say they're a state actor. We don't have to have a conversation about whether being private matters. We already figured this out. They're state. So it's done." Lovely case just nice and simple can't discriminate and so we have integrated our coffee shop because they're attached to a parking garage and that's why this case about a parking garage is actually really important for civil

0:41:52 Matt: And all I can think of is the Kid Rock meme, hey, authority. And it's always a good day when authority loses. It was a great case, just classic Warren court holding very much along the lines of what we've been looking for in the Still Good Law series, where we just look at these cases and try to remember what the Supreme Court can do when it's just unequivocally doing the the right thing. We should come back and talk a little bit more about the future of all of this and some other instances and what this all means. But this is really a great high point for civil rights and what it means to act under color of law.

0:41:55 Jenessa: Rights yeah I

0:42:24 Ad: [Ad break 3 — ad music]

0:42:24 Matt: Just checking here, Burton v. Wilmington Parking Authority is still good law, right? There's nothing that's really restricted it or changed it?

0:42:30 Jenessa: Don't think so we still have this concept generally if you're a state actor all of a sudden the entire constitution federal law you have to follow it section 1983 didn't come up here but we still do have when a person who is acting on behalf of a state so now like capital s think um you know new york new jersey whatever or a municipality they can be sued under section 1983 so you could also get private damages for these if you can establish they're acting under color of law they're a state actor. The primary places where we have weakening is going to be, as we talked about, qualified immunity interferes with some of this, really only with the private civil damages part. Obviously, you could still get people to stop doing things in the future. The federal aspect has really been limited.

0:43:28 Matt: Right, it's Bivens.

0:43:30 Jenessa: Right. So Section 1983 was originally written so you could sue states. That was pretty quickly extended to understand that municipalities, local officials, that included all of them. It didn't technically say federal officials, but the case, do you have the full case name? It's Bivens, U.S. v. Biven. Okay.

0:43:51 Matt: Six or seven unnamed federal agents are actually the defendants.

0:43:56 Jenessa: Biven's was a case where somebody tried to bring a Section 1983 claim against a federal official. And they were like, hmm, so you are suing a state in the sort of international political sense. The U .S. federal government is a state. But that's probably not what they meant when they wrote this. We're going to let you do it. Go ahead. And then that has been weakened more and more and more over time to say, well, in order to do it on the federal level, it's got to meet this and this and this. And we've just added all of these narrowing criteria until essentially it's the eye of a needle, like pretty much nothing is going to get through it. When I learned about this, it was essentially recommended to me that you just don't even do it.

0:44:47 Jenessa: If somebody is acting, if their official capacity, if the way you could attribute state action to them was only because they were acting on behalf of the U .S. federal government or obviously some other country, it's not going to work. It has to be state or local at this point. So that's the primary way. The overall concept, the concept that a person who is not obviously a state employee with their badge on can still be be a state actor. That even a private person or a private business can be a state actor, yes, absolutely still good law.

0:45:26 Matt: I was thinking about this, obviously, because of the thing I think about all day, the immigration law. Ebert v. Boulay, the case that we talked about in opening arguments means a couple of years ago when I first came on, involved a CBP officer and essentially Clarence Thomas found, and then the conservative justices agreed on this portion of the case, that CBP is doing national security, even if they're on US soil, which they almost always are, that we can't really argue with things they do in the name of national security and we can essentially immunize them from suit. And unless Congress has created a specific right of action, and it's kind of equivalent to the qualified immunity situation where it's like, well, nobody said I couldn't shoot a German shepherd. They just said I shouldn't shoot a pet or whatever. I don't know. I'm just being, that's a ridiculous example, but you know, it almost can be that specific with, we've talked about qualified immunity,

0:46:07 Jenessa: Feels extremely pedantic.

0:46:10 Matt: Right? Always, always. And giving the police as much benefit as possible at all times. But of course, you know we're all watching the news and seeing these men in masks running around, pulling people off the street into unmarked cars and beating them up and throwing them to the ground, shooting US citizens, ramming people's cars, doing all these things that implicate, you now, obviously would usually be serious Bivens claims. Claims. And I haven't heard of anybody seriously trying to bring damages yet. Maybe I'm missing something. I don't think anything's getting anywhere. I remember looking at it when I was looking at Egbert, that Bivens has hardly ever worked in our lifetimes, barely.

0:46:45 Matt: One of the most successful claims is actually something like an employment discrimination or sex harassment case or something, something you wouldn't expect that didn't involve actual physical damage, which I mean, obviously it should still count, but all of the many ways that federal officers can hurt people. And my concern, you know, as somebody who reads a lot of history and thinks a lot about where all this is going right now, is that I do think that there are going to start to be more and more people who are going be acting under color of law in the very broadest sense. You know, and you look at what has always happened with authoritarian governments, where you end up getting essentially paramilitaries, where you get Proud Boys essentially being deputized, like the equivalent of Proud boys, but whatever their militia or, you Know, armed groups. The SA, you Now, for example, of course, in the Third Reich was was not an official government group. It was more a political organization, but it was allowed to enforce the law. The police were officially supposed to police the essay, but of course, the police were run by the Nazis. So nobody cared. And they were acting under color of law. And that kind of citizen participation in law enforcement is pretty much the last step for fascism. That's the point at which you have absolutely achieved full fashion when you have that kind integration. So I know we're talking about 1983 claims for the most part, but I've been really concerned about what happens if the Supreme Court starts to loosen the under color of law standard. And, you know, you even look at right now what's going on with the 287G agreements that we've talked about before, where ICE can make agreements with state and local cops. You can have cops that are operating under color law for doing federal law enforcement.

0:48:14 Matt: And you can see how dangerous that gets when you have cops are in a position where they can essentially put people either into deportation proceedings, or in some cases, actually write up notices to send people to immigration court. They can't actually issue deportation orders yet, but I mean, we still don't know what Ron DeSantis was doing with Alligator Alcatraz, with the facility in Florida. And there are people that we still haven't accounted for, but they still never really gave any kind of clear legal justification for the state to be able to do what they were doing, to just round people up and detain them for doing things like fishing in the Everglades, and to hold them on behalf of the federal government essentially. But this kind of blurring of the lines between who's supposed to be doing what. When you have state actors that are acting under color of maybe under immigration authority, except we don't know because it's maybe secret agreements or maybe there is no agreement, but they're just out there doing it. When those kinds of lines blur and when private citizens feel like they get to get involved, that's very, very bad. And that's, as I said, kind of the last frontier here. So it's may be a little off topic, but that is my concern when I hear all of this about where this could go. And that could certainly start happening at the state and local level as well. You have a lot of state militia organizations that would be happy to assist the police in different ways. If there's some kind of finding that these people can't be held accountable by state authorities and aren't actually acting under color of law, then we're in a lot of trouble. Maybe I'm, is this hyperbole? Am I worried too much here?

0:49:36 Jenessa: I totally agree. If we were looking at the law as it stands right now, state trooper. My impression is that a lot of state and most local cops are not thrilled with this. But let's say state trooper is like yeah totally I'll help out and let's say we agree that it is okay whether they're actually getting real authority or not that they are allegedly getting the authority to do these immigration actions it would be coming from the fed right the real or alleged authority but if they're walking around in their state cop uniform the appearance of authority the thing that makes people obey you was really the new york state police trooper uniform not the fact that you said I do immigration like your average person doesn't know oh state fed whatever what it was is the fact that you were driving a New York State cop car. You know what I mean?

0:50:41 Jenessa: In the now times, you know, looking at how I would interpret this law if I were like a sane judge, I'd be like, yeah, you could fairly attribute that to New York state. Whether New York City wanted their state troopers doing that or not, whether the actual authority comes from the Fed or not. The way this person got other people to agree to go along with what they were doing was because of the appearance of New York state authority. And so I think you could totally say abusing or using their authority, but suing them in their private capacity, avoid that 11th Amendment issue. When it is a federal official, if it is federalized agent, their actions are fairly attributable to the Fed. And we know Bivens has already been so weakened. So obviously, again, if they're violating your rights, That's not like suddenly okay, but weakening Bivens makes it hard for you to civilly sue the individual. And God imagine if you could, if each one of those people could be brought personally into court and have their own private bank account taken at because of what they did, that if it was a situation where it obviously violated your civil rights, like, I don't know, trying to deport a U.S. citizen, that seems like it would be pretty clear.

0:52:02 Matt: Knowingly detaining one for several days, right?

0:52:05 Jenessa: Yeah, yeah.

0:52:05 Matt: And when you know for sure this person's a citizen, you're just messing with them. Or ramming people's cars as they keep doing, right? Or these high-speed chases that are completely unnecessary, right, just that kind of stuff.

0:52:13 Jenessa: Yeah, you're not going to get qualified immunity for something where you are obviously you know or should know that violates civil rights. Done. But because Bivens is so weakened and their actions are fairly attributable to the Fed, not the state, you have a problem. If it's state and local officials, I think you could probably pull off the, I think their actions were attributable. Attributable to their state because they're still wearing their state uniform, right? Right. The idea of it like militia, if they're truly just a rogue private individual, well, then they're just a private individual and you can sue them for anything they did to you. Not for civil rights violations, but like, you know, false imprisonment, basically. It's an assault, battery, whatever you want. If they were acting under color of federal law it would be really hard to sue them because with Bivens so weakened there is no federal version of 1983 anymore so yeah if they are randos just spray painting the word ice on their back and ice is like we love them they're part of us their actions are fairly attributable to the fed but I don't know what you can do about that that again they would not be entitled to violate your rights because they're not a private actor anymore they're a state actor you would not be able to civilly sue them for violating your civil rights you would be able to get injunctions for them to stop violating your civil rights it gets really hairy trying to pull out what you can and can't do to who depending on what they portray themselves and how they are perceived and how they are endorsed. It's really messy and it's really dangerous that anybody's confused about who's allowed to do what.

0:54:01 Matt: And maybe they should just wear uniforms and not wear masks. That would help a lot.

0:54:05 Jenessa: Yeah, there's a thought.

0:54:06 Matt: So we know which agency they're working with. I don't know if you saw the New York Times had to run basically a photo guide to the different agency uniforms so that you can try to figure out which federal agent is beating you up essentially at a protest. Yeah, so there we are. But I do want to close on a happy note here that this is a really important case. It's certainly the most important case that ever involves a parking garage in Delaware. I can say that without shepherdizing it.

0:54:32 Jenessa: Probably.

0:54:32 Matt: Certainly appreciate the rundown. I learned a lot and we'll be back sometime soon to talk about sort of a case that you've got that I'm going to keep in the dark about for the most part, that's going to kind of wrap up a lot of these themes. You want a preview for us?

0:54:44 Jenessa: Yeah so I've got almost a pop quiz. It's a little less pop because I'm going to give you a heads up now. We've got a case coming up that I have been very sneakily and not so sneakily building towards. It is absolutely not monumental, but it does read like a hypo from every law school exam you've ever taken because it raises about 14 different legal questions. If you want to go back and review everybody as a little hint, episodes 1190, 1192, and 1194. We talked about Miranda and cats. You and Liz did a follow-up on some more about Miranda. And then today's episode are all getting us through issues about the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment. Your civil rights against an unreasonable search and seizure, when you have to be read your Miranda rights, what makes an interview custodial. It's all going to come up. And whether someone is acting under color of law, we have an off-duty cop. So I'm really excited to take you on a little journey through a really wild case that everybody can test themselves on. So if you want to go back and re-listen to those episodes to refresh your memory before we do that one uh yeah it's super cool

0:56:07 Matt: Nice. A still good law midterm exam. Let's do it.

0:56:10 Jenessa: Probably

0:56:11 Matt: Everybody loves a midterm. Well, great talking to you. Let's come back and do this again on Friday. We'll be catching up with the law in the news as always.

0:56:53 Matt: Trying hard right now to construct a sentence that doesn't begin with the word so.

0:56:57 Matt: So this case has been on our list for a little while. I just started with so, didn't I? I'll try that again. It could be edited out, but let me try it again. I love the idea that Wilmington is being overwhelmed with tourists. Sorry, Wilmingdon, but it's a very Boston thing for me to say.

0:57:07 Jenessa: National emergency parking