BRENDA GRANTLAND, ESQ.
California Bar # 165899
20 Sunnyside, Suite A-204
Mill Valley, CA 94941
415/380-9108 - telephone
LANDON GERALD DOWDEY
Pro Hac Vice
2000 L. St., NW, Ste. 200
Washington, DC 20036
(202) 416-1626
Counsel to Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
STEVEN ROSEVEARE and TOYA :
ROSEVEARE : CIVS-94-0391 EJG-EFM :
Plaintiffs, : MEMORANDUM IN SUPPORT OF
: PLAINTIFFS' CROSS-MOTION
v. : FOR SUMMARY JUDGMENT
: ON THE ISSUE OF WHETHER
AMERICAN BROADCASTING CO. INC., : DEFENDANTS CONSPIRED WITH
A.D. PRODUCTIONS, INC., AND : OFFICIALS ACTING UNDER COLOR
PAUL STOJANOVICH, : OF STATE LAW
:
Defendants. : Date: March 17, 1997, 9 a.m.
: Place: Courtroom 4
The media defendants claim that they were not engaged in a conspiracy under color of state law -- as opposed to federal law -- arguing that "[t]he DEA agents in this case derived their authority exclusively from federal law, and therefore could not be said to be state officials or to have been working under color of state law." These claims ignore the plain facts.
a. ". . . the DEA agents in this case"
The defendants consistently refer to these officers as "DEA agents" and to the task force as the "DEA task force" -- because it suits their argument.
In fact, the task force was a multi-jurisdictional task force, made up primarily of county and local police officers from Lake Tahoe and neighboring jurisdictions in both California and Nevada, although it had two or three federal agents.(1) The task force was referred to as the "South Lake Tahoe Task Force" by the officers assigned to it. Exhibit B. Depo. of Detective Daniel Britton, p. 147.
b. ". . . derived their authority exclusively from federal law"
The Tahoe task force was not a federal agency, but a creature of contract -- a multi-jurisdictional task force. It was created under a joint powers agreement entitled "Drug Enforcement Administration, South Lake Tahoe Task Force, State and Local Task Force Agreement." The task force agreement in effect when the Roseveares were arrested (FY-92) is attached as Exhibit A.
The terms of the task force agreement show that the task force did not derive its power "exclusively from federal law," as defendants claim. The title of the agreement itself indicates that the task force was a combination of state, local and federal powers -- it's called a "Drug Enforcement Administration . . . State and Local Task Force Agreement." The employees of the task force were drawn from each of the participating agencies -- state, local and federal. Exhibit A ¶2. The DEA personnel detailed to the task force consisted of one special agent and one clerical employee. Exhibit A ¶5. There was at least one Customs Service employee on detail to the task force.
The rest of the officers were from state and local police agencies. These local police officers could not have been detailed to this task force but for their status as state and local police officers. Furthermore, they remained subject to their parent agency's laws and procedures while on detail to the task force. Exhibit A ¶8(b) Therefore task force agents on loan from state and local agencies derived their authority from their parent agency and hence, from state and local law. They clearly did not derive their authority "exclusively from federal law," as defendants claim.
c. ". . . and therefore could not be said to be state officials"
Under the terms of the task force agreement, the officers on loan from state and local agencies remained state or local officials.
The agreement provided that state and local officers on detail to the task force would remain on the payroll of their parent agency (Exhibit A ¶6), although DEA would reimburse for some overtime. The parent agencies were required to supply their agents with all equipment including automobiles and radios, and office furniture, Exhibit A ¶10, and to pay for all maintenance and repairs on the automobiles of their agents. Exhibit A ¶12. The DEA paid for gasoline. Exhibit A ¶12.
The authority over the task force was also a blend of state, local and federal sovereigns. Unlike the situation in Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1975), where the state agents were on detail to a federal agency, Tahoe task force agents were on detail to an entity created by a multi-jurisdictional joint powers agreement. The task force agents were not supervised by the DEA, but by an Executive Board made up of the heads of each of the participating agencies. Exhibit A ¶8.
Most importantly -- the task force agents remained subject to the authority of their respective agency, under the terms of the Task Force Agreement:
Task force Officers shall remain subject to the policies, procedures, and regulations of their parent agencies. Any conflict between DEA policies and procedures and the policies and procedures of a parent agency will be resolved by the Executive Board.
Exhibit A ¶8(b).
Thus, under the terms of the task force agreement, the officers remained state or local police, and continued to serve as agents of their respective forces, despite having concurrent responsibilities for the task force. Under these circumstances, the cross-deputization, under 21 U.S.C. §878 and paragraph 4 of the Agreement, may have immunized the individual officers (as this court has previously held) but it did not remove the "acting under color of state law" element from these officers' authority.
In support of their argument that the media defendants' actions, in conspiracy with the task force officers, were acting solely under color of federal law -- and not under color of state law -- defendants cited Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992) and Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1975). These cases are clearly distinguishable on the facts.
A. Cabrera is distinguishable, yet its principles support plaintiffs' position
In Cabrera, the Ninth Circuit stated that
Federal officials do not become "state actors" unless "[t]he State has so far insinuated itself into a position of interdependence with . . . [the federal officials] that it must be recognized as a joint participant in the challenged activity." To transform a federal official into a state actor, the appellees must show that there is a "'symbiotic relationship' between the [federal defendants] and the state such that the challenged action can 'fairly be attributed to the state.'" See also Gibson [v. United States], 781 F.2d [1334], at 1343 [(9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987)] ("Federal officers acting under federal authority are immune from suit unless the state or its agents significantly participated in the challenged activity.")
973 F.2d at 742-743 (emphasis added). The key words and phrases emphasized above easily describe the facts of this case. That was not true of the facts in Cabrera.
The defendants in Cabrera were the Governor of California, the (U.S.) Secretary of Labor, and two lower officials of the U.S. Occupational Safety and Health Administration (OSHA). The action complained of was the state Governor's unilateral recommendation that the federal government terminate approval of the state OSHA plan and that the federal government assume responsibility for OSHA enforcement in California. The Ninth Circuit held that the federal defendants did not have a symbiotic relationship with the state governor, since the federal officials were initially opposed to the governor's recommendation and refused to follow it. It was only after the state legislature adjourned without funding Cal-OSHA that the federal agents resumed jurisdiction over OSHA. The Ninth Circuit held there was no action under color of state law, reasoning:
While we acknowledge that the federal defendants met with Governor Deukmejian's agents on several occasions and cooperated with the Governor to fill the gap created by his veto of funding for Cal-OSHA, we do not agree that the federal defendants' contacts and discussions with Rinaldi transformed them into "state actors" whose actions could fairly "be attributed to the state." Johnson v. Orr, 780 F.2d at 390. This was not a case where federal officials conspired or cooperated with state agents to deprive individuals of their federal rights. The federal defendants only resumed jurisdiction over California's occupational health matters out of a need to fill the gap in coverage left by Governor Deukmejian's termination of Cal-OSHA and ensure that California's workers would be adequately protected by federal safety standards. Far from being a symbiotic participant, whose actions could fairly be attributed to the State, we hold as a matter of law that the federal defendants' decision to resume exclusive federal jurisdiction over the State's occupational health and safety matters was taken under color of federal law and that the state played no legally significant role in the challenged activity. Gibson, 781 F.2d at 1343.
(Emphasis added.) Again, the emphasized language distinguishes Cabrera from this case.
Under Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir. 1979) (cited in Cabrera), federal officers who conspire with state actors are subject to §1983 liability when the action is a "joint product of the exercise of a State power and of a non-State power." Clearly the Tahoe multi-jurisdictional task force is such a creation.
A "joint product of the exercise of a State power and of a non-State power" can take many forms -- joint actions of federal agencies and state agencies working together,(2) defendant agents who serve two sovereigns simultaneously,(3) and multijurisdictional entities created from a blend of agencies and chains of command from two or more sovereigns.(4)
B. State action has been found in conspiracies involving a mixture of federal and state agents, working together on a case
The other case relied upon by defendants, Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976), dealt with a raid by a federal police agency, with backup units provided by a state agency. The actions complained of were planned and executed by the federal agency, although there were a few state agents, on detail to the federal agency, among the agents conducting the raid. The Seventh Circuit held that the agents were not acting under color of state law, reasoning that the state backup units played a de minimis role. The court did not consider whether the state agents on detail conferred state action, and for that reason, Askew may no longer be good law.
The Seventh Circuit distinguished Askew in Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979). In Hampton, plaintiffs brought a civil conspiracy action under § 1983, against a combination of state and federal agents who raided a Black Panther party apartment, killing several members. The federal defendants claimed this action was not under color of state law because they were not state agents. The Seventh Circuit rejected that argument, stating:
when federal officials are engaged in a conspiracy with state officials to deprive constitutional rights, the state officials provide the requisite state action to make the entire conspiracy actionable under section 1983. The Second Circuit has stated: "When the violation is the joint product of the exercise of a State power and of a non-State power then the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a 'significant' role in the result." Kletschka v. Driver, 411 F.2d 436, 449 (2d. Cir. 1969) (citation omitted.) Our recent decision in Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976) is not to the contrary. In Askew, the state officials did not play a significant role in the conspiracy: "[B]oth the impetus for and the execution of" the conspiratorial plan derived from the federal officials. Id. at 678. Plaintiffs' evidence in the instant case indicates that the federal and state defendants shared in instigating and preparing for the raid. There can be no question that the state defendants "played a 'significant' role in the result." Kletschka, supra, 411 F.2d at 449.
Hampton v. Hanrahan, 600 F.2d at 623.
In Kletzschka v. Driver, the Second Circuit considered the question of whether federal officials could ever act under color of state law for § 1983 purposes. The court held they could.
We can see no reason why a joint conspiracy between federal and state officials should not carry the same consequences under § 1983 as does joint action by state officials and private persons. It was the evident purpose of § 1983 to provide a remedy when federal rights have been violated through the use or misuse of a power derived from a State. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). When the violation is the joint product of the exercise of a State power and of a non-State power then the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a "significant" role in the result. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed. 2d 45 (1961).
411 F.2d at 448-449.
B. State action has been found where the actors are federal and state agents at the same time -- i.e., where they serve two sovereigns simultaneously
In Rowe v. Tennessee, 609 F.2d 259 (6th Cir. 1979), the plaintiff was formally an employee of the federal government, but was required as a condition of his civilian employment as a national guard technician, to also be a member of the Tennessee Air National Guard. His supervisors, defendants in the case, were also both federal employees and members of the state national guard. They argued that their allegedly discriminatory actions were made under color of "federal" -- not state law. The Sixth Circuit rejected that argument, saying the district court had incorrectly placed "dispositive significance in the word 'only'" in the following quote from United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941):
Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law.
The Sixth Circuit pointed out that
. . . in a federal system where state and national action is often parallel, "state action" might never be found in this pure, abstract form. Such a test for the applicability of § 1983 would be nearly impossible to meet.
Rowe, 609 F.2d at 263.
Rowe examined the fact scenarios presented in Classic, Screws v. United States, 325 U.S. 91 (1945), and Monroe v. Pape, and noted that none of them involved "concurrent federal and state action." It then pointed to language in Screws, 325 U.S. 108, 65 S.Ct. at 1038, which suggests that concurrent federal and state action is state action:
The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under "color of any law." He who acts under "color" of law may be a federal officer or a state officer. He may act under "color" of a federal law or of state law. The [civil rights] statute does not come into play merely because the federal law or the state law under which the officer purports to act is violated. It is applicable when and only when someone is deprived of a federal right by that action.
609 F.2d at 263.
The court in Rowe found Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1970) to be dispositive, and held that there was sufficient state action for the cause of action to arise under state law for § 1983 purposes.
Appellees argue that because this administrative authority is reserved to the States by federal statute, the authority itself must be characterized as "federal." This is an exercise in circularity which, if implemented, would create a gap between the remedies provided for "federal" violations of constitutional rights provided by Bivens and that provided for "state" violations of rights by § 1983.
609 F.2d at 264-265.
D. State action has been found when the actors worked for multijurisdictional entities created by contract between agencies of several sovereigns
In a case that is "on all fours" (including the location), the U.S. Supreme Court has held that multi-jurisdictional entities created by a blend of sovereigns should be treated as acting under color of state law. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 399-400 (1979) involved a regional planning agency comprised -- like the task force in this case -- of various state, county and local agencies from the Lake Tahoe region of California and Nevada. The multi-jurisdictional entity in Lake Country Estates was also a creature of contract -- an interstate compact that had to be ratified by the federal government. In holding that the actions of agents assigned to this entity were actions under color of state law, the Supreme Court held:
Section 1983 provides a remedy for individuals alleging deprivations of their constitutional rights by action taken "under color of state law." The Court of Appeals incorrectly assumed that the requirement of federal approval of the interstate Compact foreclosed the possibility that the conduct of TRPA and its officers could be found to be "under color of state law" within the meaning of § 1983.
The Compact had its genesis in the actions of the compacting States, and it remains part of the statutory law of both States. The actual implementation of TRPA, after federal approval was obtained, depended upon the appointment of governing members and executives by the two States and their subdivisions and upon mandatory financing secured, by the terms of the Compact, from the counties. In discharging their duties as officials of TRPA, the state and county appointees necessarily have also served the interests of the political units that appointed them. The federal involvement, by contrast, is limited to the appointment of one nonvoting member to the governing board. While congressional consent to the original Compact was required, the States may confer additional powers and duties on TRPA without further congressional action. And each State retains an absolute right to withdraw from the Compact.
440 U.S. 399. The Supreme Court concluded that:
Even if it were not well settled that § 1983 must be given a liberal construction, these facts adequately characterize the alleged actions of the respondents as "under color of state law" within the meaning of that statute.
440 U.S. 399-400.
The South Lake Tahoe Task Force was the same type of creature as the Tahoe Regional Planning Board. Both agencies were governed by a board created by contract between the various sovereigns. In both cases, the state and county agencies supplied the personnel to implement the goals of the multi-jurisdictional entity, and footed the bill for their respective participants. The state agencies also had representation on the board that governed the multi-jurisdictional entity, and could withdraw from the multi-jurisdictional entity at any time. In both cases, the federal involvement was limited to one voting member on the Board that governed the entity -- neither agency was controlled by the federal government.
In finding that the actions of the Tahoe Regional Planning Board were done under color of state law, the Supreme Court noted that "it [is] well settled that § 1983 must be given a liberal construction." The Court added, in footnote 17, 440 U.S. at 400:
Section 1983 originated as § 1 of the Civil Rights Act of 1871. In introducing that Act in Congress, Representative Shellabarger pointed out:
"This Act is remedial and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed..... the largest latitude consistent with the words employed is uniformly given in construing such statutes." Cong Globe. 42d Cong., 1st Sess., App. 68 (1871).
Even without the liberal construction requirement, the facts of Lake Country Estates, the Supreme Court said, "adequately characterize the alleged actions of the respondents as 'under color of state law' within the meaning of that statute."
The same is true here.
For the reasons set out in this Cross-Motion, points and authorities, and attachments thereto, this Court should deny defendant's motion for summary judgment, and grant Plaintiffs' cross-motion for summary judgment on the "color of state law" element.
DATE: February 28, 1997
BRENDA GRANTLAND
20 Sunnyside, Suite A-204
Mill Valley, CA 94941
(415) 380-9108
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Cross-Motion for Summary Judgment was served, by mail, upon Patricia Prince, 20 California Street, Suite 201, San Francisco, CA 94111, this ______ day of _____________, 1997.
_________________________________
Brenda Grantland
1. The task force made up of employees the Nevada Division of Investigation, Douglas County Sheriff's Office, South Lake Tahoe Police Department, and El Dorado Sheriff's Office -- as well as the DEA and the U.S. Customs Service. Except for Brian Averi, there were no real "DEA agents" in this task force. The rest were cross-deputized officers from the various jurisdictions. Exhibit A p. 1.
2. See part B below.
3. See part C below.
4. See part D below.