Lead Opinion
delivered the opinion of the Court.
The Fourteenth Amendment of the Constitution provides in part:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the*924 United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Because the Amendment is directed at the States, it can be violated only by conduct that may be fairly characterized as “state action.”
Title 42 U. S. C. § 1983 provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . ,”
I
In 1977, petitioner, a lessee-operator of a truckstop in Virginia, was indebted to his supplier, Edmondson Oil Co., Inc. Edmondson sued on the debt in Virginia state court. Ancillary to that action and pursuant to state law, Edmondson sought prejudgment attachment of certain of petitioner’s property. Va. Code §8.01-533 (1977).
Petitioner subsequently brought this action under 42 U. S. C. § 1983 against Edmondson and its president, His complaint alleged that in attaching his property respondents had acted jointly with the State to deprive him of his property without due process of law. The lower courts construed the complaint as alleging a due process violation both from a misuse of the Virginia procedure and from the statutory procedure itself.
Relying on Flagg Brothers, Inc. v. Brooks,
“[Wjhether the mere institution by a private litigant of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within contemplation of § 1983.”639 F. 2d, at 1061-1062 (footnote omitted).
The court distinguished between the acts directly chargeable to respondents and the larger context within which those acts occurred, including the direct levy by state officials on petitioner’s property. While the latter no doubt amounted to state action, the former was not so clearly action under color of state law. The court held that a private party acts under color of state law within the meaning of § 1983 only when there is a usurpation or corruption of official power by the private litigant or a surrender of judicial power to the private litigant in such a way that the independence of the enforcing officer has been compromised to a significant degree. Because the court thought none of these elements was present here, the complaint failed to allege conduct under color of state law.
Because this construction of the under-color-of-state-law requirement appears to be inconsistent with prior decisions of this Court, we granted certiorari.
II
Although the Court of Appeals correctly perceived the importance of Flagg Brothers to a proper resolution of this case,
As we see it, however, the two concepts cannot be so easily disentangled. Whether they are identical or not, the state-action and the under-color-of-state-law requirements are obviously related.
A
In United States v. Price,
Similarly, it is clear 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. The Court’s conclusion in United States v. Classic,
“[Plaintiffs] are first bound to show that they have been deprived of a right ‘secured by the Constitution and the laws’ of the United States. They must secondly show that Flagg Brothers deprived them of this right acting ‘under color of any statute’ of the State of New York. It is clear that these two elements denote two separate areas of inquiry. Adickes v. S. H. Kress & Co.,398 U. S. 144 , 150 (1970).’’436 U. S., at 155-156 .
Plaintiffs’ case foundered on the first requirement. Because a due process violation was alleged and because the Due Process Clause protects individuals only from governmental and not from private action, plaintiffs had to demonstrate that the sale of their goods was accomplished by state action. The Court concluded that the sale, although authorized by state law, did not amount to state action under the Fourteenth Amendment, and therefore set aside the Court of Appeals’ contrary judgment.
There was no reason in Flagg Brothers to address the question whether there was action under color of state law. The Court expressly eschewed deciding whether that requirement was satisfied by private action authorized by state law. Id., at 156. Although the state-action and under-color-of-state-law requirements are “separate areas of inquiry,” Flagg Brothers did not hold nor suggest that state action, if present, might not satisfy the § 1983 requirement of conduct under color of state law. Nevertheless, the Court of Appeals relied on Flagg Brothers to conclude in this case that state action under the Fourteenth Amendment is not necessarily action under color of state law for purposes of § 1983. We do not agree.
The two-part approach to a §1983 cause of action, referred to in Flagg Brothers, was derived from Adickes v.
B
The decision of the Court of Appeals is difficult to reconcile with the Court’s garnishment and prejudgment attachment cases and with the congressional purpose in enacting § 1983.
Beginning with Sniadach v. Family Finance Corp.,
Fuentes v. Shevin,
To read the “under color of any statute” language 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 § 1 of the Civil Rights Act of 1871, 17 Stat. 13, from which § 1983 is derived. The Act was passed “for the express purpose of ‘enforc[ing] the Provisions of the Fourteenth Amendment.’” Lynch v. Household Finance Corp.,
As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that “most rights secured by the Constitution are protected only against infringement by governments,” Flagg Brothers,
“In 1883, this Court in the Civil Rights Cases,109 U. S. 3 , affirmed the essential dichotomy set forth in [the Fourteenth] Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, ‘however discriminatory or wrongful,’ against which the Fourteenth Amendment offers no shield.”
Careful adherence to the “state action” requirement 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. A major consequence is to require the courts to respect the limits of
Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State. These cases reflect 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. In Sniadach, Fuentes, W. T. Grant, and North Georgia, for example, a state statute provided the right to garnish or to obtain prejudgment attachment, as well as the procedure by which the rights could be exercised. Second, the party charged with the deprivation must be a 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.
Although related, these two principles are not the same. They collapse into each other when the claim of a constitutional deprivation is directed against a party whose official character is such as to lend the weight of the State to his decisions. See Monroe v. Pape,
In Moose Lodge, the Court held that the discriminatory practices of the appellant did not violate the Equal Protection Clause because those practices did not constitute “state action.” The Court focused primarily on the question of
“We therefore hold, that with the exception hereafter noted, the operation of the regulatory scheme enforced by the Pennsylvania Liquor Control Board does not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge to . . . make the latter ‘state action’ within the ambit of the Equal Protection Clause of the Fourteenth Amendment.”407 U. S., at 177 .
In other words, the decision to discriminate could not be ascribed to any governmental decision; those governmental decisions that did affect Moose Lodge were unconnected with its discriminatory policies.
Flagg Brothers focused on the other component of the state-action principle. In that case, the warehouseman proceeded under New York Uniform Commercial Code, § 7-210, and the debtor challenged the constitutionality of that provision on the grounds that it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Undoubtedly the State was responsible for the statute. The response of the Court, however, focused not on the terms of the statute but on the character of the defendant to the § 1983
IV
Turning to this case, the first question 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, respondents, who are private parties, may be appropriately characterized as “state actors.”
Petitioner presented three counts in his complaint. Count three was a pendent claim based on state tort law; counts one and two claimed violations of the Due Process Clause. Count two alleged that the deprivation of property resulted from respondents’ “malicious, wanton, willful, opressive [sic], [and] unlawful acts.” By “unlawful,” petitioner apparently meant “unlawful under state law.” To say this, however, is to say that the conduct of which petitioner complained could not be ascribed to any governmental decision; rather, respondents were acting contrary to the relevant policy articulated by the State. Nor did they have the authority of state officials to put the weight of the State behind their private decision, i. e., this case does not fall within the abuse of authority doctrine recognized in Monroe v. Pape,
Count one is a different matter. That count describes the procedures followed by respondents in obtaining the prejudgment attachment as well as the fact that the state court subsequently ordered the attachment dismissed because respondents had not met their burden under state law. Pe
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.
As is clear from the discussion in Part II, we have consistently held that a private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize 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 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 participant in joint activity with the State or its agents,’” quoting United States v. Price,383 U. S., at 794 .
In summary, petitioner was deprived of his property through state action; respondents were, therefore, acting under color of state law in participating in that deprivation. Petitioner did present a valid cause of action under § 1983 insofar as he challenged the constitutionality of the Virginia statute; he did not insofar as he alleged only misuse or abuse of the statute.
The judgment is reversed in part and affirmed in part, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
Title 42 U. S. C. § 1983, at the time in question, provided in full:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
At the time of the attachment in question, this section was codified as Va. Code §8-519 (1973).
The principal action then proceeded to the entry of judgment on the debt in favor of Edmondson and some of petitioner’s property was sold in execution of the judgment.
In his answer to respondents’ motion to dismiss on abstention grounds petitioner stated that “[n]o question of the constitutional validity of the State statutes is made.” Plaintiff’s Memorandum in Opposition to Motion to Dismiss 3. The District Court responded to this as follows: “[D]espite plaintiff’s protests to the contrary . . . the complaint can only be read as challenging the constitutionality of Virginia’s attachment statute.” App. to Pet. for Cert. 38. The Court of Appeals agreed.
The case was originally argued before a three-judge panel. The Court of Appeals, however, acting sua sponte, set the matter for a rehearing en banc.
Justice Powell suggests that our opinion is not “consistent with the mode of inquiry prescribed by our cases.” Post, at 946. We believe the situation to be just the opposite. We rely precisely upon the ground that the majority itself put forth in Flagg Brothers to distinguish that case from the earlier prejudgment attachment cases: “This total absence of overt official involvement plainly distinguishes this case from earlier decisions imposing procedural restrictions on creditors’ remedies.”
The Court of Appeals held Fuentes v. Shevin not to be relevant because the defendants in that case included the State Attorney General, as well as the private creditor. In the court’s view, the presence of a state official made the “private party defendant. . . merely a nominal party to the action for injunctive relief.”
The Court of Appeals itself recognized this when it stated that in two of three basic patterns of § 1983 litigation — that in which the defendant is a public official and that in which he is a private party — there is no distinction between state action and action under color of state law. Only when there is joint action by private parties and state officials, the court stated, could a distinction arise between these two requirements.
We also stated that if an indictment “allege[s] conduct on the part of the ‘private' defendants which constitutes ‘state action,’ [it alleges] action ‘under color’ of law within [18 U, S. C.] § 242.”
Besides these two Supreme Court cases, the Court cited a number of lower court cases in support of the proposition that the constitutional concept of state action satisfies the statutory requirement of action under color of state law. Simkins v. Moses H. Cone Memorial Hospital,
Title 8 U. S. C. §43 (1946 ed.) was reclassified as 42 U. S. C. § 1983 in 1952.
There was no opinion for the Court in Terry v. Adams. All three opinions in support of the reversal of the lower court decision pose the question as to whether the action of the private political association in question, the Jaybird Democratic Association, constituted state action for purposes of the Fifteenth Amendment. None suggests that a Fifteenth Amendment violation by the private association might not support a cause of action because of a failure to prove action under color of state law.
United States v. Classic did not involve § 1983 directly; rather, it interpreted 18 U. S. C. §242 (then 18 U. S. C. §52 (1940 ed.)), which is the criminal counterpart of 42 U. S. C. § 1983. See n. 9, supra, on the relationship between 18 U. S. C. § 242 and 42 U. S. C. § 1983.
The Adickes opinion contained the following statement,
Justice Brennan, writing separately, did suggest in Adickes that “when a private party acts alone, more must be shown... to establish that he acts ‘under color of’ a state statute or other authority than is needed to show that his action constitutes state action.” Id., at 210 (footnote omitted). Even in his view, however, when a private party acts in conjunction with a state official, whatever satisfies the state-action requirement of the Fourteenth Amendment satisfies the under-color-of-state-law requirement of the statute. Justice Brennan’s position rested, at least in part, on a much less strict standard of what would constitute “state action” in the area of racial discrimination than that adopted by the majority. In any case, the position he articulated there has never been adopted by the Court.
Justice Powell’s discussion of Adickes confuses the two counts of the complaint in that case. There was a conspiracy count which alleged that respondent — a private party — and a police officer had conspired “(1) To deprive [petitioner] of her right to enjoy equal treatment and service in a place of public accommodation’; and (2) to cause her arrest ‘on the false charge of vagrancy.’” Id., at 149-150. It was with respect to this count, which did not allege any unconstitutional statute or custom, that the Court held that joint action of the private party and the police officer was sufficient to support a § 1983 suit against that party. The other count of her complaint was a substantive count in which she alleged that the private act of discrimination was pursuant to a “custom of the community to segregate the races in public eating places.” Here the Court did not rely on any “joint action” theory, but held that “petitioner would show an abridgment of her equal protection right, if she proves that Kress refused her service because of a state-enforced custom.” Id., at 171, 173. Justice Powell is wrong when he summarizes Adickes as holding that “a private party acts under color of law when he conspires with state officials to secure the application of a state law so plainly unconstitutional as to enjoy no presumption of validity.” Post, at 954-955. This is to confuse the conspiracy and the substantive counts at issue in Adickes. Unless one argues that the state vagrancy law was unconstitutional — an argument no one made in Adickes — the joint action count of Adickes did not involve a state law, whether “plainly unconstitutional” or not.
We thus find incomprehensible Justice Powell’s statement that we cite no cases in which a private decision to invoke a presumptively valid state legal process has been held to be state action. Post, at 950. Likewise, his discussion of these cases, post, at 952-953, steadfastly ignores the predicate for the holding in each case that the debtor could challenge the constitutional adequacy of the private creditor’s seizure of his property. That predicate was necessarily the principle that a private part/s invocation of a seemingly valid prejudgment remedy statute, coupled with the aid of a state official, satisfies the state-action requirement of the Fourteenth Amendment and warrants relief against the private party.
In fact, throughout the congressional debate over the 1871 Act, the bill was officially described as a bill “to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes.” See also, e. g., remarks of Senator Trumbull in describing the purpose of the House in passing the Act: “[A]s the bill passed the House of
Our conclusion in this case is not inconsistent with the statement in Flagg Brothers that “these two elements [state action and action under color of state law] denote two separate areas of inquiry.”
Nor is our decision today inconsistent with Polk County v. Dodson,
There are elements of the other state-action inquiry in the opinion as well. This is found primarily in the effort to distinguish the relationship of Moose Lodge and the State from that between the State and the restaurant considered in Burton v. Wilmington Parking Authority,
The “one exception” further illustrates this point. The Court enjoined enforcement of a state rule requiring Moose Lodge to comply with its own constitution and bylaws insofar as they contained racially discriminatory provisions. State enforcement of this rule, either judicially or administratively, would, under the circumstances, amount to a governmental decision to adopt a racially discriminatory policy.
Contrary to the suggestion of Justice Powell’s dissent, we do not hold today that “a private party’s mere invocation of state legal procedures constitutes ‘joint participation’ or ‘conspiracy’ with state officials satisfying the § 1983 requirement of action under color of law.” Post, at 951. The holding today, as the above analysis makes clear, is limited to the particular context of prejudgment attachment.
This confusion in the nature of petitioner’s allegations continued in oral argument in this Court. Although at various times counsel for petitioner seemed to deny that petitioner challenged the constitutionality of the statute, see, e. g., Tr. of Oral Arg. 11, he also stated that
“[t]he claim is that the action as taken, even if it were just line by line in accordance with Virginia law — whether or not they did it right, the claim is that it was in violation of Lugar’s constitutional rights.” Id., at 19.
Justice Powell is concerned that private individuals who innocently make use of seemingly valid state laws would be responsible, if the law is subsequently held to be unconsitutional, for the consequences of their actions. In our view, however, this problem should be dealt with not by changing the character of the cause of action but by establishing an affirmative defense. A similar concern is at least partially responsible for the availability of a good-faith defense, or qualified immunity, to state officials. We need not reach the question of the availability of such a defense to private individuals at this juncture. What we said in Adickes,
Dissenting Opinion
dissenting.
Whether we are dealing with suits under § 1983 or suits brought pursuant to the Fourteenth Amendment, in my view the inquiry is the same: is the claimed infringement of a federal right fairly attributable to the State. Rendell-Baker v. Kohn, ante, at 838. Applying this standard, it cannot be said that the actions of the named respondents are fairly attributable to the State.
with whom Justice Rehnquist and Justice O’Connor join, dissenting.
Today’s decision is a disquieting example of how expansive judicial decisionmaking can ensnare a person who had every reason to believe he was acting in strict accordance with law. The case began nearly five years ago as the outgrowth of a simple suit on a debt in a Virginia state court. Respondent — a small wholesale oil dealer in Southside, Va. — brought suit against petitioner Lugar, a truckstop owner who had failed to pay a debt.
Following this decision Lugar instituted legal action in the United States District Court for the Western District of Virginia. Suing under a federal statute, 42 U. S. C. §1983, Lugar alleged that the respondent — by filing a petition in state court — had acted “under color of law” and had caused the deprivation of constitutional rights under the Fourteenth Amendment — an Amendment that does not create rights enforceable against private citizens, such as one would have assumed respondent to be, but only against the States. Rendell-Baker v. Kohn, ante, at 837; Flagg Bros., Inc. v. Brooks,
This Court today reverses the judgment of those lower courts. It holds that respondent, a private citizen who did no more than commence a legal action of a kind traditionally initiated by private parties, thereby engaged in “state action.” This decision is as unprecedented as it is implausible. It is plainly unjust to the respondent, and the Court makes no
I
The plain language of 42 U. S. C. § 1988 establishes that a plaintiff must satisfy two jurisdictional requisites to state an actionable claim. First, he must allege the violation of a right “secured by the Constitution and laws” of the United States. Because “most rights secured by the Constitution are protected only against infringement by governments,” Flagg Bros., Inc. v. Brooks,
This case demonstrates why separate inquiries are required. Here it is not disputed that the Virginia Sheriff and Clerk of Court, the state officials who sequestered petitioner’s property in the manner provided by Virginia law, engaged in state action. Yet the petitioner, while alleging constitutional injury from this action by state officials, did not sue the State or its agents. In these circumstances the Court of Appeals correctly stated that the relevant inquiry was the second identified in Flagg Bros.: whether the respondent, a private citizen whose only action was to invoke a presumptively valid state attachment process, had acted under color of state law in “causing” the State to deprive peti
Rejecting the reasoning of the Court of Appeals, the Court opinion inexplicably conflates the two inquiries mandated by Flagg Bros. Ignoring that this case involves two sets of actions — one by respondent, who merely filed a suit and accompanying sequestration petition; another by the state officials, who issued the writ and executed the lien — it wrongly frames the question before the Court, not as whether the private respondent acted under color of law in filing the petition, but as “whether . . . respondents, who are private parties, may be appropriately characterized as ‘state actors.’ ” Ante, at 939. It then concludes that they may, on the theory that a private party who invokes “the aid of state officials to take advantage of state-created attachment procedures” is a “joint participant” with the State and therefore a “state actor.” “The rule,” the Court asserts, is as follows:
“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 participant in a joint activity with the State or its agents.” Ante, at 941, quoting Adickes v. S. H. Kress & Co., supra, at 152, in turn quoting United States v. Price,383 U. S. 787 , 794 (1966).
HH t — i
As this Court recognized in Monroe v. Pape,
It of course is true that respondent’s private action was followed by state action, and that the private and the state actions were not unconnected. But “[tjhat the State responds to [private] actions by [taking action of its own] does not render it responsible for those [private] actions.” Blum v. Yaretsky, post, at 1005. See Flagg Bros.,
This Court of course has held that private parties are amenable to suit under § 1983 when “jointly engaged” with state officials in the violation of constitutional rights. See Adickes v. S. H. Kress & Co.,
As illustrated by this quotation, our cases have recognized a distinction between “state action” and private action under “color of law.” This distinction is sound in principle. It also is consistent with and supportive of the distinction between “private” conduct and government action that is subject to the procedural limitations of the Due Process Clause of the Fourteenth Amendment. As the Court itself notes: “Careful adherence to the ‘state action’ requirement 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.” Ante, at 936.
A “color of law” inquiry acknowledges that private individuals, engaged in unlawful joint behavior with state officials, may be personally responsible for wrongs that they cause to occur. But it does not confuse private actors with the
HH I — I
Contrary to the position of the Court, our cases do not establish that a private party’s mere invocation of state legal procedures constitutes “joint participation” or “conspiracy” with state officials satisfying the § 1983 requirement of action under color of law. In Dennis v. Sparks,
The Court argues that petitioner’s action under § 1983 is supported by cases in which this Court has applied due process standards to state garnishment and prejudgment attachment procedures. The Court relies specifically on Sniadach v. Family Finance Corp.,
Of the cases cited by the Court, Sniadach, Mitchell, and Di-Chem all involved attacks on the validity of state attachment or garnishment statutes. None of the cases alleged that the private creditor was a joint actor with the State, and none involved a claim for damages against the creditor. Each case involved a state suit, not a federal action under § 1983. It therefore was unnecessary in any of these cases for this Court to consider whether the creditor, by virtue of instituting the attachment or garnishment, became a state actor or acted under color of state law. There is not one word in any of these cases that so characterizes the private creditor.
B
In addition to relying on cases involving the constitutionality of state attachment and garnishment statutes, the Court advances a “joint participation” theory based on Adickes v. S. H. Kress & Co.,
Contrary to the suggestion of the Court, however, Justice Harlan’s Court opinion in Adickes did not purport to define the term “under color of law.” Attending closely to the facts presented, the Court observed that “[wjhatever else may also be necessary to show that a person has acted under color of [a] statute’for purposes of § 1983,... we think it essential that he act with the knowledge of and pursuant to that statute.”
Although Adickes is distinguishable from these hypotheti-cals, the current case is not. The conduct in Adickes occurred in 1964, 10 years after Brown v. Board of Education,
Today’s decision therefore is ás unprecedented as it is unjust.
The pleadings in this case amply demonstrate that the challenged conduct was directed solely at respondents’ acts. The unlawful actions alleged were that respondents made “conclusory allegations,” App. 5, respondents lacked a “factual basis” for attachment, id., at 10, and respondents lacked “good cause to believe facts which would support” attachment. Id., at 19. There is no allegation of collusion or conspiracy with state actors.
The state action, filed in the name of the Edmondson Oil Co., alleged that Lugar owed $41,983 for products and merchandise previously delivered. App. 22. In the present suit Lugar has named as defendants both the Edmondson Oil Co. and its president, Ronald Barbour. As the respondent Barbour is the sole stockholder of Edmondson Oil Co., id,., at 2, and appears to have directed all its actions in this litigation, see id., at 26,1 refer throughout to Barbour as if he were the sole respondent.
See Va. Code § 8.01-533 et seq. (1977). At the time of the attachment in this case, the applicable provisions were Va. Code § 8-519 et seq. (1973). The Virginia attachment provisions have remained essentially in their present form despite numerous recodifications since 1819. See Va. Code § 8-519 et seq. (1950); Va. Code § 6378 et seq. (1919); Va. Code § 2959 et seq. (1887); Va. Code, ch. 151 (1849); Va. Code, ch. 123 (1819).
Title 42 U. S. C. § 1983, at the time in question, provided:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Judge Phillips’ excellent opinion for the en banc Court of Appeals correctly defined the question presented as “whether the mere institution by a private litigant of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within the contemplation of § 1983.”
State officials acting in their official capacities, even if in abuse of their lawful authority, generally are held to act “under color” of law. E. g., Monroe v. Pape,
The Court, ante, at 928, quotes United States v. Price,
In Adickes the term “jointly engaged” appears to have been used specifically to connote engagement in a “conspiracy.” See
The Court avers that its holding “is limited to the particular context of prejudgment attachment.” Ante, at 939, n. 21. However welcome, this limitation lacks a principled basis. It is unclear why a private party engages in state action when filing papers seeking an attachment of property, but not when seeking other relief (e. g., an injunction), or when summoning police to investigate a suspected crime.
At one stage in the litigation the respondent averred that his lawsuit raised “[n]o question of the constitutional validity of the State statutes.” Plaintiff’s Memorandum in Opposition to Motion to Dismiss 3. The District Court nevertheless concluded that “the complaint can only be read as challenging the constitutionality of Virginia’s attachment statute.” App. to Pet. for Cert. 38. The Court of Appeals agreed.
The Court finds support for its contrary view only by reading these cases as implicitly embracing the same fallacy as the Court does today. In Sniadach, Mitchell, and Di-Chem — as in this case — there was no question that state action had occurred. There, as here, some official of the State— an undisputed state actor — had undertaken either to attach property or
Fuentes was consolidated with a case involving similar facts, Epps v. Cortese,
Arguing that the patent unconstitutionality of racial discrimination was irrelevant to the “conspiracy” count in Adickes, the Court charges that this discussion confuses the conspiracy and the substantive causes of action. Ante, at 932, n. 15. The Court’s view is difficult to understand. In Adickes the private defendant allegedly conspired with the police to “deprive plaintiff of her right to enjoy equal treatment and service in a place of public accommodation,”
At least one scholarly commentator has stated a cautious conclusion that the Virginia attachment provisions would satisfy the standards established by this Court’s recent due process decisions. See Brabham, Sniadach Through Di-Chem and Backwards: An Analysis of Virginia’s Attachment and Detinue Statutes, 12 U. Rich. L. Rev. 157, 195-199 (1977). The correctness of this conclusion is not of course an issue in the present posture of the case, nor is it directly relevant to the case’s proper resolution.
The Court suggests that respondent may be entitled to claim good-faith immunity from this suit for civil damages. Ante, at 942, n. 23. This is a positive suggestion with which I agree. A holding of immunity will mitigate the ultimate cost of this litigation. It would not, however, convert the Court’s holding into a just one. This case already has been in litigation for nearly five years. It will now be remanded for further proceedings. Respondent, solely because he undertook to assert rights authorized by a presumptively valid state statute, will have been subjected to the expense, distractions, and hazards of a protracted litigation.