Paul v. Davis and the right to due process

¶ … Paul v. Davis

The Facts

One of the seminal privacy and civil rights cases made its way up to the U.S. Supreme Court in 1976. In one of the most tumultuous eras in American history - the American Civil Rights movement - this case stands out both from a legal sense in the precedent it set, and in its social implications.

Generally speaking, here are the facts: A flyer listing "active shoplifters" was distributed to merchants in the Louisville, Kentucky area. The flyer depicted a photograph of Edward C. Davis III, who had been arrested by police on a shoplifting charge. When his shoplifting charge was dismissed, Davis brought an action in civil suit against Edgar Paul, the Louisville, Kentucky chief of police. Davis alleged that the distribution of the flyer had seriously stigmatized him and deprived him of his constitutional rights.

The flyer included the following language:

The Chiefs of the Jefferson County and City of Louisville Police Departments, in an effort to keep their officers advised on shoplifting activity, have approved the attached alphabetically arranged flyer of subjects known to be active in this criminal field.

This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects. These persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas.

Only the photograph and name of the subject is shown on this flyer, if additional information is desired, please forward a request in writing...." (Paul v. Davis)

The flyer consisted of five pages of "mug shot" photos, arranged in alphabetical order. Each page was headed:

CITY of LOUISVILLE%% JEFFERSON COUNTY

POLICE DEPARTMENTS

ACTIVE SHOPLIFTERS" (Paul v. Davis)

To be precise, Davis had pleaded not-guilty to the shoplifting charge and the charge was then filed away with leave to reinstate, meaning that Davis was neither guilty nor not-guilty. At that point, the flyer was circulated, so at that point, the charges had not been dropped yet. Shortly thereafter, the charges were indeed dropped against Davis and he was officially not-guilty.

At the time the flyer was circulated, Davis was employed as a photographer by the Louisville Courier-Journal and Times. The flyer, and Davis' inclusion in it, soon came to the attention of Davis' boss, the executive director of photography for the two newspapers. Davis' boss called Davis in to hear his version of the events leading to his appearing in the flyer. Following this discussion, the boss informed Davis that although he would not be terminated outright, he "had best not find himself in a similar situation" in the future. (Paul v. Davis)

Section 2: The Due Process Claim

Davis used as the foundation for his claim the concept of due process. Generally, due process guarantees the following (this list is not exhaustive):

Right to a fair and public trial conducted in a competent manner

Right to be present at the trial

Right to an impartial jury

Right to be heard in one's own defense

Laws must be written so that a reasonable person can understand what is criminal behavior

Taxes may only be taken for public purposes

Property may be taken by the government only for public purposes

Owners of taken property must be fairly compensated (United States Constitution)

The Fifth Amendment of the U.S. Constitution confers a guarantee of basic due process applicable only to actions of the American federal government: "No person shall be... deprived of life, liberty, or property, without due process of law...." (U.S. Constitution, 5th Amendment) the Fourteenth Amendment - the critical amendment of the civil rights movement -- contains the same phrase, but expressly applied to the States, such that African-Americans could not be discriminated against. The Supreme Court has interpreted the two clauses absolutely identically, so under the federal Constitution, there exists no fundamental difference in protection from federal or State action. However, State constitutions may also exhibit their own guarantees of due process that may, by their own terms or by the interpretation of that State's judicial branch, confer even greater protection to individuals than under federal law.

For a historical perspective, one that is critical in understanding the scene during the civil rights movement in America and Davis' suit, the Due Process Clause of the U.S. Constitution hails from a similar clause of Magna Carta in which the King of England promised (in the year 1215 a.D.) that "No Freeman shall be taken, or imprisoned, or be disseized of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land." (Magna Carta, 1215 AD) as a result, the core historical meaning of the Due Process Clause is that the government cannot in any manner deprive anyone if the Law of the Land forbids it. In other words, neither the King nor an American President may take away your life, liberty, or property if the law denies him that power, and Davis argued that the law did indeed deprive the police chief and his department of that power.

Due Process under the U.S. Constitution has - in addition -- been interpreted as a restraint on the ways that legislatures may actually alter the law, although some federal judges over the years have objected to stretching the Due Process Clause beyond what was intended by Magna Carta. In essence, the Due Process Clause acts as a limit, then, on the legislative, executive and judicial branches.

As a limitation on Congress, the Due Process Clause has been interpreted by the majority of the U.S. Supreme Court to contain both procedural and substantive components, meaning that it sets constrictions on legal procedures -- the manners in which laws may operate -- and also on legal substance -- what laws may try to do or proscribe.

As the Davis case establishes, the difference between substance and procedure is difficult in both theory and practice to determine and rule from. Moreover, the substantive component of due process has proven to be extremely controversial, because it gives the U.S. Supreme Court amazing power to strike down state and federal statutes in order to legalize activities that a majority of the judges do not think should have been criminalized in the first place.

Davis' due process claim was grounded upon his assertion that the flyer, and in particular the phrase "Active Shoplifters" appearing at the head of the page upon which his name and photograph appear, illegally deprived him of some "liberty" as protected by the Fifth Amendment and extended to the states by the Fourteenth Amendment. Davis' complaint asserted that the "active shoplifter" delineation would effectively prohibit him or at least creates obstacles for him from entering business establishments for fear of being suspected of shoplifting and possibly even apprehended, and would considerably preclude and curtail his future employment opportunities as well, as indicated by the statement issued by his boss at the papers.

According to the U.S. Supreme Court, accepting that such consequences may flow from the flyer in question, Davis' "complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages." (Paul v. Davis)

Furthermore, the U.S. Supreme Court noted that Davis brought his action, however, not in the state courts of Kentucky, but in a United States District Court for that State. (Paul v. Davis) "He asserted not a claim for defamation under the laws of Kentucky, but a claim that he had been deprived of rights secured to him by the Fourteenth Amendment of the United States Constitution. Concededly if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law. but, he contends, since petitioners are respectively an official of city and of county government, his action is thereby transmuted into one for deprivation by the State of rights secured under the Fourteenth Amendment." (Paul v. Davis)

Section 3: The Supreme Court Majority Analysis

The majority set the tone immediately for what Davis had to establish in order to prevail. If Davis' view was to prevail, the majority opined, a person arrested by law enforcement officers who state that they believe that individual to be responsible for a particular crime in order to calm the fears of an aroused populace, seemingly obtains a valid claim against such officers under 1983 - the due process clause, as framed above in Section 2 (infra).

And, according to the majority, "Since it is surely far more clear from the language of the Fourteenth Amendment that "life" is protected against state deprivation than it is that reputation is protected against state injury, it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle, would not have claims equally cognizable under 1983." (Paul v. Davis)

The majority went on to argue that it is almost impossible to guess at any logical stopping place to the afore-prescribed theory of reasoning. Davis' interpretation of the law as set out in his briefs would seem almost necessarily to manifest itself in every legally cognizable injury which may have been inflicted by a state official - of any sort, not just a police officer -- acting under "color of law" establishing a violation of the Fifth Amendment as extended to the 50 states by the aforementioned Fourteenth Amendment to the Constitution.

According to the majority, "We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent."

Section 5: The Dissent

Justice Brennan wrote a scathing dissent in which he opined that, "The Court today holds that police officials, acting in their official capacities as law enforcers, may on their own initiative and without trial constitutionally condemn innocent individuals as criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our society. If there are no constitutional restraints on such oppressive behavior, the safeguards constitutionally accorded an accused in a criminal trial are rendered a sham, and no individual can feel secure that he will not be arbitrarily singled out for similar ex-parte punishment by those primarily charged with fair enforcement of the law." (Paul v. Davis)

Specifically, Brennan felt that the Supreme Court accomplishes the result of eroding the Due Process Clause in squashing Davis' interest in his good name and reputation from all constitutional protection, regardless of the character of or necessity for the government's actions. The effect, which Brennan called demonstrably inconsistent with our prior case law and unduly restrictive in its construction of our precious Bill of Rights, is one that flew in the face of the Due Process Clause and waxed inconsistent with not only U.S. Supreme Court rulings but other federal circuits' as well.

Section 6: The Effect of the Time Period on the Decision

The 1970s, as mentioned earlier, were a tumultuous period in America. The trend, starting with the extension of the Fifth Amendment to the States via the Fourteenth Amendment had snowballed into a number of cases improving the situation of the African-American in America.

This case can almost been seen as a practical backlash against those decisions. Many historians feel that race played in important role in the decision. The justices felt that the buck had to stop somewhere on their rewriting of America's fabric, and unfortunately for Davis, this is where it happened to stop.

As Brennan commented, this decision flies in the face of most of the recent decisions extending right of privacy.

Without the backdrop of the civil rights movement, Davis may actually have won his case.