Government Deprivation

Government Deprivation

Showing that a protected interest exists answers only half of the threshold inquiry. The clauses operate when government deprives a person of that interest, which is a narrower event than any official act that happens to touch it. Most of the time the extra step costs nothing, because government action that adversely affects a person's liberty or property interest ordinarily qualifies as a deprivation, and the point is seldom contested.¹ The cases in this section concern the settings where it is contested, and they sort into two limits that screen for different features of the government's conduct.

The first limit looks at the kind of decision government has made. The question is whether government has decided something about identified people on facts peculiar to them or has adopted a rule that reaches a whole class, and the Londoner/Bi-Metallic distinction marks that line.² The second limit looks at the official's culpability, meaning how blameworthy the conduct was that caused the loss, from an accident at one end to a deliberate choice at the other. Both limits follow from what the procedural guarantee is built to do. A hearing is a device for settling a factual dispute between the government and a particular person, so the clauses need a trigger more selective than the fact that someone was hurt.³ The first subsection, Individualized Government Action, takes up the distinction between decisions about people and rules for classes.

Individualized Government Action

The first limit on the Due Process Clauses concerns the kind of decision government has made. The clauses apply when government decides something about an identified person on the basis of facts peculiar to that person, and they do not call for individual hearings when government adopts a rule that reaches a whole class.⁴ The reason follows from what a hearing does. A hearing exists to resolve a factual dispute between the government and a particular person, so it earns its cost where the decision turns on facts the person can contest.⁵ A decision about a class rests on judgments about policy and about the group as a whole, and no single member's account of personal circumstances would settle it.

The pair of decisions that marks the line involved property taxes. In Londoner v. Denver the city determined that an owner's property had increased in value because of a street paving project, which fixed the additional tax the owner owed, and the Court held that due process required some kind of hearing before the city made that determination.⁶ A few years later, in Bi-Metallic Investment Co. v. State Board of Equalization, the Court held that an owner was entitled to no hearing before the State imposed an across-the-board increase in property taxes.⁷ Both owners ended up paying more, so the size of the loss does not separate the cases. The variable is the basis of the decision: Denver's determination rested on characteristics of one owner's own parcel, while the state increase applied to every owner alike. The Court reasoned that "[w]here a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption."⁸

Two separate reasons support the class side of the line. The first is functional: if everyone affected by a general rule were entitled to be heard on it, government could not function, because individual argument about a rule must have a limit.⁹ The second concerns the available remedy. A person hurt by a rule as a member of a class can complain to elected representatives or help replace them at the next election, while a person singled out for adverse treatment based on personal conduct or property has no comparable political leverage, so a hearing is the protection that person actually has.¹⁰ The same logic explains why a legislature owes no hearings to those affected by a bill. The lawmaking process is treated as supplying all the process that is due, and anyone adversely affected remains free to argue after enactment that the law does not lawfully apply to them.¹¹

Courts use the Londoner/Bi-Metallic pair as shorthand for the difference between adjudication and rulemaking. An agency adjudication decides a matter about particular parties and so can trigger due process, while an agency rule ordinarily applies to an entire class and rarely does.¹² The shorthand does not decide cases by itself, because a general standard still has to be applied to people one at a time.

The line between a rule and an individual decision can be blurry in practice. Courts of appeals have offered tests for separating legislative from adjudicative action but have declined to adopt a hard-and-fast rule.¹³ A statute that is general on its face can still require officials to evaluate each person's past facts, and a dissenting judge in a divided en banc Eleventh Circuit decision on Florida's rules for restoring felons' voting rights argued that applying the law required a number of adjudicative decisions of exactly that kind.¹⁴ The useful question is therefore what the decision before the court actually decides, whether a policy that binds a class or a finding about one person's conduct or property.

A second screen applies even to decisions that are individualized: the person claiming a deprivation must be the target of the government's action.¹⁵ In O'Bannon v. Town Court Nursing Center a federal agency decertified a nursing home, and residents who would have to leave claimed a right to notice and a hearing first.¹⁶ The Court acknowledged that decertification might cause severe hardship for some residents, because living in a qualified home was a condition of eligibility for federal medical benefits, yet it held that the harm was an indirect and incidental result of action against a third party, the facility.¹⁷ The distinction it drew runs between government action that directly affects a citizen's legal rights or imposes a direct restraint on liberty, and action directed at a third party that affects the citizen only indirectly or incidentally.¹⁸

Requiring direct targeting keeps the doctrine within bounds. Nearly every enforcement action against a business, landlord, or contractor has consequences for its employees, tenants, and customers, and if each consequence counted as a deprivation, a proceeding against one party would open hearings for everyone downstream. The target is also the party best placed to contest the government's finding. O'Bannon and Bi-Metallic both end without a hearing, but for different reasons: in Bi-Metallic the decision was general, so no one was singled out, while in O'Bannon the decision was individual but aimed at someone other than the claimants. A claimant must clear both screens.

The usual exam error is to stop at the hardship and conclude that a claimant who has lost something valuable must receive a hearing. The questions are whether the government decided something about this claimant on facts peculiar to the claimant, and whether the claimant, rather than a third party, was the direct target. If the answer to the first is no, the clause supplies no hearing and the claimant's recourse is political, and if the answer to the second is no, the claimant has not been deprived by the action at all.

Intentional or Reckless Conduct

The second limit on the clauses looks at the official's state of mind. Government action that adversely affects a protected interest ordinarily counts as a deprivation, but careless conduct is the exception: the clauses do not reach "a negligent act of an official causing unintended loss of or injury to life, liberty, or property."²⁰ Daniels v. Williams supplies the facts. An inmate slipped on a pillow that a deputy sheriff had negligently left on a jail staircase, and he sued the deputy under 42 U.S.C. § 1983, the federal statute that authorizes damages suits against state officials for constitutional violations, claiming a deprivation of liberty without due process.²¹ The Court accepted that the inmate had lost his interest in not being injured in a literal sense, yet it held that he suffered no deprivation in the constitutional sense, because the Due Process Clause is aimed at affirmative abuse of power and a failure to use reasonable care is not an abuse of power.²²

Two separate reasons support the limit, and they work at different levels. The first concerns what the clauses are for: the Court saw in negligent actions none of the abuse of power that due process was designed to prevent.²³ A deliberate decision to take something from a person is an exercise of authority over that person, and a hearing can test whether the decision was justified. A deputy who carelessly leaves a pillow on a staircase has exercised authority over no one, so there is no decision for a hearing to examine. The second reason is subtler and, in the Court's own words, perhaps more important. If negligence counted, every careless act by a public employee, from a collision in a government vehicle to a misplaced file, would become a constitutional violation, and procedural due process would "supplant traditional tort law."²⁴ That is the same fear that led the Court in Paul v. Davis to refuse to treat injury to reputation as a loss of liberty. The Court added that negligence claims are not unimportant, and that a tort action in state court is the more suitable place to bring them.²⁵

Davidson v. Cannon shows that the line does not move when the facts get worse. An inmate told prison officials that another inmate had threatened him, the officials took no steps to protect him, and he was severely injured when the other inmate later attacked him.²⁶ The officials had a specific warning, and the injury was far graver than a fall on a staircase, yet the Court treated the failure to protect as negligence and reaffirmed that negligence by prison officials cannot support a due process claim.²⁷ The variable that decides these cases is the official's mental state, and neither the seriousness of the harm nor the presence of a warning changes that state by itself. Justice Blackmun's dissent identified the pressure point. The state had left the inmate with no means of protecting himself, since he could not carry a weapon, fight back without facing discipline, or leave, so he depended entirely on the officials, and in that setting Blackmun would have treated their negligent disregard of a probable risk as the abuse of governmental authority that triggers due process.²⁸

Intentional deprivations fall on the opposite side of the line. The Court observed in Daniels that due process has historically been applied to the deliberate decisions of government officials to deprive a person of life, liberty, or property.²⁹ In County of Sacramento v. Lewis the Court likewise described government conduct intended to injure in some unjustifiable way as typically sufficient to constitute a deprivation.³⁰ A finding of deliberate conduct establishes only that the clauses are engaged, and the second question, what process was due, still follows. Daniels also changed the sequence for one family of cases: Parratt v. Taylor had treated the negligent loss of a prisoner's $23.50 hobby kit as a deprivation and then asked whether a later state remedy was enough process, and Daniels overruled that first step.³¹ Whether a deliberate taking by a rogue employee can be answered with a post-deprivation remedy is taken up in the timing section later in this chapter.

Between negligence and intent lies recklessness, and the Supreme Court has not resolved where it falls. Daniels itself reserved the question, saying the Court had "no occasion to consider" whether something less than intentional conduct, such as recklessness or gross negligence, is enough to trigger the clause.³² County of Sacramento v. Lewis, a substantive due process case whose analysis moved between the two doctrines, described Daniels narrowly as rejecting negligence as the lowest common denominator and called conduct in the middle range a matter for closer calls.³³ Most lower courts have filled the gap by holding that recklessness can effect a deprivation, and most agree that recklessness requires the official to have actually recognized the substantial risk of harm.³⁴ The actual-recognition element is what keeps recklessness on the far side of the Daniels line. Negligence asks what a careful official would have noticed, while recklessness asks what this official perceived and chose to run anyway. Only the second involves a choice to expose someone to harm, which is the feature that links recklessness to the deliberate decisions the clauses were built to check.

The usual exam error is to let the seriousness of the injury decide the question, when Davidson shows that a grave injury caused by negligence still falls outside the clauses. A second error is to treat a claimant who loses at this step as left without any remedy, since the cases send negligence claims to state tort law. On recklessness, a complete answer says that the Supreme Court has left the question open and that most lower courts treat an official's actual awareness of a substantial risk, coupled with disregard of it, as enough.