Surrealpolitik

Surrealpolitik: Montana Law Review, Vol 57

Author: Michael Finch

(1996)

Quick Summary

This is a law review article that argues that section 1983 of title 42 (42 U.S.C § 1983), which does not specifically mention conspiracy, can be used as the basis for civil conspiracy cases against the government. It has the advantage of broaden the basis for conspiracy cases from the usual section 1985 and especially 1985(3), which is the main conspiracy section (criminal and civil), but which seems to limit cases to those based on racial discrimination. These are both part of the overall statute known as the Civil Rights Act of 1871 (aka the KKK Act) enacted by the Reconstruction Congress. Note that in criminal law conspiracy is a crime per se (the conspiring itself as opposed to implementing the plan) although in practice some sort of act is generally required, even if it's short of doing the dirty deed (say, buying a bomb, but not necessarily setting it off). In civil law only actual damages count, and the conspiracy bit is just considered as a causal agent that can be used to rope in other conspirators who maybe didn't directly do the damage, and to increase the amount of the remedy. For my purposes, probably the main useful point is that conspiracies by government are generally expected to happen, and that it was government not private conspiracies that were the main target of the 1871 law as it was intended. They're considered a normal thing to guard against, rather than a crazy thing that only loonies would suggest. There's loads of case law. It's also useful to note that there are at least three broad areas of law where conspiracy is a routine part of the game: antitrust, criminal, and tort law.

Quotes

There are 19 quotes currently associated with this book.

The notion that government might be "conspiring" to violate the rights of citizens is more apt to invite derision than concern. From Oswald to Elvis, from Ollie to O.J., allegations of conspiracy have become the stuff of tabloid journalism and have the ring of a slug coin. The history of conspiracy, it has been observed, evidences the "tendency of a principle to expand itself to the limit of its logic."

Yet, when conspiracy is understood simply as an agreement to do wrong, the possibility that government might conspire against citizens is not only plausible but likely. (page 1)
Tags: [Conspiracy]
[S]uits alleging governmental conspiracy remain far more numerous than suits against private actors. (page 4)
Tags: [Conspiracy]
In the context of criminal law, commentators have observed that "[c]onspiracy is usually defined as an agreement between two or more persons to achieve an unlawful object or to achieve a lawful object by unlawful means. The gist of the crime is the agreement itself rather than the action pursuant to it." [quoting Developments in the Law, Criminal Conspiracy, 72 Harv. L. Rev. 920,922 (1958) (page 6)
Tags: [Conspiracy]
The criminalization of conspiracy agreements dates back to the 17th century and the infamous Star Chamber, when the body announced that an unlawful agreement would be punishable even prior to its implementation. Since that time, the criminal laws of England and America have proscribed illegal conspiracy agreements, although many authorities -- including Congress -- usually require the commission of some "overt act" in furtherance of the conspiracy. This act requirement, while requiring a de minimus showing of conduct beyond a mere agreement, nonetheless imposes liability regardless of whether the agreement culminates in the commission of a legally-cognizable wrong. (page 6)
Tags: [Conspiracy]
The criminalization of conspiracy agreements per se serves special purposes that may not be addressed when conspiracy laws require ultimate commission of illegal conduct. First, when it is difficult to establish judicially that unlawful conduct has occurred, pure conspiracy laws facilitate the punishment of suspected wrongdoers. Second, pure conspiracy laws permit early intervention by government so as to preempt the implementation of unlawful schemes. (page 7)
Tags: [Conspiracy]
Conspiracy theory in the tort context frequently passes under another name. In contemporary torts nomenclature, the civil liability that results from mutual agreement among defendants is often described as "concerted action" rather than conspiracy. (page 7)
Tags: [Conspiracy]
The tortious form of conspiracy has common origins with the criminal form, but differs from its criminal counterpart in one significant respect: "it is clear that the mere agreement to do a wrongful act can never alone amount to a tort, whether or not it may be a crime; and that some act must be committed by one of the parties in pursuance of the agreement, which is itself a tort." Stated alternatively, "[t]he gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff."...
Although he will not incur liability if the tortious purpose of the conspiracy remains unfulfilled, the conspirator becomes vicariously liable for all torts actually committed pursuant to the conspiracy, regardless of his degree of participation in the tortious conduct. This is in contrast to criminal conspiracy doctrine, where a conspirator is rarely found vicariously liable for the substantive offenses of his co-conspirator. (page 8)
Tags: [Conspiracy]
18 U.S.C. § 241...criminalizes conspiracies intended to injure any person in his "free exercise [and] enjoyment of any right...secured to him by the Constitution or laws of the United States. Like other federal criminal conspiracy statutes, section 241 punishes the conspiracy agreement per se and does not require an actual violation of the victim's federal rights. (page 10)
Tags: [Conspiracy]
The revival of section 1985(3) commenced in 1971 with the United States Supreme Court's ruling in Griffin v. Breckenridge. The Court reversed precedent and concluded that section 1985(3) addressed private conspiracies, even those which lacked governmental involvement...The resurgence of conspiracy actions under section 1985(3) was not limited to private actors. Within a decade of the decision in Griffin, conspiracy claims became commonplace in civil rights actions against governmental actors. (page 11)
Tags: [Conspiracy]
If the courts are correct in recognizing conspiracy claims under section 1983, that section would provide an important contribution to the law of conspiracy. First, conspiracy liability would apply in governmental litigation to enforce claims that require no allegation of class-based discrimination -- in First and Fourth Amendment claims, for example. As well, section 1983 would shore up conspiracy law for claims of non-racial discrimination in the event that the Court eventually limits section 1985(3) to race-based violations. (page 16)
Tags: [Conspiracy]
The foundation for developing conspiracy liability under section 1983 need not rest solely on the literal characterization of the task. On numerous occasions, both the Supreme Court and lower courts have "interpreted" section 1983 so as to develop rules governing causation and the liability of persons with lesser participatory roles. Thus, the Court has announced rules governing such matters as:

1) the liability of municipalities whose policies have allegedly "caused" the violation of federal rights;

2) the causal role of unconstitutional motives in assessing the liability of governmental officials;

3) the liability of officials whose conduct constitutes a "remote" causal factor in the deprivation of life; and

4) the liability of supervisors for the constitution wrongs of their subordinates.
(page 18)
Tags: [Conspiracy]
It is not necessary to reconcile the varying interpretations of case precedent to arrive at a conclusion that illuminates the issue of conspiracy liability. All courts, it appears, would find liability where an official has consented to and encouraged a plan of unlawful conduct. Conspiracy liability requires not only that the conspiring official "know" of the wrongful conduct intended, but that he agree -- expressly or tacitly -- to the achievement of that conduct. (page 22)
Tags: [Conspiracy]
The legislative history of section 1985(3) is also replete with reference to the involvement of complicity of government officials in civil rights violations committed in the reconstruction South. As one commentator has observed, the gravamen of conspiracy liability under section 1985(3) is the deprivation of civil rights "through the channels of government."...Indeed, prior to the Court's 1971 decision in Griffin v. Breckenridge, section 1985(3) was thought limited to conspiracies involving some form of governmental action. (page 23)
Tags: [Conspiracy]
[N]ot even the critics of intracorporate immunity doctrine apprehended its extension to governmental entities. (page 29)
Tags: [Conspiracy]
[S]ince the 1951 decision in Collins v. Hardyman, conspiracy law has shifted from the position that only governmental actors are subject to civil liability to the position that virtually none is. (page 30)
Tags: [Conspiracy]
For the most part, lower courts have not analyzed the issue of governmental liability differently from that of private corporate liability, and as a result government has consistently enjoyed an immunity from claims of conspiracy. Yet, Supreme Court precedent under section 1983 makes clear that governmental entities are not fungible with private corporations when determining liability under civil rights law. (page 32)
Tags: [Conspiracy]
Governmental entities are potentially liable for conspiracies if some form of "policy" can be established under Monell Among the forms of policy recognized under Court precedent are: (1) decisions of a government's legislative body; (2) decisions of governmental officials gavin "final authority" in the matter decided; and (3) customs thin the governmental entity. (page 34)
Tags: [Conspiracy]
Perhaps it would have been better for the contemporary history of civil rights had "conspiracy" renamed itself. The term still suggests something more diabolical, or more risible, than the rule of causation it represents. (page 48)
Tags: [Conspiracy]
When the Supreme Court eventually re-examines conspiracy law in the context of civil actions against government, it should recall that the Reconstruction Congress had governmental conspiracies in mind even as it labored over its power to regulate private ones. It would be a dispiriting turn of fate if conspiracy law loses its historical connection to governmental action at the very time when government's capacity to conspire has increased to dimensions beyond the imagination of the 19th century mind. (page 48)
Tags: [Conspiracy]