Legal Memorandum: Action for Violation of the Due Process Clause

Issue: May a federal cause of action for violation of the Due Process Clause be maintained against a private party?

Some cases hold only that a plaintiff must prove that some form of government action is involved in the private party’s conduct, not that private parties may never be liable for violation of another’s due process rights.  See Lugar v. Edmondson Oil Co., 457 U.S. 922, 938-39 (1982).

A private party may be liable for violation of the constitutional rights of another when “power entrusted to the government by the people [is] exercised through nominally private entities, be it through the government’s delegation, compulsion, concerted action or acquiescence.”  Gilmore v. Salt Lake Area Community Action Program,710 F.2d 632, 635 (10th Cir 1983). 

To determine if the private actor is exercising governmental power in a given situation so that it may be liable for a constitutional violation requires “sifting facts and weighing circumstances in each case.”  Id. at 635 (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961)).

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