Tyranny by Proxy: State Action and the Private Use of Deadly Force

The Article begins in Part I with a discussion of the Supreme Court’s opinion and holding in Tennessee v. Garner. It then describes the continuing application of the fleeing felon rule to private actors despite the Court’s holding in Garner. Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court’s early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation of powers, democratic elections, jury trials, the Bill of Rights, equal protection, due process, and federalism. The state action doctrine, in effect, turns the Constitution on and off to prevent government tyranny. Part III describes the two exceptions to the state action doctrine—the entanglement exception and the public function exception—and applies them to the private use of deadly force. It demonstrates—through a review of applicable cases and hypotheticals—that the entanglement exception applies only to the relatively rare cases when the state plays an active role by commanding, encouraging, or facilitating the private use of deadly force. It also explains the flaws of the traditional and exclusive government performance test for the public function exception and why that test fails to encompass the private use of deadly force to seize criminal suspects. Part IV, the final and most significant section, discusses the proposed alternative non-delegable governmental duty exception. It puts theory to practice by applying the proposed exception to the private use of deadly force to seize non-dangerous fleeing felons.30 It establishes that the use of deadly force to seize non-violent criminals is a non-delegable governmental function subject to constitutional limits even when private actors exercise that force. It also demonstrates how the non-delegable governmental function exception helps to explain and unify the seemingly inconsistent and patchwork history of the Supreme Court’s state action decisions.