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12 J. Marshall J. Prac. & Proc. 637 (1978-1979)
Flagg Brothers, Inc. v. Brooks - The Public Function Doctrine in Retreat

handle is hein.journals/jmlr12 and id is 645 raw text is: FLAGG BROTHERS, INC. V. BROOKS THE PUBLIC FUNCTION DOCTRINE IN RETREAT INTRODUCTION Since the Civil Rights Cases,' it has been clear that the prohibitions of the fourteenth amendment do not apply to purely private conduct, rather, they apply only to conduct attrib- utable to a state. Thus, in order to subject seemingly private ac- tivity to the restraints of the fourteenth amendment, courts have had to determine whether the challenged conduct constituted state action.'2 The Supreme Court has indicated that the under color of state law provision of section 1983 of the Civil Rights Act of 18713 and the state action requirement of the fourteenth amend- ment are equivalent.4 Claims brought under this statute and its jurisdictional counterpart5 have resulted in the Court's leading decisions on the issue of what private activity constitutes state action.6 However, the Court has had great difficulty in drawing a 1. 109 U.S. 3 (1883). 2. E.g. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); see text accompanying notes 73-74 infra. 3. 42 U.S.C. § 1983 (1976). Section 1983 provides: Every Person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immu- nities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 4. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 n.7 (1970); United States v. Price, 383 U.S. 787, 794 n.7 (1966). 5. 28 U.S.C. § 1343(3) (1976) provides: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regula- tion, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.... 6. E.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) (due process at- tack on state authorized prejudgment sale of encumbered goods by ware- housemen); Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (due process attack on termination practices of privately owned utility); Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) (equal protection attack on racially discriminatory practices of restaurant leasing space in a state owned building; state action found).

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