Thomas v. Pearl

• Decision Date: 30 July 1993
• Docket Number: No. 92-2709,92-2709
• Citation: 998 F.2d 447
• Parties: , 84 Ed. Law Rep. 643 Deon L. THOMAS, Plaintiff-Appellant, v. Bruce PEARL, individually and in his representative capacity as Assistant Basketball Coach of the University of Iowa, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 447

998 F.2d 447

62 USLW 2040, 84 Ed. Law Rep. 643

Deon L. THOMAS, Plaintiff-Appellant, v. Bruce PEARL, individually and in his representative capacity

as Assistant Basketball Coach of the University of

Iowa, Defendant-Appellee.

No. 92-2709.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 22, 1993.

Decided July 1, 1993.

Rehearing Denied July 30, 1993.

Thomas R. Kelso, J. Steven Beckett (argued), Carol A. Dison, Beckett & Crewell, Urbana, IL, for plaintiff-appellant.

John M. Parmeter (argued), Bonnie J. Campbell, Gordon E. Allen, Iowa Atty. General's Office, Des Moines, IA, for defendant-appellee.

Before CUMMINGS, CUDAHY and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Six-foot-nine-inch All-American Deon Thomas was the kind of high school basketball prospect who could make college coaches salivate--or worse. The University of Illinois was so eager to see Thomas wearing a Fighting Illini jersey that an assistant coach allegedly offered the high school student $80,000 and a Chevrolet, and promised to move his grandmother into a new apartment, if he would agree to accept the school's offer of a full scholarship. ¹ The charges against Illinois were made public by a Big Ten rival college also interested in Thomas' talents on the court, the University of Iowa. The National Collegiate Athletic Association ("NCAA") investigated Iowa's charges and, though it dismissed the two most serious allegations about a car and cash, found a number of other violations including car loans by boosters and free tickets to NCAA tournaments. As punishment, the NCAA banned Illinois from the 1991 NCAA tournament, limited to two the number of basketball scholarships it could offer in 1991-1992 and 1992-1993, prohibited the school from playing outside the United States in 1991, and severely restricted recruiting. The school's internal investigation also led to a freeze on coaches' salaries. ² Thomas, meanwhile sat out his freshman year while the investigation was pending.

Now Thomas, seeking vindication of sorts, is suing Bruce Pearl, the assistant basketball coach at Iowa who first charged Illinois with offering illicit incentives to recruits. ³ According to Thomas, Pearl surreptitiously taped phone conversations he had with Thomas and Thomas' friends and relatives in violation of the federal wiretapping statute, 18 U.S.C. §§ 2510-2520, and the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 through 5/14-9. Thomas filed a two-count complaint in Champaign County, Illinois. The defendant had it removed to federal court in the Central District of Illinois based on federal question jurisdiction. Because neither the federal nor the state wiretapping statutes apply to Pearl's conduct, we affirm the district court's grant of summary judgment in his favor. 793 F.Supp. 838.

In late 1988, Coach Pearl began efforts to recruit Thomas to the University of Iowa. As part of the negotiations, Thomas told Pearl about his dealings with other colleges and universities. According to a memo prepared for his superiors, Pearl learned from Thomas in December 1988 that an Illinois coach had offered to move the recruit's grandmother to a nicer apartment. "I asked Deon how he felt about the offer and also why he was telling me. He said that at first he was insulted. He prides himself on being honest and religious. However, the idea of helping his grandmother very much appealed to him" (defendant's supp. app. at 19). Pearl believed correctly that such an offer, if it had been made, violated NCAA regulations. Fred Mims, Associate Athletic Director at Iowa and the NCAA compliance officer on campus, gave Pearl a tape recorder with a telephone attachment and told the coach to document Thomas' statements. Between April and July 1989, Pearl made at least ten calls to Thomas or to Thomas' friends or relatives. During these conversations Thomas discussed the various perks, including cash, which had been offered to him and other recruits by the University of Illinois. According to Pearl's affidavit, Pearl played the tapes for just two individuals other than his superiors at Iowa: an NCAA enforcement officer, as he was required to do upon request under NCAA rules, and a University of Illinois attorney.

Thomas' first claim is that Pearl violated the federal law against wiretapping. That statute creates civil and criminal liability for intentionally intercepting or disclosing the contents of any "wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a)(c). ⁴ The district court found that the ban on wiretapping did not apply to Pearl's actions because of two exceptions in the law. We agree that the coach is not liable under § 2511, but our analysis differs significantly from the district court's. The wiretapping law's first exemption is for "a person acting under color of law * * * where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c). The district court found that as an assistant basketball coach at a state university, Pearl acted "under color of law" when he taped conversations with Deon Thomas and Thomas' friends and relatives. We disagree.

Traditionally--that is, before the Supreme Court's 1961 decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, overruled on other grounds, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)--the phrase "under color of law" referred to state officials who exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). See Eric H. Zagrans, " 'Under Color of' What Law: A Reconstructed Model of Section 1983 Liability," 71 Va.L.Rev. 499, 500-501 (1985). In Monroe the Court found that color of law, as it is used in the Civil Rights Act of 1871, 42 U.S.C. § 1983, includes not just fully authorized acts by state officials but acts committed by officials exceeding their authority. 365 U.S. at 172, 81 S.Ct. at 476. Thus, for example, a person beaten by the police may allege a constitutional infringement against the officer even though the beating was not authorized or sanctioned in any way by the police department. At times the connection between the state and the person acting under color of law has been quite attenuated--for example, a paid informer who receives the aid of police officers is held to the same constitutional standards as the officers themselves. Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374 (1966). Polk County v. Dodson, 454 U.S. 312, 318-319, 102 S.Ct. 445, 449-450, 70 L.Ed.2d 509 (1981), which held that a public defender does not act under color of law, is the only Supreme Court case in which a government employee performing tasks essential to his position was exempt from § 1983 liability. West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988).

The phrase "under color of law" in § 1983 actions is now so broad that it means the same thing as "state action." Lugar v. Edmondson Oil Co., 457 U.S. 922, 935, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982). Normally, mere employment by the state is sufficient to convert a defendant into a state actor. Id. at 935-936, n. 18, 102 S.Ct. at 2752-2753, n. 18. That, of course, includes a basketball coach who receives paychecks from the state treasury. Clearly, Pearl as a state employee would have acted under color of law if Thomas were alleging that the coach violated his constitutional rights in a § 1983 action. But that is not this case. Rather, Thomas alleges that Pearl violated § 2511 of the federal wiretapping act, and Congress has not said whether color of law means the same thing in § 2511 as it does in § 1983. The district judge thought so. According to the trial court, state action and color of law are equivalent in the wiretapping context because "the Supreme Court had already attributed to the phrase 'under color of law' a meaning basically synonymous with state action, and Congress presumably knew of that meaning and did not object to it." We do not agree. Even if it were evident that congressional silence signalled active approval of the case law interpreting color of law, that case law is ambiguous at best because nearly all decisions have been quite careful to restrict their generous definitions of color of law to the civil rights arena.

In Lugar, for example, the Supreme Court emphasized that it was equating state action and color of law in § 1983 only because to do otherwise "would substantially undercut the congressional purpose in providing the § 1983 cause of action." Id. at 935, 102 S.Ct. at 2752. And in discussing the meaning of the phrase in West v. Atkins, the Court carefully noted that state action equals color of law only in the special circumstances of § 1983 suits. 487 U.S. at 49, 108 S.Ct. at 2255. Moreover, the majority opinion in Lugar stated in a footnote that state action and color of law are not always equivalent just because they are the same for purposes of § 1983:

[A]lthough we hold in this case that the under-color-of-state-law requirement does not add anything not already included within the state-action requirement of the Fourteenth Amendment, § 1983 is applicable to other constitutional provisions and statutory provisions that contain no state- action requirement. Where such a federal right is at issue, the statutory concept of action under color of state law would be a distinct element of the case not satisfied implicitly by a finding of a violation of the particular federal right.

457 U.S. at 935 n. 18, 102 S.Ct. at 2753 n. 18.

Moreover, the Civil Rights Act of 1871, unlike the wiretapping act, is a remedial statute intended to be as broad as the Fourteenth Amendment. Id. at 934, 102 S.Ct. at 2752. Liberal ...