Paul v. Davis, Iii

Decision Date23 March 1976
Docket NumberNo. 74-891,74-891
Citation96 S.Ct. 1155,424 U.S. 693,47 L.Ed.2d 405
PartiesEdgar PAUL, etc., et al., Petitioners, v. Edward Charles DAVIS, III
CourtU.S. Supreme Court

A photograph of respondent bearing his name was included in a "flyer" of "active shoplifters," after he had been arrested on a shoplifting charge in Louisville, Ky. After that charge had been dismissed respondent brought this action under 42 U.S.C. § 1983 against petitioner police chiefs, who had distributed the flyer to area merchants, alleging that petitioners' action under color of law deprived him of his constitutional rights. The District Court granted petitioners' motion to dismiss. The Court of Appeals reversed, relying on Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515. Held:

1. Petitioners' action in distributing the flyer did not deprive respondent of any "liberty" or "property" rights secured against state deprivation by the Due Process Clause of the Fourteenth Amendment. Pp. 699-710.

(a) The Due Process Clause does not Ex proprio vigore extend to a person a right to be free of injury wherever the State may be characterized as the tortfeasor. Pp. 699-701.

(b) Reputation alone, apart from some more tangible interests such as employment, does not implicate any "liberty" or "property" interests sufficient to invoke the procedural protection of the Due Process Clause; hence to establish a claim under § 1983 and the Fourteenth Amendment more must be involved than simply defamation by a state official. Wisconsin v. Constantineau, supra, distinguished. Pp. 701-710.

(c) Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation that has been altered by petitioners' actions, and the interest in reputation alone is thus quite different from the "liberty" or "property" recognized in such decisions as Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, where the guarantee of due process required certain procedural safeguards before the State could alter the status of the complainants. Pp. 710-712.

2. Respondent's contention that petitioners' defamatory flyer deprived him of his constitutional right to privacy is without merit, being based not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private" but on a claim that the State may not publicize a record of an official act like an arrest. Pp. 712-713.

6 Cir., 505 F.2d 1180, reversed.

Carson P. Porter, Louisville, Ky., for petitioners.

Daniel T. Taylor, III, Louisville, Ky., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

We granted certiorari, 421 U.S. 909, 95 S.Ct. 1556, 43 L.Ed.2d 773 (1975), in this case to consider whether respondent's charge that petitioners' defamation of him, standing alone and apart from any other governmental action with respect to him, stated a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment. For the reasons hereinafter stated, we conclude that it does not.

Petitioner Paul is the Chief of Police of the Louisville, Ky., Division of Police, while petitioner McDaniel occupies the same position in the Jefferson County, Ky., Division of Police. In late 1972 they agreed to combine their efforts for the purpose of alerting local area merchants to possible shoplifters who might be operating dur- ing the Christmas season. In early December petitioners distributed to approximately 800 merchants in the Louisville metropolitan area a "flyer," which began as follows:


"The Chiefs of The Jefferson County and City of Louisville Police Departments, in an effort to keep their officers advised on shoplifting activity, have approved the attached alphabetically arranged flyer of subjects known to be active in this criminal field.

"This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects. These persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas.

"Only the photograph and name of the subject is shown on this flyer, if additional information is desired, please forward a request in writing . . . ."

The flyer consisted of five pages of "mug shot" photos, arranged alphabetically. Each page was headed:






In approximately the center of page 2 there appeared photos and the name of the respondent, Edward Charles Davis III.

Respondent appeared on the flyer because on June 14, 1971, he had been arrested in Louisville on a charge of shoplifting. He had been arraigned on this charge in September 1971, and, upon his plea of not guilty, the charge had been "filed away with leave (to reinstate)," a disposition which left the charge outstanding. Thus, at the time petitioners caused the flyer to be prepared and circulated respondent had been charged with shoplifting but his guilt or innocence of that offense had never been resolved. Shortly after circulation of the flyer the charge against respondent was finally dismissed by a judge of the Louisville Police Court.

At the time the flyer was circulated respondent was employed as a photographer by the Louisville Courier-Journal and Times. The flyer, and respondent's inclusion therein, soon came to the attention of respondent's supervisor, the executive director of photography for the two newspapers. This individual called respondent in to hear his version of the events leading to his appearing in the flyer. Following this discussion, the supervisor informed respondent that although he would not be fired, he "had best not find himself in a similar situation" in the future.

Respondent thereupon brought this § 1983 action in the District Court for the Western District of Kentucky, seeking redress for the alleged violation of rights guaranteed to him by the Constitution of the United States. Claiming jurisdiction under 28 U.S.C. § 1343(3), respondent sought damages as well as declaratory and injunctive relief. Petitioners moved to dismiss this complaint. The District Court granted this motion, ruling that "(t)he facts alleged in this case do not establish that plaintiff has been deprived of any right secured to him by the Constitution of the United States."

Respondent appealed to the Court of Appeals for the Sixth Circuit which recognized that, under our decisions, for respondent to establish a claim cognizable under § 1983 he had to show that petitioners had deprived him of a right secured by the Constitution 1 of the United States, and that any such deprivation was achieved under color of law.2 Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 2, 150 (1970). The Court of Appeals concluded that respondent had set forth a § 1983 claim "in that he has alleged facts that constitute a denial of due process of law." 505 F.2d 1180, 1182 (1974). In its view our decision in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), mandated reversal of the District Court.


Respondent's due process claim is grounded upon his assertion that the flyer, and in particular the phrase "Active Shoplifters" appearing at the head of the page upon which his name and photograph appear, impermissibly deprived him of some "liberty" protected by the Fourteenth Amendment. His complaint asserted that the "active shoplifter" designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory Per se, and actionable without proof of special damages.

Respondent brought his action, however, not in the state courts of Kentucky, but in a United States District Court for that State. He asserted not a claim for defamation under the laws of Kentucky, but a claim that he had been deprived of rights secured to him by the Fourteenth Amendment of the United States Constitution. Concededly if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law. But, he contends, since petitioners are respectively an official of city and of county government, his action is thereby transmuted into one for deprivation by the State of rights secured under the Fourteenth Amendment.

In Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), in the course of considering an important and not wholly dissimilar question of the relationship between the National and the State Governments, the Court said that "(i)t is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail." Id., at 832, 86 S.Ct., at 1814, 16 L.Ed.2d, at 959. We, too, pause to consider the result should respondent's interpretation of § 1983 and of the Fourteenth Amendment be accepted.

If respondent's view is to prevail, a person arrested by law enforcement officers who announce that they believe such person to be responsible for a particular crime in order to calm the fears of an aroused populace, presumably obtains a claim against such officers under § 1983. And since it is surely far more clear from the language of the Fourteenth Amendment that "life" is protected against state deprivation than it is that reputation is protected against state injury, it would be difficult to see why the survivors of...

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