Second Circuit Determines that Volunteer Ambulance Corps Is Not A State Actor For Purposes of Civil Rights Liability

By: Rebecca Baldwin Mantello, Associate

CMR successfully defended a private volunteer ambulance corps from a civil rights lawsuit in which a former member alleged violations of her First and Fourteenth Amendment rights. The private volunteer ambulance corps had contracted with a local municipality to provide emergency medical and general ambulance services to the municipality's residents, as authorized by state law. The volunteer ambulance corps issued disciplinary charges against one of its members and the member was suspended. When the hearing on the disciplinary charges did not go forward, the suspended member commenced a lawsuit in federal court alleging that, among other things, her constitutional rights to free speech and due process had been violated.

Section 1983 of the Civil Rights Act of 1964, permits individuals to obtain compensatory damages for the violation of a right secured by the Constitution and laws of the United States, provided that the alleged deprivation was committed by a person acting under color of state law. The "under color of state law" element of section 1983 excludes from its reach private conduct, no matter how discriminatory or wrongful. Thus, private individuals and organizations cannot be held liable for violating a citizen's constitutional rights unless that civilian or entity is a "state actor," that is to say, the private conduct can be "fairly attributable to the State."

When, if ever, are the personnel decisions of a private volunteer ambulance organization to charge and suspend one of its members fairly attributable to the State so as to subject the organization to the strictures of the United States Constitution when the organization has contracted with a municipality to provide services, as authorized by state law? This is the question the Second Circuit was recently charged with answering after the District Court dismissed the plaintiff's case.

The Supreme Court of the United States has identified several factors that can bear on the fairness of attributing private conduct to the State. The Second Circuit analyzed the plaintiff's case under two of these factors - the "public function" and "entwinement" tests.

Under the "public function" test, a nominally private orginzation may be treated as a state actor when it has been delegated a public function by the State. However, the relevant question is not simply whether a private group is serving a "public function," but whether the function performed has been "traditionally the exclusive prerogative of the State."

The Second Circuit held that the provision of emergency medical and ambulance services are not traditionally exclusive public functions of the State. The Court noted that while N.Y. Town Law § 198(10-f) and N.Y. Gen. Mun. Law §122-b authorize municipalities to provide emergency medical and ambulance services, these laws do not impose an obligation on the municipalities to do so. The Court also noted that the legislative history of section 122-b suggests that the driving force for the statute was to bestow municipalities with the authority to provide such services, where, previously, those municipalities had no such power. Citing Supreme Court precedent, the Second Circuit further reasoned that the presence of a contract between the municipality and the volunteer ambulance corps did not convert the Corps' conduct into state action.

The Second Circuit also reasoned that, even if it had determined that emergency medical and ambulance services were a traditional exclusive public function, this would not have assisted the plaintiff. This is so because plaintiff's complained of activity dealt with the Corps' employment decision to charge and suspend her, and not with the performance of its' emergency medical and ambulance services. It held that the personnel decisions of a volunteer ambulance corps are not traditionally an exclusive public function of the State.

The Second Circuit then considered plaintiff's case under the "entwinement test". Under the "entwinement test," private conduct may be "fairly attributable to the State" when government has entwined itself in the private organization's management and control. This goes beyond extensive state regulation and public funding; instead, the courts look to whether the government has entwined itself with the day-to-day operations of the private organization. Analyzing plaintiff's claims under the "entwinement test," the Second Circuit found that there was no evidence that the municipality had any control over the Corps' management or personnel decisions, or that the municipality had played any role in the disciplinary process that resulted in the plaintiff's suspension.

While the Second Circuit did not find entwinement in this case, private organizations that contract with local governments to provide essential public services should exercise caution. Factors courts have considered in determining whether a private entity and local government are "entwined" so as to subject the private entity to liability for civil rights violations include: whether the private entity occupies property owned by the municipality free of charge; whether the municipality owns the organization's equipment; whether the municipality has any involvement in the internal governance of the private organization; whether the municipality must indemnify the private organization; whether the municipality retains approval over the selection of the private organization's board members or other personnel; and whether the private organization's employees are considered employees of the municipality.

The full decision of the Second Circuit can be found at 768 F3d 259 (2d Cir. 2014).