PAUL v. DAVIS 424 U.S. 693 (1976)

Even before goldberg v. kelly (1970) the Supreme Court assumed that the guarantee of procedural due process attached to state impairments of "liberty" or "property" interests—concepts that bore their own constitutional meanings as well as their traditional common law meanings.Goldberg and its successors added to those meanings a new category of protected "entitlements" established by statute or other state action. bishop v. wood (1976) and Paul v. Davis turned this development upside down, using the idea of "entitlements" under state law to confine the reach of due process.

inPaul, police officers circulated a flyer containing the names and photographs of persons described as "active shoplifters." Davis, one of those listed, had been arrested and charged with shoplifting, but the case had not been prosecuted and the charge had been dismissed. He sued a police officer in a federal district court, claiming damages for a violation of his federal constitutional rights. The Supreme Court held, 5–3, that the alleged harm to Davis's reputation did not, of itself, amount to impairment of a "liberty" interest protected by the due process guarantee. For the majority, Justice william h. rehnquist manhandled precedents that had established reputation as a "core" constitutionally protected interest, asserting that the Court had previously offered protection to reputation only when it was harmed along with some other interest established by state law, such as a right to employment. Justice william j. brennan, for the dissenters, showed how disingenuous was this characterization of the precedents.

Probably the majority's main concern was to keep the federal civil rights laws from becoming a generalized law of torts committed by state officers, with the federal courts as the primary forum. Yet the majority opinion cannot be taken at face value. Unquestionably the notion of "liberty" interests protected by due process still includes a great many interests not defined by state law, such as first amendment liberties.

Kenneth L. Karst
(1986)