Also known as: active conducts · affirmative act · positive conduct
Written by attorneys — see sources below.
Behavior that involves a person doing something by exerting will on the external world.
Andre Antoine agreed to sell a rare prototype machine to Apex Dynamics by a set date. Before the deadline Andre sold the prototype to a third party and pocketed the proceeds. Apex Dynamics treated the sale as active conduct that rendered performance impossible and sued for total breach.
Alan Ackerman received a federal appropriation for a local project. Congress passed a cancellation measure that removed the funding after the bill became law. Ackerman sued, claiming the cancellation was active conduct that directly eliminated his expected benefit.
In April 1996 Congress enacted the Line Item Veto Act, which took effect on January 1, 1997, and authorized the President to cancel in whole any dollar amount of discretionary budget authority, any item of new direct spending, or any limited tax benefit. On August 5, 1997, Congress passed the Balanced Budget Act of 1997, which included section 4722(c) deeming certain New York health-care-provider taxes permissible and in compliance with federal Medicaid requirements. On the same day Congress passed the Taxpayer Relief Act of 1997, which included section 968 granting a limited tax benefit allowing owners of certain food refiners and processors to defer recognition of gain when selling stock to eligible farmers' cooperatives. On August 11, 1997, President Clinton transmitted notices canceling section 4722(c) of the Balanced Budget Act and section 968 of the Taxpayer Relief Act. The City of New York, two hospital associations, one hospital, and two unions representing health-care employees filed suit challenging the cancellation of section 4722(c). Snake River Potato Growers, Inc., a farmers' cooperative formed in May 1997 to acquire potato-processing facilities, and one of its members filed a separate action challenging the cancellation of section 968. The District Court for the District of Columbia consolidated the two actions and held that at least one plaintiff in each case had Article III standing. It ruled on the merits that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws. Earlier, six Members of Congress who had voted against the Line Item Veto Act had brought a separate challenge; the District Court had held the Act unconstitutional, but the Supreme Court dismissed that action for lack of standing in Raines v. Byrd, 521 U.S. 811 (1997). After the President exercised the cancellation authority, the present appellees filed suit challenging the two cancellations, and the District Court again held the statute invalid.
View caseAmelia Amari operated a pharmacy that advertised prescription prices. The state board adopted a rule prohibiting all such advertising. Amari challenged the rule as active conduct that suppressed commercial speech and violated the First Amendment.
Virginia law made it unprofessional conduct for a licensed pharmacist to publish, advertise, or promote any price for prescription drugs under Va. Code Ann. § 54-524.35(3). The Virginia State Board of Pharmacy regulated the profession to protect public health, safety, and welfare. It licensed pharmacists only after they showed good moral character, graduated from an approved school, completed up to twelve months of experience, and passed a Board examination. Licensed pharmacists remained subject to penalties or license revocation for negligence, fraud, or unprofessional conduct. Prescription drug prices varied sharply even within the same locality. In Richmond the cost of forty Achromycin tablets ranged from $2.59 to $6.00. In the Newport News-Hampton area the price of tetracycline ranged from $1.20 to $9.00. About ninety-five percent of prescriptions were filled with dosage forms prepared by manufacturers. Some pharmacies refused to quote prices over the telephone. An individual Virginia resident who suffered from diseases requiring daily prescription drugs, together with two nonprofit organizations whose members included many users of such drugs, brought suit against the Board and its members. The plaintiffs claimed the ban prevented them from learning where their limited resources could be spent most effectively. A prior challenge to the same statute brought by a drug retailer and one of its pharmacists had been rejected on due-process and equal-protection grounds. The three-judge District Court for the Eastern District of Virginia declared the quoted portion of the statute void and enjoined its enforcement. The Supreme Court noted probable jurisdiction of the Board's appeal.
View caseAnthony Arnold reported suspected abuse to county social services. Caseworkers removed the child from the home after receiving the report. The parent sued, alleging the removal was active conduct that violated substantive due process.
Joshua DeShaney was born in 1975. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney, who then moved with the child to Winnebago County, Wisconsin. In January 1982, the Winnebago County Department of Social Services became aware that Joshua might be a victim of child abuse after he was admitted to a local hospital with multiple bruises and abrasions. The examining physician notified DSS. A caseworker interviewed Randy DeShaney and visited the home, observing suspicious injuries on Joshua's head, but concluded there was insufficient evidence of abuse to retain him in court custody and returned him to his father while recommending counseling and preschool enrollment. Over the next two years, Joshua was repeatedly treated for suspicious injuries at local hospitals, with physicians notifying DSS on multiple occasions. Caseworkers conducted regular visits, noted additional injuries, received reports from emergency room personnel and neighbors, and at one point convened a Child Protection Team that decided against retaining custody, yet consistently returned Joshua to his father's care after determining insufficient evidence existed for court intervention. In March 1984, Randy DeShaney beat Joshua so severely that the child fell into a coma and suffered permanent brain damage requiring lifelong institutionalization for profound mental retardation. Randy DeShaney was later tried and convicted of child abuse. Joshua and his mother filed suit under 42 U.S.C. § 1983 against Winnebago County, its Department of Social Services, and two social workers in the United States District Court for the Eastern District of Wisconsin, claiming a deprivation of liberty without due process. The district court granted summary judgment for the respondents. The Court of Appeals for the Seventh Circuit affirmed. The Supreme Court granted certiorari.
View caseArthur Abrams manufactured cars subject to a federal passive-restraint rule. The agency rescinded the rule after industry lobbying. State Farm challenged the rescission as active conduct that lacked reasoned explanation under the Administrative Procedure Act.
In 1966 Congress enacted the National Traffic and Motor Vehicle Safety Act directing the Secretary of Transportation to issue motor vehicle safety standards that reduce traffic accidents and deaths. The statute authorized NHTSA to promulgate standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. Over the next decade NHTSA conducted dozens of rulemaking proceedings on occupant crash protection. In 1977 Secretary Brock Adams issued Modified Standard 208, which required automobile manufacturers to phase in passive restraints beginning with large cars in model year 1982 and reaching all cars by model year 1984. Automobile manufacturers began preparing to comply with the 1984 deadline. As late as July 1980 NHTSA reported that on-the-road experience with thousands of vehicles equipped with airbags and automatic belts confirmed the life-saving benefits of such systems. In February 1981, after a change in presidential administration, Secretary Andrew Lewis reopened the rulemaking citing changed economic circumstances and the difficulties facing the automobile industry. Two months later the agency delayed the standard for large cars by one year and proposed possible rescission of the entire requirement. After receiving comments and holding hearings, NHTSA issued Notice 25 rescinding the passive restraint requirement. The agency explained that manufacturers planned to install detachable automatic belts in approximately 99 percent of new cars and that it could no longer reliably predict any significant increase in belt usage. State Farm Mutual Automobile Insurance Co. and the National Association of Independent Insurers filed petitions for review in the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals held that the rescission was arbitrary and capricious because NHTSA had failed to consider an airbags-only alternative, had not adequately justified its conclusions about detachable belts, and had not considered requiring nondetachable belts. The Supreme Court granted certiorari on November 8, 1982.
View caseAbigail Alvarez fled police after a minor traffic stop. An officer pursued at extreme speeds through city streets. The chase ended in a fatal crash, and the estate claimed the pursuit was active conduct that shocked the conscience under the Fourteenth Amendment.
On May 22, 1990, at approximately 8:30 p.m., Sacramento County sheriff’s deputy James Everett Smith responded to a call to break up a fight along with another officer, Murray Stapp. Upon returning to his patrol car, Stapp saw a motorcycle operated by 18-year-old Brian Willard carrying 16-year-old Philip Lewis as a passenger approaching at high speed. Neither boy had been involved in the fight that prompted the call. Stapp turned on his overhead rotating lights, yelled to the boys to stop, and pulled his patrol car closer to Smith’s in an attempt to pen the motorcycle in. Instead of pulling over, Willard slowly maneuvered the motorcycle between the two police cars and sped off. Smith immediately switched on his own emergency lights and siren, made a quick turn, and began pursuit at high speed. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off the road, while the vehicles reached speeds up to 100 miles per hour with Smith following at a distance as short as 100 feet. The chase ended after the motorcycle tipped over as Willard tried a sharp left turn. By the time Smith slammed on his brakes, Willard was out of the way, but Lewis was not. The patrol car skidded into him at 40 miles per hour, propelling him some 70 feet down the road and inflicting massive injuries from which Lewis was pronounced dead at the scene. The District Court granted summary judgment for Smith. It reasoned that he was entitled to qualified immunity. Respondents could point to no state or federal opinion published before May 1990 supporting their view of a Fourteenth Amendment substantive due process right in the context of high-speed police pursuits. The Court of Appeals for the Ninth Circuit reversed. It held that the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to or reckless disregard for a person’s right to life and personal security. The court concluded that the law regarding police liability for death or injury caused by an officer during the course of a high-speed chase was clearly established at the time of Philip Lewis’s death. The Supreme Court granted certiorari to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case.
View caseNuisance liability can rest on either an affirmative act or a failure to act when the defendant has a duty to prevent or abate the interference. Affirmative acts such as operating equipment that emits fumes or vibrations qualify as active conduct that can support liability when the interference is substantial and unreasonable.
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Courts treat deliberate operations such as pile driving or venting emissions as active conduct because they involve affirmative steps that create the interfering condition. In contrast, a mere failure to act supports liability only when the defendant owes a duty to take positive steps to abate a known interference.
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The refusal is an omission, but it becomes relevant conduct when the operator knows its affirmative waste-handling practices are causing interference and has a duty to abate. Either the initial operations or the later refusal to abate can support nuisance liability.
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