Private Acts Done Under Color of State Law

When can a private party be said to have acted under color of law? In Dossett v. First State Bank, No. 03-2624 (8th Cir. Feb. 28, 2005) (holding that a private bank can be held liable under Section 1983 for firing an at-will employee at the behest of a state actor), the panel provided a helpful rule statement. I'm keeping the citations contained therein for ease of reference.

“The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). At the same time, however, the Supreme Court has made clear that even the “[m]isuse of power” possessed by virtue of state law is action taken “under color of state law.” Classic, 313 U.S. at 326. Thus, “under ‘color’ of law” means “under ‘pretense’ of law,” and “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion) (emphasis added); accord id. at 115-16 (Rutledge, J., concurring in the result). Applying these principles, the Supreme Court in Adickes held that the involvement of a police officer in a conspiracy to deprive a citizen of equal protection of the laws “plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful.” 398 U.S. at 152 (emphasis added). That is not to say that every action of a school official is under color of law simply because the official is a public employee. “[A]cts of officers in the ambit of their personal pursuits are plainly excluded,” Screws, 325 U.S. at 111, so exhortations or agreements by a bank customer who also happens to be a school official do not necessarily constitute actions under color of law. But on the other hand, the mere fact that a school official also has a personal account at the Bank does not mean that the official’s interactions with the Bank are exempt from scrutiny under § 1983. “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West, 487 U.S. at 50. Hence, as noted, one of the fighting issues in this case has been whether school officials acted in their personal or official capacities when communicating with the Bank about Dossett.

The challenged jury instruction unduly narrowed the official capacity or “under color of law” side of this equation. If the jury believed that a school official, purporting to act in the performance of official duties, sought an agreement with the Bank to terminate Dossett in retaliation for the exercise of her First Amendment rights, but the jury believed that the school official’s actions were both unauthorized and beyond those the Bank reasonably believed were authorized by the School District, then the jury was directed to find that the school official was not acting under color of law. This is not a correct application of the law. Just as a police officer conspiring to obtain a search warrant based on false evidence, see Mark v. Furay, 769 F.2d 1266, 1273-74 (7th Cir. 1985), or a judge agreeing to issue an injunction in exchange for a bribe, Sparks, 449 U.S. at 26-28 & n.5, may act under color of law despite exceeding his actual and apparent authority as defined in these instructions, a school official reaching a mutual understanding with a private actor to retaliate against a private citizen for questioning the work of the school board may do the same.

Slip op. at 11-12.

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