Monday, August 8, 2011
Color of Law 42 U.S.C. §1983 in an appeals case
STANDARD OF REVIEW
The standard of review for summary judgment is plenary. MCI Telecom. Corp. v.
Teleconcepts Inc., 71 F.3d 1086, 1099 (3d. Cir. 1995). According to the Federal Rules of Civil
Procedure, the Court may grant summary judgment if the pleadings, depositions, answers to
interrogatories, and admissions on file together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56 (c). The Court, in deciding a summary judgment motion, must construe
the facts and inferences in a light most favorable to the nonmoving party. Pollock v. American
Tel. & Tel. Long Lines, 794 F.2d 860 (3rd Cir. 1986). The District Court erred as a matter of law
when it granted summary judgment.
The applicable statute in this instance is 42 U.S.C. §1983, which states :
—Every person who, under color of any statute, ordinance, regulation, custom or
usage of any State . . . , subjects, or causes to be subjected, any citizen of the
United States or any other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law ….“
In order to bring action under §1983, one must allege that defendant violated plaintiff‘s
constitutional rights and the deprivation must have been committed by a person acting under
color of state law. Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3rd Cir. 1994).Under the
definition of acting under state law, the defendant in a §1983 action —must 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 U.S. v. Classic, 313
U.S. 299, 326 (1941)). In addition, the Supreme Court has held that it is firmly established that a
defendant acts under color of state law when he abuses the position given to him by that state.
West, 487 U.S. at 49, 50.
This Court, when considering the abuse of authority by off-duty officers, has ruled that —Off-
duty officers who purport to exercise official authority will generally be found to have acted
under color of state law. Manifestations of such pretended authority may include flashing a
badge, identifying oneself as a police officer…“ Barna, 42 F.3d at 816. It has also been held by
this court that under ”color‘ of law also means under ”pretense‘ of law. Id. at 816. Other circuits
have found that the —presence of police and the air of official authority“ sufficient for a finding
of color of law. U.S. v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991). In Tarpley, the Fifth Circuit
held that there was sufficient evidence to find an off-duty sheriff had acted under color of state
law when he assaulted his wife‘s former lover, in his home, for purely personal reasons.
The determination of whether an Officer acted under color of law is purely factual and
unless there is no evidence to support the finding, it should be submitted to a jury. —In reviewing
the sufficiency of the evidence, this Court ”must view the evidence in the light most favorable to
the verdict to determine whether any rational trier of fact could have found each element of the
crime beyond a reasonable doubt‘.“ U.S. v. Tarpley, 945 F.2d at 809 (quoting U.S. v. Berisha,
925 F.2d 791, 795 (5th Cir. 1991)).
This Court has held that a police officer‘s purely private acts, which are furthered by any
actual or purported state authority, are acts under color of state law. Barna, 42 F.3d at 816. In Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), the Sixth Circuit held that evidence supported determination of —under color“ by a jury when an armed off-duty officer became involved in a bar brawl without identifying himself as a police officer, but acted pursuant to police department regulations.
Although the —unauthorized use of a police-issue nightstick is
simply not enough to color this … dispute with the imprimatur of state authority“, the clear
identification of police authority in the form of the police vehicle, partial uniform, police
identification and duty belt distinguish this case from Barna. R. at 31 (quoting Barna, 42 F.3d at