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Monday, August 8, 2011

Color of Law 42 U.S.C. §1983 in an appeals case


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


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