A conspiracy is an agreement between two or more people to do something illegal. A person who is not a state official acts under color of state law when [he/she] enters into a conspiracy, involving one or more state officials, to do an act that deprives a person of federal [constitutional] [statutory] rights.
To find a conspiracy in this case, you must find that [plaintiff] has proved both of the following by a preponderance of the evidence:
Second: [Defendant] or a co-conspirator engaged in at least one act in furtherance of the conspiracy.
Mere similarity of conduct among various persons, or the fact that they may have associated with each other, or may have discussed some common aims or interests, is not necessarily proof of a conspiracy. To prove a conspiracy, [plaintiff] must show that members of the conspiracy came to a mutual understanding to do the act that violated [plaintiff’s] [describe right]. The agreement can be either express or implied. [Plaintiff] can prove the agreement by presenting testimony from a witness who heard [defendant] and [Official Roe and/or another participant in the conspiracy with Roe] discussing the agreement; but [plaintiff] can also prove the agreement without such testimony, by presenting evidence of circumstances from which the agreement can be inferred. In other words, if you infer from the sequence of events that it is more likely than not that [defendant] and [Official Roe and/or another participant in the conspiracy with Roe] agreed to do an act that deprived [plaintiff] of [describe right], then [plaintiff] has proved the existence of the agreement.
In order to find an agreement, you must find that there was a jointly accepted plan, and that [defendant] and [state official] [each other conspirator] knew the plan’s essential nature and general scope. A person who has no knowledge of a conspiracy, but who happens to act in a way which furthers some purpose of the conspiracy, does not thereby become a conspirator. However, you need not find that [defendant] knew the exact details of the plan [or the identity of all the participants in it]. One may become a member of a conspiracy without full knowledge of all the details of the conspiracy.
The second thing that [plaintiff] must show in order to prove a conspiracy is that [defendant] or a co-conspirator engaged in at least one act in furtherance of the conspiracy. [In this case, this requirement is satisfied if you find that [defendant] or a co-conspirator did any of the following things: [Describe the acts alleged by the plaintiff].] [In other words, [plaintiff] must prove that [defendant] or a co-conspirator took at least one action to further the goal of the conspiracy.]
COMMENT
Alternative ways to show that a private person acted under color of state law. It should be noted that demonstrating the existence of a conspiracy is not the only possible way to show that a private individual acted under color of state law. See supra Comment 4.4. For example, when a private person is acting, under a contract with the state, to perform a traditional public function, the question may arise whether that person is acting under color of state law. Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974) (discussing “exercise by a private entity of powers traditionally exclusively reserved to the State”); Richardson v. McKnight, 521 U.S. 399, 413 (1997) (in case involving “employees of a private prison management firm,” noting that the Court was not deciding “whether the defendants are liable under § 1983 even though they are employed by a private firm”).Distinct issues concerning action under color of state law also could arise when a private person hires a public official, the public official violates the plaintiff’s federal rights, and the plaintiff sues the private person for actions that the private person did not agree upon with the state official, but which the state official performed within the scope of his or her employment by the private person.52 There is some doubt whether a private entity can be held liable under Section 1983 on a theory of respondeat superior.53 However, even if respondeat superior liability is unavailable, a private entity should be liable for its employee’s violation if a municipal employer would incur Section 1983 liability under similar circumstances.54 Some of the theories that could establish the private employer’s liability – such as deliberate indifference – could establish the private employer’s liability based on facts that would not suffice to demonstrate a conspiracy.
Absent evidence that the private party and the official conspired to commit the act that violated the plaintiff’s rights, the “color of law” question will focus on whether the private party acts under color of state law because she employs the state official.55 Some indirect light may be shed on this question by NCAA v. Tarkanian, 488 U.S. 179 (1988). The dispute in Tarkanian arose because the NCAA penalized the University of Nevada, Las Vegas for asserted violations of NCAA rules (including violations by Tarkanian, UNLV’s head basketball coach) and threatened further penalties unless UNLV severed its connection with Tarkanian. See id. at 180-81. The Court noted that Tarkanian presented the inverse of the “traditional state-action case,” id. at 192: “[T]he final act challenged by Tarkanian – his suspension – was committed by UNLV” (a state actor), and the dispute focused on whether the NCAA acted under color of state law in directing UNLV to suspend Tarkanian. The Court held that the NCAA did not act under color of state law: “It would be more appropriate to conclude that UNLV has conducted its athletic program under color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law.” Id. at 199. In so holding, the Court rejected the plaintiff’s contention that “the power of the NCAA is so great that the UNLV had no practical alternative to compliance with its demands”: As the Court stated, “[w]e are not at all sure this is true, but even if we assume that a private monopolist can impose its will on a state agency by a threatened refusal to deal with it, it does not follow that such a private party is therefore acting under color of state law.” Id. at 198-99.
It is possible to distinguish Tarkanian from the scenarios mentioned above. In one sense, Tarkanian might have presented a more persuasive case of action under color of state law, since the NCAA directed UNLV to do the very act that constituted the violation.56 On the other hand, a person’s employment of an off-duty state official might present a more persuasive case in other respects, in the sense that an off-duty police officer might in fact be guided by the private employer’s wishes to a greater extent than UNLV would willingly be guided by the NCAA’s wishes. Thus, Tarkanian may not foreclose the possibility that a private party may act under color of state law when employing a state official, even if the private party does not conspire with the official concerning the act that constitutes a violation of the plaintiff’s rights.57
Comments on Instruction 4.4.3 regarding conspiracy. “[T]o act ‘under color of’ state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting see [sic] ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970); United States v. Price, 383 U.S. 787, 794 (1966)); see also Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998). “[A]n otherwise private person acts ‘under color of’ state law when engaged in a conspiracy with state officials to deprive another of federal rights.” Tower v. Glover, 467 U.S. 914, 920 (1984) (citing Dennis, 449 U.S. at 27 28); see also Adickes, 398 U.S. at 152 (“Although this is a lawsuit against a private party, not the State or one of its officials,... petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in The Kress store....”).58 The existence of a conspiracy can be proved through circumstantial evidence. See, e.g., Adickes, 398 U.S. at 158 (“If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a 'meeting of the minds' and thus reached an understanding that petitioner should be refused service.”).59
The Third Circuit has suggested that the plaintiff must establish the elements of a civil conspiracy in order to use the existence of the conspiracy to demonstrate state action. See Melo v. Hafer, 912 F.2d 628, 638 n.11 (3d Cir. 1990) (addressing plaintiff’s action-under-color-of-state-law argument and “assum[ing], without deciding, that the complaint alleges the prerequisites of a civil conspiracy”), aff'd on other grounds, 502 U.S. 21 (1991). The Melo court cited a Seventh Circuit opinion that provides additional detail on those elements. See Melo, 912 F.2d at 638 & n.11 (citing Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754 (1980)). Melo’s citation to Hampton suggests that the plaintiff must show both a conspiracy to violate the plaintiff’s federal rights and an overt act in furtherance of the conspiracy that results in such a violation. See Hampton, 600 F.2d at 620-21 (discussing agreement and overt act requirements). Of course, in order to find liability under Section 1983, the jury must in any event find a violation of the plaintiff’s federal rights; and it will often be the case that the relevant act in violation of the plaintiff’s federal rights would necessarily have constituted an action by a co-conspirator in furtherance of the conspiracy. This may explain why the Supreme Court’s references to the “conspiracy” test do not emphasize the overt-act-resulting-in-violation requirement. See, e.g., Adickes, 398 U.S. at 152.
In appropriate cases, the existence of a conspiracy may also establish that a federal official was acting under color of state law. See Hindes v. F.D.I.C., 137 F.3d 148, 158 (3d Cir. 1998) (“[F]ederal officials are subject to section 1983 liability when sued in their official capacity where they have acted under color of state law, for example in conspiracy with state officials.”).
