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4 PJI 4.2 | Third Circuit (US)
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4 PJI 4.2 | SECTION 1983 – DETERMINING WHEN AN OFFICIAL ACTED UNDER COLOR OF STATE LAW

[Defendant] is an official of [the state of ____] [the county of ____] [the city of ____]. However, [defendant] alleges that during the events at issue in this lawsuit, [defendant] was acting as a private individual, rather than acting under color of state law.

For an act to be under color of state law, the person doing the act must have been doing it while clothed with the authority of the state, by which I mean using or misusing the authority of the state. You should consider the nature of the act, and the circumstances under which it occurred, to determine whether it was under color of state law.

The circumstances that you should consider include:

• [Using bullet points, list any factors discussed in the Comment below, and any other relevant factors, that are warranted by the evidence.]

You must consider all of the circumstances and determine whether [plaintiff] has proved, by a preponderance of the evidence, that [defendant] acted under color of state law.

COMMENT “[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n.18 (1982).26 In some cases, however, a government employee defendant may claim not to have acted under color of state law. Instruction 4.4.2 directs the jury to determine, based on the circumstances,27 whether such a defendant was acting under color of state law.28

Various factors may contribute to the conclusion concerning the presence or absence of action under color of state law.29 The court should list any relevant factors in Instruction 4.4.2. In the case of a police officer defendant, factors could include:

• Whether the defendant was on duty.30 This factor is relevant but not determinative. An off-duty officer who purports to exercise official authority acts under color of state law.31 Conversely, an officer who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.32

• Whether police department regulations provide that officers are on duty at all times.33

• Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under under color of state law.34

• Whether the defendant’s actions were related to his or her job as a police officer.35

• Whether the events took place within the geographic area covered by the defendant’s police department.36

• Whether the defendant identified himself or herself as a police officer.37

• Whether the defendant was wearing police clothing.38

• Whether the defendant showed a badge.39

• Whether the defendant used or was carrying a weapon issued by the police department.40

• Whether the defendant used a police car or other police equipment.41

• Whether the defendant used his or her official position to exert influence or physical control over the plaintiff.

• Whether the defendant purported to place someone under arrest.42



In a case involving a non-police officer defendant, factors could include:

• Whether the defendant was on duty.43 This factor is relevant but not determinative. An off-duty official who purports to exercise official authority acts under color of state law.44 Conversely, an official who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.45

• Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under under color of state law.46

• Whether the defendant’s actions were related to his or her job as a government official.47

• Whether the events took place within the geographic area covered by the defendant’s department.48

• Whether the defendant identified himself or herself as a government official.49

• Whether the defendant was wearing official clothing.50

• Whether the defendant showed a badge.51

• Whether the defendant used his or her official position to exert influence over the plaintiff.



(Last Updated July 2019)

Footnotes

26 Special problems may arise if the public employee in question has a professional obligation to someone other than the government. Compare, e.g., West v. Atkins, 487 U.S. 42, 43, 54 (1988) (holding that “a physician who is under contract with the State to provide medical services to inmates at a state prison hospital on a part time basis acts ‘under color of state law,’ within the meaning of 42 U.S.C. § 1983, when he treats an inmate”) with Polk County v. Dodson, 454 U.S. 312, 317 n.4 (1981) (“[A] public defender does not act under color of state law when performing the traditional functions of counsel to a criminal defendant.”).
27 The court should take care not to narrow the jury’s focus; the jury should be instructed to consider all relevant circumstances. See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 608 (3d Cir. 2011) (remanding for new trial due to erroneous verdict form and explaining that “[a]ction under color of state law must be addressed after considering the totality of the circumstances and cannot be limited to a single factual question”).
28 For an instruction concerning the contention that a private defendant acted under color of state law by conspiring with a state official, see Instruction 4.4.3.
29 Compare, e.g., Barna v. City of Perth Amboy, 42 F.3d 809, 816-17 (3d Cir. 1994) (off-duty, non-uniformed officers with police-issue weapons did not act under color of law in altercation with brother-in-law of one of the officers; officers were outside the geographic scope of their jurisdiction, and altercation started when officer accused his brother-in-law of hitting his sister, after which officer’s partner joined the fight, after which both officers tried to leave) with Black v. Stephens, 662 F.2d 181, 188 (3d Cir. 1981) (police officer acted under color of law in altercation that began with a dispute over a traffic incident; “he was on duty as a member of the Allentown Police force, dressed in a police academy windbreaker and... he investigated the Blacks' vehicle because he thought the driver was either intoxicated or in need of help”); see also Paul v. Davis, 424 U.S. 693, 717 (1976) (Brennan, J., joined by Marshall, J., and in relevant part by White, J., dissenting) (“[A]n off duty policeman's discipline of his own children, for example, would not constitute conduct ‘under color of’ law.”).
30 “[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.
31 “[O]ff duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law.” Bonenberger v. Plymouth Tp., 132 F.3d 20, 24 (3d Cir. 1997).
32 “[N]ot all torts committed by state employees constitute state action, even if committed while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the victim is unconnected with his execution of official duties does not act under color of law.” Bonenberger, 132 F.3d at 24.
33 See Torres v. Cruz, 1995 WL 373006, at *4 (D.N.J. Aug. 24, 1992) (holding that it was relevant to question of action under color of state law that police manual “states that although the officers will be assigned active duty hours, ‘all members shall be considered on duty at all times and shall act promptly, at any time, their services are required or requested’”).
34 See Basista v. Weir, 340 F.2d 74, 80-81 (3d Cir. 1965) (“Assuming arguendo that Scalese's actions were in fact motivated by personal animosity that does not and cannot place him or his acts outside the scope of Section 1983 if he vented his ill feeling towards Basista... under color of a policeman's badge.”).
35 “Manifestations of... pretended [official] authority may include flashing a badge, identifying oneself as a police officer, placing an individual under arrest, or intervening in a dispute involving others pursuant to a duty imposed by police department regulations.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).
36 See id. at 816-17.
37 See Griffin v. Maryland, 378 U.S. 130, 135 (1964).
38 See Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).
39 See Bonenberger, 132 F.3d at 24.
40 “While a police officer's use of a state issue weapon in the pursuit of private activities will have ‘furthered’ the § 1983 violation in a literal sense, courts generally require additional indicia of state authority to conclude that the officer acted under color of state law.” Barna, 42 F.3d at 817; see also id. at 818 (holding that “the unauthorized use of a police issue nightstick is simply not enough to color this clearly personal family dispute with the imprimatur of state authority”).
41 Rodriguez v. City of Paterson, 1995 WL 363710, at *3 (D.N.J. June 13, 1995) (fact that defendant was equipped with police radio was relevant to question of action under color of state law).
42 See Griffin, 378 U.S. at 135 (holding that the defendant, “in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them – purported to exercise the authority of a deputy sheriff. He wore a sheriff's badge and consistently identified himself as a deputy sheriff rather than as an employee of the park”); Abraham, 183 F.3d at 287 (“[E]ven though Raso was working off duty as a security guard, she was acting under color of state law: she was wearing a police uniform, ordered Abraham repeatedly to stop, and sought to arrest him.”).
43 West, 487 U.S. at 50.
44 Bonenberger, 132 F.3d at 24.
45 Bonenberger, 132 F.3d at 24.
46 Basista, 340 F.2d at 80-81.
47 Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). See also Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011) (citing Barna and stating that “there is no doubt that Leone was acting under color of state law when, in his official capacity as chairperson of the Council, he ordered the deputy sheriff to escort Galena from the Council meeting”).
48 See id. at 816-17.
49 See Griffin, 378 U.S. at 135.
50 See Abraham, 183 F.3d at 287.
51 See Bonenberger, 132 F.3d at 24.

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