Police civil liability under section 1983: When do police officers act under color of law?

Journal of Criminal Justice, Vol. 23, No. 5, pp. 395-415, 1995 Copyright © 1995 Elsevier Science Ltd Printed in the USA. All rights reserved 0047-2352/95 $9.50 + 0O

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0047-2352(95)00036-4

POLICE CIVIL LIABILITY U N D E R SECTION 1983: W H E N DO POLICE OFFICERS ACT U N D E R COLOR OF LAW?

MICHAEL S. VAUGHN LISA F. COOMES

Department of Criminal Justice Georgia State University Atlanta, Georgia 30302-4018

ABSTRACT When law enforcement personnel are sued in civil court pursuant to Title 42 o f the United States Code, Section 1983, before a court can assess whether a police officer violated a plaintiff's federally guaranteed rights, the court must first determine that the officer acted under color of law. Although previous researchers have focused extensively on police civil liability, there is a dearth o f research on the color o f law issue, an essential element o f Section 1983. Using ninety-six law enforcement cases, this article attempts to fill that void by identifying the circumstances under which law enforcement officers act under color of l a w . After briefly describing the history o f the color of l a w issue, the article divides the analysis into six parts: (1) officers who intimidate citizens f r o m exercising their rights, (2) officers who settle personal disputes with police powers, (3) officers who act pursuant to state statutes or municipal ordinances, (4) officers who perform police functions, (5) officers who identify themselves as law enforcement officials, and (6) officers who act pursuant to departmental customs and policies. The article concludes by dichotomizing the factors courts consider when holding that officers act and do not act under color o f law.

INTRODUCTION The Civil Rights Acts of 18661 and 18712 were enacted by Congress to control lawless conduct by state and local officials associated with the Ku Klux Klan (del Carmen, 1991; Eisenberg and Schwab, 1987; Kappeler, 1993). Codified into federal law as Title 18 of the United States Code, Section 242, the 1866 Civil Rights Act provides federal criminal pen-

alties for state and local officials who violate citizens' federally guaranteed rights (Gressman, 1952). Passed five years later, the 1871 Civil Rights Act, codified into federal law as Title 42 of the United States Code, Section 1983, allows citizens to sue for civil damages for deprivation of federally guaranteed rights. When Congress passed the 1871 Civil Rights Act, Section 1983 was not controversial because "it only added civil remedies to the crim-

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inal penalties established by the 1866 Civil Rights Acts" (Developments in the Law, 1977:1155). Today, however, Section 1983 is extremely controversial because of its widespread impact on criminal justice personnel, particularly police officers. To succeed under Section 1983, a plaintiff must show that the officer was acting under color of state law 3 as well as depriving the plaintiff of a clearly established federally guaranteed right, meaning a right guaranteed under the United States Constitution or under federal law. Previous research on police civil liability has focused exclusively on the requirement of deprivation of constitutional or statutory rights (Barrineau, 1994; del Carmen, 1993; Kappeler and del Carmen, 1990a, 1990b; Kappeler, Vaughn, and del Carmen, 1991; Vaughn, 1994) and on the growing number of cases filed against the police (Barrineau and Dillingham, 1983; Kappeler, Kappeler, and del Carmen, 1993; Kappeler and Kappeler, 1992). This has resulted in a dearth of research on the circumstances under which police officers act under color of law. This is unfortunate because the color of law prong of Section 1983 is a threshold requirement, meaning that a plaintiff cannot successfully sue, regardless of the heinous nature of an officer's behavior, if the officer's actions were not taken under color of law. With these concerns in mind, this article attempts to fill the literature void by focussing on the color of law issue. It briefly traces the historical evolution of the doctrine under color of law and applies the doctrine to police civil liability. Through an examination of ninety-six law enforcement cases, the article analyzes the situations in which officers act and do not act under color of law.

EVOLUTION OF UNDER COLOR OF LAW Between 1871 and 1920, only twenty-one cases were brought under the 1871 Civil Rights Act because governmental officials were immune from suit if they acted outside the scope of their employment (Barney v. City o f New

York, 193 U.S. 430, 1902; Civil Rights Act, 1951; Judge Spencer Roane, 1953). The interpretation of under color of law began to expand in 1941 when the United States Supreme Court decided United States v. Classic (313 U.S. 299, 1941; Wardell, 1983). 4 In Classic, democratic election officials in Louisiana violated voters' constitutional rights by fraudulently altering votes. The issue was whether the officials acted under color of law when they rigged the election, even though the conduct was unauthorized by state law. The defendants argued that they were solely acting as officers of a political party, not as "officers or employees of the State of Louisiana" (Winter, 1992:369). The Supreme Court disagreed and said that even actions unauthorized by state statute could be under color of law, holding that "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of law'" (United States v. Classic, 326). The interpretation of under color of law continued to change in 1945 when the Supreme Court decided Screws v. United States (325 U.S. 91, 1945). In Screws, Robert Hall, an African American, was beaten to death by the officers who arrested him for theft. Prosecuted in federal court under Section 242 for criminal violation of civil rights, the issue was whether the officers acted under color of law when they misused their official police powers. The Supreme Court held that "[i]t is clear that under 'color' of law means under 'pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts 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, 111). Monroe v. Pape (365 U.S. 167, 1961) extended the criminal interpretation of under color of law in Classic and Screws to civil litigation under Section 1983 (Barrineau, 1994; Libby, 1992; Weinberg, 1991). Monroe"is now the cornerstone of police federal [civil] liability litigation" because officers who misuse their

Police Civil Liability

power are now considered to be acting under color of law (Kappeler, Kappeler, and del Carmen, 1993:327). The facts of the Monroe case show that, without a warrant and at gun point, the police ransacked James Monroe's house while he and his family were forced out of bed and required to stand naked in the living room where they were slandered with racial epithets. Monroe was eventually taken to the station house where he was held incommunicado and interrogated for ten hours before being released. Monroe's Section 1983 claim against the police was upheld by the Supreme Court. Before Monroe, officers who engaged in misconduct could not be sued under Section 1983 because they were acting outside the scope of their lawful authority; hence, they were not acting under color of law (Zagrans, 1985). Monroe changed that and "overturned a longstanding assumption that Section 1983 reached only misconduct either officially authorized or so widely tolerated as to amount to 'custom and usage'" (Low and Jeffries, 1994:12). There have been cases since Classic, Screws, and Monroe on the color of law issue that further clarify the language of the 1871 Civil Rights Act. Plaintiffs, for example, may only sue under Section 1983 for actions taken under color of any statute, ordinance, regulation, custom, or usage of any state law, territory (Martinez Correa v. Lopez Feliciano, 759 F. Supp. 947, 1991), or the District of Columbia (Payne v. Government of District o f Columbia, 559 F.2d 809, 1977). Section 1983 does not allow plaintiffs to seek relief for actions taken under color of federal law 5 (Bivens v. Six Unknown Named Agents of Federal Bureau o f Narcotics, 403 U.S. 388, 1971; Parratt v. Taylor, 451 U.S. 527, 1981) or Indian tribal law 6 (Evans v. McKay, 869 F.2d 1341, 1989). The Supreme Court also has held that the state action prong of Section 1983 is met when the accused "may fairly be said to be a state actor" (Lugar v. Edmondson Oil Co., 457 U.S. 937, 1982). 7 Plaintiff's cannot sue private citizens under Section 1983 for "nonstate-related activities unless they conspire with state officers" (Barrineau, 1994:28). On this point, the Su-

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preme Court has said that "a state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt of covert, that the choice must in law be deemed to be that of the state" (Blum v. Yaretsky, 457 U.S. 1004, 1982). The law also distinguishes action taken under color of law from action authorized by state law. The former encompasses more behaviors and activities than the latter because police officers can engage in acts unauthorized by state law, but still act under color of law. An officer, for example, might use deadly force to apprehend a nonviolent fleeing felon, which is clearly unauthorized by state law (Tennessee v. Garner, 471 U.S. 1, 1985) but, nonetheless, is action taken under color of state law. Taken in their totality, Classic, Screws, and Monroe led to the current interpretation of the color of law issue. Although Screws and Classic were criminal prosecutions under Section 242, they "gave virile meaning to the phase 'under color of l a w ' " (Vallev. Stengel, 176 E2d 703, 1949). This set the stage for the Monroe court to extend the criminal law interpretation of under color of law to civil cases under Section 1983. Since Monroe, there has been an explosion of Section 1983 litigation (Weinberg, 1991). Research shows, for example, that from 1978 to 1990, there were 1,359 police civil liability cases litigated in the United States District Courts with published opinions in the Federal Supplement (Kappeler, Kappeler, and del Carmen, 1993). These data are even more striking when compared to the twenty-one cases litigated against all governmental entities under Section 1983 from 1871 to 1920 (Civil Rights Act, 1951; Judge Spencer Roane, 1953).

UNDER COLOR OF LAW DEFINED Historically, the duty status of police officers determined whether their actions were under color of law. The assumption was that while the actions of on-duty officers were under color of law, the actions of off-duty offi-

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cers were not (Barna v. City of Perth Amboy, 42 F.3d 809, 1994). Today, however, inquiries into the color of law issue require a determination of the "nature of the officer's act, not simply his duty status" (Pitchell v. Callan, 13 F.3d 548, 1994). Case law shows that courts consider a number of factors when characterizing an officer's actions. Although the presence of a single factor may not determine whether an officer is or is not acting under color of law, courts are more likely to hold that officers act under color of law when multiple factors are present. Under this totality of the circumstances analysis, officers act under color of law if they invoke police power, if they discharge duties routinely associated with police work, or if they use their authority to lure potential plaintiffs into compromising positions. More specifically, courts hold that ofricers act under color of law if they wear their uniforms, draw their firearms, identify themselves as law enforcement agents, place suspects under arrest, file official police reports, and otherwise hold themselves out as police officers. Conversely, officers who act as private citizens, do not invoke their police power, and do not identify themselves as law enforcement agents, do not act under color of law. Uniformed, on-duty officers, for example, are not necessarily acting pursuant to police authority if they involve themselves in a personal fight or altercation or act for purely private and personal reasons (Chicago's Last Department Store v. Indiana Alcoholic Beverage Commission, 161 F.Supp. 1, 1958). In order to clarify the phrase under color o f law, the discussion below uses ninety-six law enforcement cases to divide the analysis into six areas in which officers: (1) intimidate citizens from exercising their rights, (2) settle personal disputes with police powers, (3) act pursuant to state statutes or municipal ordinances, (4) perform police functions, (5) identify themselves as law enforcement officials, and (6) act pursuant to departmental customs and policies. Each area is further divided into cases that lead courts to determine that the police were acting under color of law and cases that lead courts to determine that the police were not acting under color of law.

INTIMIDATING CITIZENS FROM EXERCISING T H E I R R I G H T S

Under Color of Law Research shows that the mere presence of an authority figure such as a police officer may intimidate citizens (Skolnick and Fyfe, 1993). Blatant intimidation by a state official who infringes upon citizens' constitutional rights is obviously action taken under color of law (Calhoun v. Doster, 324 F.Supp. 736, 1971). The more difficult question arises when the presence of law enforcement officers may inadvertently or accidentally intimidate citizens from freely exercising their constitutional rights 8 In cases involving subtle and indirect intimidation, courts usually hold that officers act under color of law if they take overt action. In Jones v. Gutschenritter (909 F.2d 1209, 1990), a landlord called the tenant and ordered him to vacate the premises immediately, saying that "if you don't leave, I'll find someone with authority." Later that day, when a uniformed officer arrived at the property, both the officer and the landlord entered the complex and walked together along a common hallway inside the tenant's unit where the tenant's electricity was disconnected. The United States Court of Appeals for the Eighth Circuit held that the officer's actions, whether intentional or inadvertent, were cloaked with state authority because the landlord told the tenant he would bring an authority figure to evict him, the tenant heard the officer talking with the landlord, and the tenant saw the armed and uniformed officer walk with the landlord to the electric box and disconnect the electricity. Officers act under color of law in intimidation cases when they verbalize support for one of the parties in dispute. In Soldal v. Cook County (113 S.Ct. 538, 1992), the United States Supreme Court concluded that police verbal support for one of the parties in dispute implicates state action taken under color of law. In Soldal (541-42), while at an eviction "to see that [the plaintiff] didn't interfere with [the landlord's] work," a police officer said "we're going to go ahead and continue to move

Police Civil Liability

out the trailer." This type of verbal support was repeated in Howerton v. Gabica (708 F.2d 380, 1983), where the United States Court of Appeals for the Ninth Circuit held that the police acted under color of law when they accompanied a landlord to evict a tenant and the police "recommended" that the tenant leave the premises. Law enforcement officials invoke state authority under color of law when they directly participate in a repossession (Stone Machinery Company v. Kessler, 463 P.2d 651, 1970). 9 In these cases, it is assumed that the officer acted under color of law by cooperating or conspiring with a private citizen who violates the plaintiffs' rights, or by intimidating the plaintiff from exercising his or her legal rights. The case of Harris v. City o f Roseburg (664 F.2d 1121, 1981) provides an example of direct law enforcement participation in a repossession. The facts showed that Harris purchased a truck from Cantwell and was behind on payments. Cantwell decided to repossess the truck, but requested the presence of a police officer to prevent potential violence, When Harris exited the house as Cantwell was attempting to repossess the truck, the officer ordered Harris to "stand back or get away," and informed him that "if he i n t e r f e r e d . . , in any way that [he] was going straight to jail" (Harris v. City ofRoseburg, 1127). Harris sued the officer under Section 1983, claiming that he had a right to due process before the truck was repossessed. The officer argued that he was not acting under color of law, but was only there to "stand-by" and "prevent violence" (Harris v. City o f Roseburg, 1127). The United States Court of Appeals for the Ninth Circuit disagreed, saying that an officer acts with state authority and under color of law when that officer "assists in effectuating a repossession over the objection of a debtor or so intimidates a debtor as to cause him to refrain from exercising his legal right to resist repossession" (Harris v. City o f Roseburg,

1127). Not Under Color of Law Sometimes plaintiffs sue officers who are physically present at the scene when a third

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party allegedly violates a citizen's constitutional rights, j° Under these circumstances, when ofricers do not make an affirmative act, their inaction might not be construed as state action taken under color of law. This reasoning flows from Lugar v. Edmondson Oil Co., in which the United States Supreme Court held that the "mere presence or perfunctory role of a state official" (Greco v. Guss, 775 F.2d 167, 1985) does not constitute state action taken under color of law. This includes situations in which police officers approve of the actions of a third party, but do not participate in the alleged violation. In Asmar v. Keilman (756 F.Supp. 335, 1991), for example, the United States District Court for the Eastern District of Michigan held that there was no action taken under color of law because the acts of the department and the officer, at most, "amounted to a mere approval of or acquiescence in the initiatives of the manner and method in which the private parties attempted to serve process on the plaintiff." In other cases, inaction by a law enforcement official does not amount to state action if the law enforcement official attempts to remain neutral in a civil dispute that is being litigated in the courts, l J In Sofarelli v. Pinellas County (931 F.2d 718, 1991), for example, a homeowner on John's Parkway parked a vehicle along the side of the road, which impeded Sofarelli from moving a wide trailer through the neighborhood. A dispute arose as to the width of the public right-of-way between the homeowner and Sofarelli. The sheriff refused to move the vehicles parked along the parkway until the right-of-way dispute was resolved. In holding that the sheriff's inaction was not state action conducted under color of law, the United States Court of Appeals for the Eleventh Circuit said that "the sheriff's refusal to remove vehicles.., was not improper state action" (Sofarelli v. Pinellas County, 723). Another area of litigation in police inaction cases involves automobile repossession, in which the police observe a private entity repossess property (Haverstick Enterprises v. FinancialFederal Credit, 32 F.3d 989, 1994). In these cases, the police argue that they were either acting as a private citizen and not under color

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of law or that their inaction did not constitute state action authorized by state law. In Menchaca v. Chrysler Credit Corporation (613 F.2d 511-12, 1980), the police arrived at the scene of a repossession to monitor any potential altercation; they did, however, inform the plaintiff that he could be arrested for disorderly conduct "if he continued using loud and abusive language." The United States Court of Appeals for the Fifth Circuit affirmed the district court's dismissal of the plaintiff's claim because the police did not intervene and aid the repossession crew; 12 hence, the police did not act under color of state law. In effect, the court said that the mere presence of a law enforcement official at the scene of an alleged constitutional violation does not constitute action conducted under color of law. These cases indicate that law enforcement personnel must not intimidate citizens from exercising their federally guaranteed rights. Officers who wish to remain neutral during an eviction or repossession should not support either party. Overt action, verbal support, or other intervention by the police that intimidates citizens from exercising their rights is considered state action taken under color of law, regardless of the officers' intent. Because of the increased frequency with which the police are called to monitor potential problems in evictions and repossessions, the police need additional training on when their actions are considered under color of law.

S E T T L I N G P E R S O N A L DISPUTES W I T H P O L I C E POWERS Under Color o f L a w A few cases pertain to officers who engage in unlawful activities with persons against whom they hold personal animus. The common element in these cases is that the police settle a personal grudge with their police authority. The general rule is that when police misuse state power they act under color of law, even if the activity is outside the scope of appropriate law enforcement responsibility. When sued, police officers argue that because

they went beyond their lawful powers to settle a personal dispute, their activities should not be held under color of law. In rejecting this view, one court has held that an officer cannot: divorce himself from his official capacity merely by removing his badge of office before embarking on a course of illegal conduct, and thereby blithely absolve himself from any liability for his ensuing nefarious acts. We must condemn this insidious suggestion that an ofricer may thus lightly shuffle off his official role. To accept such a legalistic dualism would gut the constitutional safeguards and render law enforcement a shameful mockery. (Catlette v. United States, 132 E2d 906, 1943) In these cases, police powers are inappropriately used for motives that have nothing to do with legitimate law enforcement activity. In W S B - T V v . Lee (842 F.2d 1268, 1988), for example, a sheriff assaulted a news reporter who was investigating allegations that the sheriff was illegally "using inmate labor to build a barn on his own property." The United States Court of Appeals for the Eleventh Circuit said that there was a genuine issue of material fact as to whether the sheriff was acting as a private person "express[ing] his angry resentment of an intrusion upon his person" or was the sheriff acting under color of law as a law enforcement official by "punish[ing] plaintiffs for the exercise of their constitutional rights to gather and report the news" ( W S B - T V v. Lee, 1270). In some circumstances, enmity between a law enforcement official and a citizen may surface at a traffic stop. This occurred in Stringer v. Dilger (313 F.2d 536, 1963) where personal animosity between a highway patrol officer and a motorist resulted in the officer stopping the motorist, forcefully removing him from the vehicle, putting his arm in an armlock, striking him with a blackjack, ~3 handcuffing him, and placing him under arrest. The United States Court of Appeals for the Tenth Circuit held that the on-duty highway patrol officer was acting under color of law, although he acted in "excess of his authority" (Stringer v. Dilger, 540) by making an arrest without prob-

Police Civil Liability

able cause and using excessive force. 14 This case, along with others, shows that officers should only invoke official police power when acting in their official capacities. The practical realities of police work, therefore, demand that officers need to be aware of the potential liability risks for identifying themselves as police officers in private activities. N o t Under Color o f L a w

Not all cases involving personal disputes or altercations result in the courts holding that the officer acted under color of law. For this reason, a distinction must be made between an officer who uses his or her police power to settle a personal dispute and an officer who does not invoke police power in the course of settling a personal dispute. The distinction is subtle but important because officers who settle personal disputes with police power act under color of law; conversely, officers who commit crimes in pursuit of personal disputes without invoking police powers do not act under color of law. 15 In Delcambre v. Delcarnbre (635 F.2d 408, 1981), for example, a police chief was sued after "he restrained and assaulted" his sister-in-law over "family and political matters." When the assault occurred, the chief was in uniform, on duty, and on police property. The United States Court of Appeals for the Fifth Circuit held that the chief was not acting under state law because the dispute was personal and was not associated with police work. One of the most frequently litigated areas involves off-duty officers engaging in fights at bars and nightclubs. In Costa v. Frye (588 A.2d 97, 1991), Officer Frye went to a bar while off duty, where he got into a fight, drew his gun, shot, and killed Costa during an altercation. The Commonwealth Court of Pennsylvania held that Frye did not act under color of law because he was engaged in a purely private altercation in which he did not invoke police power; the fact that he drew his gun in a bar fight did "not transform the incident into a police matter" (Costa v. Frye, 99). Another area of litigation involves off-duty officers who commit crimes with their per-

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sonal firearms. The rule is that officers do not act under color of law if they act for purely private reasons and do not invoke their police powers. In Pitchell v. Callan, an off-duty ofricer shot a civilian with the officer's personal weapon, although the bullets used to shoot the plaintiff were issued by the police department. The United States Court of Appeals for the Second Circuit held that although the officer violated the law, he did so as a private citizen conducted outside the color of law. 16 These cases show that when police officers settle personal disputes with police powers they act under color of law. By contrast, when officers settle personal disputes without invoking their police powers they act as private citizens and not under color of law. Law enforcement personnel must receive continual training on the liability implications of invoking their official state-granted police powers in non-law-enforcement situations. The goal of the training should be to inculcate officers with the idea that police powers should only be invoked when engaging in criminal law enforcement activities.

ACTING PURSUANT TO STATE STATUTES OR MUNICIPAL ORDINANCES Under Color o f Law

In adjudicating the color of law issue, courts frequently look to the "source of power or a u t h o r i t y . . . [to] determine if such powers or authority existed by virtue of a grant from the state" (Temple v. Albert, 719 F.Supp. 267, 1989). According to the Supreme Court, if the conduct is performed under the color of state authority, "it is irrelevant" that the police officer's actions were "not authorized by state law" (Griffin v. Maryland, 378 U.S. 135, 1964). The important consideration is that officers act under color of law when they act pursuant to police powers that originate from a state statute, local ordinance, or administrative code (Valle v. Stengel). In some cases, laws that give officers special powers that other citizens do not possess, including the right to

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carry concealed weapons twenty-four hours per day, may place all of their actions related to use of that weapon under color of law. 17 This scenario arose in Layne v. Sampley (627 F.2d 12, 1980) where an off-duty police officer shot a man who had previously threatened the officer. The United States Court of Appeals for the Sixth Circuit said that the officer was acting under color of law because Tennessee law allows only police officers to carry weapons twenty-four hours per day to perform their official police duties. When law enforcement agents act pursuant to a statute or ordinance, their actions are under color of state law, even if their services are contracted to a nonstate entity. In Evans v. McKay, for example, a contract between a municipality and the Bureau of Indian Affairs empowered the local police to provide criminal law enforcement for an Indian tribe. In fulfilling a tribal court order, the officers made a warrantless arrest pursuant to a municipal ordinance that prohibited obstruction of justice. The arrestee sued for false arrest in violation of the Fourth Amendment. The United States Court of Appeals for the Ninth Circuit held that the officers acted as agents for both the city and the tribe. Thus, because the officers arrested the plaintiffs pursuant to a city ordinance, their actions were under color of state law. Statutes and ordinances frequently grant police power to railroad or transit officials. These special police officers, who exist by virtue of law, are frequently sued for acting under color of law. When legislative bodies endow quasi police o f f i c e r s - r a i l r o a d police, transit police, and private security p o l i c e - w i t h powers similar to regular law enforcement officials, their activities may be conducted under color of law. ~s This occurred in United States v. Hoffman (498 F.2d 881, 1974) where privately employed railroad police officers were held to be acting under color of law because they possessed statutory like "police powers as those conferred upon the police of cities." A similar situation arose in Roby v. Skupien (758 F. Supp. 471, 1991), in which Officer Skupien of the Conrailroad Police Department filed a theft complaint against Roby, a person sus-

pected of theft. After Roby was subsequently arrested by officers from the City of Chicago Police Department, he filed a Section 1983 claim against Officer Skupien for false arrest. In finding that the plaintiff had the right to sue, the United States District Court for the Northern District of Illinois reasoned that the "railroads are given the power to appoint and maintain a police force through a statutory provision" (Roby v. Skupien, 473). The court concluded that police officers who are employed by private railroad corporations possess state conferred police powers and, thus, operate under color of state law. The cases indicate that legislative bodies should not give blanket police power to all quasi police officers, thereby limiting the number of individuals operating under color of law. Not Under Color of Law It is settled law that federal law enforcement agents are not subject to suit under Section 1983 (Bivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics). 19 The general rule is that officers who act under federal law do not act under color of state law for purposes of Section 1983, regardless of the geographic location of their action. This issue arose in Saddler v. D'Ambrosio (759 ESupp. 5, 1990), in which a United States Capitol Police officer arrested Mr. Saddler for disturbing the peace. When the officer approached Mr. Saddler, a scuffle ensued resulting in Saddler's arrest. Because the officer encountered Saddler at a location "not formally within the boundaries of the United States Capitol" (Saddler v. D'Ambrosio, 9), Saddler argued that the officer was not acting under color of federal law, but under color of the law o f the District o f Columbia. The United States District Court for the District of Columbia disagreed, saying that even if the ofricer was outside the geographical boundaries of his jurisdiction, the officer would still be a Capitol Police officer acting under color of federal law. The court concluded that at all times the Capitol Police officer was acting in the course of his duties as a federal police ofricer, citing the fact that he was on patrol in

Police Civil Liability

a Capitol Police cruiser, attired in a Capitol Police uniform, sworn under the auspices of federal law, and processed Mr. Saddler at the Capitol Police station. The actions of local law enforcement officers may not be pursuant to state law if they work in concert with federal agents (Amoakohene v. Bobko, 792 F.Supp. 605, 1992; Hughes v. Meyer, 880 F.2d 967, 1989). These situations arise when local and state law enforcement personnel are assigned to a local-state-federal task force, in which a federal law enforcement agency assumes direct supervision and control over tactical field operations. An example comes from Askew v. Bloemker (548 F.2d 673, 1976), in which seven federal law enforcement officials and three officers from the St. Louis Police Department (SLPD) improperly raided a home to arrest a drug suspect. The three St. Louis officers were given federal credentials to make them "dual-status agents acting concurrently under color of federal and state law" (Askew v. Bloemker, 677). In conducting the raid, one of the SLPD officers showed his St. Louis Police badge in identifying himself, instead of his federal credentials. The United States Court of Appeals for the Seventh Circuit held that the officers from the SLPD, although dual-status agents, were acting pursuant to federal law because the raid was a federal operation and the officers were supervised by federal officials. The court concluded that the "mere assertion that one is a state officer does not necessarily mean that one is acting under color of state law" (Askew v. Bloemker 677). These cases show that courts frequently look to the source of an official's authority in adjudicating the color of law issue. If officers derive their authority from state statutes or local ordinances, their actions are conducted under color of law for purposes of Section 1983, regardless of whether state law authorized the conduct. Acting under color o f law and legal authorization to engage in the conduct are two separate and distinct concepts. Case law also shows that officers who act pursuant to federal law do not act under color of law. In these situations, law enforcement officials must be aware of the color of law implications as fed-

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eral, state, and local criminal justice agencies increasingly arrange interagency cooperative efforts. This issue will manifest as more offenses that were historically the exclusive prerogative o f state and local criminal justice agencies become federalized.

P E R F O R M I N G POLICE FUNCTIONS Under Color o f Law One of the primary functions of criminal justice personnel is to investigate allegations of criminal wrongdoing. When law enforcement officials assert the authority granted to them and conduct a criminal investigation, "there cannot be the slightest doubt that the police" act under color of law (Williams v. United States, 341 U.S. 101, 1951). Hence, investigative efforts that involve detaining, 2° questioning, and investigating witnesses and suspects are considered routine and normal functions of police work and are conducted under color of law (Mosier v. Robinson, 722 F.Supp. 555, 1989). 21 The United States Court of Appeals for the Third Circuit said as much in Black v. Stephens(662 E2d 181, 1981) when it held that an on-duty, plainclothes, undercover detective acts under color of law when investigating a suspicious driver. Moreover, the activities surrounding an investigation are performed under color of law because the activities are made possible by the police officer's authority. When a police officer summons a suspect to the police department for questioning as part of an ongoing investigation, the actions that flow from that encounter are conducted under color of law because "it can be presumed that the incident would never have occurred but for the fact that the policeman was clothed with the authority of the state" (Nugent v. Sheppard, 318 F.Supp. 316-17, 1970). Courts also have held that official police duties, such as filing a police report and applying for a search or arrest warrant, are conduced under color of law. In 1985, the Kansas Supreme Court ruled that an off-duty police officer who works as a security guard and files

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an arrest report with the police department acts under color of law (Alvarado v. City o f Dodge City, 708 P.2d 174, 1985). A similar situation arose in Santine v. Roberts (661 F.Supp. 1166, 1987), in which the United States District Court for the District of Delaware held that an officer who filed a police complaint acted pursuant to state law because he "observed plaintiff on the streets while he was on official duty, signed the complaint on police department stationery, and listed his address as that of the police station." Undercover police officers who file court papers for a search warrant also act under color of law. In Warner v. Croft (406 F.Supp. 717, 1975), for example, several police officers and an informant gained entrance into Warner's house by posing as prospective home buyers. Thereafter, Officer Croft filed an affidavit, swearing that Warner was in possession of stolen property. Warner sued, alleging that the defendants knowingly, falsely, and maliciously lied about the stolen property. The United States District Court for the Western District of Oklahoma held that when the undercover police officers filed the search warrant affidavit, they were not acting pursuant to private or personal interests, but were conducting a criminal investigation pursuant to the authority granted to them by state law. State laws also grant law enforcement officers the authority to detain and arrest citizens, which imbues governmental authority and official conduct (Hanson v. Larkin, 605 F.Supp. 1020, 1985; Malone v. County o f Suffolk, 968 F.2d 1480, 1992). Most courts agree that an officer acts under color of law when making an arrest (Cannon v. City and County o f Denver, 998 F.2d 867, 1993). In United States Ex Rel. Smith v. Hell (308 F.Supp. 1063, 1970), two plainclothes officers, in an unmarked police car, shot a parolee in the back while placing him under arrest. The parolee filed a Section 1983 claim, arguing that the police violated his Fourth Amendment rights to be free from unreasonable seizure. At trial, the officers claimed that they were not acting under color of law because they were out of uniform and were in an unmarked police car. In rejecting the officers' claim, the

United States District Court for the Eastern District of Pennsylvania said that the officers' efforts to arrest the parolee were pursuant to their legal duties as police officers "under the authority of the policeman's badge" (United States Ex Rel. Smith v. Heil, 1065), and under color of law. Moreover, actions taken as part of the arrest protocol, including use of force and booking procedures, are conducted under color of law. In Rivera v. La Porte (896 F.2d 691, 1990), a plainclothes, off-duty New York City corrections officer engaged in a verbal and physical confrontation with a motorist. During the encounter, the officer proclaimed that he was a police officer, handcuffed the motorist, placed him under arrest, and requested an observer to summon the police. When the police vehicle arrived, the officer put the motorist in the back seat, accompanied the motorist to the police station, and made sure that the motorist was booked and interrogated. The United States Court of Appeals for the Second Circuit affirmed a $25,000 jury verdict for the plaintiff, holding that the evidence fully supported the verdict because, although the officer was not on duty at the time of the altercation, he acted unquestionably with full police authority and under color of law. The culmination of a successful investigation often involves presenting the results in a court of law. Litigation has arisen against police officers who commit perjury while testifying in open court. Police officers argue that because prosecutors, judges, and legislators have absolute immunity from suit under Section 1983, law enforcement officers who testify do not act under color of law. For the most part, this argument has been rejected by the courts. Officers who give testimony as part of their investigative responsibilities are acting under color of law because the testimony is considered official police business (Briscoe v. LaHue, 663 F.2d 713, 1981). Police officers who testify as private citizens, however, do not act under color of law if the testimony does not report the details of a criminal investigation (Edwards v. Vasel, 349 F.Supp. 164, 1972; Tylerv. Parks, 331 F.Supp. 346, 1971). In these circumstances, police officers who testify

Police Civil Liability

about nonpolice business are not acting under color of law (Grow v. Fisher, 523 F.2d 875, 1975). Police officers will frequently allege that they are not acting under color of law if they perform police duties or functions outside of the jurisdiction in which they have lawful state authority (Saddler v. D'Ambrosio; Wirth v. Surles, 562 F.2d 319, 1977). Most courts reject these arguments, saying that it is the nature of the officers' actions, not the location, that determines the color of law issue. 22 Displaying an arrest warrant under the pretense of lawful authority is action taken under color of law, for example, even if it is outside the jurisdiction in which the officer may lawfully make an arrestY This scenario took place in Keller v, District o f Columbia (809 ESupp. 432, 1993) where two District of Columbia police officers stopped a motorist in Arlington, Virginia for an alleged traffic violation. The United States District Court for the District of Columbia said that the officers "fail to recognize that action taken under color o f state law is a potentially broader category than action taken under authority conferred by state law" (Keller v. District o f Columbia, 435). The court concluded that "making an arrest, by means of a marked police car, a police uniform and badge, and a state-issued firearm, is an act performed under color of law, regardless of whether the state official has the actual jurisdiction to make an arrest" (Keller v. District o f Columbia, 437). Hence, the cases make clear that police officers act under color of law if they invoke their police powers outside of the jurisdiction in which they have lawful authority to act as a police officer. Officers obviously need training on this issue, but departments must have clear departmental policies that inform officers that they do not have lawful authority outside the geographical boundaries of their jurisdiction. Not Under Color o f Law Police officers who report the details of an alleged crime to the police do not act under color of law. Most courts agree that officers do not act under color of state law if they use

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the same reporting mechanisms and processes available to private citizens. When reporting a crime, officers act as private citizens if they do not invoke their official law enforcement powers (Hughes v. Meyer). In these cases, it is maintained that the officer's status as a state official does not clothe him or her with greater authority to report a criminal incident than any other citizen would possess (Norton v. Liddel, 620 F.2d 1375, 1980). 24 Hence, police officers do not act under color of law if they perform nongovernmental functions that private citizens can perform. In Fickey v. Nessler (553 A.2d 34, 1989), a New Jersey state trooper collided with a private citizen on a motorcycle. Both the trooper and the motorist filed a complaint in municipal court, alleging that the other had disregarded the traffic signal. The Appellate Division of the New Jersey Superior Court held that the trooper filed the complaint against the motorcyclist as a "private citizen and not in his capacity" as a law enforcement official (Vickey v. Nessler, 39). The court concluded that the trooper's actions were not conducted under color of law because the accident was investigated by local police officials, the trooper did not attempt to write the motorcyclist a traffic summons, and the trooper never identified himself as a law enforcement officer at the accident scene. These cases show that the officers' status as state law enforcement officials does not make their statements as crime victims under color of state law. Courts are unanimous that Section 1983 "has no application to those acts purely private in nature without any official character or color even though those acts be done by one who is also a public official" (Perkins v. Rich, 204 ESupp. 100, 1962). Case law also makes clear, however, that officers act under color of law when performing police functions. For color of law purposes, police functions include conducting criminal investigations, giving courtroom testimony as police officers, arresting suspects, questioning witnesses, filing police reports, applying for search or arrest warrants, working undercover operations, and using force or discharging a firearm in the capacity as law enforcement officials.

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IDENTIFYING T H E M S E L V E S AS LAW E N F O R C E M E N T OFFICIALS Under Color o f L a w

These cases usually arise when police officers are off duty and their law enforcement identity is not readily apparent (Vaughn and Coomes, 1994). The general rule is that police officers act under color of law when they identify themselves. Identity may manifest in numerous ways, but the primary consideration for courts is that officers clothe themselves with police authority by wearing the uniform, showing the badge, displaying the firearm, driving a police vehicle, giving verbal commands, and detaining and questioning a suspect (Brandon v. Allen, 516 F.Supp. 1355, 1981 ; Hanson v. Larkin). The most common form of identification is verbal. Such was the case is Lusby v. T.G. & Y. Stores, Inc. (749 F.2d 1423, 1984) when an off-duty police ofricer, who was moonlighting as a security guard, identified himself as a police officer and showed a suspected shoplifter his police badge. The United States Court of Appeals for the Tenth Circuit held that the actions of the plainclothes security guard were under color of law. The court added that when an off-duty officer acts as a private citizen and does not invoke police authority, he or she is not acting under color of lawY Most courts agree that the "mere presence or minor role of a state actor does not automatically satisfy the state causation requirement" (Greco v. Guss, 167). 26 The actions of the officer must be "related in some way to the performance of a police duty" (Hill v. Barbour, 787 F.Supp. 149, 1992). To trigger the color of law requirement, a police officer must identify himself or herself in such a manner that a reasonable person would conclude that the officer was acting under the authority of state law and such action was taken under color of law (Draeger v. Grand Central, Inc., 504 F.2d 142, 1974; Manning v. Jones, 696 F.Supp. 1231, 1988). 27 The actions taken by an off-duty officer, for example, may be under color of law if the officer uses police equipment 28 or weapons to engage citizens, suspects,

or witnesses. An example comes from United States v. Tarpley (945 F.2d 806, 1991), in which a deputy sheriff stuck his police pistol in a man's mouth. The deputy repeatedly told the man that he was a law enforcement official, that "he would and should kill [him], and that he could get away with it because he was a cop" (United States v. Tarpley, 808). When the man filed a civil rights claim against the deputy, the deputy argued that he acted as a jealous husband, not a police officer. The United States Court of Appeals for the Fifth Circuit disagreed with the deputy, holding that a reasonable juror could conclude that the deputy was acting under color of law because the entire attack was dominated by police authority. Departments should develop strict policies on use of police equipment because some courts rule that activities unauthorized by departmental officials are not performed under color of law (Gibson v. City o f Chicago, 910 F.2d 1510, 1990).

N o t Under Color of L a w

Off-duty police officers who moonlight as security guards do not act under color of law if they do not identify themselves as police ofricers and portray themselves as law enforcement officers. The general rule is that when off-duty police officers do not invoke their police powers, they act as private individuals and their status as a law enforcer is completely irrelevant. Some courts have held that off-duty police officers who work as security guards must expressly state that they are acting as state agents for their acts to be construed as under color of law ( W a t k i n s v. Oaklawn Jockey Club, 183 F.2d 440, 1950). In Robinson v. Davis (447 F.2d 753, 1971), for example, the administration of a college discovered that some of its students were trafficking drugs. City police officers who worked parttime for the college as security officers, personally asked students to appear on campus to answer questions. When the officers confronted the students, they were dressed in their "police uniforms, 29 with side arms, furnished by the Town" (Robinson v. Davis, 756). The

Police Civil Liability

students' sued, alleging that the college used uniformed police officers to intimidate and violate their Fourth Amendment rights. In rejecting the students' argument, the United States Court of Appeals for the Fourth Circuit said that no state action was involved and that the mere fact that the public police worked part-time for a private college did not mean that their actions were under color of law. In a few cases, plaintiffs have attempted to "equate 'clothed with the authority of state law' to 'wearing a policeman's u n i f o r m " ' (Johnson v. Hackett, 284 F.Supp. 937, 1968) or brandishing a police weapon (Barna v. City o f Perth Amboy). The wearing of a police uniform does not mean that actions performed by the uniformed individual are under color of law. Rather, a uniformed officer must invoke police power and authority to act under color of law. This unique situation occurred in Johnson v. Hackett, in which Officer Hackett, uniformed and on duty, removed his gun belt, called a black man a "Chinese nigger," and challenged him to a fight. After the man responded to Officer Hackett with a derogatory statement, Officer Hackett had the man arrested for disturbing the peace. In dismissing the Section 1983 claim against Officer Hackett, the United States District Court for the Eastern District of Pennsylvania held that Officer Hackett's actions were personal, private, and not "under pretense of law" (Johnson v. Hackett, 937). Moreover, the court said that since Officer Hackett removed his gun belt before offering the challenge, his actions were not related to the "performance of any actual or pretended police duties" (Johnson v. Hackett, 937). In sum, verbal identification usually invokes the color of law requirement, particularly if it is coupled with additional indicators of police authority. Courts hold that the mere presence of a police uniform or a police issued weapon may not be enough to trigger the color of law requirement (Barna v. City o f Perth Amboy; Bonsignore v. City o f New York, 683 F.2d 635, 1982). Officers who wear police uniforms, show police weapons, drive marked squad cars, and investigate crimes, however, identify themselves as law enforcement offi-

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cials and act under color of law (Yang v. Hardin, 37 F.3d 282, 1994).

ACTING PURSUANT TO D E P A R T M E N T A L CUSTOMS AND POLICIES Under Color o f Law The policies of police agencies also are relevant in deciding whether an officer acts under color of law. Because some courts have held that a rogue officer may not act under color of law if the department removes the of_ ficer's lawful authority, departments should not hesitate to remove, suspend, or terminate unfit officers. Departmental polices that mandate officers are on duty twenty-four hours per day may be interpreted to mean that all officer deeds, activities, and behaviors are conducted in the officer's official capacity as a law enforcement agent and, hence, under color of law. Such was the case in Revene v. Charles County Commissioners (882 F.2d 870, 1989), in which off duty and plainclothed Officer Foster pulled into Revene's driveway where the two had an altercation, resulting in Officer Foster fatally shooting Revene. In holding that the officer acted under color of law, the United States Court of Appeals for the Fourth Circuit gave significant weight to the Policy Manual for Charles County, which says that all officers are on duty twenty-four hours per day. This case is significant because it shows that departmental policies and agency procedural manuals may potentially make all officer actions under color of law (see, also, Davis v. Murphy, 559 E2d 1098, 1977). Agency policies and customs also are an issue when off-duty, plainclothes officers invoke official police powers while driving their personal vehicles. An illustrative case is Stengel v. Belcher (522 F.2d 438, 1975), in which evidence showed that Officer Belcher was off duty, in plain clothes, and equipped with mace and a .32 caliber revolver, both of which the police department required officers to possess twenty-four hours per day. The United States Court of Appeals for the Sixth Circuit upheld

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jury verdicts for the plaintiffs, ruling that because the mace and firearm used in the altercation were police issued and were required to be carried at all times, the officer acted outside the scope of lawful police authority, but did so under color of state law. Departments should train officers who work for private security companies not to invoke their police powers or identify themselves as law enforcement agents unless they need to perform an official police duty. In deciding whether an officer acts under color of law, courts also consider whether the police agency has involved itself in a substantial way in private police work ( Williams v. United States). While not controlling, the degree of involvement in the private security industry is considered, along with other facts, in determining the color of law issue. A court has not said that departmental involvement alone was enough to trigger a blanket finding that all the activities of their off-duty officers were under color of law, but the department's involvement is a significant factor courts consider. Departmental involvement may manifest itself in various forms, including if the department (1) has a cooperative relationship with private merchants who employ their off-duty officers, (2) alters work schedules to accommodate offduty employment, (3) establishes policies for its off-duty security officers to follow, (4) helps its officers secure off-duty private security employment, (5) monitors its off-duty private security employees, and (6) allows merchants who employ off-duty police officers to complete paperwork in lieu of a police report or an official police investigation (Vaughn and Coomes, 1994). As always, courts look to the nature of the officer's actions when deciding whether the officer acted under color of law. That said, when a public function is assumed by private parties, the closer link between police departments and private merchants, the more likely courts will hold that officers are acting under color of law. 3° Although "there must be some evidence of a pre-existing plan between police" and private persons before their activities are under color of law (Davis v. Carson Pirie Scott & Company, 530 ESupp. 802, 1982), 3~ "questions of

'state action' arise when the state has involved itself in the activity under scrutiny or when a private entity has of its own volition assumed a state or public function" (Greco v. Orange Memorial Hospital Corporation, 513 F.2d 878-79, 1975). In Myatt v. City o f Chicago (816 F.Supp. 1259, 1992), for example, police officers worked off duty as private security guards for a college. In holding that the officers' actions were conducted under color of law, the United States District Court for the Northern District of Illinois said that there was a close relationship between the college and the police department; the department coordinated efforts for off-duty officers to work security at the college. 32

Not Under Color o f Law Agencies can insulate themselves from liability if they remove an incompetent officer's legal authority before the officer violates a citizen's rights. In these cases, the decisive issue is whether the department instituted proper proceedings to strip or remove the officer's legal police powers before the wrongdoing occurred. Such was the case in Gibson v. City o f Chicago (1512), in which an officer on the Chicago Police Department was placed on medical leave because he was diagnosed with "impulse control disorder, a condition that frequently drove [him] to use excessive force when carrying out his police duties." A few months later, the officer killed a neighbor with his police firearm, which he refused to give up at the time of his suspension. The United States Court of Appeals for the Seventh Circuit held that the case "turns on the legal effect of t h e . . , order directed [at the officer] not to carry a weapon or exercise any police powers" (Gibson v. City o f Chicago, 1517). The court added that, notwithstanding the fact that the decedent was shot with a police officer's service revolver, the officer did not misuse police authority because he did not have any authority to misuse. 33 In sum, several courts hold that all actions of police officers are conducted under color of law if a departmental policy mandates that officers are always on duty (Stevenson v.

Police Civil Liability

State, 403 A.2d 812, 1979). 34 These courts opine that departmental policies define all ofricer actions as official and under color of law. Given these legal realities, departments should carefully consider whether twenty-four hour on-duty policies continue to be justified in the current legal environment under which police officers operate. If departments have a policy that requires off-duty officers to be armed, then the department must take steps to ensure that those officers are properly trained. Moreover, because there are some situations in which off-duty officers should not invoke their police authority, departments should carefully scrutinize rules that require law enforcement agents to engage every criminal situation that they personally observe. Situations involving diminished capacity, for example, whether induced by excessive drinking or psychological or physiological reasons, places unrealistic and unnecessary demands on officers who at certain times clearly should not invoke state police power. Case law also shows that departments need to carefully evaluate their programs which seek to place their off-duty officers with private security employment. The nature of that cooperative relationship between the department and the private security

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company is frequently used, along with other factors, in determining if the actions of offduty officers, working as private security officials, are under color of law. To the extent departments promulgate policies that make the actions of off-duty officers under color of law, they inadvertently expose officers to increased risk of police civil liability. Finally, agencies might be able to insulate themselves from liability if they remove an incompetent officer's legal authority before the officer violates citizens' rights. In these ways, agency policies and customs may be used to render a rogue officer's conduct not under color of law.

SUMMARY OF CASE LAW This article identifies the specific factors that courts consider in determining whether the law enforcement officer acts or does not act under color of law. Table 1 divides the factors into two broad areas: (1) factors that lead courts to determine that the police were acting under color of law and (2) factors that lead courts to determine that the police were not acting under color of law. Courts consider the totality of circumstances in deciding the color

TABLE 1 FACTORS COURTS CONSIDER WHEN DECIDINGTHE COLOR OF LAW ISSUE

Under Color of Law

If officers identify themselves as law enforcement agents If officers perform duties of a criminal investigation If officers file official police documents If officers attempt or make an arrest If officers invoke their police powers outside their lawful jurisdiction If officers settle a personal vendetta with police power If officers display or use police weapons or equipment If officers act pursuant to a state statute or city ordinance If a departmental policy mandates that officers are always on duty If officers intimidate citizens from exercising their rights If the department supports, facilitates, or encourages the off-duty employment of its officers as private security personnel

Not Under Color of Law

If officers' inaction does not constitute state action If officers commit crimes in a personal dispute without invoking police power If officers act as federal agents If officers report the details of alleged crimes as private citizens If officers work for a private security company and do not identify themselves as law enforcement personnel If officers do not invoke police powers If departments remove the officers' lawful authority

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of law issue. Although one factor alone may not lead to the conclusion that an officer acted under color of law, courts are more likely to hold officer's actions under color of law when multiple indicators of state-sanctioned authority are present, The more personal the incident and the fewer signs of police authority, the less likely courts hold officer action was taken under color of law. 35

CONCLUSION Before Monroe v. Pape, police officers generally were immune from civil liability suits under Section 1983 because officers who acted outside the scope of their employment were not acting under color of law. Thus, preM o n r o e case law held that officers who violated departmental policies or laws were not acting under color of law. That changed in 1961 when the Supreme Court decided M o n roe, which held that officers were acting under color of law even if those actions were outside the scope of their employment. Since Monroe, there has been a growing body of scholarly research on police civil liability. Of the two essential elements of Section 1983, previous researchers have exclusively focused on violations o f federally guaranteed rights. This is ironic because reviewing courts must first make a determination that the officer acted under color of law before addressing whether the officer's behavior violated the citizen's rights. Simply stated, without a showing that an officer's behavior was conducted under color of law, Section 1983 liability cannot attach, regardless of the degree to which federally guaranteed rights are violated. Policymakers and police administrators should take note of the situations when officers act under color of law and devise appropriate policies and training programs to insulate individual officers, supervisors, and their departments from potential police civil liability. Policies that require officers to carry firearms or other weapons twenty-four hours per day have been key in finding that police officers act under color of law. Departments should define official police business as narrowly as

possible so that officers are r.ot operating in their official capacity twenty-four hours per day. Departments should train officers not to invoke police authority except when clearly performing a police function. Agencies should also carefully monitor the off-duty moonlighting activities of their officers, ensuring that officers do not invoke police authority in situations that are inappropriate. As always, the best defense to a claim of police civil liability is regular training and certification programs for line and supervisory personnel. Policy and procedure manuals must be routinely updated with contemporary court cases and statutes (Moore and del Carmen, 1994). All members of the agency must know police policies and implement them in good faith. The more activities a department defines as nonpolice business and the more training officers receive in how to act when off duty and when moonlighting, the less chance of an officer's behavior being characterized as under color of law. NOTES 1. Title 18 of the U.S. Code, Section 242. Criminal liability for deprivation of civil rights was passed on April 9, 1866. 2. Title 42 of the U.S. Code, Section 1983. Civil liability for deprivation of civil rights was passed on April 20, 1871. 3. Courts agree that the phrase under color o f law is s y n o n y m o u s for actions brought under Sections 242 and 1983. See Canty v. City o f Richmond, Va., Police Department (383 F.Supp. 1398, 1974) which states, "[The] phrase 'under color of law' means the same thing in statute which makes criminal the deprivation of civil rights under color of law as it does in statute which provides for civil action against persons who deprive one of civil rights under color of law"; and United States v. Price (383 U.S. 794, 1966) which states, "Under color of law means the same thing in Section 242 that it does in the civil counterpart of Section 242, 42 U.S.C. Section 1983." See, also, Adickes v. S. H. Kress and Company (398 U.S. 144, 1970). But see Polk County v. Dodson (454 U.S. 325, 1981) holding that a "public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding" for purposes of Section 1983. A public defender, however, does act under color of state law for purposes of 18 U.S.C. Section 242 (Wardell, 1983; McCune, 1982) when "extorting payment from clients' friends or relatives" (Polk at 325, citing United States v. Senak, 477 F.2d 304, 1973). 4. This case involved a criminal prosecution under Section 242.

Police Civil Liability

5. Relief for actions taken under color of federal law are actionable under a Bivens action (see R o w e v. State o f Tennessee, 609 F.2d 259, 1979); however, if federal agents act "in complicity with state officials, and the injury to the plaintiffs was perpetrated under color of state law, the federal officials are subject to suit under" Section 1983 (Hampton v. Hanrahan, 522 F.Supp. 146, 1981). See, for example, Brown v. State's Attorney (783 ESupp. 1149, 1992), in which a federal probation officer was held to be acting under color of state law in an alleged conspiracy with local police officers. 6. See A & A Concrete, Inc. v. White Mountain Apache Tribe (676 F.2d 1330, 1982), which held that deputies were acting in their official capacities and under color of state law when they reached an agreement to serve court papers outside the reservation for the Indian tribal court. 7. Although the concepts "state action" (Flagg Brothers v. Brooks, 436 U.S. 149, 1978) and "color of law" are separate and distinct, the "Supreme Court has recently employed the terms interchangeably" (Little, McPherson, and Healy, 1985:569), saying that "the t w o . . . c a n n o t b e . . . easily disentangled ] a n d ] . . . are obviously related" (Lugar v. Edmonson Oil Co., 928). For the purposes of this article, however, the concepts are used interchangeably because when "the d e f e n d a n t is a public offic i a l . . , there is no distinction between state action and action under color of state law" (Lugar v. Edmonson Oil Co., 928). 8. See Kottcamp v. Fleet Real Estate Funding (783 P.2d 171, 1989), in which the Supreme Court of Wyoming held that the mere participation by a sheriff in a mortgage foreclosure "was not significant enough to constitute state action." See, also, Torres v. First State Bank o f Sierra County (558 F.2d 1322, 1978), in which the Tenth Circuit held that the actions of a deputy sheriff were not under color of law when the deputy accompanied a bank official to the sight of the repossession, served court papers involving the repossession, and did nothing more. But see Walker v. Walthall (588 P.2d 863, 1978), where the Court of Appeals of Arizona held that the mere presence of a law enforcement official at a repossession constituted state action. 9. In Stone Machinery Company v. Kessler (653), the debtor did not believe he could "disregard an order of the sheriff" after the sheriff told him that "we come to pick up the tractor." 10. See Price v. Baker (693 F.2d 952, 1982), in which the Tenth Circuit held that the sheriff's wife did not act under color of law, although she was sitting in a patrol car at the time she struck the plaintiff in the mouth. 11. See Kelm v. Hyatt (44 F.3d 415, 1995), in which the Sixth Circuit held that police officers do not act under color of law when responding to requests from a private party to enforce a court protection order. 12. For a similar outcome, see United States v. Coleman (628 F.2d 961, 1980), in which the Sixth Circuit found no state action where two police officers parked nearby while a creditor's agent repossessed a truck whose owner was absent. See, also, Haverstick Enterprises v. Financial Federal Credit, in which the Sixth Circuit held that

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an officer did not act under color of law when the officer's purpose at the repossession was to maintain peace. 13. A blackjack is "a narrowleather strip, weighted on one end with a metal type substance, usually held in the hand by a wrist strap and swung upon the intended person or target" (Manning v. Jones, 1233). 14. For a similar situation, see Basista v. Weir (340 F.2d 80-81, 1965) where the Third Circuit held that an officer acted under color of law when "he vented his ill feelings toward [the plaintiff] by subjecting him to a physical beating, to humiliation before his neighbors, and to incarceration, all under color of a policeman's badge." 15. See Rembert v. Holland (735 F.Supp. 736, 1990) holding that an off-duty correctional officer who demanded sexual favors from an inmate "was not exercising power conferred by state law, but was pursuing his own personal interests"; and Blomberg v. Schneiderheinz (632 F.2d 699, 1980) holding that an on-duty sheriff who assaulted process servers for serving the sheriff with a summons acted under color of law "if the suit was against [the sheriff] in his official capacity," but "if the suit was against [the sheriff] in his private capacity," the assault was not conducted under color o f law. 16. A similar situation arose in Bonsignore v. City o f N e w York, in which the Second Circuit held that an offduty officer who shot his wife with his off-duty weapon was not conducting official police business and was not acting under color of law, even though the city required all officers to carry off-duty weapons and did not institute a screening procedure to determine their fitness. See, also, Barna v. City o f Perth A m b o y , in which the Third Circuit held that the officer did not act under color of law when he improperly used a police nightstick to subdue his brother-in-law; the dispute was personal and familial and not official police business. But see Rivera v. La Porte where the Second Circuit held that the officer acted under color of law when he used a police firearm to beat the plaintiff. Rivera is distinguished from Bonsignore and Barna because the officer in Rivera arrested the plaintiff after using the police weapon. 17. See L o p e z Navarro v. Otero De R a m o s (797 F.Supp. 87, 1992), holding that a territorial ordinance requiring prison guards to carry departmentally issued weapons at all times m a y make guards' off-duty firearm use action taken under color of law. 18. See Woodward & Lothrop v. Hillary (598 A.2d 1142, 1991), in which department store security guards employed under a city code that granted them police powers were found to be acting under color of law when they accosted, tackled, handcuffed, punched, and escorted plaintiff to the store office where the police were called to transport the plaintiff to the stationhouse; Rojas v. A lexander's Department Store (654 F.Supp. 858, 1986) in which a department store detective, granted "all the duties of t h e . . , regular patrol" officer by a city ordinance, acts under color of law when handcuffing and arresting suspected shoplifters; Thompson v. M c C o y (425 F.Supp. 407, 1976) where a private security guard granted full police powers by state statute acts under color of law when arresting a customer; and DeCarlo v. Joseph Horne and Company (251 F.Supp. 935, 1966) in which it was found

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that a store detective given arrest power under state law acts under color of state law when making an arrest. 19. Some situations arise, however, when a federal law enforcement agent may act as a local law enforcement official. See Gini v. Las Vegas Metropolitan Police Department (40 E 3 d 1041, 1994) which implies that a close cooperative relationship between a state and a federal actor may render the federal agent's actions under color of state law for purposes of Section 1983. 20. See Anthony v, County o f Sacramento Sheriff's Department (845 F.Supp. 1396, 1994) where deputy sheriffs acted under color of state law when they harassed an African American deputy about her protests over illegal treatment afforded African American inmates. 21. In fact, m a n y cases turn on whether the performance of the on-duty police officer was in the capacity as a law enforcement official or a private citizen (Biotaberg v. Schneiderheinz). 22. Three courts, however, have focused on the location, but they represent a minority o f view. See Wallace v. Chrysler Credit Corporation (743 F.Supp. 1235, 1990) holding that a deputy sheriff in Tennessee who repossessed a vehicle in Virginia was not acting under color of law outside "his jurisdiction because he has no colorable authority there. Such persons are no different from any private citizen." See, also, Firman v. Abreu (691 F.Supp. 811, 1988) holding that officers outside their jurisdiction cannot act under color of law, but only as private citizens; and Barna v. City o f Perth A m b o y suggesting that offduty officers outside their jurisdiction cannot act under color of law. 23. See Brzozowski v. Randall(281 ESupp. 31 I, 1968), in which the United States District Court for the Eastern District of Pennsylvania held that although the officers "were outside their jurisdiction, and hence, patently without actual authority to effect an arrest," the "apprehension, transportation, and subsequent arrest were effected" under color of law; Rambo v. Daley (851 F.Supp. 1222, 1994), in which the United States District Court for the Northern District of lllinois held that Illinois police officers did act under color of law when they engaged a motorist in hot pursuit, crossed the Indiana state line, arrested the motorist, and transported the motorist back to Illinois; and Wirth v. Surles, in which the Fourth Circuit held that although a state trooper from South Carolina circumvented extradition procedures by crossing into Georgia, arresting an armed robber, and transporting him back to South Carolina, he acted under color of law. See, also, United States v. Trunko (189 F.Supp. 559, 1960). 24. See Brown v. Chaffee (612 F.2d 497, 1979) in which it was found that a sheriff does not act under color of state law when defending a personal lawsuit. 25. See Woodwardv. City o f Worland (977 F.2d 1400I, 1992), in which the Tenth Circuit held that the officers did not invoke their police powers when they sexually harassed three female dispatchers because they had no "control or authority over the plaintiffs" and because they did not "invoke state position or authority." 26. See Mclnerney v. City and County o f San Francisco (668 F.Supp. 1352, 1986), in which an off-duty, plainclothes police officer did not identify himself as a law

enforcement official until the plaintiff became angry and indicated that he was calling the police. The United States District Court for the Northern District of California held that the officer did not invoke any police power in the brief encounter with the plaintiff; hence, the officer did not act under color of law. 27. A single utterance that an individual is a law enforcement officer m a y not be enough to trigger the color of law requirement. For example, see Hill v. Barbour, in which an off-duty deputy sheriff's announcement, "Sheriff's office," was not a police identification, meaning that the "mere assertion that one is a state officer does not necessarily mean that one acts under color of state law" (Gibson v. City o f Chicago, 1516). 28. See Nishiyama v. Dickson County (814 F.2d 277, 1987), in which the Sixth Circuit held that a sheriff and deputy acted under color of law when they allowed a convicted felon to drive a police car unsupervised. 29. But see Crowder v. Jackson (527 F.Supp. 1004, 1981), which suggests that moonlighting officers who wear their police uniforms m a y be acting under color of law. 30. See United States v. McGreevy (652 E2d 849, 1981), in which a full-time police officer who worked part-time as a security executive for Federal Express did not act under color of state law when evidence did not show that there was a cooperative relationship between law enforcement authorities and Federal Express to intercept drugs. 31. A "city's policy of allowing police to wear their uniforms while they were off-duty and employed by others as private security guards could not render a city liable for any violations of civil rights engaged in by an off-duty officer, absent an allegation that the city exercised some supervisory function over private employment" (Kasarda v. Tomasch, 530 F.Supp. 1347, 1982). 32. See, also, Traver v. Meshriy (627 F.2d 938, 1980) where the Ninth Circuit held that the officer was participating in the police department's "secondary hiring prog r a m " in which officers were selected for o f f - d u t y employment; hence, the officer acted with police authority and under color of law. 33. See Bauer v. City o f Chicago (484 N.E.2d 422, 1985), in which the Appellate Court of Illinois held that the officer acted as a private citizen and not a law enforcement agent because departmental regulations prohibited suspended officers from official police action, 34. But see Barna v. City o f Perth Amboy (818) which holds that the policy alone was "insufficient indicia of state authority" to conclude that the off-duty officer acted under color of law. 35. See llama v. City o f Perth Amboy, in which use of a police-issued nightstick was not enough show of police authority to render the officers' actions under color of law because they did not arrest a suspect, identify themselves as law enforcement agents, say they were acting pursuant to official police business, or otherwise invoke their police authority. In Yang v. Hardin, however, the on-duty officers were acting under color of law when they brandished police weapons, drove a marked squad car, wore police uniforms, and investigated a crime scene.

413

Police Civil Liability

REFERENCES Barrineau, H. E. (1994). Civil liability in criminal justice. 2nd ed. Cincinnati, OH: Anderson. Barrineau, H. E., and Dillingham, S. D. (1983). Section 1983 litigation: An effective remedy to police misconduct or an insidious federalism? Southern Journal o f Criminal Justice 8 (2): 126-45. Civil rights act: Emergence of an adequate federal civil remedy? (1951). Indiana Law Journal 26:361-79. del Carmen, R. V. ( 1991). Civil liabilities in American policing: A text for law enforcement personnel. Englewood Cliffs, N J: Brady. del Carmen, R. V. (1993). Civil liabilities in law enforcement: Where are we and where should we go from here? American Journal o f Police 12(4):87-99. Developments in the law: Section 1983 and federalism. (1977). Harvard Law Review 90:1133-361. Eisenberg, T., and Schwab, S. (1987). The reality of constitutional tort litigation. CornellLaw Review 72:64195. Gressman, E. (1952). The unhappy history of civil rights legislation. Michigan Law Review 50:1323-358. Judge Spencer Roane of Virginia: Champion of states' rights- Foe of John Marshall. (1953). Harvard Law Review 66:1242-259. Kappeler, S. K., and Kappeler, V. E. (1992). A research note on Section 1983 claims against the police: Cases before the federal district courts in 1990. American Journal o f Police 11(1):65-73. Kappeler, V. E. (1993). Critical issues in police civil liability. Prospect Heights, IL: Waveland. Kappeler, V. E., and del Carmen, R. V. (1990a). Police civil liability for failure to arrest intoxicated drivers. Journal o f Criminal Justice 18:117-31. Kappeler, V. E., and del Carmen, R. V. (1990b). Legal issues in police negligent operation of emergency vehicles. Journal o f Police Science and Administration 17(3):163-75. Kappeler, V. E., Kappeler, S. F., and del Carmen, R. V. (1993). A content analysis of police civil liability cases: Decisions of the federal district courts, 1978-1990. Journal o f Criminal Justice 21:325-37. Kappeler, V. E., Vaughn, M. S., and del Carmen, R. V. (1991). Death in detention: An analysis of police liability for negligent failure to prevent suicide. Journal o f Criminal Justice 19:381-93. Libby, S. (1992). When off-duty officials act under color of state law for the purposes of Section 1983. Memphis State University Law Review 22:725-54. Little, J. W., McPherson, J. K., and Healy, W. P. (1985). Section 1983 liability of municipalities and private entities operating under color of municipal law. Stetson Law Review 14:565:609. Low, P. W., and Jeffries, J. C. (1994). Civil rights actions: Section 1983 and related statutes. 2nd ed. Westbury, NY: Foundation Press. McCune, E P. (1982). Public legal service: Immunity. University o f Cincinnati Law Review 51:724-33. Moore, E., and del Carmen, R. V. (1994). To have or not to have a handbook: The legal effect of employee handbooks on law enforcement agencies. Journal o f Criminal Justice 22:205-13. Skolnick, J. H., and Fyfe, J. J. (1993). Above the law: Police and the excessive use of force. New York: Free Press.

Vaughn, M. S. (1994). Police civil liability for abandonment in high crime areas and other high risk situations. Journal o f Criminal Justice 22:407-24. Vaughn, M. S., and Coomes, L. F. (1994). The liability of moonlighting: Are police officers employed as security guards acting under color of law? Police Liability Review 6:6-9. Wardell, M. J. (1983). Section 1983: A change in the meaning of under color of law: Polk County v. Dodson. Arizona Law Review 25:151-75. Weinberg, L. (1991). The Monroe mystery solved: Beyond the unhappy history theory of civil rights litigation. Bringham Young University Law Review 1991:737-65. Winter, S. L. (1992). The meaning of under color of law. Michigan Law Review 91:323-418. Zagrans, E. H. (1985). Under color of what law: A reconstructed model of Section 1983 liability. Virginia Law Review 71:499-598.

CASES CITED A & A Concrete, Inc. v. WhiteMountain Apache Tribe, 676 F.2d 1330 (9th Cir. 1982), appeal after remand, 781 F.2d 1411 (9th Cir.), cert. denied, 476 U.S. i 117 (1986). Adickes v. S. H. Kress and Company, 398 U.S. 144 (1970). Alvarado v. City o f Dodge City, 708 P.2d 174 (Kan. 1985). Amoakohene v. Bobko, 792 F.Supp. 605 (N.D. I11. 1992). Anthony v. County o f Sacramento Sheriff's Department, 845 F.Supp. 1396 (E.D. Cal. 1994). Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976). Asmar v. Keilman, 756 F.Supp. 332 (E.D. Mich. 1991). Barna v. City ofPerth Amboy, 42 E3d 809 (3rd Cir. 1994). Barney v. City o f New York, 193 U.S. 430 (1902). Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). Bauer v. City o f Chicago, 484 N.E.2d 422 (I11.App. 1 Dist. 1985). Bivens v. Six Unknown Named Agents o f the Federal Bureau o f Narcotics, 403 U.S. 388 (1971). Black v. Stephens, 662 F.2d 181 (3rd Cir. 1981), cert. denied, 455 U.S. 1008, rehearing denied, 456 U.S. 950 (1982). Blomberg v. Schneiderheinz, 632 F.2d 698 (8th Cir. 1980). Blum v. Yaretsky, 457 U.S. 991 (1982). Bonsignore v. City o f New York, 683 F.2d 635 (2nd Cir. 1982). Brandon v. Allen, 516 F.Supp. 1355 (W.D. Tenn. 1981). Briscoe v. LaHue, 663 F.2d 713 (7tb Cir. 1981), aft'd, 460 U.S. 325, cert. denied, 460 U.S. 1037 (1983). Brown v. Chaffee, 612 F.2d 497 (10th Cir. 1979). Brown v. State Attorney, 783 F.Supp. 1149 (N.D. Ill. 1992). Brzozowski v. Randall, 281 F.Supp. 306 (E.D. Pa. 1968). Calhoun v. Doster, 324 F.Supp. 736 (M.D. Ala. 1971).

414

M . S . VAUGHN and L. F. COOMES

Cannon v. City and County o f Denver, 998 F.2d 867 (10th

Keller v. District o f Columbia, 809 F.Supp. 432 (E.D. Va.

Cir. 1993).

1993).

Canty v. City o f Richmond, Va., Police Department, 383

Kelm v. Hyatt, 44 F.3d 415 (6th Cir. 1995).

F.Supp. 1396 (E.D. Va. 1974), aff'd, 526 F.2d 587 (4th Cir. 1975), cert. denied, 423 U.S. 1062 (1976).

Kotteamp v. Fleet Real Estate Funding, 783 P.2d 170

Catlette v. United States, 132 F.2d 902 (4th Cir. 1943). Chicago's Last Department Store v. Indiana Alcoholic Beverage Commission, 161 F.Supp. 1 (N.D. Ind. 1958). Costa v. Frye, 588 A.2d 97 (Pa. Cmwlth. 1991). Crowder v. Jackson, 527 F.Supp. 1004 (W.D. Pa. 1981).

(Wyo. 1989). Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980). Lopez Navarro v. Otero De Ramos, 797 F.Supp. 87 (D.

Puerto Rico 1992). Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Lusby v. T. G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir.

Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977).

1984), vacated on other grounds and remanded for reconsideration, 474 U.S. 805 (1985), adhered to on remand, 796 F.2d 1307 (10th Cir.), cert. denied, 479 U.S. 884 (1986).

DeCarlo v. Joseph H o m e and Company, 251 ESupp. 935

Manning v. Jones, 696 F.Supp. 1231 (S.D. Ind. 1988).

Davis v. Carson Pirie Scott & Company, 530 F.Supp. 799

(N.D. I11. 1982).

(W.D. Pa. 1966). Delcambre v. Delcambre, 635 F.2d 407 (5th Cir. 1981). Draeger v. Grand Central, Inc., 504 F.2d 142 (10th Cir.

1974). Edwards v. Vasel, 349 F.Supp. 164 (E.D. Mo.), aff'd, 469

F.2d 338 (8th Cir. 1972). Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989).

Malone v. County o f Suffolk, 968 F.2d 1480 (2nd Cir.

1992). Martinez Correa v. Lopez Feliciano, 759 F.Supp. 947 (D.

Puerto Rico 1991). Mclnerney v. City and County o f San Francisco, 668

F.Supp. 1352 (N.D. Cal. 1986). Menchaca v. Chrysler Credit Corporation, 613 F.2d 507

Firman v. Abreu, 691 F.Supp. 811 (S.D.N.Y. 1988).

(5th Cir.), cert. denied, 449 U.S. 953 (1980).

Flagg Brothers v. Brooks, 436 U.S. 149 (1978).

Monroe v. Pape, 365 U.S. 167 (1961), overruled on other grounds, Monell v. Department o f Social Services, 436

Gibson v. City o f Chicago, 910 F.2d 1510 (7th Cir. 1990).

U.S. 658 (1978).

Gini v. Las Vegas Metropolitan Police Department, 40

Mosier v. Robinson, 722 F.Supp. 555 (W.D. Ark. 1989).

F.3d 1041 (9th Cir. 1994).

Myatt v. City o f Chicago, 816 F.Supp. 1259 (N.D. I11.

Greco v. Guss, 775 F.2d 161 (7th Cir. 1985).

1992).

Greco v. Orange Memorial Hospital Corporation, 513

Nishiyama v. Dickson County, 814 F.2d 277 (6th Cir.

F.2d 873 (5th Cir. 1975). Griffin v. Maryland, 378 U.S. 130 (1964).

1987). Norton v. Liddel, 620 F.2d 1375 (10th Cir. 1980).

Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975).

Nugent v. Sheppard, 318 F.Supp. 314 (N.D. Ind. 1970).

Hampton v. Hanrahan, 522 F.Supp. 140 (N.D. I11. 1981).

Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).

Hanson v. Larkin, 605 F.Supp. 1020 (D. Minn. 1985). Harris v. City o f Roseburg, 664 F.2d 1121 (9th Cir. 1981). Haverstick Enterprises v. Financial Federal Credit, 32 F.3d

Payne v. Government o f District o f Columbia, 559 F.2d

809 (D.C. Cir. 1977).

989 (6th Cir. 1994).

Perkins v. Rich, 204 F.Supp. 98 (D. Del. 1962), aff'd, 316

Hibbing v. Sofarelli, 733 F.Supp. 1470 (M.D. Fla. 1990), aff'd, Sofarelli v. Pinellas County, 931 F.2d 718 (1 lth Cir.

Pitchell v. Callan, 13 F.3d 545 (2nd Cir. 1994).

1991).

Polk County v. Dodson, 454 U.S. 312 (1981).

F.2d 236 (3rd Cir. 1963).

Hill v. Barbour, 787 F.Supp. 146 (N.D. Ill. 1992).

Price v. Baker, 693 F.2d 952 (10th Cir. 1982).

Howerton v. Gabica, 708 F.2d 380 (9th Cir. 1983).

Rambo v. Daley, 851 F.Supp. 1222 (N.D. I11. 1994).

Hughes v. Meyer, 880 F.2d 967 (7th Cir. 1989), cert. de-

Rembert v. Holland, 735 F.Supp. 733 (W.D. Mich. 1990).

nied, 495 U.S. 931 (1990). Johnson v. Hackett, 284 F.Supp. 933 (E.D. Pa. 1968).

Revene v. Charles County Commissioners, 882 F.2d 870

(4th Cir. 1989).

Jones v. Gutschenritter, 909 F.2d 1208 (8th Cir. 1990).

Rivera v. La Porte, 896 F.2d 691 (2nd Cir. 1990).

Kasarda v. Tomasch, 530 F.Supp. 1346 (N.D. Ohio), ap-

Robinson v. Davis, 447 F.2d 753 (4th Cir. 1971), cert. de-

peal dismissed, 703 F.2d 563 (6th Cir. 1982).

nied, 405 U.S. 979 (1972).

Police Civil Liability

R o b y v. Skupien, 758 ESupp. 471 (N.D. Ill. 1991). Rojas v. Alexander's Department Store, 654 ESupp. 856

415

United States E x Rel. Smith v. Heil, 308 F.Supp. 1063

(E.D. Pa. 1970).

(E.D, N.Y. 1986).

United States v. H o f f m a n , 498 E2d 879 (7th Cir. 1974).

R o w e v. State o f Tennessee, 609 E2d 259 (6th Cir. 1979).

United States v. McGreevy, 652 F.2d 849 (9th Cir. 1981).

Saddler v. D'Ambrosio, 759 F.Supp. 5 (D. D.C. 1990).

United States v. Price, 383 U.S. 787 (1966).

Santine v. Roberts, 661 ESupp. 1165 (D. Del. 1987).

United States v. Senak, 477 E2d 304 (7th Cir.), cert. denied, 414 U.S. 856 (1973).

Screws v. United States, 325 U.S. 91 (1945) (plurality

opinion). Soldal v. C o o k County, 113 S.Ct. 538 (1992). Stengel v. Belcher, 522 E2d 438 (6th Cir. 1975), cert. dis-

missed as improvidently granted, 429 U.S. 118 (1976). Stevenson v. State, 403 A.2d 812 (Md. Ct. Spec. App.

United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991). United States v. Trunko, 189 F.Supp. 559 (E.D. Ark.

1960). Vallev. Stengel, 176 F.2d 697 (3rd Cir. 1949). Vickey v. Nessler, 553 A.2d 34 (N.J. Super A.D. 1989).

1979), aff'd, 413 A.2d 1340 (Md. App. 1980).

Walker v. Walthall, 588 P.2d 863 (Ariz. App. 1978).

Stone Machinery C o m p a n y v. Kessler, 463 P.2d 651

(W.D. Va. 1990).

(Wash. App. 1970). Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963).

Wallace v. Chrysler Credit Corporation, 743 ESupp. 1228 Warner v. Croft, 406 F.Supp. 717 (W.D. Ok. 1975). Watkins v. Oaklawn Jockey Club, 183 F.2d 440 (8th Cir.

Temple v. Albert, 719 F.Supp. 265 (S.D.N.Y. 1989).

1950).

Tennessee v. Garner, 471 U.S. 1 (1985).

Williams v. United States, 341 U.S. 97 (1951).

Thompson v. McCoy, 425 ESupp. 407 (D. S.C. 1976).

Wirth v. Surles, 562 E2d 319 (4th Cir. 1977), cert. denied, 435 U.S. 933 (1978).

Torres v. First State Bank o f Sierra County, 558 F.2d 1322

(10th Cir. 1978). Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980).

Woodward & Lothrop v. Hillary, 598 A.2d 1142 (D.C.

App. 1991). Woodward v. City o f Worland, 977 F.2d 1392 (10th Cir.

Tyler v. Parks, 331 F.Supp. 346 (E.D. Mo. 1971).

1992).

United States v. Classic, 313 U.S. 299 (1941).

W S B - T V v. Lee, 842 F.2d 1266 (1 lth Cir. 1988).

United States v. Coleman, 628 F.2d 961 (6th Cir. 1980).

Yang v. Hardin, 37 F.3d 282 (7th Cir. 1994).