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Thursday, September 05, 2019

Under color?

An interesting under color question. The officers were in disguise (and thus out of uniform) and presumably off-duty. But their personal vendetta arose from their professional conduct as police officers about which the citizen-victim had complained. Could they have done this but-for their official position? Being police officers did not enable the conduct. But being police officers is the only reason they had to vandalize this guy's property.

Posted by Howard Wasserman on September 5, 2019 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


A bar-room fight, off-duty police officers carrying state guns, the Court found Color of Law. Belcher v. Stengel, 429 US 118 (1976)

The officers vandalized the car with a belief/expectation that their status as police officers (and their manipulation of the police) would prevent them from being discovered/punished for the crime.
Collins v. Hardyman, 341 U.S. 651 (1951 explains the "sanctuary" test for "private violence" that will be deemed "color of law" (citing 42 USC 1985) https://www.casemine.com/judgement/us/5914cab2add7b049347fca0b

These Off-duty Police Officers conspired with police officers to intimidate/punish a person who came forward as a Witness and to Petition for Redress of his Grievances, and to hinder an investigation that would provide equal protection to persons. This brings there conspiracy within the literal scope of 42 USC section 1985(2 and 3):

(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;

(3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

See e.g., Selzer v. Berkowitz, and Learned Hand's opinion.

Posted by: Guy Asmartius | Sep 20, 2019 8:48:43 AM

That runs counter to the 4th Circuit decision that Jack cites. And while the victim's understanding and belief based on the officer's representations during an encounter is relevant to finding state action, that is not necessary. Imagine an officer, while on duty, used a department computer to mess without a private citizen (show that his property taxes were unpaid, precipitating foreclosure or something like that) without that citizen's knowing or ever finding out. I think the court would find state action there.

Posted by: Howard Wasserman | Sep 7, 2019 10:49:24 AM

The concept of being "under color of law" is that someone is representing (usually to the victim) that their actions are backed by the government.

Since during the crime, the officers didn't interact with the victim, I have to think there's no representation made that the state is backing them up on their petty revenge scheme. If they'd threatened him earlier, or left some calling card to let him know who he was messing with, then perhaps, but in this case it seems like they were acting as if both they and the victim knew they didn't have the backing of the government. No color of law.

Posted by: Derek Tokaz | Sep 6, 2019 3:16:20 PM

Reminds me of Rossignol v. Voohar (4th Cir. 2003) https://casetext.com/case/rossignol-v-voorhaar-4

Off-duty cops purposefully bought up all copies of a local newspaper early in the morning on election day. The cops hated the newspaper because it had been critical of the police force and would be endorsing candidates that would make changes. The Fourth Circuit found state action.

Posted by: Jack Preis | Sep 6, 2019 8:38:58 AM

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