Color of Law

• Author: Theodore Eisenberg
• Pages: 444-445

Page 444

Some CIVIL RIGHTS statutes proscribe only behavior "under color of" state law, and this requirement has played an important role in the development of FEDERAL PROTECTION OF CIVIL RIGHTS. Ironically, civil rights statutes have been interpreted in a manner that strips the color of law requirement of most of its contemporary significance. Judicial interpretation usually equates the color of law requirement with STATE ACTION. Because in most contexts in which the color of law requirement appears state action also is required, there is no obvious independent role for the color of law requirement.

The phrase "under color of ? law" appears in the nation's first civil rights act, the CIVIL RIGHTS ACT OF 1866. There it seemed to limit the act's coverage to actions taken pursuant to?under color of?the post-CIVIL WAR southern BLACK CODES. Subsequent revisions of the 1866 act and civil rights statutes modeled after it retained the concept as a way of limiting their coverage. It currently appears in section 242 of the federal criminal code, SECTION 1983, TITLE 42, UNITED STATES CODE, and section 1343(3) of the judicial code, the jurisdictional counterpart to section 1983.

In deciding what constitutes action under color of law, two extreme readings have been rejected. One view, advocated in dissenting opinions by Justices OWEN ROBERTS, FELIX FRANKFURTER, and ROBERT H. JACKSON in SCREWS V. UNITED STATES (1945) and by Justice Frankfurter in MONROE V. PAPE (1961), deems behavior to be under color of state law only when it is authorized by state law. In this view, any action by state officials in violation of state law cannot be under color of law. Where, as in Screws, a law officer murders his prisoner, in clear violation of state law, the officer's act would not be regarded as being under color of law and, therefore, would not be subject to civil or criminal penalties under federal statutes containing the requirement. This view of the color of law requirement would limit the significance of modern civil rights statutes, for much official behavior that civil rights litigants allege to violate the Constitution or federal law also violates state law. This view, however, would make the color of law requirement meaningful in the context of the times during which the requirement first appeared. During the post-Civil War era, much of the most disturbing official behavior, particularly behavior aimed at recently freed blacks, was...