"under Color Of" - What Does it Mean? - Richard H. W. Maloy

• Citation: Vol. 56 No. 2
• Publication year: 2005

"Under Color of—What Does It Mean?by Richard H.W. Maloy^*

I. Introduction

After reading the cases dealt with in this Article, I am reminded of the story of the old lady who lived on a hammock in the Everglades. Two census takers rowed out to her abode one day to obtain her statistics. When she asked them why they were there, they answered that they were trying to find out how many people live in the united States. 'You've come to the wrong place," she declared. "Why do you say that?" they asked. "Cause I don't know," was her response. If one is reading this article to find out the meaning of "under color of you have come to the wrong place; Cause I don't know.

Perhaps that statement is not quite correct, for I do know the meaning of "under color of as that phrase is used in the Civil Rights Acts. The phrase "under color of means the same thing as "state action" of

Fourteenth Amendment¹ lineage.² But that begs the question: What does "state action" mean?³ This Article explores both questions.

The Article searches for the meaning of "under color of as that phrase is used in the statutes (specifically, 42 U.S.C. Sec. 1983 and 18 U.S.C. Sec. 242),⁴ which impose civil and criminal penalties, respectively, for those who act "under color of"⁵ authority of the sovereign and for "state action" as that term is used in the cases applying Fourteenth Amendment protections. Some courts proclaim that "under color of" is a term of art used by Congress to differentiate those statutes that proscribe unconstitutional behavior by entities other than private persons. The concomitant principle to this jurisprudence is that the "private" person has a constitutional right to discriminate to the full extent of a person's will.⁶ As the United States Supreme Court stated in Edmonson v. Leesville Concrete Co.,⁷ "[wlith a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities."⁸ Therefore, the purpose of 42 U.S.C. Sec. 1983,⁹ 18 U.S.C. Sec. 242,¹⁰ and the Fourteenth Amendment," is to prevent the sovereign from depriving persons of their rights. The statutes and the constitutional amendment are¹¹ no shield against merely private conduct. . . ,"¹² The purpose of the statutory term "under color of and the phrase "state action," as used by the courts, is to prevent private deprivation from going uninhibited by tying the person who does the depriving, the "state actor," to the sovereign.

This Article does not consider the intriguing question of what is the "law" of "under color of law."¹³ Nor does the Article examine why some statutes proscribing unconstitutional behavior do not contain the "under color of legend.¹⁴ In addition, the Article does not consider statutes other than 42 U.S.C. Sec. 1983 and 18 U.S.C. Sec. 242, which contain the phrase "under color of."¹⁵

The Article is not primarily concerned with cases in which the person accused of discrimination is a police officer or some other employee of a public body¹⁶ acting in the course of their official duties.¹⁷ Such cases are discussed," of course, as they form part of the great, but unheralded debate in the law as to whether there are two meanings of "under color of,"¹⁸ acts performed by persons in their official capacity or acts performed by persons acting in "pretense of the law."¹⁹

In Part II the genesis of the subject civil rights statutes is reviewed." Part III examines the anatomy of those statutes. Part IV presents the United States Supreme Court's recent decisions concerning "under color of and "state action." The Conclusion attempts to summarize the work of this lexology.

II. The Genesis of 42 U.S.C. Sec. 1983 and 18U.S.C. Sec. 242

On April 9, 1865, a tall general officer of the Army of Northern Virginia, in full dress uniform with sash andjeweled sword, met a short general officer of the United States Army, dressed in private's blouse and trousers tucked into muddy boots. The meeting occurred in the home of Wilmer McLean at Appomattox Courthouse, Virginia. General Robert E. Lee surrendered his forces to General Ulysses S. Grant.²¹ What now? Well, now the war of rebellion²² was virtually over,²³ but at that moment, there were four million people²⁴ living in the southeastern part of the United States who had a new status. What were they to do with it? one author described what they did with it in these words:

When the enslaved Negroes were informed by their masters or by Federal agents or by rumor that they were free, their most general and immediate response to the news was to pick up and leave the home place to go somewhere else. Thus to the Negro just released from slavery,²⁵ freedom meant, first of all, the right to move. He changed his name and wandered away from the plantation.²⁶

Because the President who led his nation to victory was assassinated just seven days after the surrender at Appomattox,²⁷ and the presence of twenty million still hostile former "rebels" led to confrontations, the new freedom granted to four million men, women, and children who were on the move was far less than what might have been hoped for. The United States Supreme Court stated the plight of the "freedmen"in the following words:

They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.²⁸

on March 3, 1865, President Lincoln signed the Freedmen's Bureau Act of 1865 creating a Bureau of Freedmen, Refugees, and Abandoned Lands." The Bureau was "designed to see to it that the ex-slaves were established in their freedom so that they would have a real chance to care for themselves and learn social and economic independence."³⁰ This was a tall order because the United States Supreme Court in the Bred Scott decision³¹ had "delineated the constitutional community as more narrowly drawn than the territorial community."³²

The Thirteenth Amendment to the Constitution of the United States³³ was proposed to the legislatures of the thirty-six states by the Thirty-Eighth Congress on January 31, 1865. Ratification was completed on December 6, 1865, and on December 18, 1865, the Secretary of State reported in a proclamation that twenty-seven of the thirty-six states had ratified the proposed amendment.³⁴ The Thirteenth Amendment declared that "[nleither slavery nor involuntary servitude . . . shall exist within the United States, or any place . .." under their jurisdiction, except as punishment for a crime.³⁵

Soon after the ratification of the Thirteenth Amendment and exactly one year after Appomattox, Congress passed the first of several Civil Rights bills to come before the legislature, known as the Civil Rights Act of April 9,1866.³⁶ Section 2 of the Act, the first of the Civil Rights Acts to contain "under colorof,"³⁷ was a criminal statute, and hence, the precursor to the present 18 U.S.C. Sec. 242. Section 2 of the Civil Rights Act of 1866 provided that:

[A]ny person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor . . . ,³⁸

The Supreme Court in Blyew v. United States,³⁹ explained the raison d'etre of the Act. Justice William Strong wrote:

We cannot be expected to be ignorant of the condition of things which existed when the statute was enacted, or of the evils which it was intended to remedy. It is well known that in many of the States, laws existed which subjected colored men convicted of criminal offences to punishments different from and often severer than those which were inflicted upon white persons convicted of similar offenses. The modes of trial were also different, and the right of trial by jury was sometimes denied them. It is also well known that in many quarters prejudices existed against the colored race, which naturally affected the administration of justice in the State courts, and operated harshly when one of the race was a party accused. These were evils doubtless which the act of Congress had in view, and which it intended to remove. And so far as it reaches, it extends to both races the same rights, and the same means of vindicating them.⁴⁰

The Civil Rights Act of April 9, 1866,⁴¹ was re-enacted on May 31, 1870.⁴² On April 20, 1871, Congress added civil penalties by enacting the Ku Klux Klan Act.⁴³

The Fourteenth Amendment to the Constitution of the United States was proposed to the legislatures of the thirty-seven states by the same session of the Thirty-Ninth Congress that passed the Civil Rights Bill of 1866.⁴⁴ Ratification was completed on July 9, 1868, and on July 28, 1868, the Secretary of State reported in a certificate that twenty-eight of the thirty-seven states had ratified the amendment.⁴⁵ The first section of the amendment declared that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside [and] [n]o State shall make or enforce any law"⁴⁶ which abridges their privileges or immunities,⁴⁷ their due process rights,⁴⁸ or equal protection of the laws.⁴⁹ This...