VII. Color of State Law and State Action

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

VII. COLOR OF STATE LAW AND STATE ACTION

An essential ingredient of a § 1983 claim is that the defendant acted under color of state law.¹²⁹ Furthermore, the Fourteenth Amendment imposes limitations only upon state action; it does not reach purely private conduct, no matter how discriminatory, egregious, or harmful.¹³⁰ Neither § 1983 nor the Fourteenth Amendment reaches the conduct of federal officials or of purely private persons. "[P]ersons victimized by tortious conduct of private parties must ordinarily explore other avenues of redress."¹³¹

The Supreme Court and the lower courts have generally treated color of state law and state action as meaning the same thing.¹³² A finding that the defendant was engaged in state action means that the defendant acted under color of state law. If the defendant was not engaged in state action, the Fourteenth Amendment is not implicated, and there is normally no reason for a court to determine whether the defendant acted under color of state law. We say "normally" because a court would have to decide the color of state law issue in a § 1983 case in which the plaintiff asserted a federal statutory claim or asserted a constitutional claim not requiring state action—that is, the right of interstate travel or the Thirteenth Amendment right to be free of involuntary servitude.

A. State and Local Officials

The clearest case of state action (and action under color of state law) is a public official who carried out his official responsibilities in accordance with state law. Polk County v. Dodson¹³³ is the only Supreme Court decision that found that a state or local official who carried out her official responsibilities was not engaged in state action. The Court in Polk County held that a public defender's representation of an indigent criminal defendant was not under color of state law.¹³⁴ The Court reasoned that although the public defender is employed and paid by the state, when representing a criminal defendant she acts not for the state but as an adversary of the state, and not under color of state law but pursuant to the attorney-client relationship with undivided loyalty to her client.

In West v. Atkins,¹³⁵ the Supreme Court held that a private physician who provides medical services to prisoners pursuant to a contract with the state acts under color of state law. Unlike the public defender in Polk County, the prison physician is not an adversary of the state but acts on behalf of the state. West seems to have been based primarily upon the fact that the prison physician performs a governmental function and carries out the state's constitutional obligation of providing medical care to prison inmates.¹³⁶

1. Abuse of State Power

State and local officials who abuse their official power act under color of state law. The governing principle is that "[m]isuse 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' state law."¹³⁷

Courts often must determine whether an official abused governmental power or acted as a private individual (e.g., as an irate spouse). Although the issue arises with respect to a variety of public employees and conduct, it arises most frequently with respect to law enforcement officers who are alleged to have abused their official authority. One subset of these cases involves off-duty police officers. To determine whether an off-duty police officer acted under color of state law, courts consider such factors as whether an ordinance deemed the officer as being on duty for 24 hours, the officer identified himself as a police officer, the officer had or showed her service revolver or other police department weapon, the officer flashed his badge, the officer conducted a search or made an arrest, and whether the officer intervened in an existing dispute pursuant to police department regulations (as opposed to instigating a dispute).¹³⁸ When dealing with an on-duty or off-duty officer, whether the officer abused official authority or was acting as a private individual requires a fact-intensive determination.¹³⁹

B. State Action Tests

Courts frequently must determine whether a private party's involvement with state or local government justifies the conclusion that the party was engaged in "state action" for the purpose of the Fourteenth Amendment. The Supreme Court state action decisional law has advanced the following state action doctrines:

(a) symbiotic relationship
(b) public function
(c) close or joint nexus
(d) joint participation
(e) pervasive entwinement

The fact that these doctrines can be culled from the Supreme Court state action decisional law does not mean that all Supreme Court state action holdings have been based upon one of the doctrines. At times, the Supreme Court has found state action based upon ad hoc evaluations of a variety of connections between the private party and the state.¹⁴⁰ In other words, there are two lines of Supreme Court state action decisions. One line is fairly structured, analyzing the state action issue under one or more of the state action doctrines. Another line of decisions takes more of an ad hoc totality of the circumstances approach.

1. Symbiotic Relationship

The Supreme Court's decision in Burton v. Wilmington Parking Authority¹⁴¹ is often cited to support the principle that state action is present when the state and private party have a symbiotic relationship.¹⁴² The Court in Burton specifically held that the Eagle Restaurant, a private entity located in, and who had leased its space from, a municipal parking authority, was engaged in state action when it refused to serve an African American customer. Although the decision in Burton has not been overruled, the Supreme Court read Burton very narrowly as supporting a finding of state action only when the state profited from the private wrong.¹⁴³ Furthermore, the Supreme Court denigrated Burton as one of its "early" state action decisions containing "vague" "joint participation" language.¹⁴⁴

2. Public Function

Supreme Court decisions state that there is state action when a private party carries out a function that has been historically and traditionally the "exclusive" prerogative of the state.¹⁴⁵ This is a very demanding standard that § 1983 plaintiffs find very difficult to satisfy. While many functions may be historically and traditionally governmental functions, very few are "exclusively" governmental functions. Before the Supreme Court added "exclusively" to the...