Appellate Circuit

What is A Civil Rights Violation Under the Color of Law?

Color of law refers to an appearance of legal power to act that may operate in violation of law. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards.

LIT COMMENTARY

Color of law refers to an appearance of legal power to act that may operate in violation of law. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards. – Wikipedia.

Deprivation by Color of law is a violation of a person or people’s civil rights and does not require a violent act and may be prosecuted – even against judges and lawyers.

“That’s why it’s a federal crime for anyone acting under “color of law” to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means the person is using authority given to him or her by a local, state, or federal government agency.”- FBI.Gov.

Department of Justice, U.S. Attorney’s Office, 
District of New Mexico

FOR IMMEDIATE RELEASE

Wednesday, January 21, 2015

Former Rio Arriba County Sheriff Thomas R. Rodella Sentenced to Ten Years in Federal Prison for Criminal Civil Rights and Firearms Conviction

ALBUQUERQUE – Thomas R. Rodella, 53, the former Rio Arriba County Sheriff, was sentenced today by U.S. District Court Judge James O. Browning for his conviction on criminal civil rights and firearms charges. Rodella was sentenced to 37 months in federal prison for his deprivation of rights conviction and an additional 84 months for brandishing a firearm while committing the civil rights offense, for an aggregate sentence of 121 months of imprisonment. Rodella will be on supervised release for three years after completing his prison sentence. Rodella also was ordered to pay a $200,000.00 fine.

In announcing Rodella’s sentence, U.S. Attorney Damon P. Martinez said, “When he attacked a defenseless innocent civilian, Sheriff Rodella chose to abuse his power rather than uphold his oath to protect the public. The Justice Department will continue to vigorously investigate and prosecute officers who cross that line because they discredit the noble service of every other law enforcement officer and weaken the public’s trust in those who are sworn to protect them. I commend the prosecutors and investigators for their outstanding work on this case.”

“The American people hold their law enforcement officers to high standards, and those standards are even higher for the leaders of public safety agencies. Although the FBI realizes the majority of officers perform their duties in an exemplary and even heroic manner, we will not hesitate to investigate those who betray the public’s trust,”

said Special Agent in Charge Carol K.O. Lee of the FBI’s Albuquerque Division.

“I want to thank the FBI Special Agents and support staff who worked on this investigation, as well as the U.S. Attorney’s Office for a successful prosecution in this case.”

On Sept. 26, 2014, a federal jury found Rodella guilty of the crimes alleged in a two-count superseding indictment.

Both crimes arose out of a March 11, 2014 incident occurring in Rio Arriba County, N.M., during which Rodella engaged in an unjustified high-speed pursuit and unreasonable seizure of a victim identified as “M.T.”

Count 1 of the indictment charged Rodella with violating the victim’s civil rights by subjecting him to an unreasonable seizure while acting under color of law.

Count 2 charged him with brandishing a firearm during a crime of violence.

Rodella was the Sheriff of Rio Arriba County when the jury returned its guilty verdict. He resigned from his position as Sheriff on Sept. 29, 2014.

The trial evidence established that on March 11, 2014, Rodella and his son Thomas Rodella, Jr., who were in Rodella’s personal vehicle, engaged in an unjustified high-speed pursuit of the victim and used the vehicle to block the victim’s vehicle on a dead-end lane.

Rodella, who was not in uniform, jumped out of his vehicle with firearm in hand, entered the victim’s vehicle, and assaulted the victim with the firearm.

Rodella, Jr., dragged the victim out of his vehicle and identified the victim’s assailant as the Sheriff. When the victim requested to see Rodella’s badge, Rodella pulled the victim’s head up by his hair and slammed his badge into the victim’s face. The victim suffered injuries to his face and his hand as a result of the assault; the injury to the victim’s hand required surgical repair.

The evidence also established that Rodella instructed his deputies to arrest the victim and detain him at the Rio Arriba County Detention Center.

The victim was released from custody two days later after appearing before a state magistrate, and the charges against him were dismissed on March 26, 2014.

Deputies of the Rio Arriba Sheriff’s Office testified they did not conduct any investigation of the incident or prepare any reports until after the case was dismissed.

The case was investigated by the Albuquerque and Santa Fe offices of the FBI and was prosecuted by Assistant U.S. Attorneys Tara C. Neda and Jeremy Peña.

Component(s):
USAO – New Mexico
Updated January 26, 2015

Judge James Browning Denies Former Sheriff Tommy Rodella Early Release

Originally Published: Jan. 31, 2020  Republished by LIT: Nov. 28, 2020

Former Rio Arriba sheriff Tommy Rodella will serve the remaining five years of his sentence for violating a motorist’s civil rights, after a federal judge rejected his argument that a 2019 U.S. Supreme Court decision invalidated a portion of his sentence.

Through attorney Susan Clouthier, Rodella argued late last year that a June 2019 ruling in United States v. Davis that a portion of federal law offering a supplementary definition of a “crime of violence” was “unconstitutionally vague.”

In March 2014, Rodella and his son, Thomas Rodella Jr., chased down a motorist in a personal vehicle in a road rage incident before the then-sheriff—in plainclothes—pulled out the driver while brandishing a gun and slammed his badge into the man’s face. Deputies arrested the man.

Rodella’s use of a firearm during a crime of violence tacked on an additional mandatory seven years to his three year sentence for violating the man’s constitutional rights.

Judge James Browning agreed with U.S. prosecutors that the portion of federal law applied in Rodella’s case was the primary definition of “crime of violence” and not the supplementary definition found to be unconstitutional. Browning issued an order Jan. 23 dismissing Rodella’s motion to vacate his sentence, but acknowledging that the ruling could be applied retroactively.

Rodella unsuccessfully appealed his case in 2015. In early 2019, prior to the United States v Davis ruling, he attempted to vacate his sentence based on claims his trial attorney was ineffective and that the prosecution failed to disclose a 911 call beneficial to his defense.

Prosecutors stated that his attorney received and signed for the 911 call transcript, and that the trial attorney’s decision against using it as evidence was beneficial to Rodella’s defense.

Contrary to the U.S. Attorney’s Office argument that Rodella was too late to present the amended motion to vacate, Browning did rule that the new Supreme Court decision justified the filing.

The court held a final hearing on the motion to vacate Jan. 24, though the order to dismiss the proceedings was completed the day before. Rodella, who is married to former state representative Debbie Rodella, is currently incarcerated in a federal prison in Texas.

Title 18, U.S.C., Section 242 – Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Acts under “color of any law” include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under “color of any law,” the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties.

This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Edward Rene Charged and Bonded in TSU Pay-to-Play Scandal. Austin Lane Escapes Charges – To Date.

Former Texas Southern University Law School Asst Dean Edward Wayne Rene formally charged in August 2020. There has been no movement in the case at 228th Court, before Judge Frank Aguilar.

What’s the Score with Michael Quinn Sullivan’s Rebrand?

No sooner is Michael Quinn Sullivan, formerly of Empower Texans fined by Texas Ethics Commission about the fact that he’s not registered as a lobbyist – and as such not disclosed his donors – the PAC is dissolved.

No Bond for Threatening a Judge in Florida.

Judge Melissa Distler was the intended target of the vitriol every time, causing her distress and leaving her in fear for her safety.

Hafer v. Melo, 502 U.S. 21 (1991)

OCTOBER TERM, 1991

Syllabus

HAFER v. MELO ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No.90-681. Argued October 15, 1991-Decided November 5, 1991

After petitioner Hafer, the newly elected auditor general of Pennsylvania, discharged respondents from their jobs in her office, they sued her for, inter alia, monetary damages under 42 U. S. C. § 1983.

The District Court dismissed the latter claims under Will v. Michigan Dept. of State Police, 491 U. S. 58, 71, in which the Court held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability under § 1983.

In reversing this ruling, the Court of Appeals found that respondents sought damages from Hafer in her personal capacity and held that, because she acted under color of state law, respondents could maintain a § 1983 individual-capacity suit against her.

Held: State officers may be held personally liable for damages under § 1983 based upon actions taken in their official capacities. pp. 25-31.

(a) The above-quoted language from Will does not establish that Hafer may not be held personally liable under § 1983 because she “act[ed]” in her official capacity. The claims considered in Will were official-capacity claims, and the phrase “acting in their official capacities” is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury. Pp. 25-27.

(b) State officials, sued in their individual capacities, are “persons” within the meaning of § 1983. Unlike official-capacity defendants-who are not “persons” because they assume the identity of the government that employs them, Will, supra, at 71-officers sued in their personal capacity come to the court as individuals and thus fit comfortably within the statutory term “person,” cf. 491 U. S., at 71, n. 10.

Moreover, § 1983’s authorization of suits to redress deprivations of civil rights by persons acting “under color of” state law means that Hafer may be liable for discharging respondents precisely because of her authority as auditor general.

Her assertion that acts that are both within the official’s authority and necessary to the performance of governmental functions (including the employment decisions at issue) should be considered acts of the State that cannot give rise to a personal-capacity action is unpersuasive.

That contention ignores this Court’s holding that § 1983 was enacted to enforce provisions of the Fourteenth Amendment against those who carry a badge of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. Scheuer v. Rhodes, 416 U. S. 232, 243.

Furthermore, Hafer’s theory would absolutely immunize state officials from personal liability under § 1983 solely by virtue of the “official” nature of their acts, in contravention of this Court’s immunity decisions. See, e. g., Scheuer, supra. pp.27-29.

(c) The Eleventh Amendment does not bar § 1983 personal-capacity suits against state officials in federal court. Id., at 237, 238.

Will’s language concerning suits against state officials cannot be read as establishing the limits of liability under the Amendment, since Will arose from a suit in state court and considered the Amendment only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction. 491 U. S., at 66.

Although imposing personal liability on state officers may hamper their performance of public duties, such concerns are properly addressed within the framework of this Court’s personal immunity jurisprudence. pp.29-31.

912 F.2d 628, affirmed.

O’CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except THOMAS, J., who took no part in the consideration or decision of the case.

Jerome R. Richter argued the cause for petitioner. With him on the briefs was Goncer M. Krestal.

William Goldstein argued the cause for respondents.

With him on the brief was Edward H. Rubenstone. *

JUSTICE O’CONNOR delivered the opinion of the Court.

In Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), we held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability

* Richard Ruda filed a brief for the National Association of Counties et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Andrew J. Pincus, John A. Powell, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for Kenneth W. Fultz by Cletus P. Lyman; and for Nancy Haberstroh by Stephen R. Kaplan.

U.S. Supreme Court

Dennis v. Sparks, 449 U.S. 24 (1980)

No. 79-1186

Argued October 8, 1980

Decided November 17, 1980

449 U.S. 24

Syllabus

After a Texas state court’s injunction against respondents’ production of minerals from certain oil leases was dissolved by an appellate court as having been illegally issued, respondents filed suit in Federal District Court alleging a cause of action for damages under 42 U.S.C. § 1983 against the judge who issued the injunction, the corporation that had obtained the injunction, its owner, and the sureties on the injunction bond (one of whom is the petitioner).

Respondents claimed that the injunction had been corruptly issued as the result of a conspiracy between the judge and the other defendants, thus causing a deprivation of property without due process of law.

The District Court dismissed the action, holding that the judge was immune from liability in a § 1983 suit because the injunction was a judicial act within the jurisdiction of the state court, and that, with the dismissal of the judge, the remaining defendants could not be said to have conspired “under color” of state law within the meaning of § 1983.

The Court of Appeals agreed that the judge was immune from suit, but ultimately reversed as to the dismissal of the claims against the other defendants.

Held: The action against the private parties accused of conspiring with the judge is not subject to dismissal.

Private persons, jointly engaged with state officials in a challenged action, are acting “under color” of law for purposes of § 1983 actions.

And the judge’s immunity from damages liability for an official act that was allegedly the product of a corrupt conspiracy involving bribery of the judge does not change the character of his action or that of his coconspirators.

Historically at common law, judicial immunity does not insulate from damages liability those private persons who corruptly conspire with a judge.

Nor has the doctrine of judicial immunity been considered historically as excusing a judge from responding as a witness when his coconspirators are sued, even though a charge of conspiracy and judicial corruption will be aired and decided. Gravel v. United States, 408 U. S. 606, distinguished.

The potential harm to the public from denying immunity to coconspirators if the factfinder mistakenly upholds a charge of a corrupt conspiracy is outweighed by the benefits of providing a remedy

Page 449 U. S. 25

against those private persons who participate in subverting the judicial process and, in so doing, inflict injury on other persons. Pp. 449 U. S. 27-32.

604 F.2d 976, affirmed.

WHITE, J., delivered the opinion for a unanimous Court.

West v. Atkins, 487 U.S. 42 (1988)

U.S. Supreme Court
West v. Atkins, 487 U.S. 42 (1988)
West v. Atkins

No. 87-5096

Argued March 28, 1988

Decided June 20, 1988

487 U.S. 42

Syllabus

Respondent, a private physician under contract with North Carolina to provide orthopedic services at a state prison hospital on a part-time basis, treated petitioner for a leg injury sustained while petitioner was incarcerated in state prison.

Petitioner was barred by state law from employing or electing to see a physician of his own choosing.

Alleging that he was given inadequate medical treatment, petitioner sued respondent in Federal District Court under 42 U.S.C. § 1983 for violation of his Eighth Amendment right to be free from cruel and unusual punishment, relying on Estelle v. Gamble, 429 U. S. 97.

The court entered summary judgment for respondent, holding that, as a “contract physician,” respondent was not acting “under color of state law,” a jurisdictional prerequisite for a § 1983 action. The Court of Appeals ultimately affirmed.

Held: A physician who is under contract with the State to provide medical services to inmates at a state prison hospital on a part-time basis acts “under color of state law,” within the meaning of § 1983, when he treats an inmate. Pp. 487 U. S. 48-57.

(a) If a defendant’s alleged infringement of the plaintiff’s constitutional rights satisfies the state action requirement of the Fourteenth Amendment, the defendant’s conduct also constitutes action “under color of state law” for § 1983’s purposes, since it is “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U. S. 922, 457 U. S. 935, 457 U. S. 937.

Thus, a state employee generally acts under color of state law when, while performing in his official capacity or exercising his official responsibilities, he abuses the position given to him by the State. Polk County v. Dodson, 454 U. S. 312, distinguished. Pp. 487 U. S. 49-50.

(b) The Court of Appeals erred in concluding that defendants are removed from § 1983’s purview if they are professionals acting in accordance with professional discretion and judgment, and that professionals may be liable under § 1983 only if exercising custodial or supervisory authority.

The court’s analogy between respondent and the public defender in Polk County, supra, is unpersuasive. Pp. 487 U. S. 50-54.

(c) Respondent’s conduct in treating petitioner is fairly attributable to the State. The State has an obligation, under the Eighth Amendment

Page 487 U. S. 43

and state law, to provide adequate medical care to those whom it has incarcerated. Estelle, supra, at 429 U. S. 104; Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291, 293.

The State has delegated that function to physicians such as respondent, and defers to their professional judgment.

This analysis is not altered by the fact that respondent was paid by contract, and was not on the state payroll, nor by the fact that respondent was not required to work exclusively for the prison.

It is the physician’s function within the state system, not the precise terms of his employment, that is determinative.

Pp. 487 U. S. 54-57.

815 F.2d 993, reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, STEVENS, O’CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 487 U. S. 58.

LIT Note;

A criminal lawyer’s professional and ethical obligations require him to act in a role independent of and in opposition to the State. Id., at 318-319, 320. The Court accordingly concluded that when representing an indigent defendant in a state criminal proceeding, the public defender does not act under color of state law for purposes of § 1983 because he “is not acting on behalf of the State; he is the State’s adversary.” –West v. Atkins, 487 U.S. 42, 50 (1988)

Baxter v. Bracey, No. 18-1287 (June 15, 2020)

No. 18-1287.

06-15-2020

ALEXANDER L. BAXTER v. BRAD BRACEY, ET AL.

THOMAS, J., dissenting ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

The petition for a writ of certiorari is denied.

JUSTICE THOMAS, dissenting from the denial of certiorari.

Petitioner Alexander Baxter was caught in the act of burgling a house. It is undisputed that police officers released a dog to apprehend him and that the dog bit him. Petitioner alleged that he had already surrendered when the dog was released. He sought damages from two officers under Rev. Stat. §1979, 42 U. S. C. §1983, alleging excessive force and failure to intervene, in violation of the Fourth Amendment. Applying our qualified immunity precedents, the Sixth Circuit held that even if the officers’ conduct violated the Constitution, they were not liable because their conduct did not violate a clearly established right. Petitioner asked this Court to reconsider the precedents that the Sixth Circuit applied.

I have previously expressed my doubts about our qualified immunity jurisprudence. See Ziglar v. Abbasi, 582 U. S. ___, ___-___ (2017) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2-6). Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.

I
A

In the wake of the Civil War, Republicans set out to secure certain individual rights against abuse by the States. Between 1865 and 1870, Congress proposed, and the States ratified, the Thirteenth, Fourteenth, and Fifteenth Amendments. These Amendments protect certain rights and gave Congress the power to enforce those rights against the States.

Armed with its new enforcement powers, Congress sought to respond to “the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” Briscoe v. LaHue, 460 U. S. 325, 337 (1983). Congress passed a statute variously known as the Ku Klux Act of 1871, the Civil Rights Act of 1871, and the Enforcement Act of 1871. Section 1, now codified, as amended, at 42 U. S. C. §1983, provided that

“any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall . . . be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . .” Act of Apr. 20, 1871, §1, 17 Stat. 13.
Put in simpler terms, §1 gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights.

B

The text of §1983 “ma[kes] no mention of defenses or immunities.” Ziglar, supra, at ___ (opinion of THOMAS, J.) (slip op., at 2). Instead, it applies categorically to the deprivation of constitutional rights under color of state law.

For the first century of the law’s existence, the Court did not recognize an immunity under §1983 for good-faith official conduct. Although the Court did not squarely deny the availability of a good-faith defense, it did reject an argument that plaintiffs must prove malice to recover. Myers v. Anderson, 238 U. S. 368, 378-379 (1915) (imposing liability); id., at 371 (argument by counsel that malice was an essential element). No other case appears to have established a good-faith immunity.

In the 1950s, this Court began to “as[k] whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983.” Ziglar, supra, at ___ (opinion of THOMAS, J.) (slip op., at 4). The Court, for example, recognized absolute immunity for legislators because it concluded Congress had not “impinge[d] on a tradition [of legislative immunity] so well grounded in history and reason by covert inclusion in the general language” of §1983. Tenney v. Brandhove, 341 U. S. 367, 376 (1951). The Court also extended a qualified defense of good faith and probable cause to police officers sued for unconstitutional arrest and detention. Pierson v. Ray, 386 U. S. 547, 557 (1967).

The Court derived this defense from “the background of tort liabilit[y] in the case of police officers making an arrest.” Id., at 556-557. These decisions were confined to certain circumstances based on specific analogies to the common law.

Almost immediately, the Court abandoned this approach. In Scheuer v. Rhodes, 416 U. S. 232 (1974), without considering the common law, the Court remanded for the application of qualified immunity doctrine to state executive officials, National Guard members, and a university president, id., at 234-235.

It based the availability of immunity on practical considerations about “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based,” id., at 247, rather than the liability of officers for analogous common-law torts in 1871.

The Court soon dispensed entirely with context-specific analysis, extending qualified immunity to a hospital superintendent sued for deprivation of the right to liberty. O’Connor v. Donaldson, 422 U. S. 563, 577 (1975); see also Procunier v. Navarette, 434 U. S. 555, 561 (1978) (prison officials and officers).

Then, in Harlow v. Fitzgerald, 457 U. S. 800 (1982), the Court eliminated from the qualified immunity inquiry any subjective analysis of good faith to facilitate summary judgment and avoid the “substantial costs [that] attend the litigation of” subjective intent, id., at 816.

Although Harlow involved an implied constitutional cause of action against federal officials, not a §1983 action, the Court extended its holding to §1983 without pausing to consider the statute’s text because “it would be ‘untenable to draw a distinction for purposes of immunity law.'” Id., at 818, n. 30 (quoting Butz v. Economou, 438 U. S. 478, 504 (1978)).

The Court has subsequently applied this objective test in §1983 cases. See, e.g., Ziglar, 582 U. S., at ___ (majority opinion) (slip op., at 28).

I express no opinion on qualified immunity in the context of implied constitutional causes of action against federal officials. See, e.g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

II

In several different respects, it appears that “our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act.” Id., at ___ (opinion of THOMAS, J.) (slip op., at 5).

There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe. Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this “clearly established law” test.

Indeed, the Court adopted the test not because of “‘general principles of tort immunities and defenses,'” Malley v. Briggs, 475 U. S. 335, 339 (1986), but because of a “balancing of competing values” about litigation costs and efficiency, Harlow, supra, at 816.

There also may be no justification for a one-size-fits-all, subjective immunity based on good faith.

Nineteenth-century officials sometimes avoided liability because they exercised their discretion in good faith.

See, e.g., Wilkes v. Dinsman, 7 How. 89, 130-131 (1849); see also Nielson & Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853, 1864-1868 (2018); Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 57 (2018); Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 48-55 (1972). But officials were not always immune from liability for their good-faith conduct. See, e.g., Little v. Barreme, 2 Cranch 170, 179 (1804) (Marshall, C. J.); Miller v. Horton, 152 Mass. 540, 548, 26 N. E. 100, 103 (1891) (Holmes, J.); see also Baude, supra, at 55-58; Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 414-422 (1986); Engdahl, supra, at 14-21.

Although I express no definitive view on this question, the defense for good-faith official conduct appears to have been limited to authorized actions within the officer’s jurisdiction. See, e.g., Wilkes, supra, at 130; T. Cooley, Law of Torts 688-689 (1880); J. Bishop, Commentaries on Non-Contract Law §773, p. 360 (1889).

An officer who acts unconstitutionally might therefore fall within the exception to a common-law good-faith defense.

Regardless of what the outcome would be, we at least ought to return to the approach of asking whether immunity “was ‘historically accorded the relevant official’ in an analogous situation ‘at common law.'” Ziglar, supra, at ___ (opinion of THOMAS, J.) (slip op., at 3) (quoting Imbler v. Pachtman, 424 U. S. 409, 421 (1976)).

The Court has continued to conduct this inquiry in absolute immunity cases, even after the sea change in qualified immunity doctrine. See Burns v. Reed, 500 U. S. 478, 489-492 (1991). We should do so in qualified immunity cases as well.

Qualified immunity is not the only doctrine that affects the scope of relief under §1983.

In Monroe v. Pape, 365 U. S. 167 (1961), the Court held that an officer acts “‘under color of any statute, ordinance, regulation, custom, or usage of any State'” even when state law did not authorize his action, id., at 183.

Scholars have debated whether this holding is correct.

Compare Zagrans, “Under Color of” What Law: A Reconstructed Model of Section 1983 Liability, 71 Va. L. Rev. 499, 559 (1985), with Winter, The Meaning of “Under Color of” Law, 91 Mich. L. Rev. 323, 341-361 (1992), and Achtenberg, A “Milder Measure of Villainy”: The Unknown History of 42 U. S. C. §1983 and the Meaning of “Under Color of” Law, 1999 Utah L. Rev. 1, 56-60. Although concern about revisiting one doctrine but not the other is understandable, see Crawford-El v. Britton, 523 U. S. 574, 611 (1998) (Scalia, J., joined by THOMAS, J., dissenting), respondents—like many defendants in §1983 actions—have not challenged Monroe. ——–

* * *
I continue to have strong doubts about our §1983 qualified immunity doctrine. Given the importance of this question, I would grant the petition for certiorari.

What is A Civil Rights Violation Under the Color of Law?
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