A person can act under color of state law even if the act violates state law. The question is whether the person was clothed with the authority of the state, by which I mean using or misusing the authority of the state.
By “state law,” I mean any statute, ordinance, regulation, custom or usage of any state. And when I use the term “state,” I am including any political subdivisions of the state, such as a county or municipality, and also any state, county or municipal agencies.
COMMENT
Whenever possible, the court should rule on the record whether the conduct of the defendant constituted action under color of state law. In such cases, the court can use Instruction 4.4.1 to instruct the jury that this element of the plaintiff’s claim is not in dispute.In cases involving material disputes of fact concerning action under color of state law, the court should tailor the instructions on this element to the nature of the theory by which the plaintiff is attempting to show action under color of state law. This comment provides an overview of some theories that can establish such action; Instructions 4.4.2 and 4.4.3 provide models of instructions for use with two such theories.
“[C]onduct satisfying the state action requirement of the Fourteenth Amendment satisfies [Section 1983’s] requirement of action under color of state law.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982).14 “Like the state action requirement of the Fourteenth Amendment, the under color of state law element of § 1983 excludes from its reach ‘“merely private conduct, no matter how discriminatory or wrongful.”’” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948))). Liability under Section 1983 “attaches only to those wrongdoers ‘who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’” National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).15
The inquiry into the question of action under color of state law “is fact specific.” Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). See also Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019) (holding that the operator of public access channels on a cable television system was not a state actor, while noting that the result might be different if a local government itself operated public access channels on a local cable system or obtained a property interest in the public access channels).
“In the typical case raising a state action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action.... Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm causing individual actor.” Tarkanian, 488 U.S. at 192. Circumstances that can underpin a finding of state action include the following:
• A finding that “the State create[d] the legal framework governing the conduct.”17
• A finding that the government “delegate[d] its authority to the private actor.”18
• A finding that the government “knowingly accept[ed] the benefits derived from unconstitutional behavior.”19
• A finding that “the private party has acted with the help of or in concert with state officials.”20 For an instruction on private action in concert with state officials, see Instruction 4.4.3.
• A finding that the action “‘result[ed] from the State's exercise of “coercive power.”’”21
• A finding that “‘the State provide[d] “significant encouragement, either overt or covert. ”’”22
• A finding that “‘a nominally private entity... is controlled by an “agency of the State. ”’”23
• A finding that “‘a nominally private entity... has been delegated a public function by the State.’”24
• A finding that “‘a nominally private entity... is “entwined with governmental policies,” or [that] government is “entwined in [its] management or control. ”’”25
The “labyrinthine” and “murky” analysis of whether private action can be deemed that of the state can be avoided if the “actor is the government,” Sprauve v. West Indian Company, 799 F.3d 226, 229 (3d Cir. 2015) (internal quotation marks and citations omitted), such as a public corporation over which the state has “permanent and complete control” by government appointees. Id. at 233 (footnote omitted).
