Color of Law

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COLOR OF LAW

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 authorized by state law.

The expansive extreme view of color of law arises not in interpreting the phrase itself but in interpreting it in conjunction with a series of nouns that accompany it. Section 1983, for example, refers to action "under color of any statute, ordinance, regulation, custom or usage." In Adickes v. S. H. Kress & Co. (1970), Justices william j. brennan and william o. douglas interpreted "color of custom" to include virtually all segregative activity in the South, public or private, because the activity sprang from widespread custom. The majority in Adickes interpreted color of custom to include only action that constituted state action. Color of custom thus encompasses private behavior only to the extent that private persons act sufficiently in concert with public officials to render their action state action. This interpretation, combined with rejection in Screws and Monroe of the view limiting color of law to action authorized by law, leaves the color of law concept with little independent meaning. In general, action is under color of law if and only if the action satisfies the state action requirement.

There are, however, two areas in which it is useful to differentiate between state action and action under color of law. First, some constitutional rights, such as the thirteenth amendment right not to be enslaved, are protected against both governmental and private infringement. A private person who caused the deprivation of such a right would be liable under statutes containing the "color of law" requirement even though his action was not state action. In these rare cases, action that is under color of law but that is not state action would lead to federal civil rights liability. Second, where a constitutional right, such as the right to due process, can be violated only by the government, private behavior authorized by statute may be action under color of law but, for want of state action, it may not subject the actor to civil rights liability. For example, when, pursuant to state statutes, creditors repossessed property without judicial proceedings, the Court in flagg bros. , inc. v. brooks (1978) held that the action taken was under color of law but that it was not state action.

In the pre-Civil War era, Congress employed the color of law requirement in a fashion related to its later use in civil rights statutes. States upset with expanding federal power and the behavior of federal officials would go so far as to initiate in state court criminal or civil proceedings against federal officers. Fearful of a biased forum, Congress, in a series of provisions commencing in 1815, provided federal officials with a right to remove these proceedings to federal court. (See removal of cases.) But Congress limited the power of removal to instances when the state proceedings were attributable to action by the officers under color of their office or of federal law. In this sense, as the Court noted in Tennessee v. Davis (1880), the color of law requirement clearly meant only action authorized by law, a point emphasized by the dissenters in Screws.

Nevertheless, it may be consistent with the purposes of both the removal and civil rights provisions to interpret color of law as limited to action authorized by law only in the case of the removal statute. If one views Congress in each case as desiring to protect only lawful behavior, it makes sense to interpret color of law in the removal statute to require action authorized by law and to interpret color of law in civil rights statutes to encompass official action, whether or not authorized by law. Use of the broad civil rights interpretation of color of law would immunize from state process action by federal officers not authorized by federal law. And in the context of civil rights statutes, adhering to the interpretation given the removal provision would immunize from federal remedies action by state officers not authorized by state law. The different interpretations serve a common function, subjecting a wrongdoer to liability.

Theodore Eisenberg
(1986)