When is a government employee acting under ‘color of law’?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Filing a civil rights claim under section 1983 requires first demonstrating that the defendant was acting under “color of law.” But what does color of law mean? In general, color of law is a broad term used to describe when someone is working in their official capacity for a governmental agency. Anyone who works for a governmental agency is potentially subject to a section 1983 civil rights violation suit.

The meaning of the term “under the color of law” has been significantly expanded since it was introduced in 1871. It now includes a wide variety of governmental agencies from police departments to public schools. The key is to demonstrate that the agency exists because of or for a governmental or political subdivision. Unless a private school or university is performing duties for the government, like a government contract, they will not be considered a governmental agency.

Discerning color of law for a section 1983 claim

Deciding when someone is acting under the color of law can be easier said than done. Some actions under color of law are straightforward, such as when a police officer arrests you based strictly on your race or gender, rather than the legally required probable cause. If this is the case, the police officer has clearly violated your civil rights while acting under the color of state law. Similarly, a prison guard who violates a prisoner’s civil rights is acting under the color of law.

But recent Supreme Court decisions emphasize that the actions of the government employee need not be part of the employee’s normal functions to still qualify for a section 1983 claim. For example, a schoolteacher’s normal function is to teach. However, if they assist the school principal in an unconstitutional search of a student’s body, they are still acting under the color of law because their actions were pursuant to their employment. Off-duty cases are harder to decide. If an off-duty officer moonlights at a bar, they are not necessarily acting under the color of law. However, if they flash their badge or wear their government issued uniform as a display of authority, the case is stronger that they are acting under the color or law.

If you are concerned that your constitutional rights have been violated because of your membership in a protected class (i.e. your race or gender), you should contact a civil rights attorney as soon as possible. In addition to a federal claim, you may have separate remedies available under your state’s civil rights laws. Obtaining relief under either federal or state law usually requires strict compliance with administrative rules. A qualified attorney can walk you through the procedures for both types of claims so that you don’t accidentally waive valuable remedies.

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