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  • 42 USC 1983 lawsuits

    Section 42 USC 1983 reads

    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

    Which basically means if your making a citizens arrest, using force allowable by state law etc and you use excessive force or in any way deprive someone of their rights you are in violation of federal law and can be sued and prosecuted just like a police officer can.
    "Get yourself a shovel cause your in deep Sh*t"

  • #2
    Originally posted by bigdog View Post
    Section 42 USC 1983 reads

    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

    Which basically means if your making a citizens arrest, using force allowable by state law etc and you use excessive force or in any way deprive someone of their rights you are in violation of federal law and can be sued and prosecuted just like a police officer can.
    There's an awful lot of case law on this subject and it's very complex, so any broad declarations about liability, whether under this or its "sister" criminal code, are injudicious. Generally speaking, however, your statement is incorrect. This law primarily pertains to people who are working for the government, but see below. If you care to read more about the subject, I recommend this reference for an overview.

    First, you don't understand what "color of law" means. This does NOT mean "making an arrest for violation of the law", but "acting under some grant of authority from the state, according to law". It can also mean "acting in one's official capacity as an employee of a government entity."

    I can privately arrest criminals all day long without once acting "under color of law". I might well be liable for my actions if they are inappropriate, but I will almost without exception be liable under ordinary tort law, not 42 USC 1983, even if my actions violate someone's civil rights (for instance, false imprisonment, invasion of privacy, etc.).

    As an example, even police officers who make an improper arrest while off-duty have been found NOT to be liable under 42 USC 1983. This was because in those cases the court found that the officer was NOT acting under color of law, but "merely" as a private citizen rather than in his capacity as an agent of government. Circumstances that the court has considered to determine whether the police are "acting under color of law" while not on duty include, for instance, whether they used the gun issued to them by the agency they work for, whether they identified themselves during the arrest as police, whether they used their police identification to gain access to a private space, etc. In other words, EVEN A POLICE OFFICER CAN MAKE A "CITIZEN'S ARREST" AND NOT BE LIABLE UNDER 42 USC 1983 DESPITE HIS OFFICIAL STATUS if he did not exercise state authority in any way.

    It certainly is possible for a private citizen, including a security officer, to be found to be acting under color of law if he is acting "for" the state, but the relationship between the citizen and the state must be both "affirmative" or "obvious" and "symbiotic" - not mere "citizenship". Putting it another way, if somewhat oversimplifying, there must be a demonstrable nexus or transfer to the citizen of authority of the sort that the state ordinarily reserves unto itself and its agents. Citizen arrest privileges or "powers" do not fall under the category of any authority that the state reserves unto itself.

    For instance, a psychiatrist who is serving as a consultant to (is not on the staff of) a state mental hospital might be found to be acting under color of law if he is granted the temporary privilege or authority of commiting a patient to that hospital, and, if, while acting under that privilege or authority, he does so improperly, thereby subjecting the individual to "false imprisonment". On the other hand, the same psychiatrist who is a consultant but WITHOUT such temporary privileges or authority, and who merely improperly testifies at a commitment hearing, the outcome of which is determined by another, will NOT be found to be acting "under color of law" for false imprisonment. Again, he might well be liable up the kazoo for his actions, but it will be liability under ordinary tort law, not under 42 USC 1983.

    If a security officer were to collude with a police officer or police agency to perform an act which would not be permitted to the police themselves, or if he were to undertake an action under the SPECIFIC DIRECTION of the police, thereby acting as their agent, he might be found to be acting under color of law.

    For example, a security officer notifies a beat officer that he thinks an employee at the plant is transporting drugs. The officer says, "We can't search based on that kind of information...you search him because you don't have any constitutional restrictions, and we'll make the arrest if you find something." That search could very well be found to have been performed "under color of law", and thereby subject to the constitutional protections against unreasonable search and seizure. THIS CONNECTION to a civil right, in turn, is what would bring the action under the provisions of 42 USC 1983. It ordinarily would take this sort of special kind of "arrangement" between the security officer and the police, however, to satisfy "the color of law" requirement.

    So, please - this area of law is EXTREMELY complex and there have been lengthy legal tomes published on this single subject alone - with whole chapters devoted to "who is acting under color of law". It ain't that simple. I suggest we leave the legal commentary to the legal eagles, and then we won't run the risk of misinforming the forum membership.

    I should mention, in case this wasn't clear, that a lack of liability under 42 USC 1983 does not mean that a security officer can act in a way that violates an individual's rights. A "citizen's arrest" is still a tricky proposition, because there are usually state statutes, plus the tort law, under which he can be equally liable for screwing up, just as he would be if 42 USC 1983 did apply to him.

    I should also mention that a lack of liability never stopped a plaintiff's lawyer from filing a complaint in federal district court, just to see if it will fly. What has he got to lose for trying? Nothing - and that's the main problem with our judicial system, in fact. It ought to cost an attorney - who is supposed to be "an officer of the court" - bigtime for filing frivolous claims that he knows have no merit, but...
    Last edited by SecTrainer; 01-08-2008, 02:44 PM.
    "Every betrayal begins with trust." - Brian Jacques

    "I can't predict the future, but I know that it'll be very weird." - Anonymous

    "There is nothing new under the sun." - Ecclesiastes 1:9

    "History, with all its volumes vast, hath but one page." - Lord Byron

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    • #3
      Sectrainer,

      As part of the Florida Security officers training course we were informed we could be held liable under 42 USC 1983 or Title 18, U.S.C.,Section 242 for any course of action we take as security officers under any statute of law if we violate the persons rights.

      Last edited by bigdog; 01-08-2008, 02:43 PM.
      "Get yourself a shovel cause your in deep Sh*t"

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      • #4
        Originally posted by bigdog View Post
        Sectrainer,

        As part of the Florida Security officers training course we were informed we could be held liable under 42 USC 1983 or Title 18, U.S.C.,Section 242 for any course of action we take as security officers under any statute of law if we violate the persons rights.
        I'd be mindful of what you choose to take away from the state-mandated training courses. Many of them are tailored to, (not to mention written/created/endorsed by ), the warm-body companies to help ensure their people don't take any action during an incident. It's a type of 'scare tactic' in a way, helping to keep their people from doing anything for fear of prosecution.

        When I went through the WA-mandated course, (watching a video, mind you.. lol) I spent a good deal of time laughing, because some of the stuff they spouted was simply untrue.

        As SecTrainer said, this has been debated & gone over MANY times in the courts, and it's silly to say that it applies at all times.
        Corbier's Commandos - "Stickin it to the ninjas!"
        Originally posted by ValleyOne
        BANG, next thing you know Bob's your Uncle and this Sgt is seemingly out on his a$$.
        Shoulda called in sick.
        Be safe!

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        • #5
          Originally posted by bigdog View Post
          Sectrainer,

          As part of the Florida Security officers training course we were informed we could be held liable under 42 USC 1983 or Title 18, U.S.C.,Section 242 for any course of action we take as security officers under any statute of law if we violate the persons rights.
          I'm sorry, bigdog, but your trainer is not the first, by any means, to be wrong about this. If even police officers while off duty have been found not to be liable under these laws when making a "citizen's arrest", well, that's all the proof you need, without having to become an expert on the law yourself, that he is obviously misinformed.

          Or, perhaps, as Charger suggests, you are being deliberately misinformed in order to "throw the fear of God into you", so to speak. I was once asked to incorporate false material about the use of force into a training session for that same purpose, in fact, and I lost a lucrative contract over my refusal to do so.

          The trainer had all the other liability he needed, if "fear" is his purpose, that he didn't need to invoke 42 USC or Title 18. I mentioned the tort liability above, for instance. You certainly can be liable for acting improperly with respect to anyone's civil rights - and that liability existed in tort law long before the passage of the federal laws mentioned.

          Nevertheless, the best thing is to just spit back the answers he wants so that you pass your course, and then you can give him the big kyuk-kyuk. You are now better informed than you were before (and maybe better informed than your trainer). All I would ask is that you reconsider whether you want to quote this trainer - in public, anyway.
          Last edited by SecTrainer; 01-08-2008, 03:50 PM.
          "Every betrayal begins with trust." - Brian Jacques

          "I can't predict the future, but I know that it'll be very weird." - Anonymous

          "There is nothing new under the sun." - Ecclesiastes 1:9

          "History, with all its volumes vast, hath but one page." - Lord Byron

          Comment


          • #6
            Bigdog, some background history about 42 USC 1983. As originally intended it (along with the force act) would have applied to private persons who tried to violate federally held civil rights (namely, against the KKK when they used scare tactics to intimidate southern blacks into not voting). Never got much use.

            Later, it was morphed into a blunt instrument for the feds to use against the states and rarely applies to private persons or private employers. That's how it stands now, I don't know of any use of that section against private persons who aren't directly working under the direction of a government.



            Side note: This is a page I found about section 1983 cases involving police officers (Click here)

            I know I shouldn't laugh, but this entry tickled me:

            City not liable for misconduct, where a police trainee who was allowed the use of a marked unit to drive to the police academy stopped and shot a man for the purpose of robbing him. Trainees had no police powers, and his motivations were criminal. Georgia interlocal Risk Management Agency v. Godfrey, 273 Ga. App. 77, 614 S.E.2d 201, 2005 Ga. App. Lexis 381 (2nd Dist. 2005); cert den. 2005 Ga. Lexis 691. [N/R]
            This guy was brilliant lol, no way anyone would figure out who he was, robbing someone while driving a marked police vehicle LOL.
            ~Black Caesar~
            Corbier's Commandos

            " "The trouble with Socialism is that eventually you run out of other people's money." ~Margaret Thatcher

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            • #7
              As a curious Aussie I have done some research online about this and with all your posts have found it very confusing (not you blokes just the law's definitions which like most can be interpretted according to how-ever you seem to want to make it fit at the time. `Reasonable force` is different for every person and for every situation too.
              "Keep your friends close and your enemies even closer" Sun Tzu

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              • #8
                Indeed, there is the "are you acting on behalf of the state" element to a 1983 suit. Are you acting on behalf of your employer, or are you acting on behalf of the state when enforcing laws or protecting people?

                SecTrainer, can you give examples of when a private security person would be acting in the state's interest? I'm not 100% sure of which circumstances would actually hold up.

                Of course, being deputized in the field to come to a police officer's aid is one, but that's not really the issue here.
                Some Kind of Commando Leader

                "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

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                • #9
                  Originally posted by N. A. Corbier View Post
                  Indeed, there is the "are you acting on behalf of the state" element to a 1983 suit. Are you acting on behalf of your employer, or are you acting on behalf of the state when enforcing laws or protecting people?

                  SecTrainer, can you give examples of when a private security person would be acting in the state's interest? I'm not 100% sure of which circumstances would actually hold up.

                  Of course, being deputized in the field to come to a police officer's aid is one, but that's not really the issue here.
                  Acting "under color of law" and acting "in the state's interest" are not the same thing. Any citizen who makes a citizen's arrest can be said to be acting "in the state's interest", but that does not mean they are acting "under color of law".

                  "Under color of law" has a very specific meaning, even though there have been differences in exactly what criteria the courts have applied to make a finding that someone is acting under color of law.

                  "Color of law" can perhaps most easily be thought of as "an implied or explicit grant of SPECIAL authority to someone who is not formally an agent of the state". This authority would be such that is NORMALLY granted only to individuals who are agents of the state, and is not the "general authority" of any citizen to make an arrest for a felony committed in his presence, for instance, and which is based in common law or legal tradition. Such authority is NOT restricted to agents of the state.

                  (The presumption, of course, is that the state has not specifically denied "citizen arrest" authority to the citizens by statute, as I believe a few may have done. Absent such statute, the authority for a citizen's arrest arises from a very long legal tradition in the common law.)

                  The courts have found that the implied grant of authority necessary to establish "color of law" can arise from any number of unique circumstances, but what most have in common is that a representative of the state is the one who initiated, specifically approved, and/or directed the actions of the private individual. In other words, the individual acts at the behest of, or under the control of, an agent of the state or its agencies.

                  I gave an example of the security officer who notifies a police officer that he believes an individual on site is transporting drugs. The police officer does not feel the information offered is sufficient to establish probable cause and enable him to conduct a search. He therefore requests the security officer to perform "a preliminary search", or in some other way to "gather more information", believing the security officer as a private citizen would be "free" from constitutional constraints. Perhaps he also specifically directs the security officer on how to do this.

                  If the security officer does conduct this search, it is very likely that he WILL be found by a court to be acting "under color of law" (as a "de facto agent of the state", if you will) because he is carrying out what would normally be a restricted police operation at the specific behest of an agent of the state - and WOULD therefore very possibly be found to be liable under the provisions of the federal laws (civil and/or criminal "sister" statutes) we are discussing.

                  Another example would be a situation in which a police officer specifically requests assistance from a security officer in making an arrest of an individual on the SO's site. Although this request alone might not cross the threshhold of "color of law" if all the SO does is to stand passively by in case help is needed, it could quickly become a "color of law" situation if he is required to take an active (physical) part in the arrest and if he acts under the direction of the police officer. For instance, if the officer says "Put your cuffs on him while I hold him", the SO probably becomes a "de facto agent of the state" at that point. He would be considered to be acting "in the place of" another police officer. As such, 42 USC 1983 might very well apply to the SO.

                  As I said initially, the case law is very complex, and sometimes surprising as to the courts' determination of this question - especially their findings regarding who is NOT acting under color of law under circumstances that you would probably think otherwise (e.g., police officers making off-duty arrests under certain conditions). I don't have any statistics, but offhand I'd say that the courts have been somewhat unwilling to find that individuals were acting under color of law unless the involvement of the state in the individual's actions (initiating the actions, assisting in their accomplishment, instructing or directing them, etc.) was obvious.

                  Another common element in the relationship necessary to establish "color of law" is symbiosis. That is, the actions of the individual are seen as being in some way beneficial to the lawful mission of the agency or agent that initiates or directs the actions. In other words, the actions are performed in furtherance of the agency's or agent's official duty on behalf of the state, as opposed to being performed in furtherance of some illegitimate or nonsanctioned purpose.

                  For instance, a police officer approaches an SO who he knows well and says, "You know, the guy who's dating my ex-wife works here. I want you to roust him around a little bit." Although the SO would be liable under any number of torts if he did so, he would not be acting under "color of law" because the police officer's request has nothing to do with his sworn duty or the police agency's official commission.

                  The "color of law" question doesn't only arise in conjunction to civil rights, incidentally. It also surfaces in some cases of "entrapment". A common example is when the state has used an informant or other private citizen to induce a suspect to perform a criminal act. In the case of an SO, this might happen if the police were investigating a crime and told the SO to "leave the door to the safe open, and make sure the suspect sees it. We'll hide in the closet and nab him when he makes his move".
                  Last edited by SecTrainer; 01-09-2008, 07:43 PM.
                  "Every betrayal begins with trust." - Brian Jacques

                  "I can't predict the future, but I know that it'll be very weird." - Anonymous

                  "There is nothing new under the sun." - Ecclesiastes 1:9

                  "History, with all its volumes vast, hath but one page." - Lord Byron

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