Color of Law

What It Is

“Under color of law” means using the power, authority, or resources of government. A police officer making an arrest is acting under color of law. So is a judge issuing an order, a public school principal suspending a student, or a city inspector condemning a building.

It’s the gateway element of any § 1983 claim. No color of law, no case.

What It Covers

Color of law includes:

• On-duty conduct — Officer making a traffic stop, arrest, or search
• Off-duty conduct with state authority — Officer flashing a badge, using a service weapon, or invoking police power while off duty
• State-created authority — Private actors deputized by the state, private prison operators, court-appointed guardians
• Misuse of authority — An officer who fabricates evidence is acting under color of law because they’re using their position to do it — even though it’s illegal

What It Doesn’t Cover

• Purely private conduct with no connection to government authority
• Federal officials (§ 1983 is for state actors — federal violations use Bivens)
• Private companies acting independently, unless they’re performing a traditional government function

The Line

The test isn’t whether the official was authorized to do what they did. It’s whether they were using state power when they did it. An officer who beats someone during an arrest is acting under color of law even though beatings are illegal. That’s the whole point of § 1983 — it covers abuses of power, not just exercises of it.

Monroe v. Pape, 365 U.S. 167 (1961) established this clearly: § 1983 reaches officials who act under color of law even when they violate state law.

The Historical Foundation

The phrase “under color of” law wasn’t an accident. When the Forty-Second Congress drafted § 1983 (originally Section 1 of the Ku Klux Act of 1871), Senator Frederick Frelinghuysen wrote an earlier draft that Representative Samuel Shellabarger then deliberately revised to use the broader “under color of” language. The choice was intentional: the statute was meant to reach officials who abuse their state-granted authority, not just those who follow state-authorized instructions.

This matters because defendants sometimes argue that if their conduct violated state law or department policy, they weren’t acting “under color of” state law. The history shows the opposite — covering unauthorized abuses of authority was the entire purpose of the statute. The Ku Klux Act was enacted to address Southern officials who used their positions to terrorize citizens in ways that state law never authorized. See David 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 (1999).

Key Cases

• Monroe v. Pape, 365 U.S. 167 (1961) — Color of law includes conduct that violates state law
• West v. Atkins, 487 U.S. 42 (1988) — Private physician under contract with prison acted under color of law

Further Reading

• David 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 (1999)