Lindke v. Freed held a government official running a personal social-media site does not act under color unless his official job duties include speaking on behalf of the government. I argued at the time that the Court should have relied on the wealth of cases involving off-duty police officers who flash their authority, a practical analysis focused on whether the official presented himself to the world as a government actor, regardless of his actual authorization, and whether that flash of (apparent) authority enabled the misconduct. That approach follows from Monroe v. Pape, in which the Court held that police officers act under color even when they exceed state-law limits on their authority.
I did not at the time read Lindke as overruling or limiting those apparent-authority cases. But the Tenth Circuit adopted that reading in Martinez v. City of Aurora. “The upshot is, after Lindke, apparent authority does not suffice to show state action. State action for purposes of § 1983 exists only if an individual acted with ‘actual authority’ to engage in the ‘specific conduct’ of which the plaintiff complains.” Thus, a police officer on administrative leave did not act under color despite repeated flashes of authority in a personal dispute with a neighbor (including flashing his badge, identifying himself as a police officer, using force, and arresting her). Because the department Leave Order instructed the defendant “not take any action as a sworn police officer,” he lacked the formal authority to engage in the challenged conduct.
What does this mean for off-duty police officers? Department policy authorizes them to engage in activities of “sworn officers,” giving them some formal authority.1 In theory, however, a department could prohibit off-duty officers from police activity, which would seem to free officers to use their gun and badge to engage in all sorts of misconduct and abuse.
And what does it mean for Monroe? The court reads Lindke to require that the officer have authority to commit the “specific” act at issue. This seems to create a level-of-generality problem (in a doctrinal area rife with them). How should the court define the “specific acts” in Monroe–the warrantless entry, suspicionless search, and use of force, all of which were prohibited by state law? Or the purported law-enforcement investigation that brought them to Monroe’s home? What were the specific acts in Screws v. US (Monroe‘s borebearer): Beating Robert Hall to death or bringing him into custody?
Or imagine a police officer who uses excessive force after gaining entry–using his uniform, badge, gun, and threats of arrest–to a restaurant in the guise of performing a function that is outside the formal authority of his department (e.g., a health inspection).
Monroe held that § 1983 opens the federal courthouse to claims against state actors who abuse authority they have from their connection to the state. Did Lindke really close those doors to claims against police officers who mislead the public as to their authority to engage and use that misdirection to engage in misconduct?
- Plaintiff argued that this policy applies to officers on administrative leave. In an interesting 12(b)(6) move, the court looked at the policy (incorporated into the complaint by reference) and determined that the only rational reading is that it did not apply. ↩︎