WPI 340.03 Civil Rights—“Under Color of Law”—Definition

Use this instruction in Section 1983 cases against an individual defendant, along with WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues).

Use the bracketed phrase “custom or usage” when the issue of custom or usage is raised by the facts of the case. When the issue of “acting under color of law” is not submitted for jury determination, because it has been admitted or because the court has decided the issue as a matter of law, use the last bracketed sentence.

This instruction is similar to the Ninth Circuit's Civil Jury Instruction 9.3 (2007), although the instruction above includes a bracketed reference to “custom or usage,” as set forth in the statute.

A private corporation or other entity acts under color of law under Section 1983 when “there is such a close nexus between the State and the challenged action that seemingly private behavior may fairly be treated as that of the State itself.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal quotation marks and citations omitted). The issue of whether the nexus is sufficiently close is determined by analyzing the specific relationships as revealed by the law and facts of each case. See Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950 (9th Cir. 2008) (en banc) (applying Brentwood Academy, and holding that the defendant was not acting under color of law). See also West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Jackson v. Metro. Edison Co., 419 U.S. 345, 351–52, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

For discussions of when private individuals may be acting under color of state law by jointly acting with state officials, see Adickes v. S. H. Kress & Co., 398 U.S. 144, 149, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (private parties, acting jointly with state officials in prohibited conduct, act “under color of law”); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989) (en banc). The instruction should be modified for cases that fall into this category.

Customs or usages, although not incorporated in statute or ordinance, may qualify as “under color of law” if they “have the force of law by virtue of the persistent practice of state officials.” Adickes v. S. H. Kress & Co., 398 U.S. at 167.