United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2004 Decided January 25, 2005
No. 03-5316
THEODORE E. WILLIAMS,
APPELLANT
v.
UNITED STATES OF AMERICA AND
ALVIN HARDWICK, OFFICER, INDIVIDUALLY AND AS
GOVERNMENT PRINTING OFFICE POLICE OFFICER,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02638)
Donald M. Temple argued the cause and filed the briefs for
appellant.
Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.
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Opinion for the Court filed by Circuit Judge TATEL.
TA TEL, Circuit Judge: This appeal presents a single issue:
whether the district court erred in concluding that the appellant,
who claims he was unlawfully arrested by a special police
officer employed by the U.S. Government Printing Office, could
not maintain a cause of action against the officer under 42
U.S.C. § 1983. Because we agree that the officer did not act
under color of District of Columbia law, we affirm the summary
judgment order in his favor.
I.
The Government Printing Office, a federal agency
headquartered in Washington, D.C., employs some special
policemen, including appellee Alvin Hardwick. Federal law
authorizes these policemen to
make arrest[s] for violations of laws of the United States,
the several States, and the District of Columbia; and enforce
the regulations of the Public Printer, including the removal
from Government Printing Office premises of individuals
who violate such regulations. The jurisdiction of special
policemen in premises occupied by or under the control of
the Government Printing Office and adjacent areas shall be
concurrent with the jurisdiction of the respective law
enforcement agencies where the premises are located.
44 U.S.C. § 317.
On duty one afternoon in January 2001, Hardwick asked to
see the identification badge of appellant Theodore Williams, a
handicapped African American who worked at the GPO’s D.C.
office. At the time, Williams was returning to the building after
mailing a letter.
The parties dispute what happened next. According to
Williams, he showed his badge and Hardwick confiscated it.
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When Williams protested, Hardwick grabbed Williams by the
arm, dragged him across the lobby, and slammed him head-first
into a brass door at the entrance to the GPO police office.
According to Hardwick, Williams refused to show his badge,
used profanity, and threatened Hardwick with a cane,
whereupon Hardwick took Williams to the GPO police office
without Williams and the door coming into contact.
Once in the GPO police office, Hardwick handcuffed
Williams and confiscated his cane, then let him go to the
medical unit for a check-up. Shortly thereafter, Hardwick and
another officer went to the medical unit and arrested Williams
for disorderly conduct—a misdemeanor offense under the D.C.
Code, see D.C. Code Ann. § 22-1321. The officers took
Williams back to the GPO police office, advised him of his
rights, and took him to the local D.C. police station. There, he
was detained for several hours and formally charged.
Williams sued Hardwick and the GPO in the U.S. District
Court for the District of Columbia. In his complaint, he alleged
deprivation of his Fourth and Fifth Amendment rights in
violation of 42 U.S.C. § 1983 and also raised several common
law claims. The defendants moved for summary judgment,
which the district court granted in full. Williams v. GPO, No.
01-02638 (D.D.C. Oct. 1, 2003). On appeal, Williams
challenges only one aspect of the district court’s ruling: its
conclusion that Williams could not bring a section 1983 claim
against Hardwick because the officer had not acted under color
of D.C. law.
II.
We review the district court’s grant of summary judgment
de novo. Media Gen., Inc. v. Tomlin, 387 F.3d 865, 869 (D.C.
Cir. 2004). Viewing the evidence in the light most favorable to
Williams, see id., we ask whether he can state a claim under 42
U.S.C. § 1983. That statute provides in relevant part:
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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.
Williams and Hardwick offer different interpretations of
what constitutes action “under color of” D.C. law. Williams
makes what might be termed a “but for” argument: but for the
fact that the District of Columbia has enacted a disorderly
conduct statute, D.C. Code Ann. § 22-1321, Hardwick could not
have arrested Williams under the federal statute giving GPO
police officers concurrent jurisdiction with the local police, 44
U.S.C. § 317. Therefore, Williams argues, Hardwick acted
under color of D.C. law. For his part, Hardwick argues that
since no D.C. officials encouraged him to make the arrest and
since his power to make such arrests comes solely from federal
law, he did not act under color of D.C. law.
Existing case law supports Hardwick’s argument. “The
traditional definition of acting under color of state law requires
that the defendant in a § 1983 action have exercised power
‘possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)). Courts generally
treat “‘under color’ of law . . . as the same thing as the ‘state
action’ required under the Fourteenth Amendment,” Rendell-
Baker v. Kohn, 457 U.S. 830, 838 (1982) (quoting United States
v. Price, 383 U.S. 787, 794 n.7 (1966)), and state action “may be
found if, though only if, there is such a close nexus between the
State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself,” Brentwood
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Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001) (internal quotation marks and citation omitted). “[A]
challenged activity may be state action when it results from the
State’s exercise of coercive power, when the State provides
significant encouragement, either overt or covert, or when a
private actor operates as a willful participant in joint activity
with the State or its agents.” Id. at 296 (internal quotation marks
and citations omitted).
In cases under section 1983, circuit courts looking at
whether defendants have acted “under color of” state law have
thus focused on whether these defendants are state officials or
have conspired with state officials in committing the alleged
illegal acts. For example, in a situation paralleling the one
before us today, the Seventh Circuit held that a plaintiff could
not bring a section 1983 action against federal police officers
who arrested him for state law violations since the state had not
“cloaked the defendants in some degree of authority” and the
defendants had not “conspired or acted in concert with state
officials to deprive a person of his civil rights.” Case v.
Milewski, 327 F.3d 564, 567-68 (7th Cir. 2003). The court
found that the officers acted pursuant to federal law, not state
law: “defendants’ actions were taken under color of federal law;
federal officers appeared at a federal property in response to a
complaint by a federal employee about an allegedly disorderly
person.” Id. at 568; see also Richardson v. Dep’t of Interior,
740 F. Supp. 15, 19-20 (D.D.C. 1990) (holding that the plaintiff
could not bring a section 1983 claim against a federal official
who arrested the plaintiff under the federal Assimilative Crimes
Act, which provides that D.C. law can be applied on federal
property as though it is federal law); Townsend v. Carmel, 494
F. Supp. 30, 32 (D.D.C. 1979) (same). Applying a similar
analysis, the Second Circuit permitted a section 1983 suit to go
forward against federal officials who allegedly conspired with
state officials to violate the plaintiff’s federal rights. Kletschka
v. Driver, 411 F.2d 436, 448-49 (2d Cir. 1969); cf. Johnson v.
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Orr, 780 F.2d 386, 390-93 (3d Cir. 1986) (holding that the
plaintiff could sue certain Air National Guard officials under
section 1983 since New Jersey’s significant control over these
officials meant they were state actors); Tongol v. Usery, 601
F.2d 1091, 1097 (9th Cir. 1979) (concluding that a section 1983
action was appropriate against state officials administering a
federally funded program since these officials were “empowered
to act only by virtue of their authority under state law”).
Following this approach, we conclude that Hardwick’s
arrest of Williams cannot “be fairly treated as that of” the
District of Columbia, see Brentwood Acad., 531 U.S. at 295, and
thus cannot be called D.C. action. Hardwick was a federal
official, not a D.C. official. Only the federal government gave
him the power to make arrests for violations of D.C. law; the
District of Columbia had no authority over him and thus did not
“exercise . . . coercive power” through him, see id. at 296.
Moreover, D.C. officials neither “provide[d] significant
encouragement,” see id., nor otherwise participated in
Hardwick’s arrest and alleged mistreatment of Williams. D.C.
officials got involved only at the end of the incident when
Hardwick took Williams to the D.C. police station. At oral
argument, counsel for Williams urged us to find that once
Hardwick and Williams reached the station, the D.C. officers
conspired with Hardwick to violate Williams’s constitutional
rights. Because Williams never makes that argument in his
briefs, we consider it forfeited. See City of Waukesha v. EPA,
320 F.3d 228, 250 n.22 (D.C. Cir. 2003) (per curiam) (argument
inadequately raised in opening brief is waived). Even were this
argument properly before us and even had Williams offered
evidence of a conspiracy, he would have no basis for
challenging Hardwick’s conduct prior to their arrival at the D.C.
police station.
To the extent that “under color of” D.C. law requires D.C.
action, then, Hardwick prevails because Williams cannot show
such action. Admittedly, the under-color-of-state-law doctrine
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may cast a somewhat wider net than does the state-action
requirement. The Supreme Court has provided no definitive
word on this issue; indeed, two Supreme Court cases decided the
same day offer different perspectives. Compare Rendell-Baker,
457 U.S. at 838 (observing that “[i]n cases under § 1983, ‘under
color’ of law has consistently been treated as the same thing as
the ‘state action’ required under the Fourteenth Amendment”)
(citation omitted), with Lugar v. Edmondson Oil Co., 457 U.S.
922, 935 n.18 (1982) (stating that “although we hold that
conduct satisfying the state-action requirement of the Fourteenth
Amendment satisfies the statutory requirement of action under
color of state law, it does not follow from that that all conduct
that satisfies the under-color-of-state-law requirement would
satisfy the Fourteenth Amendment requirement of state action”).
Specifically, the under-color-of-state-law doctrine may also
apply to individuals who act “with knowledge of and pursuant
to a state-enforced custom requiring” unconstitutional behavior.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 174 n.44 (1970).
In such circumstances, the state’s involvement in the illegality
stems from its unconstitutional statute or custom rather than
from the participation of its officials in the alleged
unconstitutional conduct. See id. We need not address whether
the under-color-of-state-law doctrine applies to such situations
and sweeps beyond the state-action requirement, as Williams
has alleged only that Hardwick’s application of D.C.’s
disorderly conduct statute is unconstitutional, not that the statute
itself violates the Constitution. Thus, even if section 1983
applied to all situations where a defendant acts pursuant to an
unconstitutional state law, Williams could not sue Hardwick
under it.
Finally, we think it worth noting that plaintiffs alleging
abuse by federal officials are not without a remedy. As
Williams’s counsel acknowledged at oral argument, Williams
could have brought an action against Hardwick under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
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403 U.S. 388 (1971). See, e.g., Berry v. Funk, 146 F.3d 1003,
1013 (D.C. Cir. 1998) (noting that plaintiffs can bring Bivens
actions against federal officials and section 1983 actions against
state officials). The district court, however, declined to construe
Williams’s section 1983 claim as a Bivens claim, Williams, No.
01-02638, slip op. at 6 n.3—a decision Williams does not
challenge here.
We affirm the district court’s award of summary judgment
to Hardwick.
So ordered.