Anderson v. Warner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THOMAS ANDERSON, 
Plaintiff-Appellant,
No. 04-15505
v.
CHARLES WARNER; COUNTY OF  D.C. No.
CV-01-03471-MHP
MENDOCINO; COUNTY OF
OPINION
MENDOCINO SHERIFF’S DEPARTMENT,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding

Argued and Submitted
October 21, 2005—San Francisco, California

Filed June 26, 2006

Before: Sidney R. Thomas and William A. Fletcher,
Circuit Judges, and James C. Mahan,* District Judge.

Opinion by Judge William A. Fletcher

*The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.

7137
7140 ANDERSON v. WARNER

COUNSEL

William E. Weiss, San Francisco, California, for the appel-
lant.
 ANDERSON v. WARNER 7141
Duncan M. James, David M. Kindopp, Ukiah, California, for
appellee Charles Warner.

Douglas L. Losak, Office of the County Counsel, Ukiah, Cali-
fornia, for appellee County of Mendocino.

OPINION

W. FLETCHER, Circuit Judge:

In this § 1983 suit, Thomas Anderson appeals from the dis-
trict court’s grant of summary judgment to individual defen-
dant Charles Warner, as well as defendants Mendocino
County Sheriff’s Office and County of Mendocino (collec-
tively “the County”). Anderson contends that Warner
assaulted him while acting under color of state law. Anderson
also contends that the County negligently hired and super-
vised Warner, and conducted an inadequate investigation into
the assault by Warner. We reverse as to Warner and affirm as
to the County.

I. Background

On the morning of July 30, 2001, Anderson and Warner
were slowly driving their own vehicles toward the Redwood
Valley Parade. Anderson was momentarily distracted and
accidentally rear-ended Warner’s vintage pickup truck. War-
ner got out of his truck, went back to Anderson’s vehicle,
opened Anderson’s door, and began hitting Anderson in the
face and neck. Warner’s wife, who had been a passenger, also
got out of the truck. A probation officer and friend of Warner,
Thomas Cropp, was driving the vehicle in front of Warner.
Cropp got out of his vehicle and came back to join Warner
and his wife. At the time of the assault, Warner was employed
by the Mendocino County Sheriff’s Department as the jail
commander. On the day of the assault, Warner was off duty
and out of uniform.
7142 ANDERSON v. WARNER
Recounting the assault in his declaration, Anderson stated:

I heard someone yell t[o] call the police and then
a woman I later learned was Mr. Warner’s wife
yelled, “he is a cop”. I then said to Mr. Warner,
“You’re a cop?” and something to the effect that this
was another Rodney King. He replied that he was
and I heard him tell witnesses he was a cop and to
stay back. I also heard a person who I now know is
named Thomas Cropp tell people he was a probation
officer and that this was police business. He told
people to move on. Mr. Warner did not contradict
him.

In his deposition, Anderson recounted that he had briefly
been rendered unconscious by the assault. He then described
what he saw after he regained consciousness:

Well, what happened after I came to, I sat up and
noticed Mr. Warner and this other guy and this lady
holding their hands up, telling the crowd to disperse
— that it’s a police matter, and that Warner was an
officer[.]

“This other guy,” described by Anderson as having gray hair
and a “small gray beard,” was Thomas Cropp. “This lady”
was Warner’s wife. The deposition continued:

Q: Tell me what you heard the man with gray hair
and a beard say?

A [by Anderson]: I heard him say that for the
crowd to disperse.

Q: Did he use the word “disperse”?

A: Yes.
 ANDERSON v. WARNER 7143
Q: What were his actual words if you can remem-
ber?

A: He was just telling the crowd to back up, to dis-
perse, this is police business.

...

Q: Now did you also hear some other person make
some comment . . . ?

A: Yes.

Q: Who was that?

A: This big woman on the right-hand side of Mr.
Warner, on the right-hand side of the crowd. And
she was saying that he was a cop.

Q: What do you recall her actual words to be?

A: “He’s a cop. Let him alone. Look what he did
to his truck.”

Later in the deposition, Anderson stated that fire department
personnel came to the scene:

Mr. Warner looked and seen that the fire department
was running down the road. He went — he slid back
behind my seat and held my head, and he was telling
me . . . that he was a police officer, not to say any-
thing, that he’ll fix it. He’ll work it out.

Tony Maples was a witness to the assault. He provided a
sworn declaration to which he attached a transcript of a taped
interview with the police after the event. Maples stated in the
interview:
7144 ANDERSON v. WARNER
I yelled “Somebody call the cops[.]” And [the lady
in the red shirt] goes, “He is a cop”. And I went, “Oh
my gosh” . . . and then . . . I started yelling, “Then
what is he doing this for?” . . . And the lady goes,
“Well look at his — look what that guy did to my —
did to his truck. Let him be — let him hit him.”

Ginerva Chandler, another witness, provided a sworn dec-
laration to which she attached a transcript of her taped inter-
view with the police. She stated that she had passed the scene
of the accident on her bicycle:

And we could hear them yelling and we assumed the
guy in [Anderson’s car] was hurt and they were
going to try and get him out of the car. . . . And then
what I heard was a woman yelling, you’ll have to
excuse the language, “Fucking caused the accident,”
and then yelling, “He’s a cop. He’s a cop,” and we
saw them reaching in the car to get the gentleman in
the car out and we just kept rolling.

Anderson filed a complaint in federal district court alleging
violations of 42 U.S.C. § 1983 as well as various state law
claims. Defendants Warner and the County moved for sum-
mary judgment. The district court granted Warner’s motion
on the ground that he had not acted under color of state law.
It granted the County’s motion on the ground that Anderson
had not presented any evidence of a causal connection
between his injuries and either the asserted deficient training
and supervision or the asserted failure to investigate. The dis-
trict court dismissed the state-law claims without prejudice
under 28 U.S.C. § 1367(c)(3).

Anderson timely appealed. We have jurisdiction under 28
U.S.C. § 1291.

II. Standard of Review

We review the district court’s grant of summary judgment
de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
 ANDERSON v. WARNER 7145
2004). Viewing the evidence in the light most favorable to the
nonmoving party, we must determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

III. Discussion

[1] Section 1983 provides:

Every person who, under color of any statute, ordi-
nance, 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 immu-
nities secured by the Constitution and laws, shall be
liable to the party injury in an action at law[.]

Section 1983 does not create any substantive rights, but is
instead a vehicle by which plaintiffs can bring federal consti-
tutional and statutory challenges to actions by state and local
officials. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 978
(9th Cir. 2004) (internal quotation marks omitted). “The pur-
pose of § 1983 is to deter state actors from using the badge
of their authority to deprive individuals of their federally
guaranteed rights.” McDade v. West, 223 F.3d 1135, 1139
(9th Cir. 2000).

We discuss the claims against Warner and the County in
turn.

A. Warner

[2] Anderson claims that Warner violated § 1983 when he
invoked his law enforcement status in order to keep others
from interfering with the assault. To state a claim under
7146 ANDERSON v. WARNER
§ 1983, a plaintiff must both (1) allege the deprivation of a
right secured by the federal Constitution or statutory law, and
(2) allege that the deprivation was committed by a person act-
ing under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988). Our focus is on the second requirement.

At the time of the assault, Warner was an employee of the
Mendocino County Sheriff’s Department. He was the county
jail commander with the rank of lieutenant. Earlier in his
career, as a lower-ranking officer, Warner had frequently
worn a uniform while on duty. In his position as jail com-
mander, he rarely wore a uniform even while on duty. Warner
was entitled, by virtue of his position, to carry a gun while
performing his duties in the jail and while transporting prison-
ers outside the jail. He was not entitled to carry a gun while
off duty.

[3] As a county jail commander, Warner’s status under Cal-
ifornia law was that of a “custodial officer.” Under California
Penal Code § 831.5(a), “a custodial officer is a public officer,
not a peace officer, employed by a law enforcement agency
[of a county] . . . who has the authority and responsibility for
maintaining custody of prisoners . . . .” Section 831.5(f) pro-
vides that custodial officers may make warrantless arrests
only while on duty: “A custodial officer may use reasonable
force in establishing and maintaining custody of persons
delivered to him or her by a law enforcement officer; may
make arrests for misdemeanors and felonies within the local
detention facility pursuant to a duly issued warrant; [and] may
make warrantless arrests pursuant to Section 836.5 only dur-
ing the duration of his or her job . . . .”

Warner did not have the status of “peace officer” under
California law. “Peace officers,” as defined in California
Penal Code § 830.1, have considerably broader powers than
“custodial officers.” For example, under § 836.5(a), peace
officers may make warrantless arrests “whenever the officer
or employee has reasonable cause to believe that the person
 ANDERSON v. WARNER 7147
to be arrested has committed a misdemeanor in the presence
of the officer or employee that is a violation of a statute or
ordinance that the officer or employee has the duty to
enforce.”

[4] A police report in the record summarizes an interview
between Warner and an investigating police officer. Warner
is reported to have said that he acted because he thought
Anderson was trying to “flee the scene of the accident,” and
that he “punched” Anderson “about two times.” Warner
argues that, as a custodial officer, he had no authority to try
and prevent Anderson from leaving the scene of the accident
or to issue commands to the crowd that had gathered at the
scene. The district court noted that, as a custodial officer,
Warner had no authority to make a warrantless arrest of
Anderson. The district court concluded, “[e]ven assuming
Warner identified himself as a police officer and issued com-
mands to the crowd, his conduct is not related to the perfor-
mance of his duties as a custodial officer. Warner was not in
fact performing any of his official duties, nor did the alleged
conduct arise from the performance of such duties.”

Warner relies on the reasoning of the district court to argue
that he was not acting under color of state law. He argues that
because he was a “custodial officer” rather than a “peace offi-
cer,” he could not have been acting under color of state law
within the meaning of § 1983 when he assaulted Anderson.
He contends that he could not have been abusing his author-
ity, and hence acting under of color of state law, because the
scope of his authority did not extend to the acts he committed.
We disagree with Warner’s contention that he was not acting
under color of state law.

[5] There is no “rigid formula” for determining whether a
state or local law official is acting under color of state law.
Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 550 (9th Cir.
1974). “State employment is generally sufficient to render the
defendant a state actor,” Atkins, 487 U.S. at 48 (internal quo-
7148 ANDERSON v. WARNER
tations and alterations omitted), but “whether a[n] . . . officer
is acting under color of state law turns on the nature and cir-
cumstances of the officer’s conduct and the relationship of
that conduct to the performance of his official duties.” Marti-
nez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). “Misuse of
power, possessed by virtue of state law and possible only
because the wrongdoer is clothed with the authority of state
law, is action taken ‘under the color’ of state law.” United
States v. Classic, 313 U.S. 299, 326 (1941). “It is firmly
established that a defendant in a § 1983 suit acts under color
of state law when he abuses the position given to him by the
State.” Atkins, 487 U.S. at 49-50.

[6] We hold that Warner was acting under color of state
law when he invoked his law enforcement status to keep
bystanders from interfering with his assault on Anderson. In
the circumstances of this case, there are three critical require-
ments that must be satisfied. First, the defendant’s action must
have been “performed while the officer is acting, purporting,
or pretending to act in the performance of his or her official
duties.” McDade, 223 F.3d at 1140. Second, the officer’s pre-
tense of acting in the performance of his duties must have had
the purpose and effect of influencing the behavior of others.
See Van Ort v. Estate of Stanewich, 92 F.3d 831, 839-40 (9th
Cir. 1996) (finding no color of state law because the victim
had not opened the door based on defendant’s status as a
police officer). Third, the challenged conduct must be “related
in some meaningful way either to the officer’s governmental
status or to the performance of his duties.” Martinez, 54 F.3d
at 987.

[7] We consider the first two requirements together: (1) the
defendant must have pretended to act in the performance of
his official duties, (2) with the purpose and effect of influenc-
ing the behavior of others. Viewing the evidence in Ander-
son’s favor, it is clear both that Warner pretended to act in
performance of his official duties, and that his actions had the
purpose and effect of discouraging bystanders from interfer-
 ANDERSON v. WARNER 7149
ing. Anderson stated in his declaration that “I heard [Warner]
tell witnesses he was a cop and to stay back.” In his deposi-
tion, he stated that after he regained consciousness, he “no-
ticed Mr. Warner and this other guy and this lady holding
their hands up, telling the crowd to disperse — that it’s a
police matter, and that Warner was an officer.” Further, it is
reasonably clear from the statements of witnesses Maples and
Chandler that Warner’s statements had the effect of influenc-
ing the behavior of others. For example, when Chandler heard
that Warner was a “cop,” she did not get off her bicycle, but
rather “just kept rolling.”

[8] The third requirement is that Warner’s conduct must be
sufficiently related “either to the officer’s governmental status
or to the performance of his official duties.” Martinez, 54
F.3d at 987. This requirement cannot mean that an officer
must have been acting within the scope of his authority in
order for him to have been acting under color of state law. If
that were true, no § 1983 suit could ever succeed, for the
premise of a successful suit is that the officer acted illegally
— that is, outside the scope of his authority. Instead, the
requirement must mean only that the challenged conduct must
have a sufficiently close relationship to the officer’s “govern-
mental status” or to “the performance of his duties.”

[9] In the context of this case, this third requirement means
that Warner must have used “the badge of [his] authority” to
deprive an individual of his rights, McDade, 223 F.3d at 1139,
by invoking his “governmental status” to influence the behav-
ior of those around him. A key aspect of this requirement is
that the officer must have invoked his actual status. For exam-
ple, a law enforcement officer employed by the Sheriff’s
Office who says, “I am a cop, stand back” is invoking his
governmental status. By contrast, a janitor employed by the
Sheriff’s Office who says the same thing is not invoking his
governmental status — for the simple reason that he is not, in
fact, a “cop.”
7150 ANDERSON v. WARNER
[10] We hold that Warner invoked his “governmental sta-
tus” within the meaning of this requirement. According to
Anderson, Warner said that he was a “cop” and told the
bystanders to stay back. “Cop” is a generic, non-technical
term. It can, of course, refer to a “peace officer” under Cali-
fornia law. But it can also encompass and refer to Warner’s
status as a “custodial officer.” If Warner had been a janitor in
the county jail, his statement that he was a “cop” would not
have been enough to render his conduct under color of law,
for the term “cop” would have been a clearly inaccurate char-
acterization of his status. But Warner was, instead, a lieuten-
ant in the Mendocino County Sheriff’s Department and the
commander of the county jail. “Cop” is a sufficiently capa-
cious term to include that status.

[11] We therefore conclude that when Warner told the
bystanders that he was a “cop” and ordered them to stay back,
he was acting under color of state law. “Misuse of power,
possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law, is action taken ‘under color of’ state law.” Classic, 313
U.S. at 326.

B. The County

Local government entities are considered “persons” for
purposes of § 1983 and can be sued directly for monetary,
declaratory, or injunctive relief where “the action that is
alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation or decision officially adopted
and promulgated by that body’s officers.” Monell v. Dep’t of
Soc. Servs. of New York City, 436 U.S. 658, 690 (1978). How-
ever, a municipality “cannot be held liable under § 1983 on a
respondeat superior theory,” that is, “solely because it
employs a tortfeasor.” Id. at 691 (emphasis in original).

[12] In order to hold the County liable under § 1983,
Anderson must show “(1) that he possessed a constitutional
 ANDERSON v. WARNER 7151
right of which he was deprived; (2) that the [County] had a
policy; (3) that the policy ‘amounts to deliberate indifference’
to [Anderson’s] constitutional right; and (4) that the policy is
the ‘moving force behind the constitutional violation.’ ”
Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quot-
ing City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)).
There also must be a “direct causal link” between the policy
or custom and the injury, and Anderson must be able to dem-
onstrate that the injury resulted from a “permanent and well
settled practice.” McDade, 223 F.3d at 1141 (internal quota-
tions omitted). A failure to train or supervise can amount to
a “policy or custom” sufficient to impose liability on the
County. City of Canton, 489 U.S. at 389-90.

[13] The district court concluded that even if Warner had
been acting under color of state law, Anderson had provided
insufficient evidence to connect Warner’s actions to any pos-
sible inadequate training or supervision. Anderson contends
that the County was aware that Warner had a reputation for
being prone to violence and aggressive behavior and that it
negligently hired Warner for a position where there was a
substantial risk that Warner would violate the rights of others.
In addition, Anderson contends that the County failed to train
Warner adequately in the proper use of his authority and was
negligent in its supervision of him. However, Anderson has
not shown that the County’s asserted deficiencies in hiring,
training and supervision, if any, amount to a policy reflecting
“deliberate indifference to the rights of persons with whom
the police come into contact.” See City of Canton, 489 U.S.
at 388.

[14] We therefore affirm the district court’s grant of sum-
mary judgment to the County.

IV. Conclusion

For the foregoing reasons, we reverse the district court’s
grant of summary judgment with respect to Warner and affirm
7152 ANDERSON v. WARNER
the grant of summary judgment with respect to the County.
We remand to the district court for further proceedings con-
sistent with this opinion.

AFFIRMED in part; REMANDED in part. Costs to
Anderson with respect to the appeal against Warner. Costs to
the County defendants with respect to the appeal against
them.