dissenting.
I disagree with the conclusion that a public defender representing an indigent defendant operates under color of state law, a jurisdictional requirement for an action under 42 U.S.C. § 1983.
The still valid test for determining whether a person is acting under color of state law is the language in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1940) at Page 326, 61 S.Ct. at page 1043: “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.” (emphasis added). See also, Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473, 481-484, 5 L.Ed.2d 492 (1961); Williams v. United States, 341 U.S. 97, 99, 71 S.Ct. 576, 578, 95 L.Ed. 774 (1951); and Screws v. United States, 325 U.S. 91, 108-113, 65 S.Ct. 1031, 1038-1041, 89 L.Ed. 1495 (1945).
The alleged wrongs of defendant, Shepard, were not “made possible only because” she was a public defender. She could have rendered the same alleged ineffective assistance of counsel as a retained attorney or as an appointed counsel. All but one circuit considering the question have reached the conclusion that such a wrong is not under color of state law. Skipper v. Brummer, 598 F.2d 427 (5th Cir. 1979) (per curiam); Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972) (per curiam); Miller v. Barilla, 549 F.2d 648, 650 (9th Cir. 1977) (dictum); and Brown v. Joseph, 463 F.2d 1046, 1047-48 (3rd Cir. 1972) (dictum), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973).1 The Seventh Circuit, in Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978) *1110(per curiam) stands alone with its decision to the contrary. Moreover, it seems fairly significant that the Robinson court, while stating that a public defender acts under color of state law, also held that the defender enjoys absolute immunity from suit rather than the qualified immunity which the majority confers in this case. Id. at 410-411.
The majority, in concluding that a public defender’s relationship to the client is different from any other attorney, relies upon (1) the fact that the public defender is hired, paid and subject to fire by the county, and (2) the fact that the indigent defendant has no choice in selecting his lawyer. By the same token, a court appointed attorney is (1) usually selected and paid by the state and (2) is not usually the product of the indigent’s selection. Yet, this circuit has consistently held that neither retained nor appointed attorneys are liable under 42 U.S.C. § 1983 for deprivation of constitutional rights, because they do not act under color of state law. Harkins v. Eldredge, 505 F.2d 802, 803 (8th Cir. 1974); Barnes v. Dorsey, 480 F.2d 1057 (8th Cir. 1973); Harley v. Oliver, 539 F.2d 1143, 1145-46 (8th Cir. 1976). See also, White v. Bloom, 621 F.2d 276 (8th Cir. 1980).
The reasoning for a conclusion that public defenders do not act under color of state law is best stated in Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979). Although the issue in Ferri was the question of immunity for an attorney appointed by a Federal Court and paid for his services with federal funds, the decision addressed the argument that court appointment and payment with public funds changed the traditional attorney-client relationship. The Court answered the question by stating:
“. . the primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serve pursuant to statutory authorization and in furtherance of the federal interest in. incurring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the individual interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation.” 444 U.S. at page 204, 100 S.Ct. at page 409.
In my view, there is simply no sound basis for distinguishing the public defender’s role as attorney for his client from that of any other attorney because of the source of his remuneration. Indeed, the positions taken by the public defender are always adverse to those of the state. It is difficult for me to conclude that the public defender is acting under color of state law while entering “not guilty” pleas, moving to suppress state’s evidence, objecting to evidence at trial, cross-examining state’s witnesses and making closing arguments in behalf of defendants.
While I would decide the claim against Ms. Shepard on the initial jurisdictional point that the public defender does not act under color of state law and thus does not reach the merits of the immunity question, I am constrained to state my further disagreement with the majority on the matter of immunity from suit. Like the Seventh Circuit panel in Robinson v. Bergstrom, supra, I would hold that the public defender enjoys the same absolute immunity from suit as that of the prosecutor announced in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1975).
My concern is that the present scheme of the law leaves the disgruntled 1983 claimant with one clear target for his anger and frustration with the criminal justice system. The judge and prosecutor are clearly immune from suit and the court appointed counsel is “not acting under color of state law,” Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355. But the majority here has held that the claimant may vent his frustration by suing the public servant who defended him. It seems clear that policy reasons should counsel heavily against subjecting the public defender to *1111such liability. Such officers are notoriously overworked and underpaid. Placing on them the burden of defending suits which are often without merit2 can only make the job of finding competent, permanent staff for public defender offices more difficult. As Judge Anderson stated for the Ninth Circuit in Miller v. Barilla, supra, (holding the public defender absolutely immune under § 1983),
“Any qualified immunity doctrine would force defense of suits well through the pleading stages, and place a substantial drain on an already burdened legal services resource. Additionally, each public defender ‘would be constrained to weigh every decision in terms of potential liability,’ ”
quoting Minns v. Paul, 542 F.2d 899 (4th Cir. 1976).
It should be noted that the Ninth Circuit in Miller, while holding the public defender absolutely immune under § 1983, did not reach the question whether the officer acts under color of state law. This may, of course, be criticized as a decision of the merits without first resolving a jurisdictional controversy. But it further illustrates the currently confused and conflicting state of the law in the various circuits. The Seventh and Eighth Circuits hold a public defender acts under color of state law, but the Seventh Circuit grants an absolute immunity while the Eighth gives a qualified one. The Fifth and Tenth Circuits say, in per curiam opinions, that a public defender does not act under color of state law. And the Ninth Circuit says the immunity of public defenders is absolute, therefore the question of color of state law need not be reached.
A true copy.
. Additionally, these published District Court decisions support the conclusion that public defenders do not act under color of state law: United States ex rel. Wood v. Blacker, 335 F.Supp. 43, 47 (D.N.J.1971) and Peake v. County of Philadelphia, 280 F.Supp. 853 (E.D.Pa.1968).
. The Reports of the Judicial Conference-Report of the Administrative Office, U. S. Courts, 1979, at 221-222, states that filings by state prisoners in civil rights cases increased to 11,-195 in 1979, a 15.1% increase over 1978, and a 451.5% increase over 1970. The report of the Federal Judicial Center, 1980 Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts, at page 9, indicates that 96.5% of the § 1983 cases terminated in federal courts in 1979 were dismissed or otherwise concluded prior to trial.