concurring.
I concur in the Court’s reinstatement of Temple’s conviction under 26 U.S.C. § 7214(a)(1) and its reversal of her conviction for impeding an officer of the United States engaged in official duties under 18 U.S.C. § 111. I write to express my concern that as a result of this case and United States v. Giordano, 442 F.3d 30 (2d Cir.2006), this Court appears to have allowed a victim’s subjective beliefs or fears about a defendant’s ability or willingness to use his or her public position to cause harm to serve as the basis for finding that a defendant was acting “under color of law.”1 There is no basis for allowing subjective impressions, beliefs, or fears to cloud, much less drive, color-of-law analysis, and doing so will make consistent application of color-of-law statutes in this Circuit difficult, if not impossible.
When two New York Police Department (NYPD) detectives arrested Temple, she asserted that she was an IRS employee with “the ability to initiate investigations and audits into the [detectives’] tax histories”, and that there “were a number of brothers and sisters [in the IRS] who held a grudge against the NYPD.” The majority opinion concludes these threats were “under color of law.” I do not quarrel with much of the majority opinion, including this conclusion, but I would hold that Temple’s threats were under the color of law without regard to the detectives’ subjective beliefs or fears of whether Temple either did or did not have the ability or the willingness to carry out her threats. It is Temple’s use of her status as an IRS *142employee to effectuate the harm the officers suffered — that is, to willfully oppress by threatening to initiate (or have others initiate) an audit — that made her threats “under color of law.” It was the nexus between Temple’s status and the harm, as evidenced by her objective manifestations, that render her acts “under color of law,” and therefore a violation of 26 U.S.C. § 7214(a)(1).
Existing case law, including cases dealing with § 7214 and its prior versions, as well as scholarly commentary, supports the conclusion that Temple’s threats were made “under color of law.” Temple’s threats departed from the IRS’s “high standards of conduct demanded of those holding that office,” United States v. Stern, 418 F.2d 198, 199 (2d Cir.1969), irrespective of the detectives’ beliefs or fears. Yet I worry that the majority opinion may be read as implying that the detectives’ subjective beliefs or fears that Temple could or would carry out her threats are relevant, even though there is no reason to interject this subjective component into the analysis. Majority op. pp. 138 -139.2 As we have held, reliance on a victim’s subjective reaction “misses the essence of the color of law requirement.” Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir.1994).
In my view, a determination that a defendant acted under color of law should be based on objective criteria. In other words, in personal capacity cases the application of color-of-law statutes should turn on (1) the defendant’s status as a public official or state actor,3 (2) the victim’s reasonable and objective awareness of the defendant’s status, and (3) the defendant’s use of the victim’s awareness to accomplish the harm. When subjective beliefs or fears are interjected, it is no longer the defendant’s status and conduct as a public official or state actor that determines whether a color-of-law statute will apply. Rather, even where the official never mentions or uses his or her position as a government official, a victim’s belief or fear, no matter how unreasonable, can result in liability for the defendant. A recent case in this Circuit, United States v. Giordano, illustrates this problem.
In Giordano, this Court concluded that evidence presented at the trial of the may- or of Waterbury, Connecticut was sufficient to support a conviction under 18 U.S.C. § 242. See Giordano, 442 F.3d at 45-47. Section 242 makes it a criminal act to (1) willfully and (2) under color of law (3) deprive a person of rights protected by the Constitution or laws of the United States. 18 U.S.C. § 242. Giordano sexually abused two minor girls, one the daughter of the prostitute he often patronized, the other the prostitute’s niece. Giordano, 442 F.3d at 33. No evidence was presented that Giordano used or even mentioned his status as mayor to establish or force the girls to engage in sexual activity. The only evidence cited by the majority opinion in Giordano for support of its assertion that Giordano used his authority as mayor to sexually abuse the girls was the girls’ subjective beliefs and fears that the mayor could use that status to get the girls in trouble. Id. at 43^47. Judge Ja*143cobs’s dissent in Giordano ably demonstrates that, although reprehensible, Gior-dano’s conduct was not under color of law because “[a]ll would have happened as it did happen if Giordano had been an architect.” Id. at 50 (Jacobs, J., dissenting). That is, Giordano’s conduct was not under color of law because the “conduct made no critical use of his office.” Id. It is impossible to read the majority and dissenting opinions in Giordano and not reach the conclusion that the majority opinion — by relying so heavily on the victims’ subjective beliefs and fears as to Giordano’s power and his intention to use that official power — has significantly altered the intended application of color-of-law statutes and made it difficult to predict the situations in which they will now be applied.
Case law supports the proposition that an IRS agent, acting in connection with a revenue law, who uses his or her status as an IRS employee to achieve the harm prohibited by § 7214(a)(1) — willful oppression, in this case by threatening an audit — does so “under color of law.” One will not find extensive discussion of “color of law” in § 7214(a)(1) cases,4 but rather the vast majority of color-of-law cases deal with 42 U.S.C. § 1983, along with § 1983’s criminal counterpart, 18 U.S.C § 242.5 The general standard is well-settled: “[mjisuse of power, possessed by virtue of ... law and made possible only because the wrongdoer is clothed with the authority of ... law is [action] taken under color of law.” United States v. Walsh, 194 F.3d 37, 50 (2d Cir.1999) (first alteration in the original) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). Put simply, “ ‘color’ of law means ‘pretense’ of law.” Monsky v. Moraghan, 12.7 F.3d 243, 245 (2d Cir.1997) (quoting Pitchell, 13 F.3d at 547-48); see also Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). An act can be under color of law even if an official does not have authority to perform the act that leads to the harm, because color of law includes even an official’s *144abuse of governmental power. West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). In evaluating whether an act was under color of law, one must assume the official had the authority or power to act if it was the official’s governmental status that led to the harm. Cf. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 288-89, 33 S.Ct. 312, 57 L.Ed. 510 (1913). What color of law does not cover are “acts of officers in the ambit of their personal pursuits,” Screws, 325 U.S. at 111, 65 S.Ct. 1031, and understandably there is no bright line separating those personal pursuits from actions taken under color of law, Pitchell, 13 F.3d at 548.
Case law does not, however, support the notion that victims’ subjective beliefs drive color-of-law analysis. To do so would eliminate any distinction between acts under color of law and personal pursuits. The most principled application of color-of-law statutes will come only from separating victims’ subjective beliefs and fears from the analysis. As noted above, reliance on a victim’s subjective reaction “misses the essence of the color of law requirement.” Pitchell, 13 F.3d at 549. Others have, in part, explained why:
In the section 1983 context ... the issue [for determining whether an individual has acted under color of law] is not that the injured party mistakenly thinks that the agent acts for the governmental entity. If it were, then a rapist who lures his victims by flashing a fake police badge would be the subject of constitutional commands, while a police officer who engages in illegal government surveillance while in plainclothes would be acting beyond the reach of those commands. Rather, the problem of conduct under color of office concerns the distinctive social meaning occasioned by abuse of official authority. It arises only when the actor has a bona fide identity as a state official or when he or she acts in concert with such an official.
Steven L. Winter, The Meaning of “Under Color of’ Law, 91 Mich. L. Rev. 323, 401 (1993) (internal quotations and citation omitted). Introduction of the victim’s subjective beliefs or fears regarding whether an official can or will cause a harm as a result of his or her status would mean a defendant would be deemed liable or culpable in situations where there is no nexus between the status and the harm. But outside the context of official-capacity cases, or where the defendant uses the victim’s awareness of the defendant’s status, there simply is no nexus between status and harm such that the act can be classified as occurring “under color of law.” Rather, in those cases lacking the nexus, the act is done by a public official engaged in a personal pursuit.
Allowing victims’ subjective beliefs to cloud or drive the analysis will mean that culpability (and presumably subsequent civil liability) would attach in situations, like Giordano, where the defendant made no use of his status in molesting the girls. Without using the girls’ subjective beliefs and fears that Giordano had the ability and willingness to use his status as a means to effectuate harm, the majority opinion in Giordano would be unable to point to a single fact to support its holding. In the case of Temple, it is her conduct, and the use of the detectives’ reasonable and objective awareness of her status as an IRS agent to harm them, that drives the analysis, not whether the detectives subjectively believed or feared that Temple could or would carry out her threats.
Instead of considering a victim’s subjective beliefs or fears, courts should remain focused on objective criteria, specifically, *145the defendant’s status, the victim’s objective and reasonable awareness of that status, and the defendant’s use of the victim’s awareness to accomplish the harm. Introducing victims’ subjective beliefs or fears into color-of-law analysis will result in the inconsistent and uncontrolled application of statutes prohibiting acts done “under color of law.”
. Color of law and state action cases have been described as falling into two broad categories: official capacity cases where the wrongdoer is the state ("use of authority” cases), see, e.g., Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), and personal capacity cases ("abuse of authority” cases). See Richard H.W. Maloy, "Under Col- or of’ — What Does It Mean?, 56 Mercer L. Rev. 565, 599-600 (2005). This case involves the second, more difficult category, "abuse of authority,” which sometimes involves individuals not employed by the government. Professor Maloy further divides abuse of authority cases into five sub-categories: (1) "the state actor is an employee or agent of the state with complete authority to take certain action, but the state actor intentionally or negligently misuses that authority,” (2) "the state actor is merely following” a governmental dictate, (3) "the state actor, whether or not an employee or agent of the state, conspires with an employee of the state who is either guilty of the deprivation or has a ‘symbiotic’ relationship with the state,” (4) "the state actor is usually not an employee or agent of the state but is guilty of the deprivation while receiving some benefit from the state,” and (5) "the state actor is usually not an employee or agent of the state, but is guilty of the deprivation, having been delegated some authority by the state that is historically ... a 'public function.' ” Id. at 600. The most common, and most problematic, color-of-law/state-action cases are contained in the first subcategory of personal capacity cases: instances where the state actor misuses or abuses his or her authority. Id. at 608.
. The district court opinion in the instant case presents the other side of this problem. The district court found that Temple’s threats were not under color of law because when she was arrested she was in handcuffs and later her responses to questions at the police station should have led the officers to believe that she could not or would not carry out her threats. United States v. Temple, 342 F.Supp.2d 233, 240 (S.D.N.Y.2004).
. This would also include individuals acting as agents on behalf of government officials or individuals conspiring with government officials.
. There are only a few cases dealing with "color of law” as used in § 7214(a)(1), but it is not because the statute is new. Misconduct under color of law has been an element in statutes governing IRS employee conduct for over 135 years. The language of modem day 26 U.S.C. § 7214(a)(1) is almost identical to its original, 1868, formulation: "[A]ny officer or agent appointed and acting under the authority of any revenue law of the United States [from] any extortion or wilful oppression, under color of law....” Act of July 20, 1868, ch. 186, sec. 98, 15 Stat. 165 (1868). What cases there are present no instances of prosecutions that were ultimately successful. One case, United States v. Deaver, 14 F. 595 (W.D.N.C.1882), lays out the district court’s jury charge, including the requirement that the action be "under color of law,” without mentioning whether or not the defendant was ultimately convicted. See also Williams v. United States, 168 U.S. 382, 388, 18 S.Ct. 92, 42 L.Ed. 509 (1897) (conviction for extortion under color-of-law under one of § 7214's predecessors, 26 I.R.C. § 4047, overturned on appeal because Chinese inspector at U.S. port was not an officer or agent acting under authority of the revenue laws); United States v. Waldin, 139 F.Supp. 156, 158-59 (E.D.Pa.1951) (prosecution under 26 U.S.C. § 4047(e)(10) not allowed on grounds that tax collector did not use his authority, or even "the color of authority,” in scheme to get U.S. Attorney's alleged indictment quashed).
. Even so, the phrase "color of law,” or as it has alternatively been called, "color of office” or “colore officii,' has an extensive history, both in England and the United States, predating the enactment of the civil rights statutes. Steven L. Winter, The Meaning of “Under Color of Law, 91 Mich. L. Rev. 323, 342-356 (1993) (analyzing the phrase's history here and in England and noting that the concept was widely used and accepted in both countries well before its codification). In the United States, reference to an action taken "under colour of law” appears in cases as early as 1788. See, e.g., Zane’s Ex'rs v. Cow-perthwaite, 1 U.S. (1 Dall.) 312, 313, 1 L.Ed. 152 (1788).