Professor Sarah Ricks
Rutgers School of Law – Camden
Class Four – 18 November
Constitutional Litigation doctrine: action under “color of law”
Skills: Brief Writing (continued), Client Interviewing
I. Finish Effective Brief Writing Techniques
One minute oral arguments
II. Introduction to Client Interviewing
Attorney’s Goal for Client Interview
1. Forming an attorney client relationship
2. Learning the client’s goals and interests
3. Learning what the client knows about the facts
4. Reducing the client’s anxiety
5. Explaining the attorney’s policies and procedures to the client
Client’s Goals for the Interview
o To tell his or her story (in a confidential setting)
o To be heard
o To get advice, assistance, perspective
o To understand the process
o To develop a good working relationship
o To put best foot forward (to impress)
o To be helpful, to provide the “right” information
Client Centered Lawyering - The Client Interview
o Listen actively and carefully
o Ask questions to help you understand your client’s interests in addition to the client’s position
· Position = what the client wants (money, public vindication, an injunction).
· Interest = why the client wants something: (I want money because I have to pay the rent; I want public vindication b/c I was wronged)
o Tell the client what to expect/next steps in process
An effective client interview will include:
1. Preparation
2. An opening
3. Information gathering – use a funnel technique
START with open ended questions
THEN direct client’s attention to particular topic, ask narrower questions
4. Goal and interest identification
5. Preliminary strategy
6. A closing
III. Client Interviewing and Action “Under Color” of Law
A. The doctrine of action “under color” of law
The United States Supreme Court has held that acting “under color” of law means that the defendant exercised government power and that the conduct was “made possible only because the wrongdoer is clothed with the authority of law.” The Supreme Court has held that action “under color” of law includes both action pursuant to local law and action in violation of local law.
· What is “private” action by a government employee?
· What is “state action” by a government employee?
The meaning of action “under color” of law, or state action, is straightforward when a public employee is sued for acts the employee took while exercising the employee’s public responsibilities. Generally, employment by a state or local government is enough to hold the defendant to be a state actor.
The “color of law” or state action inquiry is complex when a state or local government employee is off-duty and acts for private reasons. Lower federal courts have identified factors to weigh in determining whether an off-duty state or local government employee acted on behalf of the state or instead acted as a private person.
B. Model Civil Jury Instruction
Before a jury deliberates, the judge teaches them the law. Jury instructions are the judge’s words to the jury. They are based on a model and tailored to the evidence from the trial. Below is an instruction from a judge to a jury about “action under color of law.”
Defendant Mr. Caruso is an official of the city of Chicago. However, Mr. Caruso alleges that during the events in this lawsuit, Mr. Caruso was acting as a private individual, rather than acting under color of state law.
For an act to be under color of state law, the person doing the act must have been doing it while clothed with the authority of the state, by which I mean using or misusing the authority of the state. You should consider the nature of the act, and the circumstances under which it occurred, to determine whether it was under color of state law. The circumstances that you should consider include:
· Whether the defendant was on duty. This factor is relevant but not determinative. An off-duty officer who purports to exercise official authority acts under color of state law. Conversely, an officer who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.
· Whether the defendant used or was carrying a weapon issued by the police department.
· Whether the defendant used a police car or other police equipment.
· Whether the defendant used his or her official position to exert influence or physical control over the plaintiff.
· Whether the defendant purported to place someone under arrest.
· Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under color of state law.
· Whether the defendant's actions were related to his or her job as a police officer.
· Whether the events took place within the geographic area covered by the defendant's police department.
· Whether the defendant identified himself or herself as a police officer.
· Whether the defendant was wearing police clothing.
· Whether the defendant showed a badge.
· Whether police department regulations provide that officers are on duty at all times.
You must consider all of the circumstances and determine whether plaintiff has proved, by a preponderance of the evidence, that defendant Mr. Caruso acted under color of state law.
C. Exercise: Draft Client Interview Questions
Please watch the 2-minute video of an off-duty Chicago police officer attacking a female bartender.
· The video is available at http://constitutionallitigation.rutgers.edu/
· Select “Resources” from the horizontal menu, scroll down to bottom video of “Security camera video of an off-duty Chicago police officer assaulting a bartender.”
Your law firm has agreed to represent the bartender. The firm has assigned you to interview the bartender. You know the person who attacked the bartender was an off-duty police officer. You have the video from the bar’s security camera. You do not have any other evidence. The only defendant will be the off-duty police officer.
To interview your client, assume you will first let the client tell her story. After you have asked open-ended questions, you will want to ask for details relevant to whether the police officer acted “under color of law.”
Focusing only on whether the police officer was acting under color of law, what questions will you ask your client?
Please write questions for your client below.
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