The language quoted in the previous paragraph, employing as it does the metaphor of causation, represents one model for determining when a person has acted under color of law. Other models have also been used. In Part II of this Article, I note briefly the inconsistency of outcome that has marked this area, and identify the various models used, relying in part on the efforts of other commentators to describe the models that might be available from a theoretical standpoint. In the course of identifying these models, I note that many, if not all, lack authority either in the history of Section 1983 or the Fourteenth Amendment, and appear to have developed from similar but quite distinct areas of common law and federal statutory jurisprudence; I note also that many of the models lack the specific standards necessary for consistent application. In Part III of this Article I undertake a brief examination of what model most closely matches the Supreme Court's "state action" jurisprudence with respect to each of five selected kinds of Constitutional deprivation. In this section, I make particular reference to the costs that are incurred when the Court tries to adhere to an inadequate model, both in terms of its effect on Section 1983 jurisprudence and its effect on substantive constitutional law. Finally, in Part IV of this Article, I propose a model that is in some ways narrower than most of those currently being used, while being, in other ways, broader than most of those currently being used. In any event, I believe that, when compared to the other models currently employed, the proposed model is more closely tied to the history and purposes of Section 1983, more likely to yield consistent results, and less likely to skew constitutional doctrine.
Miller, Douglas S.
"Off Duty, Off the Wall, But Not Off the Hook: Section 1983 Liability for the Private Misconduct of Public Officials,"
Akron Law Review: Vol. 30:
3, Article 1.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol30/iss3/1