Can a public official be found to have acted under color of state law while off duty?

MultiRegion, United States of America

The following excerpt is from Gleason v. Scoppetta, 13-2770-cv (2nd Cir. 2014):

"[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." West, 487 U.S. at 50. Moreover, the "[m]isuse 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." Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion) (internal quotation marks omitted). However, not all acts performed by public employees are under color of state law: "acts of officers in the ambit of their personal pursuits are plainly excluded." Id. at 111. "[T]here is no bright line test for distinguishing personal pursuits from activities taken under color of law." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994) (internal quotation marks omitted). We look to "the nature of the officer's act" to determine whether he acted under color of state law, not just his "status" of being on or off official duty. Id.

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