CL601 ILA II Module 9 Assignment Rule Synthesis. Read the two edited cases that follow and synthesize a single rule from the two cases that sets forth the requirements for acting "under color of law" for $ 1983 liability when defendants are pursuing their personal objectives. Please note that you must synthesize the rule in a clear single sentence. In other words, you must synthesize a rule from both cases in one clear single sentence. Proofread your work; writing mechanics are a component of your grade. | Case 1: Perch v. Tarpon Waylon Tarpon, a deputy sheriff, devised a plan to assault Elmo Perch, a man who had engaged in an extramarital affair with Tarpon's wife. With the help of his faithless wife, Tarpon planned to lure Perch to his house for the assault. While at the sheriff's station, Tarpon and a fellow deputy, Michael Gold, made "sap gloves," which have "rubber hosing filled with metal or lead shot attached to the fingers." Tarpon planned to use those weapons to attack Perch. When the unsuspecting Perch arrived at Tarpon's house, the wife pulled him inside where Tarpon tackled him and repeatedly hit him in the head. Tarpon then put his service pistol in Perch's mouth, and told him that "he was a sergeant in the police department, that he would and should kill Perch, and that he could get away with it because he was a cop." Tarpon said, " I'll kill you. I'm a cop. I can." The Tarpons then summoned Deputy Pena to the house, and Tarpon told Perch that Pena was "a fellow sergeant from the police department." Deputy Pena confirmed to Perch that Tarpon had shot people in the past. After the two deputies finally let Perch go, they followed him in Pena's squad car and radioed another officer to do the same. Both squad cars followed Perch to the edge of town. Tarpon was arrested and charged with violating 42 U.S.C. $ 1983, among other things. Section 1983 states that "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State .. subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ...". At trial, Tarpon contended that "he was acting as a jealous husband, not as a police officer." Whether a police officer is acting under color of law under 42 U.S.C. 5 1983 does not depend on duty status at the time of the alleged violation. 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. Tarpon did more than simply use his service weapon and identify himself as a police officer. At several points during his assault of Perch, he claimed to have special authority for his actions by virtue of his official status. He claimed that he could kill Perch because he was an officer of the law. Significantly, Tarpon summoned another police officer from the sheriff's station and identified him as a fellow officer and ally. The men then proceeded to run Perch out of town in their squad car. The presence of police and the air of official authority pervaded the entire incident. The court rejects Tarpon's contention that he was not acting as a police officer, holding that there was sufficient evidence for a jury to find that Tarpon acted under color of law. Case 2: Anton v. Davis Pursuant to 42 U.S.C. $ 1983, plaintiff Anton brings this suit arising from a beating Anton suffered at the hands of Davis, an Orange City auxiliary police officer on August 20, 2012. On that date, teenage Anton and some friends stood outside a deli owned by Davis's parents. Davis walked out of the restaurant, repeatedly yelled "who wants it," brandished a gun, and fired four shots in the air. Anton and his friends fled while Davis pursued. Davis caught Anton and struck him several times with the handgun, injuring him. Davis never told Anton his name and Anton has no recollection of Davis saying anything during or after the attack. Davis walked away. Anton later rejoined his friends, one of whom contacted the police, resulting in Davis's arrest. Davis was off duty at the time of the incident. He was not wearing his auxiliary police officer uniform, did not display his badge, and made no references to being an auxiliary police officer. Although the police report states that Davis had just exited the deli and thought the boys were spray painting the walls of the deli, there is no evidence that the boys were doing so. Auxiliary police are not issued firearms and are prohibited from possessing or carrying them while on duty even if they have a license to otherwise carry them. The gun Davis used to strike Anton was never recovered. The deli is located within the boundaries of the 3rd Precinct, the precinct with which Davis, as an auxiliary officer, is affiliated. Defendant Davis moved for summary judgment. Plaintiff argues that a genuine issue of material fact exists as to whether Davis was acting under color of state law when he attacked Anton. In support, he contends that Davis believed that Anton or his friends had been spray painting the restaurant, that Davis had been taught that such behavior constitutes criminal mischief, a misdemeanor, and would subject the perpetrator to arrest, and that the incident occurred within Davis's "beat' as an auxiliary police officer. Davis responds that when he attacked Anton, he was acting as a private citizen, not under the color of state law, and that he cannot be held responsible for purely private conduct. Auxiliary police officers, all of whom are volunteers, are commissioned pursuant to the Orange State Emergency Defense Act. They are given badges, handcuffs, uniforms and batons; while on patrol, they are required to wear their uniform but are prohibited from carrying firearms. They serve as a trained group of citizens in case of a civil defense emergency or natural disaster and promote better relations between the community and the Orange City Police Department. Although auxiliary officers perform foot patrol, traffic and crowd control, cover special events and conduct other nonhazardous jobs that a regular police officer would perform in uniform, their primary function is to observe and report ongoing criminal activity. Auxiliary police officers have the authority of a private citizen in making arrests, but are discouraged from doing so. In order to maintain a $ 1983 action, the conduct complained of must have been committed by a person acting under color of state law, which means under 'pretense of law.' It is clear that personal pursuits of police officers do not give rise to $ 1983 liability. More is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred. For example, liability may be found where a police officer, albeit off-duty, nonetheless invokes the real or apparent power of the police department. Liability also may exist where off-duty police officers perform duties prescribed generally for police officers. In short, courts look to the nature of the officer's act, not simply his duty status, Even viewing the facts most favorably to the plaintiff, no reasonable jury could conclude that Davis was acting under the color of law when he attacked Anton. Plaintiff concedes that at the time of the incident, Davis was off-duty and out of uniform, that he did not flash his badge and did not in any way announce to Anton or the other boys before, during, or after the incident that he was an auxiliary officer or was acting in that capacity, that he issued no commands, and that the gun he used to inflict the beating was not issued by the police department. Indeed, inasmuch as Orange City auxiliary officers have "no power to arrest beyond that of a private citizen," as a matter of law Davis could not have seized and held Anton pursuant to any authority vested in him as an auxiliary officer; hence, he could not have acted under the color of law when he chased, tackled, and beat Anton. Because Davis did not act under color of law, he cannot be held responsible for his private acts. Defendant's motion to dismiss plaintiff's federal claims with prejudice is granted