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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 5.2.1.6 Persons Acting under Color of Law

There is rarely any doubt in the case law that probation and parole officials are “persons” and that, in performing their duties, they are acting under “color of law” within the meaning of Section 1983. The law also allows suits against municipalities and other local governments, but not merely because such an entity employs an officer who violates someone’s civil rights. Instead, a local government unit will be liable under Section 1983 only when the alleged violation was the product of an official policy or custom. The test for determining whether a local government can be deemed liable was spelled out by the Supreme Court in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

Occasionally a plaintiff will sue a probation or parole official under Section 1983, claiming that an injury or death caused by an offender amounts to a violation of the constitutional rights of the victim or the victim’s family. In Martinez v. California, the Supreme Court held that California parole authorities could not be held responsible under Section 1983 for a murder committed by a parolee five months after his release. 444 U.S. 277 (1980). The offender was in no sense an agent of the parole board, and the decedent’s death was “too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law.” Id. at 285.

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