University of Wisconsin, Parkside
Latest update: January 16, 1999
Faculty on the Site.
California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
Faculty on the Site.
"Color of law" is a legal term that suggests that the person or action described has been cloaked in the authority of the law. Sometimes the cloak is visible: the uniform and badge of the policeman, the robe of the judge, the physical barriers and layout of the courtroom, the flag that leads the parade. Sometimes the cloak is invisible, but nonetheless apparent: the tone of voice, the appearance of age combined with other attributes that suggest seniority and authority, the assumption of authority in bearing and behavior. Sometimes the cloak is implied: an agreement to aid government officials in their official activities.
The Bill of Rights protects United States citizens from unwarranted intrusions by the government. Government officials may not search our homes or our persons without a warrant. The operative word in that last sentence is "government." The Bill of Rights does not protect us from the unlawful actions of ordinary citizens. If an ordinary citizen searches you or your home, sue her. If the government engages in such unauthorized activity, you can sue the government, too. But the courts, in enforcing the Bill of Rights, give you even greater protection if the unauthorized activity results in evidence for a criminal prosecution: they suppress the evidence.
Assume that someone walks up to you on the street, reaches into your pocket, and pulls out the Hope diamond. You are prosecuted for the possession of a very valuable stolen diamond. If the person who plucked the diamond from your pocket did so without a warrant, without any extenuating circumstances under the law, and was a government official, the courts will suppress the evidence. No evidence. No conviction. But if the person who plucked the diamond from your pocket was an ordinary citizen, there is no remedy that will suppress the evidence. Sue him. But that won't get you out of conviction and jail.
Now you are beginning to understand the importance of "color of law." If you can show that the person who plucked the diamond from your pocket acted under "color of law," that is, with apparent government authority, you may be able to get the evidence suppressed. This is one of the issues addressed in all our CSUDH moot court problems. The search and seizure in our problems is always conducted by someone who has some link, albeit arguable, with government officials.