.
EVA C. TEMPLE case
http://www.ca2.uscourts.gov:8080/isysna ... cr_opn.pdf
page 13
“
Willful” repeatedly has been defined in the criminal context as intentional, purposeful, and voluntary, as distinguished from accidental or negligent. See Black’s Law Dictionary 1630 (8th ed. 2004).
Evil intent or bad purpose are not implicit in this definition.
“
Oppression” includes the “unjust or cruel exercise of authority or power.”
Merriam-Webster’s Third New 14 International Dictionary, Unabridged 1584 (1993).
In criminal law, it is “[a]n abuse of office committed by a public official.”
OXFORD ENGLISH DICTIONARY ONLINE,
http://dictionary.oed.com/entrance.dtl (search for “oppression”) (definition from the June 2004 Draft Revision to the 1989 Second Edition) (last visited February 27, 2006).
For a definition of the phrase “
under color of law,” we turn to the cases interpreting
18 U.S.C. § 242 and 42 U.S.C. 19 § 1983,
the criminal and civil statutes prohibiting the deprivation under color of law of rights protected by the Constitution and laws of the United States.
[t]he Supreme Court has broadly interpreted the color of law requirement, concluding that “[m]isuse of power, possessed by virtue of [federal] law and made possible only because the wrongdoer is clothed with the authority of [federal] law,
is action taken ‘under color of [federal] law.’”
United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Color of law and pretense of law are synonymous, and acts of officers engaged in “personal pursuits” are not included.
See Screws v. United States, 325 U.S. 91, 111 11 (1945).
Although no “bright line” separates actions taken under color of law from
personal pursuits,
Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994),
the “relevant question” in determining whether an action was taken under color of law “is not whether the [action] was part of the defendant’s official duties but, rather, whether the [action] was ‘made possible only because the wrongdoer is clothed with the authority of [federal] law,’”
Walsh, 194 F.3d at 51 16 (quoting Classic, 313 U.S. at 326).
One who abuses a position given to him or her by the government is said to act under color of law.
West v. Atkins, 487 U.S. 42, 49–50 (1988).
Such is the case, for example, “where a police officer, albeit off-duty, nonetheless invokes the real or apparent power of the police department.”
Pitchell, 13 F.3d at 548.
...
In Hughes, the plaintiff claimed that “he was assaulted, battered, and subjected to intentional emotional distress under color of state law because he was accosted by county employees.”
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...in United States v. Giordano, 442 F.3d 30 (2d Cir. 2006),
a
case involving sexual abuse of minors by a mayor, we held that the mayor acted under color of law by “actively and deliberately us[ing] his apparent authority as mayor to ensure that the victims did not resist or report the ongoing abuse.”
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They knew only that she was an employee of the IRS. To them, she
was authorized to speak as a representative of her agency. Her oppressive conduct was indeed made possible by her
perceived ability to invoke the real or apparent authority of her department.
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