Color of law is defined as an act done under the pretence of legal authorization when there is no such right. Therefore, color of law means that a person uses powers given by him/her to willfully deprive the other person of his/her rights. This paper will describe the applicability of the act to private security, abuse of the process and illegal seizure.
Color of Law and Its Applicability to Private Security
In the face of financial difficulties and depleting manpower, it is necessary for the government to afford police powers into private police. The applicability of color of law to private security is determined by the following factors.
- Whether the security officer is licensed by the government
- Whether the security officer is designated to have special police powers
- Whether the security officers were real police officers
- Whether the security officer was under supervision or cooperated with another public police
- Whether the security officer was executing the job for the government where factors such as police uniform, identification to the arrestee and the location of the arrest come into play.
Usually a court of law will apply three factors to determine whether a private security officer acted under “color of law”. The first test that a court applies is called the public function test. This can be determined by probing a security officer’s functions and duties and ascertain whether they serve a public interest. The second test is called the state compulsion test that is done to determine the existence of a law or rule that controls or encourages the conduct of private police officers. The third test is the nexus test that is determined by having the appearance of helping to fight crime to protect public safety (Legal Issues in Private Police).
Private policing has sparked a national debate especially because it raises more constitutional issues that have been magnified by the private officers being accused of abusing their powers when dealing with suspected criminals. Enforcement officers in the U.S. have been granted power by government agencies and ensure that justice prevails within the country. The lead federal agency for investigating color of law is the FBI. Most crimes fall into excessive force in making arrests or maintaining order, sexual assaults by officers during traffic stops or in jails, false arrests by fabricating evidence and failure to keep from harm by law enforcers (The FBI).
One such case is that of Mr. Hickman vs. the Salinas. In the case, Mr. Hickman was accused by a neighbor for discharging his firearm. He, however, indicated that he does shoot but does so to scare away seagulls. Some days later, Salinas showed up at Mr. Hickman’s house and told him that that if he continued shooting, they would arrest and take his firearm. Some hours later, two deputies arrived at Mr. Hickman’s to reiterate that they were going to take his firearm if he continued to shoot. After conviction, it was found that there is no law against discharging one’s firearm outside a municipality nor was there a law under which Mr. Hickman could be convicted of. He was set free as a result. This was a case of abuse of police power under the “color of law” (Beaufortobserver).
According to the FBI, the Constitution guarantees the right against illegal seizures and unreasonable searches. A police officer or in this case a law enforcement officer is allowed to stop individuals under certain circumstances (as provided by the color of law) and can retain their property. It is this power that some police officers abuse leading to violation of an individual’s civil rights. It is worth noting that the 8th Amendment prohibits unusual punishment or use of cruel (The FBI).