Color (law)

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In U.S. law, the term color of law denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors (adjusts) the law to the circumstance, yet said apparently legal action contravenes the law.[1] Under color of authority is a legal phrase used in the United States[2] indicating a person is claiming or implying the acts he or she is committing are related to and legitimized by his or her role as an agent of governmental power, especially if the acts are unlawful.

Color of law[edit]

Color of law refers to an appearance of legal power to act but which may operate in violation of law. For example, though a police officer acts with the "color of law" authority to arrest someone, if such an arrest is made without probable cause the arrest may actually be in violation of law. In other words, just because something is done with the "color of law", that does not mean that the action was lawful. When police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating.[3]

The Supreme Court has interpreted the United States Constitution to construct laws regulating the actions of the law enforcement community. Under "color of law", it is a crime for one or more persons using power given to him or her by a governmental agency (local, state or federal), to willfully deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. Criminal acts under color of law include acts within and beyond the bounds or limits of lawful authority. Off-duty conduct may also be covered if official status is asserted in some manner. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards.[4] Furthermore, in many states it is unlawful to falsely impersonate a police officer, a federal officer or employee, or any other public official or to use equipment used by law enforcement officers, such as flashing lights or a fake police badge. Possession of a firearm also can enhance the penalty for false impersonation of a police officer.[5]

Color of office[edit]

Color of office refers to an act usually committed by a public official under the appearance of authority, but which exceeds such authority. An affirmative act or omission, committed under color of office, is sometimes required to prove malfeasance in office.

Color of title[edit]

In property law, color of title refers to a claim to title which appears valid, but may be legally defective. Color of title may arise when there is evidence, such as a writing, suggesting valid legal title. The courts have ruled that deeds are mere color of title; the actual title to land is secured with an irrefutable instrument like a land patent, then when that land is subsequently conveyed to another owner by a deed, the deed colors the title to show the new owner. Thus, the chain of title from the land patent to the present may include many deeds, the actual title remains with the land patent and lawful deeds show the chain of title to the present landowner. Because the ownership in land is a very specific thing requiring precise and proper transfers of ownership, in times past, people always required a certified abstract be provided with a deed to insure the deed was not merely a color of title fiction. Today, title companies offer title insurance to secure such documents. Still, only a proper and lawful title, like the land patent, provides actual title to land; and, only a proper and lawful chain of title (deeds, etc.) from such a patent to the present can secure land rights to the landowner.

However, even with land secured by patent, the proper grant of title can be implied by adverse possession, which is the basis for claims exemplified in Torrens title. The Torrens system operates on the principle of "title by registration", in which the act of registering an interest in land in a state-operated registry creates an indefeasible title in the registrant, which, like the land patent, can be challenged only in very limited circumstances.

Appropriation of name or likeness[edit]

Main article: Personality rights

Although this is a common-law tort, most states have enacted statutes that prohibit the use of a person’s name or image if used without consent for the commercial benefit of another person. A person's exclusive rights to control his or her name and likeness to prevent others from exploiting personal information without permission is protected in similar manner to a title or trademark action with the person's likeness and personal information, rather than the trademark or title, being the subject of the protection.[6]

The tort of false light involves a misappropriation or "major misrepresentation" of a person's "character, history, activities or belief."[7] Some bodies of law also explicitly mention the estate of a person; false claims of nobility are most common. In the United States, one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability for invasion of privacy, if:

  1. The false light would be highly offensive to a reasonable person; and
  2. The actor acted with malice—had reason to know of or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

See Section 652E of the Restatement (Second) of Torts.

Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person.[8]

References[edit]

  1. ^ Law Dictionary Fourth Edition, Steven H. Gifis, p. 86
  2. ^ Judicial and Statutory Definitions of Words and Phrases. West Publishing Company, West Publishing Co., St. Paul. p. 763. 
  3. ^ Color of Law, Federal Bureau of Investigation
  4. ^ Hate Crimes. Federal Bureau of Investigation, Miami Division, February 22, 2005. Via the Internet Archive Wayback Machine.
  5. ^ Impersonating a Police Officer, LegalMatch
  6. ^ Invasion of Privacy, Appropriation of Name or Likeness. CSE/ISE 334 "Introduction to Multimedia Systems" Lectures and Recitations, Stony Brook University.
  7. ^ Gannett Co., Inc. v. Anderson, 2006 WL 2986459 at 3 (Fla. 1st DCA Oct. 20, 2006).
  8. ^ Common Law Privacy Torts