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Color of Law: When Cops (Allegedly) Attack Defense Attorneys

By Robyn Hagan Cain on November 20, 2012 | Last updated on March 21, 2019

Timothy Barkovic is a Michigan criminal defense lawyer and a self-described "outspoken critic of police conduct." Based on today's case from the Sixth Circuit Court of Appeals, we doubt he will change his tune any time soon.

Barkovic and Terrance Hogan, an 11-year veteran of the Shelby Township Police Department, got into a verbal and physical fight in the hallway of the District Court Courthouse in Shelby Township, Michigan. Hogan reportedly pushed Barkovic into a door frame, injuring Barkovic.

The two men had history: Hogan was involved in some capacity in approximately ten of Barkovic's previous cases, and claimed that Barkovic was "disruptive, demeaning, insulting, unprofessional and often threatening to officers, prosecutors, attorneys, etc."

Barkovic admits that, while in the jury room on the day in question, he called one officer a "cockatiel," (mocking his haircut), and may have referred to another officer as an "asshole." Those comments lead to a fight -- though the two men dispute who the aggressor was -- which ended with Barkovic "on the floor on all fours with ... droplets of blood hitting the plea form" he had in his hand.

Barkovic sued Hogan, Shelby Township, Macomb County, the Macomb County Sheriff, and various John Doe police officers for civil rights violations. Hogan moved for summary judgment. The district court (without oral argument) granted the motion, finding that Hogan was not acting under color of state law.

The Sixth Circuit Court of Appeals reversed that decision.

In United States v. Classic, the Supreme Court held that "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law." In West v. Atkins, the Court stated that "State employment is generally sufficient to render the defendant a state actor ... a defendant in a §1983 suits acts under color of state law when he abuses the position given to him by the State."

Thus a public employee generally acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.

Because this case involved a situation where there are "unanswered questions of fact regarding the proper characterization of the actions, the Sixth Circuit remanded the case so a jury could decide whether Hogan was immune from the lawsuit.

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