Today the Seventh Circuit handed down an interesting opinion analyzing whether a private actor (a man named Redd) acted under color of state law (and thus could be sued under 42 U.S.C. 1983) when the private actor stole his wife's (Pepper) property while a police served as look-out. [This is wrong. See the update, below.] In other words: Did the private party conspire with a state actor to deprive the plaintiff of his property? The panel said no, in an interesting opinion you can access here. Pepper v. Village of Oak Park. For what it's worth, I think the panel got this one wrong. When I have some time tonight I'll pull up the briefs to see whether the panel got it wrong because of poor advocacy.
UPDATE: Oops. I totally misread the case. The issue was not whether a Redd acted under color of law when he stole Pepper's property. The issue was whether the police officer conspired with Redd to steal Pepper's property. The panel absolutely got this one right. The plaintiff's lawyer absolutely got this one wrong by not suing Redd. There was a very strong argument that Redd stole Pepper's property only because he felt like he could get away with it since he had duped a police officer into keeping Pepper from stoping him. When the presence of a state actor "enables" the private party to do some conduct, the private party might have acted under color of law. Here, the plaintiff's lawyer didn't even argue this. That was, in my view, a major tactical mistake.
UPDATE2: I'll have much more to say about this case once I finish today's work.
