Arar v. Ashcroft Brief for Amicus Curiae NAACP Legal Defense & Educational Fund in Support of Plaintiff-Appellant Upon Rehearing En Banc

    06-4216-cv
lEnttcii States (fnurt of Appeals

for the

>̂econii (Etrcuit

M AH ER ARAR,

Plaintiff-Appellant,
-  v. —

JOHN ASHCROFT, Attorney General o f the United States, LARRY D. 
THOMPSON, formerly Acting Deputy Attorney General, TOM RIDGE, Secretary 

o f State o f Homeland Security, J. SCOTT BLACKMAN, formerly Regional 
Director o f the Regional Office o f Immigration and Naturalization Services, 

PAULA CORRIGAN, Regional Director o f Immigration and Customs 
Enforcement, EDWARD J. M cELROY, formerly District Director o f Immigration

(For Continuation o f Caption See Inside Cover)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR AMICUS CURIAE NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC. IN SUPPORT OF 

PLAINTIFF-APPELLANT UPON REHEARING EN BANC

John A. Payton 
Director Counsel 

Debo P. Adegbile 
N A ACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
N ew  York, New York 10013 
(212) 965-2200

Michael B. de Leeuw 
Dale E. Ho 
Johnathan J. Smith 
Fried, Frank, Harris, Shriver 

& Jacobson LLP 
One New York Plaza 
New York, New York 10004 
(212) 859-8000

Co-counsel for Amicus Curiae NAACP Legal Defense & Educational Fund, Inc.



and Naturalization Services for New York District, and now Customs Enforcement, 
ROBERT MUELLER, Director o f the Federal Bureau o f Investigation, JOHN DOE 
1-10, Federal Bureau o f Investigation and/or Immigration and Naturalization Service 

Agents, JAMES W. ZIGLAR, formerly Commissioner for Immigration and 
Naturalization Services, UNITED STATES,

Defendants-Appellees.



RULE 26.1 CORPORATE DISCLOSURE STATEMENT

The following information is provided pursuant to Federal Rule of Appellate 

Procedure 26.1:

The amicus curiae is the NAACP Legal Defense & Educational Fund, Inc. 

(“LDF”). It is a tax-exempt nonprofit organization. Amicus curiae does not have 

any corporate parent. It does not have any stock, and therefore, no publicly held 

company owns 10% or more of the stock of the amicus curiae.



TABLE OF CONTENTS

TABLE OF CONTENTS......... .................... ........................................................... . i

TABLE OF AUTHORITIES................................. .................................... ........... ......ii

INTEREST OF AMICUS......... ........................................................................ . 1

SUMMARY OF ARGUMENT.............................................................. .................... 3

ARGUMENT........ .......................................................................... ........................... 5

I. The Panel Decision Misconstrued Clearly-Established Section 1983 Case 
Law Concerning Liability for Non-State Actors............................... ..........5

A. Non-State Actors May Be Found Liable Under Section 1983 for
Participation in “Joint Activity” with State Actors..................................5

B. A Conspiracy Between Federal and State Officials to Violate a
Plaintiffs Federal Rights Constitutes “Joint Activity” for Purposes of 
Finding Section 1983 Liability............................. ....................................9

C. This Court Should Not Establish a New “Control or Influence”
Requirement to Find Section 1983 Liability for Non-State Actors..... 15

CONCLUSION..... ................................. ..................................................................16



TABLE OF AUTHORITIES

Cases

Adickes v. 5. H. Kress & Co., 398 U.S. 144 (1970)........................... . . . . . 8, 10, 11

Aldan a v. Del Monte Fresh Produce,
416 F.3d 1242 (11th Cir. 1005) (per curiam)...................................... 14

Annunziato v. The Gan, Inc., 744 F.2d 244 (2d Cir. 1984).......................6, 10

Beechwood Restorative Care Ctr. v. Leeds,
436 F.3d 147 (2006)..................................... ................................. .......H

Benavidez v. Gunnell, 722 F.2d 615 (10th Cir. 1983)................................. . 10

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass ’n,
531 U.S. 288 (2001).................................................... ................... 3 ,6 ,9

Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)............................6

Cabrera v. Martin, 973 F.2d 735 (9th Cir. 1992).............................. ...........12

Carey v. Piphus, 435 U.S. 247 (1978)................ ............................................. 2

Celotex Corp. v. Catrett, All U.S. 317 (1986) ............................................. ..8

Chladek v. Verizon N. Y. Inc.,
96 Fed.Appx. 19, 2004 WL 816376 (2d Cir. April 12, 2004) .......... 7

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002)...... .............. 14

Correspondent Services Corp. v. First Equities Corp. o f FI.,
338 F.3d 119 (2d Cir. 2003).................................................... ............ . 14

Dennis v. Sparks, 449 U.S. 24 (1980)...................... ................. 3, 4, 5, 7, 8, 11

Evans v. Newton, 382 U.S. 296 (1966)...................................................... ......6

ii



Fisher v. Silverstein,
2004 U.S. Dist. LEXIS 17278 (S.D.N.Y. Aug. 30, 2004)....................8

Fonda v. Gray, 707 F.2d 435 (9th Cir. 1983)................................................ 10

Ginsberg v. Healey Car & Truck Leasing, Inc.,
189 F.3d 268 (2d Cir. 1999)............................................................. 7, 10

Haines v. Kerner, 404 U.S. 519 (1972).............................................................2

Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979),
rev’d in part on other grounds, 446 U.S. 754 (1980)......................... 12

Jorden v. National Guard Bureau,
799 F.2d 99 (3rd Cir. 1986)..................................................................12

Kennedy Park Homes Ass ’n, Inc. v. City o f Lackawanna,
436 F.2d 108 (2d Cir. 1970) cert, denied, 401 U.S. 1010 (1971)....... 2

Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969).......................4, 6, 8, 11, 15

Knights o f Ku Klux Klan Realm v.
East Baton Rouge Parish School Bd.,
735 F.2d 895 (5th Cir. 1984).................................................................12

Krohn v. United States, 578 F. Supp. 1441 (D.Mass 1983),
rev ’d on other grounds, 742 F.2d 24 (1st Cir. 1984).......................... 13

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).................................. 6, 11

Maine v. Thiboutot 448 U.S. 1 (1980)............................................................ 16

Memphis Community School Dist. v. Stachura,
A ll  U.S. 299(1986)......................................... ...................................... 2

Mitchum v. Foster, 407 U.S. 225 (1972).......................................................... 1

Monroe v. Pape, 365 U.S. 167 (1961)..............................................................3

NAACPv. Button, 371 U.S. 415 (1963)........................................................... 1

iii



Norton v. Liddel, 620 F.2d 1375 (10th Cir. 1980).........................................1 1

Ostensen v. Suffolk County, 236 Fed.Appx. 651,
2007 WL 1492856 (2d Cir. May 23, 2007)...........................................7

Premachandra v. Mitts, 753 F.2d 635 (8th Cir. 1985)..................................12

Redding v. Christian, 161 F. Supp. 2d 671 (W.D.N.C. 2001)......................13

Renaud v. Martin Marietta Corp.,
1988 U.S. Dist. LEXIS 17531 (D. Colo. Dec. 5, 1988)......................13

Rosquist v. New York Univ. Med. Ctr.,
1999 U.S. App. LEXIS 23373 (2d Cir. Sept. 20, 1999)...............11,12

Stevens v. Stearns, 213 F.3d 626 (Table),
2000 WL 710495 (2d Cir. May 30, 2000).................................. ...........7

Strickland v. Shalala, 123 F.3d 863 (6th Cir. 1997)......................................12

Sybalski v. Independent Group Home Living Program, Inc.,
.. .  F.3d — 2008 WL 4570642 (2d Cir. Oct. 15, 2008)..............6, 7, 9

Tancredi v. Metro. Life Ins. Co., 316 F.3d 308 (2d Cir. 2003)......................7

Tower v. Glover, 467 U.S. 914 (1984)............................................................. 3

United States v. Price, 383 U.S. 787 (1966)..............................................3, 16

Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987)................................... 10

Williams v. United States, 396 F.3d 412 (D.C. Cir. 2005)............................ 13

Wilson v. Garcia, A ll U.S. 261 (1985)....................... ...................................16

Statutes

18U.S.C. § 242................................................... .............................................. 3

IV



28 U.S.C. § 1350 1 ,3 ,5 , 13, 14, 16

42 U.S.C. § 1983 .......................................................................................passim

Other Authorities

Erwin Chemerinsky, F e d . J u r is d ic t io n  4th ed. 481 (2003)....................... 16

H.R. Rep. No. 367, 102d Cong, 2d Sess. (1991),
reprinted in 1992 U.S.C.C.A.N...........................................................3, 4

v



INTEREST OF AMICUS

The NAACP Legal Defense & Educational Fund, Inc. (“LDF”) is a 

nonprofit corporation chartered by the Appellate Division of the New York 

Supreme Court as a legal aid society.1 LDF’s first Director Counsel was Thurgood 

Marshall. Since Its founding, LDF has been committed to transforming this 

nation’s promise of equality into reality for all Americans, with a particular 

emphasis on the rights of African Americans. See NAACP v. Button, 371 U.S. 415, 

422 (1963) (describing LDF as a “‘firm’ . . . which has a corporate reputation for 

expertness in presenting and arguing the difficult questions of law that frequently 

arise in civil rights litigation”).

LDF’s interest in this case arises from the panel’s interpretation of 42 U.S.C. 

§ 1983 (2008) (“section 1983”), the principal statute governing private remedies 

for federal civil rights violations, see, e.g., Mitchum v. Foster, 407 U.S. 225, 239 

(1972) (noting that section 1983 provides “a uniquely federal remedy against 

incursions under the claimed authority of state law upon rights secured by the 

Constitution and laws of the Nation”), for purposes of determining the scope of the 

Torture Victim Protection Act, 28 U.S.C. § 1350 (2008) (“TVPA”). Section 1983

1 Counsel of record for all parties received notice of the amicus curiae’s intention 
to file this brief. No counsel for a party authored this brief in whole or in part, and 
no counsel or party made a monetary contribution intended to fund the preparation 
or submission of this brief. No person other than amicus curiae, its staff, or its 
counsel made a monetary contribution to its preparation or submission.

1



creates liability for any “person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State” deprives or causes any person within 

the jurisdiction of the United States to be deprived of “any rights, privileges, or

immunities secured by the Constitution and [federal] law s___ ” 42 U.S.C. § 1983.

Enacted as part of the Civil Rights Act of 1871, section 1983 was intended to 

provide a private remedy for federal civil rights violations and has subsequently 

been interpreted to create a species of tort liability. See Memphis Cmty. School 

Dist. v. Stachura, A ll  U.S. 299, 305 (1986), quoting, inter alia, Carey v. Piphus, 

435 U.S. 247, 253 (1978). Section 1983 plays an important role in safeguarding 

the federal rights of all citizens, and LDF has litigated numerous cases under 

section 1983 before this Court and the United States Supreme Court. See, e.g., 

Haines v. Kerner, 404 U.S. 519 (1972) (upholding the right of state prisoners to 

challenge conditions of confinement under section 1983); Kennedy Park Homes 

A ss’n, Inc. v. City o f Lackawanna, 436 F.2d 108 (2d Cir. 1970) (holding that city 

ordinance interfering with the construction of low-income housing in a 

predominantly white neighborhood is actionable under section 1983), cert, denied, 

401 U.S. 1010(1971).

Section 1983 is an important means of redress for constitutional violations 

committed not only by state government officials, but also by non-state actors, 

such as private individuals and federal officials. Indeed, the statute is known as the

2



“Ku Klux Klan Act” because one of its primary purposes was to provide a civil 

remedy against abuses that were being committed in southern states during the 

Reconstruction era, especially by private organizations such as the Ku Klux Klan. 

See Monroe v. Pape, 365 U.S. 167, 174-76 (1961). The Supreme Court has 

consistently held that non-state actors can, under certain circumstances, engage in 

conduct under “color of State law,” and may be subject to liability under section 

1983 where they “act jointly” or conspire with state government officials. See, 

e.g., Brentwood Acad. v. Tenn. Secondary Sch. Ath. A ss’n, 531 U.S. 288, 296 

(2001); Tower v. Glover, 467 U.S. 914, 919 (1984); Dennis v. Sparks, 449 U.S. 24, 

27 (1980); cf. United States v. Price, 383 U.S. 787, 794 (1966) (holding that, for 

purposes of finding liability under the criminal law analogue of section 1983, 18 

U.S.C. § 242, private individuals acting jointly with state officers engage in 

conduct “under color” of state law).

SUMMARY OF ARGUMENT

In adjudicating plaintiff-appellant’s claim under the TVPA, the panel looked 

to “principles of agency law” and “to jurisprudence under 42 U.S.C. § 1983” for 

guidance to determine the scope of the phrase “under color of foreign law.”2 532

2 Congress intended section 1983 jurisprudence to serve as a guide for the 
interpretation of the phrase “color of law” as used in the TVPA, see H.R. Rep. No.

3



F.3d at 175, quoting Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995). To the 

extent that the opinion below purports to rely on section 1983 case law, it seriously 

misinterprets well-settled precedent. The panel assumed that, for purposes of 

finding liability under section 1983, a non-State defendant acts “under color of 

State law” only where the defendant is under the “control or influence” of a State 

government official. 532 F.3d at 176, quoting Kletschka v. Driver, 411 F.2d 436, 

449 (2d Cir. 1969). The panel then reasoned by analogy that, for purposes of 

establishing liability under the TVPA, a defendant who is not an official of a 

foreign government cannot act “under color of foreign law” unless the defendant is 

under the “control or influence” of a foreign official, and dismissed plaintiff- 

appellant’s claim accordingly.

Contrary to the panel’s reasoning, however, private individuals or federal 

officials need not be under the “control or influence” of a state government in 

order to be subject to section 1983 liability. To the contrary, private individuals 

can be held liable under section 1983 where they act jointly or conspire with such 

officials. See, e.g., Dennis, 449 U.S. at 27.

If, as the panel assumed, a court applying the test for actionable conduct 

“under color of foreign law” under the TVPA should look to the test for conduct 

“under color of State law” under section 1983, see 532 F.3d at 175, then plaintiffs

367, 102d Cong., 2d Sess., at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87 
(“Courts should look to 42 U.S.C. Sec. 1983 is [sic] construing ‘color of law’”).

4



should be able to state a claim under the TVPA against federal officials for joint 

action with foreign officials. To the extent that liability under the TVPA is 

analogous to liability under section 1983, the panel’s reasoning concerning a 

“control or influence requirement” is simply erroneous.

ARGUMENT

I. The Panel Decision Misconstrued Clearly-Established Section 1983 
Case Law Concerning Liability7 for Non-State Actors

A. Non-State Actors May Be Found Liable Under Section 1983 for 
Participation in “Joint Activity” with State Actors

Prior to the panel’s decision, federal courts have held repeatedly and 

consistently that in order for non-state actors—whether they be private citizens or 

federal officials—to be liable under section 1983, they need not be under the 

“control or influence” of state government officials. While such “control or 

influence” may be a sufficient condition to establish liability for non-state actors, it 

is by no means a necessary one. To the contrary, the Supreme Court has clearly 

held that liability for a non-state actor under Section 1983 can be established in 

multiple situations that do not involve “control or influence,” for instance: (1) 

where a private individual participates in joint activity with state officials, see 

Dennis, 449 U.S. at 27-28 (finding private individuals liable for conspiring with a 

state judge to enjoin plaintiffs mining operations, and holding that, “to act ‘under

5



color o f  state law for § 1983 purposes does not require that the defendant be an 

officer of the State. It is enough that he is a willful participant in joint action with 

the State or its agents. Private persons, jointly engaged with state officials in the 

challenged action, are acting ‘under color’ of law for purposes of § 1983 actions”); 

and (2) where private conduct is “entwined” with state action, see Brentwood, 531 

U.S. at 296 (finding a nominally private state athletic association, which was 

overwhelmingly composed of public school officials, liable under section 1983, 

and holding, “[w]e have treated a nominally private entity as a state actor . . .  when 

it is ‘entwined with governmental policies’ or when government is ‘entwined in 

[its] management or control’”), quoting Evans v. Newton, 382 U.S. 296, 299, 301 

(1966).3

Each of these bases for section 1983 liability for non-state actors—joint 

action and entwinement—has been recognized repeatedly and consistently in this 

Circuit. Only weeks ago, in Sybalski v. Independent Group Home Living Program, 

Inc., — F.3d — 2008 WL 4570642 at *2 (2d Cir. Oct. 15, 2008) (Cabranes, 

Newman, and B.D. Parker, JJ.), a panel of this Court explained,

3 We note that the “color of law” test under section 1983 is interchangeable with 
the “state action” test under Equal Protection analysis. See, e.g., Lugar v. 
Edmondson Oil Co., 457 U.S. 922, 929 (1982); Annunziato v. Gan, Inc., 744 F.2d 
244, 249 (2d Cir. 1984) (“[T]he ‘under color’ of law requirement has consistently 
been viewed in the same manner as the ‘state action’ requirement under the 
Fourteenth Amendment.”); Kletschka v. Driver, 411 F.2d 436, 445 (2d Cir. 1969), 
citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).

6



For the purposes of section 1983, the actions of a nominally private entity 
are attributable to the state when: (1) the entity . . .  is “controlled” by the 
state (“the compulsion test”); (2) when . . .  the entity is a “willful participant 
in joint activity with the [sjtate,” or the entity’s functions are “entwined” 
with state policies (“the joint action test” or “close nexus test”); or (3) when 
the entity “has been delegated a public function by the [sjtate,” (“the public 
function test”).

Other panels of this court have, without exception, reached the same conclusion. 

See, e.g., Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312-13 (2d Cir. 2003) 

(Kearse, McLaughlin, and Daniels JJ.) (recognizing joint activity and entwinement 

between state and private actors as a basis for 1983 liability); Ginsberg v. Healey 

Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999) (Winter, Sack, and 

Sprizzo, JJ.) (recognizing joint activity as a basis for 1983 liability); Ostensen v. 

Suffolk County, 236 Fed.Appx. 651, 2007 WL 1492856 at **2 (2d Cir. May 23, 

2007) (B.D. Parker, Raggi, and Wesley, JJ.) (same); Chladek v. Verizon N.Y. Inc., 

96 Fed.Appx. 19, 2004 WL 816376 at **2 (Oakes, Straub, and Pollack JJ.) (2d Cir. 

April 12, 2004) (same); Stevens v. Stearns, 213 F.3d 626 (Table), 2000 WL 

710495 (2d Cir. May 30, 2000) (same).

Simply put, “control or influence” by a state actor is unnecessary to establish 

liability for non-state actors under section 1983. In Dennis v. Sparks, supra, the 

Supreme Court held that a plaintiff corporation alleging an unlawful conspiracy to 

enjoin its mining operations, perpetrated by a state court judge, another 

corporation, and two private individuals who were sureties on the injunction bond,

7



could bring claims against the private defendants under section 1983. 449 U.S. at 

27. There was no discussion in Dennis of which of the defendants were allegedly 

in control of the conspiracy; in fact, because the private defendants were alleged to 

have bribed the judge, see id. at 28, it was likely the judge who was under the 

“influence” of the private defendants. Similarly, in Adickes v. S. H. Kress & Co., 

398 U.S. 144, 152 (1970), overruled in part on other grounds, Celotex Corp. v. 

Catrett, A ll  U.S. 317 (1986) the Supreme Court held that, where an employee at a 

lunch counter conspired with a police officer to deny service to a white 

schoolteacher in the company of six black youths, the lunch counter employee was 

subject to section 1983 liability. Again, the Court engaged in no discussion of 

which defendants had “control or influence,” but found liability on the basis of 

joint action alone.

Given the consistent and unambiguous precedent holding that non-state 

actors may be subject to liability under section 1983 even where they are not under 

the “control or influence” of state officials, the panel’s decision is clearly incorrect. 

To be sure, the case relied on by the panel, Kletschka v. Driver, 411 F.2d 436 (2d. 

Cir. 1969) stated that private individuals may be liable under section 1983 where 

they are under the “control or influence” of state actors.” 411 F.2d 448-49. And 

courts have stated that non-state actors may be liable under section 1983 where 

their actions can be “fairly attributable to the state.” Fisher v. Silverstein, 2004

8



U.S. Dist. LEXIS 17278 at *17 n.45 (S.D.N.Y. Aug. 30, 2004) (citations and 

quotation marks omitted). But as this Court stated only recently in Sybalski, “[f]or 

the purposes of section 1983, the actions of a nominally private entity are 

attributable to the state when . . .  the entity is a willful participant in joint activity 

with the [s]tate.” 2008 WL 4570642 at *2 (emphases added).

Thus, while a state actor’s control over a private actor is sufficient to 

establish section 1983 liability, neither the Supreme Court nor this Circuit has ever 

held that such control or influence is necessary. The Supreme Court in Brentwood 

clearly held that a private actor may be liable under section 1983 when the 

defendant has been controlled by state actors “or” where the defendant has been a 

“willful participant in joint activity” with state actors. 531 U.S. at 296 (emphasis 

added). Properly construed, control by state officials and joint activity with such 

officials constitute alternate bases for section 1983 liability. See Sybalski, 2008 

WL 4570642 at *2. The panel’s articulation of a “control or influence” 

requirement, without acknowledging alternate bases for liability, squarely 

contradicts applicable precedent.

B. A Conspiracy Between Federal and State Officials to Violate a 
Plaintiffs Federal Rights Constitutes “Joint Activity” for Purposes of 
Finding Section 1983 Liability

Given the well-established precedent that “joint activity” between non-state 

actors and a state official is sufficient to support liability under section 1983,

9



Brentwood, 531 U.S. at 296, the next question is what level of collaboration is 

necessary to find that non-state actors and a state official have jointly acted to 

violate a plaintiffs civil rights. Admittedly, de minimus contacts would be 

insufficient to constitute “joint activity.” See, e.g., Ginsberg, 189 F.3d at 272 

(explaining that a non-state actor’s providing the state official, a police officer, 

with background information does not, by itself, constitute joint activity); 

Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“The mere furnishing of 

information to police officers does not constitute joint action under color of state 

law which renders a private citizen liable under [section 1983] . . . .”). But where 

there is evidence of “conspiracy,” “preconceived plan,” “mutual understanding” or 

“concerted action” between non-state actors and a state official there can be section 

1983 liability. See Annunziato, 744 F.2d at 252; see also Adickes, 398 U.S. at 152 

(holding that white schoolteacher, in company of six black youths denied service at 

lunch counter, would be entitled to relief under section 1983 upon proof that an 

employee of the lunch counter and a police officer had reached an understanding to 

deny service to teacher); Wagenmann v. Adams, 829 F.2d 196, 209-10 (1st Cir. 

1987) (finding section 1983 liability where a private individual worked with state 

actors—law enforcement officials—to have the plaintiff falsely imprisoned in both 

a police station and the psychiatric ward of a state hospital); Fonda v. Gray, 707 

F.2d 435, 439 (9th Cir. 1983) (affirming the district court’s grant of summary

10



judgment because appellant could not produce “evidence of the existence of a 

‘meeting of the minds’ between [bank employees and government officials] to 

knowingly attempt” to deprive her of her civil rights); Norton v. Liddel, 620 F.2d 

1375, 1379 (10th Cir. 1980) (explaining that even where a private individual 

“actively conspires with an immune State official” to deprive a plaintiff of his 

constitutional rights, that private individual is subject to liability under section 

1983). Accordingly, a conspiracy between private individuals and a state official 

can constitute activity under “the color of state law” for purposes of section 1983 

liability. See, e.g., Lugar, 457 U.S. at 941; Dennis, 449 U.S. at 29 (“Private parties 

who corruptly conspire with a judge in connection with such conduct are thus 

acting under color of state law within the meaning of § 1983 as it has been 

construed in our prior cases.”); Adickes, 398 U.S. at 150-52.

Moreover, this rule applies to federal officials just as it does to private 

individuals. In fact, this court has written: “We can see no reason why a joint 

conspiracy between federal and state officials should not carry the same 

consequences under § 1983 as does joint action by state officials and private 

persons.” Kletschka, 411 F.2d at 44; see also Beechwood Restorative Care Ctr. v. 

Leeds, 436 F.3d 147, 154 (2006) (Jacobs, B.D. Parker, and Hurd JJ.) (“A federal 

actor may be subject to section 1983 liability where there is evidence that the 

federal actor was engaged in a ‘conspiracy’ with state defendants”); cf. Rosquist v.

11



New York Univ. Med. Ctr., 1999 U.S. App. LEXIS 23373, at *5 (2d Cir. Sept. 20, 

1999) (Van Graafeiland, Jacobs, Straub, JJ.) (“Nor is there evidence that any 

NYUMC employees collaborated or conspired with state officials, or acted 

together with state officials so as to come within the purview of § 1983.”).

Similarly, a majority of the other Courts of Appeals, including the Third,4 

Fifth,5 Sixth,6 Seventh,7 Eighth,8 Ninth,9 and D.C.10 Circuits, have held that federal

4Jorden v. National Guard Bureau, 799 F.2d 99, 111 n. 17 (3rd Cir. 1986) 
(“federal officials who conspire or act jointly with state officials may be liable 
under § 1983”).
5 Knights o f Ku Klux Klan Realm v. East Baton Rouge Parish School Bd., 735 F.2d 
895, 900 (5th Cir. 1984) (explaining that members of the school board conspired 
with officials of the U.S. Department of Health and Human Services to prevent the 
Ku Klux Klan from using school facilities, writing: “when federal officials 
conspire or act jointly with state officials to deny constitutional rights, the state 
officials provide the requisite state action to make the entire conspiracy actionable 
under section 1983.” (internal quotation marks and citation omitted)).
6 Strickland v. Shalala, 123 F.3d 863, 867 (6th Cir. 1997) (“courts finding that a 
federal official has acted under color of state law have done so only when there is 
evidence that federal and state officials engaged in a conspiracy or ‘symbiotic’ 
venture to violate a person's rights under the Constitution or federal law.”) 
(emphasis in original).
''Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir. 1979) (holding that section 
1983 is applicable to federal defendants, who were employees of the Federal 
Bureau of Investigations, when they engaged in a conspiracy with state officials, 
employees of the Chicago Police Department, writing: “when federal officials are 
engaged in a conspiracy with state officials to deprive constitutional rights, the 
state officials provide the requisite state action to make the entire conspiracy 
actionable under section 1983.”), rev’d in part on other grounds, 446 U.S. 754 
(1980).
8 Premachandra v. Mitts, 753 F.2d 635, 641 n.7 (8th Cir. 1985) (“Conspiracies that 
make federal officials liable under section 1983 are not commonplace but nor are 
they unheard of.”).

12



officials can be found liable under section 1983 when they conspire with state 

officials. District courts in a number of the remaining Circuits have reached the 

same conclusion.11

It is clear, therefore, that where federal and state officials conspire to deprive 

a plaintiff of his constitutional rights, the federal officials may be liable under 

section 1983 ’s “color of state law” analysis. And to the extent that analysis of the 

TVPA’s “under the color of foreign law” provision is analogous to section 1983 ’s 

“under the color of state law” provision, see Kadic, 70 F.3d at 245, allegations of a

9 Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992) (“a well-established line of 
cases has held that federal officials, who act in concert or conspiracy with state 
officials to deprive persons of their federal rights, may be held liable for 
prospective relief under § 1983 when sued in their official capacity.).
10 Williams v. United States, 396 F.3d 412, 414 (D.C. Cir. 2005) (citing 
approvingly D.C. Circuit court case law that has held that federal defendants are 
liable under section 1983 because they acted “under color o f ’ state law by 
conspiring with state officials in committing allegedly illegal acts).
11 See, e.g., Renaud v. Martin Marietta Corp., 1988 U.S. Dist. LEXIS 17531 at *3 
(D. Colo. Dec. 5, 1988) (“there is ample case support from other circuits for the 
Court’s conclusion that federal officials may be liable under § 1983 when they 
conspire with officials acting under color of state law.”); Krohn v. United States, 
578 F. Supp. 1441, 1447 (D. Mass 1983) (“Federal officers may be subject to 
liability under § 1983 where they act under color of state law to deprive a person of 
rights secured under the Constitution or laws of the United States. A plaintiff may 
establish liability by showing . . . that federal officials participated in a conspiracy 
to deprive him of a constitutional right and that he was in fact so deprived.”), rev’d 
on other grounds, 742 F.2d 24 (1st Cir. 1984); but see also Redding v. Christian, 
161 F. Supp. 2d 671, 675 (W.D.N.C. 2001) (“While a private citizen can act under 
color of state law if he is a willful participant in joint action with the state or its 
agents, there is no authority for the position that a federal employee or officer acts 
under color of state law, even if he works with state actors in pursuing a particular 
investigation.” (internal quotation marks and citation omitted)).

13



conspiracy between federal and foreign officials should be sufficient to state an 

actionable claim under the TVPA. Cf. Aldana v. Del Monte Fresh Produce, 416 

F.3d 1242, 1248-49 (11th Cir. 1005) (per curiam) (holding plaintiffs’ allegations 

that U.S. corporation jointly acted with a foreign official-—a Guatemalan mayor— 

sufficient to sustain a TVPA claim). Accordingly, the panel’s conclusion that Arar 

had to allege that defendants-appellees were under the “control or influence” of a 

foreign state was erroneous, as it conflicts with well-established precedent, 

including from this court.

Arar has alleged that federal and Syrian officials conspired to subject him to 

torture. See, e.g., Appellant’s Replacement Opening Br. at 2 (stating that Arar’s 

“torture was the culmination of a conspiracy orchestrated by defendants that 

emerged when Arar was detained at JFK airport . . . [and] included defendants’ 

delivery of Arar to the Syrian security service officials to torture him”) (emphasis 

added). Given that, at this early stage of litigation, Arar’s allegations must be 

taken as true, see Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 

2002), his pleadings provide a proper basis to find that defendants-appellees acted 

“under color of foreign law.”12

12 Of course, the issue of whether Arar’s TVPA claim had been pled with sufficient 
particularity to survive a motion to dismiss from defendants-appellees should be 
considered, in the first instance, by the district court on remand. See 
Correspondent Services Corp. v. First Equities Corp. o f Florida, 338 F.3d 119,

14



C. This Court Should Not Establish a New “Control or Influence”
Requirement to Find Section 1983 Liability for Non-State Actors

At a minimum, this Court should make clear that its holding will in no way 

limit the range of conduct for which non-state actors can be held liable under 

section 1983. To adopt the panel’s unprecedented “control or influence” rule for 

section 1983 liability would not only run counter to clear and well-established 

precedent from this Circuit and from the Supreme Court, it could unnecessarily 

narrow the class of defendants who may be subject to liability under section 1983, 

create unreasonable burdens for plaintiffs and prosecutors challenging conspiracies 

amongst multiple defendants involved in federal civil rights violations, and risk 

leaving many victims of such violations without any means for redress. Where a 

victim’s injury is clear, but where the relationship between state and non-state 

actors amounts to a conspiracy but not one “controlled” or overwhelmingly 

“influence[d],” by the state actors, the panel’s ruling could unfortunately leave a 

plaintiff without any means of redress.

Non-state actors should be held liable for civil rights violations, not only 

where they are controlled by state actors, but whenever non-state actors and state 

actors work together to deprive a plaintiff of federal civil rights. As this Court has 

observed, “[i]t was the evident purpose of § 1983 to provide a remedy when

125 (2d Cir. 2003) (remanding back to the district court for consideration of an 
issue by that court in the first instance).

15



federal rights have been violated through the use or misuse of a power derived 

from a State,” and this is no less true where the violation “is the joint product of 

the exercise of a State power and of a non-State power,” Kletschka, 411 F.2d at 

447. Cf. Wilson v. Garcia, 471 U.S. 261, 272 (1985), quoting United States v. 

Price, 383 U.S. 787, 801 (1966) (“The high purposes of this unique remedy make 

it appropriate to accord the statute ‘a sweep as broad as its language’”); Maine v. 

Thiboutot 448 U.S. 1, 4 (1980) (“the section 1983 remedy broadly encompasses 

violations of federal statutory as well as constitutional law”); Erwin Chemerinsky, 

F e d . J u r is d ic t io n  481 (4th ed. 2003) (“This expansive definition of ‘under color 

of law,’ which includes private parties participating in conspiracies with 

government officers reflects the broad remedial goals of § 1983 to redress all 

violations of constitutional rights that occur under the aegis of state authority and 

power”).

CONCLUSION

It is well-established that non-state actors, including federal officials, can be 

found liable under section 1983 for acting “under color of state law” where they 

jointly act or conspire with state officials. Accordingly, the panel’s reasoning that 

non-state actors must be under the “control or influence” of a state official for 

liability to attach is simply erroneous. Similarly, its conclusion that Mr. Arar’s 

TYPA claim was properly dismissed because Defendants-Appellees were not

16



under the “control or influence” of Syrian officials is incorrect, Mr. Arar’s claim 

should not be dismissed based on a misinterpretation of section 1983 case law, and 

this Court’s decision with respect to Mr. Arar’s TVPA claim should not cast any 

doubt on settled section 1983 jurisprudence concerning the liability of non-state 

actors for “joint action” with state officials.

J o h n  A . P a y t o n ,
D ir e c t o r  C o u n s e l  

D e b o  P . A d e g b il e  
NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

Respectfully Submitted,

M ic h a e l  B . d e  L e e u w  
D a l e  E. H o  
J o h n a t h a n  J. S m it h  
FRIED, FRANK, HARRIS, 

SHRIVER & JACOBSON LLP 
One New York Plaza 
New York, New York 10004 
(212)859-8000

October 28, 2008

17



CERTIFICATION OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 
32(a)(7)(B) because it contains 4,398 words, excluding the parts of the brief 
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because 
it has been prepared in a proportionally spaced typeface using Microsoft 
Word 2000 in 14 point, Times New Roman font.

Dated: October 28, 2008

Dale E. Ho
F r ie d , F r a n k , H a r r is , 

S h r iv e r  &  J a c o b s o n  LLP 
One New York Plaza 
New York, New York 10004 
(212) 859-8000

Attorney for Amicus Curiae

18

7125131.5



COUNSEL PRESS 
The Appellate Experts

520 EIGHTH AVENUE, NEW YORK, NEW YORK 10018 
(212) 685-9800; (716) 852-9800; (800) 4-APPEAL 

www.counselpress.com 
(218996)

http://www.counselpress.com