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was unlawful or because the official exceeded his authority under a lawful
grant of power. See also, Ex parte Virginia, 100 U.S. 339 346 (1879);
Monroe v. Pape, 365 U.S. 167, 172 (1961); Paul v. Davis, 424 U.S. 693,
617 (1976) (Brennan, J., dissenting).

See,

Color of authority claims either under section 1983 or directly under the Constitution have been sustained at the pleading stage in a variety of factual contexts. At present, the Supreme Court has only recognized constitutional tort claims alleging fourth amendment violations. Bivens v. Six Unkown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The lower federal courts, however, have sustained constitutional tort claims in numerous other factual and legal contexts. e.g., Apton v. Wilson, 506 F. 2d 83 (D.C. Cir. 1974) (fourth and fifth amendment violations for unlawful arrests and booking procedures during "Mayday Demonstrations"); Mark v. Groff, 521 F. 2d 1376 (9th Cir. 1975) (fifth, sixth and eight amendment violations for harrassment by IRS officials including unlawful arrest, false statements to magistrate leading to high bond requirements, unnecessary auditing for the purpose of destroying tax return business); Rowley v. McMillan, 502 F. 2d 1326 (4th Cir. 1974) (first amendment violations for excluding demonstrators from a coliseum where President Nixon was appearing.)

In the 1983 context "color of authority"

claims have been sustained at the pleading stage for police brutality,

prison guard brutality, unlawful arrests, and coercing confessions to describe

but a few of the categories of 1983 claims. See, e.g., Jenkins v. Averett

424 F. 2d 1228 (4th Cir. 1970) (police brutality following arrest);

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Brown v. Brown, 368 F. 2d 992 (9th Cir. 1966) (prison brutality; extracting

confession); Monroe v. Pape, 365 U.S. 167 (1961) (unlawful search and

arrest); Martinez v. Mancusi, 443 F. 2d 921 (2d Cir. 1970) (prison brutality).

Although 1983 claims and constitutional tort claims have been

sustained in countless factual contexts, the Supreme Court in Estelle v. Gamble, 97 S. Ct. 285 (1976), has ruled that the negligent acts of a public official do not give rise to a constitutional claim absent a showing of deliberate indifference. Id., at 292. When it applied this standard

to a prisoner's claim that the prison medical director's failure to perform certain diagnostic and treatment procedures constituted cruel and unusual punishment, the Court found no constitutional deprivation. At best it found possible grounds for a medical malpractice suit under state law. Id., at 293 See also, Johnson v. Glick, 481 F. 2d 1028, 1033 (2d Cir. 1973); Williams v. Vincent, 503 F. 2d 541 (2d Cir. 1974) (prison guard's failure to protect prisoner not a constitutional violation where no malicious intent is shown.) In conclusion, it appears that the term "color of authority"

in the context of civil rights claims refers to the misuse of public office to deprive others of rights secured under the Constitution under circumstances showing some sort of bad motive.

The courts have liberally construed the term "scope of employment" as used in the Federal Torts Claim Act (hereinafter FTCA). In several cases

1/ It appears, however, that prisoner medical malpractice claims and
claims alleging faiure to provide for a prisoner's safety are cognizable
under the FTCA. United States v. Muniz, 374 U.S. 150 (1963) (medical
malpractice); United States v. Audsley, 486 F. 2d 289 (8th Cir. 1973)
(failure to protect prisoner form assault of fellow inmate).

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they have held that an employee's acts are within the line of duty even
though they are illegal. The FTCA requires courts to apply the law
of the jurisdiction where the tort occurred. Although in the past some
jurisdictions held that an illegal act could not be within the scope

of an employee's duty because the employer could not authorize his employees
to break the law, the modern and expanding view adopted by most jurisdictions
is to hold an employer liable for the intentional torts of his employees,
if the employee was motivated by a desire to help his employer. See
Prosser, Law of Torts $70 at 464-65 (4th ed. 1971). In some jurisdictions
an even more liberal test is used. The acts of employees are held to

be within the scope of employment if they are a forseeable risk of the

business thereby making it fair to shift the risk of loss onto the employer. 2 F. Harper & F. James, The Law of Torts $26.7 at 1374-77 (1956).

The Supreme Court, in applying Utah law to a FICA claim, has held that employees who exceed their authority may nevertheless be within the scope of their employment. In Hatahley v. United States, 351 U.S. 173 (1956) the Supreme Court held that federal employees were acting within the scope of their employment when they impounded horses belonging to Indians which had not been licensed to graze on public lands. The Federal employees had not complied with the notice provisions implementing the Taylor Grazing Act when they impounded the horses. In holding that the illegal acts were within the scope of the Federal agents' employment,

the Court stated:

It is clear that the federal agents here were acting within
the scope of thier employment under both state and federal
law. Under the law of Utah an employer is liable to third

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persons for the willful torts of his employees if the acts
are committed in furtherance of the employer's interests of
if the use of force could have been contemplated in the
employment. Cf. Barney v. Jewel Tea Co., 104 Utah 292, 139
P. 2d 878. Both of these conditions obtained here. The
federal agents were attempting to enforce the federal range
law, and such enforcement must contemplate at least the
force used in removal of stock from the range. The fact
that the agents did not have actual authority for the
procedure they employed does not affect liability. There
is an area, albeit a narrow one, in which a government
agent, like a private agent, can act beyond his actual
authority and yet within the scope of his employment.

Id. at 180-181.

Several courts, in relying on Hatahley, have held that an employee's intentional torts committed in furtherance of the government's purpose

are committed within the scope of employment and hence actionable under the FTCA. See e.g., Cruickshank v. United States, 431 F. Supp. 1355, 1356-58 (D. Haw. 1977) (intentional invasion of privacy for illegal mail opening pursuant to CIA intelligence program); Birnbaum v. United States, 436 F. Supp. 967, 972 (E.D. N.Y. 1977) (same); Avery v. United States, 434 F. Supp. 937, 941-943 (D. Conn. 1977) (same); Black v. United States, 389 F. Supp. 529 (D. D.C. 1975) (trespass, invasion of privacy by intrusion and by publication for illegal wiretaps); but see Wrynn v. United States, 200

F. Supp. 457 (E.D. N.Y. 1961) holding that United States Air Force pilots were not acting within the scope of their employment when they flew a helicopter to help state police officers search for a prison escapee since federal law prohibited the armed forces from serving state police functions without express congressional authorization and none had been given.

In some

cases the courts have assumed, without discussion, that government agents were acting within the line of duty when they performed governmental functions

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although they did not comply with government regulations or committed intentional torts. See Clemente v. United States, 422 F. Supp. 564 (D.P.R. 1976) (wrongful death in airplane crash attributable to federal agent's failure to follow FAA safety instructions); Downs v. United States, 522 F.2d 990 (6th Cir. 1975) (hostages killed by F.B.I. agents attempting to stop hijacking); Myers and Myers, Inc. v. United States Postal Service, 527 F. 2d 1252 (2d Cir. 1975) (tortious interference with business caused by failure to provide hearing before canceling mail service contract in violation of agency regulation requiring hearing for debarrment).

2

At least one court has gone beyond Hatahley and held that an employee's intentional torts are within the scope of his employment where the employee's act is a forseeable risk of the government program. In Bushey & Sons Inc., v. United States, 276 F. Supp. 518 (E.D. N.Y. 1967), aff'd, 398 F. 2d 167 (2d Cir. 1968), the court held that an intoxicated coast guard seamen living aboard a coast guard ship while in drydock was acting within the scope of his employment when he turned valves flooding and causing damage to the drydock. Since the act clearly did not further the government's interest, the court rested its ruling on the more liberal test that a drunken seamen's acts "may fairly be regarded as a risk of [the] master's business" at least where the seamen is aboard ship. 276 F. Supp. at 528-531.

In conclusion it appears that the term "scope of employment" has been liberally construed in FTCA cases to encompass the intentional torts of government employee's at least where they are committed to further