FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS ANDERSON, 

Plaintiff-Appellant, No. 04-15505

v. D.C. No.

CHARLES WARNER; COUNTY OF  CV-01-03471-MHP

MENDOCINO; COUNTY OF OPINION MENDOCINO SHERIFF’S DEPARTMENT,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, District Judge, Presiding

Argued and Submitted

October 21, 2005—San Francisco, California

Filed June 26, 2006

Before: Sidney R. Thomas and William A. Fletcher,

Circuit Judges, and James C. Mahan,* District Judge.

Opinion by Judge William A. Fletcher

*The Honorable James C. Mahan, United States District Judge for the

District of Nevada, sitting by designation. 

7137
COUNSEL

William E. Weiss, San Francisco, California, for the appellant.

7140 ANDERSON v. WARNER
Duncan M. James, David M. Kindopp, Ukiah, California, for

appellee Charles Warner.

Douglas L. Losak, Office of the County Counsel, Ukiah, California, for appellee County of Mendocino. 

OPINION

W. FLETCHER, Circuit Judge: 

In this § 1983 suit, Thomas Anderson appeals from the district court’s grant of summary judgment to individual defendant Charles Warner, as well as defendants Mendocino

County Sheriff’s Office and County of Mendocino (collectively “the County”). Anderson contends that Warner

assaulted him while acting under color of state law. Anderson

also contends that the County negligently hired and supervised Warner, and conducted an inadequate investigation into

the assault by Warner. We reverse as to Warner and affirm as

to the County. 

I. Background

On the morning of July 30, 2001, Anderson and Warner

were slowly driving their own vehicles toward the Redwood

Valley Parade. Anderson was momentarily distracted and

accidentally rear-ended Warner’s vintage pickup truck. Warner got out of his truck, went back to Anderson’s vehicle,

opened Anderson’s door, and began hitting Anderson in the

face and neck. Warner’s wife, who had been a passenger, also

got out of the truck. A probation officer and friend of Warner,

Thomas Cropp, was driving the vehicle in front of Warner.

Cropp got out of his vehicle and came back to join Warner

and his wife. At the time of the assault, Warner was employed

by the Mendocino County Sheriff’s Department as the jail

commander. On the day of the assault, Warner was off duty

and out of uniform. 

ANDERSON v. WARNER 7141
Recounting the assault in his declaration, Anderson stated:

I heard someone yell t[o] call the police and then

a woman I later learned was Mr. Warner’s wife

yelled, “he is a cop”. I then said to Mr. Warner,

“You’re a cop?” and something to the effect that this

was another Rodney King. He replied that he was

and I heard him tell witnesses he was a cop and to

stay back. I also heard a person who I now know is

named Thomas Cropp tell people he was a probation

officer and that this was police business. He told

people to move on. Mr. Warner did not contradict

him. 

In his deposition, Anderson recounted that he had briefly

been rendered unconscious by the assault. He then described

what he saw after he regained consciousness: 

Well, what happened after I came to, I sat up and

noticed Mr. Warner and this other guy and this lady

holding their hands up, telling the crowd to disperse

— that it’s a police matter, and that Warner was an

officer[.] 

“This other guy,” described by Anderson as having gray hair

and a “small gray beard,” was Thomas Cropp. “This lady”

was Warner’s wife. The deposition continued:

Q: Tell me what you heard the man with gray hair

and a beard say? 

A [by Anderson]: I heard him say that for the

crowd to disperse. 

Q: Did he use the word “disperse”? 

A: Yes. 

7142 ANDERSON v. WARNER
Q: What were his actual words if you can remember? 

A: He was just telling the crowd to back up, to disperse, this is police business. 

. . . 

Q: Now did you also hear some other person make

some comment . . . ? 

A: Yes. 

Q: Who was that? 

A: This big woman on the right-hand side of Mr.

Warner, on the right-hand side of the crowd. And

she was saying that he was a cop. 

Q: What do you recall her actual words to be? 

A: “He’s a cop. Let him alone. Look what he did

to his truck.” 

Later in the deposition, Anderson stated that fire department

personnel came to the scene:

Mr. Warner looked and seen that the fire department

was running down the road. He went — he slid back

behind my seat and held my head, and he was telling

me . . . that he was a police officer, not to say anything, that he’ll fix it. He’ll work it out. 

Tony Maples was a witness to the assault. He provided a

sworn declaration to which he attached a transcript of a taped

interview with the police after the event. Maples stated in the

interview:

ANDERSON v. WARNER 7143
I yelled “Somebody call the cops[.]” And [the lady

in the red shirt] goes, “He is a cop”. And I went, “Oh

my gosh” . . . and then . . . I started yelling, “Then

what is he doing this for?” . . . And the lady goes,

“Well look at his — look what that guy did to my —

did to his truck. Let him be — let him hit him.” 

Ginerva Chandler, another witness, provided a sworn declaration to which she attached a transcript of her taped interview with the police. She stated that she had passed the scene

of the accident on her bicycle:

And we could hear them yelling and we assumed the

guy in [Anderson’s car] was hurt and they were

going to try and get him out of the car. . . . And then

what I heard was a woman yelling, you’ll have to

excuse the language, “Fucking caused the accident,”

and then yelling, “He’s a cop. He’s a cop,” and we

saw them reaching in the car to get the gentleman in

the car out and we just kept rolling. 

Anderson filed a complaint in federal district court alleging

violations of 42 U.S.C. § 1983 as well as various state law

claims. Defendants Warner and the County moved for summary judgment. The district court granted Warner’s motion

on the ground that he had not acted under color of state law.

It granted the County’s motion on the ground that Anderson

had not presented any evidence of a causal connection

between his injuries and either the asserted deficient training

and supervision or the asserted failure to investigate. The district court dismissed the state-law claims without prejudice

under 28 U.S.C. § 1367(c)(3). 

Anderson timely appealed. We have jurisdiction under 28

U.S.C. § 1291. 

II. Standard of Review

We review the district court’s grant of summary judgment

de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

7144 ANDERSON v. WARNER
2004). Viewing the evidence in the light most favorable to the

nonmoving party, we must determine whether there are any

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Olsen v. Idaho

State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). 

III. Discussion

[1] Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injury in an action at law[.] 

Section 1983 does not create any substantive rights, but is

instead a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local

officials. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 978

(9th Cir. 2004) (internal quotation marks omitted). “The purpose of § 1983 is to deter state actors from using the badge

of their authority to deprive individuals of their federally

guaranteed rights.” McDade v. West, 223 F.3d 1135, 1139

(9th Cir. 2000). 

We discuss the claims against Warner and the County in

turn. 

A. Warner

[2] Anderson claims that Warner violated § 1983 when he

invoked his law enforcement status in order to keep others

from interfering with the assault. To state a claim under

ANDERSON v. WARNER 7145
§ 1983, a plaintiff must both (1) allege the deprivation of a

right secured by the federal Constitution or statutory law, and

(2) allege that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988). Our focus is on the second requirement. 

At the time of the assault, Warner was an employee of the

Mendocino County Sheriff’s Department. He was the county

jail commander with the rank of lieutenant. Earlier in his

career, as a lower-ranking officer, Warner had frequently

worn a uniform while on duty. In his position as jail commander, he rarely wore a uniform even while on duty. Warner

was entitled, by virtue of his position, to carry a gun while

performing his duties in the jail and while transporting prisoners outside the jail. He was not entitled to carry a gun while

off duty. 

[3] As a county jail commander, Warner’s status under California law was that of a “custodial officer.” Under California

Penal Code § 831.5(a), “a custodial officer is a public officer,

not a peace officer, employed by a law enforcement agency

[of a county] . . . who has the authority and responsibility for

maintaining custody of prisoners . . . .” Section 831.5(f) provides that custodial officers may make warrantless arrests

only while on duty: “A custodial officer may use reasonable

force in establishing and maintaining custody of persons

delivered to him or her by a law enforcement officer; may

make arrests for misdemeanors and felonies within the local

detention facility pursuant to a duly issued warrant; [and] may

make warrantless arrests pursuant to Section 836.5 only during the duration of his or her job . . . .” 

Warner did not have the status of “peace officer” under

California law. “Peace officers,” as defined in California

Penal Code § 830.1, have considerably broader powers than

“custodial officers.” For example, under § 836.5(a), peace

officers may make warrantless arrests “whenever the officer

or employee has reasonable cause to believe that the person

7146 ANDERSON v. WARNER
to be arrested has committed a misdemeanor in the presence

of the officer or employee that is a violation of a statute or

ordinance that the officer or employee has the duty to

enforce.” 

[4] A police report in the record summarizes an interview

between Warner and an investigating police officer. Warner

is reported to have said that he acted because he thought

Anderson was trying to “flee the scene of the accident,” and

that he “punched” Anderson “about two times.” Warner

argues that, as a custodial officer, he had no authority to try

and prevent Anderson from leaving the scene of the accident

or to issue commands to the crowd that had gathered at the

scene. The district court noted that, as a custodial officer,

Warner had no authority to make a warrantless arrest of

Anderson. The district court concluded, “[e]ven assuming

Warner identified himself as a police officer and issued commands to the crowd, his conduct is not related to the performance of his duties as a custodial officer. Warner was not in

fact performing any of his official duties, nor did the alleged

conduct arise from the performance of such duties.” 

Warner relies on the reasoning of the district court to argue

that he was not acting under color of state law. He argues that

because he was a “custodial officer” rather than a “peace officer,” he could not have been acting under color of state law

within the meaning of § 1983 when he assaulted Anderson.

He contends that he could not have been abusing his authority, and hence acting under of color of state law, because the

scope of his authority did not extend to the acts he committed.

We disagree with Warner’s contention that he was not acting

under color of state law. 

[5] There is no “rigid formula” for determining whether a

state or local law official is acting under color of state law.

Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 550 (9th Cir.

1974). “State employment is generally sufficient to render the

defendant a state actor,” Atkins, 487 U.S. at 48 (internal quoANDERSON v. WARNER 7147
tations and alterations omitted), but “whether a[n] . . . officer

is acting under color of state law turns on the nature and circumstances of the officer’s conduct and the relationship of

that conduct to the performance of his official duties.” Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). “Misuse of

power, possessed by virtue of state law and possible only

because the wrongdoer is clothed with the authority of state

law, is action taken ‘under the color’ of state law.” United

States v. Classic, 313 U.S. 299, 326 (1941). “It is firmly

established that a defendant in a § 1983 suit acts under color

of state law when he abuses the position given to him by the

State.” Atkins, 487 U.S. at 49-50. 

[6] We hold that Warner was acting under color of state

law when he invoked his law enforcement status to keep

bystanders from interfering with his assault on Anderson. In

the circumstances of this case, there are three critical requirements that must be satisfied. First, the defendant’s action must

have been “performed while the officer is acting, purporting,

or pretending to act in the performance of his or her official

duties.” McDade, 223 F.3d at 1140. Second, the officer’s pretense of acting in the performance of his duties must have had

the purpose and effect of influencing the behavior of others.

See Van Ort v. Estate of Stanewich, 92 F.3d 831, 839-40 (9th

Cir. 1996) (finding no color of state law because the victim

had not opened the door based on defendant’s status as a

police officer). Third, the challenged conduct must be “related

in some meaningful way either to the officer’s governmental

status or to the performance of his duties.” Martinez, 54 F.3d

at 987. 

[7] We consider the first two requirements together: (1) the

defendant must have pretended to act in the performance of

his official duties, (2) with the purpose and effect of influencing the behavior of others. Viewing the evidence in Anderson’s favor, it is clear both that Warner pretended to act in

performance of his official duties, and that his actions had the

purpose and effect of discouraging bystanders from interfer7148 ANDERSON v. WARNER
ing. Anderson stated in his declaration that “I heard [Warner]

tell witnesses he was a cop and to stay back.” In his deposition, he stated that after he regained consciousness, he “noticed Mr. Warner and this other guy and this lady holding

their hands up, telling the crowd to disperse — that it’s a

police matter, and that Warner was an officer.” Further, it is

reasonably clear from the statements of witnesses Maples and

Chandler that Warner’s statements had the effect of influencing the behavior of others. For example, when Chandler heard

that Warner was a “cop,” she did not get off her bicycle, but

rather “just kept rolling.” 

[8] The third requirement is that Warner’s conduct must be

sufficiently related “either to the officer’s governmental status

or to the performance of his official duties.” Martinez, 54

F.3d at 987. This requirement cannot mean that an officer

must have been acting within the scope of his authority in

order for him to have been acting under color of state law. If

that were true, no § 1983 suit could ever succeed, for the

premise of a successful suit is that the officer acted illegally

— that is, outside the scope of his authority. Instead, the

requirement must mean only that the challenged conduct must

have a sufficiently close relationship to the officer’s “governmental status” or to “the performance of his duties.” 

[9] In the context of this case, this third requirement means

that Warner must have used “the badge of [his] authority” to

deprive an individual of his rights, McDade, 223 F.3d at 1139,

by invoking his “governmental status” to influence the behavior of those around him. A key aspect of this requirement is

that the officer must have invoked his actual status. For example, a law enforcement officer employed by the Sheriff’s

Office who says, “I am a cop, stand back” is invoking his

governmental status. By contrast, a janitor employed by the

Sheriff’s Office who says the same thing is not invoking his

governmental status — for the simple reason that he is not, in

fact, a “cop.” 

ANDERSON v. WARNER 7149
[10] We hold that Warner invoked his “governmental status” within the meaning of this requirement. According to

Anderson, Warner said that he was a “cop” and told the

bystanders to stay back. “Cop” is a generic, non-technical

term. It can, of course, refer to a “peace officer” under California law. But it can also encompass and refer to Warner’s

status as a “custodial officer.” If Warner had been a janitor in

the county jail, his statement that he was a “cop” would not

have been enough to render his conduct under color of law,

for the term “cop” would have been a clearly inaccurate characterization of his status. But Warner was, instead, a lieutenant in the Mendocino County Sheriff’s Department and the

commander of the county jail. “Cop” is a sufficiently capacious term to include that status. 

[11] We therefore conclude that when Warner told the

bystanders that he was a “cop” and ordered them to stay back,

he was acting under color of state law. “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.” Classic, 313

U.S. at 326. 

B. The County

Local government entities are considered “persons” for

purposes of § 1983 and can be sued directly for monetary,

declaratory, or injunctive relief where “the action that is

alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation or decision officially adopted

and promulgated by that body’s officers.” Monell v. Dep’t of

Soc. Servs. of New York City, 436 U.S. 658, 690 (1978). However, a municipality “cannot be held liable under § 1983 on a

respondeat superior theory,” that is, “solely because it

employs a tortfeasor.” Id. at 691 (emphasis in original). 

[12] In order to hold the County liable under § 1983,

Anderson must show “(1) that he possessed a constitutional

7150 ANDERSON v. WARNER
right of which he was deprived; (2) that the [County] had a

policy; (3) that the policy ‘amounts to deliberate indifference’

to [Anderson’s] constitutional right; and (4) that the policy is

the ‘moving force behind the constitutional violation.’ ”

Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)).

There also must be a “direct causal link” between the policy

or custom and the injury, and Anderson must be able to demonstrate that the injury resulted from a “permanent and well

settled practice.” McDade, 223 F.3d at 1141 (internal quotations omitted). A failure to train or supervise can amount to

a “policy or custom” sufficient to impose liability on the

County. City of Canton, 489 U.S. at 389-90. 

[13] The district court concluded that even if Warner had

been acting under color of state law, Anderson had provided

insufficient evidence to connect Warner’s actions to any possible inadequate training or supervision. Anderson contends

that the County was aware that Warner had a reputation for

being prone to violence and aggressive behavior and that it

negligently hired Warner for a position where there was a

substantial risk that Warner would violate the rights of others.

In addition, Anderson contends that the County failed to train

Warner adequately in the proper use of his authority and was

negligent in its supervision of him. However, Anderson has

not shown that the County’s asserted deficiencies in hiring,

training and supervision, if any, amount to a policy reflecting

“deliberate indifference to the rights of persons with whom

the police come into contact.” See City of Canton, 489 U.S.

at 388.

[14] We therefore affirm the district court’s grant of summary judgment to the County.

IV. Conclusion

For the foregoing reasons, we reverse the district court’s

grant of summary judgment with respect to Warner and affirm

ANDERSON v. WARNER 7151
the grant of summary judgment with respect to the County.

We remand to the district court for further proceedings consistent with this opinion.

AFFIRMED in part; REMANDED in part. Costs to

Anderson with respect to the appeal against Warner. Costs to

the County defendants with respect to the appeal against

them.

7152 ANDERSON v. WARNER