The HONORABLE ROBERT R. BEEZER, United States Circuit Judge for the 1 Ninth Circuit, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3952

___________ Martha Roe, individually and as Mother * and next friend of Jane Doe, a minor; * Metropolitan National Bank, as * Guardian of the Estate of Jane Doe, * a minor, *
* Appellants, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
* Jack Humke, individually and in his * official capacity as an officer in the * City of Lonoke Police Department; * Floyd Van Horn, individually and in * his official capacity as Chief of the * City of Lonoke Police Department, *
* Appellees. *

___________ Submitted: June 13, 1997
Filed: October 30, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, an d BEEZER, Circuit Judge.

1

___________The Ho norable Susan Webber Wright, United States District Judge for th e 2 Eastern District of Arkansas.
-2- WOLLMAN, Circuit Judge. Martha R oe, suing individually and as the mother and guardian of Jane Doe , appeals from the district court’ s adverse grant of summary judgment in her 42 U.S.C. 2 § 1983 action. The sole issue on appeal is whether defendant Jack Humke was acting under color of state law at the time he sexually assaulted Jane Doe. We conclude that he was not, and thus we affirm.

Because this is an appeal from the grant of summary judgment, we review the evidence in the light most favorabl e to Roe, the nonmoving party. See McCormack v. Citibank , N.A. , 100 F.3d 532, 534 (8th Cir. 1996). At the time of the assault, Jac k Humke was employed as a poli ce officer for the city of Lonoke, Arkansas. As part of his duties as a police officer, he worked with the local school, providing security and conducting other programs. Humke met eleven-year-old Jane Doe in 199 4 while sitting outside the school in his patrol ca r and in uniform. Humke was regularly at the school

as part of his duties, and he would see Doe and talk to her after school three or fou r times a week . He occasionally gave her rides home. He bought her candy and sodas and gave her a pen set for Christmas. While he was driving around town in his patrol car, he would dri ve to Doe’s house and talk to Doe from the car. Humke hugged and kisse d Doe through the window of the patrol car, explaining that he did it “like a grandfat her

hugging a granddaughter,” and saying that he “didn’t pay no attention ” when Doe hugged his nec k and kissed his cheek. Humke once said that he wished he “were 20 years younger so (he) could get some of” Doe.

Whil e at the school, in his police car and in uniform, Humke several time s suggested to Doe and some of her friends that they go to Humke’s farm to ride all

terrain vehicles. Doe finally agreed. On Saturday, February 4, 1995, Humke picked up Doe and another minor female at Doe’s home. Humke was off-duty at t he time, was-3-

driving his personal vehicle, was not wearing his uniform or badge, and was no t carrying a gun. Humke met with Doe’s mother and step-father, whom he had me t before and who knew that he was a police officer. He told them where he was taking Doe and what they would be doing and said his purpose was to reassure them that Doe would be safe with him. Doe’s parents ag reed that she could go with Humke. Humke then took D oe and the other young girl to his farm, where he hugged, kissed, an d fondled Doe while riding behind her on the all-terrain vehicle.
Humke did not see Doe again until aft er school the following Tuesday, when he drove up to her in his patrol car, gave her what she described as a “scary” look, an d asked if s he had had a good time. Doe stated that she felt Humke was pressuring her not to say anything. Doe’s parents eventually learned from Doe what had happene d and co mplained to the Arkansas State Police about Humke’s actions. Following a n in vestigation, Humke was terminated from the police department. He subsequentl y pleaded nolo contendere to a charge of first-degree sexu al abuse and was incarcerated.
Roe’s lawsuit soug ht damages based on alleged violations of Doe’s Fourteenth Amendmen t

substantive due process rights to liberty and privacy and of her Fourth Amendment right to be free from unrea sonable searches and seizures. Roe also sought declaratory and injunctive relief and asserted state law claims.
Humke acknowledged that he wa s a “goodwill ambassador” for the department withchildren, that when he talks to children he is trying to get them to trust him, and that it is important for ch ildren to learn to trust the police. Humke also acknowledged that he was subject at all times to the Lonoke police department’s code of ethics, which

me ant that he was on duty twenty-four hours a day and subject to discipline fo r incidents in his private life.

The district court concluded that Humk e was not acting under color of state law at the time he assaulted Doe. The court noted that Humke was not on duty at the time,-4-

wa s not in uniform, was not wearing a badge, and was not carrying a weapon. Th e court concluded that Humke was not engaged in or pretending to engage in act s required of himas part of his official duties as a police officer. The court rejecte d Doe’s argument that Humke had used his position of trust and authority as a polic e office r to create the situation whereby he could assault her, concluding that “whil e Officer Humke may certainly have been revered as a police officer” by Doe and he r parents, nothing in the

record suggested that his actions “were related in a meaningful way either t o his governmental status or to the performance of his duties.” Afte r granting summary judgment to defendants on the section 1983 claim, the district court declined to exercise supplemental jurisdiction over the state law claims.

“To state a claim under § 1983, a plaintiff must allege the violation of a righ t secured by the Constitution and laws of the United States, and must show that th e alleged deprivation was committed by a person acting under color of state law.” West v. Atkins , 487 U.S. 42 , 48 (1988). We are concerned only with “the second essential element”--whether Humke was acting under color of state law. See id. at 49.

“Th e traditional definition of acting under color of state law requires that th e defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and ma de possible only because the wrongdoer is clothed with the authority of stat e law.’” Id. (quoting United States v. Classic , 313 U.S. 299, 326 (1941)). “It is firmly

es tablished that a defendant in a § 1983 suit acts under color of state law when h e abuses the position given to him b y the State. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising hi s responsi bilities pursuant to state law.” Id. at 49-50 (citations omitted). We hav e expl ainedthat “[t]he injury complained of must have been caused by the exercise o f some right or privilege cr

eated by the state, by a rule of conduct imposed by the state, or by a person f

or whom the state is responsible.” Parker v. Boyer , 93 F.3d 445, 448 (8th Cir. 1996 ) (citing Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 937 (1982)), cert. denied , 117 S. Ct. 1081 (1997).-5-

“It is clear that under ‘color’ of law means under ‘pretense’ of law. Thus acts of officers in the ambit of their persona l pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included wh ether they hew to the line of their aut hority or overstep it.” Screws v. United States , 325 U.S. 91, 111 (1945 ) (p lurality opinion). As the First Circuit has said, “[w]hether a police 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.), cert. denied , 116 S. Ct. 515 (1995). Absent any actual or purported relationship between the officer’s conduct and his duties as a police officer, the officer cannot be acting under color of state law. See id. at 987; Van Ort v. Estate of Stane wich , 92 F.3d 831, 838 (9th Cir. 1996), cert. denied , 117 S. Ct. 950 (1997); Barna v. City of Perth Amboy , 42 F.3d 809, 816 (3rd Cir. 1994); Pitchell v

. Callan , 13 F.3d 545, 548-49 (2d Cir. 1994).

Viewi ng the events of February 4 solely in isolation, Humke was not actin g under color of

state law because he was neither actually acting in his official capacity or exercising his responsibilities pursuant to state law, nor purporting to so act. Humke took Doe to his farm for his own personal pursuits, not for any purpose legitimately or purportedl y related to the exercise of his responsibilities as a police officer. As th e district court pointed out, Humke was off-duty, was not wearing his uniform or badge

or ca rrying a gun, and was driving his personal vehicle. Cf. Haberthur v. City o f Raymore, Mo. , 119 F.3 d 720 (8th Cir. 1997) (plaintiff sufficiently alleged officer was acting under color of law where officer once followed her home in his police cruise r and threaten ed to give her a speeding ticket, and later, while he was on duty and i n uniform, sexually assaulted her at her place of work).
Nor does Humke’s admission that he was subject to the c ode of ethics transform into action under color of law any of his off-duty actions that were not related to th e lawful or purported exercise of his responsibilities as a police officer. See Barna , 42 F.3d at 818 n.11 (county policy that officers are on-duty 24-hours a day probative of-6-

“‘u nder color’ action if the defendant officer allegedly violated the plaintiff’s right s while engaging in activities normally associated with the police function”); Revene v. Charles Cou nty Comm’rs , 882 F.2d 870, 873 (4th Cir. 1989) (where, pursuant t o ordinance, police

officer on duty 24-hours a day and expected to take police action in certain situations, action purportedly taken pursuan t to police authority would be under color of law). Roe argues, however, th at we cannot view the events of February 4 in isolation and that we should instead consider the entire course of Humke’s relationship with Doe. When so viewed, Roe contends, the facts est ablish that Humke was acting under color of l aw because he abused his position and authority as an officer of the law t o create circumstances under which he could sexually assault Doe; thus, there was a sufficient nexus between the abuse of his authority and the sexual assault. In support of her argument, Roe cite s Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443 (5th Cir.) (en banc), cert. denied , 513 U.S. 815 (1994); and Dang Vang v. Vang Xiong X. Toyed , 944 F.2d 476 (9th Cir. 1991).

In Dang Vang , defendant Xiong was employed by the state to help find jobs for refugees and to teach them to drive. The two victims, both Hmong refugees, came into contact wi th Xiong in the course of seeking employment or assistance in learning t o drive. Xiong arranged supposedly legitimate meet ings with the women, but then raped them in stead. See 944 F.2d at 478. The Ninth Circuit concluded that sufficien t evidence existed to establish that Xiong was acting u nder color of state law. The court noted that each plaintiff came into contact with Xiong because of her need fo r employment

and her understanding that Xiong and his department could be relied on to provide jobs; each plaintiff was raped during a meeting with Xiong that was related to his provision of services pursuant to his state employment; and as refugee s dependent on government aid, the victims were “in awe of government officials. ” Thus, the jury could have concluded that Xiong had used his government position to exert influence and control over the plaintiffs in order to rape them. Se e id. at 480. See-7-

also Whitney v. State of New Mexico , 113 F.3d 1170, 1174-75 (1 0th Cir. 1997) (citing Dang Vang and concluding that plaintiff stated claim that individual defendant wa s acting under color of law because at time he harassed her, he had authority ove r plaintiff’s ability to obtain

day care license and he “could not have harassed [plaintiff] absent his authority as an agent for the State”).

In Doe , the Fifth Circuit rejected the argument that a high school teacher wh o had engaged an ongoing sexual relationship with one of his students was not actin g under color of law, stating that the teacher “took full advantage of his position as Doe’s tea cher and coach to seduce her.” Doe , 15 F.3d at 452 n.4. The court noted that the teacher required Doe to do little or no classwork but gave her “A” grades; spoke t o anothe r teacher about raising Doe’s grade in another class; took Doe from hi s classroom to an adjacent lab room to engage in sexual contact with her; and used his po sition as her basketball coach to create other opportunities for sexual contact. See id. The court stated that when a “real nexus” is present “between the activity out of whichthe violation occurs and the teacher’s duties and obligations as a teacher, then the t eacher’s conduct is taken under color of state law,” and that such a nexus wa s “clearly present” in Doe’s case. See id.
Accepting fo r the purposes of argument Roe’s proposition that Humke’s entire course of con duct must be considered in determining whether he acted under color of state law by placing himself in a position to assault her daughter, in both Dang Vang and Doe , there was a nexus between the defendant’s official position and hi s relationship with the victim. In Dang Vang , it was Xiong’s position as a state official with the power to a

id refugees in finding jobs and learning to drive that put him in the position to rape the plaintiffs. In Doe , it was thedefendant’s position as Doe’s teacher and his use of the privileges of that position--his power over her grades and access to school buildings--to seduce Doe and create the opportunity for sexual contact. Both

cas es involved a defendant who was acting under pretense of his authority and wh o was purporting to exercise the power given him by the state.-8-

Roe a rgues that had Humke not been a police officer, the actions of a relativ e stranger in talking to Doe and giving he r rides and small presents would not have been tolerated. Further, she argues that Humke’s credibility was enhanced by virtue of his posit ionas a police officer. All of this may be true, but the knowledge of Humke’ s status alone by Doe and her parents is not sufficien t to convert the actions Humke took in the pu rsuit of his private interests into action taken under color of state law. I n D.T. by M.T. v. Independent Sch. Dist. No. 16 , 894 F.2d 1176 (10th Cir.), cert. denied , 498 U.S. 879 (1990), a teacher and basketb all coach sexually assaulted three students, all members of his basketball team, while they were on a fund raising trip for a private

summer basketball camp. The court rejected the plaintiff’s argument that th e const itutional deprivations could be attributed to the state because of the “cloak o f authority” held by a teacher and concluded that the teacher was not acting under color of law becau se there was no nexus between his duties as a teacher and the summe r basketball camp. S ee id. at 1188. Similarly, in Becerra v. Asher , 105 F.3d 1042 (5th Cir.), cert. denied , 66 U.S.L.W. 3016 (U.S. Oct. 6, 1997) (No. 96 -2052), a student was sexually assaulted by his former teacher. In concluding th at the teacher was not acting under color of state law, the court noted t hat although the teacher had “first befriended and shown a special interes t in” the victim at school, there was no real nexus between the teache r’s duties and the sexual assault. The court rejected the argument that th e sexual abuse would n ot have occurred had the teacher not won the student’s trust and affection while serving as teacher, stating that the constitutional violation “did no t extend to the development of trust and affection.” See id. at 1047 (citing Doe , 15 F.3d at 445, 450, 451, 454).

We conc lude that Humke was not acting under color of law because there was

no nexus between his position as a police officer and his abuse of Doe on the day i n ques tion. As the district court aptly stated, “The sexual abuse of plaintiff, whil e reprehens ible and to be condemned in the strongest possible terms, was a private tort committed by a person acting in a purely private capacity.”-9-

Roe also sued Floyd Van Horn in his individual capacity and his o fficial capacity

as the chief

of police for the City of Lonoke at the time the events occurred. Ro e alleg ed that Van Horn’s acts, customs, and policies as chief of police in ignorin g previous incidents of sexual misconduct by Humke and other officers, and his failure to adequately train, supervise, and discipline Humke and other officers, constitute d de liberate indifference to Doe’s constitutional rights and resulted in the injuries sh e suffered. Becau se there was no underlying violation of Doe’s constitutional rights by a state actor, however, her claim against Van Horn necessarily fails. See City of Los Angeles v. Heller , 475 U.S. 796, 799 (1986) (per curiam); Becerra v. Asher , 105 F.3d at 1047-48; Brodnicki v. City of Omaha , 75 F.3d 1261, 1266 (8th Cir.), cert. denied , 117 S. Ct . 179 (1996); Abbott v. City of Crocker, Mo. , 30 F.3d 994, 998 (8th Cir

. 1994).
The judgment is affirmed.
RICHARD S. ARNOLD, Chief Judge, dissenting. This is a c lose case, and the Court’s opinion is well argued, but I believe th e facts in this record, when viewed in the light most favorable to the plaintiff (the party opposing summary judgment), would justify a rational jury in f inding that the defendant Humke acted under color of state law.

Part of Humke’s job as a police officer was to work with the local school as a “go odwill ambassador,” providing security and conducting other programs. He firs t met the plaintiff while he was sitting outside the school in a police car and in uniform. He regularly went to the school as part of his duties. He would sometimes go to th e plaintiff’s house and talk to her from his patrol car. He was off duty, in his personal car, and not wearing a uniform, on the day that the alleged ab use occurred, but it seems to me a reasonable inference that the plaintiff’s parents would not have allowed her to go with Humke if it had not been for his official position. When he came to the-10-

plaintiff’s house that

day, he got out of his car and went into the house to reassure the parents that he would be careful, and that he and plaintiff would be going to a saf e place. The parents knew that he was a police officer.

In short, Hum

ke’s official position enabled him to gain the parents’ confidence and allow their daughter to go with him. The situat ion can fairly be described as abuse of official authority to put the minor plaintiff in a vulnerable position. Later, Humke attempted to intimidate the plaintiff into silence, or at least the trier of fact could s o find, and was in his patrol car when he did so. “[A] defendant in a §1983 suit act s under color of state law when he ab uses the position given him by the State.” West v. Atkins , 487 U.S. 42, 50, 108 S. Ct. 2250, 2255 (1988).
For these reasons, I respectfully dissent.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.