Date: Apr 28, 2026

Martinez v. City of Aurora: Lindke’s “Actual Authority” Requirement Bars § 1983 State Action Where an Officer on Administrative Leave Was Explicitly Forbidden to Act

1. Introduction

In Martinez v. City of Aurora, Colorado (10th Cir. Apr. 27, 2026), the Tenth Circuit confronted a recurring but newly sharpened § 1983 question after Lindke v. Freed: when can an officer’s off-duty (or non-duty) misconduct be treated as action “under color of” state law?

Plaintiff-Appellee Wyoma Martinez alleged she was assaulted, detained, and falsely “arrested” by Aurora Police Officer Douglas Harroun in her apartment complex parking lot. Critically, the incident occurred while Harroun was on administrative leave under a written Leave Order stating: “You will not take any action as a sworn police officer.” Martinez sued Harroun and the City of Aurora under 42 U.S.C. § 1983 (and state-law analogs), pleading that Harroun invoked police status—“Go ahead, I’m a cop,” displaying a badge, asserting arrest authority, and using force.

The key issue on interlocutory appeal under 28 U.S.C. § 1292(b) was whether the complaint plausibly alleged the state-action/under-color-of-law element of § 1983 in light of Lindke v. Freed—particularly whether “apparent authority” can suffice, or whether the plaintiff must plead the officer had actual authority to engage in the specific challenged conduct.

2. Summary of the Opinion

The Tenth Circuit reversed the district court’s denial of reconsideration and held that Martinez failed to plausibly allege that Harroun acted “under color of law.” Applying Lindke v. Freed, the court emphasized that § 1983 state action requires that the official (1) possessed actual authority to take the complained-of action on the State’s behalf and (2) purported to exercise that authority. The appeal turned on prong one: actual authority.

Because the Leave Order expressly revoked Harroun’s authority to “take any action as a sworn police officer,” the complaint—at most—pled that Harroun believed he had authority and that Martinez perceived him as acting with authority (i.e., apparent authority). After Lindke, that is not enough. The § 1983 claim against Aurora therefore failed at the pleading stage.

The court also clarified that prior Tenth Circuit statements suggesting that “actual or apparent” authority could satisfy the under-color-of-law element are “no longer correct after Lindke.”

3. Analysis

3.1. Precedents Cited

A. Supreme Court foundations for state action and “under color of law”

West v. Atkins, 487 U.S. 42 (1988): supplied the “traditional definition” of acting under color of state law as exercising power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Martinez uses this as the baseline, but the panel stresses that being “clothed” requires the official to possess the power in the first place.
United States v. Classic, 313 U.S. 299 (1941): quoted for the proposition that “misuse of power” possessed by virtue of state law constitutes state action. Martinez reads Classic broadly, but the panel pairs it with Lindke’s admonition: “To misuse power, however, one must possess it in the first place.”
Blum v. Yaretsky, 457 U.S. 991 (1982) and Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999): cited for the core limit of § 1983—no liability for “merely private conduct.” The panel uses these cases to frame why the inquiry must be tethered to whether the State is “responsible for the specific conduct” challenged.
Screws v. United States, 325 U.S. 91 (1945) (plurality opinion): quoted (via Tenth Circuit precedent) for the “personal pursuits” limitation: state officials acting in the ambit of personal pursuits are not acting under color of law.
Polk County v. Dodson, 454 U.S. 312 (1981): invoked through Lindke to underscore that conduct that entails functions “in no way dependent on state authority” is not state action.

B. The controlling modern clarification: Lindke’s two-prong test

Lindke v. Freed, 601 U.S. 187 (2024): the pivotal authority. The panel treats Lindke as decisively rejecting any rule that “apparent authority” can satisfy § 1983 state action. Under Lindke, courts must identify the “specific conduct of which the plaintiff complains” and then ask whether the official had actual authority—derived from “statute, ordinance, regulation, custom, or usage”—to take that action.
Lindke v. Freed, 114 F.4th 812 (6th Cir. 2024): cited for the remand articulation that the conduct must relate to a specific matter within the official’s “portfolio of responsibilities,” and for recognizing that pre-Lindke “apparent authority” formulations were displaced by the Supreme Court.

C. Tenth Circuit state-action formulations narrowed by Lindke

Jojola v. Chavez, 55 F.3d 488 (10th Cir. 1995) and David v. City & County of Denver, 101 F.3d 1344 (10th Cir. 1996): both included language that authority “may be either actual or apparent.” The panel expressly states that, “to the extent” these cases suggested apparent authority suffices, “those statements of law are no longer correct after Lindke.”
Dry v. City of Durant, 242 F.3d 388 (10th Cir. 2000) (unpublished): the district court relied on Dry’s multi-factor approach (actual authority, indicia, victim perception, defendant belief). The panel implicitly demotes Dry’s framework post-Lindke by making actual authority a threshold requirement rather than one factor among several.
Haulmark v. City of Wichita, No. 22-3243, 2024 WL 3219677 (10th Cir. June 28, 2024) (unpublished): cited as an example of post-Lindke remand to apply Lindke’s test.
Hall v. Witteman, 584 F.3d 859 (10th Cir. 2009): used for the “personal pursuits” limitation and as an example of dismissal where the complaint fails to allege state action.

D. Pleading and review standards shaping the outcome

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009): supplied the plausibility framework; the court held the pleaded facts did not “nudge” actual authority from conceivable to plausible.
United States v. Warren, 22 F.4th 917 (10th Cir. 2022) and Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002): framed reconsideration as abuse-of-discretion review, but legal sufficiency as a question of law.
Obeslo v. Empower Cap. Mgmt., LLC, 85 F.4th 991 (10th Cir. 2023), Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210 (10th Cir. 2007): supported de novo review of the Rule 12(b)(6) legal sufficiency question driving the reconsideration ruling.

E. Agency-law authorities used to operationalize “actual authority”

Restatement (Third) of Agency §§ 2.01-.03, § 3.10: used to explain actual authority as the agent’s reasonable belief—based on the principal’s manifestations—that the principal wishes the agent to act, and to explain revocation and notice.
Coreslab Structures (TULSA), Inc. v. NLRB, 100 F.4th 1123 (10th Cir. 2024) and 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013): cited to distinguish actual from apparent authority and to frame actual authority as both subjective belief and objective reasonableness.
Fucci v. First Am. Title Ins. Co., 153 F.4th 1129 (10th Cir. 2025): used for the proposition that actual authority ends upon revocation, effective when the agent has notice; and that an agent must not act contrary to what he reasonably believes the principal desires.

3.2. Legal Reasoning

A. Step 1: Identify the “specific conduct” complained of

Following Lindke v. Freed, the panel first isolated the “specific conduct”: Harroun identified himself as a police officer, provided and displayed a badge, and used force to “disarm, detain, and arrest.” Martinez herself characterized this as “quintessential” law enforcement activity.

B. Step 2: Determine whether Harroun had actual authority to do that conduct

The Leave Order was decisive. It was a direct written manifestation by the City’s police chief placing Harroun on administrative leave and stating: “You will not take any action as a sworn police officer.” The panel treated this as an unambiguous revocation of authority to perform police functions—especially the very functions Martinez asserted were quintessential police work.

Under Lindke, Harroun could not “conjure the power of the State through his own efforts.” His statements (“I’m a cop”), his badge display, and his assertions of arrest authority might demonstrate that he purported to exercise authority (Lindke’s second prong), but they could not supply the missing predicate: that the City actually authorized him to do those acts at that time.

C. Why plaintiff’s “policy/custom” allegations did not create plausibility of actual authority

Off-Duty Policy (Directive 14.4): Martinez alleged the Off-Duty Policy instructed “sworn members” in off-duty situations to exercise discretion about direct participation. The panel held that, read alongside the Leave Order, Martinez did not plausibly allege the policy applied to an officer told not to act “as a sworn police officer.” Thus, the Off-Duty Policy could not plausibly restore actual authority that had been explicitly revoked.
Retention of badge: Martinez alleged Aurora allowed officers on leave to retain badges, and the district court treated that as a “delegation.” The panel rejected that inference: even if possession of the badge remained, the Leave Order “unambiguously terminated his authority to use it” to detain and arrest using force.
Subjective belief / victim perception: the panel treated these as classic apparent-authority evidence, not proof of actual authority. After Lindke, apparent authority is insufficient.

D. Procedural note: the district court’s pivot on reconsideration

The panel also highlighted a methodological problem: the district court initially agreed Harroun had “no actual authority,” then—without any change in the complaint—found actual authority on reconsideration. The Tenth Circuit cited HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191 (10th Cir. 2017), for the proposition that a sharp, unexplained change in analytic direction may itself constitute an abuse of discretion.

E. Unreached alternative theory: “systemic” municipal liability

Martinez argued Aurora could be liable as the “state actor” through its own policies even absent an underlying individual violation, invoking a systemic theory. The panel declined to affirm on that alternative ground due to inadequate briefing and because the complaint did not plead a systemic-failure theory, citing Est. of Burgaz ex rel. Zommer v. Bd. of Cnty. Comm'rs for Jefferson Cnty., 30 F.4th 1181 (10th Cir. 2022), Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), and Thao v. Grady Cnty. Crim. Just. Auth., 159 F.4th 1214 (10th Cir. 2025). The court left that question for the district court on remand, consistent with Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005).

3.3. Impact

A. Doctrinal impact in the Tenth Circuit: apparent authority is out

The opinion’s most durable contribution is its explicit statement that prior Tenth Circuit suggestions that “actual or apparent” authority can satisfy the under-color-of-law element “are no longer correct after Lindke v. Freed.” In practical terms, this narrows many older off-duty/off-hours § 1983 frames (including reliance on victim perception and officer self-identification) by reclassifying them as, at best, evidence of purported exercise rather than evidence of actual authorization.

B. Practical pleading consequences: focus on the source and scope of actual authority

Plaintiffs must now plead a plausible source of actual authority—“statute, ordinance, regulation, custom, or usage”—that covers the specific conduct challenged. When a written directive expressly revokes authority (as here), complaints must confront that revocation directly: alleging mere indicia of authority (badge, statements, victim belief) will not clear Lindke’s threshold.

C. Employment status and symbols of office are not enough when authority is revoked

The decision signals that ongoing employment and continued possession of instrumentalities (like badges) do not automatically confer actual authority for law-enforcement actions—especially where the municipality has issued explicit written limits.

D. Municipal risk management and administrative leave practices

For municipalities, the case suggests that clear, documented revocation language (and provable notice) can be outcome-determinative at the Rule 12 stage on the state-action element. The flip side is that ambiguous or partial leave orders, inconsistent customs, or directives that preserve enforcement powers could sustain plausible allegations of actual authority.

4. Complex Concepts Simplified

“Under color of law” / “state action”: In § 1983, a defendant is liable only if the challenged conduct is fairly attributable to the State. Private violence—even by a public employee—does not automatically become constitutional misconduct.
Actual authority vs. apparent authority: Actual authority means the State (or municipality) truly empowered the official—by law, policy, or custom—to do the specific act. Apparent authority means others reasonably believed the official had that power based on appearances (badge, uniform, statements). After Lindke v. Freed, § 1983 requires actual authority; appearance alone is insufficient.
Administrative leave and revocation of authority: Administrative leave can range from “off-duty but still an officer” to “no police action permitted.” Here, the written Leave Order expressly barred “any action as a sworn police officer,” which the panel treated as a revocation incompatible with claims that the officer had authority to detain/arrest/use force.
“Specific conduct” focus: The question is not whether the defendant generally had government status, but whether he had authority to perform the exact conduct complained of (here: using force and asserting arrest powers).

5. Conclusion

Martinez v. City of Aurora, Colorado is a post-Lindke v. Freed recalibration of § 1983 state-action pleading in the Tenth Circuit. It holds that where a municipality explicitly revokes an officer’s authority—here, through a signed Leave Order forbidding “any action as a sworn police officer”— a plaintiff cannot establish “under color of law” merely by alleging the officer invoked police status, displayed a badge, or that the victim perceived official action.

The opinion’s broader significance lies in its clear doctrinal message: within the Tenth Circuit, apparent authority no longer suffices for § 1983 state action after Lindke. Future litigants must plead (and later prove) the actual legal or customary source of authority for the specific challenged conduct—especially when written directives purport to withdraw that power.