## Facts

- Two Hmong refugee couples sued a state-employed refugee counselor who was assigned to help refugees obtain employment and related assistance.
- One plaintiff contacted the counselor for help with employment and later for help learning to drive and passing a driver’s license exam.
- The counselor offered assistance and transportation connected to these requests, took the plaintiff to a motel, and sexually assaulted her.
- Another plaintiff sought the counselor’s help obtaining work; he drove her to employment-related locations and used job-related pretexts to isolate her.
- The counselor insisted she accompany him on a purported errand tied to the refugee community and instead took her to a motel and raped her; she later testified he raped her repeatedly, using promised employment opportunities as the recurring pretext.
- The plaintiffs did not immediately report the assaults and continued interacting with the counselor for assistance; expert testimony described Hmong refugees’ heightened deference to government officials and dependence on them for basic needs.
- The plaintiffs filed a civil rights action under 42 U.S.C. § 1983 against the counselor, supervisors, and the employing state agency; all defendants except the counselor were dismissed before trial.
- A jury found for the plaintiffs on the § 1983 claim and awarded $300,000; the counselor appealed.

## Issues

1. Whether sufficient evidence supported a finding that the counselor acted “under color of state law” for purposes of 42 U.S.C. § 1983 when committing the sexual assaults.
2. Whether the district court abused its discretion by admitting expert testimony on Hmong culture and the plaintiffs’ psychological conditions as irrelevant or unfairly prejudicial.

## Decision

- The judgment was affirmed.
- The evidence permitted a reasonable jury to find the counselor acted under color of state law because he used state-conferred authority and job-related functions to obtain access to and control over the plaintiffs.
- The district court did not abuse its discretion in admitting limited cultural testimony to help explain delayed reporting and continued contact, and in admitting psychological expert testimony consistent with sexual trauma.

## Legal Principles

- A state employee acts under color of state law when he misuses power made possible by state authority, including using official duties and apparent authority to create the opportunity for misconduct.
- Conduct may satisfy the color-of-law requirement even if it also has a private character, where the defendant’s official role enabled access, influence, or control over the victim.
- Expert testimony is admissible when it assists the jury in understanding behavior that might otherwise appear inconsistent with the allegations (such as delayed reporting or continued contact), so long as it is relevant and not unfairly prejudicial.
- Trial courts may limit experts to general cultural or clinical frameworks and bar opinions on ultimate issues (e.g., whether the assault occurred or whether a specific witness is truthful); such tailored admission is reviewed for abuse of discretion.

## Conclusion

The Ninth Circuit upheld a § 1983 verdict because the defendant’s sexual assaults were facilitated through misuse of his state role as a refugee counselor, and it upheld the admission of constrained cultural and psychological expert testimony as relevant to evaluating the plaintiffs’ conduct and claimed injuries without unfair prejudice.


Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476 (9th Cir. 1991)