AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
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Off Duty/Color of Law: Personal Action
Monthly Law
Journal Article: Civil Liability for Acts of
Off-Duty Officers -- Part One, 2007 (9) AELE Mo. L.J. 101.
Monthly Law Journal Article: Civil Liability for Acts of
Off-Duty Officers -- Part Two, 2007 (10) AELE Mo. L.J. 101.
While a woman was dating a
male county sheriff’s deputy, the relationship became
“combative.” During one incident he threw her against a wall and
choked her. In other incidents, he sent lewd and threatening text messages,
statements that she had “fucked with the wrong person,” locked her
out of her home, and punched a hole in her door. Responses from the
sheriff’s office allegedly included statements that “we’re
sick of getting these calls.” The deputy was eventually arrested, pled
guilty and resigned, after which the woman sued. A federal appeals court upheld
judgments for the resigned deputy, other officers, and the sheriff. The
resigned deputy was not serving as a state actor in his interactions with the
plaintiff. None of the defendants’ conduct was sufficiently outrageous to
give rise to a viable claim as there was no evidence that they created
or increased a danger to the plaintiff. Mere indifference or inaction in the
face of private violence cannot support a substantive due process claim. Wilson-Trattner v. Campbell,
#16-2509, 2017 U.S. App. Lexis 12356 (7th
Cir.).
A bus-station patron claimed that a
police officer, without justification, compelled him to leave a bus station
where he was eating. The plaintiff failed to state a federal civil rights claim
against the District of Columbia, which employed the officer. At the time of
the incident, it appeared, the officer did not act pursuant to any District
policy or custom, but rather was working for a bus company while off-duty.
Lewis v. D.C., Civil Action #08-1314, 2009 U.S. Dist. Lexis 72263 (D.D.C.).
Federal court concludes
that private attorneys, hired by a public entity, cannot be held liable under
federal civil rights laws for the advice they offer. "Courts in the Second
Circuit have consistently held that attorneys and consultants who provide
advice to municipal entities are not acting under color of state law."
Westhampton Beach Assoc. v. Strebel, #08-CV-1493, PACER Doc. 44 (E.D.N.Y.
2/19/2009).
Off-duty police officer's alleged conduct in
entering the plaintiff's restaurant and seizing leased equipment was not
governmental action for purposes of a federal civil rights lawsuit. The
officer's actions were allegedly arranged with his uncle, who owned the
building that the restaurant leased, and the officer acted purely as a private
person. At the time of the incident, he was not in uniform, did not assert his
police authority, and was motivated by his role as the nephew of the building
owner. Mitchell v. Gieda, No. 06-2127, 2007 U.S. App. Lexis 2644 (3rd Cir.).
Police officer had probable cause to initiate
criminal charges against the plaintiff based on statements he obtained from an
off-duty officer who had been involved in a fight with the plaintiff, and an
interview with a neighbor who had witnessed the incident, defeating any claim
for malicious prosecution. A genuine issue, however, as to whether the off-duty
officer acted in his capacity as an officer or purely as a private person
during the fight precluded summary judgment on federal civil rights claims
arising from the fight itself. Ousley v. Town of Lincoln Through Its Finance
Dir., 313 F. Supp. 2d 78 (D.R.I. 2004). [N/R]
Genuine issue of fact as to whether off-duty
housing authority police officers acted in the scope of their employment or for
"wholly personal reasons" in assaulting two men precluded summary
judgment for housing authority. Beauchamp v. City of New York, 771 N.Y.S.2d 129
(A.D. 2d Dept. 2004). [N/R]
Off-duty police officer's alleged threats to a
man he encountered at a gym were not conduct under color of state law and
therefore could not be the basis for federal civil rights claims against the
officer and city. The officer was wearing street clothes and in no way used his
governmental authority. Hallstein v. City of Hermosa Beach, No. 02-56507, 87
Fed. Appx. 17 (9th Cir. 2003). [N/R]
A determination by a county attorney that a
police officer was not entitled to a legal defense by the county in a lawsuit
brought by his neighbor was not arbitrary and capricious. Officer did not act
within the scope of his employment but rather in the capacity of a private
property owner, in allegedly interfering with the neighbor's use of his
adjoining property. Salino v. Cimino, 802 N.E.2d 1100 (N.Y. 2003). [N/R]
Officer acted in a personal capacity only and not
within the scope of his employment when he allegedly embraced motorist who he
stopped and arrested for driving under the influence of alcohol and later
allegedly attempted to kiss her when she returned to retrieve her driver's
license. Employer of officer, therefore, could not be held vicariously liable
for his actions. Cockrell v. Pearl River Valley Water Supply District, No.
2002-CA-02090-SCT, 865 So. 2d 357 (Miss. 2004). [N/R]
New York intermediate appellate court upholds
$321,000 jury award against city to motorist allegedly knocked to the ground
and punched in the face by an off-duty police officer after he rear-ended the
officer's vehicle. Evidence was sufficient to show that the officer was acting
within the scope of his employment and used excessive force when the officer
requested the motorist's driver's license and detained him for up to half an
hour until other police arrived. Graham v. City of New York, 770 N.Y.S.2d 92
(A.D. 2nd Dept. 2003). [N/R]
County and sheriff were not liable, under either
Ohio state law or federal civil rights law, for a deputy's sexual advances made
towards a minor girl while off duty, even though he was in uniform and using a
county-owned van to transport his daughter and her friends home from a movie.
Deputy acted outside of the scope of his employment and did not act "under
color" of law. Ramey v. Mudd, No. 02CA14, 798 N.E.2d 57 (Ohio App. 2003).
[2004 LR Feb]
Deputy sheriff's alleged sexual abuse of his
stepdaughter over a two and a half year period could not be the basis for
holding the county vicariously liable for his actions under California state
law, as he was not acting within the scope of his employment in doing so. K.G.
v. County of Riverside, No. E030933, 131 Cal. Rptr. 2d 762 (Cal. App. 4th Dist.
2003). [N/R]
Update: federal appeals court reverses ruling
that off-duty sheriff's deputies, in making a "mass purchase" of
copies of a weekly community newspaper which published an article critical of
the sheriff on the night before the vote on his re-election, did not act
"under color of state law" for purposes of a federal civil rights
lawsuit claiming violation of First, Fourth and Fourteenth Amendment rights.
Appeals court also holds that sheriff's contribution of money towards the mass
purchase and expression of his approval of the action was an act under color of
state law. Rossignol v. Voorhaar, #02-1326, 316 F.3d 516 (4th Cir. 2003).
[2003 LR May]
Federal trial court improperly accepted
stipulation in a lawsuit that an off-duty police officer was acting under color
of state law at the time that his friends allegedly assaulted a patron at a
restaurant. Off-duty officers who act for purely personal purposes do not act
under color of law, and whether this officer did so was a legal issue that had
to be determined by the court. Neuens v. City of Columbus, #01-4257, 303 F.3d
667 (6th Cir. 2002). [2003 LR Jan]
Two off-duty officers liable for $32 in
compensatory damages and $150,000 in punitive damages for allegedly frightening
members of a family by pulling their car over, shouting obscenities at them,
and threatening them with guns drawn. The two officers, a married couple,
claimed that they had only stopped the car after someone in it threw something
at their vehicle. No damages were awarded against the employing city, as the
jury found that the officers acted outside the scope of their employment.
Miller v. Visser, No. 00-CV-9058 (U.S. Dist. Ct., N.D. Okla.), reported in The
National Law Journal, p. B2 (July 29, 2002). [N/R]
Officer did not act "under color of state
law" in allegedly going "beyond the bounds of civility" in a
private contract dispute with a contractor who had done work on his home. Even
if contractor's allegations were true that officer had terrorized, assaulted,
discriminated against, and tried to "ruin" him, this could not be the
basis for a federal civil rights lawsuit since the officer acted off-duty, for
purely private motives, and did not use police equipment or authority in
carrying out his actions. Garner v. Wallace, No. 9:00-CV-181, 139 F. Supp. 2d
801 (E.D. Tex. 2001). [N/R]
310:155 Police chief did not act under
"color of state law" when he allegedly instigated verbal dispute with
a married couple and their friend in a cafe; chief was off-duty, not in
uniform, and never asserted official authority or identified himself as police;
his actions could not be the basis for a federal civil rights lawsuit.
Banisaied v. Clisham, 992 F.Supp. 128 (D. Conn. 1998).
301:12 Firefighter's rule applied to bar off-duty
deputy's lawsuit against building owners for negligent security in building he
lived in; deputy could not sue for injuries he suffered when attempting to
subdue and arrest burglar in building garage. Hodges v. Yarian, 62 Cal.Rptr.2d
130 (Cal. App. 1997).
305:76 Officer's involvement in ongoing marital
dispute between a wife and her estranged husband could not be the basis of
federal civil rights liability when officer acted as a private citizen, rather
than as an officer; officer utilized the same procedures available to any
private citizen in seeking husband's arrest for alleged stalking offense. Kile
v. Betuel, 973 F.Supp. 1070 (S.D. Ga. 1997).
306:94 Police officer who sexually abused
eleven-year-old school girl while off-duty did not act under color of state law
and there could be no federal civil rights liability for him or police chief,
despite fact that officer first met girl outside school where he provided
security and served as a "good-will" ambassador for the department.
Roe v. Humke, 128 F.3d 1213 (8th Cir. 1997).
278:19 City reaches $162,000 settlement in suit
alleging that off-duty officer beat 12-year-old boy at shopping mall while
making anti- Arab statements Barakat v. City of Chicago, U.S. Dist. Ct., N.D.
Ill., Nov 1, 1995, reported in Chicago Sun Times, p. 12 (Nov 2, 1995).
280:60 Off-duty officer who arrested bar
"bouncer" for repeatedly hitting him in the face while holding his
head was entitled to qualified immunity from liability even if it were assumed
that officer threw the first punch in tavern altercation Naccarato v. Oliver,
882 F.Supp. 297 (E.D.N.Y. 1995). [Cross- references: Defenses: Qualified
(Good-Faith). Immunity; False Arrest/Imprisonment: No Warrant]
281:76 Off-duty officer who allegedly assaulted
man and his wife during argument over alleged vandalism by officer's nephew did
not act under color of state law for purposes of federal civil rights claim
when officer did not assert official authority during incident; plaintiff's
knowledge, from prior encounter, that their alleged assailant was an officer,
did not alter result Hunte v. Darby Borough, 897 F.Supp. 839 (E.D. Pa 1995).
287:171 Jury award of $12 million against city
based on offduty corrections officer's arrest of fast-food restaurant patron
overturned; officer acted outside the scope of his employment in angrily
arresting patron for cutting in front of him in line at McDonald's Davis v.
City of New York, 641 N.Y.S.2d 275 (A.D. 1996).
287:172 Off-duty correction officer did not act
within scope of employment in shooting a man who was making noise at night in a
park near his home; city not liable for officer's actions when evidence did not
show inadequate screening or training of correctional officers Longin v. Kelly,
875 F.Supp. 196 (S.D.N.Y. 1995). [Cross-reference: Negligent Hiring, Retention,
Supervision, and Training]
275:166 California appeals court rules that city
did not have a duty, under state law, to provide legal defense for officer
accused by informant of committing sexual battery on her at his residence while
on vacation; alleged sexual acts did not occur within the scope of officer's
employment San Diego Police Officers Association v. City of San Diego, 29
Cal.App.4th 1736, 35 Cal.Rptr.2d 253 (1994).
269:73 County policy of regarding off-duty safety
police officers as not being engaged in performance of their duties did not bar
county from being held vicariously liable for off-duty shooting by officer,
California appeals court rules Inouye v. County of Los Angeles, 35 Cal.Rptr.2d
367 (Cal App. 1994).
Off-duty investigator for county sheriff's
department had no duty to remove stray horse from road or warn oncoming traffic
of animal's presence and county could not be held liable for motor vehicle's
collision with the horse Hill v. Park County, 856 P.2d 456 (Wyo 1993).
Off-duty deputy sheriff who left his house in his
pajamas and shot with his personal rifle at intruder fleeing his garage did not
act "under color of law" for purposes of federal civil rights suit
Hill v. Barbour, 787 F.Supp. 146 (N.D.Ill. 1992).
City was not liable for officer's altercation
with bank customer while in line waiting to cash a personal check, but might be
liable for his subsequent arrest of and alleged excessive use of force against
customer Woodall v. City of Miami Beach, 599 So.2d 231 (Fla App. 1992).
NY High court overturns $1 million award against
city for negligent hiring of officer who shot two men following fight while
off-duty; $50,000 still awarded for his false arrest of one of the plaintiffs
Mon v. City of New York, 78 NY 2d 309, 579 N.E.2d 689, 574 N.Y.S.2d 529 (1991).
Off-duty officers' participation in a barroom
brawl was outside of the scope of their employment; cities were therefore not
liable for their conduct, as liability was barred by Florida sovereign immunity
statute Craft v. John Sirounis and Sons, Inc, 575 So.2d 795 (Fla App. 1991).
Maryland state trooper who threw rocks at
motorist's car while off-duty and in civilian clothes was not entitled to
dismissal of lawsuit under state Tort Claims Act because of regulation
providing that officers were considered to be "on- duty" at all times
Sawyer v. Humphries, 322 Md 247, 587 A.2d 467 (Md 1991).
Parents of female murder victim could not sue for
officers' alleged improper circulation of photos of their daughter's dead nude
body Smith v. City of Artesia, 772 P.2d 373 (NM App. 1989).
Off-duty officer was not entitled to be defended
by city in lawsuit over altercation in health club Kelly v. City of New York,
692 F.Supp. 303 (S.D.N.Y. 1988).
City not liable for officer's alleged off-duty
assault on bar patron; fact that officer was subject to discipline for incident
did not vary result Kogos v. Payton, 522 So.2d 1198 (La App. 1988).
Off-duty officer who stopped at scene of accident
to provide assistance was acting as good samaritan and not within scope of
employment Curtis v. Bulldog Leasing Co, 513 So.2d 238 (Fla App. 1987).
Municipality not liable for officer's private
acts, even if done under color of law; officer could be liable Motes v. Myers,
810 F.2d 1055 (11th Cir. 1987).
City not liable under respondeat superior for
police officer's intentional tort District of Columbia v. Coron, 515 A.2d 435
(DC App. 1986).
Local governments must indemnify officers for law
enforcement actions outside county; however, jury decided officer acted
privately in assault Alifieris v. American Airlines, Inc, 482 N.Y.S.2d 453
(1984), (Jury decision obtained from the Garden City Newspaper, New York
3/8/85).
Sheriff liable for off-duty officer's assault on furniture
employee Sciortino v. Alfano, 435 So.2d 1010 (La App. 1983).
Section 1983 suit to proceed for determination of
whether off duty officers socializing in bar beat plaintiff under color of law
Whitney v. Mallet, 442 So.2d 1361 (La App. 1983).
City not liable for off duty officer's assault on
neighbor for purely personal reasons Stavitz v. City of New York, 471 N.Y.S.2d
272 (App. 1984).