AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
Law Enforcement Agencies & Personnel
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Off Duty/Color of Law: Firearms Related
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.
In a case in which an off-duty law enforcement officer shot and killed a suspect during an attempted arrest outside his primary jurisdiction, the Texas Supreme Court overturned the denial of the officer’s motion to dismiss. The action was an “official capacity” wrongful death lawsuit that had to be dismissed under the Texas Tort Claims Act. The court below had ruled that as a matter of law, the officer could not have been doing his job as a peace officer because a peace officer operating extraterritorially would not be obligated to make arrest under the circumstances. The Texas Supreme Court disagreed, holding that a licensed peace officer acting under the warrantless-arrest provision in Tex. Code Crim. Proc. 14.03(g)(2) is within the general scope of his or her employment for purposes of Tex. Civ. Proc. & Rem. Code 101.01(f). The officer in this case was sued in his official capacity and was therefore entitled to be dismissed. Garza v. Harrison, #17-0724, 62 Tex. Sup. J. 1149, 574 S.W.3d 389, 2019 Tex. Lexis 497, 2019 WL 2237875.
An off duty officer fired his gun at
a man during an argument over the officer's former girlfriend. He missed. The
officer told other officers who arrived on the scene that the other man had hit
him with a baseball bat. Charges against the man were dismissed and he sued the
city, the off duty officer, and the arresting officers. The city was dismissed
prior to the trial as no basis for municipal liability was shown, with the
trial judge finding none of the city's policies at issue inadequate. The jury
rejected all other claims except the claim against the off duty officer for
firing the shot, awarding $1 in nominal damages and $3,000 on punitive damages.
The appeals court upheld an award of $123,000 of attorneys' fees to the
plaintiff, out of $675,000 requested, finding it generous since the plaintiff
only prevailed on one out of 39 claims. The attorneys' fees were only awarded
against the off-duty officer, and the plaintiff was properly ordered to pay the
city's costs, since he had not prevailed against the city. Under state law, the
city had to indemnify the off-duty officer for the $1 in nominal damages, but
not for the punitive damages award. Richardson v. City of Chicago, #13-2467,
2014 U.S. App. Lexis 1195 (7th Cir.).
A corrections officer, returning home from work
armed, found a naked young man hiding in the closet in her daughter's room,
with her daughter naked in bed. Handcuffing him at gunpoint, she orders him to
kneel or be shot and killed. She also permitted her husband to assault him, and
threatened to submit a false report of the incident to discredit the young man
if he later filed charges. Later, when her husband says that he believes the
daughter's statements that the young man was invited, she relents and allows
him to get dressed and leave. He filed a federal civil rights lawsuit against
the officer and the county sheriff who employed her. His lawsuit was properly
dismissed as the officer did not act under color of law, but rather as a
private person. She did not discover him in the closet as the result of a law
enforcement search. "(A)ny irate mother with an anger management problem
could have done what [she] did." She used her weapon and handcuffs for a
private purpose. Butler v. Sheriff of Palm Beach County, #11–13933, 2012 U.S.
App. Lexis 13844 (11th Cir.).
An off-duty police officer driving home was upset
by a van's driver tailgating his vehicle. Exiting his car, he pulled out his
weapon and shot the van's driver a total of nineteen times, hitting him with
eight shots and killing him. The officer claimed that the motorist had threatened
him with a weapon, but none was found. The officer later committed suicide. A
jury found that the officer had used unreasonable force under color of law and
awarded $1.85 million in damages. It also found, however, that the officer was
not acting within the scope of his employment when he fired his weapon, with
the result that the judgment could only be collected from the officer's small
estate rather than from the city. A statute required the city to pay judgments
against officers for actions taken within the scope of their employment and
off-duty officers were required to take action against lawbreakers. A federal
appeals court held that a "police officer can grossly exceed his authority
to use force and still be found to have acted within the scope of his
employment." It ordered further proceedings on the issue of whether the
officer was acting within the scope of his employment in this case, finding
that the jury had not been properly instructed on the issue. The jury may also
have been confused by the admission into evidence of the homicide and perjury
charges lodged against the officer prior to his suicide death. Javier v. City
of Milwaukee, #10-3816, 670 F.3d 823 (7th Cir. 2012).
In a lawsuit by a suspected shoplifter shot by a
deputy sheriff employed as a private security guard while off-duty, one alleged
prior incident of the deputy using excessive force was not sufficient to put
the county on notice that the deputy needed further supervision or training,
especially in light of the fact that the suspect in that prior incident
admitted to trying to assault the deputy. The plaintiff therefore failed to
show a policy or custom by the county that would render it liable for the
deputy's actions. Barkley v. Dillard Dept. Stores, Inc., No. 07-20482, 2008
U.S. App. Lexis 9603 (5th Cir.).
A jury's verdict for the plaintiffs on a
negligence claim by the estate of a motorist shot and killed by an off-duty
officer, awarding damages of $242,400, was overturned as inconsistent with
their verdict for the defendants on both assault and battery and excessive
force claims and the jury's answer to a written interrogatory. The off-duty
officer had seen the motorist in a parked car, along with a "known
prostitute," allegedly engaging in sexual activities, and the motorist was
uncooperative after stepping out of the vehicle. The jury's response to the
interrogatory rejected the officer's version of the events and his claim that
he shot in self-defense. Additionally, any negligence of the officer in making
a stop of the motorist as he attempted to drive away did not proximately cause
the shooting death, and therefore could not justify the damages awarded for the
shooting death. Hundley v. DC, No. 05-7152, 2007 U.S. App. Lexis 17517 (D.C.
Cir.).
City succeeded in showing that it was not
vicariously liable for injuries caused by an off-duty police detective's
shooting of a man, but further proceedings were required on claims that the
city itself had been directly negligent in connection with the shooting. Barton
v. City of New York, No. 12404/98, 2007 N.Y. Misc. Lexis 780 (Sup. Ct. Kings
County).
Police officer, in shooting and killing a man,
did not primarily act in his capacity as a crossing-guard for a church by which
he was employed, but in his capacity as a police officer and for purposes of
his own self-defense, so that the church could not be held vicariously liable
for his actions. Roberts v. City of Shreveport, No. 05-31135, 2007 U.S. App.
Lexis 3026 (5th Cir.).
City not liable for misconduct, where a police
trainee who was allowed the use of a marked unit to driver to the police
academy stopped and shot a man for the purpose of robbing him. Trainees had no
police powers, and his motivations were criminal. Georgia interlocal Risk
Management Agency v. Godfrey, 273 Ga. App. 77, 614 S.E.2d 201, 2005 Ga. App.
Lexis 381 (2nd Dist. 2005); cert den. 2005 Ga. Lexis 691. [N/R]
New York City was not negligent in its retention
and supervision of a police officer who shot and killed a man while off-duty
following a altercation arising from a traffic dispute. There was no
information from which the city knew or should have known that the officer, who
subsequently was convicted of manslaughter and assault charges concerning the
incident, had a propensity for violence. Kelly v. City of New York, 791
N.Y.S.2d 637 (A.D. 2nd Dept. 2005). [N/R]
Factual issues concerning whether off-duty
officer shot bar patron, and whether in doing so, he was acting under color of
law and within the scope of his employment barred summary judgment for city in
patron's federal civil rights lawsuit over the incident. Coles v. City of
Chicago, No. 02C9246, 351 F. Supp. 2d 740 (N.D. Ill. 2005). [N/R]
Police chief and SWAT team leader were entitled
to qualified immunity on claims for supervisory liability in case where SWAT
officer entering residence shot and killed a man inside the home within two
seconds, and the plaintiffs claimed that the decedent was unarmed. Nothing
showed that they made a deliberate choice to inadequately train or supervise
the officer, which caused the alleged deprivation of the decedent's rights.
Estate of Davis v. City of North Richland Hills, No. 04-10036, 2005 U.S. App.
Lexis 5893 (5th Cir.) [2005 LR Jun]
Under Louisiana state law, there is no right to a
jury trial in any lawsuit for injury to person or property against the state, a
state agency, officer, or employee, or a political subdivision of the state or
its employees acting in the discharge of his officials duties or within the
course and scope of his employment. A jury trial was therefore not available on
claims by the parents of a son shot and killed by an off-duty police officer,
based on a determination that the officer acted in the course and scope of his
employment or in discharging his official duties. Robertson v. Hessler, No.
2003-C-1060, 881 So.2d 116 (La. App. 2004). [N/R]
City was not liable for alleged wrongful shooting
and killing of woman by off-duty police officer, despite alleged awareness of
officer's "violent behavior" towards the victim on prior occasions
and his alleged substance abuse. In addition to the officer not being on duty
at the time of the incident, the police department was not notified of the
situation occurring at the victim's residence, and was therefore not aware of
any need to intervene. Burkhart v. Knepper, 310 F. Supp. 2d 734 (W.D. Pa.
2004). [N/R]
Genuine factual issue as to whether off-duty
police officer acted in self-defense in approaching with gun drawn, vehicle
which had chased his, precluded summary judgment for officer in negligence and
emotional distress claim brought by motorist concerning traffic-related
altercation. Freeman v. Teague, #37,932-CA, 862 So. 2d 371 (La. App. 2 Cir.
2003). . [N/R]
Summary judgment was not possible on the issue of
whether an off-duty police officer was acting within the scope of employment in
shooting a man he encountered on the street. The issue depended on whether a
jury believed the officer's version of the incident, that the plaintiff had
grabbed him from behind and attempted to rob him, or the plaintiff's version,
that the officer engaged in a person quarrel with him after the plaintiff
mistook him for a man who owed him a gambling debt, and shot him after he tried
to walk away. Campos v. City of New York, 759 N.Y.S.2d 843 (Sup. 2003). [N/R]
City and police chief were not liable for
off-duty officer's alleged shooting and killing of a man during a fight that
occurred when he accompanied a friend to assist him in a property dispute with
his ex-wife in another jurisdiction. The officer was in plain clothes, had no
police authority in that jurisdiction, did not identify himself as a police
officer, and was acting for his own private purposes. Officer's alleged misuse
of his weapon was not foreseeable and there was no basis for a claim for
negligent retention and supervision of him. Phelan v. City of Mount Rainier,
No. 98-CV-1096, 805 A.2d 930 (D.C. 2002). [N/R]
Off-duty police officer who pursued and then shot
and killed unarmed man who alleged stole a lawn mower from his garage was not
entitled to qualified immunity from federal civil rights claim. Estate of
Thurman v. City of Milwaukee, 197 F. Supp. 2d 1141 (E.D. Wis. 2002). [2002 LR
Aug]
Off-duty police officer did not use excessive force
in shooting a man he observed attempting to enter various homes in his
neighborhood. Suspect was trying to escape from a house he did enter, and his
right hand was out of the officer's sight when he rotated his shoulder, giving
him reason to believe that he was in immediate threat of serious bodily harm.
Billingsley v. City of Omaha, #01-1487, 277 F.3d 990 (8th Cir. 2002). [2002 LR
Jul]
Off-duty
police officer working as a private security guard at a hotel was not entitled
to assert public official immunity from lawsuit for personal injuries filed by
hotel guest struck by bullet that officer fired during gun battle with two
armed robbers in hotel lobby. Genuine issue of material fact existed, however,
as to whether officer was acting as a private security guard and within the
scope of his employment, during the gun battle. Lovelace v. Anderson, No. 70,
Sept. Term. 1999, 785 A.2d 726 (Md. 2001). [N/R]
344:118 Jury award in shooting by off-duty
officer reduced from $29 million to $3.095 million; city's "bad-
faith" failure to make payments under structured settlement results in
court order accelerating payment of entire amount. Summerville v. City of New
York, 723 N.Y.S.2d 208 (A.D. 2001).
341:73 City liable for $400,000 to motorist shot
by off-duty Colorado officer; department adopted a policy requiring officers to
always be on duty and always be armed, but provided no training on how to
handle police response when off-duty, and without police vehicle, uniform, or
radio. Brown v. Gray, No. 99-1134, 227 F.3d 1278 (10th Cir. 2000).
333:136 UPDATE: After new trial is granted on
$41.02 million jury award, second New York jury awards $92 million to
17-year-old male rendered paraplegic by police bullet; off-duty officer fired
at plaintiff after plaintiff had shot at another man who had hit him; officer
asserted that plaintiff was pointing weapon at him when he fired. Rodriguez v.
City of New York, No. 17422/96 (Sup. Ct., Kings Co., New York), May 18, 2000,
reported in The National Law Journal, p. A16 (June 26, 2000).
325:8 New York jury awards $41.02 million to
17-year-old male rendered paraplegic by police bullet; off-duty officer fired
at plaintiff after plaintiff had shot at another man who had hit him; officer
asserted that plaintiff was pointing weapon at him when he fired. Rodriguez v.
City of New York, No. 17422/96 (Sup. Ct., Kings Co., New York), Sept. 30, 1999,
reported in The National Law Journal p. A11, November 22, 1999. (See case above
for modification).
328:57 Trial court improperly granted summary
judgment to off-duty police officer/security guard who shot and killed fleeing
shoplifting suspect; there was a genuine issue of material fact as to whether
suspect's car was menacing the officer at the time she fired. Abraham v. Raso,
#98-5405, 183 F.3d 279 (3rd Cir. 1999).
322:155 Off-duty officer working as security in
convenience store acted reasonably in shooting and killing two armed robbers
who had taken him and three other store employees hostage; the fact that the
robbers did not shoot first did not alter result. Chandie v. Whelan, 21 F.Supp.
2d 170 (E.D. N.Y. 1998).
320:124 Officer's "negligent storage"
of his weapon at home was "incidental" to his employment; city was
vicariously liable for $1.575 million to estate of minor shot and killed by
officer's minor son, who obtained the gun from an unlocked cabinet in the
house. Gaffney v. City of Chicago, 706 N.E.2d 914 (Ill. App. 1999).
317:76 Off-duty police officers, not in uniform,
and working as security guards at private party without departmental knowledge
or permission, did not act as peace officers when the allegedly kicked and shot
man, rendering him paraplegic. Jury award of $8.7 million to man and $1.5
million to his wife could not be imposed on city. Melendez v. City of Los
Angeles, 63 Cal. App. 4th 1, 73 Cal. Rptr. 469 (1998), review denied, 1998 Cal.
Lexis 4213.
315:45 Off-duty police officer working as mall
security guard acted "under color of state law" in shooting and
killing escaping shoplifting suspect who drove towards her in his car; use of
deadly force was objectively reasonable when she had reason to fear for her
life. Abraham v. Raso, 15 F.Supp. 2d 433 (D.N.J. 1998).
314:27 Off-duty intoxicated deputy's action of
shooting and killing man in barroom brawl was unforeseeable; county could not
be held liable for failure to warn deputies against carrying firearms while
intoxicated; county's policy prohibiting deputies from being "drunk and
disorderly" in public was sufficient. Huffman v. County of Los Angeles,
#s. 97-55175, 97-55230, 97- 55341, 147 F.3d 1054 (9th Cir. 1998).
307:103 Off-duty officer acted reasonably in
shooting at armed robber in restaurant, based on his assessment of peril to
customers if he did not act; lack of notation in personnel file indicating
retraining in firearms could not be basis for inadequate training claim against
department when officer testified that he had been retrained annually and sheet
in file appeared to be incomplete. Brown v. Diversified Hospitality Group,
Inc., 694 So.2d 520 (La. App. 1997).
292:60 Village was not liable for off-duty female
officer's shooting of her boyfriend after they quarreled; any negligence by
village in hiring officer was not proximate cause of boyfriend's injuries Johnson
v. Mers, 279 Ill App. 3d 372, 664 N.E.2d 668, 216 Ill Dec 31 (1996).
296:124 In suit over off-duty officer's shooting
of passenger in stopped vehicle, trial court did not err in excluding evidence
of prior incident in which same officer shot a suspect from another stopped
vehicle or in excluding evidence of IACP "model" policies concerning
traffic stops by off-duty officers, when issue was not whether stop was proper,
but whether use of force against passenger once stop was made was excessive
Soller v. Moore, 84 F.3d 964 (7th Cir. 1996).
297:137 Off-duty officer did not act under
"color of state law" as required for federal civil rights liability
when he shot and killed another man outside bar where they began to argue; fact
that officer displayed police identification and used department service
revolver did not alter result when incident was essentially a "private
brawl" Parrilla-Burgos v. Hernandez- Rivera, 108 F.3d 445 (1st Cir. 1997).
285:139 Jury awards $16 million to family of
13-year-old boy shot and killed at party by 14-year-old son of police officer,
using gun he took from father's unlocked storage cabinet in the family home;
officer and city found liable Gaffney v. Crocker, Circuit Court of Cook County,
Chicago, Ill, May 24, 1996, reported in Chicago Tribune, p. 5 (May 25, 1996).
{N/R} Plaintiff in wrongful death lawsuit against
off-duty officer failed to show that officer was acting within the scope of
employment at the time of the shooting, so judgment against city for damages
must be reversed McDowell v. City of New York, 616 N.Y.S.2d 788 (A.D. 1994).
275:171 Police department liable for $594,480 to
surviving family of man shot and killed by off-duty officer angry that he was
having an affair with officer's wife; suit claimed that department knew that
officer had previously, while off-duty, beaten his own wife, but failed to take
preventative measures to stem officer's "violent propensities" Thomas
v. Los Angeles Police Department, No BC086856, LA Superior Court Glendale, May
18, 1995, reported in Los Ang. Daily Jour. (Verd. & Stl.), page 4, June 16,
1995.
270:83 City and police chief were not liable for
off-duty officer's using a machine gun to shoot and kill resident of home which
he entered after his friend expressed suspicion that residence was a "drug
house"; no evidence showed that any inadequate training or supervision
caused the shooting Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994).
266:30 County and sheriff's department were not
liable for off-duty deputy's shooting and killing of his girlfriend's
exboyfriend, who broke into her house and assaulted her Hudson v. Maxey, 856
F.Supp. 1223 (E.D. Mich 1994).
City was not liable for gunshot wound to off-duty
officer's son suffered after officer left his service revolver under son's
mattress in bedroom; department rule requiring officers to carry their weapons
while off-duty did not vary result Joseph v. City of Buffalo, 83 NY 2d 141, 608
N.Y.S.2d 396, 629 N.E.2d 1354 (1994).
Federal trail court declines to dismiss civil
rights suit based on death resulting from shooting by off-duty correctional
officer using his employer-issued service revolver; although "extremely
remote," court finds that plaintiff might be able to show that shooting
was carried out "under color of law" Navarro v. Otero De Ramos, 797
F.Supp. 87 (DPR 1992).
Officer placed on medical leave after
psychological evaluation was not acting "under color of law" in
shooting man; city might still be held liable based on failure to obtain gun
from officer placed on leave Gibson v. Chicago, 910 F.2d 1510 (7th Cir. 1990).
City liable for over $1 million in shooting
off-duty officer, based on negligence in hiring and ratification of arrest of
victim Mon v. City of New York, 557 N.Y.S.2d 925 (A.D. 1990).
Off-duty sheriff might act under color of law in
shooting man without provocation Revene v. Charles County Commissioners, 882
F.2d 870 (4th Cir. 1989).
Off duty police officer who shot security guard
at amusement park was not acting pursuant to municipal policy and was acting
outside scope of employment City was not liable, nor was officer entitled to
indemnification Turk v. McCarthy, 661 F.Supp. 1526 (E.D.N.Y. 1987).
City not responsible for suspended officer's
shooting, despite that it did not collect badge or gun Bauer v. City of
Chicago, 484 N.E.2d 422 (Ill App. 1985).
City not liable for shooting during gun play
Napier v. Jacobs, 377 N.W.2d 879 (Mich.App. 1985).
City not liable for shooting by disabled officer,
who retained possession of gun Wincher v. City of Detroit, 376 N.W.2d 125
(Mich.App. 1985).
Liability results even though decedent allegedly
pulled gun first McQuarters v. Zegar, 466 So.2d 579 (La App. 1985).
No liability to bar owner who shot and killed
off-duty police officer mistaken as aggressor in fight Duplechain v. Turner,
444 So.2d 1322 (La App. 1984).
City not liable for off-duty officer's shooting
over daughter's alleged drug involvement Fuller v. City of Yonkers, 474 N.Y.S.2d
813 (App. 1984).
City not liable for off-duty officer's
intentional shooting Garcia v. City of New York, 478 N.Y.S.2d 957 (App. 1984).
County could be liable for off-duty deputy
sheriff's shooting of plaintiff during dispute over girlfriend Graves v. Wayne
Co, 333 N.W.2d 740 (Mich.App. 1983).
No liability to city for off duty officer's
shooting of another officer during "horseplay" since notice
requirement was not filed on time Dunn v. City of Indianapolis, 451 N.E.2d 1122
(Ind App. 1983).
Man stealing off-duty officer's motorcycle shot
and killed in self-defense Jones v. City of New Orleans, 431 So.2d 5 (La App.
1983).
No liability to city for officer's off-duty
shooting of innocent bystander during robbery; no training distinction
necessary between on-duty and off-duty police confrontations Moore v. City of
Detroit, 340 NW 640 (Mich.App. 1983).
City and officers could be liable for alleged
improper handling of domestic dispute involving off duty officer with firearm;
county and sheriff settle suit Wigginton v. City of Lansing, 341 N.W.2d 228
(Mich.App. 1983).