AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies
& Personnel
Off Duty/Color of Law: Arrest 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.
Two African-American
men and four female friends, some of whom were Caucasian, walked past a
police precinct while leaving an entertainment district where they had
spent the evening drinking. Off-duty officers, including an African-American
man, congregated in a nearby parking lot and were drinking. The African-American
officer approached the group passing by and told them to move along, and
referred to some of the females in the group as "snow bunnies,"
intended as a racial slur. One of the men questioned who the officer was.
The officer allegedly said, "I'll show you who I am," and attacked
the man. Other off-duty officers then joined in punching and kicking, and
shouted "stop resisting arrest." Both men were taken into custody
and taken to a hospital. Charges of resisting, public intoxication, and
disorderly conduct were dismissed. Qualified immunity was denied to the
off-duty African-American officer, as a jury could reasonably find that
his conduct violated the arrestees' rights. McDonald v. Flake, #14-6370,
2016 U.S. App. Lexis 3627 (6th Cir.).
In a case where police officers worked
off-duty providing security in a bar, there were genuine issues of fact
regarding whether they had probable cause to arrest a patron who allegedly
fought with them after a female patron complained about him sitting in
her chair, as well as whether the arrested patron resisted them and whether
the officers used excessive force. Sullivan v. Allred, No. 08-40064, 2008
U.S. App. Lexis 22146 (5th Cir.).
There were genuine issues of fact as to whether
an off-duty police officer working for a hotel was acting under color of
law in assisting on-duty officers in making allegedly unlawful arrests
of patrons. He was dressed in his police uniform at the time. Dean v City
of Buffalo, #02-CV-6029P, 2008 U.S. Dist. Lexis 76483 (W.D.N.Y.).
Off-duty police officer, in full uniform,
acted under color of law while acting as a security guard at a ballpark,
and placing patron under arrest after he refused to cease heckling one
of the ball players. Trial court improperly granted qualified immunity
to officer, and there were factual issues as to whether he had probable
grounds for an arrest, whether the arrest violated the arrestee's free
speech rights, and whether the officer used excessive force in ejecting
him from the stadium. Swiecicki v. Delgado, No. 05-4036, 2006 U.S. App.
Lexis 23454 (6th Cir.). [2006 LR Nov]
Truck driver of Iranian national origin failed
to show that he was prevented from using a gasoline restroom or paying
for his gas on the basis of his race, but was entitled to further proceedings
on his assertion that an off-duty police officer working as a security
guard there arrested him for disorderly conduct and trespass without probable
cause. Pourghoraishi v. Flying J, Inc., No. 05-1107, 2006 U.S. App. Lexis
9875 (7th Cir.). [2006 LR Jun]
City was not liable for off-duty police officer's
alleged use of excessive force in the course of an arrest while employed
as a security guard by a private entity, whether the officer was acting
in his official capacity as an officer or in his capacity as a private
security guard. If he was acting on behalf of his private employer, he
acted outside the scope of his employment for the city, whereas if he was
acting in his official capacity, the city had governmental immunity under
state law since the officer's alleged use of force amounted to intentional
conduct which was outside a state statute's waiver of governmental immunity.
Morgan v. City of Alvin, No. 01-02-01212, 175 S.W.3d 408 (Tex. App. 1st
Dist. 2004). See also Schauer v. Morgan, 01-04-00142, 175 S.W.3d 397 (Tex.
App. 1st Dist. 2005), ruling that the officer, as a city employee, had
immunity from liability in the arrestee's claims against him individually,
since the immunity granted to government employees under the Texas Tort
Claims Act is not limited to actions carried out within the scope of their
employment or in good faith. [N/R]
Prisoner who was awarded $1 in nominal damages
in federal civil rights lawsuit against off-duty police officer who allegedly
violated his Fourth Amendment rights by using excessive force in smashing
the window of his car with a baton during confrontation prior to his incarceration
was properly also awarded $9,680 in attorneys' fees and $915.16 in expenses
by trial court. Federal appeals court rules that provision of the Prison
Litigation Reform Act's which limits attorneys' fee awards in prisoner
suits to 150% of the money judgment, 42 U.S.C. Sec. 1997e(d), did not apply
to civil rights claims that arose before the prisoner was incarcerated.
Robbins v. Chronister, No. 02-3115, 402 F.3d 1047 (10th Cir. 2005). [N/R]
Off-duty police officer had probable cause
to arrest two women for being in a public park after closing hours even
if local police department operating procedure would arguably have cautioned
against an arrest under those circumstances. Department's operating procedures
were also not relevant on federal civil rights claims for excessive force,
when the issue was whether the officer's use of force was "reasonable,
not optimal." Tanberg v. Sholtis, No. 03-2231, 2005 U.S. App. Lexis
4332 (10th Cir. 2005). [2005 LR May]
An arts festival, held under a permit on
barricaded city streets, which was free and open to the public, was a traditional
public forum for First Amendment purposes. Off-duty police officer in uniform,
serving as security for the private group holding the festival, violated
a man's rights by threatening him with arrest for walking around there
wearing a sign with a religious message and distributing religious leaflets.
Parks v. Columbus, No. 03-4096, 2005 U.S. App. Lexis 1219 (6th Cir.). [2005 LR
Mar]
Off-duty police officer serving as store
security guard had probable cause for arrest of patron who was "loud
and rude" in connection with discussion of dispute with store employee.
Initial guilty finding in trial court on criminal charges conclusively
proved that the officer had probable cause for arrest, barring a claim
for malicious prosecution, despite the prosecutor's subsequent decision,
when the arrestee appealed, to drop the charges. Sundeen v. Kroger, No.
03-386, 133 S.W.3d 393 (Ark. 2003). [N/R]
Off-duty transit police officers acted completely
in their own personal interests in pulling over a motorist after he allegedly
damaged their personal car, so that their employer could not be held liable
for their alleged false arrest and assault of the motorist, despite the
fact that they displayed badges during the incident. They acted in order
to make sure that the plaintiff paid for the damage to their car, not to
enforce laws against erratic driving. Schilt v. New York City Transit Authority,
759 N.Y.S.2d 10 (A.D. 1st Dept. 2003). [N/R]
Off-duty police
officer acted under color of law in allegedly falsely arresting at gunpoint
and maliciously prosecuting trucker who claimed he was merely attempting
to use a telephone on an emergency basis to provide notification of a highway
hazard posed by his broken down vehicle. Defect in jury instructions, however,
required new trial, setting aside $622,000 award in favor of plaintiff.
Jocks v. Tavernier, #00-7735, 316 F.3d 128 (2nd Cir. 2003). [2003 LR Apr]
An assistant police chief did not act "under
color of state law" for purposes of a federal civil rights lawsuit
when he filled out a form requesting an arrest warrant for the purchasers
of his boat, asserting that they had committed embezzlement by failing
to make required monthly payments. In doing so he acted in a purely personal
matter, and his actions were the "functional equivalent" of a
private citizen making a call for police assistance. Sanchez v. Crump,
184 F. Supp. 2d 649 (E.D. Mich. 2002). [N/R]
Federal appeals court upholds $3.5 million
damage award for alleged malicious prosecution of restaurant owner for
arson of one of his restaurants. Off-duty police officer who worked for
restaurant as security officer and a former restaurant employee who allegedly
conspired with him to have the plaintiff arrested, convicted and sentenced
are both found liable. Castellano v. Fragozo, #00-50591, 311 F.3d 689 (5th
Cir. 2002). [2003 LR Mar]
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]
345:138 Deputy working off-duty as
store security guard was acting as a law enforcement officer rather than
a store employee when he arrested a customer outside the store for allegedly
disturbing the peace; store was not liable for deputy's actions, and deputy
was entitled to official immunity from customer's false arrest/malicious
prosecution claims under Texas law. Larkin v. Johnson, No. 14-98- 00789-CV,
44 S.W.2d 188 (Tex. App. 2001).
Off duty officer wearing bathing suit and
carrying pistol can be sued for false arrest; court rules city not responsible
for his acts. Palmer v. City of San Antonio, Tex, 810 F.2d 514 (5th Cir.
1987).
Victim's statement that police officer raped
her served, as probable cause to arrest officer; officer cannot hold sheriff
liable for arrest Clay v. Conlee, 815 F.2d 1164 (8th Cir. 1987).
Housing authority could be liable under respondeat
superior for off duty officer's arrest Parris v. New York, City Housing
Authority, 503 N.Y.S.2d 136 (A.D. 2 Dept 1986).