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).

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