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.

     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, #1113933, 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).

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