AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies & Personnel
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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.
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).
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