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


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Off Duty/Color of Law: Assault and Battery


     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.).
    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.).
     A bar customer sued off-duty officers who allegedly assaulted him or assisted assaulting him on the premises, other bystander officers who allegedly improperly failed to intervene, and the city that employed the officers. There were no facts suggesting, for purposes of federal civil rights claims, that the off-duty officers abused or misused their official powers, as they were there off-duty drinking, were not in uniform, did not use departmental weapons, and did not assert police authority. There was no constitutional duty for the bystander officers to prevent the alleged assaults by the off-duty officers, so the claims against them failed also. Since no constitutional violations were proven, the city also could not be held liable. Bustos v. Martini Club Incorporated, #09-50079, 2010 U.S. App. Lexis 4739 (5th Cir.).
     Plaintiffs failed to adequately show that either the city or a former deputy chief of police were liable for the off-duty conduct of officers who they claimed physically assaulted them in a dispute over a bag of steak fajitas. The plaintiff failed to establish liability either on the basis of a purported policy or custom of inadequate disciplinary procedures, or the role of the former deputy chief of police as a supervisor at the time of the incident. Summary judgment for the city and former deputy chief was upheld.  Snyder v. City and County of San Francisco, No. 06-15838, 2008 U.S. App. Lexis 15710 (Unpub. 9th Cir.).
     Police officer who claimed that off-duty officers assaulted him failed to show that they were acting under color of law at the time of the incident. Additionally, a disinterested witness's version of the incident was more consistent with the defendants' versions of the event than with the plaintiff's version. Begley v. County of Kauai, No. 06-15801, 2008 U.S. App. Lexis 14953 (Unpub. 9th Cir.).
     Off-duty deputy sheriff was not entitled to qualified immunity on woman's claim that he violated her rights and used excessive force against her by grabbing her without provocation, and then tossed her down the stairs after they engaged in an argument following a movie that they both separately attended. The deputy was allegedly upset about the woman's talking during the film, and had told her to "shut up" and made a racial slur about her Hispanic background. The appeals court found that it was without jurisdiction to hear the deputy's appeal of the trial court denial of his motion for qualified immunity, since he relied on his (disputed) version of the facts, rather than on a legal argument. Arnold v. Curtis, No. 06-4080, 2007 U.S. App. Lexis 18509 (10th Cir.).
      Under Alabama state law, a bar could be found vicariously liable for an off-duty police officer's alleged assault and battery of a patron while working as a security guard. The court further ruled that, regardless of whether or not the off-duty officer was ultimately found to have been acting as a security guard, rather than a police officer at the time of the incident, this did not deprive the federal trial court of jurisdiction over federal civil rights claims in the case, or of jurisdiction to rule on the state law claims which were supplemental to the federal claims. Ortega v. Brock, No.2:07cv368, 2007 U.S. Dist. Lexis 57532 (M.D. Ala.).
    Off-duty, non-uniformed jail commander acted under color of law while allegedly beating motorist who rear-ended his pickup truck when he asserted his law enforcement authority by saying he was "a cop" in order to prevent bystanders from interfering with his assault. Anderson v. Warner, No. 04-15505, 2006 U.S. App. Lexis 15996 (9th Cir. June 26, 2006). [2006 LR Aug]

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