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Legal Eagle: Moonlighting & Civil Liability

Are you acting under color of law?

by Laura L. Scarry

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PHOTO COURTESY DALLAS MORNING NEWS/CHERYL DIAZ MEYER Dallas Police Officer Hector Roa (left) talks with Senior Corporal Steve O’Donnell while working an off-duty job as a security officer at a bar in August 2005.

A job in law enforcement can offer various opportunities to earn extra income outside the routine of responding to citizens' calls or working patrol. Police agencies often allow officers to work outside their normal hours as security officers for venues ranging from banking institutions, retail establishments, concert and sporting events to local flea markets. For some officers, these extra hours can mean the difference between living week to week and having the extra cash to pay down their debts.

However, working security details, or "secondary employment," is not without some risk, particularly when the officer and secondary employer have a minimal agreement that merely states in exchange for the officer working so many hours as security, the employer will pay X amount of dollars. Many times the agreement lacks any delineation as to who is responsible for insuring and/or indemnifying the officer in the event the officer is successfully sued for the officer's actions and/or inactions during the secondary employment. The issue of civil liability is further complicated when the law enforcement agency lacks any knowledge of the officer's secondary employment.

Who holds responsibility for the officer's actions and/or inactions when they result in civil liability? What if the officer is working security for a secondary employer in the officer's off-duty capacity but is wearing a department-issued uniform, carrying a department-issued gun and arrests someone while announcing their office? What if the arrestee later sues the officer for violating their civil rights? Is that officer civilly liable for their actions in their capacity as a private security guard or as a police officer? The answer: It depends.

Under Color of Law

Generally, police officers are sued civilly for their actions and/or inactions under the federal statute 42 U.S.C. Section 1983 and/or state law. To be held liable under Section 1983, the officer must be acting under "color of law" in violation of the United States Constitution or other federal law.

Most federal litigation involving secondary employment turns on whether the officer's conduct meets Section 1983's color of law requirement. A police officer will be deemed to be acting under color of law when he is "acting in his official capacity or while exercising his responsibilities pursuant to state law."¹ That being said, "[n]ot every action by a state official or employee is to be deemed as occurring 'under color' of law."² 

In determining the color of law requirement, officers should first look to their state statutes. Some states have enacted statutes that determine the officer's duty to act while off duty. Unfortunately, officers working in states that have not enacted such legislation must rely on the courts' interpretation of the color of law requirement.

Note: "[T]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law."³ Generally, the courts look to the following factors in determining whether the officer is under color of law:

• There is a department policy requiring officers to be on duty at all times;
• The officer displayed their department-issued badge;
• The officer identified themselves as a police officer;
• The officer carried or used their department-issued service weapon; and
• The officer placed the individual under arrest.

Obviously, the inquiry looks at the facts of each case. Following is a sampling of cases that found moonlighting police officers to be acting under color of law.

Pickrel v. City of Springfield

In Pickrel v. City of Springfield,⁴ a patron of a fast-food restaurant filed a lawsuit against a police officer, the private security firm the police officer was employed by and the City of Springfield, which employed the police officer. The patron went inside the restaurant with her father, but the officer, who was working as a security guard for the private security agency, told them to leave or else they would be arrested. Apparently, there was some sort of feud between the patron and the officer. When the patron refused to leave, the officer brought the patron to a standing position with an arm-bar hold, pulled her out of the booth, threw her down to the ground and arrested her and her father for criminal trespass, obstructing a peace officer and resisting arrest. The charges were later dismissed.
At the time of the incident, the officer was wearing his City of Springfield uniform, carrying his department-issued badge and gun and drove his City of Springfield squad car to the restaurant, parking it outside. The court held that these facts, if proven at trial, would demonstrate the officer's conduct was taken under color of law.

In Abraham v. Raso,⁵ a police officer who was moonlighting as a mall security guard shot and killed a shoplifter who had attempted to steal some clothes from a department store. The officer had been patrolling the mall when she was contacted by the department store's security guard to assist with apprehending the shoplifter. The shoplifter exited the store and the officer told him to stop repeatedly. The shoplifter was able to get in his car, and when he attempted to run over the officer, the officer shot and killed him.

The shoplifter's estate filed a civil lawsuit alleging the officer violated the shoplifter's constitutional rights. The court found that while the officer was working as a security guard, she was acting under color of law because she was wearing her police uniform, ordered the suspect repeatedly to stop and attempted to arrest him.

Bouye v. Marshall

In Bouye v. Marshall,⁶ an off-duty police officer made an investigatory stop of a male dropping his minor son off at the baby sitter's apartment in the early morning hours while on his way to work. The male filed a civil suit against the officer alleging he was subjected to an unlawful search and seizure. The court found the officer was acting under color of law after finding the officer wore his police sweatshirt and bulletproof vest, and displayed his badge while patrolling and investigating suspicious behavior at the apartment complex. More specifically, the court found the officer, although working for a private security firm, used his authority as a police officer to detain and search the male.

While the court determined the officer was acting under color of law, the court also found the officer's actions were objectively reasonable and did not violate any of the male's constitutional rights.

Conclusion

While moonlighting as security guards for private security firms is an excellent way to earn extra income, law enforcement officers must be aware they may find themselves civilly liable, not as a private security guard, but as a police officer, for their off-duty conduct. Police officers should know their respective state statutes and their law enforcement agency's policies governing secondary employment. Further, police officers should determine whether they have liability coverage for secondary employment and/or which entity is providing liability coverage. Officers must know answers to these types of questions before deciding to moonlight.      

Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.

References 
1. West v. Atkins, 487 U.S. 42, 50 (1988).
2. Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989).
3. Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975).
4. Pickrel v. City of Springfield, 45 F.3d 1115 (7th Cir. 1995).
5. Abraham v. Raso, 183 F.3d 279 (3rd Cir. 1999).
6. Bouye v. Marshall, 102 F.Supp.2d 1357 (N.D. Ga. 2000).

LAURA L. SCARRY is a partner in the law firm of DeAno and Scarry in Wheaton, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992.