Off-duty incidents and federal civil rights liability: What officers need to know


If your employer won't defend you, go get your homeowner's policy!

By Michael P. Stone, Esq. and Stone Busailah, LLP

Off-duty officers frequently become involved in incidents ranging from attempting to arrest or detain persons suspected of drunk driving, shoplifting, drug offenses and crimes, to defense against assault and sometimes, potentially deadly attacks. And, almost as often, these incidents spawn lawsuits against the officers.

Since the "off-duty nature" of these incidents may be considered by the employer to be "outside course and scope of employment," officers and deputies often find themselves turned away by their employers when they request defense and indemnity at public expense for "police action" taken off-duty.

As a general rule, plaintiffs will be seeking to hold the employer liable (spelled "deep pockets") if there is any colorable claim that the off-duty officer asserted his or her official authority, displayed a badge, or used a firearm carried pursuant to "peace officer authorization." And, public employers will generally deny liability for the officer's off-duty actions and seek dismissal of the entity as a means of protecting the public fisc.

Consequently, public entities usually reject requests for defense and indemnity at public expense by the off-duty officer. What should the disappointed officer do in these circumstances?

First, carefully consider the decision to become involved in any off-duty incident as other than a "good witness." Let the on-duty cops handle it; just be a "good citizen." Yeah, right. We know you people. And, truth be told, that advice didn't stop me from becoming embroiled in a couple of off-duty "police actions" when I was young, brave and bullet-proof (or so I thought).

What can you expect from your own department if you become "involved in an incident which causes the response of a law enforcement agency" while off-duty?

One, expect an internal investigation to determine whether your off-duty conduct amounts to misconduct, i.e., "conduct unbecoming an officer" or which "brings discredit upon the agency." If your department determines you committed misconduct, or worse, expect it to deny you a defense if you are sued.

Two, what does your department manual say about "off-duty actions?" Most give very little guidance, if any at all. Sure, no department would expect a member to stand idly by while thugs beat up an old lady and take her purse. Or, if you are standing in the check-out line at your neighborhood mini-market when the guy in front of you pulls a gun and holds up the clerk, you are probably within policy if you intervene - - assuming it is tactically reasonable to do so.

But most manuals I have seen over the years advise officers to be circumspect about the decision to become involved, first giving consideration to whether the matter is best handled by local law enforcement, before becoming directly involved. That's great advice, but in most real emergency situations, you don't have time to consider a lot of options, or contemplate the sage wisdom in the department manual.

Over the years, I have defended many "off-duty" officers who attempted "arrests" or "detentions" of various miscreants, used some kind of force, or fired their weapons in "self-defense." Usually, these officers came to me because their own agency refused to defend them. So, what follows below is based on around 26 years of handling all kinds of "off-duty actions" from chasing down the neighbor's kid for egging cars to engaging in car-to-car gun battles in the ever-common "L.A. freeway road-rage" episodes.

When you are sued as a defendant in one of these typical incidents (the "main action") you must critically review the facts of the event, evaluating your perceptions and responses thereto and what your agency's response to the event has been.

If the agency denies your request for defense, and you and your counsel believe there is a good justification for defense at public expense, it may be advisable to cross-claim against your agency in the main action, to secure your opportunity for a judicial determination of your rights, if any, for defense/indemnity/reimbursement of costs, fees and damages at public expense. Exhaust any administrative remedies that might lead to reversal of the decision to deny you defense and indemnity. At the same time, drag out your homeowner's policy.

Homeowner's policies contain general liability coverage that provides defense and indemnity in a variety of situations where the homeowner's (insured's) alleged negligence causes harm or injury to another. The insurance company's "duty to defend" the insured is very broad. Usually, if there is at least potential coverage for one of the claims made against the insured, there is a duty to defend.

The coverage can be invoked to defend the insured officer in many off-duty events where the actions of the officer are arguably not employment-related and fall within a broad range of negligent or even reckless conduct that causes harm or loss, usually unintended from the standpoint of the insured.

On the other hand, there are coverage exclusions for "intentional acts." While the lawsuits usually allege intentional misconduct, they also typically contain at least one count of negligence, so as not to exclude coverage under any applicable insurance policy entirely.

What are the limits of your homeowner's coverage? In the case of officers who routinely carry firearms off-duty, this writer recommends you carry $1,000,000.00 liability coverage on your homeowner's policy. Increasing the limits to one million from say, $500,000.00, will probably cost you less than $100-$200 per year.

Don't own a home? That's no excuse. Renter's policies contain the same liability coverages, as well. Absent a specific "off-duty acts" policy, it is the best and cheapest insurance available to you. Over the years, I have defended many officers under the terms of homeowner's/renter's policies at insurance company expense. And when warranted, those carriers have paid to settle claims on behalf of their insureds (my clients).

Look, you owe it to yourself. Investigate your homeowner's/renter's policy. Make sure you have adequate limits of liability coverage. If you don't own a home, buy a renter's policy today. You could have a covered event tomorrow, and a lawsuit later on. Policies vary as to what is covered and when. That is, some provide coverage for "occurrences" during the policy period. Others focus on when the "claim" is first made. The rule is simple: get the policy in force now, and keep it current.

HOW FEDERAL CIVIL RIGHTS CLAIMS ARE IMPLICATED IN OFF-DUTY INCIDENTS

Almost all police misconduct litigation involves claims that the defendant officers "acted under color of state law" in depriving the plaintiff of federally-protected rights (most often, those secured by the Fourth and Fourteenth Amendments). "Color of law" is a necessary element for plaintiffs to prove in civil rights litigation under 42 USC § 1983.1

It is important to remember that "under color of law" is considerably broader than "within the course and scope of employment," which is why it encompasses many types of off-duty (or on-duty) conduct that are clearly outside course and scope of employment. See for example, United States v. Gwaltney, 790 F.2d 1378, (9th Cir. 1986) - - on-duty California Highway Patrol officer who raped and murdered female motorist he stopped on Interstate 15 near Barstow, held to be acting under color of state law, albeit arguably "outside course and scope of employment."

Gwaltney's two state prosecutions resulted in hung juries. He was successfully prosecuted for a criminal violation of federal civil rights (18 USC § 242) for depriving 23-year old Robin Bishop of her life and liberty "without due process of law." He was sentenced to 99 years.

The Ninth Circuit recently decided a case wherein an off-duty Mendocino County Jail Commander, Charles Warner, became involved in an assault and battery after a traffic collision. The evidence was that the other driver, Anderson, accidentally rear-ended Warner's vintage pickup truck. Warner was on his way to show his truck in a parade.

Warner got out, went back to Anderson's car, opened the door and began hitting Anderson in the face. Warner's wife also got out of the pickup.

Thomas Cropp, driving a vehicle in front of Warner, also got out. Cropp, a probation officer, was a friend of Warner. Testimony alleged that Mrs. Warner yelled, "he is a cop."

Anderson asked Warner, "you're a cop?" and something to the effect that this was "another Rodney King."

Warner replied that he was a cop and told witnesses he was a cop and to stay back. Mrs. Warner allegedly yelled, "He's a cop - - let him hit him - - look what he did to our truck!"

Cropp told people he was a probation officer and to stay back and that this was "police business." He told people to "move on." Thereafter Warner, his wife and Cropp allegedly directed a watching crowd to "disperse," this was "police business." Other witnesses provided similar accounts.

Anderson sued Warner and the County under 42 USC § 1983. In this case, necessarily, Anderson would have to show that Warner "acted under color of state law" at the time of the assault.

The Court noted Warner was not a "peace officer" and was not authorized to carry a gun off-duty. He was rather, a "custodial officer" pursuant to California Penal Code § 831.5(a). Warner told police investigators that he "tried to prevent Anderson from fleeing the scene of the accident."

In the Ninth Circuit, Warner argued that he was not acting under color of law. Quoting United States v. Classic, 313 U.S. 299, 326 (1941), the Court noted:

    Misuse of power, possessed by virtue of state law and possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law."

Abuse of power, conferred by state law, is an action under color of law. West v. Atkins, 487 U.S. 42, 49-50 (1988).

The Court found that Warner acted under color of law when "he invoked his law enforcement status to keep bystanders from interfering with his assault on Anderson." The Court held that there are three requirements for this finding against a defendant (in this case, Warner):

(1) he must have acted or pretended to act in the performance of his official duties;

(2) his acts were intended to, and did, influence the behavior of others;

(3) his conduct must be meaningfully-related in some way to his official duties.

In this case, the Court generously construed these requirements, in this writer's opinion.

Probably the most difficult aspect of the ruling (under (3) above), is that if Warner is not truly a cop, then his assertion of that fact to the crowd would not be "sufficiently related to his employment."

The Court admits that if a Sheriff's janitor declared he was "a cop," that would not have rendered his acts under color of law, on these facts. The Court reasoned however, that "cop" is "a generic, non-technical term" that can "also encompass Warner's status as a 'custodial officer,'" despite that he had no off-duty powers greater than any other citizen. Anderson v. Warner, 9th Circuit, June 26, 2006, No. 04-15505; 2006 DJDAR 8188.

This case illustrates that merely invoking your official status while off-duty to influence the acts or behavior of others can lead to civil rights liability under color of state law. On the other hand, the Anderson case arguably goes too far in finding "color of law" on these facts.

CONCLUSION

If you are required, while off-duty, to invoke your official status as a peace officer in order to avert a substantial threat, or to keep the peace, or to detain someone for a proper reason, make sure your conduct connected with the assertion of official status will pass muster under your department's policies, rules and regulations, as well as state law. If you do so, you will have a much better claim for defense at public expense if you are sued.

Remember that it is possible for your agency to punish you for off-duty acts, and yet deny you defense when you are sued.

For example, several years ago I defended four off-duty LAPD officers who were "moonlighting" as "parking lot security" at a dance club when a shooting occurred inside the club. The officers, who were armed, were allegedly neglectful of their "duty" to locate witnesses and remain present until the arrival of homicide detectives. Each was suspended for 10-15 days.

Then came the lawsuit.

The City declined to defend them. We were successful in having them dismissed as defendants, but the trial court refused to require the City to reimburse them for fees and costs. Ultimately, the guard service's carrier paid, based on their "employment."

TO CHIEFS AND SHERIFFS:

Are your policies and rules regarding off-duty "police actions" reasonable and sufficiently clear so that your members understand what your department's expectations are when your members become involved in an off-duty incident?

TO MANAGERS AND SUPERVISORS:

Do you see to it that this subject is discussed, perhaps at roll call/briefing training, at least yearly?

TO THE TRAINERS:

Do you have a training bulletin or similar medium that managers and supervisors can use for training purposes on this subject?

Stay safe and insured!

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1 Currently, 42 USC § reads:

    Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress...

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