Nahmod Law

Off-Duty Police Officers, “Private” Conduct and State Action

Section 1983 damages liability for constitutional violations depends on the threshold existence of a defendant’s state action within the meaning of the 14th Amendment and on the related statutory requirement of color of law. Fortunately, the general rule about the relationship between state action and color of law may be simply put: where there is state action under the 14th Amendment, there is color of law under section 1983. But this means that the (sometimes difficult) 14th Amendment state action question must be addressed in every section 1983 case.

Categories of State Action Cases

The relatively easy state action cases are those in which a state or local government official or employee has exercised government power, either pursuant to state law or in violation of state law, and deprived a person of his or her 14th Amendment rights. The harder and more troublesome, but more typical, state action cases are those in which a private person or entity is sued for damages under section 1983. The question in such cases is whether the challenged nominally private conduct can be attributed to the state or local government. The applicable tests in such cases are the nexus test, the symbiotic relationship test, the public function test and the so-called “entwinement” test.

(Search “state action” on this blog for related posts. In addition, I discuss these state action tests at length in ch. 2 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West/Westlaw)).

 

The “Converse” of the Typical State Action Case

But there is another category of state action cases that raise what I call the “converse” of the typical state action question. Such cases address the issue of when a state or local government official, one who is ordinarily a state actor, loses that status because he or she has acted as a private person and is consequently not suable under section 1983.

Here are two cases of interest, one from the Seventh Circuit and the other from the Ninth Circuit, finding that the defendant police officers, sued for damages under section 1983 for alleged constitutional violations, were not state actors, and thus could not be liable under section 1983.

(Many other “converse” state action cases from the circuits are collected in ch. 2 of my Treatise).

The Barnes Case from the Seventh Circuit

Barnes v. City of Centralia, 2019 WL 6318087 (7th Cir. 2019), involved a police officer against whom threatening statements were posted on social media by a suspected gang member. The officer submitted a complaint against the suspected gang member who was then arrested. This was followed by a criminal prosecution and the dismissal of charges. The suspected gang member then sued the police officer and the city under section 1983 for violating her constitutional rights.

According to the Seventh Circuit, the officer’s conduct, which was limited to his submitting a complaint, was that of a private citizen, and not that of an investigating officer. Submitting the complaint was the extent of the officer’s participation. He did not arrest the plaintiff and had no role in that arrest; he did not even know what crimes the plaintiff would be charged with. The officer’s report therefore did not involve any exercise by him of state authority.

The Hyun Ju Park Case from the Ninth Circuit

Hyun Ju Park v. City and County of Honolulu, 2020 WL 1225271 (9th Cir. 2020), dealt with two off-duty police officers who watched as their intoxicated off-duty colleague decided to inspect his gun—which the police department authorized him to carry–at a bar to ensure that it was loaded. They also watched as their colleague attempted recklessly to  load his already loaded gun, which then accidentally discharged, with a single bullet striking the plaintiff bartender and causing serious physical harm.

The Eighth Circuit found no state action on the part of these two defendants (the third intoxicated defendant had settled separately with the plaintiff) who were sued for violating substantive due process. They were not state actors for a number of reasons. Neither one exercised nor purported to exercise official responsibilities. Both were off-duty, dressed in plain clothes, were drinking as private citizens at a bar and never identified themselves as police officers. Even when they saw the third officer pull out his gun, they did not act or purport to act in the performance of their official duties.

(Judge Smith concurred on the state action issue but dissented on the separate question of whether the city, which was also sued, could be sued for its official policy or custom; the majority held that it could not).

Comments

1. Notice that in both cases, the two circuits soundly addressed the state action question not abstractly but rather in terms of the particular fact patterns they confronted. The state action question must be decided on a case-by-case basis. There are relatively few, if any, bright line rules.

2. The Barnes case is consistent with the many circuit court decisions holding that a private person who merely reports a possible crime to law enforcement authorities does not thereby become a state actor subject to potential section 1983 damages liability.

3. In Barnes, there is a possible alternative, and non-state action, basis for the decision. Even if the officer’s submission of the complaint were state action, it was not the proximate cause of any resulting 14th Amendment violations. Because he purportedly had no role in the arrest, did not know what crimes the plaintiff would be charged with and was not responsible for the prosecution, the conduct of others involved in those post-complaint decisions constituted a superseding cause breaking the chain of causation. (Search “proximate cause” on this blog for related posts. In addition, I discuss proximate cause at length in ch. 3 of my Treatise).

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Written by snahmod

July 16, 2020 at 11:07 am

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