Nahmod Law

Off-Duty Police and State Action/Color of Law

Police officers when on the job and exercising government power are state actors subject to the Fourteenth Amendment and incorporated constitutional provisions, including the Fourth Amendment.

(I discuss extensively the various state action tests and Supreme Court and circuit decisions in Ch. 2 of my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed.)(West/Westlaw).

But what happens when police officers are off-duty and they engage in conduct that would clearly be unconstitutional if they were on-duty? Or to put this another way, when do police officers who are ordinarily state actors lose that status and no longer act “under color of law” for section 1983 purposes? I call this the “converse” of the typical state action question.

Consider in this connection a 2021 decision of the Fifth Circuit, Gomez v. Galman, 18 f.4th 769 (5th Cir. 2021)(per curiam). In this case, two off-duty New Orleans police officers drinking in a bar allegedly harassed and beat the plaintiff unconscious. Reversing the district court which had dismissed the complaint, the Fifth Circuit ruled that the plaintiff adequately alleged that the officers acted under color of law. It applied its “nexus” test in reaching this conclusion: “to determine whether an officer acted under color of law, we must consider: (1) ‘whether the officer misused or abused his official power’ and (2) ‘if there is a nexus between the victim, the improper conduct, and the officer’s performance of official duties.’ Bustos v. Martini Club, Inc., 599 F.3d 458, 464–65 (5th Cir. 2010).”

According to the Fifth Circuit, even though the officers were off-duty and in a bar drinking, they used their authority as police officers when one of them gave the plaintiff a direct order to stop and not leave the bar’s patio area, which he obeyed. Then, when plaintiff attempted to drive away after he was beaten, both officers ordered him to stop and get out of his car, which plaintiff did. Also, the officers acted as if the plaintiff was being arrested, they called for backup and they had identified themselves as police officers. For these reasons, there was a sufficient nexus alleged for state action/color of law purposes.

Judge Ho concurred, explaining why this was not an easy state action case:

“As a strictly doctrinal matter, this is a close case. Gomez alleges that he believed his assailants were police officers, and that for that reason, he complied with their orders, rather than flee to avoid further injury. But he never explains why he believed the defendants were police officers. He does not allege that they wore uniforms, displayed their badges, or otherwise presented themselves to him as police officers. And it is not Gomez’s subjective beliefs, but the officers’ conduct, that determines whether the defendants acted “under color of [state law]” as required under 42 U.S.C. § 1983. … So I can see how the district court might have concluded that this case cannot proceed under § 1983.”

Judge Ho thus questioned the relevance of a plaintiff’s subjective beliefs for state action purposes but went on to point out that in this case the fact that the officers later called for backup was objective evidence that state action was present. He also observed that the alleged acts of the officers were “contemptible.”

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Written by snahmod

September 13, 2022 at 10:21 am

Posted in Uncategorized

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