Minneapolis Police Sergeant David Clifford, 47, is the executive member of the SWAT team and a 19-year department veteran who has twice received the Medal of Valor. Last week, Clifford was charged with felony assault after he punched Brian Vander Lee in the head at Tanners Station in Andover. Clifford’s actions resulted in Vander Lee requiring life support and at least two brain surgeries. In addition to the serious criminal charges Anoka County has brought against Clifford, he will undoubtedly be named in a civil lawsuit as well. Although Clifford was off-duty, in an interview with the St. Paul Pioneer Press his criminal defense attorney alleged that Clifford was responding to Vander Lee’s “out of control” behavior. Such assertions, if maintained by Clifford, may have liability implications for the City of Minneapolis in a civil lawsuit against Clifford.
Normally, fights involving police officers who are off-duty will generally not result in successful federal civil rights lawsuits where the officer is clearly not acting under the color of state law. In other words, where the officer is the aggressor and is acting purely in his or her personal capacity, the officer will usually be a defendant (in his non-official, non-officer capacity) in a state law civil claim for assault and battery (and/or criminal charges). This is in contrast to when an officer commits such an act while acting under the color of state law (such as when in uniform or on-duty), which makes the government vicariously liable and gives the victim standing to pursue a federal civil rights action for excessive force and police brutality.
There are circumstances, however, where an off-duty police officer will be held to have been acting under the color of state law, thereby producing a viable federal civil rights claim. By arguing that Clifford was responding to a situation that nobody else was controlling, that he is highly trained in crisis response, that his perspective as a police officer is important, and that he was acting preemptively to restrain Vander Lee, Clifford’s criminal defense attorney may be laying the foundation for the defense that Clifford is not criminally liable because he was acting in the scope of his duties as a police officer. Vander Lee’s attorney may seize on these arguments by Clifford to sue him in his official capacity, effectively rendering Minneapolis liable to pay any money judgment.
Below are several instances in which courts have allowed excessive force claims against off-duty police officers to proceed under Title 42 U.S. Code § 1983
If the off-duty officer clearly and expressly asserts his official authority in the course of his private tortious and/or criminal acts. For example, an off-duty, non-uniformed jail commander was found to have acted under color of law when he allegedly beat a motorist who rear-ended his pickup truck and purportedly asserted his law enforcement authority by saying he was “a cop” in order to prevent bystanders from interfering with his assault. Anderson v. Warner, (9th Cir. 2006). In another example of a private altercation where the officer asserted that he was acting under color of state law, an off-duty police officer displayed his badge to two people he was mad at for talking in a movie theater; he then grabbed a woman and threw her down the theater stairwell. The 10th Circuit held that the officer’s actions were sufficient for excessive force analysis. Arnold v. Curtis, (10th Cir. 2009).
If the off-duty officer impliedly asserts her official authority in the course of her private acts. For example, in a case brought by a motorist who was allegedly punched in the face and knocked down by an off-duty officer after he rear-ended the officer’s vehicle. The officer requested the motorist’s driver’s license and detained him for a half hour until other police arrived. Graham v. City of New York, (N.Y.A.D. 2003.)
If the police department the officer works for has a policy stating that officers are always on duty. For example, a city was required to pay $400,000 to a victim shot by an off-duty Colorado police officer. The department required that its officers always be considered “on-duty” and be armed. Brown v. Gray, (10th Cir. 2000).
If the off-duty police officer possesses a weapon. In an Illinois case, the court found that an officer’s “negligent storage” of his gun at home was “incidental” to his employment and therefore within the scope of his duties and under the color of state law. As a result, a case could proceed under a constitutional theory against the city government when the officer’s minor son shot and killed another minor with the officer’s gun. Gaffney v. City of Chicago, (Ill. App. 1999).
If the police department that the off-duty officer works for has reason to know about the officer’s propensity to engage in the alleged misconduct and fails to take appropriate action. For example, a police department was forced to pay over a half million dollars to the family of a man shot and killed by an off-duty officer who was angry that the victim was having an affair with officer’s wife. The suit alleged that the department knew of the officer’s previous off-duty spousal beatings and failed to take preventative measures with regards to “the officer’s violent propensities”. Thomas v. Los Angeles Police Department, No BC086856, LA Superior Court Glendale, May 18, 1995, reported in Los Angeles. Daily Jour. (Verd. & Stl.), page 4, June 16, 1995. See The Police Policies Study Council, ¶ 53 (accessed 6/26/2012).
However, even in light of the above cases, there are numerous cases where officers have acted similarly but been found to be acting entirely in their private, non-official capacity. For example, an off-duty police officer shot and killed another man outside a bar where they were fighting. Even though the officer displayed police ID and used his police gun, the court determined that it was essentially a “private brawl,” and that he was not acting within the color of state law. Parrilla-Burgos v. Hernandez-Rivera, (1st Cir. 1997). This is likely the argument that the City of Minneapolis will make, should it become involved in the manner discussed.
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Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.