Posted on March 18, 2022
Are Off-Duty Cops Afforded Qualified Immunity While Working As Security?
In Wyatt v. Cole, 504 U.S. 158 (1992), the Supreme Court wrestled with the question of qualified immunity and its purpose. The main issue was whether qualified immunity constituted “immunity from suit rather than a mere defense to liability.” Id. at 166. In determining whether qualified immunity should be applied, the Court noted that the purpose of qualified immunity was to “safeguard government, and thereby protect the public at large, not to benefit its agents.” Id. at 168. This case was about a seizure of property that was part of a dissolved partnership. After a judge ordered the sheriff to seize the property and turn over to the seizers, the state court ordered the seized property returned. The lower courts granted the seizers qualified immunity, but the Supreme Court found that the seizers were not entitled to qualified immunity because they were private parties and did not hold an office requiring them to exercise discretion; nor were they concerned with enhancing the public good. Note: On remand the 5th Circuit affirmed the lower court decision denying qualified immunity to private defendants.
The Court expanded on this in Richardson v. McKnight, 521 U.S. 399 (1997), by looking to both history and to “the special policy concerns involved in suing government officials” in deciding whether or not private defendants were entitled to immunity. Richardson 521 U.S. at 404. In Richardson, the Court was asked to decide whether private prison employees were entitled to qualified immunity. The guards argued that their duties support immunity whether their employer is private or public. The Court found that historically, private parties were not entitled to immunity. Looking at Wyatt, the Richardson Court reiterated that the doctrine’s purpose was to protect “government’s ability to perform its traditional functions” by providing immunity where “necessary to preserve” the ability of government officials “to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.” 521 U.S. at 408 (citing Wyatt, 504 U.S. at 167).
In 2012, the Supreme Court held that “the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government functions.” Filarsky v. Delia, 566 U.S. 377, 387 (2012). For example, early law enforcement was often contracted and privately funded to do public policing. They were entitled to qualified immunity. Candidates for public office are not public officials who are engaged in “carrying out government functions.” They are private citizens seeking election to public office. The State of Texas does not, as far as I can find searching through Texas Statutes, provide armed security for candidates unless the candidate is, of course, the incumbent.
Recently, the 9th Circuit tackled this issue and addressed “the general availability of qualified immunity to off-duty police officers acting as private security guards.” Bracken v. Okura, 869 F.3d 771, 777 (9th Cir. 2017). The court used the Richardson test to determine whether protecting off-duty employment as a private security guard had a “firmly rooted tradition of immunity.” Id. The Court found that there was no historical record that qualified immunity was available to private security guards.
The 10th Circuit also refused to give qualified immunity to an off-duty officer who violated a plaintiff’s § 1983 rights while he was serving as a security guard for a store. Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998).
The case law I found that allowed for qualified immunity to an off-duty police officer working as a security guard only applied when the off-duty officer was detaining a criminal suspect. A police officer’s “off-duty” status is not a limitation upon the discharge of police authority in the presence of criminal activity. Wood v. State, 486 S.W.2d 374, 774 (Tex.Crim.App. 1972) (off-duty police officer who observes crime immediately becomes on-duty police officer). Whether a police officer is acting under color of law does not depend on his on-or off-duty status at the time of the alleged violation. United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.1991). In other words, while working as a privately employed security guard, the case law grants immunity when the off-duty officer recognizes a criminal act and shifts into his role to that of a law enforcement officer to stop or investigate it. Miller v. SS Hosp. Grp., LLC, 2018 U.S. Dist. LEXIS 103160 (N.D. Tex., June 20, 2018).
In determining the status of a police officer, the court analyzes the capacity in which the officer acted at the time he committed the acts for which the complaint is made. Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex.App.—Houston 1995). “If the officer is performing a public duty, such as the enforcement of general laws, the officer’s private employer incurs no vicarious responsibility for that officer’s acts, even though the employer may have directed the activities. If the officer was engaged in protecting the employer’s property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier of fact decides whether the officer was acting as a public officer or as a servant of the employer.” Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37 S.W.3d 145, 150 (Tex. App.–Austin 2001).