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.