So the Off-Duty City Cop You Hired to Patrol and Protect Your Business Shot Someone, and You have been Sued for Millions. Now What? – by J. Robb Cruser

J_Robb_Cruser_01The Georgia Supreme Court favors plaintiffs, ruling that it is a jury question whether a business owner is liable for a police officer’s actions.

In a ruling favorable to the plaintiff’s bar, in determining who may be responsible for the actions of an off-duty cop while doing side or “extra work,” the Georgia Supreme Court explained that “the proper focus of analysis is to determine in what capacity the officer was acting at the time the tort arose” and let the case go to a jury. Ambling Management Co., LLC et al. v. Miller, Nos. S13G1843, S13G1852 Decided October 6, 2014.  (emphasis supplied)

The Facts

In Miller, the Supreme Court of Georgia set out the facts as follows.

On May 5, 2009, appellee Tramaine Miller was seriously injured when Reginald Fisher, an off-duty POST-certified City of Atlanta (“APD”) police officer who had been patrolling the apartment complex in which Miller’s quadriplegic aunt lived, shot Miller. Id.

* * *

In 2008, Paul and Philip Kennon, owners of appellant City Views at Rosa Burney Park GP, LLC (“City Views”), engaged Bryan French, a POST-certified APD police officer, to patrol the apartment complex, which was in an area known for a high volume of crime, including gang activity, illicit drug trading, and car theft, during his off-duty time. Appellant Ambling Management Co., LLC (“AMC”) provided onsite property management services at City Views through its employee Kelly Bunch, who worked and lived on the City Views property. Id.

* * *

Paul Kennon communicated to French that he wanted to increase the amount of arrests being made onsite in order to deter criminal activity at the apartments and in order to evict those tenants who were engaging in or facilitating onsite crime. French patrolled the apartments and enlisted other officers like Fisher to work shifts at City Views. All officers wore their APD-issued uniforms while patrolling at City Views and used their APD-issued equipment such as their service weapons and batons. Each officer was also required to have an approved permit from APD to perform off-duty “extra work,” such as patrolling apartment complexes. Id.

* * *

At approximately 9 p.m., while sitting in his vehicle, Fisher observed Miller pull up and park in a handicap space. Fisher testified that he believed Miller walked to the apartment building’s fire doors, but Miller testified and a surveillance video apparently showed, that Miller entered through the main entrance of the building. Id.

* * *

While Miller was inside the building, Fisher left his personal vehicle, walked over to Miller’s vehicle and looked inside using his flashlight and did not see a handicap tag or sticker. Fisher also did not see any contraband. Fisher returned to his car. Miller stated that upon returning to his vehicle, he got in, started the engine, and put the car in reverse when he heard someone he did not see yelling at him to put his hands up. Miller says he complied with the command to put his hands up and, as he did so, he held his cell phone in his left hand. Miller said that after he put his hands up, the car window broke and he heard a gunshot. The next thing he remembered was waking up in the hospital. Id.

* * *

Officer Fisher testified he approached Miller’s car to discuss with him City Views’ policy of keeping the handicap spaces clear. Fisher said he tapped on the car window to get Miller’s attention and at that time saw Miller pull out of his pocket something that appeared to Fisher to be a piece of crack cocaine and put it in his mouth. Id.

* * *

Fisher, however, made a decision to arrest Miller for having illegal drugs. Fisher stated he issued commands to Miller that went unheeded and so he broke the driver’s side window and then saw Miller make a move to reach for something under his car seat. Believing Miller had a weapon, Fisher shot Miller in the left side of the face. When a responding officer arrived on the scene, he found no drugs and no weapon on Miller’s person or in his car. Id.

* * *

The Analysis

The Georgia Supreme Court accepted the case to review the following question.

Did the Court of Appeals’ majority opinion err in focusing on the evidence of whether Officer Fisher was performing police duties not directed by his private employer at the time he approached and engaged Miller, instead of at the time the alleged cause of action arose? Id.

The Miller court first summarized recent Court of Appeals decisions on the issue,

Most of the more recent Court of Appeals’ decisions have made it clear that the officer’s capacity (policeman, servant, or dual) at the time the tort arose is the key time-period on which to focus to determine the liability of the company . . . (The employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose.) Id.

The Supreme Court commented that,

While the Court of Appeals more or less accurately summarized the applicable legal framework, its subsequent factual analysis was incomplete. Id.

Where the Court of Appeals stumbled was in focusing on the time period “when [Fisher] engaged Miller” rather than “Fisher’s actions at the time the causes arose – namely, the points at which he stopped the vehicle (false imprisonment), broke the car’s window with his baton and pulled out his weapon (assault), and shot Miller in the face (battery). Although the Court of Appeals’ analysis was in error, the Georgia Supreme Court affirmed “its ultimate decision reversing the trial court’s grant of summary judgment” as being “right for any reason.” Id.

In getting to the proper analysis, the Supreme Court reminds all litigants that whether an off-duty police officer is “. . . acting in the capacity as a servant, acting in the capacity as a public officer, or acting in a dual capacity is generally a question for the jury to decide.” Id. In addition, the Georgia high court pointed out that there was

. . . some evidence that City Views directed patrol officers to make arrests in order to curb illegal activity on the property. Such evidence is for the jury to consider along with the other evidence to make a determination as to the capacity in which the officer was acting at the time the cause of action arose. Id.

This last point that “City Views directed patrol officers” is important. The more a business directs an off-duty patrol officer, the more it opens itself up to the assertion that the business directed the police officer to perform the alleged offending conduct when the cause of action arose and is therefore liable for such actions.

Lesson Learned: Property Owners Keep Quiet

The Georgia Supreme Court is telling business owners loud and clear that when it comes to the use of off-duty cops, the less direction, the better. The more a business owner directs an off-duty officer in what to do, establishes goals or requests certain performance outcomes, the more the business opens itself up to the assertion that the off-duty cop is either acting in the capacity of a “servant” of the business or, at a minimum, in a “dual capacity” role sufficient to impose liability on the business owner. Will this guidance push businesses to adopt a more hands-off approach and provide little or no “direction” to the off-duty cops they employ other than to request (without defining) that they perform their “police duties” by enforcing the law? After all, the less direction businesses give to their off-duty cops, the less likely they will be responsible for the conduct of the cops when the cause of action arose.