When a person is injured by a cop who's in uniform and on the clock, the person's legal recourse is pretty clear. He or she would file suit against the city or state government to recover damages caused by the officer's actions. However, the issue can become muddled when an individual suffers injuries and losses caused by an off-duty cop. Here's what you need to know about parsing liability in this situation, so you can be sure you're going after the right people.
Liability Depends on the Circumstances
The determining factor for establishing liability is whether the off-duty officer was acting on his or her own behalf or as an agent of the government at the time the incident occurred. If the cop was acting independently and his position as a police officer is incidental to the event, then you would file a civil suit against the individual.
For example, you and an off-duty officer get into an argument about your dog pooping in his yard. During the confrontation, the person strikes you or causes damage to your property. If the cop was not trying to arrest you or write you a ticket, then the person is acting on his or her own behalf and you would file the suit directly against the individual.
On the other hand, if the cop was attempting to issue you a citation for breaking leash laws at the time the altercation occurred, then that person is acting on behalf of the government. He or she is enforcing the law as required by the individual's position as an officer. In this case, you would hold the police agency responsible for the actions of one of its employees.
Unfortunately, not all circumstances are as straightforward as this. Sometimes you'll have a situation where the off-duty cop attempts to use his or her authority as a police officer to resolve, what is essentially, a civilian dispute.
For instance, the off-duty cop threatens to arrest you if you refuse to scoop your dog's poop out of his yard and then the two of you get into an altercation as he's attempting to take you into custody. It may be difficult to sort out who to hold responsible in this situation since the person isn't acting on behalf of the government but is using the authority given to him or her by the police agency.
In that case, you may need to file suit against the individual and the government entity that employs the person and let the courts sort out liability.
Suing the Officer Directly vs. Suing the Government
The reason why establishing liability is so important is because bringing a civil suit against the government is a completely different process than filing suit against an individual police officer. Additionally, the government has a certain amount of immunity against lawsuits that may be invoked in your case whereas the police officer does not. For instance, the 11th Amendment of the Constitution prohibits private citizens from suing state governments in federal court.
Government agencies also typically require you to first file a tort claim with the local, state or federal entity you want to sue. The window to file this complaint is usually short. In San Francisco, you have six months from the date of incident to file a claim and the city has 45 days to investigate and respond to your claims. You have to wait for an answer from the government agency before you can file a civil suit.
Recovering compensation for damages caused by an off-duty police officer can be a complex and challenging matter. To ensure your rights are protected and increase your chances of prevailing in court, hire a personal injury attorney to assist you.