By John V. Berry, Esq., Berry & Berry, PLLC, www.berrylegal.com
In a new case, Bladdick v. Pour, Civ. No. 09-cv-330-WDS (S.D. Ill. Dec. 8, 2010), the U.S. District Court for the Southern District of Illinois has interpreted the Law Enforcement Officers Safety Act (LEOSA), in the context of a lawsuit under 42 U.S.C. § 1983. The Bladdick case make the argument that individual officer personal liability might be avoided when and if an officer does not comply with departmental LEOSA policies.
The Bladdick case involved a civil action dating from an incident that had occurred between November 8, 2008 and November 9, 2008 in the parking lot of a sports bar. During the time in question, a number of off-duty City of St. Louis police officers had been present at a sports bar in Granite City, Illinois. Three of the off-duty officers, including the defendant, Officer Pour, had been carrying their service weapons. Officer Pour was at one point asked to leave the sports bar due to his alleged level of intoxication.
Officer Pour then went to the parking lot, where he was apparently discovered by the plaintiff in the lawsuit on the ground. The facts are not clear, but the plaintiff allegedly attempted to help the officer up. There was some dispute about what was said between the officer and plaintiff, but the plaintiff was shot in the torso by the police officer. During the incident, the officer had not been wearing his uniform, did not display his badge, nor did he provide any indication that he was a police officer.
In response to the lawsuit against the officer under 42 U.S.C. § 1983, the police department had argued that the officer had not been acting “under the color of state law.” The importance here is the personal liability of the individual officer under Section 1983.
The U.S. District Court found that the officer had not been acting under the color of state law and therefore that the case was not actionable against him under 42 U.S.C. § 1983. In particular, the U.S. District Court found, in part, that the officer could not be subject to the Section 1983 claim, in part, because of his police department’s LEOSA policy:
"The nature of Pour's act was purely personal and not in furtherance of any official duty. This late night parking lot scuffle, which ended with the shooting of plaintiff by an intoxicated individual did not occur because Pour was clothed with the authority of state law. Furthermore, when plaintiff helped Pour up off the ground and Pour turned and shot him, he certainly misused his service weapon. However, in light of the evidence before the Court, the Court does not find that Pour's misuse of power was only made possible because Pour was "clothed with the authority of state law." In fact, Pour was stripped of his authority as a state actor as a result of his intoxication and the relevant policy that relates to intoxication.
The Board has provided a copy of the Department procedures which state that an officer is not to act while intoxicated. The Department procedure, which sets forth procedures for complying with the Law Enforcement Officer Safety Act ("LEOSA"), which authorizes the concealed carry of firearms, specifically provides: "LEOSA does not provide authority for a person to carry a concealed firearm while under the influence of alcohol or any other intoxicating or hallucinating substance." (Special Order SO 1-05, Doc. 72, Exhibit C.)"
The court then found that Officer Pour was not acting under the color of state law and because an action under color of state law is a jurisdictional prerequisite to a section 1983 claim, the court found that plaintiffs claim against Pour in his individual capacity had to be dismissed.
This is another opinion which impacts upon the interpretation of LEOSA. Interestingly, the opinion makes the determination that the police department’s LEOSA policy, which the officer apparently was not in compliance with, helped the officer to avoid potential personal liability. Given that individual police departments have typically instituted rather detailed and strict LEOSA policies in recent years, this may prove to be another effective method of defending an officer against personal liability in civil actions when police officers are sued in their individual capacities.