Synopsis: On August 23, 2017, in Bracken v. Okura, 2017 U.S. App. LEXIS 16105 (9th Cir. Aug. 23, 2017), the Ninth Circuit Court of Appeals ruled that an off-duty police officer working as a hotel security guard was not entitled to qualified immunity. Even though the officer was wearing his police uniform and the police department approved the assignment, the Ninth Circuit held that qualified immunity did not apply because the officer was not serving a public, governmental function while being paid by the hotel to provide private security.
Background: On New Year’s Eve in 2009, Officer Chung had been hired by a hotel as a special duty officer to provide security for a private event. Although Chung wore his police uniform, and the Honolulu Police Department approved his employment at the hotel, the Department considered him off-duty while working there.
That evening, Dillon Bracken stepped over a rope and tried to walk into the party at the hotel. Chung helped detain Bracken in order to issue an internal trespass warning. Shortly thereafter, other hotel security guards arrived. The security guards tackled Bracken, allegedly assaulted him and took him to the hotel’s security office.
Bracken filed suit against the hotel and the hotel security guards under the Fourth and Fourteenth Amendments for unlawful seizure and excessive force. He also sued Chung for failure to intervene and all defendants for various state law claims.
Ninth Circuit Reversal of Summary Judgment: The District Court in Hawaii originally granted Chung qualified immunity on the failure to intervene claim. The District Court concluded that based on the allegations, it could not find that Chung acted unreasonably when he detained Bracken and asked him for identification. Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”
However, the Ninth Circuit reversed the District Court and held that qualified immunity did not apply to off-duty police officers working as private security guards. Because this was a matter of first impression, the Ninth Circuit held that there is two-part test to determine if qualified immunity applies:
- Whether history reveals a “firmly rooted” tradition of immunity for a given circumstance.
- Whether granting immunity would serve the underlying purpose of qualified immunity—which is to protect the government’s ability to perform its traditional functions and allow government officials to serve the public good.
The Ninth Circuit ruled that, even though Chung was acting under the color of state law, and therefore he was subject to liability under Section 1983, there is no tradition of immunity for off-duty or special duty officers acting as private security guards.
It also found that in detaining Bracken, Chung did not act “in performance of public duties” or to “carry out the work of government.” Chung does not contend, for example, that he was preventing Bracken from committing a crime. Instead, Chung was acting on behalf of the hotel, at the hotel’s direction, and while being paid by the hotel, while issuing Bracken a warning not to come into the party. The Ninth Circuit concluded that shielding Chung from suit would not advance the policies underlying qualified immunity.
Takeaway: In California, Penal Code Section 70 states that “Any and all civil and criminal liability arising out of the secondary employment of any peace officer pursuant to this subdivision shall be borne by the officer’s principal employer. The principal employer shall require the secondary employer to enter into an indemnity agreement as a condition of approving casual or part-time employment pursuant to this subdivision.”
Therefore, law enforcement agencies should act prudently when reviewing an officer’s request for secondary employment (such as working as a private security guard) and ensure that their officers are properly trained to reduce exposure to the department. Should something occur while the officer is working off-duty, the City may be liable for that off-duty officer who is subject to Section 1983 liability but not entitled to qualified immunity. This is, unfortunately, the worst of both worlds, since the off-duty officer working as security has all of the liability of a law enforcement officer and none of the immunities, and this holding is counterintuitive to the purpose behind qualified immunity. However, unless this decision gets overturned by the Supreme Court, Departments should be prepared to deal with this potential scenario.