A police officer can be found to have been acting under “color of law” for purposes of civil rights violations, even if the officer is off-duty. However, the question of whether a police department’s insurer must defend the off-duty officer often depends on whether the officer was within the “scope of duties.” The two standards are not the same.
The phrase “under color of law” means the real or purported use of authority provided by law. A person acts “under color of any law” when that person acts in his or her official capacity or claims to act in his or her official capacity. Acts committed “under color of any law” include not only the actions of officials within the limits of their lawful authority, but also the actions of officials who exceed the limits of their lawful authority while purporting or claiming to act in performance of their official duties. “Color of law” is broader than “scope of duties” or “scope of employment.” The conduct of an employee is within the “scope of employment” when: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master.
A federal district court recently distinguished between “scope of duties” and “color of law” for purposes of determining an insurer’s duty to defend a civil rights lawsuit against an allegedly rogue police officer. Isaac Wiles recently obtained a favorable decision for its client on these issues in Jay Foster, et al. v. James. D. Litteral, U.S.D.C. S.D. Ohio No. 1:13-cv-255 (Oct. 14, 2014). In Foster, the Court held that an off-duty special deputy was not entitled to a defense because he was not within the scope. The special deputy was helping his brother locate and “snatch and grab” his brother’s children, who had been hidden by the brother’s estranged wife. Stories diverged markedly, but the special deputy was accused of having flashed his badge in an attempt to intimidate. The Court found that there was no question that the special deputy was on a personal mission and so was not within the scope. In this particular case, the Court also found that the special deputy was not acting under “color of law.”
Significantly, a county’s statutory duty to defend its employees under Ohio Rev. Code §2744.07 is also dependent upon whether those employees are within the scope of their duties. It is conceivable that an officer may find himself as a defendant in a 42 U.S.C. §1983 civil rights action, but not entitled to defense under statute or insurance.