An off-duty police officer providing security for an apartment building shoots an unarmed man who was simply delivering some medication to a disabled relative. Is the apartment building owner liable? Maybe, according to a recent decision by a divided Georgia Court of Appeals.
The victim in this case visited his aunt’s apartment building and parked in a handicapped-designated space. This aroused the suspicion of the off-duty officer. It was the officer’s first day working private security for the building. He had been hired by another police officer, who previously monitored the building alone.
After the victim completed his delivery and exited the building, the off-duty officer confronted him. The officer later testified that the victim panicked, entered his car and ingested what the officer (falsely) claimed was cocaine. The officer tried to physically block the victim’s car and repeatedly shouted him to stop. Ultimately, the officer smashed a window in the victim’s car and fired his weapon. The officer later claimed–again, falsely–that the victim was reaching for a gun.
Police vs. Private Function
The victim sued numerous parties, including the shooter, the police officer who hired the shooter, the on-site property manager, and the companies that respectively owned and managed the apartment building. A trial court granted summary judgment to the building’s owner, management company and on-site manager. The victim appealed.
The general rule in Georgia is that when an off-duty police officer works for a private employer, that employer is not liable for “police duties” performed by the officer on the employer’s property. However, if the officer commits a tort in connection with his duties to the company, not the public, then the employer may be liable. The question for the Court of Appeals was whether any evidence existed to suggest the officer was acting outside the scope of his police duties; if so, then the trial court’s grant of summary judgment was inappropriate.
Judge Sara L. Doyle, writing for a three-judge majority, sided with the victim. While the officer initially approached the victim over his alleged misuse of a handicapped space–a police function–the officer was also enforcing the building’s “policy to regulate access to the apartments,” a non-police matter. Therefore, Judge Doyle concluded, “there is some evidence to support a finding that [the officer] was performing a security function directed by” the apartment’s owner and management company, suggesting they may be liable for the shooting. In any case, the trial court was wrong not to let the question go to a jury.
Judge Michael P. Boggs disagreed. Writing for himself and another judge, he argued “the undisputed evidence” showed the officer was attempting to arrest the victim for drug possession–actions taken “solely as a police officer performing public duties, not within the scope of his employment at the apartments.” Judge Boggs would have upheld the trial court’s grant of summary judgment to the building defendants.
As an aside, all five judges agreed with the trial court’s summary judgment in favor of the property manager. Judge Doyle explained that while there was evidence that the building owner and management company’s provided policy direction to the off-duty officer, the on-site manager was merely an agent of the management company and not acting “in his individual capacity.”