January
22, 2001
SB 231 Fact Sheet
Presented by the ACLU of Texas
and the Sunshine Project for Police Accountability
The ACLU of Texas and the Sunshine Project oppose SB 231 because it’s improper for local government to eschew liability for the actions of its agents, especially where a law enforcement agency actively asserts control and authority.
Current status of Texas law:
Presently cities are responsible for the actions of their police officers whether or not they are on duty. Police “protection and control” is the very first item on the list of government functions for which municipalities will be liable for damages, which are capped by law. Historically, courts interpreted this clause to mean that government should be liable for damages caused by the actions of off-duty officers.a
SB 231 makes the following
changes:
This bill amends Section 101.065 to state that municipalities will not be liable for the actions of local, off-duty police officers.
Problems with SB
231:
SB 231 makes cities not liable for officers’ off-duty actions in situations where the city has proactively imposed its own authority – the private actions and supplemental employment of police officers. This breaks with long-established precedent and common sense. Police officers are vested with special authority, are armed, and are allowed to use even lethal force against the rest of the public. Their employers must be held responsible if they misuse that authority.
Cops who moonlight have privatized their government function
We submit that frequently off-duty misconduct expressly derives from officers engaging in privatized government functions, like working security at a second job.
· Many off-duty police brutality and misconduct incidents occur where businesses hire off-duty police officers as security, and moonlighting is common among officers to supplement their pay. Often officers wear their uniforms at these jobs.
· Local police departments regulate moonlighting. In Austin, opportunities to moonlight must be approved by the department, and moonlighting privileges may be taken away as part of disciplinary actions.
· Officers preserve the same authority, both actual and apparent, to arrest people and use force on these moonlighting jobs. In Austin, if officers engage in off-duty misconduct while moonlighting that violate departmental rules, they are disciplined on the job.
· Officers are hired for security precisely because they are police officers. Local government subjects them to a variety of psychological, physical and other testing. Businesses hire with that foreknowledge, and have a reasonable expectation that the officer will behave with the same decorum as displayed on the job.
When an officer applies to a department-run program for off-duty employment, perhaps even performs a “second job” in uniform, even wearing a government-issued weapon, he or she is still serving the same “government function” for which they were first hired, trained, and equipped.
Cities have
responsibility for non-employment-related, off-duty officer misconduct.
Cities bear responsibility for off-duty misconduct because they have trained and equipped these officers to do violence as part of their job, and therefore must be held accountable if that violence spills outside the bounds of the public interest.
Take the example of Austin Police Officer Doroteo Hernandez, who on his day off in 1996 got drunk and visited his estranged wife at her job, in violation of a civil protective order. Raising a ruckus and refusing to leave when asked, the officer ultimately fired his city-issued service revolver, though no one was injured, and Officer Hernandez was arrested (though never convicted). If Hernandez had injured or killed someone, the city should have been liable for equipping him with a gun and not training him well enough to ensure it wouldn’t be used in such a destructive way. The fact that they are liable adds a layer of accountability in the hiring and training of police officers that otherwise would not exist. As such, SB 231 would inevitably lead to laxer standards (current standards allowed Officer Hernandez back on the force without prosecution for this event). There are many other instances where liability logically should follow the officer home at the end of the day.
DPS Case Not
Analogous:
Proponents of SB 231 will argue the bill only extends a liability waiver to local police that is already enjoyed by DPS for off-duty, uniformed officers.
First, we believe the 1995 amendment to exempt the state from liability for DPS off-duty conduct was a mistake that should not be duplicated. Second, DPS officers are better paid and better trained than most local officers, and screening processes to join DPS are more severe. They are less likely to need to moonlight for financial reasons, whereas moonlighting is very common for local police officers.
Even if you supported the 1995 statute that created
Sec. 101.065, a law that’s appropriate for the best trained officers in the
state may not be appropriate, for example, for a small, rural police force.