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"It is well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state."
The case deals with the potential liability of Colby Neidig, an off-duty officer who initially concealed his police role, who allegedly chased and then beat up McGuire, a teenager smashing pumpkins and ringing the doorbell at the officer's family home. After the alleged excessive force, Neidig admitted his public service role when asking a neighbor to call a police station to pick up the apprehended young man. McGuire sued Officer Neidig, the City of Pittsburgh, and another police officer for claims under the United States Constitution and state law. McGuire's remaining claims are state law claims for assault and battery and a § 1983 excessive force claim. The only claim remaining against the City is a § 1983 supervisory liability claim. The City moved for summary judgment, and Officer Neidig moved for partial summary judgment on the § 1983 claim.
Was Officer Neidig liable under § 1983?
The court denied Officer Neidig's motion for summary judgment on McGuire's § 1983 claim. Officer Neidig is not liable under § 1983 unless he committed the alleged misconduct "under color of state law." For liability under the Constitution, his alleged misconduct must have involved "state action." "The 'under color of state law' analysis is equivalent to the 'state action' analysis." McGuire has the burden of proving Neidig acted under color of law. A reasonable jury could find Officer Neidig committed the alleged misconduct under the color of law. While chasing after McGuire, Officer Neidig ordered him to stop multiple times. Officer Neidig effected a de facto arrest on McGuire by tackling him to the ground and subduing him. While attacking McGuire, Officer Neidig made statements suggesting he is a police officer. According to McGuire, Officer Neidig stated, "You think you can out run a 39-year-old who works in Wilkinsburg?" Officer Neidig admits at some point during or after the struggle he "deal[s] with worse fuckers than you in Homewood." While these statements alone do not define Officer Neidig as a police officer, the totality of the circumstances permit the reasonable inference Officer Neidig committed the alleged misconduct while "clothed with the authority of state law." On the other hand, the court granted the City's motion for summary judgment on McGuire's supervisory liability claim under § 1983. McGuire failed to demonstrate the need for a policy regarding off-duty conduct is obvious or the City's existing practice of maintaining no off-duty conduct policy is likely to result in off-duty officers committing excessive force. The City's failure to adopt a policy regarding off-duty conduct created a risk off-duty officers would intervene in criminal matters. Although an off-duty officer without such a policy might intervene in situations where "best practices" dictate he should not, the mere fact an off-duty officer intervenes does not necessarily mean he will likely commit excessive force. McGuire argued the City's failure to have a written policy regarding off-duty conduct means the City "cannot catalogue and readily retrieve" complaints of off-duty conduct by order or policy number. The court held that the City's system of cataloguing citizens' complaints, however, has no bearing on the existence of a custom. McGuire also failed to adduce genuine issues of material fact on whether the City failed to train its officers on off-duty use of force.