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Off-Duty Murder Not Under “Color of Law” Thus, No Agency Liability

By Jack Ryan

Estate of Boliek v. Anne Arundel County, 2005 U.S. Dist. LEXIS 11182 (Dist. Md. 2005).

A recent case before the United States District Court for the state of Maryland considered the concept of “color of law.” In order to allege a civil rights claim in federal court against a law enforcement officer or a law enforcement agency, the person bringing the lawsuit must show that a “person,” “acting under color of law,” violated a federally protected right. If any of these three elements fail, the person cannot bring their claim in the federal court. When law enforcement officers commit acts while off-duty, there is a strong likelihood that they were not acting under “color of law.” When examining an officer or deputy’s off-duty conduct, agencies should always consider facts which indicate that the officer was or was not acting under color of law. As a liability matter, if the officer is not acting under color of law, the agency and the officer will not be exposed to a federal civil rights claim.

The Boliek case involved the murder of Ronald Boliek by an off-duty Anne Arundel County police officer, David Frendlich. Officer Frendlich and his wife were going through a period of marital discord. While separated, Mrs. Frendlich began a relationship with Ronald Boliek. At some point Mrs. Frendlich decided to return to her husband. Notwithstanding this return, Officer Frendlich continually threatened Boliek. According to the lawsuit, Boliek notified the Anne Arundel County Police of some of these threats. Boliek reported that the officer had left a note inside Boliek’s home indicating that he could get him at any time.

In October of 2003, Officer Frendlich moved out of his house, having decided to end his marriage. He informed his wife that he was going to New Jersey for Halloween and he decorated the front lawn with three tombstones. On Halloween night, Mrs. Frendlich and her children went out trick or treating with Boliek and his daughter. They had plans to return to the Frendlich home and have dinner together. When they arrived at home, Officer Frendlich was hiding in the basement. Using his department-issued service weapon Frendlich murdered Boliek and then committed suicide. Boliek’s estate filed a claim against the Anne Arundel County Police Department. Anne Arundel County sought dismissal of the federal claim arguing that Officer Frendlich had not acted under “color of law” in committing the murder and thus, no federal claim could be brought.

In analyzing the claim, the court pointed out a number of factors that are considered to determine whether an officer is acting under “color of law” when they commit some act that causes injury. The most significant factor in determining whether a person is acting under color of law is the “nature of the act being performed. One would first consider whether the officer was on-duty or wearing their uniform when the act was undertaken.” Another factor would be whether the officer was driving their police vehicle. In essence the court looks at whether the act was undertaken by using the powers granted to law enforcement. A misuse of power possessed by virtue of state law, such as the police powers of law enforcement personnel, is an act taken under color of law. The court, citing prior cases pointed out that some police conduct may provide an indication that an off-duty officer acted under color of law. “In Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994), the United States Court of Appeals for the Third Circuit recognized that in some situations an off-duty officer can create "pretended authority" by certain action such as: identifying oneself as a police officer, flashing a badge; arresting an individual; or interceding in a third-party dispute in compliance with police department regulations. However, a police officer's actions will not be under "color of law" when the conduct is personal and not an exercise of state authority. See Barna, 42 F.3d at 818 ("There was no evidence that the alleged assault occurred as a result of official police concerns; on the contrary, the evidence indicates that the assault arose out of the officer's familial and personal concerns."). Thus, use of a police issued handgun by a police officer alone does not transform personal conduct [*15] into police action. The Court must review the link between the use of the handgun and the exercise of state power.” The court noted that in cases where other officers become involved in the conduct of the off-duty officer, the event then has the “air of official authority” and will likely satisfy the “color of law requirement.

The court concluded that the actions of Officer Frendlich were not taken under color of law. The court noted that the only indicia of police related action was the fact that he used his service-weapon in the murder. Beyond that the act was purely personal in nature.

Key Points:

  • When reviewing off-duty actions of officers always examine indicia of official authority:
  • Was off-duty officer wearing department uniform?
  • Was off-duty officer driving agency vehicle?
  • Did off-duty officer identify him or herself as a police officer?
  • Did off-duty officer attempt to make an arrest?
  • Did off-duty officer involve on-duty personnel by calling for assistance?
  • Did on-duty personnel ratify the off-duty officer’s actions where such approval was inappropriate under the circumstances?

Officers should note, when they decide to take action off-duty and they act under color of law, they may be exposing themselves to federal liability for a civil rights claim.

 

The Law and Best Practices of Successful Police Operations:

by Jack Ryan

Details & Ordering Information

The legal mandates that direct law enforcement operations come from court decisions decided by the United States Supreme Court and lower federal courts as well as state court decisions. The purpose of this manual is to examine the 12 high risk critical tasks in law enforcement. It serves as a comprehensive guide to the legal trends impacting the law enforcement profession.

The manual is set out in twelve distinct sections, each covering one of the critical tasks. Some of the sections include, by necessity, several subsections covering particular areas of the task under review. An example is search, seizure and arrest which examines multiple facets of this task.

By providing law enforcement personnel with a reference source to the legal trends in the profession, officers will be in a stronger position to avoid liability.

Details & Ordering Information