Writ of certiorari is dismissed as improvidently granted, where,
after briefing and oral argument, it appears that the question
framed in the petition is not in fact presented by the record.
Certiorari dismissed. Reported below: 522 F.2d 438.
PER CURIAM.
This case grew out of a bar room affray in Columbus, Ohio, in
the course of which the petitioner, an off-duty Columbus police
officer, shot and killed two people and permanently disabled a
third. The injured victim and the representatives of the deceased
victims, who are the respondents here, brought an action against
the petitioner in a Federal District Court under 42 U.S.C. § 1983.
[
Footnote 1] A jury awarded
them monetary
Page 429 U. S. 119
damages, and the judgment based upon that verdict was affirmed
by the United States Court of Appeals for the Sixth Circuit. 522
F.2d 438.
The petition for certiorari, which we granted on April 5, 1976,
425 U.S. 910, presented a single question:
"Does the fact that an off-duty police officer, out of uniform,
is required by police department regulation to carry a weapon at
all times establish that any use of that weapon against the person
of another, even though the officer is engaged in private conduct
at the time, [is] an act 'under color of law' within the meaning of
42 U.S.C. § 1983? [
Footnote
2]"
The case having now been fully briefed and orally argued, it
appears that the question framed in the petition for certiorari is
not in fact presented by the record now before us. For in addition
to the said police department regulation, there was evidence before
the jury that showed: (1) the petitioner had been awarded workmen's
compensation benefits for the injuries he had received in the
affray, on the ground that the injuries had been incurred in the
course of his employment; (2) the petitioner, after the affray, had
been granted official leave on account of injuries received "in
line of duty under circumstances relating to Police duties"; (3) a
Board of Inquiry convened to investigate the bar room episode had
determined that the petitioner's "actions were in the line of
duty."
Now that plenary consideration has shed more light on this case
than in the nature of things was afforded at the time the petition
for certiorari was considered, we have concluded that the writ
should be dismissed as improvidently
Page 429 U. S. 120
granted.
See The Monrosa v. Carbon Black, Inc.,
359 U. S. 180,
359 U. S.
183-184 (1959).
It is so ordered.
[
Footnote 1]
Section 1983 provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
[
Footnote 2]
At no time during this litigation has the petitioner questioned
the respondents' claim that, if the petitioner was acting "under
color of law," there was a deprivation of the respondents' "rights,
privileges, or immunities secured by the Constitution and laws"
within the meaning of 42 U.S.C. § 1983.
MR. CHIEF JUSTICE BURGER, concurring.
I join the opinion of the Court. I note, however, several
additional factors which came to light during plenary consideration
of the case and which were not disclosed in the petition for
certiorari. The three factors mentioned by the Court,
ante
at
429 U. S. 119,
as tending to prove that the police officer acted in the course of
his duties, are determinations made after the incident in question.
There are, however, at least three contemporaneous factors, in
addition to possession of the gun, which colored the officer's
conduct as official: (1) the officer testified that he had formed
an intention that he would arrest at least two of the men when he
stood up to intervene in the altercation; (2) he intervened by
using a can of mace issued to him by the police department; (3) he
was acting pursuant to a police regulation which required his
intervention in any disturbance of the peace, whether he was on or
off duty.
These factors seem to me important because of the possible
negative inference otherwise created that the only objective fact
at the time of the incident evidencing state action was the
presence of the state-required gun. While, of course, subsequent
determinations by state officials, such as mentioned by the Court,
are important evidence of state action, they could not transform
something into state action that otherwise would be deemed to be
private conduct. Thus, it is unclear what the result would have
been had the only contemporaneous evidence of state action been the
presence of the state-required gun. I wish to make it clear that
the Court is not passing on that question today, because it is not
presented by the record in this case.
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