In case you’re wondering, simply being in uniform won’t get you immunity.
On 31 December 2009 Dillon Bracken gatecrashed a party at a hotel in Honolulu. Kinchung Chung, a police officer, had been hired by the venue as a “special duty officer”. While he wore his uniform and this work was approved by the police department, he was paid by the hotel directly and was considered to be off-duty from the police force. Chung and a number of bouncers confronted Bracken. A scuffle broke out between Bracken and the bouncers (not including Chung) in which Bracken was injured.
Bracken sued Chung for violating his rights to due process by failing to intervene and stop the alleged assault by the bouncers.
Every person who, under color of any [law] … of any State … subjects, or causes to be subjected, any … 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 … for redress: 42 USC §1983.
The US District Court dismissed the claim, finding that Chung was immune from suit and the claim in any event lacked merit. Bracken appealed.
The appeal was upheld by the Ninth Circuit Court of Appeals. It was accepted that Chung acted under colour of State law by invoking the authority of his uniform and badge. However, he was not entitled to immunity from suit: There was no tradition of immunity for off-duty police acting as private security guards. He was not carrying out public duties or doing the work of government [although one may wonder, then, why the Honolulu Police Department allowed “special duty” policing in the first place].
The Court of Appeal also considered that Bracken’s claim had merit. While in general the State was not liable for failing to prevent a person coming to harm, a police officer was obliged to intervene where he had placed a person in danger. Here, although it was foreseeable that Bracken would be injured by the bouncers, Chung had prevented him leaving.
The case was returned to the District Court for further proceedings.
Bracken v Chung (2018), Ninth Circuit Court of Appeals, 23 August 2017