The recent killing of Botham Jean by off-duty Dallas police officer Amber Guyger has raised serious questions regarding the city’s liability for off-the-clock employees. Potts Law Firm Partner Micah Dortch recently discussed this issue from a legal perspective in the article, “Could Dallas be held liable for Botham Jean’s death after shooting by off-duty officer?” Micah Dortch is the Managing Partner of the Potts Law Firm’s Dallas location and maintains a large docket of civil litigation cases throughout the United States, including catastrophic personal injury.

The killing of Botham Jean in his own apartment last week has led to a manslaughter charge against a Dallas police officer who was in uniform but off duty at the time.

But Officer Amber Guyger’s employer — the city of Dallas — could end up being taken to trial in civil court, even though she was not on the clock when authorities say she mistook Jean’s apartment for hers and shot the 26-year-old.

While no wrongful-death lawsuit has been filed so far, Jean’s family has hired civil rights attorneys Lee Merritt and Ben Crump to represent them.

Legal experts say Dallas could be held liable for Jean’s death in a federal lawsuit if attorneys convince a court that Guyger was acting under the scope of her employment when she killed her neighbor.

Does it matter that Guyger was off duty when she killed Jean?

Not necessarily. Personal injury and labor attorneys say the main question in a case against the city would be whether Guyger was acting “under the color of state law,” or, in other words, whether she was using her police authority.

“Whether a police officer is acting under color of law does not depend on his on- or off-duty status at the time of the alleged violation,” wrote a federal appeals court judge in a 1990s case involving a Houston officer working as a security guard.

Micah Dortch, a Dallas attorney who specializes in catastrophic personal injury, said the city could argue that Guyger was not acting in the course of her police duties because she was off the clock when the shooting happened.

If he were the plaintiff, Dortch said, he’d counter that a peace officer is acting in the course of her employment any time she draws her firearm.

“If she was at a gas station and saw a robbery occurring and pulled her weapon to … protect the person working behind the counter, obviously [she’d] be in the course and scope of her employment because even though she was off duty, she kind of went on duty automatically for the protection of the public,” Dortch said.

Was Guyger acting as a police officer if she thought she was dealing with an intruder?

That’s up for debate.

Mark Anthony Sanchez, a San Antonio attorney who represents cities and individuals in civil suits, said state law requires police officers to stop a crime, regardless of whether they are on duty.

Guyger told investigators that she arrived at the South Side Flats after work, parked on the wrong floor of the garage, entered a dark apartment she thought was hers and saw a silhouette she mistook for a burglar. According to an arrest warrant affidavit, she gave unspecified “verbal commands” that were ignored, so she fired her weapon twice.

Authorities said Guyger was wearing her uniform. It’s unclear whether she identified herself as a police officer when she encountered Jean or what she may have said to him. Merritt, one of the attorneys for Jean’s family, told reporters that a witness described hearing a woman’s voice saying, “Let me in, let me in” before gunshots rang out.

Sanchez said an officer’s response to shoot a person she thought was a burglar after coming home to the wrong apartment seems more an act of self-defense than an act of law enforcement.

A court that agrees with that interpretation could release the city from liability claims.

“The central legal question is: Was the off-duty police officer acting under color of state law in furtherance of discharging her police duties?” he said. “Or was she reacting as a startled homeowner with [whom] she perceived to be an intruder in her apartment?”

Either way, a jury might find that Guyger acted unreasonably. She could be convicted of a crime, or individually be held liable for Jean’s death in a civil court, Sanchez said.

What if police treated the incident as an officer-involved shooting?

On Sept. 7, the day after Guyger killed Jean, Dallas Police Chief U. Renee Hall said the shooting was a “very unique situation” and that the Texas Rangers had been called in to investigate.

“We have ceased handling it under our normal officer-involved shooting protocol,” the chief said.

Guyger was arrested three days after the shooting, sparking criticism that authorities had treated her with leniency because she’s an officer.

If law enforcement officials gave Guyger preferential treatment or investigated the shooting as they would an on-duty shooting, Jean’s family could have a good argument in court, said civil attorney Geoffrey Schorr.

The fact that Guyger was in her Dallas police uniform when she shot Jean will also matter, said Schorr, who recently settled a lawsuit that claimed two Balch Springs police officers violated his client’s Fourth Amendment rights against unlawful arrest.

“They did not take her immediately into custody. They didn’t handcuff her,” Schorr said about how police handled Guyger immediately after the shooting. “They treated her like a police officer. It wasn’t a typical arrest.”

Could the length of Guyger’s shift be held against the city?

A law enforcement official told The Dallas Morning News that Guyger had finished a 15-hour shift just before the shooting. That detail may raise questions about whether fatigue played a role in her actions.

In a lawsuit, Jean’s family could argue that the city overworked Guyger, contributing to the tragedy, Dortch said. He noted that such an argument might be successful if attorneys could point to an ordinance or law about police work hours that the officer violated.

However, under Dallas Police Department rules, an officer may work up to 16 hours a day, including an off-duty job — though there are exceptions that can make workdays longer.

Sanchez also pointed out that it’s unclear whether Guyger may have sought to work overtime, or whether she may have been forced into it by the department.

Article by Julietta Chiquillo, Dallas County Reporter



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