United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
2015, an off-duty police officer fired his personal firearm
during an altercation in a parking lot outside a major
entertainment venue. A stray bullet struck Plaintiff, so she
sued and alleged federal constitutional violations and state
tort claims. Before the Court is Defendants' Motion for
Summary Judgment. The issues are fully briefed, and a hearing
is unnecessary. E.D. Mich. LR 7.1(f). Because Defendant Lyons
did not act under color of state law, the Court will grant
summary judgment in favor of Defendants on the federal claims
and refrain from exercising jurisdiction over the state
2015, Defendant Trey Lyons attended a comedy show at a major
venue in the Detroit area. ECF 22-3, PgID 547; ECF 22-4, PgID
596. Although Lyons is a police officer, he was off duty at
the time. ECF 22-7, PgID 645. As Lyons approached the venue,
his car's tire deflated. Id. He then pulled the
car into a parking spot and began to change the tire from an
Plaintiff also attended the comedy show with her husband and
four friends. ECF 19-6, PgID 165, 10:8-15. As the group
looked for parking, they noticed Lyons in the spot next to
his car. ECF 19-6, PgID 168, 22:24-23:3. The driver asked
Lyons to move, but he refused. Id. at 168-69,
24:24-25:12. The driver then began to back into the spot
until Lyons struck the back of the car. Id. at 170,
29:22-25. Upon hearing the strike, the driver exited his car.
Id. at 171, 35:25-36:2. Either then or shortly
after, Lyons identified himself as an off-duty police officer
to diffuse the situation. ECF 22-3, PgID 552. The parties
dispute precisely how things escalated, but it is undisputed
that a physical fight broke out and Lyons fired his personal
ECF 19-2, PgID 89; ECF 22, PgID 441. Although Plaintiff was
not directly involved in the fight, she was struck in the
rear by a stray bullet. ECF 19-6, PgID 177-78, 60:17-61:12.
judgment is proper if there is "no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). A fact is material
for purposes of summary judgment if its resolution would
establish or refute an "essential element of a cause
of action or defense asserted by the parties[.]"
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
considering a motion for summary judgment, the Court must
view the facts and draw all inferences in the light most
favorable to the non-moving party. Stiles ex rel. D.S. v.
Grainger Cty., Tenn., 819 F.3d 834, 848 (6th Cir. 2016).
The Court must then determine "whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). And although
the Court may not make credibility judgments or weigh the
evidence, Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015), a mere "scintilla" of evidence is
insufficient to survive summary judgment; "there must be
evidence on which the jury could reasonably find for the
plaintiff, " Anderson, 477 U.S. at 252.
brings her constitutional claims under 42 U.S.C. § 1983.
ECF 1, PgID 4, 7. Consequently, she must show that her rights
were violated by a person acting under color of state
West v. Atkins, 487 U.S. 42, 48 (1988). A person acts under
color of state law when he exercises power that he possesses
only because he is "clothed with the authority of state
law." Id. at 49. When a police officer is
off-duty, he acts under color of state law when he purports
to exercise official authority. Mooneyhan v.
Hawkins, 129 F.3d 1264, *4 (6th Cir. 1997) (table). An
off-duty officer purports to exercise official authority when
he: (1) invokes his authority to advance a purely private
action; or (2) undertakes an official duty. See, e.g.,
Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.
1975) (officer obligated to intervene in an altercation, used
department-issued weapons, and attempted an arrest);
Pickrel v. City of Springfield, 45 F.3d 1115,
1117-18 (7th Cir. 1995) (officer arrested plaintiffs during
employment as a private security guard while wearing his
police uniform and badge); United States v. Tarpley, 945 F.2d
806, 809 (5th Cir. 1991) (officer beat his wife's former
lover while telling victim he could beat and shoot him
because he was an officer).
Lyons made several decisions that were perhaps improper. But
the action at issue is the firing of his gun during the
physical fight. The fight was private in nature, and there
was no indication that Lyons was duty bound to act. Cf.
McGuire v. City of Royal Oak, 295 Fed.Appx. 736, 737
(6th Cir. 2008) (off-duty officer assisting in
investigation); Stengel, 522 F.2d at 441 (off-duty
officer obligated to stop altercation). The Court therefore
looks to see whether Lyons invoked his authority to advance a
purely private action.
not. Manifestations of official authority include flashing a
badge, identifying oneself as a police officer, or placing an
individual under arrest. Memphis, Tenn. Area Local, Am.
Postal Workers Union, AFL-CIO v. City of Memphis, 361
F.3d 898, 903 (6th Cir. 2004). In Plaintiff's favor,
Lyons identified himself as an off-duty police officer either
at the onset of the altercation or shortly after it started.
ECF 22-3, PgID 552, 26:14-22. Lyons then continued to
identify himself as a police officer as the fight escalated,
ECF 19- 6, PgID 169, 26:2-3, and he even thought he was
acting as a police officer,  ECF 22-3, PgID 552, 27:14-16.
overall, the nature of Lyons's actions were not an
expression of his authority as an officer. Stengel,
522 F.2d at 440 (holding that "the nature of the act
performed" is controlling) (quotation omitted). Instead,
he acted like any other patron at a comedy show might have in
a similar circumstance. See Sanchez v. Crump, 184
F.Supp.2d 649, 656 (E.D. Mich. 2002) (Officer was not acting
under color of state law when his actions were "the
functional equivalent of any private citizen"). He wore
plain clothes, in a public place, while carrying a personal
firearm that anybody could buy. He was then confrontational,
got in a fight that escalated too far, and fired his gun.
None of those actions stemmed from Lyons's position as a
police officer. Although Lyons identified himself as an
officer, he did so to diffuse the situation-not to justify,
advance, or effectuate the firing of his gun. ECF 22-3, PgID
552, 26:23-27:5. Given those facts, Lyons's actions were
not carried out under the color of state law. See Hudson