While investigators are still collecting facts for the manslaughter case filed against Dallas police Officer Amber Guyger and the outcome is unknowable, one thing is almost certain: Someone will be called upon to pay for the death of Botham Jean, if not in criminal court, then in a civil case.
With protests over Jean's killing happening almost daily and his family in mourning, the question on many minds is, "Will Guyger pay a price?" A future civil suit might settle that question more literally.
Guyger had just come off duty when, she says, she accidentally parked on the wrong floor of her apartment building at South Side Flats on Lamar Street on Sept. 6. Still in uniform, she walked down a fourth-floor hallway nearly identical to one on the third floor, where she lived, and went to the door of Jean's apartment, thinking it was her own. She confronted Jean inside his apartment and shot him by mistake, she says.
Should Dallas taxpayers be held liable to pay in any potential civil suit? That would be a hard case to make, according to some experts.
For most jobs, clocking out means freedom from the onus of work. For police officers, the distinction between being “on-duty” and “off-duty” is a bit more complicated.
“‘On-duty’ and ‘off-duty’ makes it sound simple, but you have instances where officers are off-duty but they’re working a part-time security job or maybe they witness a bank robbery,” said Don Tittle, a Texas personal injury attorney who has handled police-related civil rights cases. “In that moment they’ve sort of gone back on-duty. They’re in the line of duty, and that’s where there’s a gray area.”
In a 2006 Cleveland case, an off-duty police officer was working security for a ballpark when he arrested a man for heckling. The court found that although he was off-duty, he was still acting under the scope of his job as a police officer because he placed a man under arrest and was in full uniform.
In another case, a security guard for a Texas apartment complex was accused of using excessive force when he arrested the plaintiff. The court ultimately found that the city was not liable because the officer was working for a private security company during the arrest.
If Dallas does face liability, it would have to prove that Guyger was not acting under the scope of her employment to the city.
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According to civil litigation lawyer Micah Dortch, that would be easier than what the plaintiff might have to prove — that any time a Texas police officer uses a gun, she's working under the scope of her employment.
“If she was at Whataburger and saw a robber and drew her gun to protect people, nobody would argue that she was under the scope of her job,” Dortch said. "I could argue there’s no difference between her trying to protect her private property and her trying to protect the property at Whataburger. That’s what the plaintiff would have to prove.”
A lawsuit has not been filed at this time. Whatever the city's position, Guyger will likely be on the defense if one comes.
"Guyger would almost certainly have civil liability at least individually," Tittle said. "The question then becomes whether the city will indemnify [pay] any judgment against her. It’s my opinion that they probably wouldn’t be legally bound, although they might choose to do so because of external pressure ... all of this is dependent on what the facts show as to what actually happened."