Mendez v. County of Los Angeles

38 F. App'x 480

Opinions

ORDER

The Memorandum filed May 10, 2002, is amended as follows: At page 3, line 4, at the end of the second full paragraph, insert the following sentence: “Based on the totality of the circumstances, a jury could conclude that Gray acted under color of state law.”

With this amendment, the petition for rehearing is denied and the petition for rehearing en banc is rejected. Fed. R.App. P. 35, 40.

AMENDED MEMORANDUM

*

The district court erred in granting Gray’s motion for summary judgment on the grounds that he did not act under color of state law during the car chase. A police officer acts under color of law when he “purport[s] or pretend[s] to act in the performance of his ... official duties.” McDade v. West, 223 F.3d 1135, 1140 (9th Cir.2000). This is true even when the officer is “pursuing his own goals and [i]s not in any way subject to control by [his employer].” Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir.1998) (internal quotation marks omitted).

Gray purported to act in the performance of his official duties: He identified himself as a law enforcement officer by flashing his badge and yelling that he was a sheriffs deputy. See Huffman, 147 F.3d at 1058 (off-duty officer who did not identify himself did not act under color of law); Van Ort v. Estate of Stanewich, 92 F.3d 831, 838-40 (9th Cir.1996) (same); Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir.1980) (off-duty officer who identified himself as such acted under color of law). Based on the totality of the circumstances, a jury could conclude that Gray acted under color of state law.

The district court did not err in granting the county’s motion for summary judgment. To prevail on their claim under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), plaintiffs must show that the county’s policy regarding the use of firearms by off-duty officers was the “proximate cause of the section 1983 injury.” Van Ort, 92 F.3d at 837. However, “[a]n unforeseen and abnormal intervention ... breaks the chain of causality, thus shielding the defendant from ... liability.” Id. (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.1989) (quotation marks omitted)). Mendez’s high-speed pursuit of Gray, both on a freeway and on residential streets, was such an “unforeseen and abnormal intervention.”

AFFIRMED in part and REVERSED in part. No costs.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Circuit Rule 36-3.