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A 2002 street fight involving three off-duty San Francisco policemen and two San Francisco residents could set a new 9th U.S. Circuit Court of Appeals precedent on a local government’s liability for the off-duty actions of its police. Snyder v. San Francisco, No. 06-15838. Precedent has generally favored local government. But in oral arguments held last week at the University of California, Berkeley School of Law, lawyers for the two civilians argued that the court should make an exception if an officer’s pattern of behavior makes off-duty misconduct foreseeable. The argument appeared to sway two of the three judges, especially John T. Noonan Jr., who likened the San Francisco Police Department to a pet owner who ignores a pattern of violence and puts the people in his community at risk of getting bitten. Two San Francisco residents, Adam Snyder and Jade Santoro, had accused three off-duty San Francisco police officers � Alex Fagan Jr., David Lee and Matt Tonsing � of attacking them. In a civil suit in San Francisco Superior Court, a jury had awarded the plaintiffs $41,500 in compensatory damages and $4,500 in punitive damages against Fagan and Tonsing. The jury awarded no damages against Lee. All three officers were acquitted of criminal charges stemming from the incident. Last week’s appeal concerned a separate federal suit filed against San Francisco and former Assistant Police Chief Alex Fagan Sr. � Fagan’s father. Judge Jeffrey White of the U.S. District Court for the Northern District of California threw out the plaintiffs’ suit on summary judgment. Dennis Cunningham, Santoro’s attorney, said there should be a “minimum amount of congruence” between the off-duty and on-duty conduct, enough to warrant scrutiny within the police department. In 1996, in Van Ort v. Stanewich, 92 F.3d 831, a 9th Circuit panel found that an off-duty San Diego policeman acted as a private citizen, not as a state actor, during the commission of an armed robbery. Two years later, in Huffman v. Los Angeles, 147 F.3d 1054, another 9th Circuit panel sided with Los Angeles County in a suit involving a drunk deputy sheriff who shot and killed someone during a barroom brawl. Judge Sidney Thomas questioned Snyder’s attorney, John Houston Scott, on whether he would make local governments liable for every incident involving an off-duty police officer. Scott said no, but he distinguished this case from the two earlier 9th Circuit cases. Fagan’s off-duty conduct in the 2002 fight was “virtually identical” to the way he acted when he was on the clock, Scott said. “This was his modus operandi.” David Newdorf, a San Francisco deputy city attorney, countered, “The use of force in carrying out police work . . . is categorically different than off-duty conduct.” As a 14th Amendment case, he said, the plaintiffs’ argument falls short for two reasons: There was no state action involved, and there was no link between the fight and any custom, policy or practice of the police department. “It was three private individuals,” Newdorf said, adding that none of the three had identified himself as a police officer. “If a badge had been displayed, there’s your state action.” Thomas also took the defense to task, wondering whether, if a police department retains the power to discipline officers for off-duty conduct, it would also bear some responsibility for actions off the clock. He asked Newdorf whether he could envision any circumstance in which a municipality would be liable for a police officer’s off-duty conduct. Newdorf said he could, if there was an “affirmative, official policy that said after your shift is over, you have to go out in the street and beat somebody up.”

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