After a police officer was sued for assault after he broke up a fight while working a security job at sports bar, two Houston attorneys recently convinced a Texas appellate court to dismiss that civil case after finding that the cop’s governmental immunity covered his off-duty position.
In William Helfand and Norman Giles’ win in Moore v. Barker, Richard Moore, an officer with the Humble Police Department, was working an off-duty security job at Coaches Sports Bar & Grill in 2014 when he spotted Justin Barker drinking beer with some of his friends.
According to Moore, he saw Barker and another man at the bar yelling and pushing each other. Barker appeared “highly intoxicated” and Moore saw him throw a punch and attempt to strike the other man, though no contact was made.
Moore announced “Police” while approaching the altercation. As he was trying to separate the men, Moore and Barker fell backward. Moore said he defensively struck Barker while attempting to remove his hand from Moore’s throat.
Barker maintained that the bar fight never got physical and that Moore, without any warning, pulled him backward to the floor and proceeded to punch him in the face seven or eight times. Another peace officer arrested Barker for assaulting a police officer but the Harris County District Attorney’s Office later dismissed the charge against Barker after concluding that although there was probable cause, there were “proof beyond a reasonable doubt issues” about the case.
Barker later sued Moore for assault and gross negligence. Moore responded to the lawsuit by asserting official immunity. Barker argued that the facts did not support Moore’s assertion of immunity and a trial court approved of Barker’s motion to dismiss without explanation.
Moore appealed the decision to Houston’s Fourteenth Court of Appeals. And in a Sept. 12 decision, Justice Marc Brown concluded that official immunity covered Moore while he worked the off-duty job.
“Peace officers retain their status as peace officers twenty-four hours a day. Nor is a peace officer relieved of his duties merely because he is off duty,” Brown wrote.
Brown noted that Moore demonstrated that he observed a physical altercation, announced his official presence by calling out “Police” and made a move to quell the assaultive behavior.
“Once Moore observed Barker physically strike or threaten to strike the other man, he had a duty as a peace officer to intervene in the situation or prevent or suppress the crime,” Brown wrote, reversing and rendering the trial court’s decision and dismissing the case against Moore.
“We felt the evidence was pretty compelling both at the trial and the appellate court level that the officer would not have taken the action if he did not think a crime was in progress and that he was obligated to address it,” said Helfand, of Helfand and Giles, partners in the Houston office of Lewis Brisbois Bisgaard & Smith, who represented Moore on appeal.
Giles said the case is especially important on the Gulf Coast of Texas where officers from other jurisdictions have come to assist police in cities flooded by Hurricane Harvey.
“There are many law enforcement officers that work off-duty jobs and there are many law enforcement officers that are outside of their jurisdictions when they confront crime,” Giles said. “We basically have larger police forces when officers are allowed to address crime when they are off duty. The public is greater protected, and that’s what this case is all about.”
“The whole goal here is immunity represents balancing. And that sometimes people will not be allowed to sue when someone acts on behalf of the government,” Helfand said. “When a police officer sees something, we want them to intervene, and of course, we want them to act.”
Kimberley M. Spurlock, a Humble attorney who represents Barker, did not return a call for comment.