Roe v. Humke

• Decision Date: 30 October 1997
• Docket Number: No. 96-3952,96-3952
• Parties: Martha ROE, individually and as Mother and next friend of Jane Doe, a minor; Metropolitan National Bank, as Guardian of the Estate of Jane Doe, a minor, Appellants, v. Jack HUMKE, individually and in his official capacity as an officer in the City of Lonoke Police Department; Floyd Van Horn, individually and in his official capacity as Chief of the City of Lonoke Police Department, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1213

128 F.3d 1213

Martha ROE, individually and as Mother and next friend of Jane Doe, a minor; Metropolitan National Bank, as Guardian of the Estate of Jane Doe, a minor, Appellants, v. Jack HUMKE, individually and in his official capacity as an officer in the City of Lonoke Police Department; Floyd Van Horn, individually and in his official capacity as Chief of the City of Lonoke Police Department, Appellees.

No. 96-3952.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1997.

Decided Oct. 30, 1997.

Christopher R. Heil, Little Rock, AR, argued (Morgan E. Welch, on the brief), for Appellants.

Ralph C. Ohm, Hot Springs, AR, argued, for Appellees.

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and BEEZER, ¹ Circuit Judge.

WOLLMAN, Circuit Judge.

Martha Roe, suing individually and as the mother and guardian of Jane Doe, appeals from the district court's ² adverse grant of summary judgment in her 42 U.S.C. § 1983 action. The sole issue on appeal is whether defendant Jack Humke was acting under color of state law at the time he sexually assaulted Jane Doe. We conclude that he was not, and thus we affirm.

Because this is an appeal from the grant of summary judgment, we review the evidence in the light most favorable to Roe, the nonmoving party. See McCormack v. Citibank, N.A., 100 F.3d 532, 534 (8th Cir.1996). At the time of the assault, Jack Humke was employed as a police officer for the city of Lonoke, Arkansas. As part of his duties as a police officer, he worked with the local school, providing security and conducting other programs. Humke met eleven-year-old Jane Doe in 1994 while sitting outside the school in his patrol car and in uniform. Humke was regularly at the school as part of his duties, and he would see Doe and talk to her after school three or four times a week. He occasionally gave her rides home. He bought her candy and sodas and gave her a pen set for Christmas. While he was driving around town in his patrol car, he would drive to Doe's house and talk to Doe from the car. Humke hugged and kissed Doe through the window of the patrol car, explaining that he did it "like a grandfather hugging a granddaughter," and saying that he "didn't pay no attention" when Doe hugged his neck and kissed his cheek. Humke once said that he wished he "were 20 years younger so (he) could get some of" Doe.

While at the school, in his police car and in uniform, Humke several times suggested to Doe and some of her friends that they go to Humke's farm to ride all-terrain vehicles. Doe finally agreed. On Saturday, February 4, 1995, Humke picked up Doe and another minor female at Doe's home. Humke was off-duty at the time, was driving his personal vehicle, was not wearing his uniform or badge, and was not carrying a gun. Humke met with Doe's mother and step-father, whom he had met before and who knew that he was a police officer. He told them where he was taking Doe and what they would be doing and said his purpose was to reassure them that Doe would be safe with him. Doe's parents agreed that she could go with Humke. Humke then took Doe and the other young girl to his farm, where he hugged, kissed, and fondled Doe while riding behind her on the all-terrain vehicle.

Humke did not see Doe again until after school the following Tuesday, when he drove up to her in his patrol car, gave her what she described as a "scary" look, and asked if she had had a good time. Doe stated that she felt Humke was pressuring her not to say anything. Doe's parents eventually learned from Doe what had happened and complained to the Arkansas State Police about Humke's actions. Following an investigation, Humke was terminated from the police department. He subsequently pleaded nolo contendere to a charge of first-degree sexual abuse and was incarcerated.

Roe's lawsuit sought damages based on alleged violations of Doe's Fourteenth Amendment substantive due process rights to liberty and privacy and of her Fourth Amendment right to be free from unreasonable searches and seizures. Roe also sought declaratory and injunctive relief and asserted state law claims.

Humke acknowledged that he was a "goodwill ambassador" for the department with children, that when he talks to children he is trying to get them to trust him, and that it is important for children to learn to trust the police. Humke also acknowledged that he was subject at all times to the Lonoke police department's code of ethics, which meant that he was on duty twenty-four hours a day and subject to discipline for incidents in his private life.

The district court concluded that Humke was not acting under color of state law at the time he assaulted Doe. The court noted that Humke was not on duty at the time, was not in uniform, was not wearing a badge, and was not carrying a weapon. The court concluded that Humke was not engaged in or pretending to engage in acts required of him as part of his official duties as a police officer. The court rejected Doe's argument that Humke had used his position of trust and authority as a police officer to create the situation whereby he could assault her, concluding that "while Officer Humke may certainly have been revered as a police officer" by Doe and her parents, nothing in the record suggested that his actions "were related in a meaningful way either to his governmental status or to the performance of his duties." After granting summary judgment to defendants on the section 1983 claim, the district court declined to exercise supplemental jurisdiction over the state law claims.

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988). We are concerned only with "the second essential element"--whether Humke was acting under color of state law. See id. at 49, 108 S.Ct. at 2255.

"The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " Id. (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). "It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Id. at 49-50, 108 S.Ct. at 2255 (citations omitted). We have explained that "[t]he injury complained of must have been caused by the exercise of some right or privilege created by the state, by a rule of conduct imposed by the state, or by a person for whom the state is responsible." Parker v. Boyer, 93 F.3d 445, 448 (8th Cir.1996) (citing Lugar v. Edmondson Oil Co., Inc. 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982)), cert. denied, --- U.S. ----, 117 S.Ct. 1081, 137 L.Ed.2d 216 (1997).

"It is clear that under 'color' of law means under 'pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945) (plurality opinion). As the First Circuit has said, "[w]hether a police officer is acting under color of state law turns on the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties." Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 515, 133 L.Ed.2d 423 (1995). Absent any actual or purported relationship between the officer's conduct and his duties as a police officer, the officer cannot be acting under color of state law. See id. at 987; Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 950, 136 L.Ed.2d 837 (1997); Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3rd Cir.1994); Pitchell v. Callan, 13 F.3d 545, 548-49 (2d Cir.1994).

Viewing the events of February 4 solely in isolation, Humke was not acting under color of state law because he was neither actually acting in his official capacity or exercising his responsibilities pursuant to state law, nor purporting to so act. Humke took Doe to his farm for his own personal pursuits, not for any purpose legitimately or purportedly related to the exercise of his responsibilities as a police officer. As the district court pointed out, Humke was off-duty, was not wearing his uniform or badge or carrying a gun, and was driving his personal vehicle. Cf. Haberthur v. City of Raymore, Mo., 119 F.3d 720 (8th Cir.1997) (plaintiff sufficiently alleged officer was acting under color of law where officer once followed her home in his police cruiser and threatened to give her a speeding ticket, and later, while he was on duty and in uniform, sexually assaulted her at her place of work).

Nor does Humke's admission that he was subject to the code of ethics transform into action under color of law any of his off-duty actions that were not related to the lawful or purported exercise of his responsibilities as a police officer. See Barna, 42 F.3d at 818 n. 11 (county policy that officers are on-duty 24-hours a day probative of " 'under color' action if the defendant officer allegedly violated the plaintiff's rights while engaging in activities normally associated with the police function"); Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir.1989) (where, pursuant to ordinance, police officer on duty 24-hours a day and...