BELCHER v. STENGEL et al.
No. 75-823.
Argued November 2, 1976
Decided November 30, 1976
Robert A. Bell argued the cause for petitioner. With him on the brief were John L. Francis and Patrick M. McGrath.
John H. Lewis argued the cause and filed a brief for respondents.
Solicitor General Bork, Assistant Attorney General Pottinger, and Walter W. Barnett filed a brief for the United States as amicus curiae urging affirmance.
Michael E. Geltner, Melvin L. Wiilj, Joel M. Gora, Stanley K. Laughlin, and Nelson G. Karl filed a brief for the American Civil Liberties Union et al. as amici curiae.
Per Curiam.
This case grew out of a barroom affray in Columbus, Ohio, in the course of which the petitioner, an off-duty Columbus police officer, shot and killed two people and permanently disabled a third. The injured victim and the representatives of the deceased victims, who are the respondents here, brought an action against the petitioner in a Federal District Court under 42 U. S. C. § 1983. A jury awarded them monetary damages, and the judgment based upon that verdict was affirmed by the United States Court of Appeals for the Sixth Circuit. 522 F. 2d 438.
The petition for certiorari, which we granted on April 5, 1976, 425 U. S. 910, presented a single question:
“Does the fact that an off-duty police officer, out of uniform, is required by police department regulation to carry a weapon at all times, establish that any use of that weapon against the person of another, even though the officer is engaged in private conduct at the time, [is] an act 'under color of law’ within the meaning of 42 U. S. C. § 1983?”
The case having now been fully briefed and orally argued, it appears that the question framed in the petition for certiorari is not in fact presented by the record now before us. For in addition to the said police department regulation, there was evidence before the jury that showed: (1) The petitioner had been awarded workmen’s compensation benefits for the injuries he had received in the affray, on the ground that the injuries had been incurred in the course of his employment; (2) the petitioner, after the affray, had been granted official leave on account of injuries received “in line of duty under circumstances relating to Police duties”; (3) a Board of Inquiry convened to investigate the barroom episode had determined that the petitioner’s “actions were in the line of duty.”
Now that plenary consideration has shed more light on this case than in the nature of things was afforded at the time the petition for certiorari was considered, we have concluded that the writ should be dismissed as improvidently granted. See The Monrosa v. Carbon Black, Inc., 359 U. S. 180, 183-184 (1959).
It is so ordered.
Section 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
At no time during this litigation has the petitioner questioned the respondents’ claim that, if the petitioner was acting “under color of .law,” there was a deprivation of the respondents’ “rights, privileges, or immunities secured by the Constitution and laws” within the meaning of 42 ü. S. C. § 1983.
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