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Uniformed officer acted in personal capacity

Despite wearing law enforcement attire including a badge, an officer who appeared at a private business to “look around” was not acting under color of law, the court held.

According to the complaint, Defendant Kimberly Sue Vance, an officer with the Waynesboro Police Department, appeared at the business campus of Plaintiff Nexus Services Inc. while she was off-duty. She drove her personal vehicle, but was wearing a police polo shirt, a gun belt, and a badge around her neck. When a security guard stopped Vance and inquired what she was doing, she replied that she was there to seek home healthcare services. The guard directed her inside based on her statement.

When another employee approached Vance, she informed the employee that she had lied to the guard to gain entrance to Nexus’s campus to “look around.” Vance asked how long the Nexus guard shack had been there. She then drove her vehicle to the rear portion of the Nexus property in an apparent effort to look around the entire campus, though she was there for no more than three minutes. Nexus alleged that Vance appeared on campus on behalf of one of its former employees, a friend of Vance’s.

Vance filed suit against Vance in her official and individual capacities, alleging (1) Fourth Amendment violation via 42 U.S.C. § 1983; (2) state-law trespass; and (3) state-law defamation. Vance moved to dismiss.

Color of state law

Nexus’s Fourth Amendment claim must be dismissed because Vance was not acting under color of state law. To state a claim under § 1983, a plaintiff must show that a violation of a right secured by federal law was committed by a person acting under color of state law. Whether an off-duty police officer acts under color of law turns on the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of her official duties. On one hand, as the 4th Circuit held in Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), an action arising out of purely personally circumstances may not be state action even where a defendant takes advantage of his position as a public officer in other ways. On the other hand, if an individual is possessed of state authority and purports to act under it, her action is state action.

Indicia of official authority – such as Vance’s police shirt – can be helpful to determine whether an individual acted under color of state law, but it is equally true that an officer can be on-duty, in uniform, in the station house itself and still not be acting under color of state law.

In this case, Vance’s action as alleged was purely private: Any private individual could have engaged in the same actions alleged – unlawfully entering Nexus’s campus. There are no allegations that Vance’s status as a police officer enabled her to execute her scheme in a manner that private citizens never could have.


Nexus’s defamation claim must also be dismissed. It alleges that Vance’s presence as a police officer, combined with her statement to the Nexus employee that she was using their office as a ruse to “look around” Nexus’s campus, was defamatory per se because it imputed to Nexus the commission of a crime involving moral turpitude or lack of integrity in conducting its business. For Vance’s words to constitute defamation, they must naturally and presumably be understood by those who hear them as charging a crime.

Even with all inferences drawn in favor of Nexus, the allegations simply do not support such a finding. Vance’s statement of wanting to look around – even made by someone in police garb – cannot be naturally and presumably construed as charging Nexus with a crime.

For the above reasons, Nexus’s claims as to Fourth Amendment violation and defamation are dismissed. The court declines to exercise supplemental jurisdiction over Nexus’s state-law trespass claim. The case shall be stricken from the active docket of the court.

Nexus Services Inc. v. Vance, Case No. 5:17cv72, Jan. 24, 2018; WDVA at Harrisonburg (Urbanski). VLW 018-3-016, 13 pp.