How courts grant qualified immunity to police officers accused of off-duty misconduct Clutch Fire

HOUSTON — Shanita Terrell believes someone spiked her drink the night she stopped by a Houston bar in 2020. Intoxicated and disoriented, she remembers little of what happened after that. A married mother of two who had recently moved to the city, Terrell did not know the Harris County Sheriff’s Office deputy who approached her in full uniform. Deputy Mark Cannon, working off-duty as a security guard at the bar, handed her a bottle of water before escorting her outside and encouraging her to go home with another law enforcement officer – a man she did not know. Hours later, Terrell woke up in pain.

What happened in between — reconstructed through the plaintiff’s allegations in court records and disciplinary rulings in police internal affairs files — raises questions about the supervision of law enforcement officers in off-duty environments and what recourse citizens have when something goes wrong.

After Terrell had become visibly disoriented, her cousin, a waitress at the bar, texted Deputy Cannon, asking that he “take care of her.” Police records show Cannon did not call a ride-share vehicle, did not ask for medical help and did not keep her in public view. Instead, he walked her outside, failed to activate his body camera as required by department policy, and pulled out his personal cellphone to record while he directed her into the front seat of the other off-duty deputy’s patrol car. That deputy, Michael Hines, was still in uniform.

“You’re getting a free ride,” Cannon told her.

“No, I’m not,” she responded.

Internal Affairs investigators reviewing the cellphone video later noted Cannon laughed and added the parting words, “See you in the morning.”

Terrell woke up the next morning with pain in her vaginal area. She went to a local hospital for a rape kit, which revealed Hines’ DNA was present on her underwear. Hines was charged with sexual assault and later pleaded guilty to attempted sexual assault. Terrell said she believes Hines should have gone to jail, but instead he was sentenced to six years of probation.

Terrell also sought to hold both the bar and Deputy Cannon accountable. She sued The Address bar in state court and, according to her attorney, reached a confidential settlement. When Terrell sued Cannon for his role in the incident, her lawsuit was dismissed. The reason: Cannon’s job as a law enforcement officer provided protection from civil lawsuits that normal civilian employees do not receive. In Texas, even while working in an off-duty capacity, officers can claim the legal doctrine of “qualified immunity.”

While some states’ legislatures have banned qualified immunity for officers, even for actions taken while working their regular police jobs, a joint investigation from the Howard Center for Investigative Journalism at Arizona State University and CBS News found the nation’s courts are split on what to do when officers go to work for private businesses to earn extra money. As a result, in many states, if an officer violates the law while “moonlighting,” there is an increased chance they – and even the business – can limit or entirely avoid civil penalties when something goes wrong.

In the Texas case involving Terrell, an internal affairs investigation concluded Deputy Cannon violated multiple department policies, including failing to activate his body camera, allowing a civilian to sit in the front of a patrol vehicle, and using personal equipment instead of department-issued tools to record the interaction. He was handed a 10-day unpaid suspension, a 180-day disciplinary probation, and a temporary 90-day ban on off-duty work.

It was Cannon’s third suspension in a year, all for violations of policy while working different off-duty jobs, prompting superiors to write that he demonstrated “an inability or unwillingness to comply with the rules and regulations that govern this agency.”

CBS News reached out multiple times over the past four months to phone numbers and email addresses listed for Cannon but received no response. CBS News also contacted the Harris County attorneys who represented Cannon in the civil case; they have not responded either.

After the court’s dismissal of the civil case against Cannon, Terrell appealed. But the United States Court of Appeals for the Fifth Circuit, which oversees federal lawsuits in Texas, Louisiana and Mississippi, agreed Cannon was entitled to qualified immunity.

“I felt like nobody was going to protect me,” Terrell said, after appealing the case and losing again.

Terrell’s case is part of a broader national pattern. An investigation by the Howard Center for Investigative Journalism at Arizona State University, and CBS News identified more than 40 cases filed over the past decade in which moonlighting police officers — often working private security jobs — invoked the legal doctrine of qualified immunity to insulate them from accusations of misconduct.

The investigation found that in most of the cases reviewed, courts — initially or on appeal — granted full or partial immunity when officers were working off duty. The doctrine applied when allegations included wrongful arrest, excessive force, sexual assault, and even death. And even when lower courts denied immunity, many officers prevailed on appeal.

The protections of qualified immunity persisted even when the officer’s police supervisors provided little oversight over off-duty work. A CBS News-Howard Center survey of 130 law enforcement agencies found that most departments don’t track officers’ off-duty work — and many don’t apply the same accountability standards when officers are working for private employers.

The investigation also found that immunity for off duty officers depends heavily on where they work. Judges in some parts of the country have begun to crack down on the immunity defense, while in other areas, police enjoy broad immunity.

Robin Foster, attorney for Harris County Deputies’ Organization, said qualified immunity protects police officers from personal liability in civil lawsuits, allowing them to perform their duties without fear of legal repercussions in high-pressure situations. She added that the protection should apply equally to officers whether they are on duty or working off-duty security jobs.

“They are not off-duty because a peace officer is on-duty 24/7,” Foster said.

Some legal experts say the use of qualified immunity in these off-duty jobs, where officers are paid and directed by private businesses, distorts the original intent of the legal doctrine.

Seth Stoughton, a professor at the University of South Carolina School of Law and former police officer, recognizes the legal dilemmas.

“We’re now protecting a public official in a purely private capacity,” said Stoughton. “It’s all cost, but no actual benefit to the public. And that’s a problem.”

The Harris County Sheriff’s Office declined an interview request regarding the case involving Cannon and Hines but provided its policy on deputies’ off-duty employment, noting that all departmental policies are publicly available online.

National pattern of off duty police claiming qualified immunity

Private employers like bars, retail stores and security firms have enjoyed an added layer of protection when an incident involves an off-duty officer, the CBS News-Howard Center review of dozens of cases found. At bars and nightclubs in Texas and Alabama; shopping centers and hospitals in Ohio and Kentucky; concert venues and apartment complexes in Massachusetts and Arkansas; victims’ lawsuits alleging they were wrongfully detained, beaten or sexually assaulted failed. In five cases where someone died, courts granted at least partial immunity to the officer involved. A sixth lawsuit for wrongful death against an off-duty police officer, filed in October 2024 in Ohio, is still pending.

One of those who sued was Gustavo Santander.

In 2022, Santander was walking through the crowded West 7th entertainment district in Fort Worth, Texas, trying to meet up with his wife. When he stepped toward a set of stairs outside a bar, staff told him he couldn’t go that way. So, Santander used another entrance. He turned to walk away, according to an internal affairs investigation that cited surveillance video of the incident.

That’s when he felt a shove from behind. Fort Worth Police Officer Jose Salazar — who was in uniform but working off-duty as bar security — pushed him to the ground, the footage shows.

When Santander stood and questioned what was happening, an altercation ensued and Salazar punched him in the face. Santander went down.

“It was pretty much lights out,” Santander said. “When I woke up I was already in handcuffs and three more officers around me.”

Santander, who says he had not been drinking and never entered the bar, was arrested and charged with public intoxication by the officer who struck him. He spent the night in jail. It was not until internal affairs investigators reviewed video from police surveillance cameras across the street that that they discovered Salazar omitted significant details from his report and jail affidavit.

The video shows Santander walking away when Officer Salazar pushes him from behind, knocking him to the ground. Santander gets up and approaches with his hands at his sides. Salazar grabs his arm, and Santander pushes him. The Fort Worth officer then punches Santander in the face, causing him to fall and hit his head on the concrete.

However, in his report, the officer did not mention his initial shove from behind. He wrote that he moved Santander aside, prompting him to turn and “square up in a fighting stance.”

The police department’s investigators concluded, “the video footage of the incident directly conflicts” with the officer’s arrest report. Officer Salazar received an “indefinite suspension,” but was never criminally charged.

When Santander sued, a judge dismissed the lawsuit, granting Salazar qualified immunity.

Santander appealed. This past April — more than two years after the incident — the Fifth Circuit partially reversed the lower court ruling. The appellate judges upheld qualified immunity for the false arrest and malicious prosecution claims but said excessive force allegations could move forward. In October, Santander reached a settlement with Salazar, ending the three-year court process. CBS News contacted Salazar’s attorney, Kenneth East, who responded via email: “I have no comment on that case at this time.”

“To now be able to come back to court, actually get a settlement holding this officer financially responsible and holding the city financially responsible, essentially, that means a lot,” said Blerim Elmazi, attorney for Santander.

“To know that an appeals court has your back on that issue, it’s a good sign,” added Elmazi. “There’s still a lot of work to do, but it’s a step in the right direction.”

Federal precedent and a legal patchwork

Santander’s case falls under the jurisdiction of the Fifth Circuit Court of Appeals, which hears disputes over federal law in Texas, Louisiana and Mississippi. In 2017, the Ninth Circuit Court of Appeals — which oversees federal courts in Arizona, California, and seven other western states — ruled officers working off-duty as private security are not automatically entitled to qualified immunity.

The case involved a Honolulu police officer hired as security at a hotel’s New Year’s Eve party. When a hotel guest named Dillon Bracken was allegedly assaulted, the off-duty officer — who stood by and did not intervene — was sued for failing to protect the man’s rights.

The district court in Honolulu found the officer was entitled to qualified immunity, but Bracken successfully appealed, leading the city to settle for $100,000 in May 2018.

“The facts of the case and applicable law, finds that it is in the best interest of the City to settle the above-referenced lawsuit for the total sum of $100,000 to be paid by the City,” wrote the legal affairs committee chair to the head of the Honolulu City Council.

The Ninth Circuit Court found the officer’s actions were “on behalf of the hotel, at the hotel’s direction and while being paid by the hotel.” The judges explained that traditionally, they found immunity applied only when officers were “carrying out government responsibilities.”

The ruling was a break in tradition – an indication that courts may no longer be willing to shield officer misconduct during off-duty work. While the decision applies within the states covered by the Ninth Circuit, no such precedent exists in other parts of the nation.

In Terrell’s case, the judge determined the off-duty officer’s decision to place her in a fellow officer’s care was “consistent with [his] duties as a peace officer to prevent a potential crime and harm.”

“So they maintain qualified immunity,” said Stoughton.

In 2021, the family of Brian Simms Jr. — a young man shot and killed by off-duty Oklahoma City officer Paul Galyon, who was working concert security — tried to challenge qualified immunity for off-duty work at the Tenth Circuit. The officer had been hired by a private firm to work the 2013 event and was not responding to any police call when he walked past Simms – possibly asleep in his car outside the venue — and shouted to wake him. Rattled, Simms put his hand on the gun at his waist, leading the off-duty officer to fire nine shots, killing Simms. In the appeal, attorneys argued that a moonlighting officer shouldn’t be able to claim qualified immunity. But the court declined to revisit the immunity issue, instead ruling the argument should have been raised earlier in the trial process.

The judges noted in their opinion that “whether an off-duty officer may assert qualified immunity therefore remains open in this circuit.”

Stoughton points to the balance between protecting officers and holding them accountable in off-duty work.

“We want officers to be able to use their public authority and walk right up to the constitutional line. But the only way to get them to walk up to that line is to not punish them too much when they step over a little bit. If we punish them as soon as they step over the line, then they’ll not go all the way up to the line, right?” said Stoughton.

State-level reforms amid federal gridlock

As federal courts debate whether off-duty officers should receive qualified immunity, some states have tried to change their laws.

Since 2020, states including Colorado and New Mexico — along with New York City — have passed laws or ordinances to limit or eliminate qualified immunity in civil rights cases. These measures allow people to bring lawsuits in state courts, bypassing the federal immunity defense.

In June 2020, Colorado lawmakers passed a law prohibiting law enforcement officers from using qualified immunity as a defense in civil rights lawsuits brought under state law.

“It gave victims, their families, the ability to seek recourse, the ability to seek justice in a system that oftentimes doesn’t work for them,” said former state Rep. Serena Gonzales-Gutierrez, a primary sponsor of the bill. Gonzales-Gutierrez is currently a city council member in Denver.

Lawmakers in at least 28 other states have introduced similar legislation. So far, those bills have stalled in the face of opposition from some police agencies and their unions.

“If we had a judicial system where we didn’t have qualified immunity, it would be extremely difficult to get people to want to do this job because every time you make an arrest or pull someone over for speeding and they want to sue you, they will.” said Foster, with Harris County Deputies’ Organization.

But state laws that do pass may have limited reach. State lawmakers do not control what happens in federal court. And because federal appellate courts remain divided on the issue, whether a case can succeed in court may depend on something as simple as the state where the incident happened.

An off-duty officer working security in Honolulu might not benefit from qualified immunity. But the same off-duty officer in Fort Worth, or Oklahoma City, is more likely to have those protections.

Right now, geography plays a major part in shaping the outcome of cases addressing off-duty police abuses – even when police agencies agree their officers broke the rules.

“Just hear my side,” Terrell said. “Just know how I feel, know what I live with every day, know what I go through every day and not just push it to the side like I’m nobody.”