Mendez

ORDER

The Memorandum filed May 10, 2002, is amended as follows: At page 3, line 4, at the end of the second full paragraph, insert the following sentence: “Based on the totality of the circumstances, a jury could conclude that Gray acted under color of state law.”

With this amendment, the petition for rehearing is denied and the petition for rehearing en banc is rejected. Fed. R.App. P. 35, 40.

AMENDED MEMORANDUM *

The district court erred in granting Gray’s motion for summary judgment on the grounds that he did not act under color of state law during the car chase. A police officer acts under color of law when he “purport[s] or pretend[s] to act in the performance of his ... official duties.” McDade v. West, 223 F.3d 1135, 1140 (9th Cir.2000). This is true even when the officer is “pursuing his own goals and [i]s not in any way subject to control by [his employer].” Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir.1998) (internal quotation marks omitted).

Gray purported to act in the performance of his official duties: He identified himself as a law enforcement officer by flashing his badge and yelling that he was a sheriffs deputy. See Huffman, 147 F.3d at…

I dissent as to the majority’s holding that Gray was acting under color of state law because he was “purporting” to act in performance of his official duties. It may well be that Gray made a representation of police authority sufficient to conclude that he was acting under color of law at the time that he flashed his badge and attempted to identify himself to Mendez and Mondragon. However, that does not end the inquiry because we may recognize, looking at the totality of the circumstances, that a point in time has come during an interaction between an off-duty police officer and a member of the public when an officer’s invoked authority ends and he resumes his status as a private citizen. See e.g. Almand v. DeKalb County 103 F.3d 1510 (11th Cir.1997).

Gray fled from Mendez and Mondragon in an attempt to break-off contact with them. At the time that he fled, Mendez and Mondragon were not aware that Gray was a police officer. They proceeded to chase him over city streets for two minutes, reaching speeds up to 60 or 65 miles per hour and running several red lights and stop signs in the process. When Gray ultimately fired on Mendez’ car, it was in reaction to a loud noise which he…