Writ of certiorari is dismissed as improvidently granted, where after briefing and oral argument, it appears that the question framed in the petition is not in fact presented by the record.
Certiorari dismissed. Reported below: 522 F.2d 438.
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. *
[ Footnote * ] 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. Wulf, Joel M. Gora, Stanley K. Laughlin, and Nelson G. Karl filed a brief for the American Civil Liberties Union et al. as amici curiae.
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. 1 A jury awarded them monetary [429 U.S. 118, 119] 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:
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 [429 U.S. 118, 120] granted. See The Monrosa v. Carbon Black, Inc., 359 U.S. 180, 183 -184 (1959).
[ Footnote 2 ] 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 U.S.C. 1983.
MR. CHIEF JUSTICE BURGER, concurring.
I join the opinion of the Court. I note, however, several additional factors which came to light during plenary consideration of the case and which were not disclosed in the petition for certiorari. The three factors mentioned by the Court, ante, at 119, as tending to prove that the police officer acted in the course of his duties, are determinations made after the incident in question. There are, however, at least three contemporaneous factors, in addition to possession of the gun, which colored the officer's conduct as official: (1) The officer testified that he had formed an intention that he would arrest at least two of the men when he stood up to intervene in the altercation; (2) he intervened by using a can of mace issued to him by the police department; (3) he was acting pursuant to a police regulation which required his intervention in any disturbance of the peace, whether he was on or off duty.
These factors seem to me important because of the possible negative inference otherwise created that the only objective fact at the time of the incident evidencing state action was the presence of the state-required gun. While, of course, subsequent determinations by state officials, such as mentioned by the Court, are important evidence of state action, they could not transform something into state action that otherwise would be deemed to be private conduct. Thus, it is unclear what the result would have been had the only contemporaneous evidence of state action been the presence of the state-required gun. I wish to make it clear that the Court is not passing on that question today, because it is not presented by the record in this case. [429 U.S. 118, 121]