State v. Kurtz
In State v. Kurtz, 78 Ariz. 215, 218, 278 P.2d 406, 408 (1954), several uniformed Phoenix police officers were employed by the operator of the Riverside Ballroom "to preserve order and protect his property while dances were in progress on the premises." 78 Ariz. at 216, 278 P.2d at 407.
One night, the officers' attention turned from the ballroom to a disturbance outside where two girls were being arrested by on-duty officers. Id.
The girls were being placed in a squad car, and, from out of the crowd that had gathered, Walter Kurtz stuck his head inside the car and shouted abusive language. Id.
One of the off-duty officers arrested Kurtz, but William Gorman jumped on the officer's back, pulled him to the ground, and kicked and hit him. Id. at 216-17, 278 P.2d at 407.
Kurtz broke loose, hit another off-duty officer in the head and kneed him in the leg, bringing the officer to the ground. Id. at 217, 278 P.2d at 407.
Kurtz and Gorman were subdued, and subsequently charged and convicted for resisting arrest. Id.
On appeal, they contended that the off-duty officers "were not at that time 'public officers' discharging or attempting to discharge the duties of their office, but were stripped of their official character and capacity and relegated to the status of being servants of the proprietor by whom they were employed ... ." Id.
The Arizona Supreme Court applied the vindication test to determine whether the off-duty officers were acting under official authority or in furtherance of their private employment. Id. at 218, 278 P.2d at 408.
The court considered that the ballroom operator could not and did not control the officers, that the officers had to respond to any emergency calls, that the officers had obtained written authorization from the police chief to accept the off-duty employment, that the officers were in uniform and that the police manual stated that officers were responsible for "taking proper police action on any matter coming to their attention at any time." Id. at 218-19, 278 P.2d at 408.
The court held that it was clear that the officers were vindicating the public right. Id. at 219, 278 P.2d at 408.