Liability and Operational Implications of Off-Duty Police Employment

James F. Pastor, PhD, JD
Associate Professor of Public Safety, Calumet College of St. Joseph; President, SecureLaw, Ltd.

Those familiar with the police culture know that just as the sun will rise in the east, so will police officers work in part-time positions. It is widely accepted that police officers engage in various forms of part-time work, typically in some “security” function. This practice has existed for decades. This article will address the contemporary legal and societal implications of this age-old practice. In doing so, we will review typical police practices related to off-duty police employment, set out the related legal principles, survey important cases, and then describe how contemporary circumstances may affect these practices. In order to get a better sense of these issues, it is necessary to first take a step back to obtain a historical perspective.

Historical Observations and Operational Models

Historical Observations

As with any historical overview, it is necessary to identify an appropriate starting point to describe the subject. For the reasons explained later in this article, we will commence with the prohibition era. At the close of prohibition, it became clear that police officers were exposed to many corrupting influences, arguably related tothe institutional style of policing common at that time. In order to limit corrupting influences, the rise of police as a “profession” became a widely advocated remedy.₁ As part of this movement toward professionalism, secondary employment of police was often restricted. For example, it was common for police departments to prohibit police officers from wearing their uniforms in an off-duty capacity. Related to this prohibition, a more compelling requirement was also advocated: police officers could not exercise police powers on behalf of private employers.₂ By the 1960s, these restrictions were gradually removed, or it least, relaxed. While the precise reasons for this change are hard to quantify, some factors are apparent. First, as crime rates increased, it became increasingly obvious that police agencies could not meet the demands of private sector employers for uniformed personnel.₃ Businesses were faced with growing crime rates coupled with reduced police presence and response. With this situation, it is understandable that private firms sought to secure their property and environment with uniformed police personnel. As this trend continued, the movement toward employment of off-duty police personnel became widespread.

Early research by Reiss (1988) presents statistical evidence that illustrated the scope of this practice. As far back as 1982, the Seattle Police Department reported that 47% of its 1,002 police officers had work permits for off-duty employment. In addition, Colorado Springs issued work permits to 53% of its 426 officers in 1985, and in 1986, these officers worked 20,000 off-duty hours while in uniform.₄

Private employment of police, however, was not just market-based. Obviously, police officers themselves had a lot of interest in this work. Those who recall the typical police salaries of this era will agree that police were greatly underpaid. At that time, salaries were not nearly as competitive with the private sector compared to those of contemporary America. Indeed, Reiss asserted that police officers from Metro Dade Police Department made more than $4 million in uniformed offduty work in 1986.₅ Without getting into a debate over the relative value of police salaries, most would agree that union negotiations over the past few decades have increased police salaries substantially. Placing oneself back into the context of the 1960s, one is struck by the need of police officers to work secondary employment simply to survive.

At least partly designed to combat the corrupting influences of “street money,” city officials and police administrators may have seen secondary employment as a way to increase police salaries without a corresponding budgetary increase. In this sense, the typical police officer could increase his or her “salary” by working off-duty. At the same time, the temptation to resist corrupting influences was also lessened due to this secondary income stream. Secondary employment, therefore, offered many benefits to city budgets, private employers, police officers and their families, and to their ability to resist corruption through socially and legally acceptable means.

These factors proved to be powerful incentives for a virtual “cottage industry” of private employers. In recent years, many of these employers have been private security firms, who have tapped into a market for highly skilled and trained police officers to perform “security services” to private entities and environments. The functions performed range from preventing and apprehending shoplifters, securing and screening entrances to private facilities, protecting key employees and offices, and the like. For reasons set out later in this article, I predict the widespread use of off-duty police has seen its day. Suffice to say, societal trends, such as the threat of terrorism and the ever-rising liability exposures attending to public safety, will greatly reduce this practice.

Models of Off-Duty Police Employment

It is generally accepted that three specific models illustrate off-duty police employment: (1) the Officer Contract Model, (2) the Union Brokerage Model, and (3) the Department Contract Model.₆

In the Officer Contract Model, each officer acts as his or her own independent contractor. This model is the most fluid, with each officer finding his or her own part-time work. In keeping with this level of independence, each officer contracts for specific employment conditions, such as hours, pay, benefits, etc. If required by the department, each officer is responsible to seek permission to work secondary employment. Typically, the department will grant permission provided that the secondary job meets minimum standards. Finally, the private employer pays the officer directly for the services rendered.

In the Union Brokerage Model, the union or association seeks out paid security details from the private sector. The union also selects police officers, who volunteer for particular assignments. Once the job and the officer are assigned, the union and the department often bargain over the status, pay, and conditions of the paid details.

In the Department Contract Model, the police agency directly contracts with private sector employers. Once the contract details have been determined, the police agency assigns police officers to particular paid details and also pays the officers from funds provided by the private firm. Typically, in order to manage this arrangement, the police agency assigns a secondary employment coordinator to receive detail requests from private firms, issue off-duty work permits, and assign officers to paid details. In most cases, the police agencies also are required, through bargaining unit agreements, to negotiate with the union over pay, conditions, and regulations governing this secondary employment.

As these models illustrate, there is a great deal of difference in how off-duty employment is managed. To most police officers, these differences have no distinction because they simply seek to obtain work. To police administrators and city officials, however, the liability exposures related to secondary employment may be paramount. This stems from the nature of the work and actions of police officers in the performance of secondary employment, however, the widely accepted notion that police are always “on-duty” must be reconciled with the actions of police officers while performing secondary employment. Simply stated, from this perspective, how is it possible to work in an “off-duty” capacity? The answer, from a legal perspective, is determined by two separate approaches: (1) whether the police officer performed public functions in the secondary employment capacity (public function test) or (2) whether the employer at the time of the incident was deemed the municipal government or the private employer (scope of employment test).

Legal Principles and Cases

Public Function (State Actor) Test

In assessing liability exposure for off-duty police actions, some states view the threshold issue as whether the officer performed a “public function.” The classic example of a “public function” is effecting an arrest. Throughout much of recorded history, the act of effecting an arrest, even if performed by private citizens, was done on behalf of government.₇ In this sense, whenever an arrest is made, it inevitably involves governmental power. Furthermore, it is generally understood that the constitutional protections contained in the Bill of Rights were designed to limit the power of the government.₈ In legal parlance, the applicability of these protections is triggered when a “state actor” was involved in the arrest or other incident. State actor is a legal term used to describe government employees, agents, or officials, such as a police officer or some other law enforcement official.

The question of whether an individual acts as a state actor is not as clear-cut as it may appear. When police officers perform their job as on-duty police officers, the answer is straightforward: constitutional protections are applicable. When police officers perform a security function in an “off-duty” capacity, the answer is more complicated. There are a number of criteria that courts use to assess whether an individual acted as a “state actor,” including the following:₉

Whether the security personnel are licensed by the state (or other governmental entity)

• Whether the security personnel acted in cooperation with or by the supervision of public police
• Whether the security personnel were the police working secondary employment (off-duty or moonlighting)
• Whether the security personnel were designated with “special police powers”
• Whether a nexus exists, meaning a significant connection or contact with government
• Whether security personnel were performing a public function, a question that typically hinges on whether the individual was . . .
  • Acting to enforce the law versus merely serving a private interest
  • Wearing a “police-like” uniform, firearm, and other police equipment
  • Identified as the “police”
  • Conducting the arrest on private or public property

Many of these factors relate to nonpolice security personnel. For our purposes, the relevant factors include whether security personnel were actually off-duty police. Even if this is established, it is not determinative. It is also necessary to assess whether the security officer was performing a “public function.” An explanation of these criteria may be helpful.

For purposes of employer liability, the public function question may be controlled by governmental regulations providing that police officers are always on duty. This does not, however, follow that all off-duty acts equate with the duties of a police officer. Some duties may only serve a private employer. Some duties may serve the larger community. This is true even though policing agencies may provide certain requirements to police officers who are off-duty. These often include requiring possession of firearms, adhering to orders from superior officers, being responsive to calls from private citizens, and taking proper police actions. Such requirements on off-duty personnel, however, do not necessarily equate with liability exposure. As a general principle, a municipality is only liable for those acts of an off-duty officer that are performed to serve some larger public function. This usually relates to acts performed to enforce the law or preserve the peace. Liability will not be imposed on the municipality for negligent or willful acts clearly not in furtherance of a public (or official) function. For example, when off-duty actions are motivated solely by personal reasons or for independent malicious purposes, liability exposure generally does not reach the city.

In this public function approach, courts assess all relevant factors related to the incident, including whether the officer was wearing a police uniform and other “police-type” equipment, such as firearms, handcuffs, chemical sprays, batons, and the like. In addition, whether the off-duty police officer was identified as “the police” is a critical factor. Of course, the specific actions taken by the off-duty police officer are also significant. In states that use this test, if an arrest is made, it is often determined as a public function. Conversely, if an act is designed to serve a private employer, then it is not likely to be considered a “public function.” In this way, the typical trigger of city liability is when the police officer acted to serve a public function. Hence, even though the police officer may be employed in a security capacity, if the action was designed to serve a public function, it may be deemed to be made on behalf of the government.

The distinction between a private act and a public function, while sometimes artificial, was aptly articulated by the court in Morgan v. City of Alvin:₁₀

. . . [In] determining status of [the] off-duty police officer, who works for a private employer as a security guard, courts analyze the capacity in which the officer acted at the time he committed acts for which the complaint is made. If the police officer is performing a public duty [function], such as enforcement of general laws, [the] officer’s private employer incurs no vicarious responsibility for that officer’s acts, even though the employer may have directed the activities. But, if the police officer was engaged in protecting employer’s property, ejecting trespassers, or enforcing rules and regulations promulgated by employer, the trier of fact decides whether the officer was acting as [a] public officer or as a servant of the employer.

Scope of Employment Test

The common theme of this test is that the “master” (employer) may be liable for the acts of the “servant” (employee). To answer this question, one must know who is deemed the “employer.” Is it the city or the private firm? A municipality or the private employer (or both) may be vicariously liable for the negligent or wrongful acts committed within the scope of employment.

This test is grounded on the concept of “agency.” This entails a relationship in which one party (agent) is empowered to represent or act for another (principal) under the authority of the principal. Stated more formally, “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” ₁₁ Key components of this relationship include the principal’s right to select the agent, to discharge the agent, and to direct both the work and the manner in which the work is done. The basic elements of agency are as follows:₁₂

• Manifestation by principal that the agent shall act in his or her behalf
• Agent’s acceptance of the undertaking
• Understanding of the parties that the principal is in control of the undertaking

Closely related to agency is the doctrine of respondeat superior, which literally means “let the master answer.”₁₃ This doctrine often shifts liability for the actions of the servant to the master because the servant acted on behalf of the master. Logically this makes sense, because the injury caused by the servant was imbued to the master—due to the servant acting on behalf of the master.₁₄ The doctrine applies only when a master and servant relationship existed at the time of the injury and in respect to the transaction from which it arose. Conversely, the doctrine is not applicable when the injury occurred while the servant was acting outside the legitimate scope of employment.₁₅

For our purposes, the key question related to scope of employment requires that the off-duty officer (servant) does something in furtherance of the duties he or she owes to his or her employer (whether city or private firm), and that the employer is, or could be, exercising some control, directly or indirectly, over the work or activities.₁₆ In this way, the work of the off-duty officer must be fairly and reasonably incident to the employment or logically and naturally connected with the employment. Actions carried out for personal desires or motivations by the servant are not attributable to the master. For example, if an off-duty police officer rapes a woman while he was guarding a parking garage, the rape would not be viewed to have occurred “within the scope of employment.”₁₇ The factors to assess whether the servant acted for the principal (employer), in the scope of employment, are as follows:₁₈

• Time, place, and purpose of the act
• Authorization of the act by the employer
• Common performance of the act by employees on behalf of the employer
• Extent to which employee’s interests were advanced by the act
• Length of departure of the employee from company business for personal interest
• Furnishing of the means and instrumentalities by the employer that inflicted the injury
• The knowledge on the part of the employer that the employee would do the act or had done the act before
• Whether act was motivated, at least in part, to serve the employer
• Whether misconduct of the employee was engendered by events or conditions of employment, such as responsibilities, conditions of workplace, and events at work

In assessing these factors, typically the right to control and the amount of control exercised by the “employer” over the “contractor” is a key to indirect legal responsibility being imposed on the employer.₁₉ In this sense, the more control exercised by a particular party, the more likely the liability for an injury will shift to that party. For example, if the off-duty police officer has a long standing employment relationship with a security firm and an incident occurs during the time the officer was performing security services for that firm, then it is more likely that the private firm will be deemed the employer (for liability purposes). Similarly, if there is evidence of joint control by both the municipality and private firm or if the incident stemmed from a contract between the city and the firm, then liability may be jointly shared by both parties. Conversely, a municipality or private employer is typically not liable for the acts of a police officer that are outside the scope of his or her employment or when those actions are personal or criminal in nature.

1   2   3   Next >

 

SecureLaw, Ltd.    65 West Jackson Blvd., #112, Chicago, IL  60604-3598    Phone: 312-423-6700    Fax: 312-692-2322    © James F. Pastor 2008