Liability and Operational Implications of Off-Duty Police Employment - p3

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Suggested Guidelines in Light of Liability and Contemporary Circumstances

As was illustrated by the cases and by the legal principles developed above, the liability implications derived from off-duty police employment are both diverse and complicated. While this subject cannot be definitively resolved in this article, certain suggested guidelines may prove helpful. As an initial suggestion, since different states use different tests to assess liability, get to know the applicable test in your state. The answer to this question should trigger policy and operational guidelines as outlined below.

Public Function Test: Issues and Implications

If your state uses the public function test, it is advisable that you take a hard look at the use of secondary employment. While it may not be advisable to absolutely prohibit secondary employment, it is important to understand that the liability exposures inherent in this test are very difficult to effectively limit. This is so because the mere application of an arrest by off-duty police may trigger this liability exposure. Indeed, it may be impossible or at least ill advised to seek to prevent off-duty police from performing acts that may be construed as public functions. This would not foster public safety; it may be construed as bad public policy; and it could be terrible for public relations. In short, preventing the ìpolice from being the policeî while off-duty is a difficult and problematic policy to pursue.

While the municipal government has immunity protectionsóif the arrest or other action was objectively reasonableóthis is still a rather broad potential liability for government, particularly smaller towns and villages. As illustrated in Martin v. Hughes, even when the police officer may not be at fault, defeating the claim before trial is not always possible. In any case, it costs money and resources to defend the claim. One way to limit the exposure is to remove the department from any direct contact with the private employer. This means avoiding the use of Department Contract and the Union Brokerage models and prohibiting the wearing of police uniforms, display of badges, and other police equipment during secondary employment. This should be articulated in agency policies and manifested in the larger custom and practice. Of course, these restrictions will not guarantee a liability free environment; they may, nonetheless, provide for reduced liability exposure.

Scope of Employment Test: Issues and Implications

Effecting liability exposure for states that use this test is less problematic than the public function test. This is so because the department can seek to ìcontract awayî liability by framing any secondary employment as being done with the private entity as the ìemployer.î As illustrated in Lovelace v. Anderson, the department maintained a series of specific restrictions designed to limit its liability. Significantly, agency policy required that in any secondary employment, the police officer acts as a private citizen, without exercising powers and duties of a police officer. In addition, the police officer was not to use police credentials or equipment. For example, Baltimore Police policy language required a police officer engaging in secondary employment to ìobtain a handgun permit from the [state police], when required by secondary employers to be armed as a condition of your employmentî (Lovelace v. Anderson, supra). In this case, officers armed under the authority of the secondary employer has been shown to be very effective. The policy language should also specifically provide that any and all secondary employment can be cancelled by department directive, pursuant to public safety or emergency purposes. Of course, this cancellation provision must be reconciled (and often bargained for) with union bargaining agreements.

While it is generally advisable to maintain the Officer Contract Model for all secondary employment, if this cannot be accomplished, it is advisable to provide various provisions within all contracts with private entities. These agreements should require the private firm to secure appropriate insurance coverage, naming the municipality as an additional insured. The contract should have indemnification and hold harmless provisions in favor of the city, with the private firm assuming any and all liability for damages sustained from the actions of an off-duty officer during secondary employment for the private entity. The contract should also stipulate that the private firm is the ìemployerî for both liability and workersí compensation purposes. Finally, the parties should affirmatively agree that the policing agency has the right to cancel any and all secondary employment or adjust personnel schedules, in the event of a public safety threat or emergency. This provision should specifically preclude any and all liability related to consequential or other damages related to secondary employment.

Future Observations

With the seemingly constant threat of terrorism and its related public safety implications, it seems safe to assert that the widespread use of secondary employment of police officers will be greatly curtailed. Consider that many municipalities are already stretched, both financially and from personnel constraints. At the same time, many cities have had to step up the presence of police officers when terrorist threats are discerned or communicated. Each time this occurs, police decision makers need to assess how many officers are available from current on-duty personnelóand how to deploy the personnel. With the uncertainties related to terrorism, this decision process is sure to be a common occurrence in the years ahead. For purposes of this article, however, the question is this: What effect will this dynamic have on secondary employment?

My answer is it will greatly affect the status quo. Police administrators will be forced to implement alternative scheduling, which may include canceling days off, working 12-hour schedules or extended overtime. These scheduling variations will have the net effect of canceling secondary employment. Even if the intent or the directive is unrelated to secondary employment, the natural consequence of alternative scheduling is to impact secondary employment. How often this occurs is the only real question. If this occurs too frequently, or if a widespread crisis occurs (e.g., World Trade Towers and Katrina), then private firms will move away from hiring police officersósince they will not be there when they need them most. Stated another way, private firms must be able to count on secondary police employment. If threats of terrorism (or successful events) and/or natural disasters occur, the result will be the imposition of alternative police scheduling. When these occur, police personnel will not be able to serve their part-time employer. In police parlance, the police will have to tend to the ìreal job,î and the secondary employers will have to fend for themselves. How often this occurs and the intensity of the consequences will determine the ongoing viability of current police secondary employment practices.

As we prepare for this eventuality, I suggest that we consider increased, if not widespread, use of ìspecial policeî as a substitute for ìoff-dutyî police. The use of ìspecial policeî would allow private employers (and even municipalities) to expand the use of security personnel empowered with ìpolice powers.î These individuals vested with ìspecial policeî designation would be better able to provide security services to a market that may not be able to afford or engage police officers.

In closing, rising crime rates helped create a market for police secondary employment. Paradoxically, the increased threat of terrorism will limit, or even negate, the market for police secondary employment. The market need for security services, however, will not disappear. Indeed, the market will increase, probably substantially. What will change is who will serve this market. I predict that police officers will be too busy with their primary responsibilities to tend to secondary employment. It is time to consider the implications of this assertion. I hope this article triggers such consideration.

Endnotes

₁ For an excellent discussion on this issue, please see Wadman, R. C., & Allison, W. T. (2004).
To protect and to serve: A history of police in America. Upper Saddle River, NJ: Pearson/Prentice Hall.

₂ Reiss, A. J. (1988, December). Private employment of public police. Washington, DC: National Institute of Justice, Office of Justice Programs.

₃ Reiss op. cit. at 2.

₄ Reiss op. cit. at 1.

₅ Reiss op. cit. at 2.

₆ Reiss op. cit. at 3.

₇ Inbau, F. E., Farber, B. J., & Arnold, D. W. (1996). Protective security law. Burlington, MA: Butterworth-Heinemann; and Pastor, J. F. (2003). The privatization of police in America: An analysis and case study. Jefferson, NC: McFarland and Company.

₈ Pastor, J. F. (2006). Security law and methods. Burlington, MA: Butterworth-Heinemann; and Nemeth, C. (2005). Private security and the law. Burlington, MA: Butterworth-Heinemann.

₉ Pastor, op. cit. at 567; and Nemeth op. cit. at 89-94.

₁₀ Morgan v. City of Alvin, 175 S.W.3d 408 (Texas, 1st Dist., 2004).

₁₁ Closen, M. L. (1984). Agency, employment, and partnership law: Contemporary cases and materials. St. Paul, MN: Mason Publishing Company; Pastor, op. cit. at 299.

₁₂ Knight v. City Streets, LLC, 167 S.W.3d 580 (2005).

₁₃ See Black’s Law Dictionary (5th ed.). (1979). St. Paul, MN: West Publishing Company.

₁₄ Pastor, op. cit. at 300.

₁₅ Closen, op cit. at 40.

₁₆ Little v. Omega Meats, 615 S.E.2d 45 (2005).

₁₇ See for example, K. M. v. Publix Supermarkets, Inc., 895 So. 2d 1114 (Florida, 2005).

₁₈ Adorno v. Correctional Services Corporation, 312 F. Supp. 2d 505 (2004).

₁₉ Clifford, M. (2004). Identifying and exploring security essentials. Upper Saddle River, NJ: Prentice Hall.

₂₀ Holtz, L. E. (2001). Contemporary criminal procedure. Longwood, FL: Gould Publications.

₂₁ Holtz, op. cit. at 831-832.

₂₂ Turk v. Iowa West Racing Association, 690 N.W.2d 695 (Iowa, 2004).

₂₃ Martin v. Hughes, 2005 WL 3201336 (Texas, 2005).

₂₄ Lovelace v. Anderson, 785 A.2d 726 (Maryland, 2001).

₂₅ Quoted directly from court decision in Lovelace v. Anderson, 785 A.2d 726 (Maryland, 2001).

₂₆ White v. Revco Discount Drug Centers, 33 S.W.3d 713 (S.C. Tenn., 2000).

₂₇ Melendez v. City of Los Angeles, 63 Cal. App. 4th 1 (California, 2nd Dist., 1998).

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