The great majority of law enforcement officers are reliable, dedicated people who recognize right from wrong. They also recognize that their law enforcement training, experience and knowledge provides them with unique skills and abilities to function successfully in confrontations while on-duty. Handling those confrontational incidents is part of their job and most officers have been exposed to the risks and consequences of on-duty incidents.
This same training, experience, knowledge and dedication flow into off-duty incidents. While off-duty, officers may encounter situations which cry for some type of law enforcement response. Some have said that there is substantively no difference between on-duty and off-duty incidents, that law enforcement officers are officers 24-7 and that they may take action as off-duty officers as though they are on-duty.
But is this true? Are there legal issues which may impact that concept? Are there personal, departmental and/or municipal exposures which should be identified and considered? Off-duty incidents not only have the potential for similar legal issues as on-duty situations, they also have additional pitfalls not necessarily involved in on-duty encounters. Since off-duty confrontations involve a myriad of factual issues and questions, this article is limited to a brief overview of a few potential risks and a summary of possible issues which may confront officers and departments when dealing with off-duty confrontations. First of all, off-duty officers usually do not have the same equipment available to them as on-duty officers. For example, they normally don’t have marked squad cars, radios or uniforms to help identify themselves as officers, or call for back up. This could lead to the off-duty officer being mistaken for an offender. In fact, some off-duty officers have been killed by on-duty officers responding to the same situation. See, for instance, Young v. City of Providence 404 F. 3d 4 (1st Cir. 2005); Brown v. Gray 227 F. 3d 1278 (10th Cir, 2000).
In addition, there is the customary risk that the off-duty officer will be sued for his actions in enforcing the law. The officer may be exposed to a state civil lawsuit as well as to a federal civil rights lawsuit under 42 USC §1983. Concerning the issue of potential litigation, additional issues arise: Was the officer acting within the scope of his employment? Was he acting under color of law? Is he entitled to workers compensation if injured during the off-duty incident? Are there department rules and regulations which require officers to take action (or prohibit or limit taking action) when off-duty? In the event of a lawsuit, is the officer entitled to indemnity or reimbursement from the department or municipality for any judgment rendered against him? Is he entitled to indemnity or reimbursement for costs of defense, including attorneys’ fees, regardless of the results of the litigation? Under what circumstances is the officer exposed to personal liability? What are the legal duties and responsibilities (as well as exposures) under the tort law of the state in which the officer works? Is the officer covered by insurance? Is the agency or municipality covered by insurance? Is the officer possibly subject to discipline for inappropriate action taken off-duty?
Remember, while off-duty, an officer may be acting within the scope of his employment and under color of law, or he may simply be taking action as a citizen. The former gives rise to potentially having coverage through the employing agency whereas the latter may not. Just because someone is a police officer does not mean that they are acting under color of law. “… [T]he fact that an individual is a police officer does not render all of his actions to be under color of state law. Gibson v. City of Chicago 910 F. 2d 1510, 1516 (7th Cir. 1990). The United States Supreme Court has held that the ‘acts of officers in the ambit of their personal pursuits are plainly excluded.’ Screws v. United States 325 US 91, 111 ….” McCloughan v. City of Springfield 172 F. Supp. 2d 1009, 1014-1015 (C.D. Ill. 2001).
In Stengel v. Belcher 522 F. 3d 438 (6th Cir. 1975) the appellate court upheld a damage award of $800,000 to a paralyzed individual who had been shot by an off-duty officer. Among other things, the Court determined that the officer was acting “under color of law” [one of the requirements for maintaining a civil rights lawsuit under 42 USC §1983]. If an officer is “acting under color of law” then the plaintiff will most likely be able to maintain a §1983 both against the municipality/agency as well as against the officer. The fact that the off-duty officer is acting under color of law does not mean that the department or municipality is automatically liable. The courts do not allow vicarious liability to attach to a municipality in a §1983 action. City of Canton v. Harris 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).
On the other hand, the fact that the off-duty officer is not acting under color of law does not insulate the officer from potential liability, whether criminal or civil. See, for example, damage award for false imprisonment and false arrest of former wife upheld against “off-duty” officer [former husband]. St. John v. United States 240 F. 3d 671 (8th Cir. 2001).
Yet another issue involved in off-duty confrontations is whether the confrontation occurred inside or outside of the officer’s employing jurisdiction. The import of this question goes to the authority of the officer to lawfully take action as a law enforcement officer. What authority officers have when off-duty and outside of their jurisdiction varies from state to state. For example, in Wisconsin, the legislature actually enacted in 2006 a specific statute (namely, Wis. Stats. §175.40(6m) which sets forth statutory authority and requirements for officers who are off-duty and outside their jurisdiction. Among other things, it addresses workers compensation issues; the requirement of implementing and complying with department rules and regulations; and the types of circumstances in which an off-duty officer outside her or his jurisdiction may lawfully take action as an officer. However, some localities have actual ordinances requiring police action. See, for example, Revene v. Charles County Comm’r 882 F. 870, 873 (4th Cir. 1989).
This concept of jurisdiction may also bleed over into the particular department’s rules and regulations concerning taking off-duty action. Some law enforcement agencies allow, by department rule, off-duty officers to take action “within the boundaries of the city ….” In Rodriguez v. City of Milwaukee 957 F. Supp. 1055 (E.D. Wis. 1997) the City of Milwaukee was dismissed from a lawsuit brought by the administrator of an estate of a person who had been killed by off-duty officers. The officers had been working outside the city, actually in another state. The effect of dismissing the federal §1983 lawsuit against the City was to remand the state tort claims against the individual officers back to the state courts.
Yet another issue is the effect of properly identifying oneself as a law enforcement officer when off-duty. The United States Supreme Court has recognized that:
“… Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 US 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
However, it would seem axiomatic that the condition precedent to this right is that the person the officer is arresting or otherwise confronting know,s or has reason to know that the off-duty officer is actually an officer. Some courts have considered this concept of whether or not officers have properly identified themselves as officers when off-duty (or for that matter when in plain clothes or when undercover). See, for example, Lyons v. Adams 257 F. Supp. 2d 1125 (N.D. Ill. 2003); Memphis, Tennessee Area Local, American Postal Workers Union, AFL-CIO v. City of Memphis 361 F. 3d 898 (6th Cir. 2004); Celmer v. Quarberg 56 Wis.2d 581, 203 N.W. 2d 45 (1973).
This article has only scratched the surface of some of the legal issues and risks confronting officers, departments and municipalities when dealing with off-duty confrontations. Certainly, an officer (like any other citizen) does not relinquish any right of self-defense or defense of others which a particular state may lawfully permit. However, the focus of this article has been to give a brief synopsis of the potential questions surrounding off-duty confrontations and the authority and exposure of off-duty officers acting in their status as law enforcement officers.
Accordingly, in light of the myriad and complex issues involved in off-duty confrontations, it is wise to evaluate department policies and training in light of the actual standards, duties and obligations imposed by law.
What does your department policy require of officers when they are off-duty? When taking off-duty action: Are officers entitled to workers compensation? Are they entitled to indemnity and reimbursement for costs of defense? What steps has your department taken to train officers with respect to appropriately identifying themselves as officers when involved in an off-duty confrontation?
These are just some issues which should be considered. There are others. As a final observation, it should be noted that the very nature of off-duty confrontations involves the potential for serious, legal consequences. It is strongly recommended that officers consult legal advisors and local municipal attorneys for guidance concerning these issues. They should be addressed at some point in time–preferably before an incident occurs.
About the Author
Mark Baganz is a former City of Madison, Wisconsin police officer and practicing attorney in the Milwaukee area.