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Liability and Operational Implications of Off-Duty Police Employment

Liability and Operational Implications of Off-Duty Police Employment

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Published by 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.
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.

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Published by: Securelaw, Ltd. on Nov 14, 2009
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 Page 1 of 24
 
SecureLaw Ltd.
65 W. Jackson Blvd., #112, Chicago, IL 60604www.securelaw.info
Liability and Operational Implications of Off-DutyPolice Employment
James F. Pastor, PhD, JDAssociate 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, sowill police officers work in part-time positions. It is widely accepted that police officersengage in various forms of part-time work, typically in some “security” function. Thispractice has existed for decades. This article will address the contemporary legal andsocietal implications of this age-old practice. In doing so, we will review typical policepractices related to off-duty police employment, set out the related legal principles,survey important cases, and then describe how contemporary circumstances may affectthese practices. In order to get a better sense of these issues, it is necessary to first take astep back to obtain a historical perspective.
Historical Observations and Operational ModelsHistorical Observations
As with any historical overview, it is necessary to identify an appropriate starting point todescribe the subject. For the reasons explained later in this article, we will commencewith the prohibition era. At the close of prohibition, it became clear that police officerswere 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 asa “profession” became a widely advocated remedy.
1
As part of this movement towardprofessionalism, secondary employment of police was often restricted. For example, itwas common for police departments to prohibit police officers from wearing theiruniforms in an off-duty capacity. Related to this prohibition, a more compellingrequirement was also advocated: police officers could not exercise police powers onbehalf of private employers.
2
By the 1960s, these restrictions were gradually removed, orit least, relaxed. While the precise reasons for this change are hard to quantify, somefactors are apparent. First, as crime rates increased, it became increasingly obvious thatpolice agencies could not meet the demands of private sector employers for uniformedpersonnel.
3
Businesses were faced with growing crime rates coupled with reduced policepresence and response. With this situation, it is understandable that private firms soughtto secure their property and environment with uniformed police personnel. As this trendcontinued, the movement toward employment of off-duty police personnel becamewidespread.
 
 Page 2 of 24
 
SecureLaw Ltd.
65 W. Jackson Blvd., #112, Chicago, IL 60604www.securelaw.info
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 its1,002 police officers had work permits for off-duty employment. In addition, ColoradoSprings issued work permits to 53% of its 426 officers in 1985, and in 1986, theseofficers worked 20,000 off-duty hours while in uniform.
4
 Private employment of police, however, was not just market-based. Obviously, policeofficers themselves had a lot of interest in this work. Those who recall the typical policesalaries of this era will agree that police were greatly underpaid. At that time, salarieswere not nearly as competitive with the private sector compared to those of contemporaryAmerica. Indeed, Reiss asserted that police officers from Metro Dade Police Departmentmade more than $4 million in uniformed offduty work in 1986.
5
Without getting into adebate over the relative value of police salaries, most would agree that union negotiationsover 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,” cityofficials and police administrators may have seen secondary employment as a way toincrease police salaries without a corresponding budgetary increase. In this sense, thetypical police officer could increase his or her “salary” by working off-duty. At the sametime, the temptation to resist corrupting influences was also lessened due to thissecondary income stream. Secondary employment, therefore, offered many benefits tocity budgets, private employers, police officers and their families, and to their ability toresist corruption through socially and legally acceptable means.These factors proved to be powerful incentives for a virtual “cottage industry” of privateemployers. 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 rangefrom preventing and apprehending shoplifters, securing and screening entrances toprivate facilities, protecting key employees and offices, and the like. For reasons set outlater 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 liabilityexposures 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 DepartmentContract Model.
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 Page 3 of 24
 
SecureLaw Ltd.
65 W. Jackson Blvd., #112, Chicago, IL 60604www.securelaw.info
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. Inkeeping with this level of independence, each officer contracts for specific employmentconditions, such as hours, pay, benefits, etc. If required by the department, each officer isresponsible to seek permission to work secondary employment. Typically, the departmentwill 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 detailsfrom the private sector. The union also selects police officers, who volunteer forparticular assignments. Once the job and the officer are assigned, the union and thedepartment often bargain over the status, pay, and conditions of the paid details.In the Department Contract Model, the police agency directly contracts with privatesector employers. Once the contract details have been determined, the police agencyassigns police officers to particular paid details and also pays the officers from fundsprovided by the private firm. Typically, in order to manage this arrangement, the policeagency assigns a secondary employment coordinator to receive detail requests fromprivate firms, issue off-duty work permits, and assign officers to paid details. In mostcases, the police agencies also are required, through bargaining unit agreements, tonegotiate with the union over pay, conditions, and regulations governing this secondaryemployment.As these models illustrate, there is a great deal of difference in how off-duty employmentis managed. To most police officers, these differences have no distinction because theysimply seek to obtain work. To police administrators and city officials, however, theliability exposures related to secondary employment may be paramount. This stems fromthe nature of the work and actions of police officers in the performance of secondaryemployment, however, the widely accepted notion that police are
always
“on-duty” mustbe reconciled with the actions of police officers while performing secondaryemployment. 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 separateapproaches: (1) whether the police officer performed public functions in the secondaryemployment capacity (public function test) or (2) whether the employer at the time of theincident was deemed the municipal government or the private employer (scope of employment test).
Legal Principles and CasesPublic Function (State Actor) Test
 

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