Armed Officers Off Duty Matthew P. Dolan Attorney Public Agency Training Council

Officer Cornel Young, Jr. Providence P.D. End of Watch: Friday, January 28, 2000

Agency Liability for Failure to Train re: Off Duty Encounters

Young v. City of Providence, 404 F.3d 4, 1st Cir. (2005) “We think, in short, that the jury could find that the department knew that a friendly fire shooting in violation of the Fourth Amendment was a predictable consequence of the PPD's failure to train on on-duty/off-duty interactions, and therefore that the department was deliberately indifferent to Cornel's constitutional rights.” 1st Circuit held: Reasonable jury could find agency liability in that Providence demonstrated deliberate indifference to the clear danger in this instance.

Brown v. Gray, 227 F.3d 1278 10th Cir. (2000) At issue in the case was a policy that required officers to be “always armed and always on duty.” A captain from the Denver Police Department testified that the agency chose consciously not to distinguish off-duty from on-duty use of force because the two were identical. A police practices expert testified that the two circumstances were very different and there should have been distinct training for the off-duty circumstance. 10th Circuit: “Mr. Brown maintained that police officers were not instructed how to take ‘police action’ when they were off-shift and without their uniforms, police vehicles, radios, and other accouterments of law enforcement. He contended that despite the different circumstances presented when an officer is off-shift, the officer training program purposefully did not distinguish between on-shift and off-shift scenarios. Officers were instead told to respond as though they were on-shift in all situations. “

Plain Clothes and Off Duty Officers—Similar Policy Challenges

Ngo v. Storlie 495 F.3d 597 (8th Cir. 2007) 8th Circuit determined that Ngo presented sufficient evidence that his Fourth Amendment rights were violated because the degree of force used against him was not objectively reasonable, because a reasonable officer would have: known that there was a plainclothes officer near the scene would have recognized that the undercover officer did not match the description of the shooting suspect and did not pose an immediate threat, as Ngo was waving his arms above his head, his black hooded sweatshirt was pulled down off his shoulders, partially revealing his bullet-proof vest, the reasonable officer would have seen Ngo fall forward, dropping the pistol on the ground near his right hand. His left hand clutched his chest. His head was up and he was looking directly at the squad car. There was no one besides Ngo and the responding officers in the vicinity. 8th Circuit: The totality of the circumstances show that Storlie's actions were not objectively reasonable.

Wrist Band

Policy and Training Training officers to understand that taking action does not always mean immediate physical intervention (recognizing peril versus need). Acknowledging that action may well be limited by circumstances—is the officer armed? Is the officer accompanied by family members? Has the officer been consuming alcohol? When officers become aware of an incident that poses a threat of serious bodily harm or death to some individual, agencies often require that officers shall take “action” to minimize the risk of serious bodily harm or death. “Action” under this provision tends to be fulfilled by reporting the incident and shall not require the officer to place him or herself in a position of peril.

When physical intervention is deemed necessary under the circumstances: First, go to a safe location and call 911 (in the age of cell phones). Second, when encountering a situation off-duty that seems to require law enforcement action, officer must consciously evaluate whether your involvement is necessary or desirable, given the circumstances. How important and urgent is the need for your intervention? (unlike the lack of distinction in the Denver case) Utilize an off-duty/plainclothes identifier (wristband to be worn on gun hand wrist) or any other clothing or item available that identifies you as a law enforcement officer to responding law enforcement personnel.

A number of circumstances may impact officer’s decision to get involved in any situation. Officer may be alone, with family members or other non-law enforcement personnel. It is unlikely that you will have all of the necessary law enforcement service equipment while off-duty (pepper spray, baton, handcuffs or radio). It must be recognized that the force continuum as well as threat assessment is changed due to this lack of equipment. Environmental factors working against you such as: lack of cover, crowds of civilians, darkness, etc. Your intervention may actually spark an escalation of violence.

Training officers to understand that, in some dangerous situations: a. Gather accurate intelligence like a good witness until uniformed, on-duty officers arrive. b. Remember, you have NO LEGAL OR DEPARTMENTAL/OFFICE obligation to get involved, especially if such intervention places you in a position of peril or such intervention requires that you behave recklessly, carelessly or in a suicidal manner. c. While agency policy mandates that you “take action” when witnessing a serious crime, calling the on-duty police and monitoring the situation from a SAFE vantage point fulfill that obligation.

--Training that recognizes that the decision to take action, beyond simply reporting, is a personal one and is not a requirement of this agency. --Based on the totality of the circumstances as perceived by the officer.

If officer is going to initiate physical intervention, look to: Attempt to have someone call 911 to advise the operator that an off-duty officer is on scene. Have the caller inform if the officer is armed. If possible, have someone describe the off-duty officer and his/her clothing. This will affect the mindset of the responding officers. When uniformed law enforcement officers arrive, badge should be out and visible. (some officers carry only their photo credentials). Verbal self-identification as an officer as well as badge and any other identifying clothing, etc.

Some trainers advise officers to hold their badge next to their gun for the best chance of being seen because the eyes of the responding officers are most likely to go immediately to your drawn firearm. Higher probability of intervening officer staying safe if he/she is able to RE-HOLSTER gun when other officers arrive, unless doing so would put you and the responding officers or innocent civilians, in jeopardy. Until the responding officers sort out who is who, an officer’s gun is his/her greatest personal liability.

If off-duty officer has cover, maintain it If off-duty officer has cover, maintain it. He/she can communicate verbally from there. Making hands visible. Having responding officers see that you are unarmed and non-threatening will work to calm them and protect you. Verbally identify as a police officer —not once and not in a normal tone of voice, but repeatedly and very loud. Keep shouting out: “POLICE! DON’T SHOOT! OFF-DUTY OFFICER!” until you get acknowledgment and directions as to what you should do (and follow the directions). Remember, the noise and excitement of the scene, combined with auditory blocking may prevent responding officers from hearing you initially.

When the responding officers issue commands, follow them promptly and completely. Expect to be treated like a suspect until your law enforcement status is verified. Finally, the most important rule of all: If you have a gun in your hand, NEVER, EVER turn toward an on-duty officer (inclination to scan).

Billington v. Smith (9th Cir. 2002)— Balancing Peril versus Need “The district court assumed that Detective Smith's use of deadly force was reasonable at the moment of the shooting, but denied summary judgment because it found a genuine issue of material fact whether alleged tactical errors made by Detective Smith before the moment of the shooting made his reasonable use of force at that moment unreasonable.” “It is this theory of excessive force that Hennessey's estate advances against Detective Smith's appeal, and the theory is basically that Detective Smith shouldn't have gotten himself into the situation, so he couldn't constitutionally shoot his way out of it.” Although the 9th Circuit finds in favor of the officer, there is significant criticism of his need versus peril assessment—example of an off-duty officer activity that should probably be discouraged by agency policy.

Secondary Employment When officers are engaged in secondary employment which may involve performing security guard or patrol services which may involve the use of law enforcement powers or authority, officers will be attired in their complete police uniforms shall carry all standard on-duty police equipment all police equipment used by the officer during secondary employment carries the same level of responsibility for care and safety as when used on-duty by the officer.

Off Duty Officers and Alcohol

Disclaimer Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This presentation is not intended to constitute legal advice on a specific case.

Thank You! Matthew P. Dolan Attorney Public Agency Training Council 800-365-0119 mdolan@patc.com