BY NICOLE FLATOW
When an unnamed officer shot and killed
18-year-old Vonderrit Myers Jr. after stopping him on the street Wednesday
night, he wasn’t “on duty.” But that doesn’t mean he didn’t retain the same
power to act as an officer. When cops go off the clock, they don’t cease to be
cops — particularly in the increasingly prevalent sphere of private security,
in which departments and private firms maintain cozy relationships that blur
the lines between public and private.
Individuals employed as police officers
typically carry their police powers 24 hours a day in their jurisdiction,
whether they’re on the job or not. That includes the power to arrest, use
force, and the power to shoot. But they are explicitly hired to use this power
“off duty” when private firms contract with them to perform security work.
When the St. Louis officer stopped Myers on
the street, he was working a second job for a security company. The vehicle in
which he followed Myers was marked with the name of the company, not a police
car. And scenarios like this are increasingly common. Police officers are
desirable for private security jobs precisely because they carry their training
and police power wherever they go, and many police departments encourage their
cops to take on secondary employment, University of Missouri-St. Louis
criminology professor David Klinger explained to ThinkProgress.
At least in most major cities and counties,
officers are typically required to have those jobs cleared with the police
department, which may set its own rules about how and when cops can take second
jobs. This means police departments consent to have officers acting as law
enforcement officials in these other capacities, Klinger said.
In some cities, police departments even set
up a database in coordination with local employers that officers can access if
they want to work extra hours. John DeCarlo, now a criminal justice professor
at John Jay College, said when he was a police chief in Branford, Connecticut,
his department even acted as a “broker” of sorts, coordinating payments between
private entities and officers for a fee, and considered officers working those
jobs to be working for the police department while they did the private work.
In New York City, under a program called “Paid for Hire,” the NYPD reportedly
gets a 10 percent cut for serving in a similar broker role. Because police
carry their law enforcement authority with them, these gigs are part of a trend
toward privatization of police. And the rules and circumstances are not always
the same.
The St. Louis Metropolitan Department
explained the work of its unnamed officer this way in a statement: “To clarify,
secondary employment allows officers to work security in uniform and carry
their department-issued weapons. The officer, while not on duty for the Police
Department, still has the same responsibilities and power to affect arrest and
the officer operates in the capacity as a St. Louis Police Officer. St. Louis
Police Officers work secondary for securities companies, business
establishments, sporting events, etc.”
This is how second jobs work in many
instances. In others, the private employer or the police department might set
narrower parameters for the officer’s work on that job, Klinger said. They
might say, for example, that an officer guarding a celebrity event is not
permitted to leave the event premises, even to respond to an incident across
the street. But neither Klinger nor DeCarlo thought arrangements like this were
a good idea. Klinger provides the example of officers working security who
witness a rape in progress, or a domestic dispute. “I would want [the officer]
to use the office to protect this individual that is being victimized,” Klinger
said. These are what he calls “non-trivial events” of the sort he said he would
respond to when he was an officer off the clock.
But what if the incident at issue is not an
ongoing emergency, but instead something akin to a police stop? In the St.
Louis case, the officer reportedly saw someone start to run as he was driving
by, and drove toward them to initiate a stop on that basis alone. He may have
had suspicion. But did he need to intervene?
Klinger said as a legal matter, the nature of
the incident is irrelevant. “If you’re a police officer and you see something
that is either illegal or could be illegal, you have lawful authority to make
an inquiry.” In fact, federal law increasingly encourages this type of
behavior. In 2004, Congress passed the Law Enforcement Officer Safety Act,
which permitted cops whether or not they are on duty to carry concealed
firearms anywhere in the country with a few limited exceptions. It was passed
as a post-9/11 anti-terror measure, over the explicit objections of several
police national police organizations and the late Sen. Edward Kennedy. Kennedy
warned that the law is “haphazardly putting more guns on the streets.”
What about as a policy matter?
While officers may be subject to the same
criminal rights and liabilities regardless of who they’re working for, firms
may be subject to different rules and different levels of civil liability. As
the New York Times explained in a 1989 report on the phenomenon, “These private
forces .. are not bound by all of the regulations and civil liberties concerns
imposed on the public police to protect both complainants and defendants. Yet
by hiring off-duty city police, these companies gain access to the power of
arrest and the mantle of official authority that other agencies lack.”
When officers are working second jobs for
which they have gotten approval from their departments, they typically still
wear their police uniform, as the St. Louis officer was when he shot Myers.
This means that individuals perceive these cops as being on duty even though
they are working private jobs. In many instances they are. At one time, New
York City didn’t like the look of this perception, and prohibited officers from
wearing their uniforms while working in the private sector, and also banned
them from working in their own precinct. In fact, until the 1960s, New York
City banned “moonlighting” altogether. But the practice of officers taking
second security jobs is now exceedingly common. And today, NYPD oversees the
“Paid for Hire” program.
Questions remain about what happens if a
victim of police abuse wants to sue. In some cases, the city will take on the
liability no matter what. But in many others, there have been open questions
about whether someone alleging police abuse can bring a civil suit against the
police department or against the the private company, which may be held to
different standards. In one case, an officer was found to be acting under the
color of law when he was working security at a ballpark and arrested an
attendee who wouldn’t stop heckling the players. In other cases, courts have
punted on the question, including in one where a police officer securing a gas
station arrested an Iranian national for trespass after the station allegedly
refused to let him pay for his gas.
As far as criminal liability, Klinger said
questions about the nature of the officer’s off-duty employment might be
considered, but ultimately the law on deadly force “says you’re allowed to
shoot when you’re life’s in jeopardy.” As for department discipline and
accountability, DeCarlo said it doesn’t matter whether police are using their
police power on the clock, or during secondary employment, because they should
be held to the same standards and scrutiny.
“Whether the officer was on duty or off duty,
the question should be was he under color of law stopped in a fair and
judicious manner,” DeCarlo said, noting that the same standards apply to
whether he followed the law on use of deadly force. “If it was a bad shooting,
the department has to own it.”
