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The hazards of hiring off-duty police.

IT IS 7:00 P.M. A STORE MANAGER receives a call saying that an off-duty police officer who was hired as a security officer to provide security at the store just seriously injured a customer and himself. The incident arose when the customer wanted a cash refund on merchandise he did not have a receipt for. When the clerk refused, the customer got upset. A fight ensued. While the security officer tried to break up the fight, his gun was fired accidentally, injuring himself and the customer.

Who is responsible for the worker's compensation for the off-duty police officer/security officer? Who is responsible for the customer's injuries?

The demand for off-duty police officers in the private security industry has grown significantly. Hallcrest Report II--Private Security Trends 1970-2000 estimates that approximately 150,000 law enforcement officers are engaged in private security work and earn approximately $1.8 billion a year, making police moonlighting income equal to the combined 1988 revenues of the nation's four largest guard companies.(1)

Many private employers prefer to hire off-duty police officers because they want someone who has received adequate training as well as someone who has the legal authority to make an arrest. They also believe more deference is given to police officers than to private security officers. However, private employers should understand the legal ramifications involved.

In the doctrine of respondeat superior, employers are liable for their employees' actions while they are employed in the firm's business. Employers may even be liable for their employees' actions when employees are not at work or engaged in company business.(2)

However, it is not always apparent who is responsible for an off-duty police officer's tortious act while employed by a private employer. Depending on the circumstances, both the police department and the private employer can be held liable. This is especially true in situations where private security and police officers work together. In some cases, the police officer can be held liable.

A case in New Orleans illustrates how a police department, private employer, and police officer can be held liable for the negligence of an off-duty police officer. In this case, an off-duty police officer for the City of New Orleans Police Department had been employed by a bar in the French Quarter to provide security. One night while the officer was at his post by the door of the bar he heard a call for help from inside and went to investigate. The officer later testified that a man was in a fight, and when he tried to break it up, the man struck the officer in the face. The officer was able to subdue the man and place him in handcuffs.(3)

The man confirmed that he was in a fight because he had been assaulted by another bar patron, but he added that the officer struck him on the head with a billy club without warning and kicked and beat him when he fell to the ground. The man also said that as the officer handcuffed him, he tore his skin and caused heavy bleeding from his side. According to additional testimony, another police officer was on duty but did not help.(4)

The Civil District Court of the Parish of New Orleans concluded that under the circumstances, the police officer had acted in an unreasonable manner and had used excessive force. Furthermore, the court found that the officer "was within the course and scope of his employment with the City of New Orleans" and the bar and, therefore, the officer, the City of New Orleans, and the bar were liable. The plaintiff was awarded $32,515.88--$6,515.88 for medical expenses; $6,000 for loss of wages; and $20,000 for pain and suffering. The court also ruled that the plaintiff was entitled to legal interest and the cost connected with the prosecution of his claim, including the cost of the proceedings.(5)

BECAUSE OF THE LIABILITY PROBLEMS associated with off-duty police officers working part-time security positions, private employers should discuss liability issues with police officers and police departments before hiring officers. The courts have ruled that if an off-duty police officer is working within the scope of his or her employment as a police officer, his or her actions receive the same protection as an officer on duty. It is imperative, therefore, that the police officer understand the difference between the duties of a police officer and those of a private security officer.

If a police officer is negligent while enforcing company policies, for example, the private employer will probably be held liable. However, if an officer arrests an individual who is believed to have killed someone, it is unlikely that the private employer would be held liable if the officer were negligent.

There is a misconception that police officers are acting in an official capacity when in uniform. Even when uniforms and equipment are used by police who are moonlighting, the scope of the officer's employment shifts almost immediately to the private employer. The police officer's authority becomes dormant until he or she is called on to act in an emergency.(6)

Before hiring police officers, private employers should prepare a set of guidelines they can follow. The guidelines should include the officer's duties while employed by the company, who to report problems to, and how to handle situations not considered related to his or her position as a police officer.

Some private security positions could result in injury or death of an off-duty police officer. Worker's compensation is based on the theory of strict liability, which means the employer is responsible for injuries employees sustain during employment without any question of fault. An injured employee must be compensated whether the employer was negligent, the employee was careless, or the accident was unavoidable. The only issues in a worker's compensation case are whether the claimant was an employee acting within the scope of his or her employment at the time of the injury, and if so, how much compensation he or she should receive.(7)

Determining who is responsible for a claim made by an off-duty police officer can be difficult due to the ambiguous status of the officer. Some police departments have tried to eliminate this problem with policy statements. The Arlington County, Virginia, Police Department makes certain that before a private employer hires an off-duty police officer that it has worker's compensation coverage for that officer. The department's policy states that "no employee shall work in any law enforcement capacity for any private individual, private business, or any other secondary employer who does not carry worker's compensation and liability insurance with liability endorsement coverage for the employee in the amounts necessary to protect the employee for acts performed on behalf of the employer or as a police officer to the extent such coverage is reasonably available."(8)

If an agreement does not exist between the police department and the private employer, the court will intervene and determine who is responsible for injuries sustained by the off-duty officer. Some of the determining factors governing liability are:

* Who had control of the officer when the injury occurred?

* Was the officer working within the scope of his or her employment as a police officer?

* Was the officer contracted out to the private employer by the police department?

* Did an emergency require the police officer to leave his or her present status as a private citizen and return to peace officer status?

This last point is illustrated in a couple of cases. In City of Phoenix et al; Employer/Petitioners v. the Industrial Commission of Arizona et al; Respondents, an off-duty police officer working as a security officer at a hotel was shot and killed by a suspect. The officer had been alerted that the suspect was a criminal. The hotel had contacted the police department to request off-duty officers. An administrative law judge found that the officer was an independent contractor of the hotel but that at the time of his death, he was solely an employee of the city.

In its affirmation, the appellate court found that because the hotel did not have the right to control the officer, he was an independent contractor and not an employee. Also, his duty status as an officer changed from off-duty to on-duty when he was alerted that the suspect was a criminal.(9)

In a similar case, City of Hialeah v. Karl H. Weber et. al.; Employee/Carrier/Appellees, the court found that the off-duty police officer should receive worker's compensation from the city for an injury that occurred while working as a security officer for a restaurant. The officer wore a police uniform while performing his job, carried a gun, and sometimes used his patrol car and police car radio. The police officer testified that several times while working at the restaurant he had been called from the restaurant to attend to police matters.

One evening the manager asked the officer to come inside and stand by while the manager asked two customers to leave the premises. The customers left the building and subsequently began to slash the tires of cars parked in a lot across the street from the restaurant. The manager and the police officer confronted them.

The men backed their car into the police officer, striking his left shin and right leg. On review, the court held that the evidence unequivocally established that the claimant was performing his job as a police officer for the city at the time of the injury. The city was held responsible for worker's compensation.(10)

Private employers should not assume that by hiring an off-duty police officer they cannot be held liable for a police officer's tortious acts. Employers should discuss the liability issue with police departments before hiring officers, and worker's compensation should be part of that discussion.

1 William Cunningham and Todd H. Taylor, Private Security and Police in America: The Hallcrest Report (Portland, Oregon: Chancellor Press, 1985).

2 Gion Green and Robert J. Fischer, Introduction to Security, Fourth ed. (Stoneham, Massachusetts: Butterworth-Heinemann Publishers, 1987).

3 Albert J. Reiss, Private Employment of Public Police (Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 1988).

4 Ibid.

5 Ibid.

6 William Cunningham and Todd H. Taylor, Private Security and Police in America: The Hallcrest Report (Portland, Oregon: Chancellor Press, 1985).

7 Prodigy Encyclopedia, 1992.

8 Albert J. Reiss, Private Employment of Public Police (Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 1988).

9 Workers' Compensation Law Reports (1930), (Chicago, Illinois: Commerce Clearinghouse, Inc., 1986), p. 555.

10 Workers' Compensation Law Reports (1931), (Chicago, Illinois: Commerce Clearinghouse, Inc., 1986), p. 555.

Julius C. Trimble, Jr., is loss prevention supervisor for Home Depot, Inc., in Atlanta, Georgia, and a part-time instructor in the Department of Criminal Justice at Georgia State University. He is a member of ASIS.
COPYRIGHT 1993 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Employer Liability
Author:Trimble, Julius C., Jr.
Publication:Security Management
Date:Feb 1, 1993
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