A Former Prosecutor Defending Clients in Wyoming and South Dakota
Police officers who are on-duty, in uniform, displaying a badge, and carrying lethal and non-lethal weapons issued by the police department are clearly engaging in law enforcement duties and acting “under color of law.” But what about police officers who are off-duty but still in uniform? Off-duty but working for a private security firm? Or simply acting as private citizens?
If you were placed under arrest and charged with a crime by an off-duty police officer, one of the first questions you might be asking is whether the police officer had the legal authority to arrest you if the officer was not on duty.
In general, Wyoming courts support the idea that a police officer is always on duty. Police officers carry police powers with them 24 hours a day. They have the authority to carry guns, pull you over, use force, and can legally place you under arrest within the boundaries of their jurisdiction. This is true regardless of whether or not the police officer is on duty.
But legal lines can become blurred, especially when off-duty police officers are working second jobs. And police officers often work second jobs providing security for schools, at sporting events, or for other private businesses. In fact, some police departments act as job brokers, connecting willing police officers with private security firms and other businesses in need of security protection.
The laws that address an arrest by an off-duty police officer may seem simple and straight-forward. But in practice, the legal and factual issues that arise when someone is arrested and charged with a crime by an off-duty police officer are extremely complicated.
If an off-duty police officer makes an arrest, there are different ways a defendant can challenge whether the police officer was acting under the proper legal authority.
To start, the United States Supreme Court’s Fourth Amendment decisions recognize 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…” Graham v. Connor, 490 U.S. 386 (1989). This necessarily implies that the person being arrested must know that the person placing them under arrest is, in fact, a police officer.
When an off-duty police officer makes an arrest, he is most likely not in uniform. Even if he identifies himself as a police officer, there is a question as to whether the person being placed under arrest knows that the police officer is acting under color of law.
The question of whether an off-duty police officer can place you under arrest is even less clear if the police officer makes an arrest outside of his jurisdiction.
Anytime a police officer makes an arrest outside of his jurisdiction, regardless of whether he is in uniform, a defendant can challenge whether the officer had the authority to make the arrest.
Because of the complexities surrounding off-duty police officers placing people under arrest, police departments discourage off-duty police officers from acting in their official capacity. The primary exception is if acting would prevent serious bodily or death from occurring.
The policy against off-duty police officers placing people under arrest is largely because arrests by off-duty police officers create complex factual and legal questions. Off-duty officers do not have the same equipment available to them that on-duty officers do, and off-duty police who place a suspect under arrest may be subject to civil liability for their actions.
While off-duty police officers retain their legal authority to place people under arrest, there are reasons they should not arrest people. Similar concerns arise when police officers are working security for private businesses, at schools, or as event security. In addition, these entities are not bound by the same rules and regulations as police departments, and they are not held to the same constitutional standards.
Anytime an off-duty police officer places someone under arrest, an experienced criminal defense lawyer should analyze the police department’s policies regarding off-duty police officers, whether the officer was engaging in activities that are typically carried out by a police officer, and whether the person being arrested knew the off-duty police officer was acting under color of law.
If you were arrested by an off-duty police officer and were charged with a crime, it is critical that you work with an experienced criminal defense attorney. Because the arrest involved an off-duty police officer, you may have additional legal defenses available. An experienced criminal defense attorney will review and analyze the unique circumstances of your arrest, and can challenge whether the off-duty police officer had the authority to place you under arrest. Even if the police officer did have the proper legal authority, there may be other defenses available. A criminal defense lawyer will investigate the circumstances of your arrest, fight to protect your rights, and raise any factual and legal defenses to protect your one shot at justice.
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DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.