By John V. Berry, Esq., Berrylegal.com
In our legal practice of representing federal, state, county and municipal law enforcement officers, we frequently represent police officers in investigative and disciplinary investigations. One of the most common areas in which we represent police officers involves off-duty misconduct. This is one of the biggest growth areas for police misconduct complaints.
Many police officers that we represent and advise come with a common question, which is whether or not they can be disciplined because of actions they take outside of normal duty hours. The answer is yes. We have seen any number of issues arise outside of police officer’s duty that give rise to an off-duty police misconduct complaint. Police agencies generally have the authority to discipline law enforcement officers for off-duty conduct which has a connection to their employment. See Gunville v. DOI, 2013 MSPB LEXIS 5341 (M.S.P.B. Oct. 22, 2013) (termination of federal law enforcement officer upheld due to off duty assault arrest).
Most police departments, in their general or department general orders have a provision which states that a police officer remains a police officer 24 hours a day. This leaves open the door for them to regulate the off-duty conduct of a police officer. Even without such a provision, it is clear that police departments generally have the authority to discipline police officers for “conduct unbecoming a police officer.” This is a general catch all phrase which covers, in theory, most off-duty misconduct.
A typical general order covering “conduct unbecoming” might read as follows:
"Conduct unbecoming an officer, including actions detrimental to good discipline, conduct that would adversely affect the employee’s or the agency’s ability to perform effectively, or violations of any law of the United States, or of any law, municipal ordinance, or regulation of the State."
Examples of Potential Off-Duty Misconduct
While there are any number of potential types of off-duty misconduct cases, some of the more frequent examples include the following:
1. An arrest for an alcohol-related driving offense;
2. An arrest or temporary protective order issued to a police officer (often the result of a spousal/boyfriend/girlfriend complaint to internal affairs);
3. The use of force by an off-duty police officer (which a department can deem to be off-duty when they feel it is appropriate);
4. The loss of a weapon, off-duty, by a police officer;
5. An allegation that an officer has not been honest in his/her dealings with others;
6. Issues involving a police officer’s actions in his/her private life (morality issues, associations with known criminals, etc.);
7. Issues arising from a civil action unrelated to a police officer’s duties (e.g. an officer involved in litigation with others regarding a business or real estate dispute); and
8. Engaging in outside employment without permission.
These are just examples. There are a number of other types of issues that can give rise to off-duty misconduct cases.
Off-Duty Misconduct Defense
When we represent a police officer in an off-duty misconduct charge it is important to line up an officer’s legal defense as early as possible. Some potential defenses to off-duty misconduct include: (1) that there was no nexus between the off-duty issue and the individual’s position as a law enforcement officer; (2) disparate (different) treatment of officers by a police department involving the same alleged off-duty misconduct; (3) the First Amendment (for issues involving speech or association); and (4) infringement by a police department on privacy rights.
In addition, the rules for preparing an effective legal defense change a bit when responding to off-duty misconduct charges. When we defend against on-duty charges we find that most of the information needed to prepare a legal defense is maintained by the department, which makes discovery easier in that it comes from one location. However, in on-duty cases the police department can attempt to keep some information to themselves without disclosing it. In contrast, when dealing with off-duty police misconduct there is usually a lot of information held by third party witnesses and other entities. While it may require more footwork to obtain information held by third parties, the good news is that this can often lead to better information (and more complete disclosure) to use in a police officer's legal defense.
When a law enforcement officer faces issues involving off-duty misconduct, it is important for them to have counsel. Our law firm advises and represents law enforcement officers in administrative defense cases. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070.