Question for LEOs: Off-Duty Carry and Legal Responsibility


December 30, 2008, 08:46 PM

A former correction officer told me that he did not carry his firearm while off-duty for fear that if he did witness a violent crime in progress, he would be obligated to use it and, if he didn't, might be held liable. This just didn't sound right to me. The point he was making was that off-duty LEOs were putting themselves in potential legal jeopardy simply by carrying a firearm, unlike, say, a private citizen, who would be under no legal obligation (moral perhaps) to use his or her weapon to defend someone else.

So, I was wondering: is an LEO obligated to 1) intervene if a crime is being committed and 2) to use his firearm to prevent a crime, even if he felt that doing so might lead to a worse result? According to one source, James Warner (a police officer) "101 Reasons Why You Should Not Become a Cop," (really, a book for people thinking of becoming a cop),:

"Most police officers will tell you that the best advice when witnessing an off-duty incident is to be a good witness. When officers, dressed in plain clothing become involved in off-duty situations and identify themselves as police officers, the incident usually escalates. .... Although many officers believe that they are required to act in an official capacity on or off duty, courts have established that off-duty officers are not liable when they do not take official action when witnessing a criminal act. The US Supreme Court has ruled that off-duty officers do not have a legal obligation to respond to a criminal violation even when such violation could result in injury to another party."

That seems reasonable enough to me, and would seem to settle the issue. But I don't know. I also think it's reasonable law, too, especially if an LEO thinks that intervention would make the situation worse.

Anyway, this is not intended to begin a debate about why people, citizens or LEOs, should or should not carry, or why you can't count on the police to protect you. I just know that there are LEOs here who might be able to answer this. My own sense is that the claim that an off-duty LEO should NOT carry for fear of being held legally responsible for not using his/her firearm to prevent a (arguably preventable, but that's neither here nor there) crime is false. Is that so?



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December 30, 2008, 09:00 PM
I'll try not to draw this out too much, but you hit the nail on the head with the section you eluded to...."Be a good witness".......but, therein, there is a reason I carry off duty; not only to protect myself but also step up to the plate if needed "in an emergency". NH law is very clear though in it's LANGUAGE, but not it's practice. RSA 627:5 states that deadly force may only be used when the IMMINENT use of deadly force is upon you or a third party. Opening up the "Imminent" pandora's box could take months and months (trust me, the atty.'s are still mulling over this one to this day). I guess what I'm trying to say is it's very much a case by case basis. Ask me personally.....damn right I'm stepping in to help REGARDLESS of the outcome (The old "Better to be judged by 12 than carried by 6"). I would want the same if it was for me and a fellow "brother" was there as well.....IMO

December 30, 2008, 09:20 PM
Thanks - but if for whatever reason you did not choose to intervene, whether your own tactical assessment or nerves or whatever, you would not be held liable for not doing so, would you?

Steve in PA
December 30, 2008, 09:52 PM
Using your friends logic, he would be sued for not carrying a weapon that he lawfully could, which could have been used to stop a crime.

An off-duty LEO or Joe Blow off the street does not have to step in and stop a crime, expecially if it means "committing suicide".

Being a good witness is often the best course of action.

Your former corrections officer friend does not know what he is talking about.

Steve in PA
December 30, 2008, 09:53 PM
Why would you be held liable?

December 30, 2008, 10:17 PM

An LEO, even on duty, isn't obligated to protect anyone from anything. Several supreme and lower court rulings to that effect.

So, I was wondering: is an LEO obligated to 1) intervene if a crime is being committed and 2) to use his firearm to prevent a crime

December 30, 2008, 10:25 PM
Especially as a Correctional Officer I doubt he had any arrest authority or obligation to intervene more than any other citizen. I'm a Correctional Officer and I carry almost everywhere BUT I do so as a citizen NOT as a LEO. My feet would be held to the fire if I intervened in almost any situation using my offical capacity. I doubt very highly my organization would back me up and I would find myself in a very sticky legal situation.

December 31, 2008, 06:44 AM
Thanks for the responses. That's what I thought. This person (not a friend, but an in-law - and overall a good one) is, I'm fairly certain, not supportive of carry rights, or, at least, the usefulness of carry. That's another debate that I hope I don't have to have with him, but this was his oblique way of making that point. But, alas, he was wrong, as I thought he was. It's just plain silly to think that an off-duty LEO would be held liable for NOT using his firearm (if he carried one). It would seem that the LEO who wants to carry off-duty should and then have the option of intervening on the basis of his or her personal assessment of the situation. I do imagine that their status as an LEO would complicate the legal aftermath, but never because they did not intervene.

December 31, 2008, 08:02 AM
Depending on the State and/or agency, a corrections officer might not be considered a LEO (peace officer), but rather a public officer or a custodial officer without carry privileges.

In any event, in CA, we (police) are sworn as 24 hour peace officers and as long as we act within the scope of our duty and within policy, PORAC (hopefully) will cover us with representation and insurance.

That being said, unless there's a life in eminent danger, I would not intervene, heck... I wouldn't even identify myself as a LEO. Be a witness. Call the uniformed guys on duty. That's what they are getting paid for while you are on your own time.

December 31, 2008, 10:27 PM
Depending on the State and/or agency, a corrections officer might not be considered a LEO (peace officer), but rather a public officer or a custodial officer without carry privileges.

It's funny, but non-CO's seem to KNOW more about this issue than CO's.

And LEOSA adds a wrinkle to this facet of the topic that has not been ironed out it would seem.

Not to go off on a tangent--this is not the central issue of the thread by a long shot.

December 31, 2008, 10:54 PM
LEOSA adds a wrinkle to this facet

That legislation has nothing to do with the subject. As an out of state law enforcement officer they have no more power or obligation that any resident.

As far as a duty to act, years ago there was a case involving a failure to act when off duty. It was a civil case and the plaintiff was successful and was awarded damages.

December 31, 2008, 10:58 PM
Only because the COs in CA keep fighting the issue and wanting to be 24 hour peace officers so they can carry off-duty. Then they badge us every chance they get when they get pulled over and ask for professional courtesy.

We also know because we have inhouse jailers who keep pushing for CCWs and always gripe to us about how they don't get CCW endorsements from the Chief.

January 1, 2009, 02:13 AM
The department I worked for, ending in 1991, required me to carry anytime I was within the city limits. I did not live in the city, but could not leave my neighborhood without entering it.
As our SOPs read, if we were to witness an activity or incident that would reasonably be expected to draw a response from an on-duty officer, we had a duty to react. The level of reaction was left somewhat to the officer, as it was taken into consideration that he/she would be without backup, communication, PPE, or other assets that an on-duty officer would have.

January 1, 2009, 02:40 AM
Unfortunately, in litigation happy Kommiefornia, cops who do anything off-duty would become the defendants instantly, if not legally, then administratively... especially if the outcome was not picture perfect.

Even if a cop were to save the day while off-duty and then the perp ended up winging a civilian bystander in the shootout, guess who gets to be a named defendant?

We need something like a good samaritan law for these cases to protect cops who otherwise want to act but end up second guessing themselves because of liability and being afraid their department would sell them out.

Spare me the holier than thou about then you should not be a cop BS. Cops are not afraid to run into danger and put their lives at risk, but they will think twice about putting their job and assets at risk. Thank the 9th Circuit for that.

January 1, 2009, 05:53 AM
"Only because the COs in CA keep fighting the issue and wanting to be 24 hour peace officers so they can carry off-duty. Then they badge us every chance they get when they get pulled over and ask for professional courtesy."

so they can carry off-duty.
THAT is a very valid reason and dovetails with the aims of LEOSA. They aren't seeking unlimited powers of arrest to 'play cop' when they're off duty--are they? I've not run across many CO's that WANT to be anything other than CO's.

Then they badge us every chance they get when they get pulled over and ask for professional courtesy.
ask for professional courtesy
I hope you write the boneheads in that group a citation every chance you get.

(BTW--Happy New Year!)

January 1, 2009, 01:16 PM
The "cops can't be held liable for not doing their job" scenario is very situation driven. I believe the concept was that the police can't be held liable if circumstances delay them from responding to a scene or if someone kills someone after threats are reported. It does NOT relieve a police officer from all responsibility to address a crime/crime in progress.

There is a "duty to act" when witnessing criminal activity on duty. The question is "are you a cop when off duty?". Further, are CO's considered LEO's in a particular location?

What does that mean? You're going to chase down every shoplifter, jay-walker, etc? No, but if someone is about to get killed, and you're in a position to make a difference, you're saying you'd rather watch? There is no requirement to be a kamikaze, on or off duty, but to think someone would watch when they could reasonably make a difference is sickening. Find another job...

Maybe someone slipped me the cool-aid, but from the mighty internet pulpit, that's my .02

January 1, 2009, 01:30 PM
The department I worked for, ending in 1991

That was the norm back in the late 70's and 80's but it changed with the times. Now it is suggested that one carry when it it appropriate. It became a problem when lockers at the local health club were being broken into and personal items were stolen. As one could not carry a handgun into the gym, putting it in a locker wasn't an option and leaving it in a car wasn't any better. Incidents in bars made it obvious that the 24/7 SOP's were not in the department's best interest.

The case in question was from many years ago when a off-duty failed to take any action and was sued civilly. Not sure of the specifics as it was a older case. Each incident would have to be evaluated on a individual basis. There was no way our department mandated action in any case. In fact we were somewhat pissed when one of our people put his family in a somewhat hazardous position instead of just calling for a uniformed response. The outcome would have been the same in either case. In that case, he used somewhat bad judgment but the urge to intercede is strong in many of my people.

January 1, 2009, 04:02 PM
I don't care if the CO wants to carry off-duty as long as it is legal. They don't want to be cops, some can't be cops, some pretend to be cops, some just want to be COs. It's a mix like anything else in life.

The legislature is the one that decided they are not peace officers, so they can fight the legislature to be defined as peace officers. Or... just become a peace officer.

January 1, 2009, 04:09 PM
Castle Rock Vs. Gonzalez

January 1, 2009, 10:10 PM
To me, the reason for a LEO for carrying off duty is even more "common sense" than that.

I'm not a LEO and don't personally know any, so please correct me if I'm wrong here... but to me, if I was a LEO, I'd carry all the time not only for a regular citizen's reasons, but also because I never know if some bozo I talked to some night or maybe arrested is pissed enough to either track me down, or maybe just recognize me on the street and try to exact some revenge since I'm out of uniform.

January 2, 2009, 12:25 AM
That is the most common policy justification for LEO's to be carrying off-duty.

Under CA law, all fully sworn peace officers are given 24 hour status as peace officers.

A peace officer is exempt from the prohibitions of carrying weapons under the law. We don't have permits or whatever, we are just simply exempt so we don't need permits.

However, sadly enough, there are departments that use your argument against some peace officers the same way gun grabbers use against citizens.

I recall a few chiefs having made a statement thusly that reserve (non-24 hour status) officers don't work enough to know or arrest that many criminals so why would they need a CCW to defend themselves? Some also say that they don't want reserves to get in trouble just because they have a gun.

Dumb... dumb... dumb... all it takes is 1 determined criminal to come after you... and if you don't trust the guy with the gun off-duty, you shouldn't let him carry on-duty either.

January 2, 2009, 02:42 AM
The life he saves, could be his own. Bubba may not stay locked up
forever. Fate could poke its ugly head where the inlaw may recognize
him and indeed be armed, with a mind set of damn time to even scores:fire:

January 2, 2009, 02:52 AM
Yep, I have used my weapon to save my skin a few times off duty from those who seek to victimize me... to their chagrin.

Old Guy
January 2, 2009, 04:54 AM
No not an LEO, I have trained plenty, and know lots!

They carry off duty, for exactly the same reason we all do, protection that a concealed pistol gives them.

January 2, 2009, 06:18 AM

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