The reason why cops are allowed to moonlight is simple: it’s a job perk going back to the days when police, like most public employees, were underpaid relative to those in the private sector, and allowed to make some extra money on the side. The same was true for 20 and out pensions, another gimme to compensate for lower current wages that kicked the cost down the road enough for current politicians to proclaim what a great job they were doing saving the taxpayers’ money. It was more palatable than paying them adequately in the first place, or paying them today rather than later.
But then, for many cops, most notably those in cities who enjoy strong unions, those days aren’t even a memory. Pay is comparable to, if not better, than what they could make in the private sector, and a full pension at 42 years of age is the perfect launching platform for the second half of their productive life. Yet, the perk remains.
It’s been a target here for years, Wearing the uniform we bought them, carrying the gun we bought them, and with the power of the badge we pinned on their very proud chest, cops get to sell themselves after hours to the highest bidder. Some get to drive their police cruiser to their rent-a-cop job. All get to be an authorized law enforcement officer for whomever slips them an envelope full of cash at the end of the shift.
Every day, law enforcement officers across the country don their uniforms, strap on their gun belts, and head to work. They carry the equipment and weapons that they have been issued, and they bear the badges that symbolize their authority, but they are not all reporting to the government agency that employs them. Instead, many are “moonlighting.” From directing traffic at a busy church parking lot to making arrests at a packed nightclub to using deadly force, uniformed off-duty officers exercise the full panoply of police powers while working for private employers.
The private employment of off-duty officers blurs the line between private and public policing, raising questions about accountability, officer decision-making, police/community relationships, and the role that police agencies play in modern society. Thus far, however, the employment of off-duty officers by private companies has almost entirely evaded the attention of legal scholars.
What makes this most remarkable is that it’s been in our faces forever, yet few people have given it a second thought. That cop directing traffic at a private event? That cop at the door of the hot nightclub? We take it for granted that it’s just what cops do. Some don’t even realize that they’re moonlighting, as they’re in full uniform as if they’re just doing their job, the one they get paid to do by the public. Oh no. That’s not what they’re doing at all.
The beauty of it all is that they’re still cops, on duty or off. They still get to carry and use the gun. They still get to make arrests. They still get to give commands and beat you if you “resist.” Because a cop is a cop 24/7, regardless of who stuff cash in his pocket.
Leon Neyfakh cuts to the chase in an interview with Seth.
Before I read your paper, I had no idea that police officers were allowed to do off-duty work for private employers while wearing their uniforms and carrying their service weapons. And I had no idea that, as you report in the paper, some agencies require officers to wear their uniforms while working off-duty for private employers.
Where do you live?
Oh, yeah—New York does it.
It just strikes me as crazy, though I’m not sure I can totally explain why.
Because it is crazy. Seth gives a scholarly response to Leon, that it’s counterintuitive and incongruous to people who understand the existence of police to serve the public good. The trench lawyer explanation is not as generous. Strip a cop of the accoutrements of his position, the authority to command and the latitude to do everything wrong and still get away with it, and nobody would pay him. Without the shield, the off-duty cop is just another jerk who thinks he gets to tell people what to do.
But let him, if not require him, to wear his publicly-paid duds, carry a gun with his publicly-paid bullets and wield the badge on behalf of a private employer, and suddenly he’s a valuable commodity. People have to obey his commands, as instructed by his private overlord, because of his public authoritah. When the pastor says make people turn left at the parking lot, the police officer can beat some old church lady who makes a right turn and “resists.” Who else could do that?
Does it turn private commands into the equivalent of public law? You bet it does. Law is no more than what is enforced by governmental fiat, the forceful hand of the police. If the cops enforce the dictates of the guy who hands them the cash-filled envelope, then it’s just as much the law as anything Congress enacts, at least as far as the church lady is concerned.
And when there’s an issue, the cop who beat the church lady and got caught on video screaming “stop resisting” when she did nothing more than make a wrong turn, who is liable for this cop’s abuse? That’s an interesting question.
From your paper it also sounds like there aren’t rules or even conventions for who is held responsible when an off-duty police officer working a private gig does something to get sued.
There’s a tremendous amount of variation and very little consistency here. Some states put the liability for an off-duty officer’s actions squarely on the private employer. Other states tend to suggest the opposite approach—they say the private employer is not liable. As a matter of policy some departments have private employers sign indemnity agreements with the agency before the officer is allowed to work with them. So even though the employment contract is only between the private employer and the officer, in order to approve the off-duty employment, the agency wants to be indemnified so if the officer does get sued, the private employer will pick up the tab.
Some do. Some don’t. Some have policies. Who goes to the pastor to make sure the indemnity agreement has been properly executed before the cop gets his cut of the donation plate?