Moreover , the Court stated , a historical inquiry did not support a finding that the defense was available to offduty or special duty officers acting as private security guards because immunity was traditionally granted to “ public servants and private individuals engaged in public service ” when they were “ carrying out government responsibilities .”
Additionally , the Court explained that Officer Chung did not show that the policies underpinning qualified immunity warranted invocation of the doctrine . Namely , Officer Chung was not attempting to stop a crime during his encounter with Bracken . Instead , the Court stated , he acted on behalf of the hotel while being paid by the hotel . Thus , the Court concluded that shielding Officer Chung from suit would not advance the policies underlying qualified immunity .
RISK MANAGEMENT CONCERNS ASSOCIATED WITH SECONDARY EMPLOYMENT
The Ninth Circuit has now ruled that law enforcement officers acting as security guards for private entities may be acting under color of law for purposes of federal Section 1983 liability and generally may not be entitled to the potential defense of qualified immunity . This ruling represents the “ worst of all worlds ,” to use a modification of a popular saying .
California law on this issue is governed , in part , by Penal Code section 70 . Section 70 , in pertinent part , provides :
“( d )( 1 ) Nothing in this section precludes a peace officer , as defined in Chapter 4.5 ( commencing with Section 830 ) of Title 3 of Part 2 , from engaging in , or being employed in , casual or part-time employment as a private security guard or patrolman by a private employer while off duty from his or her principal employment and outside his or her regular employment as a peace officer , and exercising the powers of a peace officer concurrently with that employment , provided that all of the following are true :
( A ) The peace officer is in his or her police uniform .
( B ) The casual or part-time employment as a private security guard or patrolman is approved by . . . the city council with jurisdiction over the principal employer or by the council ' s designee . ( C ) The wearing of uniforms and equipment is approved by the principal employer .
( D ) The peace officer is subject to reasonable rules and regulations of the agency for which he or she is a peace officer .
( 2 ) Notwithstanding the above provisions , . . . Any and all civil and criminal liability arising out of the secondary employment of any peace officer pursuant to this subdivision shall be borne by the officer ' s principal employer . The principal employer shall require the secondary employer to enter into an indemnity agreement as a condition of approving casual or part-time employment pursuant to this subdivision .”
In Melendez v . City of Los Angeles , 63 Cal . App . 4th 1 ( 1998 ), a California Court of Appeal held that the City was not liable for the actions of two off-duty LAPD officers when one of the officers shot a partygoer rendering him a paraplegic . Critical to the Court ’ s analysis in determining that the City was not liable for the off-duty officers ’ actions in Melendez was the fact that the requirements of Penal Code section 70 , subdivision ( d ), were not met . Specifically , the off-duty officers were not in uniform and had not received permission from their employer to work as private security guards .
In light of the holding in Bracken , pursuant to federal law , and the potential for liability under state law , as enunciated in Penal Code section 70 and its case law progeny , it is critical that law enforcement agencies review their secondary employment policies and engage in prudent risk management assessments to limit liability exposure derivative of secondary employment . These risk management concerns have long been relegated as an afterthought in evaluation of whether or not to permit an agency ’ s officers to participate in secondary employment . Law enforcement executives are encouraged to consult with their legal advisors to address this area of their policies and procedures to ensure that decisions are made with the best interests of the agency in mind .
Information contained in this article is for general use and does not constitute legal advice . This article is not intended to create , and receipt and review of it does not constitute , an attorneyclient-relationship with the author . ■
WINTER 2017 | California Police Chief 9