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Off-Duty Behavior and Use of Force Issues
Written by Ed Nowicki
Law enforcement officers receive training on the topics of personal safety and survival concerning on-duty law enforcement duties. What happens when officers are off duty? Do the same rules apply?
Chief Paul Geiszler of the Muskego, WI Police Department states, “If officers are alone, they need to be concerned not only for their safety, but also for the safety of any innocent bystanders. If they are with family members or friends, they should be aware of the fact that they could be putting the safety and welfare of these people in jeopardy by taking police action.”
Perhaps the off-duty officers should monitor the situation and act in the capacity of a witness, passing relevant information onto the law enforcement agency from that jurisdiction, unless it is absolutely necessary for them to intervene in order to prevent potential injury to an officer or someone else. Officers should not become involved in any off-duty incident unless adequately equipped with the necessary tools to effectively handle that incident. Do they have their handgun, handcuffs, pepper spray, baton, etc.?
Shannon Bohrer, rangemaster with the Maryland Police and Correctional Training Commission, said, “When you are off duty, it is all right to take action if you have a radio, back up, handcuffs and are armed. In the last 10 years, 10 percent of officers who were killed in the line of duty were off duty. The number of officers injured off duty is unknown. How many are shot? How many are injured in foot chases? How many are forced to retire? These are all unknown. However, if 10 percent of officer deaths are off duty, I would expect the injury rate to be very high.”
Rational thought and a clear head are needed when contemplating any off-duty law enforcement action. This becomes even more important than on-duty action because acting under color of law may be less clear with off-duty actions. Issues involving civil litigation for off-duty actions and workman’s compensation for any sustained injury while off duty suggest the need for careful discretion. Also, officers need to remember that the use of alcohol when involved in an off-duty encounter will certainly impact clarity of thought.
Situations can escalate beyond an officer’s control when off duty. Consider the case of Chicago Police Officer Michael Mette. On Oct. 8, 2005, Officer Mette was arrested in Dubuque, IA, for defending himself. Mette left a party and wanted to avoid a confrontation with 20-year-old Jake Gothard, a highly intoxicated college student. According to Mette, Gothard ran after Mette for a block and a half. Gothard punched Mette multiple times in the chest, which was accompanied by a verbal tirade of threats. Mette said that he decided to stop Gothard’s attack when he punched Gothard once in the jaw.
The police were called and Mette was arrested and charged with assault because he had caused Gothard serious injury. During a 2007 Dubuque County bench trial, Judge Monica Ackley found that Michael Mette “was not the initial aggressor of this incident.” She found Gothard was the aggressor. Difficult to believe, Judge Ackley ruled that Mette was guilty, even after Gothard struck him three times. Judge Ackley said that Mette should have just ignored it and retreated.
Mette spent 346 days in an Iowa prison. His conviction was overturned by an Iowa Appeals Court, which ruled that the sentencing Judge, Monica Ackley, erred by not considering Mette’s self-defense argument. Even Ackley ruled in her original decision that Gothard was the initial aggressor. This off-duty incident almost cost Mette a full five years in prison and his job. Mette is back working the streets as a Chicago police officer. Sometimes being right isn’t enough, especially if you’re off duty.
Officers must realize that they are accountable for their conduct concerning law enforcement actions when off duty. In fact, because they are off duty, they are even more accountable. Their conduct can impact their lives at many levels, as evidenced by the incident involving Officer Mette. Still, agencies and police academies need to provide officers with training concerning off-duty behavior.
Many off-duty police encounters are related to the driving of a motor vehicle. Sergeant Brian Stover of the Los Angeles County Sheriff’s Office says, “Stressing when or when not to take action is imperative. The driver who aggravates the off-duty officer should be ignored by the officer.”
On Sep. 3, 2006, there was a high-level use-of-force case involving an off-duty Coronado, CA police officer. The officer followed a suspected drunk driver who was weaving in and out of freeway traffic at a speed of up to 90 miles per hour, according to the officer. The vehicle followed by the off-duty officer was driven by San Diego Chargers Linebacker Steve Foley.
Foley’s car stopped and Foley slid over to the passenger seat. Then the passenger, 25-year old Lisa Maree Gaut, got into the driver’s seat. The officer fired a warning shot when Gaut steered Foley’s car toward the officer. The officer then fired two rounds at the vehicle. Foley then got out of the car, and the officer fired three shots at Foley, who had put his hand in his waistband as he advanced toward the officer. The officer identified himself as a police officer but admitted that he never showed his badge or police identification.
Subsequently, Foley plead guilty to “driving while under the influence” and was given five years of informal probation. A conditional settlement to Foley’s lawsuit against the city of Coronado for negligence resulted in Foley being paid a $5.5 million settlement by the city of Coronado.
Additionally, the ACLU sent a letter to the California Attorney General’s Office on behalf of 25 local community, religious and civil rights groups criticizing a pattern of questionable police shootings in the San Diego area, asking the State of California to intervene due to the San Diego District Attorney’s “problematic handling of these cases,” including the Steve Foley incident. Remember, this all emanated from an off-duty officer’s direct encounter with a traffic violator. Maybe being a good witness to a suspected drunk driver would have been the more reasonable option?
Sergeant Joe Ferrera of the Southfield, MI Police Department says officers need to be trained for about eight hours during basic recruit training on off-duty issues. He states, “Police recruits should receive training in how to carry equipment off duty, call in an off-duty situation, identify themselves when on-duty officers arrive, follow on-duty officers’ commands, write the off-duty encounter report, and train a loved one on what to do if you become involved in an off-duty incident.
A rare but vital concern is handling an active killer or active shooter while off duty. Other topics include how to handle being stopped by other officers for various reasons when off duty. Specifically, recruits need to understand the necessity of flashing your badge.
Although officers should be proud that they are law enforcement officers, they should also be guarded. The digital age brings about many new off-duty concerns.
Sergeant Tom Gillis of the Alberta, Canada Sheriff’s branch states that social networking Web sites like Facebook possess potential for problems for officers who are not guarded. Officers need to ask themselves, “Would I be as forthcoming with my photo or personal information if this was in print, instead of an electronic representation?”
Dr. Brian Kinnaird, Ph.D., a former law enforcement officer and editor of the ILEETA Use of Force Journal, states, “One of the most important issues is both hyper-vigilance and the lack thereof. Given the dangerous nature of the day-to-day work coupled with the stress inoculation training we receive, it is often instinctive to run toward danger, mindless of our tactical disadvantage.” Dr. Kinnaird heeds words of caution: “Such noble cause can yield disastrous results.”
Ed Nowicki, a nationally recognized police use of force and training expert, is a retired police officer. He is also the executive director emeritus of ILEETA. Ed writes the monthly “Training” column for Law and Order. He can be reached at NCJTC@aol.com.
Published in Law and Order, Feb 2010
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