The Blurred Blue Line

When police officers take off-duty jobs, do they work for the people, or are they guns for hire?

off duty cop at club.
Many police officers moonlight in their off-duty hours, and this little-discussed practice raises a number of thorny issues.

Photo illustation by Slate. Images by Romaniaboy/Thinkstock, moodboard/Thinkstock, and Jupiterimages/Thinkstock.

The debate over law enforcement that’s been raging in America for the past two years has naturally focused on the decisions police officers make when they’re working—not what they do after they punch out for the day. But a new paper by law professor Seth Stoughton, posted online this week in draft form, makes the argument that we’ve been ignoring an important aspect of policing—namely, the massive amount of moonlighting that cops do for private companies when they’re off duty.

For Stoughton, who teaches at the University of South Carolina School of Law, this is a consequential oversight—particularly because, as he learned when he was a police officer in Tallahassee, Florida, and did moonlighting work for nightclubs and other private entities, officers who take these kinds of gigs typically wear their official police uniforms, further blurring the public’s understanding of whether they are on duty or off and whether that matters.

Stoughton sent survey questions to about 400 police agencies at the state, county, and city levels, asking them about their policies regarding off-duty work and the amount of time their officers spend doing it. Stoughton got answers from 162 of the agencies, which in total employ about a fifth of the nation’s police officers.

I talked with Stoughton about why it’s so troubling to think of police officers selling their law enforcement authority to private companies, how prevalent the practice is, and how off-duty opportunities affect the salaries that police departments pay their cops. The conversation has been edited and condensed for clarity.

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?

New York.

Oh, yeah—New York does it.

It just strikes me as crazy, though I’m not sure I can totally explain why. You’ve thought about this for longer, so maybe you can tell me: What is it that feels intuitively wrong about this?

I’ve gotten this reaction a lot while talking to people about this phenomenon. I think people react negatively because we think of policing as a public good. It’s counterintuitive and incongruous to think of a public police officer who is being paid by, and working on behalf of, a private employer. It’s just not what they do, right? Fundamentally it doesn’t line up with our intuitive conception of what policing is.

I knew officers sometimes took off-duty gigs, working as bouncers or security guards. But the idea that they’d be in uniform is shocking to me. Does that mean that off-duty officers doing freelance work are allowed to do all the same stuff they can do when they’re on duty, like arrest people and search them and use force on them?

Yeah, absolutely. In fact, part of the reason why private employers hire them is that they’re perceived as more official than private security guards. The police officer who’s working off-duty for a private employer represents the state. They’re in uniform, they have a badge, they have a gun belt. They may have a marked police vehicle with them. So in a very real sense they represent the arm of the state.

It seems unfair that someone can just rent out that kind of authority. Like, could a bunch of wealthy people who live in a neighborhood pool their money and hire a cop to patrol their streets? It seems like police resources shouldn’t be allocated based on who can afford to pay for them.

Right. Well, that’s exactly what happens. In fact, one of the stories I open the article with is about an officer who was paid by a security company that had been hired by a neighborhood. Policing is typically thought of as inherently redistributive. The neighborhoods that pay for most of the policing in a given city are not the neighborhoods that are on the receiving end of most police services. The higher-income neighborhoods that have a higher tax bracket pay more, but most of the policing happens in the lower-income neighborhoods. So when you have private businesses, neighborhoods, even potentially private individuals hiring police, it cuts against that general approach of police as a public good that serves all of the citizenry without regard for anyone’s ability to pay.

What kind of work are most of these officers doing when they’re hired by private companies?

My survey wasn’t that specific, but my sense is most of it is security work. Some of that might be bouncing at a nightclub, but some of it might just be standing by at a party. If there’s a large public event, they might have an officer just standing by in case there are any problems. And that happens not just at nightclubs and parties, it happens at pharmacies, grocery stores, department stores, big box stores, at strip malls. That’s generally the emphasis—security.

There’s also something called a “courtesy officer,” which is a police officer who lives at an apartment complex or condo building and provides some security or law enforcement services in exchange for reduced rent. This might include responding to noise complaints in the apartment complex. It might require the officer to park their police car in a visible spot near the front of the complex, just to provide that sense of police presence. It might require them to take reports of crimes that occur in the apartment complex when they’re available to do so, so instead of sending an on-duty officer to deal with a noise complaint or a vehicle burglary report, the off-duty courtesy officer is called and sent instead. It also provides the apartment complex management and other residents with a police contact, so instead of calling the police department to complain about a noise problem, residents might be given the courtesy officer’s phone number and encouraged to call him or her instead.

This is in exchange for reduced rent? I’m imagining my landlord giving a police officer moving into my building a discount in exchange for parking his cruiser out front like a scarecrow.

I originally had a part of this paper that tracked the history of what I call the blurred blue line—the difficulty of distinguishing private and public policing. If we go all the way back to the original modern police force in the 1830s and ’40s, officers commonly got paid through private sources for doing their public work. One scholar, a historian, published a paper about English police services in the 1830s, and it described the officer’s salary as a “retaining fee.” It wasn’t really where the officers made their money—where they made their money was someone would call in a burglary and say, “my stuff has been stolen” and the officer would say, “well, how much are you offering to recover it?” And then the officer would collect that reward. That’s totally foreign to our modern conception of policing. But in some ways, it’s the same idea of officers trading on their public authority. Because, again, it’s not just their skills they’re being hired for. It’s not because they’re better trained and better equipped than someone else. A private employer hires an off-duty officer because of their public authority, not just because of their personal characteristics or their qualifications.

You did some of this work when you were a police officer in Tallahassee. What were your reasons for doing it?

I did it because it was a good way to make extra pocket money. I think that’s why most officers do it.

How lucrative is it? How much were you making when you were doing it?

It can be extremely lucrative. There are some stories cited in my paper of officers working in New Orleans and making six figures just on their private off-duty employment—more than doubling their public salary. When I left the police department, I was making right around $45,000 a year. Breaking that down by hours, my public salary was just under $22 an hour, plus benefits and all that other stuff. When I did work for a private employer I don’t think I ever made less than $30 an hour. And sometimes I could get paid much more than that. There was a particularly large event every year in Tallahassee, [Florida A&M University]’s homecoming. Lots of people, something like 60 or 80,000 people come into Tallahassee for that, and officers’ days off all get canceled and you work a lot of overtime for the city. And then after your overtime for the city, if you have a gig like I did, you’d go to the nightclub afterwards. So you’d get released from your public job and you would go to your private job. And I think on FAMU homecoming I was making 75 or 95 dollars an hour.

Is it common for an officer’s off-duty income to be a significant chunk of what he or she is bringing home?

Yes, it absolutely can be.

In most places, are police officers taking this work to line their pockets, or are there places where the public pay is so low that this is really the only way to earn a decent living?

Both. Officers are absolutely using off-duty employment to make extra money, but it’s also true that officers are, in many places, pathetically underpaid. Police at some agencies, particularly smaller, rural departments, might start their careers with a salary of $30,000 or less; officers in agencies like that might turn to off-duty work as a necessary way to pay the bills.

There’s some tension here and some unanswered questions. It may be the case that [the allure of] off-duty employment attracts higher-quality officers than the police could otherwise hire. But it could also be the case that off-duty employment decreases officer wages because the agency doesn’t need to pay officers as much to attract the level of applicants it wants.

Is it your sense that most people who are doing this kind of work on the side are doing it at the expense of sleeping or their weekends? Where do they find the time to have a whole separate income stream?

It runs the gamut. There are officers who work a day shift and get off at, say, 5 p.m., then they go home for a little while and then go work five or six hours at their off-duty jobs in the evenings. For me, I would get off work at 2 o’clock in the morning on Friday or Saturday nights and then I’d go work for two hours at the nightclub as it was closing down.

And how common is this? Can you tell from your research how widespread the practice is?

So I want to reinforce the caveat that this wasn’t a rigorously representative sample. I think it’s a good sample—the agencies that responded employ just under 20 percent of the entire state and local police force in the country—but I don’t want to extrapolate from it too much. The sense that I get from the research is that it’s pretty common. Most departments allow off-duty employment. The statistics from the agencies that responded to this survey suggest that around 80 percent of agencies allow officers to work in uniform while off-duty for private employers. That’s consistent with the numbers we have from earlier research, which is very limited—there was research in the mid-’80s where one criminologist and a group of academics who were studying the private security industry tried to identify the extent of off-duty employment. And they found roughly the same 80 percent number.

So that’s agencies that allow it. Do you have a sense of what percentage of officers actually do it, and how much time they’re spending on it relative to their normal jobs?

The short answer is no. We don’t have good local or national data on how many officers are engaged in off-duty employment or how many hours they’re working. What I can give you is the data from my survey. And one of the takeaways from this paper is how few agencies actually track the number of officers who work for private employers and the number of hours that officers spend working for private employers. Of all the agencies that responded—I had 162 agencies respond to the survey—130 of them allow off-duty employment. And 62 of those, almost 50 percent, do not track the number of officers who do it. Two-thirds—87 of the 130 agencies that permit off-duty employment—don’t track the number of hours that officers work for private employers.

So while the information that I have is a good start toward understanding how big this phenomenon might be, the takeaway is we actually don’t know.

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.

Liability is a huge issue. And the key question is whether you conceive of the off-duty officer as being a police officer who works for a public agency or whether you conceive of them as working for the private company. Most plaintiffs are probably going to sue both, because there can be ambiguity. For example, if a private employer has a dress code that has racial implications—like, no gold chains, no hats turned backwards, no baggy shorts, no basketball jerseys. These dress codes exist at nightclubs and other places in this country. Can the nightclub have the officer enforce those dress codes? And what happens when the officer does enforce those dress codes and gets sued for discrimination? How much of that is on the officer, how much of that is on the city or the county that employs the officer, and how much of that is on the private employer?

Woof. That introduces a whole other issue, doesn’t it? If these guys are working for a private employer, and they’re being paid to enforce the private employer’s rules by using their authority as law enforcement agents, aren’t they kind of turning those rules into … pseudo-laws?

Yeah. Not to get too theoretical, but if you believe that “law” is what happens on the ground, then yes—the private employer’s rules become de facto law.

That seems bad.

I tend to agree. This piece did not identify and did not try to identify best practices. I think that, and developing more information about how agencies are handling off duty employment, is the next step.