When a private party hires a uniformed police officer for security, when the police officer is working “off duty,” is the officer “acting in the performance of the duties of the position“? This matters. If the officer is “acting in the performance of the duties of the position,” he may be entitled to indemnification by the municipality if he gets sued for acts or omissions during the officer’s off-duty work.
Without reference to any other authority, guide, or text to answer that question, one must fairly answer that question, “maybe,” or some other equivalent unsatisfactory and muddled equivocation.
The uniformed off-duty police officer is sort of acting as a police officer and sort of not, right? For example, the officer is not being paid by the municipality. The officer’s actions are not being directed by the municipality. On the other hand, the officer is “policing,” in effect, and is doing so in a police uniform, riding a city police squad car, literally cloaked in government authority.
This matters to St. Paul police officer, Eric Reetz, who worked off-duty as security at St. Paul’s Dorothy Day Center on December 30, 2016. Fifteen minutes after his shift ended, someone stabbed another person. Mr. Reetz had been hired for security, which required him
to patrol the building, search the center’s clients for banned items like weapons, and help the center’s staff “secur[e] a safe and hospitable environment[,” to] remov[e] and/or trespass dangerous or predatory individuals” and “writ[e] police reports for incidents that may occur.”Unpublished Minnesota Court of Appeals Decision
Officer Reetz was sued for negligence for not protecting the stabbing victim (presumably by failing to search for, find, and confiscate the weapon).
Is Officer Reetz entitled to indemnification by the City of St. Paul for the work he was performing off-duty? The Minnesota Court of Appeals decided that he was.
Who gets to decide whether Officer Reetz was “acting in the performance of the duties of the position“? The City of St. Paul? The Ramsey County District Court? The Minnesota Court of Appeals? The Minnesota Supreme Court?
Recently, the Minnesota Supreme Court accepted the petition for review to decide whether the intermediate court’s decision was in error. (Here is the petition for review and the response.) There is the threshold question of which authority gets to decide the question (and what deference, if any, is given to that authority’s decision) and then, perhaps, the next question of the meaning of “acting in the performance of the duties of the position” in the statute.
We won’t hazard a prediction in how this comes out aside from noting the current intense focus on police conduct and accountability brought about by the death of George Floyd under the knee of Minneapolis police officer Derek Chauvin. The Floyd case appears to have nothing to do with Officer Reetz’s situation. But sometimes context matters even when, perhaps, it shouldn’t.