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Always Armed/Always On Duty

Jack Ryan

According to materials on the National Law Enforcement Officer’s Memorial web-site, there have been approximately 200 friendly fire deaths in the time period for which statistics have been collected on line of duty deaths. Only 28 have been from mistaken identity, with others occurring from things like cross-fire or training accidents.

The issues surrounding the death of Cornel Young Jr. are not limited to off-duty officers. In fact several “Friendly Fire-Mistaken Identity” cases involve plainclothes and undercover officers who were shot while trying to make an apprehension. An example includes Detective Kely Wilkins, an Oakland California detective who, while on-duty, got involved in a foot pursuit of a subject who had just fled from a stolen vehicle. As uniform officers pulled onto the scene, they observed Wilkins standing over the subject while holding a gun in his hand. The officers got out, shouted toward Wilkins, and when Wilkins turned his head toward the two officers, they opened fire, killing him. In a civil rights claim filed by Detective Wilkins’ family, the court denied the shooting officers’ motion for qualified immunity after another officer testified that it was clear from Detective Wilkins’ actions at the time of the shooting that he was an officer trying to make an arrest.

During the subsequent lawsuit in the Young case some of the focus centered on an allegation that the Providence Police Department had a policy requiring officers be “always armed and always on duty.” The plaintiff’s expert witness testified that these policies were antiquated and that Providence was the last metropolitan police department to have such a policy. The expert was obviously wrong.

A recent survey conducted by the Legal and Liability Risk Management Institute determined that nearly thirty percent of the departments in the United States still have an “always armed/always on duty policy.” (See chart 1.) Example agencies include: Miami-Dade; Bakersfield, California; and the West Virginia State Police to name a few.

Additionally, fifty-percent of police agencies nationwide require officers to take action while off-duty to protect life or property. Over ninety-percent of agencies would expect off-duty officers to take action under some circumstances.

Irrespective of agency policy, the survey clearly leads to the conclusion that the custom and practice of law enforcement throughout the United States is to be always armed and always on duty. Law Enforcement officers have been further encouraged to always be armed by recently enacted federal legislation that allows off-duty and retired law enforcement officers to carry firearms with them throughout the United States.

Training for Off-Duty Events

Two issues facing law enforcement with respect to off-duty events are whether the agency has conducted any training on off-duty use of force or off-duty confrontations. The Legal and Liability Risk Management Institute’s survey of agencies from throughout the United States revealed that the majority of law enforcement agencies throughout the United States are not conducting training on these important issues.

Once it is recognized that officers will become involved in police events while off-duty, the question becomes whether or not police agencies have any obligation to train officers with respect to these off-duty incidents. The United States Court of Appeal for the 10th Circuit, in Brown v. Gray, reviewed an off-duty police shooting. An officer involved in a road rage incident chased a man and shot him three times. The officer reported that the man had pointed a gun at him.

At issue in the case was a policy that required officers to be “always armed and always on duty.” It should be noted that while only thirty percent of agencies around the country still maintain this policy, many agencies have a custom of off-duty officers being always armed and always on duty. Do policy makers know that their officers carry firearms while off-duty? Do policy makers know that their off-duty officers who witness a crime against a person (for example, a hand-bag snatch from an elderly woman), are likely to take police action. If the answer to these questions is yes, then the agency could be found to have notice of a custom of being always armed and always on duty which has the force of official policy.

Although the Denver Police Department had the policy requiring officers to be always armed and always on-duty, the agency did not conduct training on the use of force in the context of off-duty action. A captain from the Denver Police Department testified that the agency chose consciously not to distinguish off-duty from on-duty use of force because the two were identical. A police practices expert testified that the two circumstances were very different and there should have been distinct training for the off-duty circumstance.

How are the two different? One simply has to consider an officer’s use of force continuum in these distinct situations. While on-duty an officer has the command presence of his or her uniform; a marked police vehicle; a police radio; hands-soft and hard; pepper-spray; handcuffs; an impact weapon; bullet-proof vest; available back-up officers and his or her firearm. While off-duty an officer has his or her hands and their firearm. Certainly the use of force issues change.

As the Young case makes clear, an off-duty officer’s use of force is not the only consideration to be concerned about. An off-duty or plainclothes officer must recognize the danger of misidentification when they take action. The first trial in the Young lawsuit resulted in a dismissal of all training claims against the Providence Police Department at the close of the plaintiff’s case.

The United States Court of Appeal for the 1st Circuit reviewed the Young case on appeal. The court overturned the decision of the trial judge and returned the case to the trial court for a determination as to whether the Providence Police Department had properly trained its officers on how to identify off-duty officers in an on-duty/off-duty confrontation. In December of 2005, a jury in the Federal District Court, District of Rhode Island returned a verdict in favor of the Providence Police Department on the training claims after numerous officers and trainers testified as to the types of training conducted with respect to off-duty confrontations.

What Type of Training Should Be Conducted?

First and foremost, agencies must decide as a policy matter, whether or not officers are required to be armed while off-duty. Secondly, the agency must decide, what action, if any, an officer is required to take. That said, agencies should recognize that irrespective of agency policy, officers will carry firearms and will take action while off-duty. This leaves only one remaining question: How can agencies best prepare their officers for off-duty/on-duty confrontations?

Agencies should include protocols for plainclothes/uniform officer confrontations. Agencies should establish protocols that are workable. The New York City Police Department has protocols that encourage on-duty officers to approach armed-suspects from behind and announce “Police Don’t Move.” This approach would allow a challenged off-duty officers to, without moving, announce that he or she is a police officer. It is unclear whether the policy requires NYPD officers to treat every person with a gun as an off-duty officer until they determine otherwise. Such a protocol may not work in the situation which occurred in Young, where he came on the scene in front of the officers after they were already in position.

Training should include scenarios where the officer being trained moves through the scenario as the on-duty officer who must make decisions; as the off-duty officer who must respond to the commands of the on-duty officer; and, as a plainclothes officer. The training should emphasize to the off-duty and plainclothes officer that they may not be recognized by the responding uniformed officer and thus, they must take extra precautions in order to avoid a potential tragedy. These precautions would include:

1. Providing information to responding officers by telephone or radio of the presence of a plainclothes or off-duty officer on the scene as well as descriptive information where possible.

2. Prominently displaying their badge without making a movement that may be perceived as threatening to the responding officers.

3. Immediately following the commands of responding officers.

4. Using caution to ensure that any movements are not perceived as threatening toward the responding officers.

5. Loudly identifying themselves as law enforcement officers to responding officers.

The only way that law enforcement can avoid friendly fire tragedies is through proper training for all of their officers that will heighten awareness as to the potential for these mistaken identity cases. In all cases the burden falls upon the off-duty or plainclothes officer, otherwise responding officers would have to treat every person with a gun as if he or she were a law enforcement officer until determining otherwise. This is simply not a workable solution to this issue.


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  • Photo_user_blank_big

    letrainer13

    over 3 years ago

    2 Comments

    Jack Ryan reitred after signing a proffer with the FBI/USAO in Providence, RI. Google Jack Ryan and the Providence Police Department, Providence,RI He admitted giving officers source material for promotional exams.
    How dare he comment on incident in which an officer tragically died and two other officers were left to deal with this nightmare.
    It should be noted that Ryan was under investigation by the FBI soon after this tragic incident. Shameful

  • Photo_user_blank_big

    Anonymous

    over 3 years ago

    everyone should read this

  • Mdc_skin_max50

    Bruce87

    over 3 years ago

    8 Comments

    The bottom line is THE UNIFORM WINS!!! When an officer in uniform arrives do as you're instructed. Remember everyone's adrenalin pumping, which could lead to a pretty hyped up situation. When you seen a gun it’s the body’s natural reaction to pump you up its fight or flight time. Prior to the uniform making contact with you and/or once contact is made you can identify yourself as a police officer. “I’m on the job, I’m a Police officer, Police don’t shoot.” Don’t take offense if you’re still instructed to kiss dirt!!! Look at it like this, how does the uniform know you are in fact Police. Keep in mind bad guy’s do what they see TV police doing or have seen REAL police do. Some officers believe, I’m police everyone should know I am police. Brothers and Sisters let’s shut up and let the uniform handle the situation until the problem is resolved. You don't know everyone employed with our agency, furthermore they don't know you.

  • File0106_max50

    liljj

    over 3 years ago

    894 Comments

    very sad but a great article

  • 02-17-07_0940_1__max50

    briankrogers

    over 3 years ago

    78 Comments

    I will most deff follow through to read up on all state laws on carrying my firearm. For any officer that is trying to help make an arrest is always suppose to identify themselves as an official regardless of noticed by other officers. Its for the suspect and witnesses that is on the scene. Great articial

  • In_remembrance_of_oakland_pd_max50_max50_max50_max50_max50

    rhood

    over 3 years ago

    23592 Comments

    A well written article with good advice for all to heed.

  • Belgian-malinois-picture_max50

    rookiewanabee

    almost 4 years ago

    182 Comments

    very unfortunate but a good article.

  • Me_last_wk_max50

    delano388

    almost 4 years ago

    4308 Comments

    Great article. Bump leatherneck

  • Blue_line_decal_max50

    crlittle554

    about 4 years ago

    506 Comments

    Leatherneck you said it perfectly - off duty/plain clothes officers have to understand that the uniformed officers are the only ones clearly identifiable as LEOs and when confronted with a subject with a gun that they cannot identify as a cop they have to act as if that person ISN'T a cop...
    Fortunately, in any instance at my job where plaintclothes are involved we can readily ID them by them having their badges displayed clearly on either chains or belts, and they tend to have a radio in their back pocket and have radioed in their location, etc.

  • Photo_user_blank_big

    leatherneck111

    about 4 years ago

    2 Comments

    As for the "NYPD" rules. There is no such thing taught in the NYPD that treat every person who has a gun as if he or she is an Off-Duty Officer. In the NYPD, a Uniformed Officer is considered "ALWAYS RIGHT!" While an Off-Duty or Plain Clothes Officer is wrong. What I mean by that is, that even if I'm a Detective On-Duty with 10 1/2 years on the job, if I'm ordered to do something by a uniformed officer even in Academy Grey's that I must follow their instructions. If a shoot situation does arise, and say I get shot (being in plain clothes) the uniform Officers will be justified as they stated to me: "Police Don't Move." Which is taught to all member of the Department and is the standard challenge. Until the rookie uniform Officer is convinced that I am who I say I am, I am to follow EVERYTHING / ORDERS given by the rookie Officer, with NO questions! Uniform is always right, plain clothes is always wrong, that is how the NYPD views it. There have been many instances in the NYPD where On Duty Uniformed Officer's have shot On-Duty plain clothes Officers and Off-Duty Officers. No matter what, Uniform has the privilege over plainclothes. REGARDLESS OF RANK! At least until the identity of the challenged Officer has been established.

  • Photo_user_blank_big

    mile

    over 6 years ago

    2 Comments

    im so glad

  • Photo_user_blank_big

    crimeassassin

    over 6 years ago

    8 Comments

    This is something more officers and departments should look at.

  • Pd_officers_martin_max50

    1shot1kill

    almost 7 years ago

    78 Comments

    This is very sad,My prayers go out to all law enforcement

  • Photo_user_blank_big

    stalbot

    over 7 years ago

    6 Comments

    You have to be prepared to be viewed as a suspect. You have to presume that responding officers will not know who you are. Communicate!!!!! Let them know!!! Do what they tell you - be offended later, if you're inclined to be offended by officers being concerned about a person with a gun (you know who you are). This is a tradgedy that can be prevented!

  • Cup_of_max50

    bnatarte

    over 7 years ago

    4 Comments

    Tragic. Fortunately this is not always the case. I'm sure most of us remember the mall shootings in Utah in which an off duty officer was eating dinner and was the first to repond to the incident. Fortunately he made it clear to the responding uniformed officers who he was and was recognized by another officer which he had met previously in a training class. In the military side, just a few weeks ago a patrol of Afgani's was shot up by "friendly" forces during the fog of war.

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