By Matthew King

The scenario is not uncommon. A fight breaks out in a local club. A security guard intervenes and an injury results or the security guard is slow to react and a patron is seriously injured or killed. The security guard is an off-duty police officer. Is his department liable?

It is unsettled in Washington whether a police officer, working at an establishment while off duty, is acting as a public servant for purposes of negligent security claims. In fact, no reported Washington case addresses whether a governmental entity is liable when one patron is injured by another and the off-duty police officer/security guard failed to stop the altercation in time.

Under Washington common law, an off-duty police officer is not relieved of his or her duties and obligations to protect citizens.1 This means that an off-duty police officer can be a public servant authorized to respond to criminal conduct and emergencies.2 This background plays an important role for establishments that hire off-duty police officers to provide security.

Some states hold that no public duty can be performed by an off-duty police officer while working as a private security guard.3 Others hold that the officer’s duties continue on the grounds that there is a public policy interest in serving as peacekeepers in private establishments open to the general public.4

Criminal defendants’ civil rights are also an issue when off-duty officers serve as security guards. State v. Graham,5 decided by the Washington Supreme Court in 1996, illustrates this point. In Graham, police officers were hired by various Seattle businesses to patrol outside their premises. The officers were in uniform and armed. They came upon defendant Graham, whom they believed to be in possession of drugs. Graham ran from the police, who yelled “Stop, Police!” The officers caught Graham as he attempted to escape into a taxi.

Graham argued that he could not be convicted of “resisting arrest” because the officers were not on duty. In upholding Graham’s conviction, the court reasoned that public policy is furthered by finding that a police officer has the authority to act as a police officer regardless of whether the officer is on or off duty. The Court acknowledged that an officer still will be required to comply with the Constitution when conducting searches, making arrests or taking other actions performed in the officer’s “official duties.”

The issues presented by using police officers as security guards are complex and involve an analysis of both civil and criminal law. From a business owner’s perspective, the advantages of engaging police officers can outweigh the risk of litigation associated with the security of the premises.

1 State v. Graham, 130 Wn.2d 711, 718, 927 P.2d 227 (1996).

2 Id.

3 Cervantez v. J.C. Penney Co., 595 P.2d 975 (Cal. 1979).

4 Duncan v. State, 294 S.E.2d 365 (1982).