When Does an Off-Duty Police Officer’s Status Change to On-Duty?
Under Alabama law, the status of an off-duty police officer changes to on-duty when a crime is committed in his presence. Any actions taken by the officer responsive to the crime committed in his presence are within his authority as a policeman.
Off-Duty Police Officer Working in Private Sector
When an off-duty police officer, who is working as a security guard for a private employer, “witnesses an offense for which the perpetrator is arrested, the officer’s status changes, and he is then acting in his capacity as a police officer and not his capacity as a security guard. The officer’s status changes at the time he witnesses the offense.” The Alabama Court of Civil Appeals found in Whitley that “as a matter of law, [the officer] was acting in his authority as a … police officer from the moment he witnessed” the offense, and any of the officer’s actions committed thereafter occurred after the officer’s status had changed to that of a police officer.
The scope of activity that could result in a status changed was broadened in Johnson v. State to include suspected criminal activity – “[W]hen an off-duty police officer witnesses a criminal offense or suspects criminal activity, the officer’s status changes and, from that point on, he is considered to be acting in his capacity as a police officer and not in his capacity as a private citizen, i.e., he is considered to be ‘on-duty.’”
Line and Scope of Employment for Off-Duty Police Officers
While Alabama law narrowly defines the line and scope of off-duty police officers who are moonlighting as private security guards, it is possible for a police officer to be liable under federal law, pursuant to 42 U.S.C. § 1983, “even though under Alabama law his status did not change from security guard to police officer … .” Under Alabama law, “an officer’s status remains as private security guard unless and until he witnesses a crime that allows him to make a lawful arrest.” However, under 42 U.S.C. § 1983, “a police officer can be held liable for damages when he does not witness a crime bus abuses his authority under color of law.”
Under Alabama law, where an offense is not committed in the presence of an off-duty police officer, in certain circumstances, he may still be working as an agent of the municipality or within the line and scope of his employment with the municipality. In determining whether the officer was acting within the line and scope of the municipality for purposes of imposing liability under the doctrine of respondeat superior, the test is what, if any, control was exercised by the municipality.
Liability for Off-Duty Police Officers
However, in such instances, the officer may not be liable for the harm that a citizen incurred at the hands of a third party unless the harm was foreseeable. The Supreme Court of Alabama has held that “in order to recover against a defendant [in our situation, the police officer] for harm caused by the criminal actions of a third party, the plaintiff must establish that the defendant knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff.” “Foreseeability does not require that the particular consequence should have been anticipated, but rather that some general harm or consequence could have been anticipated.”
For more on municipal and police liability, read about “The Effect of the Subjective Intent of a Police Officer on the Validity of an Arrest.”
 See Dinmark v. Farrier, 510 So.2d 819, 821 (Ala. 1987); see also Perry v. Greyhound Bus Lines, 491 So.2d 926 (Ala. 1986); Robinson v. State, 361 So.2d 113 (Ala. 1978).
 See Dinmark, 510 So.2d at 821-22.
 Whitely v. Food Giant, Inc., 721 So.2d 207, 209 (Ala.Civ.App. 1998); see also Dinmark, 510 So.2d 819; Perry, 491 So.2d 926.
 Whitely, 721 So.2d at 209.
 Johnson v. State, 823 So.2d 1, 43 (Ala.Crim.App. 2001).
 Ortega v. Brock, 501 F.Supp.2d 1337, 1342 (M.D. Ala. 2007).
 Ortega, 501 F.Supp.2d at 1342; see also Whitely v. Food Giant, Inc., 693 So.2d 502, 505 (Ala.Civ.App. 1997).
 Ortega, 501 F.Supp.2d at 1342; see also Monroe v. Pape, 365 U.S. 167-171-75 (1961), overruled on other grounds, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
 See City of Birmingham v. Benson, 631 So.2d 902, 905-06 (Ala. 1993) (holding that the officer who was working in a bar as a security guard was an agent of the city working in the line and cope of his duty as a police officer where the city controlled the officer by requiring his compliance with rules and regulations governing police officers working police-related off-duty jobs).
 Nail v. Jefferson County Truck Growers Ass’n, 542 So.2d 1208, 1211 (Ala. 1988).
 City of Birmingham v. Benson, 631 So.2d at 907.
Photo by Timothy Krause.