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For officers, there's no off duty

They may be off the clock, but their responsibility to protect continues at all hours. The harder part for law enforcers is deciding how and when to intervene.

By TOM ZUCCO
Published December 20, 2004


John Swope, a sergeant in the Tampa Police Department, was driving home in a marked cruiser on the Veterans Expressway one night, just outside the city limits.

"I saw somebody driving under the influence to the point the car was all over the road," he said. "It was obviously a hazard ... But I'm outside my jurisdiction, and everybody around me is looking at me like "What are you going to do?"'

Swope turned on his lights, pulled over the car, called the Sheriff's Office and waited for the deputy.

Like the expectation that physicians or nurses treat emergency injuries, both the public and the police themselves expect officers to step forward in dangerous situations.

"If I was in my private car with my family, and I had no ID, no vest, and no firearm, I'm not going to jeopardize my family," he said. "I'll get on a cell phone and call HCSO, give them a license number, and let them handle it."

An off-duty officer encounters a crime unfolding or some other potentially dangerous situation. Family members may be with the officer. A suspect may have a gun. Innocent bystanders could be nearby.

What does the officer do?

These situations happen more often than most people think, law enforcement officials say.

In a high-profile case this month, an off-duty state alcohol agent shot and killed a man who was waving a gun at motorists during rush hour, only steps away from his family waiting in their minivan.

Such cases raise the question of what responsibilities do law enforcement officials have if they stumble upon crimes. Are they legally obligated to intervene? Are they ever really off duty?

"The circumstances dictate what you do. We're legally bound 24 hours a day to make sure something dangerous doesn't happen," said Swope, senior vice president of the West Central Florida Police Benevolent Association. "Does that mean we tackle a shoplifting suspect? I don't think so. We'll get on the cell phone and call that one in."

Most law enforcement agencies have a similar policy, which typically recommends that off-duty officers overlook minor infractions, such as rolling through a stop sign, and act only when someone is in danger.

Glenn Luben was driving home last June in Palm Harbor with his 16-year-old son when he noticed a new red Mustang weaving in and out of traffic. The Mustang sent a Nissan into the path of Luben's car, forcing him to narrowly miss a concrete retaining wall.

Luben, a sergeant with the Pinellas County Sheriff's Office, was off duty. He had a couple of options.

"My first inclination was to follow him and call for a sheriff's car," Luben said. "But he ended up going to his house, which was close by."

So, Luben, 42, got the tag number and mailed a reckless driving ticket to the driver, who turned out to be a 17-year-old boy who'd had the car about a week. "His actions," Luben said, "were dangerous enough for me to follow up on it."

"We have to carry our badge and our gun everywhere we go," said Luben, a 22-year veteran. "And we make sure not to intervene in a situation where we or the public will get hurt.

"But an officer has a moral and legal obligation to try to intervene and stop a violent crime," said Lubin, who teaches recruits at the St. Petersburg College police academy about their responsibilities when off duty.

"You're not wearing a uniform, not carrying handcuffs or a Taser and all the other tools," he said. "So you don't want to get into something that could put you or the public at risk."

There is also the question of an officer in civilian clothes, perhaps holding a gun, being mistaken for a suspect. Luben said most law enforcement officers know what to look for. "Suspects flee and don't identify themselves," Luben said. "A police officer wouldn't do that.

"Personally, I don't get into anything out of uniform unless it's a life or death situation," he added. "There could be other people who don't know who you are, and that could lead to an ugly situation."

David E. Merrill, the off-duty agent for the state Division of Alcoholic Beverages and Tobacco who shot the suspect in St. Petersburg on Dec. 7, was in plain clothes.

Merrill, 42, saw William Gearhart banging on the window of a car with a gun. Merrill's wife and two children, ages 10 and 14, were in his minivan with him when he swerved into the parking lot to confront Gearhart. Both men fired. Merrill was unhurt; Gearhart collapsed and died less than an hour later at St. Petersburg General Hospital.

As is usual in such cases, Merrill was placed on administrative leave from his job during an investigation. The Pinellas-Pasco State Attorney's Office on Friday ruled Merrill's actions justified.

"They are expected to take the necessary, intelligent action," said Clearwater police spokesman Wayne Shelor. "It's part of their calling. He sees that danger and walks toward it. Then, by using his training and instinct, he tries to eliminate that danger.

"And officers are always going to be held accountable for their actions."

In May 2000, off-duty Pinellas County sheriff's deputy Christopher Taylor was shopping at the Seminole Home Depot, and caught a woman suspected of shoplifting in the parking lot. A man the woman had been with drove a car toward them and grabbed her, dragging Taylor and a bystander. The deputy fired three times, wounding the driver.

Taylor had his off-duty pistol, a Glock 9mm semiautomatic, in his fanny pack.

"I had a clear shot when I looked at him," Taylor told investigators. "My intent was to stop him before he killed her or killed somebody else because everybody was coming around, so I fired a shot."

Officers think a lot about how they'll react in off-duty situations. And their response can be affected by many factors, including danger to the public and potential danger to family they may have with them.

When Luben, for example, was with his family at a Palm Harbor boat ramp in 1995, he noticed a man acting erratically.

"He was swearing at people and told them, "I'll cap you if you don't shut up."' Luben said. "He acted like he had a gun, so I called it in to the Sheriff's Office.

Luben had his badge and a gun with him, but didn't directly intervene. "I stood there and kept my mouth shut," he said, "because I had my family with me."

Luben said when the man left, he followed him until deputies arrived and pulled the man over. Marijuana was found in the car, Luben said, and the man was arrested.

Often, law enforcement officials say, the decision to intervene is made in a split second and depends on the off-duty officer's ability to assess a situation.

"There's a level of discretion," said Pinellas Sheriff's Office spokeswoman Marianne Pasha. "What can be accomplished without assistance? How quickly can get assistance get there?"

There is no one state statute that covers the use of a firearm by an off-duty officer, said Pinellas-Pasco State Attorney Bernie McCabe. But officers are generally on sound legal ground when they act off-duty.

"They (law enforcement officers) are state certified, and they certainly can intervene," McCabe said. "No question about that. In many circumstances, a private citizen could intervene. Not as many circumstances as a law enforcement officer, but you still have the principle of self defense."

It's not just criminal activity that off-duty officers encounter.

"We've had people (deputies) having lunch at a restaurant, someone starts choking, and they did the Heimlich maneuver and saved the person," Pasha said. "If they drive up on an accident, they render aid. I think any officer would do that."

Whether it's the Florida Highway Patrol, the Hillsborough Sheriff's oFfice or the Largo Police Department, off-duty officers are never, truly off-duty.

"Most agencies are pretty much the same," said Gary Morse, spokesman for the Florida Fish and Wildlife Conservation Commission, whose officers carry weapons. "And that protects the public that much more.

"These are officers who are sworn to protect and uphold the law. Even when they're off duty."