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Nov
29

ARE POLICE OFFICERS LAW ENFORCEMENT OFFICERS EVEN WHEN “OFF-DUTY”?

Let’s just say that criminal defense counsel has accepted the responsibility of representing a client who has been charged with the commission of a battery on a “law enforcement officer” in violation of Fla. Stat. § 784.07.   This statute punishes persons who commit a battery against law enforcement officers during the lawful performance of their duties more severely than persons who commit the same act against any other person.  See Fla. Stat. § 784.03.

It has been common for bar owners operating in South Florida to hire off-duty police officers to provide security for their establishments which are commonly frequented by rowdy young adults with a weekend passion for alcohol consumption.  In many instances, these off-duty officers don their best police duds complete with crime-deterring police-issued weapons.  However, whenever a police officer is off-duty, he or she is arguably no more than a private citizen in the eyes of the law despite his or her 24-hour access to police gear and equipment.

The Florida Supreme Court in the case of Soverino v. State, 356 So.2d 269 (Fla.1978), discussed this battery statute at page 271:

“Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public.”

(Emphasis added).

Twenty years later, applying well-settled principles of statutory construction to the same battery statute, the Florida Supreme Court held that a federal law enforcement officer is not a “law enforcement officer” as defined in Fla. Stat. § 943.10(1).  See McLaughlin v. State, 721 So.2d 1170, 1172-73 (Fla.1998) (“we note that section 784.07(1)(a) states that the term ‘law enforcement officer’ includes a law enforcement officer … [as] defined in §943.10.  Section 943.10 provides at the outset that ‘[l]aw enforcement officer’ means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof. The meaning of these words cannot be plainer: A ‘law enforcement officer’ for section 784.07 purposes must be either a state or local officer.”) (internal quotations omitted).

If a federal law enforcement officer falls outside the statutory definition of a law enforcement officer, then the rationale of McLaughlin should apply a fortiori to off-duty police officers and support the legal position that police officers are just plain citizens whenever off-duty.  Read in conjunction with its earlier Soverino decision, the Supreme Court decision in McLaughlin makes clear that officers should only be accorded the statutory status of “law enforcement officer” while performing official police duties.

It would behoove defense counsel to seek the dismissal of any charges premised on the victim’s alleged status as a “law enforcement officer” if, at the time of the alleged offense(s), the officer was “off-duty” or working as a private security officer while off-police-duty.


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