A few days ago, a Baltimore City police officer was at a nightclub with his girlfriend. A former marine allegedly inappropriately touched the officer’s girlfriend and words were exchanged. Apparently, this led to a physical altercation. It appears that the former marine was unarmed. Eventually, the officer fired all 13 rounds from his service weapon, six of which hit the former marine, who died.
Unrelated to any criminal charges or civil lawsuits, there is the issue of departmental rules and regulations, which I now address. I bring perspective. I have taught criminal law and procedure as a law professor for 33 years at the University of Baltimore School of Law. In my private practice, I have represented law enforcement officers in 35 federal, state, county, and local law enforcement agencies, typically in administrative disciplinary matters. In 1995, I designed a seminar that is unique in law school curricula, titled “Issues in Law Enforcement.” This seminar examines the professional life of nearly a million sworn law enforcement officers in the criminal arena (both as investigator and witness and as a defendant), civil arena (both as a defendant and a plaintiff), and administrative disciplinary arena (“charged” administratively with a violation of a rule or regulation). The Supreme Court, when addressing police conduct issues, frequently employs what is referred to as a “bright line rule,” eliminating the need for individual judgment calls. This means that there is a “one size fits all” rule.
The case in Baltimore City should cause all departments to re-evaluate their policies regarding the interplay of police officers, weapons, and alcohol. Based on my experience, here are my recommendations. (1) Law enforcement agencies should have a policy that either requires or permits sworn officers to have their service weapon on their person or within their actual or constructive possession at all times. (2) Law enforcement agencies should have a policy that prohibits sworn officers from even having their service weapon on their person or within their actual or constructive possession when they are off duty and plan to go to a public or private place where they reasonably believe that alcohol will be served.
The reason that I recommend (2) above is two-fold. First, when there is the possibility of mixing weapons and alcohol for an off-duty officer, the dangers associate with that mixture greatly outweigh the benefits of a having a law enforcement officer able to act, at that moment, as a law enforcement officer. Second, anything less than a bright line rule is a dangerous slippery slope. Should the line be “intoxicated”? If so, does that mean 0.08% alcohol in the blood for DUI or 0.07% alcohol in the blood for DWI? Would it be permissible to have 0.04% alcohol in the blood, which is permissible for driving? Frankly, nothing short of a bright line rule is workable. The rule would be as follows:
“Do not have your service weapon on your person or in your actual or constructive passion at any time when you consume alcohol. Do not take your service weapon to a public or private place where you reasonably believe that alcohol will be served. If you have your service weapon on your person or in your actual or constructive possession and alcohol is present, you must (1) leave, or (2) leave, properly secure your weapon in an approved location, and then return.”
The debate over the last few days demonstrates the need for this approach.
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