Tucson Weekly: Have Gun, Will Travel (July 23

Have Gun, Will Travel

A SWEATY, ROUND-faced kid with a pocked complexion and wary street eyes squats against a stucco storefront on North Fourth Avenue. Baggy batik shorts drape across his knees, and a dirty T-shirt hugs his waist. His head is shaved, and the stubbled scalp reveals a blue-green tattoo in the shape of something resembling a duck pond, or perhaps a mottled moon.
He says his name is Chad, but his lips move with little conviction. At first he starts to rise, presumably to try a little panhandling or bum a smoke. But, like others along this languid sidewalk, the summer sun has robbed him of any zest for a quick windfall. Soon he settles back into semi-slumber, his head hanging like a pimpled melon.
Today Chad is simply a melancholy remnant of the raucous, under-aged armies that plagued this district several months back. Grimy and brazen, the kids grubbed for change and engaged irate merchants in a steady, absurd game of cat-and-mouse.
Feature But that was before the weather turned cruel--and before the cat grew claws. These days Fourth Avenue enjoys a recently enacted ordinance restricting visitors from reclining on the sidewalk. In turn, that freshly minted law is enforced by beat cops, strolling in pairs and paid $17 an hour by the business association to ensure that delinquents like Chad keep moving.
Working off-duty, the officers nonetheless pack pistols and the steady gaze of authority. Essentially guns for hire, they're buttressed by all the power of the Tucson Police Department, cloaked in crisp blue uniforms, but existing in a gray zone of private employment. They're the best protection money can buy, and if it weren't for numerous loitering citations noting their unofficial status, you couldn't tell the difference.
They arrive in TPD cruisers, courtesy of the taxpaying public, and in apparent violation of city policy. Their moonlighting is likewise coordinated by an in-house, full-time, highly paid staff sergeant. Soon, all billing for private employers will be handled by the city as well, with processing done through TPD and Tucson's Finance Department.
The idea is to exert more control over such off-duty work. And in fairness, an extra fee will be exacted from employers like the Fourth Avenue Merchants Association, ostensibly to cover the added bureaucratic toil, and for wear-and-tear on police vehicles. But city officials, from Mayor George Miller on down, were unable to say whether the pending arrangement will pay for itself, or who would ultimately be liable if something went wrong. And that arrangement neglects the larger social costs we all face when those hired to serve and protect are also available to protect a select few--for a price.
WHILE THE SITUATION may raise a slew of ethical questions, ask merchants along this thoroughfare of boutiques, eateries and thrift stores, and they'll tell you the set-up is a godsend.
Mike Haggerty leans big and bear-like against a bike rack outside his bead shop, a few feet from where Chad was slumbering only minutes ago. A former city councilman, Haggerty admits hiring off-duty police presents a minefield of municipal questions. That said, Haggerty has yet to witness any explosions, or even any rumblings.
"They're good working cops," he says. "Joe Romero, the cop that works the avenue, we call him 'Officer Friendly.' I think it's worked really well on both sides. As long as we have the ordinance, they have the right to enforce it. But I don't think the cops have been heavy-handed about it.
"Is there the potential for abuse just because we've hired him? Sure, there's always that potential. But it hasn't happened."
Haggerty likens it to earlier times, when neighborhoods were cozy with their particular men-in-blue. "Maybe a merchant would give them a couple free oranges, or a free Coke or whatever. Now you can't do that. But having these officers here provides a sense of community."
Down the street, Kurt Tallis sits in his busy smokeshop, surrounding by racks of cigarettes and paraphernalia. Quick and articulate, Tallis says it wasn't long ago when kids were hanging out front, harassing customers and driving away business. He also notes the irony of paying for enforcing the ordinance when on-duty cops should be handling the job.
"But do I think this has worked well? Absolutely," he says. "Then again, I'm not homeless. I don't have that perspective."
He adds that hiring off-duty cops to walk the avenue gives them a different feel for the job. "They work here, and they have to come back here day-in and day-out. They don't want to create a bad situation with these kids. Maybe it's different because they're working for us. But all we're looking for is a semblance of civility, and I don't think our actions have been targeting the homeless. Also, by hiring Romero, it means that he owns this area to a degree. That makes it more personal. And that makes a big difference."
A 1996 STUDY BY the city estimated that individual TPD cops logged 22,000 off-duty jobs that year, earning them roughly $3 million in extra pay. All the money was handed to them directly, sometimes under the table, often in cash. Their employers ranged from shopping malls and convenience stores to apartment complexes, and their private bosses were required to hold a minimum of $1 million in liability insurance. At the same time, some cops are rumored to operate their own de facto employment agencies, lining up their buddies for favored jobs.
Ultimately, it amounts to one very big, unwieldy business.
To James Fyfe, however, it's all just risky business. A 16-year veteran of the New York Police Department, now a professor of criminal justice at Temple University, he's considered a national expert on police matters. In fact he wrote--or at least revised--the quintessential cop's bible, simply titled Police Administration. And he's highly critical of officers hiring out for private security work.
"I don't have any objection to them working off-duty at all," he says. "After all, you have to make a living, to put bread on the table. But it's problematic when the cops work security jobs. The principal is this: They are trained to be police officers. And that's a different job than being a security guard. If you talk to a cop, they'll tell you no security guard can jump into a cop's job without additional training. And the reverse is also true.
"A second problem is that during the day when they're working, they are carrying guns and their badges of authority and the public interest, and they're supposed to be impartial," he says. "And working for a private interest negates all that impartiality.
"What they're doing is carrying their guns and badges of authority in a very partial interest of a private organization. That's a problem, and it's reared its ugly head in place after place."
Then comes the liability concerns. "I've been involved in several civil suits where police officers acting as security guards have hurt people or even killed them," he says. "Then the private organization always says, 'Well, this is a cop. This is on the city. He was supposed to be trained by the city for this. I don't know anything about this, and the city told me it was permissible to do this.'
"So what happens then is that the city winds up holding the bag for actions police officers take when they're working for a usually very profitable private interest. The liability all falls upon the police department. The same thing is true when a cop gets injured. What happens when a Tucson cop wearing a uniform on a security job becomes permanently disabled? Will the citizens of Tucson pay forever and ever, when he has sustained this injury while in uniform on behalf of a private employer?
"And what happens if the off-duty officer sees the employer doing something? It has led to all types of corruption, and compromised the whole system of the department."
Ultimately, "I'm not in favor of having cops work as security people, period," he says. "I think it's a very bad idea. And I guarantee you that it will come back to bite the city, and it won't take long."
SGT. EUGENE GONZALES sits in his small, orderly office in TPD headquarters, taking phone calls and occasionally glancing out at passers-by. He's a stocky man, polite and helpful, but also leery. After all, Gonzales has spent 22 years in the department, most of them on the street, and he's obviously more comfortable fielding radio calls than questions from a reporter.
His new title is special duty program coordinator. That's a slicked-up label for off-duty policing, and it's Gonzales' job to screen the roughly 200 private employers who hire cops. He makes sure they pay on time, and keeps track of the number off-duty hours his folks work. It's a full-time gig, and Gonzales is paid about $70,000 for his trouble.
He says the special duty program is in its infancy. But if plans hold, by September all off-duty billing will be handled by TPD, and by the City Finance Department. To cover the extra administration, along with his salary and that of an assistant, off-duty rates for basic officers will jump from $17 to $20 an hour. Of that, $1 an hour will go to the city.
When payroll taxes and Social Security are deducted, the officers will still be making about $17 hourly. Employers will also have to kick in $1 an hour, or a mileage rate, for the use of police cruisers. And none of those off-duty earnings will go towards pension funds.
Gonzales says the whole point is keeping better tabs on cops. "Officers will be held more accountable for what they do in off-duty time, as well as what they do on-duty. That's going to make it better, not only for our department and the officers, but especially for the employers. Instead of paying all the officers individually, they can pay in one lump sum." Cops are limited to 24 hours of off-duty work per week, he says, with an eight-hour break required between off-duty and on-duty stints. "Before, there was no way to find out if officers were only working 24 hours. Now it's part of my job to go out and audit jobs, to stop by and make sure everything is above-board. We want to be up front with everything we do, because our officers are working under the guise of the Tucson Police Department."
He also makes sure the cops get paid on time. "Sometimes employers default, and it makes it difficult when officers try to collect their money. It puts them in a bad light, making it look like they're trying to get money from these people, when in fact they're just trying to collect what they've earned."
At the same time, he dismisses potential conflicts between the dual roles officers play--such as when they're hired to target certain individuals or offensive neighbors. "There are certain things we can't do procedurally, even if the employer wants us to," he says. "They're paying us to be there and enforce the law, and doing the right thing is just part of that. The officers are doing private for-hire work, but they're still doing law-enforcement work, and they're still under all the rules and guidelines of TPD."
Besides, he says his officers fill a special niche. "As compared to private security companies, we offer a different service. We offer everything that law enforcement in the City of Tucson can offer, arrest powers, vehicles, that sort of stuff. So the employer gets a little more credibility, and a little more security. Some people will look at a security guy and sometimes just not listen to them, just blow them off. People won't do that to a cop."
Gonzales also subtly notes that officers wouldn't have to moonlight if the city paid them better. "Does everybody do it?" he asks. "Nope. But quite a few do--that's how they make ends meet. And it takes away from their home life, takes time away from their family."
ANNUAL PAY FOR Tucson cops starts at about $30,000, with captains averaging a little over $70,000. Last May, the City Council rejected a TPD request for 7.5 to 10 percent raises. Instead, officers got the same 4.5 to 7 percent hike as other city employees
But while the cops may be floating in the same salary boat as fellow city staffers, they are unique in the ability to use city vehicles to earn extra cash--despite municipal policies barring such use.
According to a 1994 city administrative directive, "outside employment (of city workers) shall not involve the use of facilities, equipment or supplies of the City of Tucson, unless these services are available to the general public."
In other words, those cruisers--purchased and maintained by taxpayers--shouldn't be used for off-duty work unless all citizens get a chance behind the wheel, or at least a cut of the profits.
("The analogy would be letting Parks and Recreation people use their department trucks to do landscaping on the weekends," says one observer.)
Asked about that apparent policy snafu, most city leaders plead ignorance. For his part, Mayor Miller seemed particularly uninformed about TPD's off-duty habits.
Questioned about using cop cars for private profit, Miller replies: "A city vehicle can only be used for city business. In the case of higher executives, part of their contract includes having a city vehicle. They can use it going back and forth to work. Now if somebody is using it for other than city business, then the vehicle either should be taken away from them and they should be reprimanded, or they should be fined. It's just not the way it's supposed to be."
When told that's the way it is at TPD, the Mayor says, "Well, then something they earn should be returned to the city."
In this case, the return for use of a $30,000 car--without figuring maintenance costs--is $1 dollar per hour.
Asked whether running a private business through the police department is sound policy, Miller says, "I don't know--never thought about it, to be honest with you. I just don't know how to answer that question. There doesn't have to be, but I assume there was a rationale for that, to control the off-duty work and keep it so the police department feels they have control over it. It may be that the City Manager and the Chief of Police figure this as an administrative thing, and I believe it is."
While appallingly short on specifics, the Mayor does darkly allude to questionable off-duty machinations at TPD: "Say I'm an officer and you're an officer, and I'll get you a job," he says, "and I get a cut of what you get paid.
"I think there's an attempt to avoid that, which is not good for the morale of the rank-and-file officers, who then become beholden to somebody who's running this kind of a business."
(Sgt. Gonzales adamantly denies that the cops run such operations. "That would be pretty illegal," he says.)
But if the Mayor is right, does that mean reforming the department's evil ways is the taxpayer's responsibility? "I haven't gone into this thing in detail," Miller says. "I've briefly seen some memos and that's about it. But I don't think it's going to cost the city any more money."
Concerning additional costs coming from another quarter, namely increased liability risks, Miller simply referred The Weekly to the City Attorney.
Asked the same question, City Attorney Thomas Berning says that "although there are areas of concern because we're covering people for off-duty employment, it hasn't been too much of a problem, because private insurance has usually taken care of whatever problems exist. And I think (TPD) is pretty good, with this program, at making sure that liability coverage actually exists (with private employers)."
He says any risk arises from agreements with the cops' union, called the Tucson Police Officers Association.
"We are exposing ourselves to liability we would not otherwise have," he says. "But it's all part of the bargaining process with TPOA. I think we're getting something in return, when you can see how happy the policemen are because of it."
According to Randy Stenquist, liability claims involving off-duty cops have been few, at least in the seven years he's been a claims coordinator with the city's Risk Management Department. "There have only been a couple as I recall," he says, adding that neither went to court."
"One involved a man who was shopping in a grocery store. An officer thought she saw him shoplifting, and then attempted to arrest him. We ended up settling a claim for that one, for something under $1,000."
He says the second incident occurred on the east side, when off-duty cops detained three or four men at a shopping center. The men later filed a claim saying their rights had been violated, and the city settled, splitting the $5,000 pay-out with the center's private insurer.
Either way, Stenquist says, from his perspective off-duty cops "are police officers, no matter what they're doing. If something happens, they immediately change from being a private citizen to being a Tucson Police officer."

PAUL GATTONE IS staff attorney for the non-profit Southern Arizona People's Center. In that role he's fought the city--and nearby merchants--over the sidewalk ordinance and how's it's enforced. Standing alongside a rattling swamp cooler in the center's humble Fourth Avenue headquarters, he raises questions about off-duty policing that go far beyond mere liability questions.
He pulls out a ream of citations issued against kids and other loiterers since the statute went into effect. Of those 24 citations, he says, 16 were issued by off-duty officers.
To him, it reeks of specialized enforcement--and harassment--by an employer with deep pockets. "For example, if the cops are acting under the direction of private merchants, are they still liable for civil-rights violations?" he asks. "That's really problematic for me, when police officers can be hired by a special group of people to enforce their own special laws."
In that situation, he asks, are the cops beholden just to the merchants, or to everybody else as well?
"It's really murky. When somebody's paying you $20 an hour, who are you going to help first?"

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