Can an Off-Duty Police Officer Arrest You in North Carolina?

When an off-duty police officer makes an arrest, one of the first questions to ask is whether the off-duty officer had the authority to make the arrest. While issues about the officer’s status and authority depend significantly on the actual situation surrounding the arrest, North Carolina law establishes general rules that apply to off-duty arrests.

Status and Authority of Off-Duty Law Enforcement Officers in North Carolina

Since past decisions of the North Carolina Supreme Court and Court of Appeals guide lower courts in resolving issues, looking to previous court opinions provides guidance on off-duty arrests. Both appellate courts have addressed issues relating to the status and authority of off-duty officers in a wide range of different contexts.

Generally, North Carolina court decisions support the conclusion that a police officer is “always” on duty. In the 1992 case of State v. Gaines, which dealt with murder of an off-duty officer engaged in secondary employment, the North Carolina Supreme Court addressed the issue in connection with the nature of the murder offense. The Court stated that:

With regard to our laws dealing with a law enforcement officer's duties as to arrest or search, there is no distinction between on-duty and off-duty status. … [The] legislative expressions appear to unerringly point to the proposition that a police officer retains his official law enforcement officer status even while "off duty" unless it is clear from the nature of his activities that he is acting solely on behalf of a private entity, or is engaged in some frolic or private business of his own.

The Court of Appeals echoed this rule in a different case in 2000, stating: “Even an off-duty deputy is considered to be acting under the color of state law when the nature of his actions involve official police action to enforce the law.”

Limitations on Arrests by Off-Duty Officers

Under North Carolina laws and court decisions, the general rule is off-duty officers retain their law enforcement status and authority. However, the Grady opinion expresses two situations that constitute exceptions to that rule:

• The officer is acting solely on behalf of a private entity, or
• The officer is engaged in a “frolic” or private business of his or her own.

The facts surrounding an off-duty arrest determine whether one of these exceptions applies. In a specific case, there may be factual disputes between a defense attorney and prosecutor whether the circumstances meet the requirements for one of the exceptions to apply.

Jurisdiction of Off-Duty Officers

Generally, local law enforcement officers in North Carolina have authorization to arrest only within the boundaries of the city or county they serve or on property owned by the locality. However, there are exceptions when arrests outside the jurisdiction are permitted, based on immediate and continuous flight and other limited situations.

If an off-duty officer makes an arrest outside his or her official service area, the defendant may challenge the officer’s jurisdiction in addition to raising issues about the officer’s off-duty status. Whether the circumstances fall under the general rule or qualify as an exception to the rules on jurisdiction will be based on the specific facts of the case.

What to Do If You Are Arrested By an Off-Duty Police Officer

The discussion above provides basic information about the legal principles and rules that apply to off-duty arrests in North Carolina. The rules and exceptions are deceptively simple to state. In reality, the legal issues and factual questions in an off-duty arrest situation are extremely complex.

Detailed analysis of an off-duty arrest requires assistance from an experienced criminal defense attorney. If you are arrested by an off-duty officer, you should exercise all your rights and contact an attorney at the soonest possible time.

Defending Against Criminal Charges in North Carolina

The legal issues surrounding off-duty arrests provide an excellent illustration of how important it is to contact an attorney when you face any criminal charge. For an off-duty arrest, there may be available defenses than can result in dismissal of a charge or suppression of evidence in a case. A defendant may become aware of those possible defenses only after consulting with a knowledgeable criminal defense attorney.

After any type of arrest, you should exercise your rights immediately, including the right to refuse making a statement to the police and the right to legal counsel. Your attorney will examine the facts and circumstances of the charges against you thoroughly and determine what defenses are available. The best strategy after an arrest is to rely on your attorney, rather than making any assumptions about the arrest.

Talk With an Experienced North Carolina Criminal Defense Lawyer

At The Twiford Law Firm, we represent individuals in criminal matters in both state and federal courts. Regardless of what type of charge you face, we aggressively represent you and assert all available defenses.

With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.