Public Employees or Private Citizens: The Off Duty Sexual Activities of Police Officers and the Constitutional Right of Privacy

Abstract

Society depends upon its police departments to maintain order, prevent and detect crime, and enforce the law. The ability of any police department to succeed in these tasks depends upon the ability of each of its individual police officers to do so. Society therefore has an interest in monitoring the behavior of each of its police officers to see if he or she has any physical, mental, or moral flaws which make the officer incapable of carrying out his or her charge. However, this interest may sometimes conflict with the police officer's privacy interest, as well as with society's interest in protecting the privacy of its citizens.

For the most part, the law's attempts to govern this conflict have been far from satisfying. Rules and regulations that govern police officers' off-duty conduct are often broadly worded, usually prohibiting any "misconduct" or "conduct unbecoming an officer."

Consequently, issues concerning regulation of the private, off-duty, activities of police officers arise frequently, with the lower courts divided both in their analytic approaches and results. While several lower courts have upheld the removal, suspension, or demotion of police officers for otherwise lawful off-duty conduct, others have not allowed such state intrusion into the private lives of public employees. Such ad hoc treatment is a source of injustice to the police officer who may find him or herself dismissed, suspended, or demoted, without warning, for engaging in conduct that most people are free to engage in without consequence.

This Note, written in 1984, proposed a framework for dealing with problems in this area in a manner which best balances the competing interests involved.