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

This Note proposes a framework for dealing with problems in this area in a manner which best balances the competing interests involved. It argues that, while there is no explicit constitutional guarantee of privacy, the state is not free to regulate all aspects of a police officer’s otherwise legal, off-duty, sexual activity. Part I of the Note examines several possible sources of a constitutional right of privacy. It concludes that, although many of the courts which invalidate state regulation of police officers’ off-duty sexual activity do so on the basis of some constitutional right of privacy, any implied fundamental right of sexual privacy should be construed narrowly to protect only those activities within the realm of a family relationship. Part II analyzes an alternative basis for protecting this type of behavior. It asserts that prohibiting a police officer from engaging in off-duty sexual conduct in which the general public may otherwise engage violates equal protection. Finally, Part III argues that even if a sufficient state interest can be found to validate the separate treatment of police officers and other citizens for legislative purposes, a broad “conduct unbecoming an officer” standard is too vague to survive as a sufficient prohibition against off-duty, “immoral” behavior.