Not Unreasonable For FOP To Deny Legal Coverage

Gerald Ferreyra is a United States Park Police Officer in Washington, D.C. In the early morning hours of May 29, 2009, while off duty, Ferreyra was arrested for assaulting a taxi cab driver.

The incident started when a taxi driver was sitting inside his cab at a red light at an intersection. Ferreyra approached the taxi and kicked it, then tried to open the passenger door while yelling a profanity. Ferreyra took the taxi driver’s clipboard out of the vehicle and threw it to the ground before walking toward the driver’s side door. The driver tried to exit his vehicle and run away, but Ferreyra stopped him and punched him twice – once in the face and once in the left shoulder. Ferreyra, along with a companion, walked away toward his car, but the taxi driver called 911 and blocked in Ferreyra’s vehicle. Law enforcement responded and Ferreyra was placed under arrest.

Ferreyra is a member of the Fraternal Order of Police, and participates in the FOP’s self-funded legal plan. Plan members can elect criminal coverage providing reimbursement for the “legal defense of a criminal action or proceeding brought against a Participant, arising directly out of the Participant’s activities in the scope of law enforcement employment, including grand jury proceedings.” Under the Plan, “in the scope of employment” means all activities of a Participant “while on duty in connection with employment, and all law enforcement activities authorized or required by the Participant’s Employment, whether on duty or technically off duty.” Members may also elect “Optional Off-Duty Administrative Coverage,” which covers “off-duty occurrences which result in administrative discipline or sanction when conduct is NOT in the scope of employment.”

Ferreyra, as a participant in the FOP Legal Plan, elected Administrative, Civil, and Criminal coverage, but did not elect Off-Duty Administrative coverage. When the Plan denied his request for coverage on the assault charges, Ferreyra sued the plan.

A federal court upheld the Plan’s denial of coverage for Ferreyra. The Court noted that “the essential inquiry here, in short, is whether the Plan reasonably construed and applied its terms in Ferreyra’s case. The Court must not overturn a decision found to be reasonable, even if an alternative decision also could have been considered reasonable. A decision will be found to be reasonable if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence.

“The structure of the FOP Legal Plan recognizes and incorporates the difference between being on duty and technically off duty, as well as the responsibilities that cannot and should not be abdicated while technically off duty. Its civil, criminal, and administrative coverages apply to all actions in the scope of employment, which can occur either while an officer is on duty or while he is technically off duty. There is no coverage for criminal proceedings arising out of conduct that was not performed in the scope of employment.

“Ferreyra’s eligibility for coverage turns on whether his off-duty actions were conducted within the scope of his employment; if so, he is entitled to criminal coverage despite his off-duty status. Unfortunately for Ferreyra, however, he never indicated or argued to the Plan that he was on duty or within the scope of his employment. He merely presented the police reports at the initial stage in the process. In evaluating the police reports – which mention nothing about Ferrerya identifying himself as a police officer, attempting to reach his handcuffs, or anything else related to police activity – the Plan was reasonable to conclude that Ferreyra was off duty and had not conducted any authorized police activities that would bring his actions under the scope of coverage.”

Ferreyra v. FOP Legal Plan, 2014 WL 2959015 (D. D.C. 2014).