Managing Liability: 6 Strategies to Adopt So You Won’t Be Taken to the Bank
Documentation, training, Clery and Title IX compliance and addressing officer stress are some ways you can keep your department out of court.
Unless you’ve been living on the far side of the sun, it’s been pretty tough to avoid hearing recent criticisms of the way campus public safety departments protect and serve the public. These days, everyone carries mobile phones capable of recording video and audio, and the local media are replete with footage of police behaving badly. Of course, the news stories generally spend less time setting the context, explaining matters from the officers’ perspectives, and conveying the life and death urgency of the moment.
And just as night follows day, litigation alleging excessive force, negligence, malfeasance, etc. follows these news stories. Apart from the tragedy attending unwarranted death or injury, there are plenty of ways for individual officers, their leaders, their agencies and their institutions to suffer. The nightmare scenario is the loss of a criminal or civil case. Institutional and perhaps even personal payouts are huge, credibility is lost, morale takes a nosedive and more. Even successful adjudication in favor of the department comes at enormous legal costs, stress within the department, reduced productivity and loss of credibility among community members who dispute the court’s findings, just to name a few consequences.
Obviously, it is better to avoid ending up in court in the first place. Here are six areas of potential liability and some things you can do to protect yourself, your officers, your department and your institution.
1. Ensure officers document everything in their reports. Every interaction, including what was said by the officer and the citizen, explanations, non-verbal communications and the like needs to be written down, whether in an official police report or a field interview. If a complainant doesn’t want to press charges, write it down. Three months later, when, for instance, parents find out about a child’s untoward activity and want to know why the police didn’t take appropriate action, it is a life-saver to have documentation, with actual quotes if possible, explaining why we did what we did.
If force is used, the officer’s explanation of what was said, the difference in weight and strength between cop and suspect, whether the officer was recovering from the flu, threats made by the suspect, the absence of back-up and the like will protect an officer and the department. Such detail will go a lot further to protect an officer than saying simply that he fought with a suspect who refused to be taken into custody.
Even casual meetings should be recorded. If you have a benign encounter with a person on campus late at night and then find out the bookstore was burgled that same evening, you may have just met the burglar.
2. Train realistically and often. If an officer uses force to take someone into custody, has a traffic accident or displeases a citizen in any one of a hundred ways, the resulting lawsuit will ask if General Orders were followed, if certifications were current, if officers had trained in realistic scenarios, etc. If the answer to any of the above is “no,” expect to be taken to the bank for failure to train.
Courts have held, for instance, that firearms qualification does not constitute training, and therefore, officers who qualify once or twice to maintain their certifications are not considered to have trained. When is the last time your officers took an emergency vehicle operations refresher: If your officer backs into a citizen, you’ll wish you had sent him. Are your officers training regularly on defensive tactics? If not, can you be assured they are using approved techniques?
Another way departments get into trouble is not adjusting their General Orders and Field Training Manuals to reflect recent code changes, legal opinions and best practices. Failure to stay on top of these changes puts officers in an untenable position, suggests inattention by command of detail and undermines the department’s credibility in general. The plaintiff’s attorney might ask you, “Chief, if you failed to update your GOs to reflect recent changes in the law, what other legal requirements have you and your officers disregarded?” I don’t want to be on the stand answering that question.
3. Establish an active roll call training program. GOs, legal changes, defensive tactics techniques, use of force guidelines and prohibitions, officer safety, the content and limitations of mutual aid agreements with local agencies, and many other topics are perfect subjects for roll call training. I am surprised by how many officers still do not realize that citizens, with a few minor exceptions, have the right to photograph officers in the performance of their duties. Similarly, many officers are hard-pressed to de-conflict a citizen’s free speech rights with disrespect of cop. Covering these and other topics that are the daily bread and butter of your officers will help keep them safe and motivated, perform their duties more professionally, and it will reduce citizen complaints. Equally important, it will protect you and your institution from litigation when you can show your officers trained regularly. The key, however, is documentation. Every time your officers train, you need to include a short write-up on what was covered (a one-page handout works nicely), the date and time the training was conducted (to include duration), and who attended at a minimum. I have a list of roll call training topics as well as firearms proficiency topics I use to document training. You should too, and you should keep detailed training files.
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