If you’re a police supervisor, consider a bar fight scenario: How much do you really save if you tell your officers to shortcut field procedure and abbreviate the paperwork? If you have an estimate in mind, measure it against the cost of an avoidable lawsuit. Photo iStock
FEATURED IN LEADERSHIP
You probably consider yourself a competent and effective police supervisor. You’re well aware that law enforcement duties will place your officers in circumstances that require a legitimate application of force. In the two years or so since you were promoted and assigned to uniform patrol duties, you have carefully reviewed the department's policies concerning the use of force, and you have diligently instructed your shift on the moral and legal aspects governing the objectively reasonable standard of care. To aid you in this teaching task, you have even created and posted a Rules of Engagement display in the watch briefing room as a constant reference for the troops.
During a rather typical roll call briefing, the discussions include the note that it's a Friday night shift and the usual alcohol-related incidents are to be expected. Based on your professional experience and training, you recognize that alcohol impairs judgment and masks pain. The implications to standard police procedures are readily apparent to you, so you dutifully remind your ongoing watch to "stay safe out there."
Once out in the field, you hear the routine radio calls for service and conclude that this night is like so many in that the number of dispatched calls begins to exceed the available field units. Consequently, your officers are rushed to conclude each assignment and expected to avoid non-essential contacts. It's a Friday night, and you're busy.
Two hours into the shift, you hear a radio dispatch assigning one field unit, staffed by two officers, to handle, and a second field unit to assist on, a 9-1-1 emergency call of a disturbance and possible fight at a local bar. You monitor the call and recognize the location from many prior police incidents. You hear the handling unit give an extended ETA and the assisting unit indicate an "on scene" status. You also hear at least one additional two-man unit say that they'll be on scene in 15 seconds. It's a Friday night, and you are busy, but the call is a short distance away and you elect to roll as another "cover unit."
Two minutes later, you arrive on scene to observe an obviously intoxicated and bloodied combatant in handcuffs being forced into the rear compartment of a police vehicle. It's a typical start to the weekend night, and the suspect's verbally abusive language is part of your work environment. In a quick contact with the arresting officer, you learn that the suspect had engaged in a physical altercation prior to police arrival. You also learn that the suspect was non-compliant with the responding police officers and was subsequently forced to the ground, physically restrained and ultimately handcuffed.
The arresting officer quickly tells you, "When I first saw him, I knew he was going to go off on me."
An assisting officer tells you, "He went the hard way."
You take note that both officers appear calm and uninjured, but their uniform appearance is slightly disheveled. You also take note that the suspect's bloodied condition appears superficial and not at all serious. While still gathering the preliminary information, the originally assigned unit arrives on scene.
It's Friday night and you, your four officers and one bloodied suspect are still on scene and in full view of the bar employees, bar patrons and any number of passing motorists.
While the bar fight is obviously over and the disturbing suspect is safely in custody, the unrelenting police radio traffic reminds you that it’s still Friday night, and you’re still busy with other calls for police service. You expect this workload to continue into the early morning hours.
A part of your responsibilities as a police supervisor is to expeditiously return field units to an "available" status when one situation is handled to conclusion. You instruct the originally assigned unit to take custody of the arrested suspect and the assisting, albeit first on scene unit to "clear" and return to service. Having done your duty, you also "clear" from the bar fight call and return to service. It appears that another non-remarkable police event has concluded. At the end of watch, you return to the station, change into your "soft" clothes and head home still confident that you have done your duty.
Several months later, you and your co-workers receive an official notice that the suspect arrested in the bar fight incident has filed a civil claim against you and your department. The nature of the complaint seems to focus on four issues: 1) false arrest, 2) excessive force, 3) lack of medical care and 4) inadequate training. Looking back, the incident is vague in your memory. When you obtain a copy of the original police report, you realize that you have never seen it before even though your presence at the arrest scene is clearly documented.
Issue: False Arrest
In the hypothetical bar fight scenario, the supervisor assumed that the nature of the call coupled with the on-scene statements of the arresting officers (i.e., "When I first saw him, I knew he was going to go off on me"; "He went the hard way.") and the bloodied presentation of the handcuffed suspect constituted sufficient information to indicate an arrest. This logic is sound when viewed through the perspective of a properly trained and experienced police officer. However, it fails to address the details necessary to establish a specific criminal violation or the probable cause to justify a warrantless arrest.
The verbal accounts attributed to the arresting officers ("go off on me" and "hard way") are perfectly understood within the law enforcement profession but mean little to the civilian jurors who will sit and judge the reasonableness of the police conduct. The fact that a police supervisor was on scene and permitted such a vaporous arrest to take place will be exploited to infer that the department has a "pattern and practice" of effectuating false arrests. If racial factors, gender factors or lifestyle factors can be added to the complaint, plaintiff's counsel gains the advantage of putting the police work on trial rather than the suspect's unlawful conduct.
Trial experience has convinced your authors that it is frequently the non-remarkable arrest event that provides the basis for civil litigation. These are incidents that simply appear not to warrant a great amount of investigative effort or report-writing skill. And in this vacuum of information, the plaintiff's counsel can freely create or fabricate a fact pattern that might be believable—even if untrue.
In the hypothetical bar fight scenario, the supervisor needed to correctly ascertain what crime was committed. Was the arrest based on an actual altercation (e.g., assault, battery), on a "public intoxication" charge, on an "interfering" charge or on some combination of criminal charges? Was a "private person's arrest" carried out, or was the crime committed in the presence of the arresting officers? With these specifics unknown, it's not possible to accurately determine the proper police procedures to be followed.
Issue: Use of Force
Consider yourself as the police supervisor in the bar fight scenario. You have seen the bloodied suspect in the custody of your officers. Certainly, this indicates that some force was involved at some time, perhaps prior to your officers' arrival on scene. If so, the reporting party and potential witnesses need to be identified and interviewed and included in the police reports … even if such individuals are non-cooperative, hostile or otherwise questionable. On the other hand, the suspect's bloodied presentation may be the consequence of a forceful arrest dynamic, thus increasing the need for a more complete investigation, more thorough report writing and implementation of a supervisor's use-of-force review protocol.
The department's use of force policy may require the arresting officers to make an official notification to supervision of the need and description of the force used to take the suspect into custody. It is substandard and negligent for the supervisor not to ask specific questions calculated to determine the underlying reason why the arresting officer(s) used force. The "cop talk" answers ("go off on me" and "hard way") are simply inadequate. The supervisor cannot be satisfied until the arresting officer(s) explain the facts and observations that preceded the use of force. In legalese, this information represents a basic probable cause statement that supports the officer(s) initial judgment that a use of force is both appropriate and authorized.
In any case, the inquiry by the supervisor must crafted to identify the level and amount of force used and the underlying tactical objective to be achieved. From the expert witness perspective, the mere absence of the arresting officers' actual observations, perceptions, judgments and reasoning serve the plaintiff's counsel well in that the information not included in the original reports will be considered "after-the-fact fabrications." Regardless of the circumstances, the legitimate use of force by law enforcement officers is limited to the following five Rules of Engagement:
- For self defense;
- The defense of others;
- To effect an arrest;
- To prevent an escape; and
- To overcome resistance.
Issue: Lack of Medical Care
One common component of police related litigation is the allegation that the plaintiff was "seriously injured" at some point in the event and that the attending police officers and/or jail staff withheld necessary medical care. More often than not, this allegation is unfounded, but it does capture the attention of jurors. In the hypothetical "bar fight" scenario, the arrested suspect was observed to be "bloodied." In the real world of police work, the supervisor and the arresting officer(s) should recognize the special conditions and take affirmative steps to 1) care for the potentially injured person who is in their custody and 2) create a clear and unbiased record of the nature and extent of the injury, be it real or imagined.
This makes sense on a number of levels, including the notion that medical care was in fact provided and that trained emergency medical professionals (e.g., EMT, paramedic, ER physician) accurately assessed the arrestee's injury. Ultimately, this creates credible documentation and even reliable witnesses if the matter is later litigated. Booking records, medical assessments by custodial staff, photographs, taped interviews and video recordings are also very good sources of reliable information.
Issue: Inadequate Training
Each state has established minimum standards for the hiring and training of law enforcement personnel. These minimum standards include recurrent training as the officer's career progresses. Having consulted on thousands of police-related lawsuits, your authors seldom discover a "lack of training" to be an issue. In fact, the opposite is typically true. Most defendant police officers have acquired professional training above and beyond the state-mandated minimum standards. That said, some agencies fail to accurately maintain continued professional training documentation (AOT or CPT) and the absence of good record keeping may prove beneficial to the plaintiff's case. This is particularly true if the defendant officer acted in a specialty field, such as SWAT, K-9, Narcotics, Gang Enforcement, etc. The point to be observed here is that most officers are well trained at the entry level (basic academy) and thereafter receive additional training in either general or specialty law enforcement subjects.
Risk Management Factors
Returning to the hypothetical "bar fight" scenario, a few risk management factors must be considered by the police supervisor. First, busy and trying to cope with a workload that exceeds field resources are unfortunately common police operational realities. The real question comes down to economics. What do we save when we shortcut the field procedure and abbreviate the paperwork? If you have an estimate in mind, measure it against the cost of an avoidable lawsuit. If the case at hand involves a use of force and/or an injury, one can predict a civil liability exposure. Hence, the most economical police procedure is the one that establishes an accurate fact pattern, identifies available witnesses (police and civilian), collects and preserves evidence, and documents the responding officers' observations, perceptions, judgments and reasoning.
Years and years of civil litigation experience in a wide variety of jurisdictions clearly demonstrate that civil trials frequently rest on the original police reports and records, often to the exclusion of the facts faced or considered by the defendant officers. Most issues placed before a jury simply asks the critical question: "Why did this happen?" If the original police reports fail to comprehensively and accurately provide the who, what, when, where, why and how information, then the jury may be convinced that some other police procedure was simply more reasonable.
As a competent and effective police supervisor, expect and demand that the lessons learned and the recommended terminology concerning reasonable suspicion, probable cause and the objectively reasonable standard be included in all subsequent use-of-force reports, be they oral or written.
Curtis J. ("Jeff") Cope is a retired police lieutenant from the City of Huntington Beach, Calif., with more than 29 years of active law enforcement service. He is currently active as a police trainer and serves as the program administrator for the California POST Commission Institute of Criminal Investigation, Instructor Workshop Series. He holds a Master Instructor certificate and has been teaching police tactics and procedures for more than 39 years, specializing in use-of-force issues, supervision, training and other subject matters. Since the early 1980s, he has been recognized as an expert in Superior and Federal Courts in several states.
Joe Callanan is a retired sheriff's lieutenant from the County of Los Angeles, Calif., with an extensive patrol background, including SWAT and special operations. He holds multiple POST Commission certificates and is recognized as a subject matter expert concerning the use of force and deadly force. He has more than 35 years of law enforcement teaching experience and has been published more than 50 times in professional journals and magazines. Since the early 1970s, he has been recognized as an expert in Superior and Federal Courts throughout the United States and in the Provincial Courts of Canada and Australia.
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