Ensure you know the standards, so that your officers don't get themselves and you in trouble. Photo iStock
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The date is 09/03/10 and it is the Friday night beginning of a three-day Labor Day celebration, except for you and your fellow officers. As the field supervisor, you leave the station after completing the 2200 hours roll call and watch briefing. At 2300 hours, some of the preceding shift will go end of watch and two “swing shift” units will remain in service until 0300 hours unless conditions dictate they be held over. Your shift runs from 2200 hours to 0600 hours and consists of four two-officer units, three of which contain trainees.
On this night, your shift is augmented with two motor officers working in tandem and assigned to a DUI project with a reserve officer providing prisoner transport via a radio car. Typically, the DUI enforcement team completes its operations by 0400 hours. Also, you have access to a team of two experienced night detectives if the need arises.
You drive away from the station, slip into the flow of traffic and monitor the radio broadcasts and car-to-car traffic. You are comfortable in the fact that 09/03/10 is also the fifth year anniversary of your being promoted to sergeant and that you are now a viable contender for an upcoming lieutenant vacancy. It is a busy, but typical Friday night. It is expected that many of the police incidents to be encountered on this night will be alcohol related.
At 2232 hours, you hear a radio dispatch assigning one two-officer unit to handle and a second two-officer unit to assist on a 9-1-1 emergency call concerning a disturbance and possibly fight at a local bar. You monitor the dispatch 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 one of the motor officers indicate a 15 second ETA.
The call location is a short distance away and you elect to respond to oversee the police activities. You arrive just two minutes later and observe an obviously intoxicated and bloodied combatant in handcuffs being forced into the rear compartment of a police vehicle. The assigned handling unit arrives on scene at 2235 hours and begins to conduct a rapid fact-finding protocol that will shape the subsequent investigation.
Question: What is the sergeant’s role?
The scenario presented above is a common set of facts. Often, it is the “routine” call that gives rise to a civil lawsuit against the responding officers and the involved agency. As a supervisor, you can expect to also be named as a Defendant and held accountable for your actions or inactions as well as the conduct of your subordinates.
As a sergeant, your first primary responsibility is that of SAFETY. You need to assure that your officers, the citizens and the suspect are safe and secure. Once that has been achieved and the field situation has been stabilized, you can proceed to address the remaining supervisory tasks. Even though the incident appears under control, the civil liability CLOCK is still running and your attention to the post-arrest details may very well mean the difference between a prevailing lawsuit or a successful defense.
From your author’s field and litigation experience, it is absolutely clear that the post-arrest details frequently dwarf the original police response in terms of civil liability. The single most critical element of this observation is REPORT WRITING. Too many cases of good and reasonable police work have resulted in adverse judgments only because of inadequate routine documentation. It is also the experience of your authors that written reports are sometimes glanced over to make sure the boxes are filled in correctly but the in-depth cognitive read is shrugged off with the casual ”I am too busy to read this report” or “officer so and so has been around for a long time so I know the report will be okay”.
Using the earlier “bar fight” scenario, what is the proper role of the field supervisor? To better understand the question put before you, it is helpful to recognize that the role of a police sergeant demands certain flexibility. In the initial response, the sergeant may have to revert back to the role of a line officer until such time as sufficient resources arrive or the situation stabilizes. The point being that such calls are very dynamic and predictably fluid. The experienced sergeant recognizes the need to intelligently adjust to the changes in the field conditions. In the “bar fight” scenario, one subject is in custody and at least five officers are on scene. No further assistance is needed and a CODE FOUR is broadcast to the other patrol units.
Question: What now sergeant?
At this juncture, the critical issue is: How did the arrestee become injured? It seems that there are three possibilities and identifying which of the three is accurate dictates the post-arrest police procedures. For purposes of this article, one can assume the following three possibilities:
1. The subject was injured as a result of an altercation with
someone other than a police officer.
2. The subject was injured as a result of a forceful arrest by
the responding police officers.
3. The subject was injured as a result of an altercation with
someone other than a police officer and also as a result
of a forceful arrest by the responding police officers.
As a learning exercise, let us examine each possibility within the context of the police supervisor’s role. To be meaningful, this examination must recognize the objectively reasonable test as it relates to the civil liability inherent to police work. In the first case, the subject was injured as a result of an altercation with someone other than a police officer. If so, it is common for the police procedures and written reports to reflect a low-grade misdemeanor and a minimum level of interest by law enforcement and/or the criminal justice system. Therein lies the fertile field for the cultivation of a lawsuit by a skilled or determined plaintiff’s attorney.
It is at this point that the sergeant’s role becomes critical. Here, the sergeant must act as a “predictor of liability.” This is a risk management term defining the sergeant’s duty to capture and record the facts and circumstances of the injury to clearly establish that which did occur and that which did not occur but might be alleged at a later time. To accomplish this multifaceted task, the sergeant needs to address the following issues:
1. Ascertain and document the actual injuries to the subject. At a minimum, an EMS or paramedic response is always prudent and transportation to a medical facility is worthy of consideration even if the injuries appear less than serious. Such a procedure results in a medically sound recordation of the actual injuries and is typically consistent with pre-booking policies.
Photographs taken at the arrest site and again at the hospital or clinic serve to record the actual injuries and may disprove subsequent claims of greater injuries.The photographs should also include the claimed injury sites by the suspect even though there may not be any sign of injury. Audio and/or video recorded interviews often address this particular issue while also depicting the subject’s demeanor. Efforts specific to this task will preserve the nature and extent of the actual injuries, possibly offsetting that which might be alleged at a later time if the matter becomes a lawsuit.
Also, such medical protocols often capture very important data not necessarily included in the police reports (i.e. heart rate, blood pressure, pupillary reaction, toxicology, agitated state, non-compliance, confrontational behavior, specific claims of injuries, past history, etc.). In many lawsuits, the testimony of medical care professionals provides valuable information upon which a jury can discern fact from fabrication.
2. Preserve and protect the original call for service. A great number of lawsuits stem from incidents that begin with a call for police service. The 9-1-1 emergency call system (voice recordings and/or computer aided dispatch or both) typically captures the original information and the follow up information that is eventually provided to the responding field units. It is imperative that these critical communications are preserved in some manner to later establish the reasonableness of the police response.
Beyond the issue of probable cause related to the criminal matter, these communications often provide a jury with the insight (ie … “totality of the circumstances”) necessary to appreciate the reasoning and mindset of the responding officer(s). In some litigations, the original caller or reporting party evolves into the primary plaintiff or even a hostile witness. By preserving and protecting their original statements, the truth of any particular issue might be factually resolved as opposed to being obfuscated by a skilled attorney during the course of a trial.
3. Interview and obtain statements from all witnesses, non-witnesses and the reporting or complaining parties. Typically, when a low-grade misdemeanor event (such as the “bar fight” example) is stabilized and the offending subject is in custody, the police reports contain the elements necessary for the arrest but remain mute on the elements necessary to establish the objectively reasonable standard of care. For example, the typical police report seen in a “bar fight” disturbance outlines the criminal elements (“corpus”) of disorderly conduct, public intoxication, or assault and battery. Such a report can be easily submitted on a few typed pages and perhaps abbreviated even more when rendered on a common “one size fits all” report form consisting only of multiple “check offs” and a short narrative.
Here is the problem. Short misdemeanor reports classically fail to address the civil liability exposure. This shortfall can be easily remedied if the supervisor makes certain that all witnesses and non-witnesses are identified and interviewed. Even the non-cooperative (“I saw nothing.”) types need to be identified since they often re-emerge years after the incident and are presented as a surprise witness during the litigation. Those witnesses willing to be interviewed are of great value when they can provide real information concerning the subject’s conduct and behavior before the arrival of the officers, during the police approach and intervention and after the arrestee is taken into custody. This effort often documents that the arrested subject was the offending party, or actor, and that the police arrival and presence was obvious (ie… marked vehicles, uniforms, verbal commands, etc.).
4. Record the conduct and statements of the arrested subject. In a low-grade misdemeanor arrest, officers frequently see no reason or need to issue Miranda warnings and then interview an intoxicated and/or belligerent subject in the back seat of a patrol car. Typically, the arrestee’s condition and/or the witness statements are sufficient to justify the arrest. This common mindset ignores the liability exposures.
Dash cam or individual officer video recordings are highly effective in demonstrating to a jury what the plaintiff looked like on the night of the arrest as opposed to the “cleaned up, church going, decent citizen” currently sitting in the Courtroom. Belt-worn and lapel audio recordings in the field, during transport and while the subject is in custody are excellent means to educate the jury members as to the subject’s condition and demeanor while in the presence of the arresting officers. However captured, such audio-video recordings need to be preserved as evidence for both the criminal matter and for the subsequent civil litigation. Too often, this extraordinarily valuable evidence is routinely ignored or discarded.
5. In the example presented here, the hypothetical subject likely would have been injured as a result of an altercation with someone other than a police officer. Obviously, this suggests the involvement of another person(s) who may or may not still be on scene. Regardless, this other person or persons must be identified if at all possible, or at least well described by the witnesses and the subject. If located, this other person needs to be identified, interviewed, photographed and possibly even taken into custody if appropriate. Whether this other person is a suspect, a victim or a witness, he or she potentially represents a valuable source of real information that might well distinguish fact from fiction.
Of the three possibilities presented in this article, we have examined only the first, the scenario in which the subject’s injuries were not the consequence of any police procedure. So WHY exert all the investigative effort? Because, as a supervisor, you want to make certain that the post-arrest documentation addresses that which DID occur as well as that which might be alleged later in the form of a lawsuit or citizen’s complaint. Your extra efforts above and beyond what the DA might need for the criminal matter can effectively protect your Department, your officers and yourself from an unwarranted litigation and should be developed into your own individual practice. The primary point to be observed here is that civil litigations pivot more on the record following the event than the event itself. A very experienced police defense attorney once explained, “It is the police reports and involved officers that are on trial, not the crime or the crook.”
Note: The “bar fight” example used as the basis for this article will be further examined in following articles. In the next article, the scenario including a police use of force during an arrest event will be examined by the authors.