FEATURED IN TRAINING
In previous articles, your authors directed your attention to the role responsibilities of a police supervisor at the scene of a typical “bar fight” call during which a slightly injured and bloodied subject was handcuffed and placed in the rear seat of a police vehicle. In these situations, we considered the following three apparent possibilities:
- The subject was injured as a result of an altercation with someone other than a police officer.
- The subject was injured as a result of a forceful arrest by the responding police officers.
- 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.
For this discussion, we’ll again assume that you’re an experienced field supervisor and that you’re on scene with four patrol officers and one motor officer. The situation has been stabilized as a direct result of the subject’s arrest, although a small group of adult bar patrons have assembled in the evening air to watch the police activity occurring in the parking lot. In your preliminary review, you learned quickly that the subject was significantly intoxicated and created a disturbance that resulted in a 9-1-1 emergency call and the subsequent police response.
It’s a Friday night and beginning of a three-day Labor Day weekend. In days gone by, such an incident was generally considered routine and non-consequential. But in today’s litigious society, there are several factors to alert you that the incident is ripe for exploitation. With today’s technology, there’s a real expectation that some parts or several different angles of the incident were recorded by cell phone or security video technology. It may be likely that several bystanders will record the same incident, and each may give a different perspective of the event.
At some point, you learn that the first responding officers deployed a taser device inside the bar and caused the subject to fall to the ground and thereby bloodied his mouth and forehead. You also learn that they forcefully handcuffed the subject while the backup officers prevented the bar patrons from interfering with the arrest.
Question: As a field supervisor, how do you organize and prioritize the tasks necessary to the prevailing circumstances?
Essentially, a police supervisor facing the circumstances described by your authors has three distinctive categories or areas of responsibility.1 The first is the obvious public safety and law enforcement role. The second is the supervisor’s core responsibility to evaluate issues of policy, training, equipment and tactics. The third, and most often overlooked, is the supervisor’s role as a primary risk manager.
In the hypothetical “bar fight” scenario, the disturbance has been quelled, the apparent suspect has been forcefully arrested, an assembly of potential witnesses remains on scene and you, as the field sergeant, have at least four patrol officers and one motor officer already on scene. You also have rapid access to two non-uniformed detectives assigned to your watch and available for special assignments.
Three absolutes are very apparent: One, the arrest of the suspect involved the use of force (i.e. physical restraint and taser device). Two, the arrested subject appears bloodied. Three, there’s an assembly of potential witnesses, any of which might have also been participants in the original bar fight disturbance call.
Assuming that the situation has been somewhat stabilized and normalcy settles over the assembled on-lookers; that your officers are all safe and secure; and that the forceful arrest appears rather typical, your supervisorial role responsibilities have just begun. Here are some issues for your consideration.
You’re not a trained physician with diagnostic skills or a medical license. Obviously, if the injured suspect presents as a medical emergency, you or your officers will either summon Emergency Medical Services (EMS) to the scene or transport the suspect to a nearby medical facility. But a simple bloodied lip and forehead might convince you or your officers that the suspect was 'ok to book" at the local jail.
In terms of a subsequent litigation, this “fast track” booking process will be described as a failure to provide reasonable and necessary medical care concerning an injury that’s likely to be grossly exaggerated at trial. A proactive field supervisor should recognize that a forceful arrest, with even a minor injury, presents a measurable likelihood of a civil lawsuit, a citizen’s complaint, a news media involvement or all of the above. With that reality in mind, the actual medical condition of the suspect must be determined, documented and treated in a humane manner by collecting and preserving critical evidence, and clearly demonstrating professional conduct on the part of the involved officers.
In this hypothetical scenario, the use of a taser device was included in the fact pattern. The removal of the taser barbs and the treatment of the superficial punctures in a medically approved manner, are simply the best police practices for the described situation. Anything short of that will be exploited by a skilled litigator as “deliberate indifference” by you, your officers and your agency.
Still not persuaded? Let’s look at this again from an investigator’s perspective. If we summon an EMS unit to the scene, a “run sheet” will be created and the paramedic examination (time line, vital signs, observations, treatment, complaints, etc.) will be created by the professionally trained ambulance crew and thereby preserved in document form and possible live testimony, should the need arise. Similar evidentiary products will result if the suspect is taken to a nearby ER facility for a pre-booking examination and treatment. The hospital scene also offers the opportunity for audio and photographic recordings and possibly blood or urine analysis. If the suspect is determined to be “ok to book” and is later processed into a jail setting, it becomes essential that a pre-booking (intake) medical screening performed by a jail nurse or doctor take place and that the suspect’s physical condition is again documented along with the booking photographs. The suspect’s signature or “refusal to sign” on the various ER release and jail intake forms frequently become high-value evidence in a litigation-driven dispute of facts. Photographs should be taken of the suspect’s injuries. Officers’ injuries and or damaged equipment should be documented and photographed. Officers’ should seek medical treatment if they’ve received injuries from the altercation and also included in these facts into the written report.
As you can see, the above recommended protocols greatly exceed the needs of the basic police report necessary to the prosecutor’s criminal case. That’s exactly the point. Recognizing and preserving the truthful evidence of the incident transcends the normal police procedure and effectively, proactively fortifies the litigation response.
Recordings and Photographs
The hypothetical "bar fight" scenario included a 9-1-1 emergency call for police service followed by a radio dispatch to a bar known for such disturbances. How does any or all of this relate to the state of mind or the reasonableness of the responding police officers? The term bar fight has a special meaning to a properly trained and seasoned officer, a meaning that might be lost to the decent citizen sitting as a juror after the fact. This is a continuing communications shortfall that includes understanding the 9-1-1 emergency call factor, the call dispatch process and the responding officers’ knowledge of the history and hazards associated with the bar itself.
Let’s first consider the call takers who operate internally within the police agency or in a multiagency or regional communications center. In many instances, the original call taker may also perform the dispatch function (radio or mobile digital), the data inquiries (location, vehicle, subject history, etc.) and even interagency communications. At some points during their shift, it’s expected that this staff can become overloaded and necessarily curt in favor of expediency. It’s here that we may begin to lose crucial information that may immediately impact safety issues and later impact liability issues.
For example, the "bar fight" scenario suggests that at least one, and possibly more than one, person concluded that the on-scene situation warranted a call for police service. Why? Here we have an on-scene reporting party or parties who can be directed to provide situational intelligence as to what’s occurring and who’s the offender. It’s likely these observations will demonstrate a violent situation exists at the time of the 9-1-1 communication.
Common to most law enforcement communications systems is the automatic recording of the incoming call and the outgoing dispatches. Continued base station to the field units and continued tactical (car-to-car) messages are also recorded as a common practice. This is a rich source of independently acquired information that will initially affect the responding officers and perhaps later effect the deliberations of a jury.
Unfortunately, three missteps frequently occur at this early stage of the incident.
- The call taker receives and processes the initial caller information and then begins to devalue subsequent callers. This is often expressed as, “We already have that information and officers are on their way” followed usually by a quick disconnect.
- The fact that multiple callers contributed to the complaint certainly alert the responding officers that the situation may be more than a routine call. This is obviously a safety issue in the instant, but it’s also of great interest to a juror attempting to appreciate an officer’s state of mind and reasoning.
- The number of callers and the likelihood of them being identified and interviewed are salient facts that typically don’t appear in the written police reports or in the investigative work products.
Still not persuaded? Let’s consider the expected jury impact of the following examples, which might be contained in the original police report:
- Police report simply reads: “We responded to a disturbance call at …”
- Police report accurately reads: “We were advised by dispatch of multiple callers reporting a disturbance at …”
- Police report accurately reads: “We were advised by dispatch of several 911 Emergency alls received from the location describing a physical fight between two male subjects in the pool table area of the bar. We were also provided with a back-up unit based on the known prior police incidents at the bar.”
- Police report accurately reads: “We were advised by dispatch of several 9-1-1 emergency calls received from the location describing a white male subject in a red shirt creating a disturbance. Callers reported that the male subject was extremely intoxicated, possibly on drugs and has been involved in three altercations in the last hour.”
The point is that normal police communications are almost always systematically recorded and then often left out of the report writing process. Worse yet, many systems depend on the periodic recycling of audiotapes or digital memory in a 30 to 90 day rotation. Once reused, the incident in question become non-retrievable, a fact certain to be used as evidence of a cover up conspiracy.
In more modern times, dash camera recording devices have been prudently purchased and installed in many police vehicles. These offer indisputable audio-video recordings of both in-car and out-of-car incidents. The subject’s camera and open-mic presentation can be captured in the moment. The officer’s professionalism and disciplined demeanor can also be preserved. Belt or pocket recording devices can also be effective in documenting the event. These fascinating real time and real life recordings promise to document that which occurred and refute that which was alleged to have occurred.2 Perhaps one of the most significant advances in the area of available police equipment is the taser technology that now offers device activated or officer worn audio-video recording capabilities.
Returning to our hypothetical "bar fight" scenario, what other types of recordings might an alert field supervisor take steps to capture? Valuable information can be obtained from witness or business sources, but may be overlooked in a “routine” call for service. Closed-circuit security video systems are frequently available inside and outside of business establishments such as restaurants and bars. In some cases, an adjoining business or a nearby building might operate such recording devices and these have proven to be crucial during civil liability trials.3 Effective supervisors should consider inquiring whether officers have determined if such potential evidence sources have been tapped.
Two of the primary benefits in securing such real time and real world recordings are that the average juror typical lacks any appreciation for the rapidly dynamic conditions often encountered by responding police officers and typically lacks any experience, training or understanding of proper police procedures. These two important shortfalls can be effectively overcome by the use of audio-video recordings that captured some portion of the incident and possibly display some of the existing circumstances and some of the police intervention.
At a minimum, efforts should be made to at least identify who might be potential witnesses to the circumstances prior to, during and following the police intervention. In the hypothetical bar fight scenario, someone called for police service. Usually this person can be identified and is generally cooperative. It’s essential to thoroughly mine this human resource while maintaining a cooperative and positive relationship.
Initially, this reporting party will be interviewed briefly by the responding patrol officers. What’s typically seen in police reports is a very brief synopsis of this person’s statement and not the totality of the available information. While the first, brief interview statement might well satisfy the arrest criteria, a second and far more detailed interview might go a long way to buttress the state of mind or the reasonableness of the responding police officer’s use of force. Perhaps this second contact might be best conducted by an experienced detective skilled in cognitive interview techniques.
Identifying witnesses is an important task regardless of their involvement or level of cooperation. Even noncooperative and hostile witnesses should be identified when possible. Vehicle license plates often provide information that’s intentionally withheld. At the end of the exercise, the best possible outcome is that all potential witnesses be identified regardless of their willingness or ability to provide relative information.
In the hypothetical "bar fight" scenario, the witness interviews need to address certain crucial elements of the incident. Often overlooked and not reported is the conduct and behavior of the principle subjects involved in the incident. Simply stated, what was the situation that caused the 9-1-1 emergency call for police service? What was going on and who was the apparent actor? This information typically documents the state of affairs prior to the police intervention, thereby properly designating the offender (or offenders) as the actor and the responding police officers as the reactors to a situation that was already underway.
Unfortunately, the pre-existing situation is rarely described fully in the subsequent police reports leading the reader (or plaintiff) to conclude that it was the police presence that created the confrontation. The next crucial element concerning witness interviews is to accurately document their cognitive awareness of the police presence. Their visual observations of distinctively marked police vehicles, recognizable uniforms and unique police equipment are very important facts that are often missing from the subsequent police reports. Words uttered by the offender before and during the police intervention are very important even if the witness is unclear as to exactly what was said. Of paramount importance is the corroboration that the officer issued an arrest or cease and desist advisement to the offender at some point during the encounter.
This article was intended to raise the reader’s awareness of the importance establishing the objectively reasonable standard of care while responding as a supervisor to a hypothetical police use-of-force incident. What professional law enforcement officers and supervisors take for granted as everyday practical experience is frequently left out of the investigative effort and the subsequent police reports. Consequently, the perceptions of the press, the public and even a jury panel might be formed on the basis of an incomplete or inadequate presentation of the actual facts that, if reported, might support the necessity of the police intervention.
1 Three Hat Theory referenced in Law Officer Magazine article on 05/24/10 entitled “Elements of Supervision – Part 1” (Cope & Callanan)
2 The authors have reviewed literally thousands of such exhibits over the course of many years of litigation support and can confidently conclude that such special equipment is a cost-effective means of capturing the truth and validating the appropriateness of the police response to a dynamic situation.
3 Defense verdict re: John Justin James vs. City of Madera, et al; U. S District [Eastern]
Court case number 1:08 CV 01943 OWW GSA (Weakley & Arendt)