Policies, ongoing training essential in avoiding police liability

The best place to begin efforts to minimize liability for law enforcement agencies is to have effective policies and procedures in place--but that really is only the beginning, say experts on public entity liability.

Policy statements may not be worth the paper they're written on unless review of the policies and training to abide by the policies is an ongoing process, observers say.

Only then will law enforcement agencies be in a position to effectively address potential liability issues arising from high-risk tasks, such as high-speed car chases or physical restraint of suspects, that police departments have little way of avoiding, they say.

"Policy and procedures are the fundamental foundation," said Jim Brown, associate director of the Fairfax, Va.-based Commission on Accreditation for Law Enforcement Agencies, which was created by four national law enforcement organizations in 1979 to establish and maintain an accreditation process for law enforcement agencies.

Policy and procedures "should be well thought out about what we want to do under a number of different circumstances and should be reviewed and updated regularly," Mr. Brown said. In addition to training, there needs to be "evidence that you are supervising to your policies and procedures," he said.

"I believe in accreditation; I prefer to work with an accredited police department. In some departments, accreditation is a program--it has to be a process that ratchets up performances," said Pat Gallagher, president of Gallagher-Westfall Group Inc., a Springtown, Pa.-based liability management consultant.

"They have to put the time and energy into maintaining the standards," said Mr. Gallagher, who is also co-director of the Legal & Liability Risk Management Institute, a division of the Indianapolis-based Public Agency Training Council.

"Policy is pretty well dictated by statutory and or legal precedents," said Greg Langan, loss control director, public entity and scholastic division, of Arthur J. Gallagher & Co. in Mendota Heights, Minn. "A lot of the training starts at the state academy," he said.

Regular refreshment

In addition, some states require regular refresher courses for particularly risky areas such as high-speed pursuits, Mr. Langan said. "When you're talking pursuit driving, it may not be possible for the department to send all of the officers to a technical course."

"We do multiple things," said Sarah Perry, risk manager for Columbia, Mo. "We have computerized training that covers many areas of law enforcement including excessive force. We have internal specialists who provide training on this issue. We also send people to offsite training," usually higher level officers, said Ms. Perry, who is also a director of the Alexandria, Va.-based Public Risk Management Assn.

Training to help officers make the right decision in high-stress situations is an area that should also be addressed, observers say.

"I feel that we don't do enough on decision-making," said Mr. Gallagher. "When I ask officers what they emphasize the most in training--they say knowledge and skill, but almost nothing on decision-making."

From a risk management standpoint, training is critical," said Laura Peterson, risk manager for the State of Nebraska in Lincoln, and a PRIMA director. "Our state patrol does a lot of work training officers prior to putting them in situations where they have to make these" critical decisions.

Decision-making training

The training involves not only the law, but the potential impact of decisions, said Ms. Peterson. For example, the Nebraska State Patrol shows officers a video of an accident in which the patrolman broke no laws during a high-speed pursuit but in which innocent bystanders were injured, she said. It's particularly good for new officers to see what they need "to be thinking about the potential impact and all the potential risks" of their decisions, she said.

The decision-making training is also key when police officers are in positions where firearms may be used, said Jack Ryan, a former Providence, R.I., police officer who is now an attorney and co-director of the LLRMI.

"Agencies really need to have shoot/don't shoot scenarios." He added that agencies have to be careful when they do scenario-based training because if the scenarios tend to have the same outcome--such as each scenario ending with the officer shooting--then "you may be conditioning your officers" to shoot in more circumstances than they otherwise would.

Scenarios should also be based on actual cases. That way, "you'll have the court's decision on what is legally sound," and scenarios should reflect the conditions in which an officer operates, said Mr. Ryan.

For example, two-thirds of all police shootings take place in low-light conditions, so scenarios should reflect such conditions, he said.

"Many police chiefs and sheriffs encourage their in-house training officers to attend use-of-force seminars and tactical training exercises," said Wayne Schmidt, executive director of Americans for Effective Law Enforcement, a Park Ridge, Ill.-based educational organization, in an e-mail.

"A number of private and nonprofit organizations specialize in force education and training. There is no national accreditation system for force seminars or tactical training sessions, although some programs have been approved by state peace officer standards and training boards. AELE seminars are approved for continuing legal education credits in the state where a seminar is offered," Mr. Schmidt said.

Supervision is "particularly important" in training to ensure that policies are implemented in practice, said Gallagher's Mr. Langan.

"We have to critique in a very positive manner situations where officers do make decisions," said Mr. Gallagher. "Someone should have the guts to say 'That isn't the way we do it' or 'That's perfect, we should hold this officer up as an exemplar."'

One way of doing so is to review police videos, such as those taken during chases, he said. "Supervisors should, of necessity, review every videotape."

Having proper policies, procedures and training in place "absolutely" impacts insurance costs, said Mr. Ryan.

What insurers examine

When reviewing a submission, Travelers Insurance looks for accidents and claim frequency but the No. 1 item the insurer "looks for is up-to-date policies and procedures in place to deal with critical issues," said Dennis Molenaar, vp-risk control at Travelers Insurance Co. in St. Paul, Minn. Policies and procedures governing pursuit and the use of deadly force "are high on that list," he said. Travelers also looks at whether an agency has a review policy place and whether both staff and supervisory personnel are well-trained in the policies and procedures.

Even so, insurance factors should not be the driving force for better procedures, said Mr. Ryan. "We don't want to wait to make changes because of some liability issue; instead we want better performance so that we never have the liability issue."