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Outdated policies spell ongoing liability risks for law enforcement

Outdated policies spell ongoing liability risks for law enforcement

BOSTON—Public entity risk managers could reduce police-related losses significantly by working to improve jail bookings, prisoner oversight and vehicle policies and procedures, according to a panel of risk management experts.

But capturing a police or sheriff's department's attention might first require risk managers to pay attention to their police departments in either some subtle or, when necessary, more overt ways, the experts told attendees at a session during the Public Risk Management Assn.'s 28th annual conference, held in Boston June 10-13.

Old, outdated policies and procedures "could be the biggest problem with police departments for risk managers," said Robert J. Krall, the Chicago-based director-risk control services at consultant Trident Insurance Services L.L.C., a unit of Argonaut Group Inc.

Those old policies and procedures can be the underpinnings of police actions that trigger lawsuits, but because they have not been reviewed and modified for years, they are passed along to new officers, Mr. Krall said.

How the police and sheriff deputies handle prisoners—from jail bookings through releases—are a source of claims that can be reduced relatively easily, according to Mr. Krall.

For example, he said, prisoners who need medical attention should not be booked until they are treated.

Mr. Krall noted cases in which prisoners who appeared in obvious need of medical attention before they were booked—including a woman who later suffered a heart attack—were instead placed in holding cells.

"That's a violation of their constitutional rights," he said.

David L. Salmon, president of OSS Law Enforcement Advisors of Spring, Texas, agreed, noting that a booking officer does not have to, and should not, accept an injured or ill prisoner.

Another big liability issue arises from the oversight of prisoners, especially those on suicide watch, Mr. Salmon said. Cases show that suicidal prisoners need only three to four minutes alone to kill themselves, he said.

Mr. Salmon advised risk managers to review the jailhouse log sheets for the past five prisoners on suicide watch. If the policy is to check them every 30 minutes, look for entries showing the prisoners were checked twice an hour exactly on the half hour.

"Does anybody believe that log?" Mr. Salmon asked. He said that such entries indicate that those times were filled in at the end of a watch and that routine prisoner checks were not conducted.

Mr. Krall also warned risk managers against locking up minors in the general jail population. "You've got to protect them," he said.

Outside of the jail, police pursuit cases have generated some significant liabilities for public entities, Mr. Salmon said.

Some jurisdictions have tried to eliminate that risk by prohibiting pursuits, but that policy is risky because there are some circumstances, such as a gunman on a school bus, in which a police officer or sheriff's deputy "has to" pursue, he said.

Then, if anyone is harmed as a result of that pursuit, the public entity is "in trouble," because its pursuit policy was violated, Mr. Salmon said.

Referring to police officers and sheriff's deputies, Mr. Salmon said: "You need to give them discretion and train them to use their discretion" wisely. If police and deputies have the authority to make such decisions—rather than strictly limiting their options—and they act how other officers might have reasonably responded in the same situation, then the odds are much greater that the officer or deputy and the public entity will be held immune from liability, he said.

The U.S. Supreme Court's recent ruling in Timothy Scott vs. Victor Harris is a must-read for risk managers, Mr. Salmon said. In the case, the court ruled that a sheriff's deputy is not liable for the injuries that a fleeing and reckless motorist suffered when the deputy ran the driver's car off the road (BI, May 7).

Risk managers should ask their police departments to consider changing their pursuit policies in light of the decision and at least give a high-ranking official the discretion to abandon the department's no-pursuit policy, he said.

More police fleet losses occur, however, because of bad driving by officers, Mr. Krall said. Those losses can be reduced quickly by putting those officers on foot patrol, he said. Losses from that officer will disappear, the officer will be more careful when his or her driving privileges are reinstated, and the rest of the force will be more cautious, he said.

Before implementing those moves, however, a risk manager has to get the police or sheriff's department's attention, the panelists said.

Marilyn L. Rivers, risk and safety manager for the city of Saratoga Springs, N.Y., said she befriended the city's police department and helped with such mundane issues as helping out a police official who was looking for a cleaning service. And, on many occasions, she would invite officers to vent about their stressful shifts.

Mr. Salmon supported Ms. Rivers' approach. "You've got to identify yourself with them or their problems," he said. "Let them explain their business to you."

But Ms. Rivers and Messrs. Krall and Salmon said risk managers might have to take a more direct approach with some departments when losses need to be addressed immediately. They recommended that risk managers work within the accounting process to reflect those losses in their police departments' budgets, which would tie up some funds the departments want to use for other purposes.

"If you use cash management, you can capture their attention pretty well," Mr. Krall said.