Back to the Basics: Cost Effective Strategies for the Reduction of Law Enforcement Liability
By: J. David Marsey
04.19.18Originally published in The Florida Police Chief, April 18, 2018
Law enforcement risk management programs and related training goals typically concentrate on the traditional high liability areas: firearms and weapons, use of force, driving, arrest techniques, first responder and first aid, diversity and discrimination and perhaps even critical incidents. The limitations on training funding and resources understandably require agencies to prioritize their training goals and to stretch their training budgets. However, few agencies provide training on, much less emphasize, training in the basic law enforcement skills inherent in every criminal case: investigation, report writing and providing sworn testimony. These areas touch nearly every investigation and arrest, comprise a significant portion of an agency’s risk profile and provide low-cost opportunities to contribute to an overall risk reduction program.
The links between acquittals or dropped cases and false arrest lawsuits is well known. When criminal charges against an arrestee are not substantiated, the suspect feels both vindicated and wronged by the system. Although there are many reasons for a valid arrest supported by probable cause to result in unsuccessful prosecution, many plaintiffs’ attorneys view the dropped case or jury acquittal as the ticket to a false arrest lawsuit. In our litigious society, law enforcement executives should consider low-cost supplements to their existing training tools. The importance of these basic law enforcement skills cannot be overstated.
The investigation itself is the first foray into the world of litigation. The recipe for success should not rely solely on the “case cleared by arrest” metric, but should also emphasize the quality of the investigation. Experienced personnel recognize that the case does not end when the offender is arrested. Officers are frequently challenged in all facets of litigation for conducting an incomplete investigation, the refusal to verify alibis, the incomplete collection of evidence or the tailoring of an investigation to fit a single theory of the crime. Every investigation should be treated as a neutral fact-finding mission and should follow the evidence without bias or preconceived notions of where the investigation will lead.
An investigation resulting in an arrest is accompanied by a written probable cause affidavit and report, the quality of which may dramatically influence the outcome of the case. A comprehensive report will include important factors such as the clear articulation of the reasons for a citizen encounter or detention, the circumstances and exact timing of reading the Miranda warning or the circumstances surrounding the granting of consent to search. It is not uncommon for use of force encounters to be described in vague, conclusory ways, instead of with an eye towards capturing the fluidity of a fast-paced and adrenaline-filled encounter that may not reach the courtroom until years later.
The next stop in the process usually involves sworn testimony. Opportunities to testify include bond, suppression, stand your ground and other evidentiary hearings, depositions jury trial. An officer’s performance – good or bad – in pre-trial testimony creates a sworn record that the state and defense counsel consider when deciding how to proceed. Inherent in the strength of one’s performance is the level of preparation and knowledge of how to testify and how that testimony might be used in the future. Many officers go years before they have the uncomfortable opportunity to be impeached through prior inconsistent sworn testimony. However, once it happens, it is rarely forgotten.
If we were to take a show of hands, how many agencies provide recruit or in-service training in these core, critical areas? If you are not, you should be. There are few factors more important to an agency’s risk for civil litigation than the foundation principles of investigation, report writing and providing testimony. Typically, by the time a civil lawsuit has been filed, the arresting officer has prepared a sworn probable cause affidavit, given a deposition and perhaps testified in a hearing or trial. Each may provide pitfalls for the unprepared and valuable ammunition for the wily plaintiff’s attorney to trip up an officer during the civil case. Once the record is fully developed, often before the 1983 claim is even filed, all the preparation in the world for the civil deposition cannot rewrite history.
Risk conscientious leaders should consider incorporating training in these critical areas as part of a comprehensive risk management program. The better the investigation, report and testimony, the better the criminal case and the fewer dropped cases or acquittals. A low or no-cost training option would include utilizing experienced officers and investigators within your agency with a history of exemplary performance to teach investigative techniques and report writing. Outside resources like agency counsel and the State Attorney’s Office may be used to provide legal insight into the litigation skills necessary for success in the courtroom. Additional cost effective training opportunities are available through the Florida Police Chief’s Association and others that may provide regional training to help defray the costs. Using the “train the trainer” model, a small financial investment can reap large dividends in an agency’s risk profile. Every arrestee is a potential civil rights plaintiff. Through comprehensive training on these traditionally under-appreciated law enforcement skills, law enforcement executives can take control of their own risk and dramatically reduce the chance of civil litigation.
J. David Marsey is a former police officer, investigator and prosecutor and is a Partner at the law firm of Rumberger, Kirk & Caldwell in Tallahassee, Florida. He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state. For more information, please visit www.rumberger.com.