Print Article Rate Comment Reprint Information

SWAT Risk Management and Liability Reduction, Part 2

Written by Morefield, Bradley, Randy Means

In the first part of this three-part series, SWAT-type teams are called by a variety of different names in different agencies and jurisdictions but they certainly have at least one thing in common. The things they do and the training necessary to do them both create enormous risks of injury, death and multi-million-dollar liability exposures to individual law enforcement officials and their employing agencies. This article suggests some ways those risks can be minimized.

In Part One, there was discussion of two broad principles—choosing the right leaders and complying with 4th Amendment “reasonableness” requirements. Following are more specific recommendations for liability and risk reduction in this area.

 

Training in Decision-Making

More training is needed in critical thinking and decision-making. Sniper training programs are fun and, when it comes to whether a class is going to “make,” the shooting classes almost always fill up. But what about training in how decisions are made, how to approach a problem, how to solve it? The titles of courses like “Decision-Making” or “Critical Thinking” are not as sexy and attractive as “Sniper Fire” but those courses may be just as important as traditional skills training.

Consider also that emotion plays a powerful role in deciding human behavior. In fact, experts contend that it is emotion, not logic, that governs most human decision-making.  Training in emotional intelligence—how to recognize and manage emotion—may be enormously helpful in SWAT-type activities.

In these days when every move of the police can be recorded by citizens, commented upon in social media, and scrutinized by management and the courts, the importance of good decision-making comes into sharp focus. Decision-making training is a fast-growing area. There are many law enforcement trainers now providing this kind of courseware. 

Exceptionally good training on mental toughness and optimum tactical mindset is also widely available. Much of this training is excellent and well worth doing. Seek out the best. Also, consider professors at local universities or colleges to get different perspectives; those who can illuminate concerns or issues that had not been previously appreciated.

 

Inspect What You Expect

A recurring issue, not just for tactical teams, but law enforcement in general, is that people do not always do a great job of creating crystal-clear expectations—and then following up. Set clear goals and clear expectations of performance. Constantly train, but also constantly evaluate. In defending against a lawsuit, documentation of training will be vitally important—but documentation of team members having “met required training standards” is what really creates insulation from liability.

Of course, if that documentation shows that deficiencies were uncovered and the problems were not remediated, that won’t sit well with a jury deciding liability issues. Follow-up is critical. In determining how to best document these kinds of things, it may be useful to reach out to other teams in the area or look for state and national associations that serve as clearing-houses for this kind of information.

 

Be Judicious in Using Diversionary Devices

When surveying court decisions regarding use of diversionary devices in SWAT-type activities, it becomes clear that some courts are highly suspicious of those devices, some making a point of calling them “grenades” and such. These courts love creating a close quantification of diversionary devices and other munitions used: exactly how many flash-bangs were used, how many tear gas canisters, how much CS was in each canister, etc.? 

Knowing that these kinds of things will be closely scrutinized reminds that use of such devices should be careful and thoughtful. Plan ahead so every team member knows what is expected of him/her. Make sure those tasked with deploying such devices are properly trained and certified.

 

Train in the ADA

In the last several years, there have been more police lawsuits alleging violations of the American with Disabilities Act (ADA) on non-traditional grounds. Earlier on, the issues in the ADA lawsuits were easy to forecast—for example, transporting a wheelchair-bound arrestee in a properly equipped van. More recently, though, plaintiffs’ attorneys have been using ADA-based arguments to challenge police in use-of-force cases.

The ADA isn’t just about employers providing wheelchair ramps for employees and the public. There’s more to it. Consider the following scenario. SWAT makes the scene of an armed and barricaded individual suffering from mental health issues and ends up having to utilize deadly force.

There is a section in the ADA that applies to public entities including law enforcement agencies, “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

“Discrimination” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” So who are qualified individuals with disabilities? A person with a “disability” is an individual who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.

The point is that many of the individuals with whom special response teams come into contact are persons who may be “disabled” under the ADA, particularly as may relate to mental impairments. Perceived mistreatment or mishandling of such individuals and related situations by police may result in lawsuits under the ADA, in addition to more traditional claims.

What should be done to mitigate these risks? Review your current training to ensure it specifies the proper consideration for disabled individuals. Consider additional specific training in the ADA, perhaps coupled with (now popular) Crisis Intervention (CIT) Training. This may provide some proactive insulation from emerging ADA claims.

The final part in this three-part series will examine the specifics of recent case law pertinent to SWAT-type teams and their activities.

 

Bradley Morefield is a veteran law enforcement officer, police lieutenant, and supervising attorney with a major city police department. He is also the Legal Advisor for the Texas Tactical Police Officers Association. 

 

Randy Means is a career police legal advisor, former in-house counsel to a major city police department, legal department head at a state law enforcement training center and head of the national association of police legal advisors (IACP-LOS). His book, The Law of Policing, is available at www.LRIS.com. Means can be reached by email at rbmeans@aol.com.

 


Published in Law and Order, Mar 2014

Rating : 9.5


Comments

Comment on This Article

Good Article

By Adam Henry

Very helpful article, both for law enforcement and their counsel.

Submitted May 2 at 3:58 PM

Related Products

Americans with Disabilities Act (ADA)Diversionary DevicesFourth AmendmentLiability ReductionSWAT Risk Management
 
 
Close ...