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Tactical Operations Liability, Part 2

Written by Stephenie Slahor

“It takes a staggering amount of money to defend against a use-of-force case,” said Gene Ramirez, an attorney with the Law Offices of Manning and Marder, Kass, Ellrod and Ramirez, LLP of Los Angeles CA. He was a co-presenter with Lieutenant Ken Hubbs, San Diego Police Department and current president of the California Association of Tactical Operations (CATO), at a two-day seminar on tactical operations liability.

The CATO Tactical Operations Liability Course is intended for commanders, supervisors and team leaders of such operations as SWAT, K9, narcotics enforcement, gang enforcement, and fugitive apprehension teams. The course is offered twice a year.

Ramirez discussed the use of K9 assistance. If unreasonably deployed, he said, the dog could be considered a violation of the constitutional prohibition against excessive force. Training and supervision are vital to a K9 unit. Ramirez said special care is needed when the dog is allowed to attack. A suspect may seem to be resisting arrest when, in reality, he is actually resisting the bites of the dog.

“I’d actually prefer it if you work closely to the dog to see what’s going on,” he advised. “Judges are coming up to speed with you, so be careful.” The dog must be well enough trained to come “out” immediately upon command. There should be a mandatory announcement that the officer has a dog and that the dog will be let loose. The dog should be called off immediately when it is clear that the suspect is not armed.

Supervisors of K9 units should review the bite ratios of the dogs in the unit, the race of suspects taken down by the dogs, the geographic location of sites where dogs are released to attack, the duration of the bite time, etc. This is done to be certain that there is no institutional bias against minorities or certain neighborhoods, and that the dogs are “ranked” on a use-of-force scale.

Next, Ramirez said recent criticisms of some tactical operations teams have focused on the “militarization” of those teams in which they lose their civilian law enforcement status and seem to become paramilitary units, even to the point of dressing as “soldiers” instead of “police.” Compounding this perception is the fact that military surplus equipment is sometimes given to police agencies, and that training, intelligence and technology are sometimes shared between the military and the police.

Tactical operations units should not be for routine police work, and care must be taken to assure that tactical operations are used only in the rare, emergency situations in which a suspect presents an immediate threat to life or safety. Without care in the use of force, the public will clamor for more accountability in excessive force cases, botched raids, raids on the wrong address, and any lack of corroboration in intelligence gathering.

Ramirez added that the public watches more closely the demeanor and even the clothing worn by police officers, both on and off duty. “They watch what you buy at the snack shop in the courthouse,” he said. “What you wear certainly has in impact on the people you meet,” whether on duty or not. “We have to be careful about how we’re perceived by other people.”

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Lieutenant Hubbs next addressed the gathering saying, “It used to be that if it was tactically sound, we were on good ground,” but now litigants, their attorneys, witnesses and experts work to convince the judges and juries that the police should have done something else that was more in line with the “reasonable care” required for a specific action.

To that end, police agencies must carefully examine their “high-profile” units, whether those teams are SWAT, narcotics, gang enforcement, fugitive apprehension, K9, or other task forces. Each special team must be held to a higher level of training and expertise. There must be a rigorous selection process, a higher level of experience, and a honed professionalism in judgment, decision making and action. Department guidelines must establish the policy and procedures for each special team, operations manuals, and unit work. “This shows you are not ‘winging it,’” but “are highly trained professionals,” Hubbs said.

Documentation is key. There must be written reports about training including lesson plans, units of study, frequency of training and review, annual training reports, and after-action reports and training. Lesson plans should be completed well in advance of a training session and the supervisor should review the planned study and sign off that it has been reviewed.

At least one month before the training session, the lesson should be ready. After the lesson is completed, there must be documentation of who attended, what was actually covered, what occurred (good and bad), and discrepancies that were corrected (for example, what was done with a student who did not perform as expected and what remedial work was prescribed).

Hubbs pointed out that plaintiffs in liability cases will see police work as “dangerous” and require a high standard of training and readiness from officers involved in an action. If it is an investigative operation, there needs to be consideration of such factors as surveillance, witness interviews, computer work, intelligence gathering, preparation of the criminal case, search / arrest warrants, and preparation for suspect apprehension. For apprehension activities, there must be mission planning, contingency planning, preparation of operations orders, personnel assignments, and briefings before, during and after the action.

Hubbs said if an unfortunate incident occurs and a lawsuit brought, there will be rigorous scrutiny of department policies and procedures, unit operations manuals, training records, personnel files, and incident reports. There must, therefore, be policy in place about organization of the special team, member selection, training (for new and for existing members, and team review training), supervision, informant procedures, surveillance procedures, and apprehension procedures.

Hubbs advised that the unit’s manual should include such factors as its organizational structure, duties, extraditions, purchasing / cash disbursement, radio designators, investigative funds, equipment, vehicle assignment / take home policies, overtime, punctuality / leave time, subpoenas / court appearances, uniform and equipment, jurisdictional boundaries, callouts, operation plan procedures, task force plan forms, informant recruitment, and management.

When it is to be a joint agency operation, there must be policy for callout procedures, team capabilities and limits, common terminology, familiarity with each team’s methods, compatible communications, memoranda of understanding designating who is in command, reimbursement procedures, and liability agreements.

Hubbs cautioned, “Do not depend on luck to overcome poor planning or inadequate tactics.” The police agency needs to show that its teams are trained to handle both the routine and unanticipated aspects of an operation. “Always plan for resistance. Always plan for the unexpected,” he said.

Carefully read warrants to be sure the writer has not “cut corners” with a cut and paste version of another previous warrant, he said. Thoroughly brief the team and keep documentation of what was done so that, a few years later, if a case develops, there is a written record of what was done and how the team was prepared for it. Be sure to back up all computer files on the incident and store them in another location. Give passwords only to the people who must use the system so that information is not accidentally deleted or altered by unauthorized people.

Hubbs added that it is wise to work closely with your city’s risk management department so that accidental damage can be righted as quickly as possible. “Not taking care of damages says to the community you’re not taking responsibility for your actions,” he said. That will make the community turn against its police.

Hubbs said if an unfortunate incident occurs, the civil case for liability will go far beyond the action itself and examine such things as department policies and procedures, unit operations manuals, training records, personnel files, incident reports and any patterns or history of practices that discredit your agency. “Your reputation will precede you” in a case, he said.

Even though most police actions are “routine,” officers and their supervisors must always be aware that something can occur that is unexpected. “Have unit-specific guidelines,” he advised. Update those guidelines in writing at least every other year. Examine them at least annually.

Liability can focus on negligent appointment, retention, or assignment, inadequacy of training or supervision, and failure to direct competently. A valid training program can overcome some of those concerns through realistic daytime and nighttime training that is well documented and that includes practice in handling stress and in making well-reasoned decisions. You may know your team is trained, but you must be able to prove that in a case, Hubbs pointed out. There must be evidence of such practices as transitioning an officer to special operations, how all skills are practiced even if they are not often used, how judgmental skills are tested, and how both individual and team training is accomplished.

“It takes a long time for that team to mesh together,” Hubbs said, and documenting how it was done is important. “The plaintiff’s attorney will try to discredit” the agency by demonstrating that “poor decisions” were made. Hubbs cautioned not to cut corners or miss something. Be detailed, have documentation of everything, and maintain the evidence to prove that your team has professionalism.

“In joint agency operations, each attorney may try to put the finger of blame on another agency,” he added. “It is foreseeable that something bad will happen” when agencies mix. Be sure there is documentation of how the teams will cooperate, how they will communicate and how they will share common terminology and tactics. In a pre-planned incident, things are looked at as the “best-case scenario,” but that is a false perception, he warned.

Compliance of the suspect and rapid apprehension may occur, but there is also the likelihood of complicating factors such as resistance, armed or not, or other nuances affecting the action that was planned. Plan for all the ways something can occur. Record all radio transmissions. The supervisor must take command and control and not just let everything be handled by the team. An actively involved supervisor will demonstrate that there is support for the team. “That is powerful, powerful evidence for you,” Hubbs said.

Next, he discussed the matter of witness credibility in a liability case. He said juries appreciate, and expect, open and honest testimony with no cover-up of mistakes. The standard becomes even higher for special operations units. Jurors will want to know how much extra training was received, how skills and knowledge are kept honed, and how contingencies are planned for and handled. Documentation of competent supervision is a necessity whether that documentation is of recorded tactical radio frequencies or written reports.

Hubbs said photos of tactical operations’ on-site message / planning boards on which command post information is clearly displayed, lists of who is present and what equipment each has, photos of diagrams of the premises, and evidence of how decision making is done are beneficial to defending a liability case. “It shows how organized you are. Once again, it makes you look like a highly trained professional,” he said.

“The incident commander is like a field watch commander,” he said and thus there must be complete information about the situation, the mission, medical aspects, hazards on site, phone numbers, descriptions of suspects and others likely to be present, criminal and mental histories, overview diagrams, interior and target diagrams, etc., all written in clear handwriting on charts or white boards so that information is easily seen and shared among team members and their supervisors. In effect, he said, the police may be seen as creating an emergency with the use of a tactical operations unit during pre-planned events.

Pre-planning must be done by thorough intelligence gathering, complete contingency planning, and the developing of tactical plans in accordance with documented threat analyses. High-risk warrant service, stake-outs, protection details, protests / demonstrations, and similar events needing the work of a tactical operations unit must have operations orders that are planned, reviewed and approved in their tactics, techniques and tools. Each step taken toward safe, competent and successful action must be clear for jurors. “The bottom line is that, when it comes to credibility, that is your most precious asset in law enforcement,” Hubbs stated.

With warrants, affidavits and intelligence gathering, he cautioned to be sure that they have been thoroughly studied and reviewed to answer questions such as the following: Is the location correct in address and description? Are the subjects correct? Who else would be at the location (children, elderly, other subjects, other dangerous subjects)? What is the information source for these questions? How reliable is / are the source(s)? How is information collected and analyzed so that decisions can be made? How is a correct course of action decided?

Have all available resources been used (investigative personnel, witnesses, family, neighbors, computer information, landlords, vehicle license plate runs)? Is there adequate suspect information (name, description, weapons available / in possession, background, criminal and mental histories, motivating factors, prior incident history)? Is the target address mapped to show correct location, floor plan, location of utilities, routes and exits, and overviews? Hubbs said, “Information plus analysis equals intelligence.”

He added, “Mission planning is a chess game” in which there must be contingency planning for each option a suspect may attempt. “Always plan several moves ahead,” he advised, having plans for the primary steps, reactionary events, alternative actions, and emergencies—including aborting the operation. “Expect the unexpected and plan for it,” he said. “As a leader, everything you do, or do not do, is a conscious decision. We must always consider what the suspect may do, what preventative action we can take, and what our actions will be in response. We must not be taken by surprise,” he said.

Know that each “tool” used in handling an incident has certain circumstances in which it best functions, whether that tool is a firearm, dog, liquid chemical, pyrotechnical device, annoyance technique, entry / clearing technique, lock down, throw phone, camera, listening post, early warning device, or lights. The reason for use of any tool, weapon or tactic must be specific, based on the circumstances of the specific incident, and the tool must be deployed by properly-trained personnel.

Remember that even though there is a primary mission or goal, there may be several sub-goals such as rescuing hostages, apprehending the suspect, preserving evidence or securing evidence. There may be a need for special equipment from the fire department, EMS or public utilities. There may also be a need for interpreters or negotiators, fire-fighting equipment, and relief schedules for protracted incidents or changes in weather.

Be clear on who is in command, where the command post is, and what radio frequency the incident is operating on. Remember that occupying tactical positions is not a replacement for developing and implementing a thorough tactical plan, Hubbs emphasized. For example, when executing a mission, don’t merely say that you’re “demanding entry.” Instead, Hubbs advised, announce that you are the police, that you have a search warrant and that the occupant should open the door.

Planning and professionalism are vital. Hubbs said, “Ask yourself, ‘What are we doing?’ ‘What should we be doing?’ and ‘What will we do if—?’ You decide how thick—or thin—the ice you’re standing on is!”

Stephenie Slahor, Ph.D., is a lawyer who writes in the fields of law enforcement and security. She can be reached at drss12@msn.com.


Published in Law and Order, May 2008

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