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Tactical Operations Liability, Part 1

Written by Stephenie Slahor

“It takes a staggering amount of money to defend against a use-of-force case,” offered by 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.

“All use-of-force cases are expensive to defend,” said Ramirez, and a case with SWAT or K9 involvement could double—or more—the cost of liability. It’s not just the operators and team leaders who might be held liable. Command staff can be vulnerable to liability, too, so they also need training for the decision making that can prevent or lessen liability.

“We will see a surge in litigation against tactical teams,” he said. With military equipment now becoming more available to police agencies and more tactical operations teams forming, litigation will grow as operations are added. Ramirez pointed out that, currently, one in 30 U.S. police officers is being sued. For the past five years, 40% to 45% of those cases involved allegations of excessive use of force. The vast majority of the remaining 55% to 60% of cases involved problems in investigations and treatment of suspects.

Media attention on these cases focuses on the “bad cop.” The resulting public outcry prompts more federal intervention and oversight. “It’s destroying teams. It’s destroying departments,” Ramirez said. “People start taking sides” as the media attention grows strong in any case involving a police department. “Watch what you say” to the media “because it can come back to haunt you,” he said.

Like the dark cloud with the silver lining, though, there are some beneficial sides to the litigation trend. “It sometimes takes lawsuits to get change happening in your department,” Ramirez said. “It makes departments ask whether they will put their money into better equipment, training and personnel—or put it to defending lawsuits.” In a use-of-force case, there will be intense examination of whether the actions and use-of-force matched the department’s policy and procedures, and whether that policy and those procedures are appropriate.

“If jurors believe us, we will win,” so establishing credibility is important, he said. “When use of force happens, somebody has to review it,” he said. Any member of the department being deposed or testifying in court must thoroughly know the department policy and procedure, applicable statutes, and other facts pertinent to the defense of the liability case. “It’s because credibility is being attacked,” Ramirez said.

Lack of credibility in an individual will result in a perception that the whole police department lacks credibility. “The issues are huge” in policy, supervision and use of tactical operations teams, Ramirez said. “If the jury thinks you’ve engaged in misconduct, they’re going to nail you. [And] attorney fees are astronomical” when someone wins against a police department.

Ramirez recommended examining every bit of policy and procedure of tactical operations to be sure they meet or exceed state standards for initial (new member) training, refresher training, managing operations, fitness, safety, hostage negotiation, rescue, uniform requirements, weapons requirements, risk assessment, multi-jurisdictional operations, and after-action evaluations.

For an example, he said a department should not videotape an entry, but should audio tape it. Videotapes may need “a great deal of explanation” in court, he said, but an audio tape documents such requirements as knock and notice and the correct following of procedure. There should be no swearing, he said. “The jury will hold you to a higher standard” in behavior, speech and professionalism because the work of tactical teams focuses on resolution of problems, rather than other police functions such as investigation. “Be professional, all the way.”

If answers to attorney’s questions are based on just reading a report a few minutes before testifying, credibility could suffer. Answers must be based on fully knowing call-out records, search warrant facts, how many tactical team members were present, whether it was a surround take-down, a wait take-down, a forced entry, etc.

Attorneys look for “habits,” such as always determining that it is a high-risk situation requiring dynamic entry. “Every location has got to be different,” Ramirez said. “If it’s all the same, someone’s making it up.” Not only will tactical team members be held liable, but also supervisors for not making more careful evaluations of the situations.
Reasons for actions need to be based on protection. For an example, Ramirez said that a tactical uniform that makes it difficult to discern that the person is, in fact, a police officer, is an inappropriate uniform. If an officer testifies that he wore a particular balaclava or shirt “because it’s issued,” or “because it intimidates,” credibility will be lost with the jury. The same applies to use of less-than-lethal weapons such as flash bangs or tear gas.

“Be prepared to get in front of the jury to explain why you wear what you do and what you do,” he said. Everyone on the team should understand these facts, and all should “talk the same language” about what is worn and what equipment is used and why. “It sounds like it should be so simple, but it’s not,” he said. “Everybody has to have the same terminology. Once they (the jury) understand what your equipment is and why you have this, they’ll back you up.”

Ramirez said departments must be “customer-oriented” and dispose of the “us and them” philosophy that has run its course in today’s society. “If something happens out there, let’s fix it,” he said. He pointed to an example of a chief who approved immediate repairs to an innocent third party’s damage to the walls and door of his home and his refrigerator when a tactical operation took place next door. “Have a risk management policy,” Ramirez said. Work with your city’s facilities department and others to right any wrongs done to property.

“Your decisions do have an impact on your line officers,” as well as the general public, he added. “Look at the focus of your (tactical) team,” he said, and be sure everything is done professionally. “You’ve got to be very careful whom you’re bringing on your team. Training is key.”

Tactical operations teams must participate in documented and verifiable monthly training operations to keep individual and team skills competent. A particular “hours” requirement might not be the best standard. Rather, focus on whatever is needed for command and control, planning, staffing, directing, communications, Fourth Amendment considerations, and on-scene skills, Ramirez said. Supervisors in a liability case will be asked how and when teams were trained.

Watch where you train, he added, especially if you train with the military, which can operate without the Fourth Amendment constraints that are required of police operations. “Who’s providing your training, and why are you going to this particular team,” are the questions a jury will want answered, he said. Jurors will compare your actions under an “objective reasonableness standard” of what would another officer / team do with similar training under similar circumstances.

Knowing thoroughly what you do and why you do it is what Ramirez termed “your bread and butter” that you work with every day. Know what is done to train to core competencies, and know how much oversight is provided and what is documented. “Those perishable skills are truly perishable,” he said, so continuous updating and refresher training are the standard.

Ramirez recommended that a basic model could be any number of people on a tactical team, but each must meet the training and knowledge standards. He said there should be yearly audits and legal updates on activities. Training should include command and control procedures, training with other units such as K9, use of regional teams, language training (if necessary), having a local prosecutor review all warrants before presentation to a magistrate, and whatever else is necessary to add “one more layer of professionalism” of the team.

There should be a series of checklists available for the team to learn and consider the pros and cons of appropriate actions, given a specific scenario, and officers should learn to consider and deliberate on proper courses of action. And he added that doing such careful review may even point out that a tactical team is unnecessary for a small agency because there are not enough incidents requiring their use and, therefore, not enough opportunity for achieving training and policy review standards.

Complete review isn’t just for officers. It applies to supervisors, too, Ramirez said. “The acts of subordinates go up the chain of command and hold everyone liable,” he said. Supervisors might be liable under respondeat superior, vicarious liability, negligent hiring / training / retention, or because they knew what was happening but took no action. They might also be held liable if they didn’t know what was happening but should have.

Keep good records, documenting training and incidents with professional language. Reports “will get out,” he said, and if slang or indifferent-sounding language is in that report, it will impact credibility. “Don’t tolerate shoddy or unprofessional writing. It will get out. Law enforcement cannot do this stuff.” Supervisors must read and correct language in reports that is not professional.

Also, jurors may think that if something happens and wasn’t written down, it didn’t happen, or that if someone testifies to something that isn’t written down, the testimony is a fabricated story. Thorough documentation is vital. “Your credibility is not what it used to be or what it should be,” he said. “We have to be really good” in writing and documenting, making sure that all pertinent information is in the report and that the information is written in a clear and professional manner. If it is, “we have a good chance of wining that case,” he said. If a report is sloppy or uses slang, derogatory or callous terms, “it shows stupidity,” Ramirez said.

Use of force will vary with the circumstances of incidents, but Ramirez cautioned that there must be a complete understanding of the constitutional limits that might apply. Factors to consider are the nature and severity of the crime at issue; whether the suspect poses an immediate threat to the safety of officers or others; and whether the suspect is actively resisting arrest or attempting to flee. Officers will be judged by what another reasonable officer would have done if facing the same circumstances.

He said it is prudent to obtain a search warrant because, if there is probable cause to enter, it makes it more difficult for the plaintiff in a liability case to attack what has been done if there is a valid search warrant. This is because the case’s circumstances have been reviewed, through the search warrant, by the chain of authority. Failing to comply with knock-notice makes a search unreasonable under the Fourth Amendment. Knock-notice protects the innocent, the dignity of those in the privacy of their own homes, and police officers who might be injured by a startled or fearful resident. It also prevents some situations that are conducive to violent confrontation.

When an officer announces his authority and purpose and is then refused entry, Ramirez advised that there must be either an explicit refusal or a lapse of a “significant amount of time” before officers may force entry. An “unreasonable delay” in responding to an officer’s request for entry can constitute refusing admittance. However, what constitutes a “significant amount of time” or an “unreasonable delay” will be questions for the court and jury, depending on the facts of each individual case.

Of course, there are instances when there must be a no-knock entry. But Ramirez cautioned that there must be a “reasonable suspicion” that announcing police presence, under the circumstances, would be dangerous or futile, or would inhibit effective investigation of the crime. Such “exigent circumstances” might justify a no-knock entry, but, again, the determination is on a case-by-case basis. There is no set time that the police must wait.

The time lapse must be reasonable, considering the circumstances and even though officers can infer constructive refusal to admit from silence / no response, there must be a “significant” amount of time that has passed. The court will consider such factors as the size and layout of the premises, the time of day, the nature of the suspected offense, the evidence that demonstrated guilt, and the officers’ observations that supported a forced entry. Ramirez noted that, sometimes, “there is no hurry to get in there,” and “no need to lose officers.” He added, “Let’s slow it down out there” and make sure that specific facts are addressed to justify a no-knock entry.

By the same token, excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even if entry is lawful and the fruits of search are not subject to suppression. Ramirez said, “Don’t damage more property than reasonable to serve the warrant!”

Be wary in the use of flash bangs, because even though case law supports their use as a “reasonable” tactic, discretion is important. “Don’t overuse them, or we will lose the right to use them,” he said. Given the inherent danger of a flash bang, absent a strong governmental interest, throwing a flash bang “blind” into a room that may be occupied by innocent bystanders may be a violation of the Fourth Amendment as an unreasonable use of force.

There must be consideration of alternative and appropriate measures to reduce the risk of injury and/or damage, Ramirez said. This is because the courts expect that the police are providing training to officers about proper search and seizure. If no training is being provided, or if it is inadequate or incomplete, the municipality could be held liable.

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 Tactical Response, Mar/Apr 2008

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