A streetwise Chicago cop named Jim Malone, played by actor Sean Connery, explains to Kevin Costner’s Eliot Ness in the beginning of The Untouchables that Eliot Ness just fulfilled the first rule of law enforcement, that is, “When your shift is over, you go home alive!” Here ends the lesson. That lesson may have ended in the 1930s, but in this era, there’s also a second rule. That second rule is getting more difficult to follow, which is, “You don’t get sued!”
Law enforcement officers and their agencies are the focus of litigation in either their state’s civil court, or through the federal court system for violating an individual’s civil rights under color of law through Title 42, Section 1983 of the United States Code. Part of the motivation in seeking damages may be legitimate, but some of it may be just to generate income for attorneys, in the somewhat cynical yet realistic mind of many law enforcement officers.
Title 42, Section 1988 of the United States Code calls for “reasonable attorney’s fees” if there is even a one dollar award in damages to a plaintiff. This is jokingly referred to as “the indigent attorneys right to work statute” by some officers. Since there are over one million attorneys in the United States, it is easy to see how “opportunities” for litigation are always being sought. Motivation for litigation is easy to realize, since 75% of the world’s attorneys are within the United States, yet the United States has only about six percent of the world’s population.
The problem with the onslaught of civil litigation was even featured in the December 15, 2003 issue of Newsweek magazine. This issue had the cover story titled, “Lawsuit Hell” with Penobscot County, ME, Sheriff Glenn Ross on the cover along with a minister and an M.D. The bottom line to the article was that litigation was occurring because of the ability to get awarded money damages, or for a quick settlement.
United States Senator John Edwards, a wealthy Democrat trial lawyer from North Carolina, also explained the need for justice in the Newsweek story, which, by the way, also included large legal fees paid to the plaintiffs’ lawyers. Senator Edwards stated that the frivolous or outrageous case was rare in the hundreds of cases that he handled. Senator Edwards also seemed to equate the value of justice with large cash settlements, which always seem to include large attorney’s fees. Justice may be blind, but she also seems to wink!
Dealing with litigation is not easy once the litigation starts, unless an agency prepares to defend itself before there is any need. The best offense may a good defense by protecting the officers and the law enforcement agencies through proper training, particularly in high liability areas. The areas that need particular attention include driving and use of force, both lethal and non-lethal force. Proper training should equate to the ballistic protection that Kevlar offers, not the fading ballistic protection of zylon.
The two factors that should determine the focus of training is the criticality of the task (is it deadly?) or the frequency of the task (is this done often?). Firearms is an example of criticality, that is, someone can die as a result of being shot (critical), yet most officers will never fire their handgun at another human being while performing their duties. Frequency includes handcuffing, which is done often, but people usually don’t die from improper handcuffing, although they will claim injuries. Motor vehicle operations under emergency circumstances can be critical and not all that infrequent.
Colonel Kevin Gordon, Director of the Mascoutah, IL, Department of Public Safety stated, “We often focus on the wrong areas. Most departments train at a minimum, annually, with firearms and some in impact weapons. Many of the same departments rarely train in handcuffing, laws of arrest, search and seizure, warrantless entry to residences, etc. These are the areas that we may be involved in daily.” Colonel Gordon is right, and these are areas that are ripe for litigation if officers are not properly trained.
Training doesn’t always need to be delivered in hourly sessions and in a highly structured setting either. Colonel Gordon offered, “Too often we view training as only formal, in-service blocks, which come in increments of two hours, most often four or eight hours. These time frames aren’t based on need but because they fit in work schedules the best. We sometimes forget that two interested officers and a pair of handcuffs are a training block. Certainly formal training blocks are needed but it is not an all or nothing. As the average American police agency has less than 10 officers, there is a place and a need for short, roll-call type training. Five- to 10-minute training blocks several days a week during shift is just as important as an occasional four-hour block.”
Even though training may be delivered in a less structured manner, it should always be documented. Having a lesson plan and a copy of the department policy for review is a must. Officers should also be tested, which can consist of just a short written test or a simple proficiency test. These tests should be reviewed with the officers and the test records stored.
Training documentation and professional department policies may even make some litigation disappear. A plaintiff’s attorney may see that an agency has documented training and professional policies. That attorney will not waste the time, which is equated as money, pursuing a case that would be difficult to prove, even though the burden of proof in a civil court is just a preponderance of evidence, and the “guilt beyond a reasonable doubt” standard that officers are acclimated to dealing with in criminal court.
Litigation prevention is similar to crime prevention, that is, you want to prevent the litigation from happening to you and your agency, just as you would prevent a crime from happening in your jurisdiction. Let a plaintiff’s attorney seek another “opportunity” by going to another agency. The attorney’s intent and desire to litigate may be present, but you want to remove the opportunity to sue, that is, let the dorsal fin go in another direction!
Vince O’Neill, staff instructor with the Oklahoma Council on Law Enforcement Education and Training (OK CLEET), said, “All areas of liability can be reduced through training. Civil litigation is nothing more than ‘overhead’ for doing business, so to speak. There is no way to eliminate liability entirely, but we can reduce our exposure and certainly minimize its effect on available resources. The one cry most often heard, insofar as training is concerned, is, ‘We can’t afford it.’ Yet it is amazing how many municipalities, counties and states come up with a million or so dollars after they’ve been successfully sued. As a consequence, many jurisdictions get virtually bankrupted. Most cities now incorporate liability issues within the annual budget. It’s kind of like the old Framm Oil Filter commercials: ‘Pay me now or pay me later.’”
Here are some bottom line basics on litigation prevention: identify training weaknesses and provide proper training in these areas; make sure that department policies are consistent with training and the law, and regularly review these policies; keep administrators informed of current statutory and case laws, and pass the information to the line officers; identify “problem” officers and take proper corrective action, including discipline and termination, if appropriate; and always keep an open mind for new ways of doing things.
If a law enforcement agency doesn’t make necessary changes, it may need to make some cash settlements, and the courts will mandate changes. It’s a lot easier being proactive than it is to be reactive to litigation. We must also remember that sometimes we are wrong and we’ll need to settle the case, learn from our mistakes, and move on.
Law enforcement will probably always be the focus of some civil litigation, whether the agency did anything wrong or not. The reason is simple and has the same answer that noted bank robber Willie Sutton gave when asked why he robbed banks. Willie’s answer was absolutely clear: “That’s where the money is!”
Ed Nowicki is a part-time officer with the Twin Lakes, WI, Police Department, conducts Use of Force Instructor Certification courses across the nation, and serves as a use of force expert in areas of civil litigation. Ed is organizing the ILEETA International Training Conference, which will take place on April 13-17, 2004 (LAW and ORDER is a sponsor). He can be reached via e-mail at firstname.lastname@example.org.