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
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
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.
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
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
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.”
“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
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 firstname.lastname@example.org.