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SWAT Risk Management and Liability Reduction

Written by Morefield, Bradley, Randy Means

In a recent competition hosted by a major state SWAT officers’ association, each SWAT team chose a team member to participate in a race. Some were chosen for their physical capabilities and some because they were the junior person on the team. Regardless of their standing, they all ran a considerable distance, climbed a wall multiple times, pushed massive weights along the ground, cleaned and pressed a Herculean-looking barbell, flipped a colossal tire, scaled a rope not once but twice, and did an awful number of bends and thrusts.

The point: This is just a SWAT job-task simulation—together with tests predictive of ability to perform required tasks—and already liability and physical risks are sky-high. We haven’t even gotten to the real-life stuff: serving high-risk warrants, going after the worst of the worst offenders, dealing with individuals with acute mental health problems, and so much more.

SWAT teams are called by a variety of different names in different agencies but they certainly have at least one thing in common. The things they do and the training necessary to do them both create enormous risk of injury and 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.

 

Choose the Right Leaders

A common lawsuit against police claims that supervisors (at all levels) and the organization have failed to train and/or supervise adequately. Obviously, this problem could, in and of itself, cause subordinates to make bad choices and take incorrect actions—which could cause individual liability for both officers and their supervisors up the chain of command. 

However, a “policy” of “deliberate indifference” to obvious training needs can cause the employing entity itself to be held liable. It is well understood in legal circles that juries often ramp up damages awards when they think they are socking it to an amorphous, faceless entity that undoubtedly has complete liability insurance coverage—often simply adding a zero to the award.

“Deliberate indifference” is a legal standard and involves more than proof of simple negligence. It requires proof that the entity’s “policymakers” knew or should have known of an obvious training need and that indifference to it could lead down a bad road—amounting to a deliberate or conscious choice to endanger constitutional rights. Being inept, erroneous, or ineffective is not necessarily enough to create this kind of liability. This is a high evidentiary hurdle for the plaintiff but, if it is cleared, the potential liability exposures for entity defendants multiply.

 

The point: It is not enough that persons in charge of tactical teams and their operations be physical fit, tactically sound, expert in SWAT measures, and inclined to be heroic. They must also be proficient in big-picture judgment and organizational risk management.

A level-headed person who can see a very big picture could be the correct choice as the overall SWAT commander even if that person couldn’t pass the physical fitness test for SWAT membership. Obviously, the ideal choice would be someone who could do both—and could do everything—but the ideal solution is not always available.

 

Fourth Amendment

Remember that the Fourth Amendment “reasonableness” requirements still apply. The fact that there has been a SWAT callout does not change the law of policing. The Fourth Amendment requires that justification for police actions be reasonable and articulable. This applies to simple frisk actions and SWAT entries alike.

Example: After executing an arrest warrant at an arrestee’s home, securing the subject and removing him to a nearby police vehicle, some tactical teams will look for a justification to re-enter and (further?) sweep the residence. Maybe they hope to see contraband or firearms in plain view. “The arrestee may have left the stove on” or “there might be children still in the residence.”

Such re-entry may be entirely reasonable if there is reason to believe one of those situations exists. If there are articulable facts that either the stove was on—like the smell of food burning—then great, make the entry to check to see whether the stove is on. The same holds true with unattended small children. But where such possibilities are entirely speculative (“there could be”), constitutional requirements are typically unsatisfied. Using rote, canned explanations is often insufficient to pass constitutional muster.

Another example: The “protective sweep” of private premises—room to room—beyond those areas necessary to complete the originally justified action is not justified by the presence of SWAT personnel, it is justified by articulable reasonable suspicion of the presence of a threat.  

The point: Whether these actions are taken by patrol officers or SWAT teams doesn’t change the ordinary Fourth Amendment law that applies to the situation. SWAT-type involvement does not by itself create overarching exigencies or community caretaking needs.

Part Two of the article will continue recommendations for liability and risk reduction measures in SWAT operations. Part Three will survey case law and legal trends in this area.

 

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 Tactical Response, Jul/Aug 2014

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