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.
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
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
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 email@example.com.