REESTABLISHING SCHEDULED INSPECTIONS/AUDITS OF POLICE HIGH RISK, HIGH LIABILITY TASKS

©2012 Lou Reiter, Co-Director, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

Police organizations used to advocate regular staff inspections of various agency operations. [i] That was considered to be a sign of a professional organization.  Somewhere in the ensuing years that practice seems to have been lost.  We need to reinstitute this practice and focus it towards the high risk, high liability aspects of our job.  That’s not only being professional; it’s being wise with today’s increased litigation potential.

As a police agency you need to focus on those aspects of your operations that present the most significant potential of risk.  These need to be conducted at a minimum of at least once each year.  Each agency is a little bit different as tasks vary.  The next step is to identify the frequency for these types of inspections/audits and who will be assigned the task.  A significant step is how to effectively and efficiently conduct a reasonable inspection/audit of the specific high risk, high liability task.  The personnel responsible for the function of the unit should never do these audits.  Conducting this form of inspection/audit is designed to ensure that our personnel perform these tasks properly and either eliminate or reduce the potential for liability.  However, we can never ensure that mistakes won’t happen or some personnel members won’t consciously circumvent proper procedure.  Conducting these types of inspections/audits on a regular schedule and documenting your conduct usually will, at least, insulate the agency and supervisors from liability.

Lets take a look at just four (4) of these high risk, high liability tasks and briefly discuss how you could conduct an inspection/audit of each task: (1) special operations units; (2) property and evidence; (3) booking intake; and (4) IA/OPS functions.

Special Operations units are common in many police agencies.  They may be drug enforcement, street crime, high impact or some other focus.  One thing these units have in common is that they normally determine their own activities and act with less oversight than the normal patrol or detective unit.  There are regular examples of these types of units throughout the country acting improperly and sometimes illegally.  Most of the time these problems are the result of cutting corners and ignoring reasonable and proper police practices.

One method for conducting an inspection/audit of this high risk, high liability task is to conduct a “biopsy” of one of its operations.  Identify one operation where this unit used information given by an informant, prepared an affidavit for a search warrant, and used high risk entry tactics to serve the warrant.  What should you look for and hope to find [ii]:

• The probable cause affidavit is the first place to look.  The most significant item is the informant who might be identified only by reference or number.  Your task is to now contact the person in charge of your special operations unit and have him access the informant package.  This should contain information on the development of the informant, background investigation, criminal history run, payment records and documentation of prior use.

• The next step is identifying what was done to determine that this warrant service required the use of a high-risk entry.  The unit should be using some form of target threat matrix.  This should be in the file of the entire operation.

• Since this was designated as a high-risk entry, there should be a written operations plan in the operation file.

• The pre-raid planning should be documented in the file as well.  Is there an indication that the target was identified for the unit by the lead investigator prior to the raid? It is reasonable to have photographs of the actual targeted location.  Immediately prior to the raid did the unit conduct an on-site surveillance of the target?  Many units will photograph or videotape the actual pre-raid operations meeting and any tactical drawings on a wipe board or flipchart.

• The file should contain all of the incident reports, use of force reports, evidence documents and warrant service return.  These should be reviewed for completeness.  Many units involved in these types of operations photograph and/or videotape the target location after it has been secured and again after the search to forestall allegations of unnecessary damage.

• Does the file contain an after action report?  Is this report sufficient to determine the reasonableness of the operation?

This form of biopsy is really a great measure of whether your special operations unit is conducting business in a proper manner. (Read more on special operations audits here >>  )

Property and evidence has continued to be a source for frayed agency reputations, lost prosecutions and employee criminal charges.  It is interesting that this has resulted even though the operation of this police task has been modernized with computers and bar coded inventory systems.  The most vulnerable evidence areas are money, guns and narcotics and there are reasonable methods to use to audit these high risk, high liability elements in your property room. [iii]

• Money comes to us as either found property or evidence.  Unless there is a need for the actual money to be preserved for prosecution, all money should be transferred to an interest bearing bank account.  Your property records should be retained in a manner to categorize all money separately.  Any money retained by your agency should be in a separate safe with minimal access.  A quarterly review of money retained and transfers to the local bank is adequate for your audit.  The evidence report should be compared to the original crime/incident reports to ensure that the same amounts are reflected.  Each time the money safe is accessed that should be documented on a log retained within the safe.

• Guns present police agencies with multiple risk factors.  Quarterly, the audit should select, at random, three (3) reports that reflect that a firearm was booked into your property room.  The audit should then locate these firearms.  Are they retained in a separate location with limited access?  Have these firearms been researched through the available databases?  Do they have readily observable indications that they have been rendered safe? [iv]  Your audit should determine which firearm has been in the property room the longest period of time.  This firearm should then be designated as the test firearm on retention provisions.  If the firearm has been designated as essential for prosecution there should be quarterly reports/receipts that the prosecutor has been consulted to determine that the case is still open or the owner has been contacted and has not responded to take control of the firearm.  The agency should ensure that firearms are destroyed within the period designated by the agency. [v]

• Narcotics are often a source of repeated public scrutiny and police agency employee misconduct when the drugs go missing.  There are several areas that should be audited on a quarterly basis.

  • Intake after hours when no one is present in the property room must be done in a secure manner to preserve the chain of custody.  Your audit should examine three (3) after hour’s arrests involving narcotic possession.  You need to track the intake to ensure that between the times the officers placed the narcotics into a secure location and the time they were retrieved by the property room person no one else was in a position to handle those narcotics.

  • Narcotics, like money, should be maintained in a locked, secure location away from other property and evidence with limited access capability.  A random sampling of booked narcotics should ensure that only the designated personnel had access to the narcotic secured location.

  • An annual audit should randomly sample narcotic evidence to ensure that the weight and quality is the same as when it was booked.  This might require seeking permission from the prosecutor.  This should always be witnessed and videotaped.

  • The annual narcotic burn should be witnessed and videotaped.  It is reasonable to have someone from your IA/OPS and/or prosecution office/unit witness this activity.

(Read more on property / Evidence Audits here >>)

Booking intake is a critical point in the care and custody of arrestees.  This is the moment when altercations occur.  This period of arrestee processing will vary between jurisdictions.  Some conduct preliminary steps such as printing and breath samples at one location and detention intake at another.  Many smaller agencies rely on the County detention facility.  When altercations do occur, most police agencies have provisions to ensure that this encounter is properly documented and, when available, a copy of the videotape is preserved.  The booking intake inspection/audit should focus on three (3) aspects of this high-risk, high liability task.

• The audit should randomly select three (3) booking/processing incidents during the period being audited where some form of physical altercation occurred.  Your audit should pull all of the reports and the videotape of the incident.  Were the reports complete?  Did they reflect adequately what is depicted on the videotape?  Was there an immediate on-site supervisory investigation?  Were there photographs and medical treatment even when there were no observable injuries?  Were all reports signed and reviewed?  Was the conduct of the officers consistent with your agency’s policy?

• An overlooked aspect of this critical task is the officers’ conduct when there is no altercation.  A random review of three (3) videotapes of the intake of arrestees should focus on the officers’ demeanor with arrestees during this phase of control.  Did the officer conduct him/herself in a manner to not agitate the arrestee?  Was the officer impartial and professional?  Was the officer’s verbal exchange done in a manner to defuse any agitation or hostility exhibited by the arrestee?

• Determine what provisions are in place to ensure that arrestee valuables taken during the booking process are maintained in a secure location and documentation is adequate to validate that the property was either returned to them or transferred with them.  Do you have a securely, locked area for these valuables?  Some agencies use evidence seals to safeguard access to these valuables.

IA/OPS function has been the focus of repeated national and local studies of police agencies and a principal element within U.S. Department of Justice pattern and practice investigations and agreements throughout the country.  There are numerous model policies and training programs concerning this vital aspect of police performance. [vi]
There are two aspects to a reasonable audit/inspection of this high-risk, high liability for any police agency: public encounters that don’t result in a complaint and those that do.

• Most police agencies either allow or require that any member of the public desiring to make a complaint meet with and discuss the incident with a supervisor.  These encounters frequently result in no complaint being taken.  Many agencies require that the supervisor deciding not to take a complaint must complete some written documentation; however, more probably don’t require even that.  The critical aspect for agency liability is whether that supervisory decision was reasonable.  Even when the supervisor documents the encounter, few police agencies ever conduct any form of quality control assessment of that decision.  The inspection/audit of this aspect should identify three (3) instances where a member of the public has contacted a supervisor to make a complaint and where no complaint was processed.  The complainant should be personally contacted, advised that the agency is simply doing a routine quality control feedback assessment, and asked about the encounter.  Your discussion with the citizen should be complete enough to ensure you that the supervisor conducted him/herself consistent with your agency’s policy.  Some agencies, although a very few, actually conduct a form of integrity check on this intake by using undercover personnel and/or actors to play the part of a citizen desiring to file a complaint. [vii]

• Auditing completed complaint investigations is a four-step process.  An annual audit should randomly sample three (3) investigations done by field level units, three (3) force complaints, and three (3) investigations resulting in a sustained disposition.

(Read more on IA /OPS Audits here >>)
(Read more on Witnesses here >>)

• • The first step is the intake and completion.  Was the complaint taken in a manner to ensure that all reasonable information was provided in the initial complaint document?  What was the time from intake to completion of the investigation to final adjudication, and was it reasonable for the type of investigation?

  • The second step concerns witness and interviews.  Was there a reasonable process to locate all witnesses?  How were they contacted?  Was there a neighborhood or detention canvass done, when warranted?  What percentage of the time were witnesses and agency personnel interviewed in person?  Were the interviews conducted in similar ways for both members of the public and agency personnel?  Did the interview narration comport to the actual interview tape?

  • The third step concerns the gathering of all relevant evidence and documentation.  Were all police reports and communications records in the file?  Were there copies of any videotapes included?  If medical treatment was provided, was this attached or was an attempt made to obtain it from the citizen?  If there were injuries or alleged injuries, were photographs taken and included?  Were the police reports adequate for the incident?

  • The last step concerns the final adjudication.  Was the disposition consistent with the evidence contained in the investigation?  If the investigation was sustained, was the final disciplinary or remedial decision consistent with the investigation, the employee’s record, and the needs of the agency?

There are other high-risk, high liability tasks we do in all police agencies.  You need to identify those tasks specific to your agency.  Each of those should be looked at to determine how best to conduct an inspection/audit and in what frequency.  The end result is that your agency will become more professional and you and your agency may be able to fend off some civil liability when an accident or individual employee misconduct might occur.

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Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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CITATIONS:

[i] “Every police agency should immediately establish a formal inspection system to provide the police chief executive with the information he needs to evaluate the efficiency and effectiveness of agency operations.” Police Task Force Report: National Advisory Commission on Criminal Justice Standards and Goals, 1973, pg. 57.  These same recommendations are espoused in Municipal Police Administration, ICMA, 1971, and Police Administration, Wilson/McLaren, 1972.

[ii] These concepts are consistent with the training and guidelines of the DEA, IACP and most tactical officers associations.

[iii] There are several sources for guidance in reasonable property and evidence control including the International Association for Property and Evidence and the IACP.

[iv] There are numerous inexpensive locking devices available.  Some are even using flex cuffs for this purpose.

[v] Destruction of firearms continues to be an issue of discussion within law enforcement.  Some agencies destroy firearms by the use of commercial resources.  Destruction should be overseen by at least two members of your agency, preferably one being from IA/OPS and videotaped.  Other police agencies may resell or trade them in for weapons that the agency can use.  This has created a public perception problem if the weapon is later used in a crime.

[vi] IACP Model Policies and studies, Law Enforcement Administrative Investigations, 3d Edition of the Public Agency Training Council, and training guides from PATC, IACP, SPI, and IPTM.

[vii] The Los Angeles Police Department had an on-going program conducting these types of integrity audits and local TV stations are frequently doing similar ones.