Prior to examining case law defining the parameters of governmental liability one should first be familiar with the process and the mechanisms for risk-reduction and risk avoidance. A clearer understanding of these principles allows the reader to judge the cases against the backdrop of these principles. The reader should be encouraged to consider how the principles of risk management may have reduced the liability exposure in a particular case.
The attack of the plaintiff’s attorney: When an attorney reviews the incident at 2:00 a.m. and contemplates filing a lawsuit against the officer (s) he or she begins by looking at the facts surrounding the arrest. While some arrests may lead to liability, the incident at 2:00 a.m. is not the brass ring sought by the attorney. In order to get the brass ring the attorney must get over the brick wall and attack the agency in order to establish agency liability. As we will see when reviewing agency liability, the only way to get into the deep pockets of the agency is through some policy, custom, lack of supervision or discipline or training that leads to a foreseeable violation of a federally protected right.
The incident in question becomes secondary in many of these cases to the focus which shifts to the agency. Although the plaintiff’s attorney must prove some underlying violation by the government employee, ultimately the plaintiff’s attorney will put the agency on trial. It should also be noted that a court may find an underlying constitutional violation but then grant qualified immunity to the offending officer. If, following this grant of qualified immunity for the individual officer, a court finds that the violation was the result of some policy or training issue; the agency may still be liable.i
With this in mind one can see how an agency can take steps to avoid liability; simply strengthen policy, training, supervision and discipline. This may sound like a simple fix; unfortunately law enforcement has not been quick to move unless threatened with significant liability. Unfortunately there are not enough law enforcement executives who seek to improve the performance of their agency for the sake of a better agency rather than as the result of some liability.
“Gallagher’s Rule #1: What raises the level of professional standards lowers the chances for liability and what lowers the chances for liability raises the professional standards of the organization.”
An agency that strives to reduce liability must begin by examining the 5-part attack that a plaintiff would take in a lawsuit and assess the agency’s performance in those areas that would expose the agency to liability. In doing so, it should be noted that a proactive approach is essential.
One may consider agency liability along a time-line in order to have a clear view of the proactive means of avoiding liability.
Policy in Place before police action
Training Conducted before police action
Supervisor on Scene of police action
Discipline as the result of police action
With this time line in mind one should consider Patrick Gallagher’s “Six-Layered Liability Protection System.”
Policy and Procedure: Agencies must develop sound policy based upon professional thinking, court decisions and statutes. “Furthermore, it is based on the principle of foreseeability that calls for the executive or the policy-maker to provide this guidance to the agency’s officers in anticipation of the tasks to be assigned.”
Gallagher’s Rule #6: “Policy is to be developed and issued in anticipation of the foreseeable field incidents that officers can reasonably be expected to encounter.”
“Corollary: Policy that is subsequent and in reaction to a series of events encountered by officers is more likely to be deficient and is issued in the face of a growing organizational pattern of conduct contrary to the substance of that policy.”
Training: Once policy is issued, those expected to act in accord with the policy must be trained in the substance of the policy. A recommended method of training policy is through the use of hypothetical scenarios that would implicate the policy being trained. An officer’s response to the hypothetical would exhibit the level of understanding as well as any deviation in interpretation of the policy.
Gallagher’s Rule #7: “Policy is only as effective as the training in the substance and requirements of that policy. If training is weak, unfocused or non-existent, then the policy will not be followed. Training must cover the full range of tasks which officers are expected to perform.”
Supervision: Supervision at this level should take a positive approach. Officers who are observed following policy should be commended. Supervision’s focus should be on “supporting superior performance rather than trying to catch someone doing something wrong.”
Gallagher’s Rule #8: “There is no factor more important to the avoidance of liability and the upgrading of the agency’s professional performance and attainment of its standards than the quality of supervision.”
Performance Management: “Performance management requires a total commitment to the selection of qualified personnel, initial and continuous attention to performance planning and then to regular performance evaluation.” If these items are in place and successful then the need for discipline is diminished. However supervisors must discipline when they discover that a “properly trained” employee has violated policy.
Gallagher’s Rule #9: “Discipline in its reactive mode is in essence a failure on the part of the proactive components; policy, training and supervision, to achieve the desired results and might result from the absence of performance planning.”
Review and Revision: A department must constantly review internal as well as external information in order to ensure quality performance and liability avoidance. Internal information concerning items such as internal affairs investigations, civilian complaints, lawsuits, officers subject to an early warning system, use of force and injury patterns, and patterns of unsatisfactory performance of officers would all be relevant for policy and training review. In addition policy-makers must stay abreast of changes in the law, by case or statute as well as contemporary research and literature relating to policing.
Legal Counsel and Legal Update: An informal survey of police policy-makers leads one to quickly conclude that this step is the weakest link in the 6 layered chain of liability avoidance. One of the reasons lies in the fact that many agencies do not have the resources for its own legal advisor. Agencies may be forced to rely on a generalist assigned to represent local government on a variety of matters and thus has little knowledge in the area of police liability. A second reason is the time-gap between the development of the law through cases and legislation and the time the police policy-makers become aware of the change. Once a law is clearly established by a court decision or legislative enactment, agencies within the jurisdiction of the court will be charged with knowledge of the new law.
i See Eg. Kuha v. City of Minnetonka, No. 02-1081 (8th Cir. 2003).