Immersed as I have been in attempting for the past twenty years to construct creative approaches to managing, reducing, and if possible eliminating police liability, I can only say that it is not the novelty of the approaches, but the soundness and completeness of our commitment to what we should have been doing regularly, all along, that will be productive and attain these objectives.
There is a requirement that we have to change our thinking, that since police are trained observers, that by the very nature of their profession they scope out patterns and modus operandi, those very same qualities and skills have to be directed toward this enduring problem that can scarcely said to have been diminished over the past two decades.
When we search for a process that can readily improve our performance while simultaneously forging greater protection against incipient liability, I would like to propose the Six Layered Liability Protection Process. Liken it if you will to a bullet-proof vest whose value and benefits come from the cumulative efficacy of multiple layers. Through their layered coverage protection from otherwise fatal attacks can be achieved. So too, with the Six Layered Liability Protection Process.
From all my experience over these last two decades, I can unerringly point to the elements of the Six Layers as being crucial to protection. In fact, in all candor, it only means that we improve quite drastically what we should have already been doing as good managers. So, it can be said, that whatever failure we may have already experienced in confronting liability, can be attributed to the inadequacies on management’s part in not exercising the maximum care and attention in these six areas of responsibility
The Six Layers:
Policy: The forseeability principle is operative here. The chief of police or department executive has been directed by the courts to be the “policymaker” and is bound to provide guidance to all the department’s officers in every task which he/she then intends to assign to the officers to perform at one time or another.
Training: Going beyond mere production of policies, there is a further obligation for the executive to guarantee and document that the officers have been trained in those very important and critical policies, that those policies be made an important part of the training in all the various skills which the officers acquire. Further this layer demands that every officer be trained to a level that reaches a professional and defensible standard and furthermore that the officer exhibits a proven competence in those tasks and skills. This last requirement goes far beyond the qualification with the service weapon, but the demanding standard in place for that weapon should be similar to that for every other critical task.
Supervision: The quality of performance is directly linked to the quality of the supervision accorded it. For far too long, policing has neglected the adequate and comprehensive preparation of supervisors at all levels, with particular emphasis on the first level. Possibly unconsciously recognizing this deficiency, the profession has not required the degree of accountability for performance of assigned tasks that fall below professional standards. This supervision “gap” has fueled the litigation fires.
Discipline and Corrective Action: When performance falls short of professional standards, or is blatantly overlooked by supervisors, or occurs with their knowledge, then obviously the system exerts no discipline, and furthermore there is little chance for corrective action directed at making sure the officer knows exactly what should be done.
Review and Revision: The data on performance once accumulated by management must be analyzed, conclusions must be drawn and action must be taken. The police profession has shied away from performance-related data for too long with the result that it deprives itself of what might drive it to correct certain shortcomings, and it gives to plaintiffs’ attorneys incontestable information on performance with indications that management ignored it. Bereft of this data, the circle is never completed for little is done to revise policy, training and even the styles of supervision based on indications from the performance data, from complaints, from various reports.
Legal Training, Support and Counsel: Law enforcement officers must know the law. Yet the system while inadequately providing high level support for the first five layers, is most lacking when it comes to necessary, timely, relevant, understandable and available legal training adapted to the needs of task-oriented officers and their supervisors. We do not have the knowledgeable attorneys intimately familiar with case law on policy and operational matters. We do not have a process, if we had enough attorneys, for getting the training to officers with any degree of speed.
Try this little exercise. With your knowledge of the liability problems facing police, assess for your department these six areas: policy, training, supervision, discipline and corrective action, review and revision, and legal training. Grade all of them on a scale of 1 to 10, with ten being high and one low. Obviously if each category came in as a “10″ then your liability defenses are superb; if, however, the responses come in lower, say in the 4-7 range, then decide in your mind, what specific steps would raise the six to an eight, the five to a seven, the eight to a ten. Then work hard in implementing those changes.
The Role of the Legal and Liability Risk Management Institute
If the concept of the Six Layers makes any sense, let’s just say that the Legal Liability Risk Management Institute provides “one-stop shopping,” standing ready with resources assembled from the best and most experienced individuals from around the country to provide clear, concise and directed assistance and training. From policy development, revision and review, to over 90 training programs with special emphasis on liability management; to leadership and supervision development training programs; to audits, studies, research and liability assessments, and finally to the latest texts and legal learning materials and updates coupled with extensive defense expert witness services, the LLRMI has been there, and repeatedly offered pointed guidance to individual departments and insurance/risk management pools, to defense attorneys, department executives, and risk managers.