by Joseph Fodera, Charles Alifano and Lou Savelli
Two of the biggest and most important issues facing police agencies and their officers today are litigation and negative public perception. Although these two issues are seemingly different they are, in fact, quite connected. With the rise of litigation against those who protect and serve and the increase in negative community perception of these officers and their agencies, the cause is quite alarming. Inexcusably, as exposed in numerous court cases and post-incident investigations, a lack of focused policy by police agencies is just that cause.
Countless officers are questioned by litigating attorneys regarding an explanation of their actions in a variety of cases. Many of these cases have involved the injury of civilians and, quite often, police officers. The answers reveal that many police departments and other law enforcement agencies lack specific policies to deal with incidents requiring police action. Police officers are left on their own to act on instinct based on training that may not be specifically tailored towards handling the incident in question. This can result in officers being unprepared to act properly, which increases the potential for an inefficient, and often dangerous, outcome.
Focused policies need to be developed and implemented. While policing in the United States, and worldwide, involves many variables and diverse situations, the enormous potential for problem incidents resulting from police-public interaction can be greatly minimized with the right policy. In fact, most police officers welcome policies targeting specific incidents and prefer to follow guidelines set forth by their departments. Many have even expressed a willingness to seek police employment in other agencies because of the lack of specific policies within their present agency. These same officers feel a sense of indemnification and protection from litigation when focused policies are in place and followed.
In a recent case in a large metropolitan city, policies and procedures were in question regarding the use of distraction devices upon entry into a dwelling to serve a high-risk search warrant. Such a device was used on the wrong location and an innocent civilian was killed. While extremely unfortunate, the incident now is causing much litigation and a decrease in positive public perception of the police in that city. Police commanders and officers involved have been reassigned and the policies and procedures are under intense scrutiny.
Assuredly, some of the questions asked by litigating attorneys will be:
• Is there a policy to use an explosive distraction device on a search warrant?
• Who is ultimately responsible to authorize such use?
• What kind of investigation must be done prior to utilizing such a device?
• Can we sue the officers involved for not following proper procedures?
• Do proper procedures exist in this agency for this situation?
• Can we seek criminal charges against the officers for such a horrendous act?
Imagine, if you will, being the head of a police agency that becomes the subject of litigation due to the actions of one of its members. You are called to the witness stand and questioned about your department’s policies pertaining to any one of a number of situations. You must admit, albeit hesitantly, that your department does not have a policy in effect pertaining to the incident for which you are being litigated against.
The attorney then questions you as to what other departments you would compare yours to. Then, after you answer, he presents policy after policy from those agencies, showing to the jury that your agency is negligent in not having taken the precaution of drafting policies which are currently in use in other like agencies, or training your personnel how to respond.
Along with a rather large settlement being the likely outcome, you will undoubtedly be called on the carpet to explain why this oversight occurred and how you plan to remedy it.
When your department is under fire because of the actions of one of its members, positive public perception of your department can assist in defusing negative fallout. If you have sound policy and procedure, and the bureaucracy and citizenry can see that your members did not violate the policy, which was written based upon generally accepted police procedure, you will have already won half of the battle.
Without having a violation of procedure or a lack of policy to attack, your detractors will not be able to get a foothold in their attempts to make your department appear inept, or worse, criminally negligent or monetarily culpable in litigation brought against it. If your agency or department does not have the resources to maintain a full-time policy and procedure staff, outsourcing to a respectable consulting company with experience in providing such a service is strongly recommended.
There is no alternative to concise, precise, well-worded police policy and procedure. Sending your officers out to serve the public without giving them the direction and guidance they require is essentially equivalent to sending them out unarmed.
Joseph Fodera, Charles Alifano and Lou Savelli comprise part of Worldwide Law Enforcement Consulting Group which develops and creates efficient, focused policies & procedures as well as training for many law enforcement agencies.
Between the three, they have over 60 years of hands-on law enforcement experience. They have extensive experience in narcotics enforcement & investigation, gangs, supervision and management, terrorism, patrol, community policing and criminal investigation. They can be contacted through the Worldwide Law Enforcement Web site.
