Editor’s note: Matt Dolan’s book, “Police Liability: A Guide for Law Enforcement Leaders of All Ranks,” explores the practical strategies necessary, at every key step of personnel management, to minimize legal liability and the damage to public trust. Dolan is a licensed attorney, author, and consultant. In this excerpt from “Police Liability,” Dolan introduces the three most important questions in police liability.
CHAPTER 2
The 3 most important questions in police liability
For law enforcement officers, and supervisors in particular, there is a seemingly endless variety of state and federal claims that may be brought in court. So, it would be fair to assume that the questions posed to them by plaintiff attorneys would vary wildly, based on the details of a particular case and the damages claimed. And yet, it seems that at the heart of countless depositions and supervisor testimonies (whether by a sergeant, a lieutenant, a chief or a sheriff) the 3 Most Important Questions are actually the same:
- What did you know (or should have known)?
- When did you know it (or should have known it)?
- What did you do (or should have done)?
These are not just liability questions. These 3 simple questions are as much about ethics, leadership, and operational efficiency as they are about liability.
Abraham Lincoln once noted, “You can’t escape the responsibility of tomorrow by evading it today.” At the heart of the 3 Most Important Questions is a similar notion—that, one way or another, sooner or later, failing to meet these leadership obligations will have consequences.
In his 2014 book, “Successful Police Risk Management,” G. Patrick Gallagher articulated his view of liability in the broader leadership context by asserting that “[t]here is nothing you should do to manage liability that you should not already be doing as a good leader, a good manager, a good supervisor, and a good officer.”
As with liability itself, there are multiple ways to view these 3 Most Important Questions. But regardless of which path you take, so to speak, you end up in the same place with respect to tangible action items moving forward.
Personal liability — the “CYA” motivation
While by no means the noblest motivation, the instinct to “cover your ass” or “CYA” is the simplest and most natural motivation for police supervisors.
Plaintiff attorneys are not enthusiastic about deposing supervisors who actually did their jobs. The goal, from their point of view, is to use supervisors’ failures to draw a straight line to the city, county, or state government that is responsible for department actions and actually has the financial means to make the attorneys’ efforts worthwhile on behalf of their clients. The plaintiff attorneys who work pro bono and are motivated by ethics alone are few and far between—and that should be welcome news for law enforcement officers. A CYA motivation, when it prompts a leader to meet supervisory obligations, can be an effective way to limit time spent with plaintiff attorneys who are rarely interested in wasting their time with police supervisors who did their job to the best of their ability.
Answering these 3 Most Important Questions in an honest, articulable, and documented manner is very likely to minimize the amount of time and stress that is involved in a legal fallout. That is to say, a sergeant who made sure to be aware of demeanor issues, sloppy report writing, reckless driving issues, and insubordination issues with respect to an officer, did the job to the best of their ability in the form of coaching, counseling, and documentation, and finally “kicked it up to the brass” to follow through with formal discipline and/or retraining, is likely to prove an unusable witness who can go back to work rather than spending months or years tied up in legal proceedings.
Here is a very basic example of a question-and-answer session that is likely to motivate a plaintiff attorney to move on from a sergeant up the chain of command when pursuing a legal action:
Question: Sergeant, when did Officer Smith join your unit?
Answer: Officer Smith joined my unit in January of 2024.
Question: So, it was your job to supervise Officer Smith and ensure that he was following agency policies and procedures?
Answer: Yes.
Question: And it was your job to make sure that he wasn’t engaged in any misconduct or wrongdoing? Acting recklessly or violating people’s rights? Things like that?
Answer: Yes, it was.
Question: And did you, as the supervisor responsible for overseeing Officer Smith, have any concerns about his conduct?
Answer: Yes, I did.
Question: You did? And what kind of conduct issues were you aware of?
Answer: I was aware of issues related to his demeanor in dealing with members of the public, poor report writing, poor performance in basic motor vehicle operation and, when confronted about these issues, I observed insubordination issues.
Question: You were aware of all of these issues? When did you become aware of these issues?
Answer: I was aware of these issues within days of Officer Smith coming to my unit, as recorded in my counseling memos that I created to document my counseling sessions with Officer Smith.
Question: You documented your counseling sessions? Why is that?
Answer: As is my practice as a supervisor, depending on the totality of the circumstances, I document issues when simple verbal counseling is not appropriate or is not working.
Question: And verbal counseling was not working in Officer Smith’s case?
Answer: Correct. Verbal counseling was not effective.
Question: Sergeant, beyond typing up counseling memos, wasn’t it your responsibility as his supervisor to do something about these issues?
Answer: It was my responsibility to do everything in my power to correct these issues, yes.
Question: And did you do everything in your power to correct these issues? Beyond typing up counseling memos?
Answer: All of my counseling memos were given to Captain Sullivan, as mandated by policy. The Captain and I had multiple conversations regarding Officer Smith and I recommended immediate retraining in verbal de-escalation, retraining in report writing, and retraining in motor vehicle operation, as well as formal discipline in the form of unpaid suspension in an attempt to correct these issues before terminating the officer became necessary.
Question: Did Officer Smith ever receive formal discipline or retraining?
Answer: I do not know of any formal discipline or retraining received by Officer Smith.
Question: You don’t know?
Answer: No. In March of 2024 he was moved to a different unit.
In the preceding example, the sergeant can answer the 3 Most Important Questions the right way. This does not mean that the agency or city government will be spared liability. It does mean that the personal culpability of the sergeant has been all but disproved and the focus now turns to the captain and the agency leadership above the captain.
The intent of discussing the “CYA” Motivation is not to create distrust and strife among supervisors up and down the chain of command. The goal is not to kick the can down the road. Rather, the goal is for the countless supervisors who do not have the authority to take formal disciplinary action in cases of misconduct to clearly communicate the facts on the ground to those who are responsible for taking formal action. In accomplishing this, first-line and mid-level supervisors may be able to avoid a substantial amount of time in depositions, testimony, and other activities related to a civil case. Otherwise, they would have provided plaintiff attorneys with a vital link between an individual officer’s alleged misconduct or negligence and the city or county with the financial means to pay out a settlement.
About the author
Matt Dolan is a licensed attorney, author, and consultant with over a decade of experience in training and advising public safety agency leaders in matters of legal liability, risk management, and ethical leadership. His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.
A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group. He has trained and advised thousands of public safety professionals throughout the United States in matters of legal liability.
Matt received his Bachelor’s Degree in Political Science from DePaul University and his J.D. from Loyola University Chicago School of Law.
Matt is the author of Police Liability: A Guide for Law Enforcement Leaders of All Ranks.
His training courses include Background Investigations in Law Enforcement, Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Internal Affairs Investigations: Legal Liability and Best Practices, and Supervisor Liability for Law Enforcement.