Caveat employer: Police hiring from a thinning herd

Police hiring is in a precarious position these days. It may not be at a crisis point, but as many executives and administrators across the country have noted, it is a growing problem.

Lucrative signing bonuses are being offered by some municipalities and are sure to attract applicants. These signing bonuses are usually in the form of tiered payouts based on the completion of different phases of the application process and training.

While it is a nice incentive, police hiring managers must remain vigilant in the selection process. The profession needs individuals who want to serve their communities and who are motivated to embrace the complex public interactions involved with their service.

Applicant requirement trends

Police1’s “What cops want in 2023” State of the Industry survey included an inquiry into whether since 2020 an officer’s agency had changed its police applicant requirements within several specified categories. The results identified several disturbing trends.

Polygraph examinations were eliminated according to 303 respondents, while psychological screenings were reduced or eliminated according to 266 responses, and foregoing credit checks in another 402 responses. Educational requirements, an area that was at the forefront of police recruiting a generation ago, were relaxed according to 862 responses.

Respondents who checked “Other,” wrote about specific changes to recruitment they had witnessed. Many of these responses listed relaxed standards when it came to prior misdemeanor arrests or other automatic criminal history disqualifiers, as well as lenient background checks and admissions of prior recent drug use. These are disturbing trends in police recruitment and hiring.

Negligent hiring claims

The caveat for personnel-strapped but cash-flush municipalities looking to bring in larger applicant pools is to avoid lowering hiring standards and to keep background investigations rigorous. Municipalities must keep in mind that negligent hiring claims are a viable means for injured plaintiffs to seek compensation. Similar claims have been established against employers outside of policing and to a varying degree have been successful.

The basic elements of a negligent hiring claim are:

1. The failure of the employer to exercise reasonable care in hiring the employee;
2. The employer’s actual or constructive notice of the employee’s incompetence, negligence, or dangerous proclivities;
3. Injury to a third-party caused by the employee that resulted from the employer’s failure to exercise reasonable care in the hiring of the employee.

Each state may have slightly different statutory requirements relating to establishing a claim and case law will also vary. Nonetheless, these types of claims may become more prevalent a few years from now as plaintiff’s attorneys, aware of the present hiring situation, file civil claims in court based on officer wrongdoing. Police employer vigilance in the hiring process must be cognizant of when liability for a hiring decision will attach to the municipality.

Municipal employer liability

Federal civil rights statute claims (42 USC §1983) initiated against municipalities come under the guidelines of Monell v. Dept. of Social Services, 436 U.S. 658 (1978), wherein the U.S. Supreme Court held that municipal defendants can be held liable for constitutional violations resulting from a municipal policy or custom.

To be successful on a Monell claim a plaintiff must allege that the policy or custom was the direct, proximate cause of the resulting harm. For a negligent hiring claim this means that the plaintiff must show the municipal employer either had knowledge, or should have had knowledge, of a potential employee’s dangerous acts or proclivities, failed to act upon that actual or constructive knowledge, thus leading directly to the plaintiff’s harm.

This is a hard standard to meet and one likely to be met in only the most negligent of hiring decisions. Any intervening cause attributable to the harm suffered by a plaintiff will defeat a proximate cause analysis. (See eg., Van Ort v. Estate of Stanewich, 92 F. 3d 831, 837 (9^th Cir., 1996)) Federal courts are wary of turning civil rights based negligent hiring claims into respondeat superior liability that holds the employer vicariously liable for employee actions. Courts will look closely at the “policymaker’s inadequate decision and the particular injury alleged.” Fought v. City of Wilkes-Barre, 466 F. Supp. 3d 477 (M.D. Pa. 2020)

Nexus between a hiring decision and alleged unlawful conduct

Many federal claims against police employers for negligent hiring generally fail in the pleading stage and are subsequently dismissed upon summary judgment. However, past plaintiff deficiencies in pleading or difficulties in proving negligent hiring claims should not offer any sense of comfort.

Plaintiff negligent hiring claims have been sustained and allowed to proceed when the proper nexus between a hiring decision and alleged unlawful conduct has been made. (See eg., Fields v. King, 576 F. Supp. 3d 392 (S.D.W.Va., 2021.) In Fields v. King, a case involving a second fatal shooting by a sheriff’s deputy in a two-year period, the federal district court denied the defendant’s motion to dismiss the negligent hiring and negligent retention claims, despite a grand jury finding no criminal conduct on the deputy’s part. The county employer eventually settled both civil shooting claims for a total of $1.3 million. One distinguishing factor in the Fields case was that West Virginia law recognizes a claim for negligent hiring and retention. State law in other jurisdictions may vary and limit elements of liability. California, for instance, “does not recognize a general duty of care on the part of supervisors with respect to negligent hiring, retention, or training.” Estate of Osuna v. Cnty. Of Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal., 2019) Liability will only attach when there is a special protective relationship with the plaintiff.

In New York and Pennsylvania, liability for negligent hiring will apply only when the public servant is acting outside the scope of employment. (See eg., Moran v. County of Suffolk, 189 A.D.3d 1219 (2d Dept., 2020) and Fought v. City of Wilkes-Barre.) However, determining what conduct is legitimately within the scope of employment has been properly left to juries, and on-duty excessive use of force has been held to be outside the scope of employment. (See eg., Justice v. Lombardo, 208 A.3d 1057, 1067 (Pa. 2019))

Negligent retention claims are often paired with negligent hiring. The elements of pleading negligent retention mirror those of negligent hiring, except it is an added allegation that a municipality failed to take proper disciplinary measures, usually termination, once it had either actual or constructive knowledge of an employee’s misconduct, incompetence, or other conduct providing notice of employment unsuitably. The law pertaining to sustaining a viable claim is the same; a plaintiff must plead and prove a direct causal connection to the municipal policy or custom and the harm suffered.

The present difficulties in hiring will one day abate and applicant pools of qualified individuals will hopefully meet or exceed past robust levels. But regardless of the depth of the applicant pool, stringent hiring standards must never be compromised, otherwise, the consequences can be costly in more ways beyond financial considerations.