Police Agencies & Civil Liability: An Ounce of Prevention
Civil liability is a major concern for criminal justice agencies and policies should be in place to inform officers of the various situations and incidents that lead to civil action. Further, the professional performance expectations of law enforcement officers should be clearly communicated by their departments and their communities. The situations that lead to civil liability have been costly in terms of dollars and the public perception of law enforcement officers (Ortmeier & Meese, 2010; Spencer, 2007). Complaints of corruption, excessive force, constitutional rights violations, and internal department issues like sexual harassment and discrimination are the leading causes of civil liability cases and agencies need to consider how to address this challenge and minimize exposure to civil liability claims; the esteem of the profession and its relationship with the public make it imperative.
The performance expectation on criminal justice agencies is high, higher than most public organizations because of the authority they are entrusted with wielding. The nature of criminal justice work and potential for unethical abuses (real or fabricated), the high public profile, and an increasingly litigious society create a fertile environment for civil liability action if the citizens wish to pursue it, for whatever reason (Jurkanin, Hoover, Dowling, & Ahmad, 2001). A criminal justice organization must find that delicate balance of the appropriate legal action an officer can take and the public perception of how that officer carries it out.
Lawsuits resulting from perceived illegal action taken by an officer of the law as an individual are rare. More commonly civil liability action is directed against the individual agency that employs the officer. There is a great burden placed on the agency to prove that it had applied all of the necessary legal safeguards to prevent the abuse, did not act indifferent to the illegal behavior, and did not allow a professional environment to exist which encouraged the illegal behavior that violated the rights of the plaintiff to exist in the first place (Spencer, 2007). Criminal justice agencies need to be prepared to incorporate proactive policy measures that reduce its liability risk and ensure its personnel are properly trained.
Criminal justice agencies are responsible for the misconduct of its agents in the performance of their duties. Malley v. Briggs, Anderson v. Creighton, Osabutey v. Welch, and Cooper v. Dupnik were cases which involved officers who operated outside of their constitutional authority. The organizations that employed the officers involved were held responsible for the acts these officers committed as employees. Liability, however, extends beyond acts of individuals.
An employer is also directly liable for its hiring practices, especially if those practices are negligent and lead to hiring personnel who then commit unlawful acts within the scope of their employment (Bagley & Savage, 2010). This is an especially relevant concern of the criminal justice community. Consequently, it is important to emphasize professional ethics as the foundation of any agency’s personnel department, as it is most likely to lead to an ethical performance of duties (Ortmeier & Meese, 2010).
Criminal justice professionals will be exposed to many scenarios in the performance of their duties and not all of them will have to do with specifically law enforcement functions. Courts have decided that the burden of preparation to manage those scenarios rests with the agency. Agencies must be informed and prepared to meet the legal bar established by the courts.
Training & Policy
Failure to train can be the foundation of a civil liability lawsuit against an agency (Schmalleger, 2011). City of Canton, Ohio v. Harris found that agencies can be held responsible for injuries to the plaintiffs if proper training could have prevented the behavior. This case is particularly relevant because the violation charged in this case was lack of providing proper medical attention to an individual in police custody. Subsequently, the court found that proper training would have provided the officers with the knowledge to seek medical attention in a timely fashion. With regard to training policy, it is the responsibility of the agency to provide training that encompasses a plethora of scenarios that do not simply address criminal justice issues. There is an expectation that law enforcement officers will acquire knowledge of scenarios they may encounter during their law enforcement duties.
In addition to comprehensive training programs, internal personnel recruiting practices need to place an emphasis on training that is received before being hired, in particular a college education. Criminal justice agencies with higher personnel education levels have fewer lawsuits filed against them and their agencies (Ortmeier & Meese, 2010), resulting in a three-fold benefit to the community.
First, college education is training that the department did not have to pay for; second, the money that is not spent on civil liability payments can be used to recruit better quality candidates; third, a college education can provide well-rounded knowledge relevant to law enforcement duties that cannot be learned in the police academies. A well-educated law enforcement officer is lower risk asset to any community and should be a hiring priority for any criminal justice agency. This minimizes the risk that actions outside the law will be taken by officers in the day-to-day performance of their duties.
Policy considerations are often decided by the courts (Neubauer & Fradella, 2014) and serve as the guiding light agencies must employ when crafting their training policies. In addition, current training practices should be employed when crafting training programs. Subsequently, training topics/programs should be regular, relevant, adult-learning based, and should simulate, whenever possible, scenarios most likely to be encountered on the job (Ortmeier & Meese, 2010). The City of Dayton, Ohio decision noted that this training should be “up-to-date.” It is not enough to just simply “train.” Training should have a specific purpose and address specific challenges likely to confront the agency’s responsibilities. For example, a prison may not find much use for training in arrest procedures but may find significant use for training in custodial suicide prevention.
Competent Instruction & Frequency
Competent trainers are a requirement. The industry has responded in the last thirty years to the need for professional standards in training programs. Agencies must seek out reputable training programs created by recognized experts in the field. Organizations like the American Society for Law Enforcement Training, which was established in 1987, have provided quality training to agencies throughout the United States (Schmalleger, 2011).
` Because the criminal justice field is always changing, it is important for agencies to foster an attitude of lifelong training and education. This is the only way to prepare for and confront the challenges which face the criminal justice profession everyday. The rewards for creating an environment of learning are increased productivity, morale, organizational commitment, and more ethical job performance; all lower the risk of incurring liability action (Ortmeier & Meese, 2010).
Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.” Ethics and training will help prevent the likelihood that an organization will face damaging and expensive civil litigation. Creating an organization that encompasses exemplary ethical conduct is the best way to prevent damaging misconduct (Bagley & Savage, 2010). Lawsuits and civil litigation can be avoided by “adequate training, better screening of applicants, close supervision of officers, and ‘treating people fairly,’” (Schmalleger, 2011).
How does this apply to the criminal justice organization? Employ the most ethical and best educated personnel you can find. This is best accomplished in the initial hiring process, where unqualified applicants can be better screened out. Once hired, maintain an environment of high ethical expectations. Provide the most relevant, up-to-date, and reputable training available. This is the formula to a high performing and qualified agency that serves the best interest of the public and earns their respect and loyalty.
Bagley, C. & Savage, D. (2010). Managers and the legal environment, 6th edition: Strategies for the 21st century. Mason, OH: South-Western Cengage Learning.
Jurkanin, T., Hoover, L., Dowling, J., & Ahmad, J. (2001). Enduring, surviving, and thriving as a law enforcement executive. Springfield, IL: Charles C. Thomas Publishers, LTD.
Neubauer, D. & Fradella, H. (2014). America’s courts and the criminal justice system, 11th Edition, Belmont, CA: Wadsworth Learning.
Ortmeier, P. & Meese, E III. (2010). Leadership, ethics, and policing: Challenges for the 21st century, 2nd edition. Upper Saddle River, NJ: Prentice Hall.
Schmalleger, F. (2011). Criminal justice today: An introductory text for the 21st century, 11th edition, Upper Saddle River, NY: Pearson Education, Inc.
Spencer, W. (2007, June). Suggested topics for training police departments in Section1983 Liability. Paper presented at the semi-annual meeting of the Texas City Attorney’s Association.