Six Layers of Liability Avoidance
What law enforcement agencies need to know about liability risk.
- Six layers of liability avoidance.
- How you can strengthen all layers of liability avoidance in your agency.
Law enforcement is inherently high-risk work. It can seem like law enforcement agencies face liability risks at every turn.
A lawsuit can put severe financial strains on your department, erode community trust, and hurt morale.
It’s essential to protect your agency by building in layers of liability avoidance.
Since the 1990s, law enforcement leaders have used a system of six layers of liability avoidance. Attorney G. Patrick Gallagher compares the system to a bulletproof vest.
“The six layers are a department’s liability proof vest protecting it from lawsuits either by eliminating any threat or by minimizing it once an action has been filed,” he wrote in his book on police risk management.
Like a bulletproof vest, the layers work together to protect your agency. You can afford to have one or two weak layers, but you’ll be better protected if you’re strong in all of them.
PowerDMS recently conducted a webinar with Chief Louis M. Dekmar, the chief of police of LaGrange Police Department and former president of the CALEA Commission.
In it, Chief Dekmar addressed the six layers of liability avoidance and how they can help keep your agency out of court.
Your agency’s policies lay the groundwork for how your officers do their jobs.
Law enforcement policy allows your agency to establish standards, guide officers in proper procedure, and hold officers accountable.
Gallagher says agencies should develop policies based on the principle of “foreseeability.”
This means that if executives foresee that they are going to ask officers to perform a task, the executives must give officers direction for how to perform that task.
The policy layer of liability avoidance only functions effectively if your agency develops policies proactively. Waiting until after an incident to craft policy is recipe for disaster.
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Under the Supreme Court ruling in Monell vs. Department of Social Services, a plaintiff can sue your department directly if you have a policy or practice that results in the violations of an individual’s constitutional rights.
This may be more likely to happen if you fail to develop or disseminate thorough policies.
Without proper guidance, officers will perform tasks however they see fit, which puts the officer and your whole agency at risk.
“Without the protective layer of policies, the executive is exposed to federal civil rights litigation and the officer is deprived of protection because he/she cannot say they were following a non-existent policy,” Gallagher writes.
To beef up the policy layer of your agency’s liability avoidance, you should develop and regularly update policies. You should pay special attention to policies on the 12 areas that pose the highest liability risks.
Dekmar says that using a policy management system such as PowerDMS can help agencies maintain, update, and distribute policies.
“What PowerDMS has allowed us to do is to ensure that we disseminate our policies in a way that ensures that everybody that's affected by that policy change receives it, acknowledges receipt of it,” he says.
This reduces liability by making sure every officer knows proper procedure.
Policy lays the groundwork for liability avoidance, but it doesn’t do much good unless it’s paired with training.
“If you think it's important enough to put in policy then you have an obligation to train it,” Dekmar says.
“When [the Department of Justice] makes some sort of inquiry, the area they look at first is policy, second is training and how the agency is able to demonstrate policy compliance.”
Training gives officers the opportunity to practice the skills and principles laid out in policies. Training ensures that officers understand policy and can correctly put it into practice.
This means that training should not just include classroom sessions teaching officers about the substance of policy.
It also needs to include hands-on, scenario-based training, where officers can practice making decisions in critical situations.
Gallagher points out that many police lawsuits arise from officers making the wrong decision in the moment.
“If our trainees and officers have all the knowledge and skill they need,” he writes, “then they need assistance to make the right decisions as to when to use that skill.”
Good training can help prevent lawsuits from arising in the first place, and limit your agency’s liability if a lawsuit does come up.
Dekmar points out that PowerDMS can help law enforcement agencies simplify training. It also automatically keeps training records that can help in the event of a court case.
“Training doesn't have to be face-to-face classroom,” he says. “It can be a Powerpoint put on PowerDMS, they can go through it, then they can take the test, and all of that is archived for any future litigation the agency may be exposed to.”
Gallagher’s principle #8 states, “There is no factor more important to the avoidance of liability and the upgrading of the agency’s professional performance and attainment of its standards than the quality of supervision.”
Research has shown that supervision and leadership styles influence officer behavior.
If supervisors take a hands-off approach and only interact with subordinates when things go wrong, officers are more likely to use force.
The most effective supervisors are those who take an active role, leading by example and motivating officers.
Effective and active supervision inspires officers to perform better and follow policy. It also holds them accountable to department standards, which can help limit liability.
4. Corrective Action
In order for policy, training, and supervision to have teeth, your department must take steps to discipline officers if they misbehave.
This can help reduce liability from both internal and external lawsuits.
Civilians are less likely to file a lawsuit if your department properly investigates their complaints against an employee.
At the same time, officers must know they will be treated fairly if they make an honest mistake.
Dekmar says police discipline comes down to two competing interests:
“You have the interest of the community at large that expects that when officers conduct themselves inappropriately that they’ll be held accountable.
”You also have the expectation that there's going to be a process that ensures fundamental fairness for the employee when an allegation has been made.”
Therefore, he says, it’s paramount that agencies spell out disciplinary actions in policy. In order to avoid charges of wrongful termination or unfair discipline, Law enforcement departments also must take the Douglas Factors into account.
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5. Review and Revision
According to Gallagher, “The key to this layer is that anything relating to performance must be reviewed and any needed revision made.”
Your agency must constantly seek to improve policy and training to keep up. In order to do so, you may find it helpful to review performance-related data including:
- Incident reports
- Civilian complaints
- Performance reviews
- Use of force and injury patterns
- Changes in case law
- New research, best practices, or literature related to policing
Analyzing this data can strengthen your liability avoidance by helping you proactively improve practices.
6. Legal Support, Counsel, and Training
Law enforcement officers must know the laws they are enforcing.
However, this is often the weakest layer in law enforcement liability avoidance.
Police officers are not legal experts, so it’s important for agencies to bring in legal counsel to assist with training on new laws.
Gallagher writes that case law is constantly changing, so agencies should not wait for annual training sessions to update officers on important legislation.
Law enforcement agencies should bring in experts for this training, but make sure the information is digestible and practical for officers in the field.
The training should emphasize how new laws affect how officers do their jobs.
How PowerDMS Can Help
Using PowerDMS can help you strengthen all six layers of liability avoidance in your agency.
PowerDMS lets you easily create, distribute, and track policy. It streamlines online training, lets you test comprehension, and stores training records for each officer.
This can help your agency hold officers accountable and know how to take proper corrective action in the event of inappropriate behavior.
PowerDMS makes policy review and revision easy, letting you compare your policy side by side with certain standards.
You can highlight policy changes and send them out to employees with the click of a button.
And you can use the workflow function to collaborate with legal counsel on policy and training material.
Dekmar says PowerDMS has made it easier for his department to reduce liability by proving that officers received and acknowledged policy updates.
“What PowerDMS does is it allows us to go back in and pull the policy at the time of the incident, which is the focus of that particular litigation,” he says. “I can't begin to describe the headaches that it saves.”