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.