The First Layer: Policy Establishing Departmental Standards of Performance
In the previous article titled: “Focus on Liability Reduction and Better Performance” we described the Six Layered Liability Protection Process which requires absolute attention to the development of policies based on the principle of “foreseeability” for the performance of certain tasks, the training in the necessary skills and critical policies, quality supervision, corrective action and remediation, constant review and necessary revision, and finally available legal support and training.
As a prelude to eventually discussing all six layers, the focus in this article is on policy which admittedly appears to be equally onerous to both the policymakers (chiefs and sheriffs) and the officers, for the former has to be sure of crafting the proper policies and making sure they are enforced, and the latter because they are required to follow them.
Policies have been seen as a “necessary evil” only resulting in massive loose leaf books filled with minute details about almost everything. Policymakers are continuously challenged with making sure they have all the policies, that they are updated regularly, and they are followed. Officers feel that policies might restrict their ability to do the job, and supervisors, caught in the middle, bargain away some of the substance of the policies or completely overlook sections to facilitate the accomplishment of the pressing tasks assigned to them and their officers.
But contrary to such popular belief, there is a very positive and supportive side to policies for those who construct them and for those bound to follow them. First of all, to those executives who make sure that policies are in place, it guarantees them liability protection to a great extent since they have fulfilled part of their responsibilities. Furthermore it strips away from the plaintiff’s case in any litigation, their charge, so necessary in pinning legal responsibility on the executive, that he/she was “deliberately indifferent” to providing direction. With some additional effort, the plaintiff’s other argument that the department condoned actions which fostered constitutional violations, is thwarted. (Recent litigation in federal courts has equated the absence of policy in critical areas with deliberate indifference, thereby linking the executive and the department quite directly to the alleged constitutional violation.)
Secondly, once the policies are in place and known to the officers, if they follow those policies exactly, and litigation ensues, then they can claim the defense of “qualified immunity” and thus, under most circumstances be released from the lawsuit. If officers are interested in avoiding the scourge of litigation, then a close following of the policies with documentation or even references to that policy in reports of their involvement in certain incidents will generate increased levels of protection, making it less productive for plaintiff’s attorneys to initiate any legal action.
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. One other thought: with no policy on the books a mode of dealing with particular tasks evolves from “this is the way it has always been handled,” to the way that the supervisor wants it handled. Both are extremely dangerous in the liability arena, and offer little protection to the executive, to the supervisor or the officer. However, it goes without saying that it offers a very attractive prospect for the opposing side to strengthen their case.
Another reason for the necessity of policies is because most law enforcement agencies boldly flaunt their mission, usually presented as “to protect and serve” the community. Once a mission statement is articulated such as this one, then policy correctly emanates from that mission. Policies have two purposes: one is to show to that community exactly how this department is going to “protect and serve” them on this particular topic or this specific task, be it using force, responding to domestic violence, searching and seizing, or pursuing vehicles. The “protected and served” community is candidly informed of the manner in which their officers are going to perform these critical tasks.
A second reason for the policies as they flow from the stated mission of the department is the clear, unequivocal statement of the performance standards for that task. The community then knows in no uncertain terms what is expected of the officers, and furthermore what they can expect when they encounter officers in situations related to these tasks. Let’s ask ourselves in our personal dealings with hospitals, airlines, department stores, and all manner of commercial establishments and professional services, if we, very vocally, want a clear statement of their standards and rigid adherence to those standards. Aren’t we relieved when in exceptional situations, we realize that these businesses and services with which we deal daily, transact business and provide services at the ultimate professional level?
No real reason exists for the maintenance of absolute secrecy in the matter of the policies’ contents. (True some policies might contain more confidential information that could conceivably be withheld.) If we factor in the commonly selected departmental values of “honesty” or “integrity” what prevents us from candidly making this statement and letting that community know how we are applying that mission statement to this task, and the levels of performance that will accompany it? We shouldn’t fear any inconsistency and where it exists, we should concentrate our efforts to narrow the gap between actual performance and the standards enunciated in the policy. It should be a matter of corporate and individual pride that our law enforcement agencies have proclaimed high standards known to the world, and that they operate according to them.
If there is interest in reducing or possibly eliminating losses due to litigation, then minimally the executive’s greatest efforts should be focused on what I call the “High Risk/Critical Tasks” which are the ten to twelve tasks which generate about 99% of all liability. Think of it, – if you are interested in reducing/eliminating losses, and these ten or so tasks generate all of them, there is only one conclusion: put plenty of efforts into guaranteeing that from policy development, to training, to supervision, and on to corrective actions and remediation in the face of failures to perform these tasks correctly, that there is nothing wanting.
What are these high risk/critical tasks? They are: use of force; pursuit and emergency operation of vehicles; search and seizure; care, custody, restraints and transportation of prisoners; domestic violence; off-duty conduct of officers; sexual harassment; arrests; complaints and internal affairs investigations; unusual occurrences; and dealing with emotionally disturbed persons. This very finite list could vary a bit and might go to twelve or so. But the point is inescapable: if policies are in place and they are complied with, then both the executive (the policymaker) and the officers are in most impregnable positions, and there is nothing wrong with that.
One final thought: rather than postpone the arduous task of “revising the policy manual” it might be more productive to place maximum attention on keeping these policies up-to-date and enforced, with more occasional attention to all the others.