Risky Business

It’s 10 a.m. on Friday morning and last night’s DUI arrest stumbles into the police department’s front lobby. The hangover hasn’t quite worn off, but Danny Drunk tells the receptionist he clearly remembers what happened last night. He demands to speak to the chief so he can report how severely Officer Smith assaulted him during their encounter. 

Smith’s dash cam didn’t record the stop and the officer wasn’t wearing a body camera. The report doesn’t mention any use of force. It’s Danny’s word against Smith’s. Before long, the city is getting out the checkbook to settle a preventable lawsuit.

Law enforcement is a profession full of risks. Vehicle pursuits, foot chases, domestic-violence calls, traffic stops – the list of ways officers can be hurt or killed is endless. While people are the priority, every law enforcement agency also must consider risks to physical property and financial damages resulting from unforeseen incidents.

Managing your department’s risk isn’t only about having policies in a binder on the bookshelf. Developing a pro-active risk-management program isn’t that complicated, but it requires a consistent commitment to keeping officers and the public safe.

Legal and Liability Risk Management Institute Co-Director Jack Ryan spent 20 years in policing and has spent the past 15 years helping law enforcement across the country develop strong policies to mitigate risk.

“Law enforcement is a target for lawsuits all the time,” Ryan said. “It’s also a dangerous business. Risk management really has a two-fold purpose. One, to make sure officers are safe – that’s the primary purpose. But two, to also give them a second bullet-proof vest – a lawsuit-proof vest, if you will.”

Managing law enforcement risk starts with two things, Ryan said. Officers must receive the best training possible and must be trained on the best policies available.

“Let’s face it, knowledge is power,” he said. “When we don’t give them the knowledge they need, bad things happen from a safety and liability standpoint.”

Getting Started

If you don’t already have a pro-active risk-management program in place, the first place to start is to have good policies, Ryan said.

In Kentucky, more than 70 model policies are provided to law enforcement agencies online via both the Kentucky Association of Counties and the Kentucky League of Cities. Ryan suggested that at a minimum, officers should have sound policies covering the 12 highest-risk law enforcement tasks.

“Make sure you have policies in the high-risk areas, and make sure they’re up to date,” Ryan said. “You need a regular schedule for reviewing them. Use-of-force policy should be reviewed every year for any changes. Compare your use-of-force reports to what your policy says.”

Second, Ryan said it is imperative that officers are trained according to what those policies dictate.

“It’s great to have policies, but if you’re not going to train your officers on them, you’re wasting your time if the officers don’t know them,” he said. “I think a good risk-management program has policies, training, supervision, discipline – but not necessarily negative discipline, more quality control – and remediation.”

What Are the Internal Risks?

To prevent lawsuits and injuries, law enforcement leaders must identify the greatest risks to their people and the public.

After 30 years at Ashland Police Department – the past year-and-a-half as chief – Todd Kelley said he has witnessed accidents and injuries that put his agency at risk. Accidental discharges at the firing range, for example, led Ashland leaders to begin the Training Safety Officer program to make training safer. Establishing plans to prevent unnecessary risk and communicating regularly with his officers are top priorities for the north-eastern Kentucky chief.

“We have to hold people accountable, and officers have to be able to tell you when something’s wrong,” Kelley said. “If officers see someone doing something that puts someone at risk, they should pop their head up and say, ‘I don’t think that’s the safest way to do that.’ You have to instill that not just through paper. You have to put that responsibility into the mindset of the officers and every member of the department.”

Training is a significant physical and liability risk if the proper safety mechanisms aren’t put into place in advance. Kelley described a mock active-shooter exercise the department conducted at a local elementary school. In addition to APD officers, Kelley said multiple responding agencies within Boyd County were invited to participate.

“Rather than just showing up and telling everybody they need to make sure they have no ammo in their guns, and go in with that risk, you have to put into motion a safety plan,” Kelley said. “You have to have observers to make sure the training exercise is done safely.”

Training is an internal threat, much like work-related injuries, internal affairs or vehicle accidents. A lack of home-fleet vehicles is an issue Kelley also considers to be an internal threat to his agency.

“It’s more difficult to put ownership and responsibility on an officer when a vehicle is damaged,” Kelley said. “Or, if there’s something wrong with it, getting them to report it because they just drive it for a few hours a day. Where I don’t have that many cars, somebody else may drive it the next day. I think not maintaining your equipment, health and personal wellbeing – those are your internal threats, and they can lead to much bigger issues.”

Another internal risk stems from officers who, over time, become “lackadaisical,” Ryan said, after doing the same thing multiple times without being injured. Ryan used wearing seat belts and bullet-resistant vests as examples. Even in the area of handling drugs today, there are risks if officers do not use the proper protective equipment.

“We get lax with handling these things sometimes, and they are generally things we bring on ourselves,” Ryan said. “Not because we are bad people or bad cops, but because it is human nature. You do the same process over and over and over again and don’t get hurt, that becomes the process rather than following the safety steps.”

External Risks

There are as many, if not more, external risks to officers each day on the streets. Combative, violent citizens top the list of ways officers can be hurt or killed.

“A general lack of respect that seems to be taking over the nation for the past few years with dramatic protests, and often with those protests comes people who feel emboldened to attack law enforcement,” Ryan said.

The FBI reported in October that 2016’s felonious line of duty deaths rose 60 percent over the previous year. The agency’s annual Law Enforcement Officers Killed and Assaulted report showed that 62 of the 66 officers who were feloniously-killed in 2016 were shot with a firearm. More than 57,000 officers were assaulted on duty, a 10 percent rise from 2015.

“That’s all the more reason we have to be situationally aware,” Ryan said. “But also, at the same time, we can’t overdo it. Because if we overreact, then that’s not reasonable, so there does have to be some balance there that goes along with that.”

Kelley agreed that ambushes are a rising concern.

“We know people study the police and look for their weaknesses,” Kelley said. “Those are some of the threats. But law enforcement always seems to think we have to do something courageously, or we don’t have any other way of doing it, or we don’t have the resources for something we have to react to. Those are the external things I think play a role in putting the department or city at a risk that shouldn’t be.”

Ryan noted that the top external risks to law enforcement are use of force; search, seizure and false arrest; and pursuit and emergency vehicle operation. Kelley agreed, but added that often he has seen problems arise during situations that are seemingly simple, too.

“When you’re interacting with the community or engaging somebody and you’re not watching their hands, not watching their movements – those are the things that take a low-risk situation and make it high-risk,” Kelley said. “I think the human element is the biggest priority because you don’t know what people are going to do.”

When engaging in a situation that could become high-risk, Ryan encouraged officers to consider asking the question, “How important is this?”

For example, Ryan referenced a case where an officer engaged an underage teen in a foot chase after seeing him hanging out on a college campus holding a red Solo cup.

“He gets out of the car to write a ticket and the kid runs,” Ryan said. “The officer chases him and goes through a dark backyard. He never sees the steel-cable clothesline and catches it. He literally gets clotheslined and gets a broken neck and a crushed larynx. Over a red Solo cup.

“So when we start to put out directives and say, ‘Hey guys, we gotta think a little bit about officer safety, and that’s part of this equation on when and how we chase bad guys,” Ryan continued. “Your safety is important to us, too.”

If the guy just committed a child molestation, Ryan said it might be worth undertaking the risk of getting hurt to capture him. But there are other times taking the risk is just not that important. Before taking action, if officers take a moment to consider the importance of what they are about to do, Ryan said about 90 percent of law enforcement questions can be answered.

Quality Control

If you call your bank for assistance, before a representative gets on the line, Ryan said you likely will hear a message that says some variant of, “This call may be monitored for quality assurance purposes.” Upon review of the verbal transaction, the bank’s personnel in charge of quality control may run through a checklist of procedures the representative should have performed. Did the call taker say, ‘Good morning, Bank of America?’ Did they ask three security questions before discussing personal information?

“They use those objective checklists in review of calls as a coaching process,” Ryan said of the bank example. “In this day and age, we take in a lot of data. One of the things we have to be careful of is not waiting until something happens to look at the data. We should be using this data for quality control and coaching.”

Ryan joked that often in law enforcement, agencies collect data, but let the plaintiff’s attorney interpret the data for the department. But when a lack of timely data review leads to a serious situation that could have been avoided, it is no longer a laughing matter.

“A lot of plaintiffs’ attorneys now, when they bring a lawsuit against the agency, say the agency’s failure to look at the data was the cause of the harm to their plaintiff,” Ryan said.

For example, if an officer is accused of sexually-
assaulting a female on duty, the agency has access to a multitude of data to determine his whereabouts. If the agency had routinely looked at dash cam footage from traffic stops or routinely checked the officer’s GPS, they would have seen he wasn’t where he said he was at times he said he was there, Ryan said.

“That would have given the department notice,” Ryan continued. “They had the data, by the way. So that’s kind of how the plaintiff will start using this stuff. We need to get ahead of that and make sure we know what our officers are doing. In most cases we’re not catching a rapist, we’re catching an officer not practicing good safety and, by doing so, we can coach them into making sure they are using good tactics.”

Law enforcement leaders might also prevent one officer’s bad habit from becoming standard procedure, Ryan said. In a case he reviewed, Ryan said an officer had been fired for shooting at the tires of a car. The officer missed the tires and the bullet went through the door, striking the driver. The agency had a policy in place prohibiting shooting car tires. However, Ryan discovered a flaw in the enforcement of that policy.

“Nine other times in the same year, officers in that department had shot at the tires of cars and not a single one of them was disciplined,” Ryan said. “They never hit the driver – [the bullet] always hit the tire – but as a result, all of the sudden the agency wants to enforce the policy. It might have been in writing, but the custom and practice was to shoot the tires.”

If the agency had regularly reviewed use-of-force reports for the previous nine officers, it would have been clear the policy was not being followed. As a result, Ryan said the fired officer’s attorney can show the agency’s fault in not enforcing the policy.

“If you allow nine officers to do it, what does the 10th officer think he can do?” Ryan asked. “If they had a proper risk-management assessment in place on the front end that lived up to their policy that said, ‘Don’t shoot the tires,’ they could have stopped the first guy. I’m not saying fire him or even discipline him. But bring him in and say, ‘Hey boss, come in here and read this policy with me. You’re not supposed to be doing that. And let everybody know that was not right.’

“If the second guy does it, you can be a little stronger, but you never get to number 10 if you do it right,” Ryan continued.

Accountability

In a large law enforcement agency, selecting someone to be responsible for risk management isn’t too difficult. In smaller agencies, many times the responsibility falls to the chief. However, Kelley said he believes the responsibility for protecting officer safety and departmental liability should extend throughout the organization.

“I think everybody on the department is responsible, from those of us who wear brass down to the patrol officer,” Kelley said. “Ultimately, because I’m the chief, I have ownership of the responsibility, but if I’m not pushing it out to the command staff and officers are not policing themselves, then that’s a failure and I’m going to find out why.”

There is nothing wrong with selecting one person to oversee departmental safety, but Kelley said one person can’t assume the whole responsibility themselves. It’s important to put somebody in that mindset, but that command staff or mid-level supervisors have to be involved as well to ensure officers are practicing good safety measures.

That also means that whether it is the chief or an individual assigned to risk management, officers have to know that when they speak up about safety concerns, they will be heard, Kelley said. This kind of discussion can be accomplished on a one-on-one basis or through after-action reviews of large-scale community events as well, he said.

“When you start to do proper risk management, you’re not just looking at whether the officer did something wrong or had poor performance,” Ryan said. “Maybe they were trained wrong. Maybe the policy is not good. But you don’t want it to happen again. You want to fix it before something serious happens. And when we practice regular risk management, we will be the ones to discover it as opposed to the plaintiff’s attorney.”

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Eight Tips for Reducing Training Risk

Law enforcement training can involve significant risk to officers, instructors and participants if proper procedures are not in place. High-risk training such as defensive tactics, active-shooter exercises, firearms qualifications or use-of-force training should be conducted with a Training Safety Officer, said Department of Criminal Justice Training Physical Training Supervisor Al Dixon.

Not all training requires a TSO, but Dixon said any contact-based scenario training should incorporate these practices to mitigate potential risks:

• Distinguish between the TSO and instructor’s roles. Communicate about what each person is responsible for during the training, what the instructor is teaching and what site supplies, paperwork and safety measures are needed.
• Observe for off-script behavior. Horseplay, goofing off or non-participation in the activity should be identified and corrected.
• Develop a safety plan. Document risks and concerns that are site-specific. Prepare for weather if the training is outdoors. Ensure you have the necessary personal-protection equipment.
• Be choosy with role players. Do not assign role players who are known goof balls or might encourage horsing around.
• Establish an Emergency Medical Services plan. If a trainee shoots themselves while cleaning their gun, know how you will quickly ensure proper emergency care.
• Communicate the stop signal. Establish a verbal signal such as, “Yield,” that everyone will repeat upon hearing someone speak it to stop all training immediately.
• Select an effective TSO. Identify a TSO who is fully engaged in the training but not overly enthusiastic, who focuses on their role and does not start to coach.
• Recognize the training curve risk. Studies show the highest risk in training occurs during lunch time and immediately after. Exercise particular awareness during this time period to prevent accidents and injuries.

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12 High-Risk Critical Tasks of Law Enforcement

• Use of force
• Pursuit and emergency-vehicle operations
• Search and seizure, including arrest
• Care, custody and control of prisoners
• Domestic violence
• Property and evidence
• Off-duty conduct
• Sexual harassment / misconduct
• Selection and hiring
• Internal investigations
• Special operations
• Dealing with the mentally ill or emotionally disturbed

Source: Institute for Criminal Justice Education, Reducing Law Enforcement Liability; Reviewing the High Risk Critical Areas, by Chief Louis Zook, Sylacauga (Ala.) Police Chief.