Use of force liability risk management
By Marty Drapkin
Checklist: Use of force liability risk management: Corrections setting
Management of liability risk is an important element of any detention or corrections operation, small or large. Liability risk management applies to all aspects of a corrections operation, but is perhaps most important in regard to “critical task” issues that are commonly the focus of litigation based on the constitutional rights of detainees and prisoners. This includes such issues as medical and health care, suicide prevention, and use of force.
Managing liability risk is a way of trying to be proactive — that is, thinking in advance about things that can happen that could be problematic in terms of litigation, and then taking steps to (1) do the right thing and (2) be able to demonstrate that proper actions were taken, when lawyers and others start asking questions. It is always better to be proactive than reactive — that is, waiting until after something bad has happened and then try to control the damage the best you can.
Liability risk management must be viewed as a comprehensive system. The minimal components of this system include:
• Written policies and procedures
• Training of staff members
• Documentation of actions
• Review of incidents and implementation of necessary changes based on such review
• Ongoing supervision of personnel to ensure maximum compliance with policies and training
Use of force, as noted, is a key area in which liability risk management must be applied. There have been, and will continue to be, civil lawsuits in which plaintiffs allege that force used in a jail or prison was either inappropriate or excessive, or both, or that care provided following application of force was insufficient. Additionally, staff members can be charged criminally for their inappropriate use of physical force. The following is a brief overview of how each of the above-listed components of a liability risk management system apply in regards to use of force:
Policies and Procedures
The key purpose of written policies and procedures is to direct staff members in the proper performance of their duties. Good policies and procedures should tell staff members what administration expects them to do, and how to do that, in a basic way. A comprehensive policy on use of force in a jail or prison should reflect provisions of state laws and/or administrative rules, as well as constitutional guidelines governing use of force.
The policy must also be consistent with what staff members are trained to do in regards to application of use of force. It can be a significant problem if a policy says one thing but staff members are trained to do something different. That is why it's critically important that a department’s use of force trainer(s) is involved in developing the use of force policy.
Once a policy has been finalized and approved at the highest levels of authority (sheriff, superintendent, warden, etc.), a system must be in place to distribute the policy to all staff members. But it is not enough just to distribute policies to those who are expected to carry them out, staff members must also be trained in both the cognitive aspects of policies as well as skills necessary to properly implement policies and procedures. All such training must be documented.
Policies and procedures on use of force (or other issues) are never static. Philosophies regarding use of force evolve and ideas about tactics and techniques change as well. For that reason, another element of good liability risk management is systematically reviewing and revising use of force policies, when warranted. Ideally, policies should be routinely reviewed at specified intervals, such as annually, to be sure that there is congruence between what policies set forth and actual practices.
Corrections managers should maintain an archive file of policies and procedures, so that it will be possible to locate the specific version of a policy that was in effect at the time that an incident occurred.
Training is a critical element in an overall program for managing liability risk in regard to use of force (or other issues). Staff members, of course, must be properly trained initially in “classroom model” application of all allowed use of force tactics and techniques. Their competency in application of techniques should be tested, and the results documented.
As noted, it is also important to train staff members in the contents of the use of force policy. Such training primarily focuses on the cognitive aspects of the policy — such as when use of force is appropriate or not appropriate, restrictions on use of force, approach considerations prior to application of force, allowed intervention options, follow-through considerations following application of force, reporting requirements, and so on.
Training, to be effective, must be continuous. Because application of force is a psychomotor skill, tactics and techniques must be practiced and proper use reinforced at regular intervals. Annual training is probably a minimum. Additionally, staff members should be trained at regular intervals — again, annually is a good standard — in the cognitive aspects of use of force. This includes ongoing training in the contents of the use of force policy. Of course, any time there is a significant revision to written policy, staff members must be trained in that.
There should be an evaluation component to all training, including cognitive training on policy contents and psychomotor skills performance. Unless there is such evaluation, corrections managers have no way of knowing — and proving — that staff members are competent to perform their job tasks.
All training must be documented. From a liability risk management perspective, if training isn't documented, it didn't happen.
Documentation of Incidents
Written reports on use of force incidents are critically important because it's an officer's official version of what happened during the incident, and it may be used in court. A report is an officer’s official version of what happened during an incident, and it is the key document that may be used in court to explain and (hopefully) justify all aspects of an incident in which force was applied — approach considerations, intervention options used, and follow-through considerations.
Reports must be thorough and comprehensive, including information on all details of an incident. After all, an officer may be on a witness stand years after an incident occurred, and must depend on a written report to prompt his or her memory about what happened a long time ago.
Use of force reports are not separate from policy and training considerations. A good use of force policy should require that incident reports must be prepared and submitted according to specific guidelines and time frames. Also, the policy should indicate what is to be documented in a report. Staff members must be thoroughly trained on that policy requirement, and trained to write good reports.
Review of Use of Force Incidents / Implementation of Changes
A key element of liability risk management is routine supervisory review of all use of force incidents. Policy should specify who has responsibility for such review, and when reviews are to be done. A key purpose for such review is to determine whether or not use of force was in compliance with department policy and training.
Supervisory review should involve the following: a review of all use of force reports, review of videotapes of incidents when applicable, and interviews with staff members and inmates involved. Such reviews, and their results, must be properly documented. Specifically, there must be documentation of the determination as to whether actions by staff were or were not in compliance with policy and training.
In addition to reviewing specific incidents, it is a good idea to plan for routine reviews of all use of force incidents and inmate grievances or complaints involving use of force at specified intervals.
If an incident review or routine review of overall incidents and grievances indicates that there is a need for change of some kind in order to improve performance or responses, then such changes should be implemented. This may involve a revision to policy or procedures, alteration of training, improved documentation, a change in the way that staff members are supervised, and so on.
Clearly, it's a managerial responsibility to implement necessary changes in order to improve future responses to proper use of force. The failure to learn from things that happen and to make necessary changes to improve future performance can be tantamount to willful negligence or even deliberate indifference.
Supervision of Personnel
The final critical element of a comprehensive use of force liability risk management program is proper supervision of personnel. An agency can have the best policies and procedures in the world, and the training program can be terrific, but unless there is effective and ongoing supervision of staff members to ensure that they are acting properly, according to policy and training, problems will inevitably occur.
Proper supervision of line staff members can only occur, however, if first-line supervisors (such as sergeants) and higher-level supervisors know about and support the policies and procedures and training. If they do not, it is fairly certain that they will, one way or another, subvert or undermine those policies and training. This is potentially a big problem. It is the responsibility of managers or administrators to try to ensure that supervisors are on board with management policies and decisions and that they do their jobs of being good supervisors.
If supervision indicates that employees have performance problems with use of force (or any other job tasks), then steps must be taken to improve future performance. Such steps may range from counseling to discipline to provision of training to a staff member.
All of the above steps must be documented — including any corrective measures taken to improve employee job performance.