Failure to Train--or Not?

When a call goes south and an officer's action results in death or injury, we all know what comes next: the lawsuit. We also know that the plaintiff's attorney is going to try very hard to find a way to sue not just the officer, but also the officer's agency. News flash: cops don't make a lot of money. A million-dollar jury award is going to be pretty hard to collect. Furthermore, a number of states have enacted laws to give officers (and other governmental employees) limited immunity from civil suits when they are acting within the scope of their employment. These laws won't protect officers from grossly negligent acts, but they do protect them from being sued for ordinary mistakes and errors of judgment. On the other hand, states, counties, and municipalities do have a lot of money. Going after the agency makes a lot more sense than trying to squeeze blood out of a turnip--or money out of a cop.

Two legal causes of action are of concern to trainers: failure to train and negligent retention. In a nutshell, the first says, "the officer screwed up because you didn't train him or her properly," and the second says, "you knew the officer was incapable of performing properly, but you kept him or her on the job anyway." What can we as trainers do to protect ourselves and our agencies against these kinds of liability?

The most important thing we can do, of course, is deliver the very best training we can. Hand in hand with good training goes the responsibility to make sure that we don't put people out on the street who don't measure up. Recruiting police officers is tough these days. A robust economy coupled with an ongoing war makes for slim pickings at the recruiting office. There's a lot of pressure to fill empty slots with warm bodies, even if they are less than ideal. There is also pressure to make sure that our police forces reflect the diversity of our communities. We have learned that good cops--even excellent cops--come in all sizes, genders, colors, and ethnicities. But so do poor cops. Our agencies have a duty both to provide high-quality training and to remove those who do not respond with adequate performance, regardless of overtime costs to fill empty beats or political pressure to the contrary.

Good training and good hiring/firing decisions aren't enough. Just as an officer on the street may do everything right and still lose a lawsuit unless he or she also writes a solid report, we need to thoroughly document training and performance if we are to successfully defend against an allegation of failure to train or negligent retention. Good documentation must address three aspects of training:

  • Relation to job demands
  • Specific training content
  • Student performance

The good news is that it's relatively easy to do all three, but it takes planning and discipline.

Relation to Job Demands

This one is the easiest. All you have to do is get out your state-approved curriculum, with its competencies and performance objectives, and link your training to it. As I noted in another column, most state-approved curricula were developed on the basis of a job-task analysis. In other words, the state has already done the work of showing that the curriculum is based on the actual demands of the job. What you need to do is tie your training into that curriculum.

The more specifically you can make the connection, the better. For example, if you are planning a building-clearing exercise, get out the curriculum book and look for specific performance objectives that your training addresses. These might include such objectives as these:

  • Demonstrate proper use of cover and concealment
  • Demonstrate tactical entry procedures
  • Demonstrate proper application of handcuffs

Don't overlook the less-obvious objectives, as well. For example, your training probably also includes these elements:

  • Use tactical communication techniques, including heavy control talk
  • Show familiarity with constitutional search and seizure law

Identifying the specific competencies and performance objectives addressed, will help defeat any allegation that your training was not good preparation for the actual work of an officer.

Specific Training Content

Your documentation must also lay out exactly what the training consisted of--topics covered, time devoted to each topic, and methodology used. It's not enough to point to the topic outline in the instructor manual, as one of my former training colleagues did when asked for a lesson plan. Even if your instructor manual includes lesson plans, it's rare for an actual class to follow them exactly. Class size and skill level always dictate adjustments.

The best way to accomplish this documentation is to keep a class log. A log can be as simple as a spiral notebook in which you jot down each day's training topics, time allotment, and teaching strategies, or as elaborate as a three-ring binder filled with detailed class record sheets, showing day, date, time, attendance, curriculum specifics, and comments on student performance.

Just as a patrol officer's incident report should help refresh recollection about a particular call, a class log can help you remember what happened on a particular training day. If you can do that, then you are well prepared to rebut an attorney's assertion that his client was never trained in a particular aspect of police work. The only trick is to make sure you fill out the log at the end of every class session. Do not defer it to the end of the week and then try to go back and remember what you did and how much time you spent.

Student Performance

In addition to comments made on your class log sheets, you need to document how each student performed in any written or practical testing. Documenting written test performance is easy--just keep a copy of the test and record student scores. Depending on agency policy, you may also be required to keep each student's exams or answer sheets for some period of time.

Documenting practical performance is a little more challenging, but even more important--we all know that "book smart" and "street smart" are not the same thing. To begin with, you must have a detailed description of exactly what the test required students to do. For a firearms class, the description might be something such as this: "While wearing full military-style uniform, including the duty belt and service weapon, draw and fire two rounds in a maximum of 2.5 seconds at a Smith & Wesson silhouette ("light bulb") target posted at 7.5 yards. Both rounds must hit in the yellow portion of the target to count. Repeat for a total of ten rounds. Minimum of 80% accuracy within time limits to pass." Note that this description includes the following items:

  • Physical setup
  • Required equipment
  • Detailed description of the skill to be performed
  • Criteria for passing the test

Developing these descriptions ahead of time will not only make it easier for you to document performance, it will also make it easier on your students, because they will know exactly what they are expected to do.

The most challenging kind of practical test--and the most difficult to document well--is simulation training. Simulations, by definition, are not static tests of particular skills in isolation. Instead, they involve multiple skills in dynamic and evolving contexts. The secret is to spend time up front, identifying the knowledge, skills, and abilities to be tested, and developing a score sheet for scenario leaders to use in evaluating performance. Because simulations involve multiple skills, it's important to agree ahead of time how these should be weighted. Some skills or decisions may be deemed critical skills, while other may be desirable, but not critical. For example, neglecting to search an arrested person might trigger an automatic failure, while improper (but secure) handcuffing technique might only call for a point deduction.

Whenever possible, videotape students completing simulations--and retain the tapes. It's a good training tool, and it is excellent insurance against a failure-to-train lawsuit. Just as cruiser-mounted video cameras can show a defendant's drunken behavior prior to an arrest--in stark contrast to his sober courtroom demeanor, a video of a student going through a simulation can save a lot of "he said--she said" arguments about what really happened.

An incidental benefit of videotaping student performance in simulations is that it encourages the agency to think twice about retaining an employee who cannot perform to standards. Training records are subject to discovery, and a video documenting inadequate performance would be powerful ammunition in the hands of a plaintiff's attorney.

Remember, conducting training is only half your job--documenting it well is the other half. If you don't do the second half, you might as well not have done the first. The old saying is just as true for training officers as for patrol officers handling calls on the street: "If it's not written down, it didn't happen."

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