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