Template to Avoid Civil Liability

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Investigating Use of Force Before and After Complaints: An Operational Template to Avoid Civil Liability Richard H. Martin, Auburn University Montgomery Jeffrey L. Gwynne, Auburn University Montgomery Charles A. Gruber, Chief (Ret.), CAG Consultants

Introduction
Many police agencies lack policy, procedure, and diligence by police supervisors to investigate NON-excessive use of force incidents before a citizen files a formal complaint of a civil rights violation against the police. Police by their very nature are the guardians of the nation’s civil rights. They are the glue that holds the fabric of our constitutional guarantees in place. Therefore, when the underpinnings of those civil rights are compromised by those entrusted with their care, it limits the effectiveness of the police-guardian role, obscures the trust relationship, and creates liability for the supervising organization. Every police administrator’s dream would be to recruit honest, loyal, and wellbalanced officers who will carry out their duties and responsibilities without incident. Then they wake up and realize that police officers are people, with all the character flaws and psychological baggage that most people carry. Whether from reaction to stress, flawed judgment, or simply some misconstrued dealings with the public, officers have problems that cause conflicts, and it is up to the police administrator to assign blame, mete out discipline, and provide both reputational and legal safeguards to the community. Officer reliability issues and citizen complaints come in all shapes and sizes: complaints of excessive force, abuse of authority, harassment, unlawful behavior, ad infinitum. And when problems happen, they are rarely clearly delineated and easily resolved. They come through the muddied, if not conflicting, reports of the various sources involved, and it is the police administrator’s job to investigate and attempt to factually determine what really happened. To make matters more difficult, there is no single formula for conducting such internal investigations; they necessarily vary based upon the dynamics of the issues and encompassing circumstances. While some issues may be resolved quickly, others require judgment calls about what to investigate, who to include in the investigation, and ultimately who to believe. Internal investigations also have risks. A poorly orchestrated investigation may do more harm than good, raising questions about the accuracy of the results as well as casting doubt about the police organization’s commitment to treating the complainant and (or) the subject of the investigation fairly. The need for strong investigative protocols is therefore a management imperative. If issues can be resolved internally in a timely and professional manner, minor Law Enforcement Executive Forum • 2009 • 9(3) 19

problems can be stopped from exacerbating into major problems. Even if a problem turns into a serious legal issue, a good investigation and appropriate response may be the officer’s best defense. Sometimes internal investigations are necessary to preempt or prepare for inquiries from outside regulatory agencies. By an agency conducting its own investigation first, it may be able to root out problems before they are uncovered and summarily addressed by outside investigative sources. With the ever-increasing incidence of use of force complaints, the resultant disruption, the enormous financial and emotional costs, and the obligation of departments to provide reasonable enforcement efforts set the stage for a formidable confrontation between officers and the public that employs them. Therefore, police leaders, in addition to taking reactive steps to protect and promote civil rights throughout their communities, should take proactive steps immediately after an incident involving any use of force. Despite the amount of force used at the time, proactive steps should always precede an anticipated or unanticipated formal complaint...
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