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Written Policy: Foundation For Officer Accountability!

by Michael A. Brave, Esq., M.S., C.P.S., C.S.T.
and John G. Peters, M.S., M.S.
(© Copyright 1994 by the authors. All rights reserved)

Today, more than ever before, law enforcement officers are being held to very high standards by their administrators, by the communities in which they work, and by the courts. These stan- dards may include performance, behavior, conduct, and ethics. When an officer fails to reasonably adhere to these standards he may find himself before a criminal court, a civil court, or a departmental review board. This article will focus on what an agency should do in the realm of policy to enable it to effectively, and FAIRLY, lay a foundation for officer accountability.

Yes, FAIRLY. The one true requirement of taking disciplinary action against an officer is to be FAIR. To be fair in the allegations, in observing the officer's procedural due process, and in the final determination. FAIR means that an officer must be put on notice as to what standard for which he will be held accountable. FAIR also means that an officer will be competently trained by his agency. Additionally, fairness means that an officer will be treated impartially and indiscriminately. FAIR means that an officer will not be subjected to sanction without adequate reliable proof and an opportunity to be heard (due process). Lastly, FAIR means that the sanction the officer receives will be proportionate to the misconduct.

Regrettably there are times when an officer must be held accountable (disciplined) for inappropriate actions. The officer may have made a false arrest, may have used excessive force, may have pursued a vehicle too long or caused an accident, may have used handcuffs as a torture device, etc. When such behavior is suspected, and the officer is put on notice about it, the agency must be able to hold the officer accountable for that conduct. However, prior to disciplining an officer, the agency must have provided the officer with the ground rules by which his conduct will be measured (this is FAIR). These ground rules are often "policies."

An agency must have written policies, since the burden is upon the agency to prove that the officer knew about the "standard" (directives). Clauz v. Culross, 438 N.Y.S.2d 837 (A.D. 1981). Without policies to guide and direct the officer, it is hard to hold an officer accountable for his actions. And, simply providing a manual of policies is not the solution to the problem. There must also be training to educate the officer about the standards by which he will be held accountable. And, it is now well established that an agency must have competent policies to help avoid liability. See generally, Moore v. City of Columbia, 326 S.E.2d 157 (1985); Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990); and DiLoreto v. Borough of Oaklyn, 744 F.Supp. 610 (D.N.J. 1990). But what types of policies should an agency consider writing and then giving to the officers? A good place to start is to write and issue high-risk policies. After the decision is made regarding the topic of the policies, then a decision must be made regarding in what format and style the policies should be issued.

Policies may take many forms, including: written procedures, rules and regulations, standard operating procedures, general orders, special orders, directives, etc. Policies can also include unwritten forms including customs, usage, and practice. As a practical matter, an agency does not want to be held accountable for the unwritten practices (policies) of the officers. After all, verbal policies are only worth the paper on which they are written!

Policies can be judgmental, restrictive, discouraging, or prohibiting. A judgmental policy allows officers to make decisions and to take action. An example would include discretionary handcuffing of those people who are arrested, taking into account medical, physical, and other concerns. Restrictive policies are those which place restrictions on officers' judgment and decisions, such as don't handcuff visibly pregnant women with their hands behind their back. Discouraging policies tell officers that they should not take certain actions except in extreme situa- tions, such as off-duty crime-in-progress intervention. Prohibiting policies flatly ban certain actions, such as no body cavity searches

POLICIES AND THE LAW

At a minimum, policies must be within the bounds of the law. In other words, policies must be legal. They must comport to the boundaries of the United States Constitution.

Constitutional parameters must be considered, but without broad boilerplate. A policy which allows officers to "shoot all fleeing felons" clearly is unconstitutional. See Tennessee v. Garner, 471 U.S. 1, 85 L.Ed.2d 1, 105 S.Ct. 1694 (1985). In contrast, writing that "Officers will uphold the United States Constitution and all the laws of the state of ___________" is going to give the plaintiff's attorney a field day during cross examination. Administrators and officers generally do not know the Constitution and all of the state laws which they must uphold, so the plaintiff's attorney automatically scores points by pointing out that the policy "boilerplate" is only for "window dressing."

Policies must also conform to applicable statutes/ordinances: state, county, and/or municipal. Here there can be some complications. In some jurisdictions there can be statutory conflicts with federal law. For example, in Minnesota the state law prevents an agency's use of deadly force policy from being more restrictive than state law (Minnesota Statute § 626.8452). At least in Minnesota this is highly ironic, since under the Minnesota use of deadly force statute (Minnesota Statute § 609.066) an officer could use deadly force under circumstances that would be a Constitutional rights deprivation under federal law.

In most jurisdictions, policies can be written to be more restrictive than applicable law. See generally, Smith v. Freland, 954 F.2d 343 (6th Cir. 1992). This is a favorite of some City Managers, who want to restrict officers' actions, and allegedly limit municipal liability. Under federal Constitutional law this creation of a more restrictive policy is irrelevant to municipal liability. In a Federal civil rights case, a violation of policy does not automatically create a constitutional violation. In Smith v. Freland [supra], "The issue is whether [the officer] violated the Constitution, not whether he should be disciplined by the local police force." Hence, if an agency's policy is more restrictive than Constitutional law, the agency will not be subjected to this "higher standard" - under the Constitution. It is the courts which interpret and, in some cases, create constitutional law, not the agency. However, in some cases, the policy can supersede the law in the establishment of a higher standard.

In some states a restrictive policy may create a higher standard which may be used against the officer and/or the officer's employer. While some state laws establish statutory privileges to law enforcement actions as defenses to certain crimes, they do not serve as a defense to negligence lawsuits. Even where an officer's actions are justified under a statute, "negligence" can be proven by showing that the officer violated a departmental regulation that is more restrictive than the applicable state statute. See generally, Murphy v. City of Minneapolis, 292 N.W.2d 751 (Minn. 1990); DeLong v. City and County of Denver, 530 P.2d 1308 (Colo. App. 1975); Grudt v. City of Los Angeles, 468 P.2d 825 (Calif. 1970); and Dillenbeck v. City of Los Angeles, 446 P.2d 129 (Calif. 1968).

In addition to being legal, policies should also be clear, comprehensive, consistently enforced, current with appropriate police-practice standards, allow officer discretion wherever reasonable, provide for a win-win environment, and be defensible twice: at the time of the incident, and in the cold sterility of the courtroom.

Policies must be clear to avoid misunderstandings and ambiguity. If a use of force policy says that "officers will only use the minimum amount of force," "officers will exhaust all alternatives," and/or "officers will use all due care," the policy is not only exceedingly unfair to the officers who must apply it on the street because it's vague and ambiguous, but also to the agency that must attempt to hold an officer accountable for violation of the policy. These types of policy phrases are a plaintiff's attorney's dream come true.

Policies should also be comprehensive. Some agencies have policies which state that "an officer will only use that amount of force that is necessary and reasonable." While this may be a good philosophical starting point, it does little for providing the officers with any real direction or guidance in performing their everyday duties. Today officers want the guidance and direction. The officers need to be given clear, unambiguous guidelines. In grey areas, the officers should be given examples of what types of behavior would be within the policy boundaries.

In order for policies to be respected, and complied with by the officers, they must be (in addition to being fair) consistently enforced. If an agency practices selective enforcement in the disciplinary use of its policies the officers will soon circumvent the policies whenever the policies are not convenient, and the policies themselves will be virtually unenforceable. Here is a potential problem for agencies, which can be easily eliminated if the agency compares its "written" policies to its "practices" policies.

Generally, well-written policies do not get agencies into trouble. Rather, it is not consistently and fairly enforcing the written policies which trigger potential problems. For example, a written policy which states that officers shall do "X", but in practice are allowed to do "Y", will, most likely, preclude the agency from "making a case" against an officer. The officer's defense is that what is on paper is not what is practiced and followed in the field. Also, the plaintiff's lawyer can use the "practice and custom" to torpedo the written policy standards, thereby exposing the officer's employer to liability.

Policies should be in conformance with applicable police-practice or other equally-important standards. For example, an oleoresin capsicum (OC) policy should be in conformance with the OC manufacture's guidelines. Also, If an agency is CALEA (Commission on Accreditation of Law Enforcement Agencies) accredited, the agency's policies must be in conformance to the CALEA standards. Many states have standards created by the state's peace officer standards and training boards (POST). The agency and the officer should also comply with these standards.

As stated earlier, policies must be FAIR. This also means that policies must allow for a "win- win" environment, meaning that a policy must be appropriate and fair for the officer, the line supervisor, the trainer, the chief, the community, and the person with whom the officer is interacting. Although policies can be selectively written to protect one or more of these groups, in the end, the unfairness of a selectively written policy will prove detrimental to everyone.

Policies, like law enforcement tools and techniques, must be defensible twice: at the time of the incident, and in the courtroom. Put another way, a policy should be "self-explanatory to the jury." Such a policy can be given to a jury, and the jury's mere reading of the policy gives the jury understanding as to why an officer took a particular action, or inaction.

When an officer has discretion within policy guidelines, it may help him in a lawsuit. For example, if the policies allow the officer limited discretion in the performance of his duties, the officer may retain "discretionary immunity" against some civil litigation.

SUMMARY

When developing, implementing, and evaluating policies there are a number of platinum rules which we suggest be followed: (1) before drafting a policy choose a single standard of acceptability and then be consistent; (2) there is no such thing as a perfect policy; (3) an agency should not put anything into a policy that it is not willing to do, follow through on, or enforce; (4) an agency must be sure that the agency policy is the policy (and/or custom) followed on the street; (5) a policy must be fair to all - the community, the agency, the chief/sheriff, the trainer, the supervisor, and the officer; and (6) working with policies is a (continuous) PROCESS - not a PRO- JECT. Policies need to be constantly reviewed, updated when needed, and then reissued.

Further, we suggest: (1) that each policy should be on a separate page to allow for easy updating; (2) that the policy manual not be bound - it should be in loose leaf notebooks; (3) that the policies not be arranged in chronological order; (4) that the policies not be in alphabetical order; (5) that the policies be separated and/or designated "must know" (pursuit policies), "need to know" (grievance/discipline steps), and, "need to reference" (retirement information); (6) that an agency consider separating critical task policies into a separate sub-manual; (7) that the agency put its high-risk policies on colored paper, say, yellow, so officers and first line supervisors can quickly identify these policies for quick reference; (8) that an agency must be cautious not to enforce ex post facto policies (policies formulated after an alleged violation); and, (9) that the agency also review applicable collective bargaining agreements to assure conformance.

Policies can give officers valuable guidance in the performance of their duties. Policies can also help to meaningfully reduce liability. However, poorly written or unenforced policies can significantly increase liability for the officer as well as his employer. The implementation of well- drafted policies is a first step in officer accountability.

Copyright 1994 by the authors. All rights reserved.