Law Enforcement, Corrections,
Private Security, and Civilian
Managing the Risk: Law Enforcement Jurisdictional Issues
by Michael A. Brave, Esq., M.S., C.P.S., C.S.T.
Modern communications and the growth of urban and suburban centers has led to an increasing number of incidents involving multiple law enforcement agencies. Vehicular pursuits crossing numerous jurisdictions, and multi-agency responses to in-progress crimes are increasingly frequent occurrences.
Additionally, budgetary pressures and the need for maximum utilization of resources has led many administrators to join forces with surrounding communities in the formation of special drug enforcement teams, vehicle theft units, or other task force arrange-ments. When these types of incidents occur, or when these special arrange-ments are joined, the issue of jurisdiction becomes an important risk management consideration.
Jurisdiction basically means authority. In other words, within what geographical, or other, area do your law enforcement officers have authority to take action. In addition to primary jurisdiction, authority to act can be created or controlled through numerous (state law defined) mechanisms, including jurisdiction extenders, jurisdiction grantors, non- officer authority grantors, and authority inhibitors (see graphic). These sources of authority will be discussed throughout this article.
What are the Risks?
Many law enforcement agencies have not fully considered the myriad of risk exposures associated with jurisdiction. While jurisdictional issues only arise in about 10% of law enforcement litigations, these exposures should be a major concern to risk managers. Jurisdiction problems have resulted in catastrophic plaintiff's verdicts, expensive workers' compensation payouts, large overtime outlays, costly equipment replacements, decreased officer morale, negative media attention, and disapproving political repercussions. Consider the following:
In managing the risks associated with jurisdiction we are trying to answer the jurisdictional risk exposure questions before they arise, by assuring that your officers, as well you, as their employer, are protected by as many liability shielding mechanisms as possible. In order to do this, you should:
This article will examine some of the possible jurisdiction dilemmas, and more importantly will provide you with some suggestions on how to reduce your risk.
Jurisdictional issues are usually state law dependent, and most states are different in statutory definitions and in application. Because of these differences it is imperative that you work closely with legal counsel to perform a thorough review of state law (statutory, case law, and state common law) in order to develop a road map from which to chart your course in managing your agencies jurisdictional risk exposures.
Fundamentally, the risks involved with jurisdictional issues flow from the possible repercussions of NOT having jurisdictional authority. These repercussions can take many forms, as illustrated in the graphic above.
The Officer's Authority to Act
The general rule is that an officer only has authority within his/her primary jurisdiction. A city officer usually only has (primary) jurisdiction within the city. A county deputy's authority is normally limited to the county's geographical boundaries.
The officer's primary jurisdiction may be "extended" by law. Some common "extenders" include:
Entire Width of Boundary Roadway - Even though an officer's county only extends to the middle of a border roadway, the officer may enforce the law on the entire width of the roadway, usually the entire roadway right-of-way. This only applies to boundary roadways within the officers' state.
Statutorily Extended Distance - In some states there is statutory authority for an officer to act within a given distance outside of his/her primary county's geographical area.
Fresh Pursuit - If the officer gains probable cause to arrest a person within his/her primary jurisdiction, then the officer may follow/chase the person out of the primary jurisdiction and still maintain authority. The fresh pursuit doctrine only applies within the officer's state
One of the primary problems with "fresh pursuit" is that some officers believe that they need only acquire "reasonable suspicion" of wrongdoing within their jurisdictions in order to stop the person outside of their primary jurisdiction. This is not true. The officer must have more than reasonable suspicion, the officer must have probable cause to engage in fresh pursuit.
Intoxicated Driver - Some states allow an officer to follow an intoxicated driver anywhere in the state to arrest the person. As an example: A Bigcounty deputy is dispatched to a traffic accident scene. Prior to the deputy arriving at the scene the driver of the car was transported by ambulance to a hospital in Nextcounty - outside the deputy's primary jurisdiction. At the scene, the deputy sees several beer cans in the car, and is also told by two witnesses that the driver was drunk. Because of this exception the deputy may follow the ambulance, with the intoxicated driver, into Nextcounty and arrest him.
Beware, the intoxicated driver exception normally only applies within the officer's home state. Thus, if the intoxicated driver had been transported to a hospital in a neighboring state then this exception would not apply. Also, if the crime for which the intoxicated driver is wanted is not a "felony" level crime, then the "close pursuit" doctrine does NOT apply.
Close Pursuit - "Close pursuit" is the same as "fresh pursuit," except here the officer follows/chases the person into another state. In "close pursuit" the officer must have probable cause to believe the suspect has committed a felony.
Most states have adopted the "Uniform Act on Close Pursuit" which standardizes the close pursuit doctrine. One area of major concern to you should be the "extradition" requirements for your state and its' contiguous states. Some officers believe that they can chase an evildoer into the neighboring state, arrest him/her, and then immediately transport the person back to the officer's home state. This action of returning the person to the officer's home state may be a violation of the law of one and/or both states, a kidnapping, a Constitutional rights violation, etc.
Emergency/Felony In Progress Exception - Some states allow an officer who is "on-duty," on official business, in uniform, and driving a marked unit (if a vehicle is used) to respond to an emergency and/or a felony in progress. During this event the officer maintains his/her full authority and liability shielding.
Beware, in some states that have this exception the exception is ONLY valid if the department has a written policy allowing the jurisdiction extension.
Primary Jurisdiction Problems
As careful as some departments try to be in establishing jurisdictional guidelines, problems sometimes occur. For example, it is not uncommon for officers to find themselves crossing through another jurisdiction in order to reach the scene of a call in the most timely, safe manner. As the officer passes through the neighboring jurisdiction where (s)he does NOT have authority, (s)he witnesses a problem. Does the officer take some action, ignore the problem, or take some other alternative?
The officer's decision should consider the jurisdictional issues involved. One solution is for the officer to contact an agency that has primary jurisdiction over the area where the problem is occurring and have that agency request the officer's assistance (via mutual-aid request) in dealing with the problem.
Another common jurisdictional problem arises involving the use of Reserve, Auxiliary or Volunteer Officers. In some states the authority of reserves, auxiliaries, and volunteers may only be derived from the full-time officer with whom the reserve is working. The volunteer who rides with the officer does not have his own stand-alone authority. Based upon these prin-ciples, consider the following scenarios involving officers from Bigcity and Littleville:
Inhibiting Primary Jurisdictional Authority
When a governmental employer grants authority to a person, the employer accepts a great, and sometimes costly, responsibility. Because of this relationship it may be wise for you to "inhibit" an officers authority under certain circumstances. Before we explore some of the reasons why, consider that: (1) state law may not allow you to inhibit the officer's authority; (2) it may be unsafe, or detrimental to the officer to inhibit his/her authority; or (3) it may be detrimental to the performance of the agency's mission to inhibit the officer's authority.
If you do decide to inhibit an officer's authority, then the restrictions should be reduced to written policy. In addition, a specific letter of understanding that clearly spells out the authority restrictions should be filed. Receipt of this letter should be acknowledged by dated signature of the officer whose authority is being inhibited.
You might consider inhibiting an officer's authority under the following circumstances:
Credentialed Empowerment: What's a Sheriff to do?
Special problems can occur when a Sheriff grants jurisdiction through the issuance of credentials to not full-time employees of his or her department. This practice is sometimes referred to as deputizing , and the individuals so empowered are dubbed Special Deputies.
Numerous sheriffs across the country empower individuals with law enforcement authority in this way, even though those empowered are not full-time sheriff's department employees. Sheriffs typically grant these credentials to city officers within the sheriff's county; and sometimes convey similar credentials to reserve, part-time, and auxiliary officers, as well as volunteers and other citizens. While this action is sometimes understandable, it is often not well thought out. Examples of some of the potential problems created by this practice include:
Many sheriff's departments provide deputy credentials to small town officers within the sheriff's jurisdiction. The sheriffs do this to give the town officers authority while those officers are outside of their towns, but yet within the sheriff's county. This is done primarily to benefit the Sheriff, as the credentials, and thus the authority they convey, are not needed within the officer s primary jurisdiction.
When a town officer carrying deputy credentials becomes involved in an incident where the officer's only source of authority is the deputy credentials, then this incident creates substantial risk, particularly for the issuing county. There will be some very serious, and possibly costly, questions that the sheriff will have to answer. The main question will be: did the sheriff do everything to/for the town officer to assure that the officer met the same hiring, screening, training, retention, etc., standards as full- time deputies of the department? The answer will probably be - No. Possible solutions to these problems include:
Some state statutes require a special deputy's bond whenever deputy credentials are issued to another communities officer. As the Risk Man-ager, you should verify whether or not this requirement exists in your state, whether the bond has been secured, and what the expectations are regarding the maintenance and conditions of the bond. In other words, is the law being complied with?
Do not confuse jurisdiction grantors with the jurisdiction extenders that were discussed earlier - they are not the same thing. Remember, jurisdiction "extenders" extend the officer's primary jurisdiction, while jurisdiction "grantors" grant the officer the jurisdiction of the granting agency. Consider these examples of problems created through the use of grantors:
Pursuing Misdemeanor Suspects Across State Line - An officer from Sunnystate is in pursuit of a misdemeanor traffic suspect. The officer's agency is a sig-natory to a mutual-aid agreement with the neighboring state's county sheriff's department. Therefore, the officer from Sun-nystate has been given (granted) the same authority as a sheriff's department deputy from the adjoining state. Now, the suspect crosses the border, with the officer in pursuit. Immediately upon crossing the border the suspect comes into total com-pliance with the law in the newly entered state. The officer now tries to stop the suspect. The officer mistakenly believes that (s)he has authority in the new state because of the mutual-aid agreement. This is not true. The officer was granted the authority of the other state's sheriff's department. Since the other state's sheriff's department deputies had no reasonable suspicion or probable cause to stop the suspect, then the officer who had been granted the authority also cannot stop the suspect. This is far different from a jurisdiction "extender."
Intoxicated Driver (Misdemeanant) Transported Out of State - Bigcounty in Sunnystate has signed a mutual-aid agreement with Littlecounty in Cloudystate. Because of this agreement officers are under the mistaken belief that they can chase misdemeanant suspects into the other state. This is NOT true. As an example: Bigcounty Deputy Smith (Sunnystate) responds to a traffic accident scene. Before Deputy Smith arrives, the driver of the car involved in the accident is transported by ambulance to a hospital in Littlecounty (Cloudystate). At the accident scene Deputy Smith finds several beer cans, and is also told that the driver of the car was highly intoxicated. Deputy Smith now has probable cause to believe that the driver was operating a motor vehicle while under the influence of an intoxicant, a misdemeanor. Because of the mutual-aid agreement, and because Deputy Smith has been wrongly advised by his department's legal advisor, he travels to Littlecounty (in Cloudystate) and arrests the intoxicated driver at the hospital and transports him against his will back to Bigcounty (in Sunnystate). Deputy Smith has just falsely arrested, kidnapped, assaulted, and battered the driver. Deputy Smith has also just violated the driver's Constitutional rights. Deputy Smith violated the driver's Constitutional rights because of his department's "deliberate indifference" to the driver's Constitutional rights by the department's failing to provide a competent mutual-aid agreement, policy, training, and supervision on the jurisdictional issues.
Mutual-Aid Agreements/Requests: Both a Problem and a Solution
Mutual-aid is the term normally applied to a law enforcement agency's request for assistance from another law enforcement agency. Normally, the requesting agency is accepting full responsibility for all losses incurred by the agency responding to the mutual-aid request.
When considering your law enforcement agencies response to mutual-aid requests, you should address several questions:
In analyzing each of these questions, and how to address them in your agencies procedural guidelines, consider the following examples and comments:
Confirmation of Mutual-Aid Request - Example - Smalltown officer overhears an emergency call for service to the County. The call is for a multi-person bar fight (with weapons) one mile outside Smalltown. The County units are 30 minutes out. A Smalltown officer radios a responding deputy and asks, Would you like us to respond? The deputy responds, Go ahead. The Smalltown officers respond to the fight.
During the incident, and before the County deputies arrive, one officer is paralyzed, three citizens are severely injured, two Smalltown squad cars are destroyed. At this point a County deputy arrives and asks, "What are you guys doing here?" A Smalltown officer rep-lies, "You told us to come out here - mutual-aid!" The deputy responds, "No, I said 'go ahead' - with your radio traffic!"
In your opinion, was there a "valid" mutual-aid request? Who pays? This will be litigated for years.
Risk Transfer - Concurrent Jurisdiction - Littleville is in Bigcounty. A Littleville officer requests assistance from a Bigcounty deputy. The deputy responds. A major incident evolves with numerous losses. Bigcounty attempts to transfer the risk of loss to Littleville by saying that the request for assistance was a "mutual-aid" request. This attempted risk transfer is usually ineffective because it is against public policy. It is against public policy because if two law enforcement agencies with concurrent jurisdiction try to transfer risks, then the public will suffer in the end.
Do the "Mutual-aid" Statutes Apply?
Your state may have mutual-aid statutes, which specify certain conditions and requirements that must be met in mutual-aid situations. If these are not met, serious questions of legality and liability can arise.
In one state the mutual-aid law states that any "law enforcement" agency may request mutual-aid. The same state's law defines a "law enforcement" agency as one that has at least one full-time employee. A "full-time" employee is defined as one that works at least 32 hours per week.
So, what happens when an officer in a department that does NOT have a full-time employee requests mutual-aid? Since the officer does NOT (by state statutory definition) work for a "law enforcement agency", and it is only a "law enforcement agency" that can request mutual-aid, then when a major loss occurs - who pays? The courts will finally decide this issue after a great deal of time, energy, and money have been unnecessarily expended.
In this case, one solution might be to Identify any agencies that you might provide mutual aid to that do not have a full-time officer, and create an arrangement with another department that has simultaneous jurisdiction over the town. In other words - Littletown is located in Bigcounty. Littletown does not have a full-time officer. Therefore, Littletown is not a "law enforcement agency" (by state statute). Arrange for Bigcounty to provide jurisdictional authority to your officers when they are responding to assist Littletown. This arrangement could, of course, have very negative and costly repercussions for Bigcounty if not properly established.
Is There Mutual-Aid Insurance Coverage? As your communities Risk Manager, you are ultimately concerned with issues beyond the reduction of risk. You also must assure that activities performed by your employees are covered by your insurance carrier or risk management pool . Here s one example of how a failure to confirm mutual-aid coverage requirements can lead to catastrophic losses:
Who Can Request Mutual-Aid Response? What happens when a county deputy is being severely beaten by several suspects and Smalltown officer knows that only a county supervisor can request mutual-aid, but there is no county supervisor available within a 10 minute period to request the mutual aid?
If the county deputy does not have the authority to request mutual-aid, then there is no legitimate mutual-aid request and therefore many of the liability shielding mechanisms are not present. While the responding officer may be covered by some form of "aiding an officer" statute, these statutes are normally not as clearly delineated as are mutual-aid statutes.
Assisting Another Jurisdiction's Officer When the Officer's Agency Refuses to Enter a Mutual-Aid Agreement - This is a special problem for law enforcement officers, and therefore for risk managers. Officers are unlikely to deny assistance to any officer that is in trouble, no matter what agency he or she works for. This tendency is less likely to manifest itself if the call for assistance is not an emergency. There are two general types of situations that present themselves:
Multiple-Agency Response Teams and Task Forces
These are special groups comprised of officers from more than one agency. Multiple-agency response teams are usually utilized in times of extreme emergency, mass devastation, disaster, large scale riots, large concerts or sporting events, etc. Other types of multi-agency teams include drug task forces; special critical incident response teams (e.g. S.W.A.T.), vehicle theft teams, and organized crime task forces. There are two primary Multi-Agency Response Team concerns, origin of authority and policy control.What is the Origin of the Team s Authority? - Several agencies have banded together to establish an emergency response team. The team is called out by a small town. The incident results in significant loss exposures. Who pays? Who are the defendants going to be?
One way to answer these questions beforehand is to have a written agreement that both provides necessary authority, and removes authority when the officer is outside his/her jurisdiction. The idea here is to make sure that the officers have adequate authority, but at the same time assure that authority is limited to one agency.
Some agencies attempt to solve this problem by making each officer of the team a sworn officer of every department in the team. So, one officer may carry sworn authority from five or six jurisdictions. If this authority is not limited, then each of those agencies may find themselves defendants in any lawsuit that may arise.
A better way to derive authority from one agency is to form the team under the auspices of a county or state law enforcement agency. This is the approach taken in many jurisdictions.
In this approach, the members of the team draw authority from an all-encompassing jurisdiction, most typically the state. Thus, members can go anywhere within the state to perform their duty, having the full authority of the state police.
Which Policies and/or Procedural Guidelines Govern Team Operations? - Sometimes, this approach creates a problem, in that a question arises as to the policies and procedures that will govern the operation of the special unit. With each member of the team coming from a different agency (each with its own set of procedures), and with the group working under the collective authority of the county or state, usually this is addressed by operating under the procedural guidelines of the authorizing agency.
In examining this solution to the policy/procedure question, be certain to address the following:
Other Agencies Entering Your Jurisdiction
There are numerous occasions when another jurisdiction's officers may enter your jurisdiction (where they do not have concurrent primary jurisdiction) and take some type of law enforcement action. During these incidents what action, or non-actions, should your officers take? Some examples of other officers coming into your jurisdiction include:
Pursuits - Another jurisdiction's officers are in pursuit of an evildoer. The pursuit has gotten very hazardous because of speed, reckless driving, attempting ramming, etc. What action, or non-action, do you want your officers to take? Have your wishes been reduced to writing (policy)? Have your wishes been explained to your officers (training)? Will your officers' action be monitored (supervision)?
Surveillance/Investigation - Another jurisdiction's officers are in your town conducting a surveillance. Have you been notified? What if those officers violate someone's Constitutional rights while in your town?
Warrant Service - A neighboring jurisdiction's officers call you and request authority to serve a misdemeanor arrest warrant within your county, by 50 feet. Your dispatcher tells them to "go ahead." The warrant is served. A man is shot and killed. An officer takes two rounds in the chest. Who pays? If this was a valid mutual-aid request then YOUR county just bought it. If, on the other hand, the dispatcher did not have authority to request the mutual aid, then there was no valid authority for the warrant serving officers. The problems include numerous potential criminal prosecutions, civil causes of action, departmental administrative sanctions, and others.
Other State's Officer Enters Your Jurisdiction Without Authority - An officer from the neighboring state comes into your state, crossing the border and says that he is going to take evil traffic doer BACK to his state - what do you do? The evil traffic doer vehemently says that he is NOT going back to the other state. Your officer at the scene knows that the neighboring state's officer: (1) has no jurisdiction, (2) had no legitimate right to cross the state line, (3) has falsely arrested and used force upon the arrestee, and (4) will violate the arrestee's rights (including extradition) if the officer returns the arrestee back to the other state. If you do nothing you are a co-conspirator in an illegal kidnapping as well as a violator of numerous federal and state constitutional rights.
A Final Note About Training
Regardless of how you and your chief of police or sheriff manage the other risks discussed in this article, training can be your downfall. There are two very significant issues as regards training in this context:
As with most areas of law enforcement operations, training is often the key to good risk reduction.
Law enforcement jurisdictional issues can create many risk exposures. Although many of these risks cannot be eliminated, they can be managed through in-depth, proactive thought and action. To start the jurisdictional management process, remember:
As your communities risk manager, it is possible to perform the analysis, identify the risks, manage those risk exposures proactively by developing policies, training and supervision mechanisms, and by eliminating and/or transferring risk whenever it is reasonable to do so. Once you have done so, you will have acted to control one of the most troublesome, yet misunderstood, aspects of law enforcement operations.
Michael Brave is the President of LAAW International, Inc., and the International Force Institute, Inc., law enforcement risk management consulting firms.
Steve Ashley is formerly the Loss Control Manager and Director of Law Enforcement Risk Control for Meadowbrook Insurance Group, in Southfield, Michigan.