Webinar presenter Wayne Beyer answered a number of your questions after his presentation, “Police Liability: Recent Developments under 1983.” Here are a few of his responses.
Audience Question: What is considered enough training when you talk about failure to train in de-escalation? Is there a recommendation or would it be better for you legally if there are ongoing refresher training that type of thing?
Wayne Beyer: Starting with the last part, the more you do, the better off you are legally. I don’t know if there’s a minimal amount with the deliberate indifference analysis says that you’re aware of the problem. So, I think it’s fair to say that most agencies are aware that they encounter emotionally disturbed people and because they’re aware of the problem they need to do training and if they don’t do training and make the conscious choice of not training that meets the deliberate indifference standard which is higher than mere negligence. You have to be aware of the problem and not address it. How much is enough training? I guess I can’t give you a quantitative amount because I’m relying on materials that I reviewed but I would say if you go to the link and follow really what the experts are on, I’m presenting here the trial lawyer who’s dealt with these kinds of issues. I’m not in any way expert on them so I would try to rely on the resources that I’ve given you and see what they say in terms of the ICAT training. Start with that and see if that’s what your department is doing but it’s clear that there should be some training and I would say I’ve seen them do this in a press conference in New York where the New York Police Department did roleplaying. You got a guy with a knife and had to handle it and take that scenario like the hypothetical that I had in my presentation and flesh it out. How would you handle that? What do you do with the people upstairs? These people had locked themselves in a room but these locks are usually pretty flimsy. Do you have time to call the fire department to get a ladder and get them out of the second floor? What are the options that you have and I would do it if it’s a chalkboard type of exercise, sit in a classroom with officers as they try to think it through. I saw a video not long ago: the officer seemed very far away, yelling and yelling at a guy who had just stabbed somebody but there were several pedestrians right there and they were yelling at him to drop the knife and all of a sudden, he grabbed a hostage and they not only shot him but they shot the hostage fatally. You need to really do enough training so people can think through options in a situation like that.
Audience Question: Are there scenarios where an individual officer can be personally liable for the actions they take while on duty?
Wayne Beyer: Absolutely, yes. I mean when you say personally liable, that means two things. One, can you be held civilly liable for violation of somebody’s constitutional rights? Sure, most of these are excessive force are cases brought against the individuals as well as their employers. Now in terms of individual liability, it depends on– sometimes it’s by statute, sometimes it’s by customs, sometimes it’s by the union contract. If you are involved in an on-duty incident, it’s very rare for your employer not to be responsible. Many of the bigger police departments are self-insured, D.C. was. But when I did these cases up in New Hampshire with who self-insurance is a tool that operated like an insurance company so your insurance would cover it or your employer would cover it and as I said there are punitive damages which go beyond just holding the person responsible for damages that the situation is outrageous that they add to that to punish the officer. Most departments would pay punitive damages but their case law says that it’s on an individual case by case situation. I have not known in doing a lot of these cases an example even with punitive damages were assessed or threatened to be assessed where the employer either directly or through an insurance company wasn’t going to pay the damages. So yes, you can be liable, but no, you’re not likely to have to pay damages. But have in mind that you still need to be attentive to this because you don’t want a jury determining that you, a police officer who violated somebody’s federal civil rights because they may take you out off-duty, I mean, out of the field. I’ve seen that happened or you may apply for another job and have gotten telephone calls about somebody who has violated somebody’s constitutional rights trying to get another job and it makes that harder.
Audience Question: As new less-lethal devices and models are released; do you recommend agencies to delay adaption until they are more proven in the field?
Wayne Beyer: I don’t know. I guess I would say yes, but I would like to give thought to the pros and cons before I really give an answer to that. I’ve seen a couple of things then you really wish they were something out there, about bean bags (?) and tasers, but there ought to be some intermediate weapons that you can use where you don’t have to be as close as you are to use a taser, for instance. I guess that’s about my answer I would try to review everything you can get your hands on before making a decision about it.
Audience Question: Should agencies continue using the taser X-26 since it’s been discontinued? Does using their continuing to use this model open agencies up to liability?
Wayne Beyer: It’s an issue to consider. I don’t know of any cases where they said there’s a liability because and it’s measured in microcoulombs or something like that but it was too strong. I guess that’s an agency decision you have to make. It’s a very good question but I don’t think the fact that you’re still using a model that’s been replaced by a newer model by itself raises a liability issue. If I am on the other side of that which is why I mentioned it, if I’m a plaintiff lawyer it’s that something I would get into. It’s the fact that you’re using a model that’s been replaced and a model that at least some people like the Reuter’s study has said that it heightens danger to the subject. But I think as long as you follow the guidelines we’ve been discussing, I think that you’re likely to prevail on civil liability. I don’t think there’s anything out there that says it’s too dangerous and should be discontinued. The TASER company knows where I live so I’m not going to say anything more.
Audience Question: Next question, we talk about training. There’s training and then there’s what actually got in the field sometimes. How does the law look at that?
Wayne Beyer: That’s a good question too. Training should be practical enough so that it addresses the kind of situations you’re going to have in the field. It helps you prepare for it. Obviously, each situation would be somewhat different but the training has to be directed at real-life circumstances. I guess the one we’re dealing with is an officer who’s faced with a deadly force-type choice and I think that the training should reflect as much as possible what’s going to happen in real life because if you’re just doing… It’s sort of difference between what I showed you is the slide between what an expert says the way it should be versus the kind of case you’re actually going to confront because it’s fine if you got a case for a guy threatening himself in the bathroom with the screwdriver and he wasn’t going to go anywhere. The officers ended up breaking in trying to keep him from committing suicide so they break through the door and all the sudden there’s stabbing motions and he gets shot. That’s a completely avoidable type of situation where the guy couldn’t go anywhere and your training could prepare you for something like that because if you look at de-escalation, call of crisis intervention and all sort of things, everybody gets to go home that night.
Audience Question: Last question for the day; are agencies that have mental health support teams less or more vulnerable to a lawsuit in the situation of use of force incidents involving a mentally unstable person?
Wayne Beyer: Well I think they’re less. For some reason, the fact that you have crisis-intervention people available is great. Now maybe they’re not available for a particular incident but if they are available and for some reason, they’re at Ben & Jerry’s at that time or something like that, that just makes it worse. If they’re available you have to try to make use of them. It doesn’t mean that they arrive in time or whatever but the fact that you have them available, called out, certainly reduces your chances of being held civilly liable in a case.