Modern Police Practices and Standards in Civil Litigation

The “objective reasonableness standard” of police civil litigation was established by the United States Supreme Court in Graham vs. Conner in 1989. As a police practices expert, I cannot render an opinion as to the objective reasonableness of a police officer’s actions. That is the province of the jury. Instead, I prefer to use the term “well-established and modern police practices and standards” to describe those police policies, procedures, rules, tactics, behaviors, and practices that are lawful, endorsed by, and accepted as models within the professional police community. In other words, what would a reasonably-trained and prudent police officer have done given the same set of circumstances?

The body of knowledge and literature concerning well-established and modern police practices and standards has evolved over time in the interest of creating, fostering and maintaining professional and respectful police agencies. These practices and standards have evolved in part as a response to reported cases of misconduct, as tools to limit police discretion, and to ensure that police behaviors are within acceptable professional, legal and constitutional limits. Equally, there is a substantial body of knowledge and literature regarding the types and causes of law enforcement misconduct.

I am familiar with these bodies of knowledge and literature because of 55 years of education, training, and experience in policing, which encompasses 47 years as a police officer, sergeant, lieutenant, captain, and chief of police (26 years) as well as a police consultant specializing in the police, security, and public safety arenas. I have earned my bones so to speak in the business of policing, from the 1960’s as a young officer working patrol and riot duty during the Vietnam war protests in Palo Alto and San Jose, California, and dealing with the social upheaval and physical violence against the police at that time in our history, until today.

I have had ample opportunities to experience, observe, study, evaluate and write about well-established and modern police practices and standards. I have also had ample opportunities to train, commend, promote, and award police officers when their actions were in concert with well-established and modern police practices and standards. Unfortunately, I have also had more than ample opportunities to discipline, demote, terminate the employment of and, in some cases, file criminal charges against police officers when their conduct did not rise to the performance level expected.

Well-established and modern police practices and standards are derived from, and given meaning and clarity by a variety of legal and professional sources and organizations, including but not limited to the following:

1. United States Constitution
2. Federal law
3. State and municipal Law
4. Federal and state case law
5. Police Code of Conduct
6. United States Department of Justice
7. International Association of Chiefs’ of Police (IACP) Model Policies
8. Commission on Accreditation for Law Enforcement Agencies (CALEA)
9. Force Science Institute, Minnesota State University-Mankato
10. Police One Calibre Press Officer Survival Protocols
11. International City/County Management Association (ICMA)
12. National Tactical Officers’ Association (NTOA)
13. Institute for the Prevention of In-Custody Deaths (IPICD)
14. Americans for Effective Law Enforcement (AELE)
15. Police Executive Research Forum (PERF)
16. National Institute of Justice (NIJ)
17. Dr. Ron Martinelli, “Lethal and Nonlethal Uses of Force,” 2011
18. Robert K. Koga and William L. Pelkey, “Controlling Force”
19. Charles Remsberg, “The Tactical Edge, Surviving High-Risk Patrol,” 1997
20. Pierce R. Brooks, “Officer Down, Code Three,” 1975
21. Glenn F. Kaminsky, “The Field Training Concept in Criminal Justice Agencies,” 2002

I have seen many examples of good policing which were in concert with well-established and modern police practices and standards. I have also seen many examples of bad policing in which the actions of police officers did not meet those well-established practices and standards. Simply put, good policing occurs when police officers have and/or use the following:

1. Good supervision
2. Good training
3. Good judgment
4. Good emotional control
5. Good tactics

When bad policing occurs it is almost always attributable to a lack of one or more of these five factors.

The most important of these five factors, in my opinion, is training. Several years ago I identified in a series of articles certain categories of in-service refresher training for police officers that I consider to be absolute musts. Whether you are an attorney representing a plaintiff in a civil suit against the police, or a defense attorney representing the interests of defendant police officer(s), please note that police officers need between 40-80 hours of in-service refresher training annually, or 40 hours at a minimum. Some skills are considered to be perishable skills— skills that can diminish without training— and both police officers and their departments will not be able to provide the appropriate level of professional services to their communities if these skills are not refreshed.

Moreover, inadequately trained officers and their departments will be more vulnerable to civil litigation. The following 12 categories of in-service refresher training are absolutely necessary and, when neglected, can lead to lawsuits, bad media, protests, loss of community support, turnover, internal chaos, and departing police chiefs:

1. Laws of Arrest, Search, and Seizure
2. Constitutional Law, Bill of Rights, Civil Law, and Criminal Law
3. Arrest Control Tactics and Use of Force
4. Officer Survival and Live Scenario Stress Inoculation
5. Situation Assessment, Planning, and Tactical Execution
6. Off-Duty Tactical Encounters
7. Firearm Safety and Range Qualifications
8. Routine, Emergency and PIT (Precision Immobilization Technique) Driving
9. Crisis Intervention and De-Escalation Strategies and Techniques
10. Dealing with Those Who Are Mentally and/or Physically Challenged
11. In-Custody Deaths, Agitated Chaotic Events, e.g. Excited Delirium, Positional, Compressional, and Mechanical Asphyxiation, and Human Restraint Techniques
12. Other mandated training and re-certification trainings

I would also suggest that good training records be maintained in order to memorialize the in-service refresher training that police officers receive. It is difficult for a police department’s defense counsel to present written documentation of in-service training when there are no records. It is not difficult at all, however, for a plaintiff’s attorney to take advantage of a scarcity or lack of training records. I would also suggest that course outlines and course objectives for the in-service refresher training be maintained. They will come in handy.

Again, whether you are a plaintiff’s attorney representing the interests of a citizen or a police officer, or an attorney representing a defendant police department and/or a police officer, it is valuable to have a grasp of what constitute “well-established and modern police practices and standards.” Moreover, it is valuable to recognize that the quality of police training— from the academy to the in-service refresher training police officers receive once they hit the street— is absolutely critical to officers’ performance. It is also critical in terms of a lawyer’s ability to pursue an effective lawsuit as a plaintiff’s attorney, or to successfully defend a police department and/or an officer against a lawsuit.