Prepare for use-of-force litigation

The use of force constitutes a seizure under the Fourth Amendment. It is analyzed by courts under an objective reasonableness test: the amount of force used in any police encounter must be reasonable in relation to the risks presented. Deadly force is acceptable only if an officer has probable cause to believe that the suspect poses a significant threat of death or serious injury to the officer or others. When an officer exceeds these bounds, supervisors and departments may be subject to liability.

Use of force occurs in a relatively small number of interactions between the police and public, but the potential costs in terms of dollars, reputations and lives demand that resources be allocated toward its management. Through standards, education and technology, departments can effectively and proactively limit their exposure to these costs.

Litigation risks and costs continue to rise
According to the Bureau of Justice Statistics, approximately 40 million people in the United States experience direct contact with the police per year. While a certain degree of friction should be anticipated whenever two or more people are forced to coexist in a stressful environment, the use or threatened use of force occurs relatively infrequently. In 2008, for example, fewer than two percent of these civilians reported any use of force during these encounters.

However, individuals in these situations who believe that an officer acted improperly will file complaints approximately 14 percent of the time, which translates to roughly 6.6 complaints per hundred full-time sworn officers per year. Though only eight percent of these complaints are sustained at any level, resources must be allocated for such a determination to be made. The oversight costs incurred by an internal investigation, compounded by average settlement amounts, translates to a price of roughly $20,000 per complaint filed.

Since use-of-force incidents increased by more than 50 percent between 1997 and 2008, one might expect that related litigation would follow suit. Over the same period, however, such lawsuits nearly tripled before making a precipitous decline after 2009, returning to levels not seen for nearly twenty years. While some discrepancy can be written off to chance, litigation rates are, to various degrees, shaped by the economy, case law, and national events.

Prioritize training and technology
Computer software and hardware that may not even have existed a decade ago promise increased efficiency and diversity of knowledge. Adopting new technology can be a daunting task for many, even if it can save a department both money and lives.

Technology can assist officers not only during the training process, but also in the field. Departments are increasingly discovering that equipping officers with special hardware, such as body-worn cameras, can effectively minimize use of force and litigation related thereto. As of July 2013, 25 percent of departments polled were already using the technology, a figure which continues to trend upward due to high-profile encounters in 2014.

Research indicates that aside from litigation costs, proper training minimizes the risks of both police and suspect injuries resulting from use of force. But despite this cost-saving effect, there is a common tendency for department heads to disregard its importance. When budgets are downsized, funds earmarked for training are the second thing to be cut after travel expenses. Moreover, 74 percent of respondents stated that they would rather keep officers on payroll than provide them with critical training. Such policies not only subject these officers and the public they serve to a greater chance of serious injury or death, but can compound a department’s financial troubles if its training deficiencies are targeted in litigation.

Many of the underlying causes of use-of-force litigation—the economy, case law, current events—are beyond the control of individual officers. The sheer volume of officer contact, indicative of growing responsibility and importance in communities, means that departments must ask not if an incident will occur, but rather when it will occur. By implementing policies that define and communicate the proper use of force, seeking training that improves decision-making, and leveraging technology that supports legal defensibility, departments will be better prepared to prevent and handle these incidents.

For more information about use-of-force litigation, read our whitepaper, “Use of force: A strategic approach to minimizing litigation costs” in Thought Leadership.

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2017-05-30T10:33:42+00:00 January 15th, 2015|Compliance Tracking, Law Enforcement|