By Randy Means, Attorney at Law, Thomas and Means, LLP; and Vice Chair, Legal Officers Section, IACP
hat often most affects “legal” outcomes in law enforcement are “nonlegal” matters. For example, an officer’s use of racially derogatory language even in a private conversation with a close friend could come back to haunt that officer (and the employing agency) in a use-of-force lawsuit months or even years later. Laughing and joking about hurting and killing people could become evidence of an officer’s “sadistic” propensities to use excessive force. Other examples of nonlegal issues affecting results in legal matters are abundant.
Another cause of legal problems is a nonlegal abstract: inconsistency. Take the following example. Two officers with similar work records in the same department lie in similar ways to their respective supervisors on two different days about why they (the officers) were late to work. The lies are discovered by the supervisors. One supervisor gives his officer a “stern talking-to” about the unacceptability of lying but nothing more. The other supervisor writes her officer up for lying; as a result, that officer is fired by a chief with a zero-tolerance, automatic-termination policy regarding untruthfulness. The fired officer then sues over the inequity, claiming (rather obvious) unfairness, and could also allege illegal discrimination (disparate treatment) if the two officers are of different races and/or genders. Of course, inconsistency can cause an assortment of other problems.
What is most likely to adversely affect legal outcomes, however, is just plain confusion—officers simply unsure of what to do or what is expected of them in a given situation. Confusion over the permissibility of various behaviors and decisions can cause monumental disasters in law enforcement work and correspondingly massive liability exposures. Such confusion tends to be caused by either a lack of clear guidance or by extremely clear but inconsistent guidance on the part of supervisors and/or trainers.
Reducing Supervisory Inconsistency and Resulting Confusion
There are appropriately accepted clichés in law enforcement that supervisors, managers, administrators, and of course trainers need to be “on the same page” and “singing from the same sheet of music.” Written policy moves agencies in that direction, provided the policy is followed. But what of the vast array of behavioral and decision-making issues that are not covered in policy or are covered so generally, so vaguely, that the policy really does not say much about what agency leaders actually want done in a given situation? In those circumstances, leaders suggest that officers “use their judgment” and “discretion” when, in fact, if their judgment and discretion do not at least approximately match up with what their organization would find acceptable, officers end up in trouble. Agency-wide training can provide part of the solution but only if trainers speak with one voice when answering the same questions, supervisors do not contradict the trainers, and the trainers’ answers were what the agency leaders wanted in the first place, which is far from guaranteed.
Law enforcement officers deserve clear and consistent guidance on what is expected of them. Such guidance empowers officers to work in ways that are organizationally acceptable and to avoid a wide range of pitfalls, including disciplinary actions and civil liability. In addition, it helps ensure that agencies meet their ethical and legal obligations to provide such guidance and establish accountability to professional standards.
Supervisors at all levels should be using the same “rule book”; to do otherwise is unfair to officers and contrary to organizational discipline. It is difficult, sometimes impossible, for an officer to hit a moving target of behavioral expectations. The bottom line is that the rules should not change at shift change.
But often it is not the use of different rules that creates the difficulties but rather different interpretations and applications of a single rule. It is fairly simple to memorize a rule or principle; by contrast, it is much more difficult to grasp how agency leaders expect a rule or principle to be interpreted and applied. The wide variety of fact situations with which law enforcement must deal compounds this difficulty. Agencies should establish a goal of, given a particular fact situation, consistent application of the same behavioral rules in at least approximately the same ways.
To that end, a “Supervisors Training Committee” should be established.
Supervisors Training Committee
A Supervisors Training Committee (STC) might be coordinated by a lieutenant, who would ensure that the STC meets monthly to create a “Quiz of the Month” (QOM), which would draw attention to key points of organizational guidance. The STC might consist of at least 10 volunteers, ideally first-line supervisors and field training officers, who want to participate in this important training effort. The object at this point would be to arrive at some consensus on how the organization would want officers to respond to certain troublesome fact situations.
The QOM might consist of at least 10 multiple-choice questions and answers. The questions would generally focus not just on guiding principles but also on the application of those principles to recurring fact situations. Questions should involve issues of consequence in terms of ethics, the law, agency policy and procedure, general behavior, and decision making. Normally, questions would pose a fact-based scenario involving critical matters relevant to day-to-day expectations of sworn law enforcement personnel. Scenarios should be limited to the salient facts necessary to determine the correct response to prevent the QOM from becoming a reading comprehension test or inefficiently lengthy.
The STC coordinating lieutenant would collect the committee’s questions each month and submit them up the chain to the command staff for review and approval. Lieutenants, captains, majors, and so on would be required to endorse each question. Any negative endorsement should be accompanied by an appropriate explanation of what that particular endorsee thought would be a correct answer to the question and why. Once the chief of police has reviewed all the input, approved questions and answers would be returned to the coordinating lieutenant, who would then disseminate the final QOM packet to shift, unit, or section lieutenants for administration to sworn personnel.
At the beginning of each month, supervisors would distribute the QOM, with answers and correlated explanations, to their sworn personnel. During the first half of the month, supervisors would review all quiz questions, answers, and rationales with all sworn personnel under their supervision in roll calls or similar briefings. During the second half of the month, supervisors would require officers to verify their understanding of the organizationally approved answer to each question by marking the correct answers on a fresh copy of the quiz (without answers and rationales), which the STC coordinating lieutenant would provide to them. Personnel would take the QOM under standard conditions for a test: individually, without reference materials (i.e., “closed book”), and on the honor system. Should officers miss a question—even after having the quiz and answers in their hands for weeks, and after supervisors have gone over the correct answers in roll call training or elsewhere in the weeks immediately preceding the QOM—supervisors would simply “remediate” the officers by reminding them of the correct answer and having them indicate their final understanding of the correct answer by marking and initialing it on their quiz. When all sworn personnel under their supervision reach complete understanding of the correct answers to the QOM, supervisors would deliver a completed QOM report form to the agency’s training section, which should keep a copy of the quiz, the correct answers, the rationales, and the QOM reports as a permanent record of training.
All sworn supervisors, managers, and administrators should take the QOM under test conditions each month in the same fashion as their officers to ensure their understanding of the same information as their officers are required to know. This measure should go far toward both fairness and accountability. In addition, any member of the agency who wants to see a point of information covered in the QOM could propose a quiz question (ideally with the suggested correct answer and rationale provided) to the STC, which would consider its inclusion in a subsequent QOM. Of course, the command staff could add questions to the QOM as it saw fit but should first route such questions to the STC for its input.
Naturally, test questions should not be “wasted” on matters on which there would be no dispute within the organization as to how to deal with a particular situation. However, only when a question involving a fact-based scenario is posed to numerous personnel do we typically learn how many different views individuals take, even on matters that many might judge to be a matter of “common sense.” Intelligent people of good judgment and common sense frequently disagree on the appropriate way to solve a given problem.
Furthermore, the QOMs could eventually form a bank of test questions that would be useful for other purposes—basic training, field training, promotional testing, and so on—or could eventually constitute a training manual in themselves.
Some might ask whether it makes sense for everyone to have the answers to the questions before the test. The purpose of the exercise is not to foster competition but rather cooperation and consistency. And although agencies could never address every conceivable scenario in QOMs, they can make an effort to cover as much procedural ground as is reasonably possible. An expansive QOM system could substitute for much of law enforcement’s ever-growing detailed written policy, especially those portions beside which one could put someone’s name
At the end of the first month’s QOM process, cynical officers might say, “Big deal—everyone has given the same answers to the same 10 questions.” But officers motivated to root out inconsistencies in their agency would view it differently: “In an unprecedented organizational accomplishment, everyone in the organization, from top to bottom, is on the same page in respect to 10 points of critical knowledge.” (At the end of three years, this number would grow to 360 points.)
Finally, the ambiguity in the title “Supervisors Training Committee” is intentional. Through the use of QOMs, agencies ensure training both by and of supervisors.■
Author’s note: The author wishes to acknowledge Chief Bernadette DiPino and the Ocean City, Maryland, Police Department for implementing a training system similar to the one proposed here. The author of this article wrote the first draft of the department’s standard operating procedure, from which this article is adapted.
This column is a service of the IACP Legal Officers Section, which is composed of police legal advisers who are members of the IACP and the section. The opinions expressed and positions taken are those of the column’s author and do not necessarily represent the views of the IACP, The Police Chief, or even the Legal Officers Section. Attorneys who wish to submit articles for possible use in this column or anyone wishing to join the Legal Officers Section should contact Randy Means at firstname.lastname@example.org.