Legal Trends in a World of Crisis

by Bill Lewis II

CATO (California Association of Tactical Officers) asked me to attend the seminar “Legal Trends in a World of Crisis” on June 15, 2009, in Newport Beach (CA), for the purposes of sharing information from the seminar with readers of the CATO News who were not fortunate enough to attend. And, since I rarely decline an opportunity to listen to Euqene “Gene” Ramirez or Gordon Graham, the decision to accept the assignment was effortless.

The “Legal Trends” seminar was presented by the attorney firm of “Manning & Marder, Kass, Ellrod, Ramirez, LLP” and featured a distinguished panel of experts sharing their knowledge of media relations, crisis communications, and some reasons why law enforcement agencies are being sued and what can be done to avoid and defend against lawsuits. Since 1994, “Manning & Marder” has been a friend of law enforcement in providing police civil liability defense and other services to its clients.

The morning began with an introduction by Orange County Assistant Sheriff Mike Hillman. He welcomed those in attendance and briefly addressed some of the challenges facing law enforcement, risk management issues, and the importance of critical incident debriefs.

Crisis Communications

Attorneys Gene Ramirez and Judy Smith together addressed crisis communications and how to deal with the media in a 24/7 world. The emphasis of their discussion was aimed at shaping public opinion prior to potential litigation. They recommended attorneys working for an agency hire a “public relations” firm for the high-profile “top situations” to maintain the attorney-client privilege. These “situations” can include use of force incidents, pursuits, officer misconduct (on and off duty), workplace harassment, and jail operations.

The attorneys discussed the “bunker mentality versus pro-active approach” in addressing problems. The old school approach is to be quiet basically and not respond to the media. However, the “bunker mentality” raises suspicion if there is no official response to an incident, viewed as a lack of leadership, isolates an agency from the community, diminishes credibility, and reinforces the “us versus them” mentality.

A “pro-active approach” puts the agency in control of a situation and shows the agency understands the media environment. It is important to understand the media is a 24/7 operation and includes an overwhelming number of sources via television, radio, printed media, cable, and the Internet. Therefore, it is essential and advantageous to cultivate and establish media (reporter) relationships.

Here are some reasons why the media is important;

The public is more technology literate
Cases are being tried in the press
Jury pools can be tainted if an agency doesn’t fight back
Today’s public is turned off by “No comment”
The media can affect of damage an agency’s credibility in the community
Attorneys and “victims” are savvy enough to try cases in the press

When a crisis occurs, how well a law enforcement organization handles itself is pivotal to the public’s long-term perception of the agency. The attorneys provided a reference guide of what to do and not to do when a crisis occurs. These tips were designed to help an agency deal with crisis when it arises and set the course back on a positive and productive track;

What To Do (And Avoid) When Crisis Strikes

DO gather all the facts about the situation you possibly can get before making any public comments.
DO immediately bring in legal representation and crisis communicators to help assist you deal with the immediate situation.
DO NOT respond to rumors or hypothetical situations.
DO NOT assume a journalist will be accurate or fair in his or her accounting of the situation or that he or she is being honest when asking questions.
DO have a stand-by statement available immediately that assures the public that the situation is being addressed and that public safety remains the agency’s first priority.
DO NOT allow any spokesperson to comment until all talking points and statements have been vetted and approved by legal representatives and reviewed by the communications team.
DO have all e-mails and telephone calls from reporters returned in a timely manner.
DO NOT go “off the record” or share sensitive information with anyone other than the crisis team.
NEVER lie to a journalist. They will find out.
ALWAYS remain friendly, cool-headed and confident.

A quick, coordinated approach can minimize disruptions and help an agency regain control over any situation. When the time is right, an agency should tell it all, tell it fast and tell the truth. The attorneys recommended “owning the crisis” which included;

When a crisis breaks, you have to own the story
If you don’t communicate, others will (and that often puts you at a disadvantage)
Balance the need to protect the investigation against the public’s right to know
If you can’t release information, be specific about why
If the information changes, be transparent about it
When something is incorrect, correct it

The attorneys recommended advance preparation for dealing with crisis situations. Don’t wait for a crisis to occur! An agency should be prepared in advance for how they plan to communicate internally and externally and who will communicate. It is a good idea to have templates or checklists ready to guide and assist an agency as they prepare to handle a crisis. An agency should plan and think through various scenarios and procedures before a crisis occurs. An agency should be prepared to monitor the media and social web sites (like Facebook and Twitter) in real time.

The “10 Rules of Crisis Communications” was shared;

Be pro-active
Understand the backdrop
Gather all the facts and be honest
Share a simple and clear message(s)
Determine your best spokeperson(s)
Practice message discipline internally
Position your third party supporters
Leverage existing press relationships
Remain aware if all new developments
Develop plan to avoid repeat of crisis

Civil Liability Update

Attorney Missy O’Linn addressed civil liability issues and shared findings from a report in 1998 where the IACP found that in 99.6% of calls for service, the police do not use force. However, a majority of the problems associated with law enforcement and civil liability often involve the use of force.

She emphasized that an agency must be able to recognize “high risk incidents” quickly to begin preparations for investigating and defending any potential civil liability that might include high profile, high exposure, and high emotional incidents.

High profile incidents can include involvement of high profile personalities, government officials or celebrities. High exposure incidents include in-custody deaths or significant injuries, sexual misconduct allegations, civil rights cases, and use of force involving multiple Electronic Control Device (ECD) deployments or discharges, K9 [and SWAT] deployments, and pursuits with injuries and/or death. High emotional incidents can include allegations of discrimination with respect to race, sexual preference and ADA as well as incidents involving children, animals and mentally ill or homeless persons.

When one of these incidents occurs, the “correct” handling of the incident and the scene are crucial and “getting it right to start with” is important with regard to understanding the crime being investigated, on-scene investigation, initial documentation, requesting the “outside perspective up front,” and dealing with the initial reactions and comments both internally and externally.

Evidence collection and securing witness statements on-scene immediately and thoroughly is critical. This process includes securing witness information with field recordings of interviews, properly securing the evidence, and being cognizant that the “world is watching” with other data collection that includes security cameras, witness phones/cameras, on-scene officers with cameras and recording devices, and agency resources like car cameras, phone lines, and dispatch recordings. Other evidence opportunities include medical care providers, further photographs and interviews the day after, and a walk-thru of the incident.

When reports are being prepared, officers should use recordings and other resources available to assist them in report writing, including any audio recordings of the event and/or interviews, for quality control purposes.

When considering the potential for civil liability, agencies should prepare their criminal case to prepare for a potential civil case. Agencies should also establish and maintain a good working relationship with the prosecuting authority, monitor the criminal prosecution on a high risk incident, and prepare for the inevitable. A criminal conviction is a good defense for a civil case.

O’Linn provided a re-cap of recent lessons learned with some great recommendations;

Officers should be issued and required to carry and use digital pocket recorders.
Training should be provided to officers for “team takedowns” of suspects and multiple officer control techniques as opposed to only concentrating on single officer arrest and control techniques.
If an officer is issued an ECD, the officer should be required to carry it on their person (instead of leaving it in the car and not readily accessible).
Officer training should include close quarter tactics with ECD’s and use of the ECD during multiple officer deployments.
Officers should use and be reminded to use verbal commands during ongoing physical struggles and to communicate with other officers during attempts to control a violent individual.
Officers should consider options and communicate in a timely manner when one tool does not appear to be working on an individual.
Emphasize to officers the importance of prompt [and accurate] radio communications.
Supervisors should ensure that the names and statements of witnesses at the scene are secured before leaving the scene.
Supervisors should make certain that injuries as well as damage to equipment and uniforms are properly documented and photographed.
Photographs of injuries sustained by an officer should also be taken days later if bruising occurs.
Supervisors should ensure that reports are complete.
“Bad reports plus missing evidence equals punitive damages.”
Avoid using the “suspect interview rooms” when interviewing officers if they are not suspects, especially if the interviews are being videotaped.
If individuals [and other police personnel not tasked with evidence collection] on scene are taping the incident, an effort should be made to acquire those recordings.

“Problems Lying In Wait”

Attorney and retired CHP Commander Gordon Graham often has a simple and direct way of sharing important that is critical with respect to risk management and addressing problems in law enforcement.

Graham addressed five problems currently “lying in wait” for agencies;

Lack of quality people.
Lack of quality policy manuals.
Lack of core critical task training.
Poor supervision.
Lack of proper discipline.

The problems listed probably look familiar to you and are no surprise as they are mostly self-explanatory. However, it is a surprise somewhat that these same problems continue to exist and haunt many law enforcement agencies.

The problems with acquiring quality people are attributed to poor recruitment efforts, fast-track hiring due to demand and insufficient background checks, and negligent retention. Graham (once again) recommended to those in attendance “Don’t hire stupid people!” because of the inherent problems that usually and predictably accompany these people which later creates significant problems sometimes criminally and civilly for agencies.

It is important an agency has a quality policy manual that is consistent with current law and addresses acceptable trends and training in law enforcement. The policy manual must be shared with the employees, understood by the employees, and adhered to by the employees. Policy is a primary pillar and is often the foundation for an agency’s risk management efforts. The risk of not having current, legally sound policies simply cannot be overstated. Risk management and dealing with crisis begins with good policies and proper training of your employees.

One of the problems with supervision, according to Graham, is overrating employees. He recommends eliminating performance evaluations. Often times, supervisors are unable to make the transition from “friend” or colleague to an actual supervisor and they tend to overrate employees. Overrating employees in a performance evaluation can be a negative aspect and detrimental when it comes to terminating or disciplining an employee not meeting standards. Instead of evaluations, an annual test is recommended by Graham.

A Plaintiff’s Perspective

Attorney Brian Dunn provided some perspective into a plaintiff’s case against law enforcement as an attorney who has sued the police on behalf of clients. He has been successful and unsuccessful against the police in court. He offered some valuable insight into his evaluation process as he considers whether or not to accept or reject a client and their respective case against a police agency.

The most critical aspect of Dunn’s process and the best lesson learned from this presentation, in my opinion, is when Dunn stated “the difference in cases is usually dependent upon the officer’s version of events versus the physical evidence” when examining the potential to accept and move forward with a case.

“What I look for first,” said Dunn, “is will I be able to demonstrate an inconsistency between the officer’s version [of events] and physical evidence.” He will also consider the human bio-mechanics of actions versus the physical evidence and reports.

Other criteria considered by Dunn to assist him in accepting a client’s case include;

Was the person (plaintiff) armed with a weapon?
Was the person (plaintiff) actively committing a violent felony crime?
Was the person (plaintiff) under the influence of alcohol or drugs?

Dunn’s presentation emphasized the importance of proper evidence collection and retention as well as retaining and producing photographs and videotapes (if available) to assist either the case for the plaintiff or defendant officer(s).

A few incidents where officers claimed that suspects had weapons in their possession but did not or were not located were discussed. The need to address “mystery weapons” (per Dunn) and present relative evidence in support of observations and the subsequent decision-making process of an officer during initial investigations by law enforcement investigators is crucial in defending and justifying an officer’s actions. In doing so, investigators should be able to address and verify comments like “I thought he had a weapon…” and “I thought I saw a weapon…” when weapons are not present at the scene. If an object resembles a weapon that was described, photographs should be taken of the object, it should be retained as evidence and the involved officer should attempt to identify it.

Dunn believes that officers aren’t always able to recollect every aspect of an incident. He believes “innocent mis-recollection” does occur. However, he does aggressively look for inconsistencies by officers when comparing their immediate statements, statements made at depositions and trial statements.

“The War on Our Soil”

Sgt. Major (Retired) Eric Zipperer, U.S, Army, emphasized the importance of being educated on matters of terrorism in the United States and offered some simple but relevant training and research suggestions to help prepare for and combat terrorism and protect those in law enforcement who may encounter elements of it.

Regarding research, Zipperer recommended finding and becoming familiar with web sites and other informational sources on terrorism and terrorist organizations located both abroad and here in the United States to keep abreast of an organization’s goals, mindset, objectives and potential for terror.

Zipperer suggested reaching out and establishing, cultivating and maintaining contacts and resources within your community or nearby to assist and/or support your missions or potential missions, operations, and callouts.

In regard to training, Zipperer addressed the changes in technology and weapons that have occurred over the past years in the military and law enforcement, but noted a failure and unwillingness by many agencies and teams to adapt to those changes as they retained and administered archaic policies, training, standards and guidelines. “If new technology is inserted, conditions change, and then standards [and tactics] should change too,” he said.

Good training is dependent upon innovation and imagination. An agency or a [tactical] team must constantly be accessing its tasks, conditions and standards. Whenever possible, training should be videotaped to assist with the learning process and used to confirm conflicting observations and assessments. “Video does not lie!”

A time standard should ALWAYS be a part of range training. Time can be used to break ties during “in-house competitions” and reward speed balanced with precision.

All critical task training should be more repetitious, include time constraints, and involve physical activities related to movement – crawling, walking, and running.

Zipperer discussed the importance of Colonel John Boyd’s “Elements of Warfare” and the decision cycle developed by Boyd known as the “OODA” loop in preparing for operations. Gordon Graham often refers to these elements and the loop in his training. Here are some basic overviews courtesy of Wikipedia;

The Elements of Warfare

Boyd divided warfare into three distinct elements:

Moral Warfare: the destruction of the enemy’s will to win, via alienation from allies (or potential allies) and internal fragmentation. Ideally resulting in the “dissolution of the moral bonds that permit an organic whole [organization] to exist.” (i.e., breaking down the mutual trusk and common outlook)
Mental Warfare: the distortion of the enemy’s perception of reality through disinformation, ambiguous posturing, and/or severing if the communication/information infrastructure.
Physical Warfare: the destruction of the enemy’s physical resources such as weapons, people, and logistical assets.

The OODA Loop

Boyd’s key concept was that of the decision cycle or OODA Loop, the process by which an entity (either an individual or an organization) reacts to an event. According to this idea, the key to victory is to be able to create situations wherein one can make appropriate decisions more quickly than one’s opponent. Boyd hypothesized that all intelligent organisms and organizations undergo a continuous cycle of interaction with their environment. Boyd breaks this cycle down to four interrelated and overlapping processes through which one cycles continuously:

Observation: the collection of data by means of the senses
Orientation: the analysis and synthesis of data to form one’s current mental perspective
Decision: the determination of a course of action based on one’s current mental perspective
Action: the physical playing-out of decisions

This decision cycle is thus known as the OODA loop. Boyd emphasized that this decision cycle is the central mechanism enabling adaptation (apart from natural selection) and is therefore critical to survival.

Conclusion

The firm of “Manning & Marder” coordinated an excellent seminar and provided an outstanding panel of experts. The seminar was a great learning experience. “Being prepared” and providing proper up-to-date training seemed to be key learning points throughout the day, but practicing good communications, establishing essential contacts within your community, and “Don’t hire stupid people!” were also good words of wisdom to assist tactical team leaders and team members as they plan future operations and go to work.

This article was originally published in the “CATO News” (Winter 2010).