In those cases where force is used—and we are most likely to be sued—we seem to be ashamed to tell the truth and admit that we hit, punched, kicked, bit, scratched, and otherwise got nasty with some miscreant.
July 17, 2013
Photo by Mark W. Clark.
Winning a civil rights lawsuit against a municipality or county is like winning the lottery, at least for the plaintiffs and their attorneys. The vast majority of these suits do not go to trial; the city or county will settle out of court without admitting to wrongdoing.
In the back of your mind, you know what these administrators are thinking: Our officers did nothing wrong, but we are going to pay you this huge sum of money anyway so you will go away. Never mind the damage it does to our officers' morale, the public's trust in our officers and the agency; what is important is that we don't lose more money because we don't know how to defend against these frivolous lawsuits.
Where does that leave you, the individual officer? Hopefully covered by the settlement, but in reality, what do the people you serve think when they learn about the settlement?
I know you feel disgusted when your agency rolls over like this and pays some nuisance claim. What should disgust you more is that it's likely that one of the reasons your departments and municipalities do not vigorously fight these suits are the reports that were filed by officers detailing what happened during the incidents.
When it doesn't matter, we seem to write reports that people praise and use as examples in law schools and police academies. But in those cases where force is used—and we are most likely to be sued—we seem to be ashamed to tell the truth and admit that we hit, punched, kicked, bit, scratched, and otherwise got nasty with some miscreant. Disregarding that he pulled out a gun or a knife, or wanted to fight anyone in a uniform, there still is a mindset among many administrators and risk manager types that writing out exactly what you did and, more importantly, why you did it, is wrong or not necessary. This is a huge mistake.
It is no longer accepted, if it ever was, in a use-of-force incident report to use phrases like, "I physically subdued the subject." What does this tell the uninformed reader? Your sergeant may know what happened, but what about the prosecuting attorney or defense counsel? Will they know what happened and why?
It may be shorter and even accurate to say you "used physical force," but it does not tell all the facts. Consider the following statement as a way to write a report on a use-of-force incident:
The suspect swung his fists at me. I told him to stop resisting and that he would be sprayed with OC if he did not. He again tried to hit me, and I sprayed him twice with my department-issued OC spray. This caused him to back away, but he still tried to hit me. I again ordered him to, "Stop resisting," but he continued to swing his fists at me, yelling, "Screw off, copper." He again raised his fists and swung at me. I then struck him twice on the left knee with my baton. He fell to the ground, saying, "I give up, I give up." I handcuffed the now compliant suspect and drove him to the General Hospital Emergency Room for evaluation and treatment by Dr. A. Smith. After he was medically cleared, he was booked into county jail without further incident.
This example is much clearer for you and the reader, and it is more detailed. So why don't we take the time and write all of our reports with this much detail? Probably because cops hate paperwork more than anything else, except certain vile criminals, administrative types, and the ACLU.
Own Worst Enemies
Many times, we are our own worst enemies. One thing we do have in our favor is that we can learn from the mistakes of others, with little or no cost to ourselves. Who hasn't heard of some mistake by a department or officer that has become the force of law through an adverse case decision or winced at a judgment brought against a police officer?
More likely than not, if it was a civil trial, the judgment was due to a perception of wrongdoing, rather than actual wrongdoing. If you do not record the details of the event and what precipitated the use of force in your report, it looks like you have something to hide. You did nothing wrong, but now you are facing a jury, months or maybe years after the fact and trying to explain why you did what you did when you did it. How does it look to the jury that you are bringing up facts about the case that were never in your report? Any competent defense lawyer is going to use the lack of detail in your report against you.
Something to remember is that a jury is a group of 12 licensed drivers, all equally fuzzy on the concept of the law, with no experience in the rigors and subtleties of policing. Jurors are generally well meaning citizens, but their information comes from the local news or the latest "police reality" show, not from being students of the criminal justice system or practitioners of law enforcement.
It is incumbent upon you to paint a word picture for the jury and others that will read your reports. You can be the best shot, the fastest runner, an expert at interviewing, and look like a Marine recruiting poster in uniform, but without the ability to write a proper and factual report, it will all be for naught.
Evidence Collection
The same can be said for evidence preservation. The evidence backs up your report and without it, you can be in deep trouble. But for years our evidence collection has been geared toward prosecution and not the defense of a civil suit.
When was the last time an officer who was assaulted had to replace his uniform and equipment? What happened to the torn uniform and broken equipment? Were they discarded or were they kept as evidence? We may have taken some quick photos of the damage, but that's about it. In many departments, only in those dreaded times where an officer has been murdered, are the uniform and equipment worn preserved as evidence.
In the interest of the best evidence available and, frankly, to protect ourselves we need to keep as evidence the torn shirt, ripped pants, scraped leather gear, or broken eyeglasses or sunglasses. But because of tight uniform and equipment budgets, departments try to recycle damaged gear that should be considered evidence.
Think about the money that could be saved in a properly defended lawsuit due to the foresight in booking such evidence. Juries love visual aids. And what better visual aid is there to justify your use of force than your ripped uniform? Such evidence can make a greedy suspect and his lawyer slink away licking their judicial wounds.
Be in the Right
Of course, no amount of report writing or evidence collection is going to help any officer who maliciously or criminally assaults a suspect, regardless of how justified he or she feels in doing so. No matter how much you may want to slam some punk's head into the hood of your patrol car, you have to be a calm professional when no one else can. Unjustified use-of-force cases are thankfully rare, but the perception of the public is that it happens much more often than it really does.
Thanks to cell phone videos, the Internet, and the 24-hour news cycle that plays a supposed excessive force video over and over, the public receives a tainted view of law enforcement use-of-force incidents, poisoning jury pools and sometimes making necessary an out-of-court settlement.
Many times, your report doesn't seem to jibe with the video. What better tool, if it is available, to use to help you write your report? You have your perception of what occurred, and it is a valid perception, but viewing that impartial video can help your recollection and aid you in writing an even more complete and accurate report.
Fighting Back
A properly written and factual report, along with supporting documentation, witness statements, and evidence, are your best defense against a lawsuit. Audio and video are even better. Having all of this documentation and evidence probably won't reduce the number of lawsuits that are initially filed against you or your department, but it may give plaintiff lawyers pause about taking you on if they know how well you document and support your actions in the field.
With the advent of video recorders, both in patrol cars and in everyday life, it is imperative that the reporting officers be as accurate and factual as humanly possible in their reports. That doesn't mean writing longer reports; it means writing smarter reports.
If your reputation is such that prosecuting attorneys and judges have a high regard for your integrity and honesty, your report writing ability, and your courtroom demeanor, then plaintiffs' attorneys won't want to mess with you. If, on the other hand, your reputation is suspect in any way, word will get around and you can bet next month's pay that some lawyer, somewhere, will take on that lawsuit that might be frivolous but still profitable.
Your reputation can shield you, and it can bury you. A decision by the U.S. Supreme Court in 1963's Brady v. Maryland requires any adverse disciplinary information about officers' integrity or honesty to be turned over to the defense by the agency. This decision has caused many California district attorneys to tell chiefs and sheriffs they will not use an officer's reports or testimony if he or she has been disciplined for not being truthful. Do you want to have something like that hanging over your head?
I know of one young former officer who was involved in a use-of-force incident and wrote a report on it. His report was lacking, not due to deception, but rather haste. Another officer had witnessed the use of force and reported it to his sergeant who in turn initiated an investigation after the written report was filed.
The report did not mesh with what was reported by the witness officer and other witnesses. The officer who was involved in the use of force lost his job because the agency believed he had falsified his report. He has applied for other police positions at many different agencies, but not one has given him a second look. This is a good officer who sunk his career through haste and lack of detail in a report. This tragedy could have been avoided if he had reviewed the facts and made sure all known information was included. The information was there; he just failed to gather it and use it, torpedoing his career.
It is a fact of life in law enforcement that force, including deadly force, will have to be used. It is how you apply that force and, just as importantly, how you document it that will reduce the filing of frivolous lawsuits as well as preserve our careers. As with any other officer safety training, surviving a legal challenge to legal and proper actions is worth the time it takes to record and document the events and evidence. Your survival in a civil or criminal trial is only as good as your report.
Make your report writing better and you'll survive any courtroom challenge. Read reports written by fellow officers who have a reputation for being thorough and accurate. Talk with other officers about their experiences. Talk with the prosecuting attorney. Talk with defense attorneys about bad reports they've seen. Take an English refresher course if necessary. If your department doesn't have a good report writing manual, find a department that does and use theirs as a model for your department.
You use that pen, paper, and computer a lot more than you use your OC, baton, or sidearm, and they are just as important to your survival. If you don't practice with the weapons you are issued, when the time comes to use them it could be dangerous to you. The same goes for report writing. Practice, learn, and protect yourself.
Mark Tarte is a retired Livermore, Calif., police sergeant with 25 years of law enforcement experience. He currently runs the criminal justice program at Las Positas College.
