5 keys to surviving a police lawsuit
In addition to stopping or impeding civil tort claims, these same tips will also help you in court with your criminal case prosecutions
You survived that fast-moving incident from last shift. Perhaps it involved a car chase. Maybe you had to use force to gain a subject’s compliance. Maybe you were in an officer-involved shooting. It might have been some other high-risk aspect of the law enforcer’s existence.
Whatever it was, now that you’re safe, the question you might now be mulling is how you’ll survive the inevitable lawsuit.
Many lawyers and “expert witnesses” know fully what you should do, so it’s in your interests to know as well. Here are some reminders to help you to get through the process without legal injury or, better yet, avoid getting sued to begin with.
In addition to stopping or impeding civil tort claims, these same tips will also help you in court with your criminal case prosecutions.
1.) Collect your current and documented training information. Be sure that your training and certifications are properly documented and current. Don’t depend on your training section to keep up on this – have your own notebook as a repository of your training and education records. It should have clear sleeves that each college degree/transcript, basic academy certificate, advanced and in-service certificates, and other relevant material is kept and updated on a continual basis. An excel spreadsheet at the front of the notebook is a terrific way to keep track of the total hours and track the training.
2.) Have excellent written documentation. This is important for all law enforcement officers and encompasses every aspect of the job. As I have taught thousands of criminal justice degree and police academy students over the years, police officers, deputy sheriffs, and state troopers are the world’s biggest record keepers. The ability to think critically and communicate clearly is vitally important (that’s one reason college courses help) and could stop a lawsuit from gathering any steam.
Reports come in many forms and many agencies have several different ones that must be filled out depending on the severity of the incident and the presence of force factors. Remember your basic training and do your reports in a complete manner. It should be chronological, factual and non-emotional or judgmental, as well as attribute the source or sources for any information mentioned.
If information changes or becomes known to you at a later point in time, then do a supplemental report and add that to the case file — even if it contradicts what you wrote earlier. Your credibility will not be destroyed. On the contrary, you will come across to any plaintiff’s lawyer (as well as criminal defense lawyer) as appearing professional and credible to the court.
And be sure to include any additional paperwork in the case file, including complete witness statements, use of force reports, TASER download logs, and the like. It is wiser to have all the documentation in place at the time then to try to reconstruct it months or even years after the fact.
Be aware, however, that if you refer to or reference any notes, they may be subject to legal discovery – including other possibly embarrassing items in that journal or notebook.
3.) Get video. When I was a police chief, we had dash-mounted video cameras. As the concept was still relatively new at the time, many officers were wary of the technology. I said that most officers would be exonerated from any allegations of wrongdoing by the presence of video and I was correct.
Any video – even one taken on a cell phone camera by a bystander, as long as they are not physically interfering in close proximity with your duties – should actually be welcomed, as the majority of officers do what they are supposed to do and thus will be cleared by the video from any allegations of wrongdoing.
If your dash mounted or body cam does not automatically activate, then you should do so manually as often as you can in accordance with your agency’s policy and applicable laws in your state.
Simply put, in our digital technology age, you should act as if you were being recorded all the time, and should a lawsuit or complaint come up, have access to that video.
4.) Be truthful and factual. Whether writing your report or testifying in a deposition or court, be truthful and factual in all of your statements and answers. There is no shame in saying you don’t know or don’t recall if that’s in fact the case. Lawyers are used to allowing witnesses to refer to reports to refresh their memory.
5.) Communicate only with your lawyers. Many times, I have had to caution an officer to keep their cool and avoid the temptation to contact the plaintiff once they get served. The same is true if the person filed an internal affairs or professional standards complaint. Stay calm and do not contact the initiator of the lawsuit against you.
Communications between the opposing parties is the job of the lawyers. You should only do so when and in the manner advised by legal counsel.
While you maintain silence with the plaintiff, talk and communicate with your team. You need to be sure that your interests are represented by the legal team as they may have been hired by your employer and thus are primarily looking to protect city or county possibly at your legal peril.
Hopefully, you won’t need to employ these lawsuit survival tips as a result of your work serving the community. The best plan, of course, is to avoid the lawsuit scenario altogether by being a true professional and reflecting well on the law enforcement profession.