How to avoid legal missteps on suicidal-subject calls
If officers don’t understand the legal realities of these dicey situations, they run the risk of making matters worse
Article reprinted from Force Science News #374
With threatened and completed suicides dramatically on the rise, LEOs are increasingly facing challenging and complex calls about people in perilous crisis.
The overwhelming response objective, of course, is to save lives. But if officers don’t understand the legal realities of these dicey situations, they run the risk of making matters worse, with the officers themselves and/or those they’re expected to help potentially ending up seriously injured or dead.
In an hour-long webinar, three prominent police attorneys with Force Science credentials addressed the sometimes confusing legal issues of suicidal-subject dispatches. Produced by Lexipol, the broadcast features:
- Laura Scarry, a Force Science instructor and a partner in the Chicago-area law firm DeAno & Scarry;
- Mike Ranalli, a former chief from New York state and a certified Advanced Force Science Specialist;
- Ken Wallentine, also an Advanced Specialist and a supervisory special agent who directs the Utah Attorney General’s Training Center.
Among other things, the presenters dealt in depth with the following key training points for responding to suicidal subjects in a way that minimizes both the legal risks and the safety risks involved:
1. Beware the urge to “do something.”
Emotions can run high on these calls, with the subject often unable or unwilling to respond to verbal overtures and frantic family members begging for a quick resolution, Scarry points out.
“Officers often feel the need to do something and do something now,” she says. But by pressing a rushed confrontation with the subject, for example, “just to do something – anything – they may undermine their ability” to save the life in question and put their own at risk. “We see situations where officers have forced entry to save a person from killing himself – and end up killing him themselves.”
In the absence of a genuinely urgent emergency, buying time and distance for better assessment and decision-making may be the most effective approach, Ranalli says. Especially taking ill-conceived action for convenience, such as clearing street closures or avoiding overtime, won’t play well in court in the event of litigation, he warns.
2. Understand the limitations of your legal duty.
When you’re confronting a suicidal subject “who isn’t committing a serious crime and isn’t an active threat to anyone other than themselves, the best response may be not to engage and to withdraw” from the situation, Ranalli advises. “This may seem like a sin of omission, but it is often the most legally appropriate” as well as the safest response.
The panelists spend considerable time explaining the difference between the general “public duty” to protect the citizenry as a whole and a “special duty” to protect the welfare of a given individual – concepts Scarry says officers often have difficulty grasping on a practical level.
Generally speaking, the attorneys stress, you have no legal duty to keep a person from harming himself, and deciding to do nothing is not legally actionable; don’t assume that just because you respond to a 911 call you have an obligation to intervene. “That may sound harsh,” Ranalli concedes, “but it is the reality.”
Officers may still feel a moral duty to intercede, the speakers agree, but tactical restraint – including possible strategic disengagement – is still a desirable consideration in order to avoid escalating risk to everyone involved.
3. Don’t promise your way into a special relationship.
Also, verbal restraint is necessary to avoid what Wallentine calls “the worst legal position you can be in.” That is, creating a special legal duty to act where none initially exists.
This usually occurs, Scarry explains, when an officer or agency makes specific promises of protection that are relied on and result in liability if harm occurs when they are not fulfilled.
She offers a hypothetical: A woman, calling from her workplace, reaches out to an officer she knows because she’s concerned about her teenage son’s mental stability. The officer tells her to stay at work and promises to check on the boy immediately. The officer then gets diverted onto other calls and fails to follow through. When the woman arrives home at the end of the day, she finds her son has killed himself.
With his promise, Scarry explains, the officer likely created a special relationship and legal obligation and, ultimately, a liability for the tragic outcome. Bottom line per Wallentine: “Resist the temptation” to make promises you may not be able to keep but that people may rely upon and thereby make the circumstances worse.
4. Avoid “state-created danger.”
Throughout a suicidal-subject call officers should remain aware of three questions, Ranalli recommends:
- Who is at risk?
- Who is causing that risk?
- What is necessary to eliminate or reduce that risk?
To protect yourself legally, he says, “You don’t want to bring risk to the person in crisis, unless that person is bringing risk to another person or the police.” And you want to “balance your capability” and training with the needs of the situation.
If your actions unjustifiably worsen the situation, resulting in harm to the subject, you may be liable for what’s called a “state-created danger.” In court, this could result in a loss of qualified immunity from litigation – and the panelists cite case law where this has occurred.
5. Empower yourself with information.
As with planning a SWAT operation, intelligence is critical in avoiding potential pitfalls and responding effectively to a potential suicide, Ranalli states. “You need to determine quickly as much as you can about the subject at risk and the situation you’re in.”
What’s the subject’s purpose and intent? Is there a weapon involved or accessible? Are other parties at the scene in jeopardy? How can the risk be contained so the threat doesn’t spread? Do you have cover and less-lethal options available? Does the subject have a history of mental illness that might add another level of concern? Is this really a police matter, or more a mental health matter? Do you have legal justification for what you’re contemplating, such a making a forced entry?
Information will “empower you” in making appropriate decisions, Scarry says. Focusing on practical objectives – what you reasonably can hope to accomplish and what you must do to accomplish it – “can take some of the emotion out of the incident” and reduce the chance that you’ll “take action that puts you or the subject at more risk.”
6. Fully document your actions.
Your after-action report will become a key document if any legal action arises after an incident. It will be scrutinized and analyzed “long after the fact,” Wallentine says, so in writing it describe fully the “situation you faced, the actions you took, and why.”
You’ll want to report in detail, he says, the risks you had to deal with...the legal justification for your actions...the outcomes you expected from what you did...any mitigating factors or challenges that impacted the situation...and, if the expected outcome was not achieved, the reasons why.
For example, he says, “If entry was made, was it justified from a legal and safety standpoint? If you used force, what did you expect to achieve? If you chose to tactically reposition, what led you to believe this was the safest choice for the subject and yourself?”
Scarry stresses the importance of explaining the “why” of whatever you did. “If you don’t understand the why, that’s when you get into legal trouble,” she says.
7. Don’t always expect a “fairy-tale ending.”
Despite the best efforts of skilled officers, people do still kill themselves. You may think you’ve successfully resolved an immediate crisis only to have the subject take his own life after you leave – or even, dramatically, in your presence.
We strive for “better, smarter, safer ways” to address the nation’s “marked, steady, and frightening increase in suicide,” says Wallentine, but ultimately you can’t control what other people do or the intensity of their determination.
“There is not going to be a fairy-tale ending to every one of these situations. Understand that up front,” Wallentine counsels. “If you want guarantees, get out of law enforcement.”
Email addresses for the panelists are Laura Scarry, firstname.lastname@example.org; Mike Ranalli, email@example.com; Ken Wallentine, firstname.lastname@example.org. For more information on Lexipol’s services, email email@example.com.