by Marty Drapkin
Education Consultant
Training and Standards Bureau
Wisconsin Department of Justice
Liability risk management is always a concern in regard to proper use of physical force by corrections officials. Good liability risk management means thinking and acting proactively—anticipating in advance what could happen and what could be problematic in terms of litigation, and then taking steps in advance to do the right thing and to be able to demonstrate that proper actions were taken.
The following components are important in a comprehensive use of force liability risk management program:
• Written policies and procedures on all aspects of use of force;
• Training of staff members on proper use of force;
• Documentation of use of force actions;
• Review of use of force incidents and implementation of necessary changes based on such review; and
• Ongoing supervision of personnel to ensure compliance with policies and training.
The following checklist is a starting point to try to ensure that all of the bases are covered, in regard to each of the above-listed components.
A. WRITTEN POLICIES AND PROCEDURES
___ A written policy (or policies) is in place covering all key aspects of use of physical force by departmental personnel (as listed below).
___ The policy reflects requirements or other provisions of applicable state laws, administrative rules, and any other applicable legal requirements or guidelines governing the use of force (examples: court decisions or decrees or other orders).
___ The policy has been distributed to all staff members who are affected by and/or are expected to follow the policy.
___ The policy has been approved by the highest level of authority in the department.
___ The policy clearly indicates the date of effectiveness of that policy, and whether that policy supersedes previous versions of the same policy;
___ The policy minimally covers the following issues regarding use of physical force:
___ Indication of appropriate uses for force (e.g., to gain or regain control, self-defense or defense of others, prevention of escapes, prevention of destruction of property, to move inmates from one location to another against their will, etc.);
___ Indication of inappropriate uses for force (e.g., to punish or discipline inmates);
___ Indication that presence and dialog will be used to attempt to gain or regain control before physical force is used to gain or regain control, unless that is not feasible under particular circumstances;
___ Indication that a reasonable (or objectively reasonable) level and amount of force will be used, when use of force is deemed necessary and appropriate;
___ Indication that department members will apply force in accordance with trained principles
and techniques;
___ Indication that multiple officer response will be used when necessary and appropriate, to gain or regain control of inmates;
___ Indication that appropriate follow-thru procedures will be implemented as necessary and appropriate following all instances of use of force, and indication as to what these procedures minimally include (stabilization of subjects and scene, monitoring/debriefing, searching, escorting, transporting, and turn-over/release of inmates);
___ Indication that a written report will be prepared by involved staff members following use of force incidents, and information on routing of such report forms;
___ Indication that there will be managerial or supervisory review of all incidents involving application of physical force by department members, and appropriate follow-up actions taken, as deemed necessary and appropriate, based on such review. (See “D” below on this.)
___ There is a mechanism (preferably indicated in a written policy) that the use of force policy will be reviewed by department administration and/or designated staff at specified intervals (such as annually) and any necessary revisions implemented.
___ The use of force policy has been submitted for review and approval by appropriate liability risk management personnel (e.g., corporation counsel, insurance company, etc.);
___ There is an archive of department use of force policies, containing the various versions of such policies that were in effect at specific periods of time.
B. TRAINING OF STAFF MEMBERS
___ Staff members have been initially trained on the agency’s use of force policy. This includes training both on cognitive information on the contents of the policy and training on any psychomotor skills necessary to implement the policy.
___ Staff members have been tested to ensure that they know the cognitive information regarding the policy.
___ Staff members have been tested to ensure that they are competent in the psychomotor skills necessary to implement the policy (e.g., use of force tactics and techniques).
___ Following initial training on the policy and procedure, staff members are provided continued training as follows:
___ Training on cognitive aspects of the use of force policy at routine intervals, such as annually;
___ Training on use of force psychomotor skills at routine intervals, such as annually;
___ Training on both cognitive elements and psychomotor skills whenever there has been a change to policy or to use of force tactics or techniques.
___ All such training is accurately and thoroughly documented. Documentation minimally includes the following: names of all staff members trained, dates and time frames of training, subjects and topics of training, curriculums for training, names and qualifications of all instructors, copies of handout materials, titles or descriptions of all audio-visual aids used, evaluation (test) results for each student, and copies of any evaluation instruments used.
___ Documentation of training is maintained and is easily-accessible.
C. DOCUMENTATION OF USE OF FORCE INCIDENTS
___ There is a policy requirement that a report is to be written on all use of force incidents involving departmental staff.
___ There is a specific form or document for use of force reports.
___ At a minimum, all use of force reports include information on the following:
___ Names of all staff members involved in the incident, and their duty assignments at the time of the incident;
___ Names of all subjects (inmates or others) involved in the incident;
___ Exact date, time and location of the incident;
___ Names of all witnesses to the incident (officers, inmates, etc.);
___ Information on Approach Considerations, Intervention Options, and Follow-Thru Procedures undertaken by involved staff members;
___ Investigative findings, either in initial or supplementary reports.
___ There is a clear policy requirement specifying the time frame for completion and submission of written use of force reports.
___ There is a clear procedure in place for routing copies of use of force incidents within the department.
___ There is a policy requirement in place for routine managerial or supervisory review of all use of force incidents. (See “D” below.)
D. REVIEW OF USE OF FORCE INCIDENTS / IMPLEMENTATION OF NECESSARY CHANGES
___ There is a policy requirement that there is to be routine managerial or supervisory review of all incidents involving application of physical force by department members.
___ At a minimum, this policy requirement indicates that all written use of force reports will be reviewed by specified department managers and/or supervisors, within specified time periods following submission of the reports.
___ The person(s) conducting such reviews is authorized to determine whether or not each use of force incident was or was not in compliance with department policy on use of force.
___ The determination as to whether or not each incident was in compliance with department policy is documented, in some fashion.
___ If a determination was made that any particular use of force incident was not in compliance with department policy, there is a procedure or mechanism in place for follow-up with involved department staff member(s), to ensure that future use of force actions are proper. (Such follow-up actions may range from counseling to discipline to provision of additional or remedial training, etc.).
___ There is, in addition to the above, a policy requirement that a critical incident debriefing will be conducted following significant use of force incidents, and it is clear that one purpose of such debriefings is to determine whether revisions are needed to policy and/or training in order to improve response to similar future use of force incidents.
___ There is a policy or mechanism in place for routine managerial or supervisory review of all departmental use of force reports that have been completed over the course of a specified period of time—such as each year—in order to determine any needed revisions to use of force policy and/or training or supervision of staff members.
E. SUPERVISION OF PERSONNEL
___ There is a commitment by department administration to properly supervise departmental personnel to try to ensure that they are acting properly, within policy requirements.
___ Department supervisors are aware of employee on-the-job performance and take necessary steps to correct job performance problems or deficiencies, ranging from counseling to discipline to provision of additional or remedial training.
___ There is accurate and thorough documentation of employee performance problems and of steps taken to correct such problems.