By Christopher L. McFarlin, J.D., Faculty Member, Criminal Justice, American Military University & American Public University
Part one of this series discussed critical infrastructural considerations when developing or restructuring a reserve unit. These considerations are paramount to reserve officer morale, mutual respect between different classifications of officers, community recognition, and making the most of reserve officers. But let’s face it: More training, more equipment, and additional screening processes take money! Consider, however, the potential liability cost of having reserve officers who are undertrained, insufficiently equipped, or poorly screened.
According to Kami Chavis Simmons, a former assistant U.S. attorney who now directs the criminal justice program at Wake Forest University School of Law, “Municipalities should take a hard look at the culture of police organizations and any structural reforms that might help alleviate the possibility of huge civil suits.” In 2014, the Indianapolis Metropolitan Police Department settled a case involving a reserve officer at the cost of $370,000. While specifics of the incident were not disclosed, agency leaders in all communities should heed the plaintiff’s attorney’s warning that the case should serve as a reminder to recruit the right officers and train them correctly, to avoid future problems.
Agencies must convince the governments and communities they serve that the potential legal danger of having an inept reserve unit is substantially outweighed by the benefit of having a properly vetted, trained, and equipped reserve unit. Specifically, there are several different theories of liability which an agency should familiarize themselves with including:
- Negligent hiring and retention
- Negligent assignment and entrustment
- Failure to train
Civil liability is commonly used to attack a policy, a lack thereof, or worse, a “custom” – an unwritten rule or general practice – that gives rise to an injury. Agencies should be especially aware of their customs: Citizens and juries are very critical of law enforcement when an injury stems from an implicitly condoned custom.
Reserve Officers are Police Officers
Some agencies create a substantial contrast between their reserve officers and their full-time counterparts. It is essential for administrators to understand that the courts do not make this distinction when assessing liability. Neither do citizens make this sort of distinction when appraising their injuries from officers. With no effective distinction in the views of the law or the public, agencies must hold their reserves to the same level of scrutiny as regular officers when hiring, terminating, training, and developing them.
Specifically, the element of acting under the “color of law” is a critical element of a §1983 claim. This element is of particular importance in assessing potential liability because many states’ laws limit reserves’ authority while off-duty. Additionally, agencies will attempt to shield themselves with polices which are consistent with the state law. This credulous behavior could prove very costly! Courts have routinely looked to the nature of the officer’s action and not simply his or her duty status. Additionally, the courts take a “totality of the circumstances” approach to make a color of law determination. This consideration should be given special attention in regards to a policy about off duty law enforcement action, firearm carry, and any action whereby a reserve officer identifies themselves as official personnel of the agency.
Negligent Hiring and Retention
Proper vetting of reserve officer candidates can set the stage for disaster, or serve as the first line of defense against legal liability problems, particularly when agencies give, as they often do, a reserve the same tools and authority as a regular officer, but holds them to different standards.
Agencies should strive to develop polices with equitable application when considering different types of officers. Concurrently, alongside training and legal staff, they should forecast potential liability exposure when these policies are enforced on officers with varying skill sets and knowledge. Lastly, effective risk management strategies should be formed. Ideally policies are best written with the help of a lawyer and subject matter expert who have law enforcement backgrounds and intimate familiarity with SOP’s of a law enforcement agency.
Legal liability for negligent hiring has a complicated case law history, involving local courts all the way up to the U.S. Supreme Court. The first case SCOTUS reviewed was in 1997 to determine hiring liability, Board of Commissioners of Bryan County vs. Brown. This case involved a reserve deputy with previous criminal convictions being involved in an altercation where the plaintiff alleged excessive force. The court essentially ruled that even with the most due diligence as to an applicant’s history, an agency can still miss things and not necessarily be responsible for any resulting action.
As it relates to negligent retention, the first part of this series cast light on the fact that reserve officers can be used by agencies as quick, inexpensive ways to supplement manpower. Considering this, it is easy to fathom that some questionable actions have been overlooked by supervisors and administrators. Courts have ruled that supervisors and administrators have an affirmative duty to discipline or terminate an employee who is unfit for their assigned responsibilities and could open the agency up to liability for failure to investigate suspected negligence.
Negligent Assignment & Entrustment
Negligent assignment and its liability are relatively straight forward. Agencies should always be concerned with what types of assignments they give each officer and reserves are no different. Assessing the strengths and weaknesses of your officers should be a routine practice from a personnel standpoint. Suits being brought under a negligent assignment are often predicated on the belief that an administrator or supervisor had prior knowledge that an officer was unfit to participate in a particular type of assignment but allowed them to do so anyway.
Reserves are often used to supplement or replace full-time personnel. Agencies should insure that their reserves can step directly into the shoes of a full-time officer. However, when a reserve is paired up with a full-time officer, the reserve almost always takes a back seat to the full-time officer regarding the completion of tasks. Agencies could be exposing themselves to negligent assignment suits by allowing this type of relationship to exist.
As it relates to negligent entrustment liability, agencies are exposed to liability by not properly supervising or controlling an officer’s custody, use, or supervision of equipment or facilities. This theory is different from negligent assignment in that negligent entrustment is focused on an officer’s ability to use a particular piece of equipment and not just general incompetence in regards to an officer’s duties.
Reserve officers are often left out of training opportunities when it is considered specialized equipment training. The prevailing thinking of many administrators and supervisors is that the reserve officer doesn’t work every day, don’t have time to attend training, and don’t need to use such specialized equipment. This is precisely the type of thinking that attorneys love!
For example, a full-time officer who is permanently assigned as a school resource officer (SRO) will be expected to receive training on proper use of tire-deflation devices. A reserve, because they are a reserve, will not be invited to or expected to receive such training. Agencies must insure their failures don’t amount to deliberate indifference when it comes to negligent entrustment.
Failure to Train
Of all the liability theories being discussed, many experts agree that a majority of lawsuits brought under §1983 are based on failure to train issues. Agencies should familiarize themselves with City of Canton v. Harris case of 1989. Essentially, in the Canton decision, SCOTUS expanded the deliberate indifference application in civil suits against the agencies. Both administrators and supervisors can find themselves being held responsible for a failure to train issue. The crux of a failure to train suit is that officers are provided with inadequate or improper training and this caused the violation of an individual’s constitutional rights.
SCOTUS further held in the Connick vs. Thompson case of 2011 that officers must receive reoccurring training on matters for which they will frequently and routinely encounter in the execution of their duties.
Agencies are often challenged, not on the properness of their training, but on the adequacy of their training. The issue of failure to train is directly applicable to reserve officers because of the amount of training and the adequacy of that training. Some states, such as California, have a practice of making certain classifications of reserves attend the same academy training of full-time officers. But this practice is not common in reserve training. While some state’s training standards are proportional, many are not. This is very problematic and potentially crippling for agencies because all reserve officers are expected to carry out their duties with the same amount of professionalism and accuracy as their full-time counterparts.
If a court determines that the officer in question was inadequately trained, and there is evidence of a causal connection between this lack of training and the injury sustained, then the agency, administrators, and supervisors could be liable.
Agencies should consider developing increased training requirements to strike a balance and ensure continuity in training for all officers. A great start is to work alongside criminal justice academies in providing increased training opportunities for reserve officers. Lastly, agencies should consider the development of a risk-management bureau or a police litigation unit to provide constant oversight and direction in these difficult and complex legal areas.
About the Author: Professor Christopher L. McFarlin has more than 15 years of experience across all components of the criminal justice system, from serving as a detention and law enforcement officer to being a state prosecutor, criminal defense attorney, and judge. He currently serves as a faculty member with American Public University System’s School of Security and Global Studies. He serves as a reserve patrolman for a municipal police department. He holds active commissions as a reserve law enforcement officer and Summary Court Magistrate for the State of South Carolina. He currently serves as the Director of Criminal Justice for a college in South Carolina, in addition to serving as an adjunct professor for other prominent universities and colleges. In addition, he serves as a subject matter expert and guest speaker on a variety of topic pertaining to the criminal justice system. He received his double B.A. in Criminology and Sociology from Arkansas State University, a double M.S. in Criminal Justice and Criminology from Indiana State University, and his Juris Doctorate from Texas Southern University. His professional associations include the American Bar Association, Arkansas Bar Association, Academy of Criminal Justice Sciences, South Carolina Law Enforcement Officers Association, the Southern States Police Benevolent Association, and the South Carolina Summary Court Judges Association. For more information on the development of a reserve unit you can contact him at Christopher.McFarlin73(at)mycampus.apus.edu.