The goal with scenario-based training is to give officers skills and abilities that they can use in any encounter.
Sergeant Lynch is the curriculum coordinator and an instructor at the West Virgina State Police Academy in Charleston.
FBI Law Enforcement Bulletin
October 2005
Volume 74
Number 10
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
Robert S. Mueller III
Director
Contributors' opinions and statements should not be considered an endorsement by the FBI for any policy, program, or service.
The attorney general has determined that the publication of this periodical is necessary in the transaction of the public business required by law. Use of funds for printing this periodical has been approved by the director of the Office of Management and Budget.
The FBI Law Enforcement Bulletin (ISSN-0014-5688) is published monthly by the Federal Bureau of Investigation, 935 Pennsylvania Avenue, N.W., Washington, D.C. 20535-0001. Periodicals postage paid at Washington, D.C., and additional mailing offices. Postmaster: Send address changes to Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.
Editor
John E. Ott
Associate Editors
Cynthia L. Lewis
David W. MacWha
Bunny S. Morris
Art Director
Denise Bennett Smith
This publication is produced by members of the Law Enforcement Communication Unit, Training and Development Division.
Internet AddressSend article submissions to Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.
Developing a Scenario-Based Training Program
By Michael D. Lynch
Providing officers with realistic training situations will enable them to hone their skills in a safe environment.
Liability for Failure to Train
By Martin J. King
"Deliberate indifference" is a standard of fault that is demonstrated when government policymakers act with conscious disregard for the obvious consequences of their actions.
ViCAP Alert
Missing Person
Perspective
Gratuities
Bulletin Reports
Corrections
Sexual Offenses
Forensics
Violence
FBI Law Enforcement Bulletin Author Guidelines
Bulletin Notes
The nighttime darkness splinters with the rhythmic pulsing of red and blue strobe lights. The cruiser’s spotlights focus on the passenger compartment of a vehicle with three occupants. The driver watches the officer from the side mirror as he exits the patrol unit, but the passengers’ furtive movements cause the officer to pause. Having radioed his location to the dispatcher, he now requests any available backup and takes a new position, using his cruiser as cover. The officer tells the driver to turn off the ignition and drop the keys out of the driver’s side window. He complies. The officer then instructs him to stick both of his hands out of the window, open the door from the outside latch, and exit the vehicle. The driver, approximately 6' 4" in height and weighing nearly 300 pounds, obeys. The officer orders him to raise his hands above his head, which he does, but his jacket conceals his midsection. Next, the officer tells the driver to unzip his jacket with his left hand. As the driver does so, the officer notices the front passenger door starting to open and commands the passenger to close it and remain in the vehicle. The passenger complies. The officer unsnaps his holster and instructs the driver to slowly turn until he tells him to stop. The driver makes one complete revolution. Then, the officer directs him to use his left hand to lift the jacket away from his body and to continue to turn until ordered to stop.
|
Sergeant Lynch is the curriculum coordinator and an instructor at the West Virgina State Police Academy in Charleston. |
The driver obeys. The officer commands him to repeat the procedure with his right hand, which he does. The officer tells the driver to keep his hands in the air, to turn and face away from him, and to walk slowly backward toward the sound of his voice. Again, the driver obeys. At this point, the officer realizes that the driver has complied with all of his requests but has not said a word. The officer instructs him to stop and get down on his knees. The driver states that he has bad knees and will not comply. At this time, both doors of the vehicle suddenly open and the two passengers begin to exit the vehicle. The officer immediately changes his position, draws his service weapon, and orders all three men to keep their hands visible and get on the ground face down. The two passengers begin to comply, but the driver turns suddenly and confronts the officer with a knife drawn from his jacket sleeve. But, to his surprise, he finds that the officer is no longer where he thought he was standing. The cruiser’s lights still illuminate all three subjects, but the officer has tactically disengaged into the refuge of the darkness. The officer orders the driver to drop the knife, but he refuses and moves menacingly toward the direction of the officer’s voice. The officer fires three shots, fatally wounding him in the chest, and commands the two passengers to remain motionless on the ground. Moments later, backup officers arrive and take the two subjects into custody without further incident.
A search, incidental to arrest, results in removing several weapons from the passengers and the driver. The officers seize a large sum of money and a vast amount of various controlled substances from the vehicle. An interview with the two passengers discloses the plot. While complying with the officer's orders, the driver would try to narrow the distance between them. When he got as close as he could, he would signal the passengers to get out of the vehicle by responding verbally to the officer. The plan was simple: minimize the distance, distract the officer, and then kill him.
This deadly charade plays almost nightly on the streets of America. In this case, the officer was lucky. But, can law enforcement officers always rely on luck to be with them to ensure their safe return home at the end of each shift? The question is not rhetorical. Rather, it reveals an abundantly clear need: officers must prepare for life-threatening events. That preparation involves scenario-based training because, as experienced officers know, the one with the best plan, along with a survival mind-set and a strong will to succeed, usually wins.
The world has changed dramatically since September 11, 2001. Now, more than ever, Americans have to consider the mind-set of the adversaries who have breached this nation’s borders. What are their ideologies? What are they trying to accomplish? What are their motivations? What are they willing to risk or sacrifice? Are this country’s law enforcement organizations willing to meet that level of risk or sacrifice to stop them? The view of law enforcement must change. The profession now must become more insightful, intuitive, and proactive in not only enforcing laws but also in preventing major critical events. This will require using all of the training, knowledge, skills, and abilities that it has acquired, as well as developing new strategies and techniques.
Scenario-based training is an amalgamation of knowledge and skills-based training. It incorporates psychomotor coordination and reinforces a survival mind-set in the student. Just as new officers cannot learn how to use a firearm in a classroom setting without practical shooting exercises on the range, they also cannot know how to handle a hostile, fast-paced situation without training in a realistic, dynamic setting.
Training always should be designed and developed to give officers the skills to successfully complete a task. General training, therefore, can be broad in scope, as in teaching criminal law. Rather than teaching all of the particular ways a specific crime is committed, the more effective means involves teaching the elements that constitute the crime. Then, officers can recognize those factors present in any given situation that show a crime occurred. The goal with scenario-based training is to give officers skills and abilities that they can use in any encounter.
|
Defining training objectives at the beginning actually will lay the foundation of a scenario-based training program. |
|
Sadly, stories abound about officers in the field picking up their shell casings after discharging their firearms or firing two rounds and then immediately returning their weapons to their holsters. Why would officers do these things? Because they practiced that way. This bears witness to the fact that officers in the field will revert to their training, even though it may incorporate hazardous dynamics. With this in mind, officers must develop critical skills and abilities that will transfer into the field when called upon. Officers’ abilities to think, move, and react prove critical to their survival. Likewise, an evaluation mechanism is crucial for measuring the desired skills and abilities and identifying any undesirable actions. The evaluation always should incorporate a critique where students receive an objective, constructive summary of their performance.
The best place to start is at the end. This means listing all of the goals and objectives that students should meet by the end of the training and then working toward them. Defining training objectives at the beginning actually will lay the foundation of a scenario-based training program. Using the traffic stop from the beginning of this article as an example, the officer would have to have a base knowledge of motor vehicle and criminal law, handcuffing and mechanics of arrest, and use of force and the implementation of intermediate and deadly force weapons. The officer also would need to know how to identify warning signs, or “redflag” behavior, and how to properly approach a stopped vehicle. Developing a training scenario with the example given would require establishing some basic objectives.
Officer Safety
The officer stopped his approach when he noticed the furtive movement and red-flag behavior of the vehicle’s passengers. His use of cover and concealment further enhanced his safety. This objective is paramount. Building officer’s cognitive skills, perceptions, and understanding of tactics and safety should become the foundation of any scenario-based training program.
Knowledge of Law
The officer had to have a basis or probable cause for the to test officers’ abilities to discern which charges may apply.
Interpersonal Skills
The officer clearly communicated what he expected or wanted to happen by directing specific commands to the driver and passengers. Communication is critical, not only for conveying directions or commands but also for actively listening for responses. Officers’ abilities to hear and perceive threats and to verbally control and manage the scene constitute major factors. People usually “size up” officers by their abilities to vociferate and take command monitoring of the subjects’ actions and responses to his commands. The bottom line is that officers must have the skills and abilities to physically control or subdue an offender. Unfortunately, many of the methods and techniques employed in physically subduing and controlling a person require frequent practice and numerous repetitions. Handcuffing, for example, can cause problems for some officers. This is a daily activity for them; however, they can fall into bad habits without refresher training to hone their skills.
Subject Control
The officer controlled the
situation through careful monitoring of the subjects’
actions and responses to his
commands. The bottom line
is that officers must have the
skills and abilities to physically
control or subdue an offender.
Unfortunately, many of the
methods and techniques employed
in physically subduing
and controlling a person require
frequent practice and numerous
repetitions. Handcuffing, for
example, can cause problems
for some officers. This is a daily
activity for them; however, they
can fall into bad habits without
refresher training to hone their
skills.
Use of Force
The officer used the appropriate
force necessary to neutralize
the threat posed by the
driver and his passengers.
Knowing what appropriate force
level to use in a given situation
becomes an issue of safety and
liability. The general guideline
is what is deemed reasonable.
Many law enforcement agencies
adhere to the “plus one” theory
of an officer going to the next
higher level of force than that
employed by the offender.
Officer Adaptability
The officer’s ability to shift
from a stationary point of cover
to a tactical concealment in the
darkness allowed him to maintain
control of the situation.
This often comprises a difficult
area to help officers improve in because it deals more with each person’s experiences and cognitive processes. Because scene dynamics rarely are static but more fluid in nature, officers must have the ability to “change gears” as circumstances fluctuate. As the number of variables and stimuli increase, many officers find themselves unable to adapt and, unfortunately, can become more susceptible to violent attacks. Scenario-based training provides an arena for officers to safely practice such encounters.
Policy and Procedures
The officer demonstrated the importance of following his agency’s policies and proce
>dures by using emergency lights, radioing his location, and requesting backup assistance. Such actions usually are intended to protect officers and their agencies from liabilities. In the course of training, a scenario may develop not covered by a policy or procedure. If that occurs, creating one as a guide for officers to use in similar situations in the future can prove helpful.
Investigative Skills
The officer’s subsequent investigation and search after the initial confrontation provided the impetus for the incident. Evaluating this area can ensure that officers are not missing or overlooking valuable evidence not only through their observation skills but also via their abilities to interview and solicit the information needed.
ORGANIZING THE PROGRAM
Personnel Functions
The scenario-based training coordinator oversees the program, selects the facility or site, and prepares it for use. This person establishes the training goals and objectives, schedules the training, and ensures that the facilitators and role players have everything they need to complete the training. The coordinator evaluates student performance, the effectiveness of the facilitators and role players, and the overall value of the training program. If deficiencies occur within the program, the coordinator must reevaluate and develop scenarios that will meet the desired training objectives.
|
One of the first considerations in selecting a training site is identifying safety issues. |
|
Facilitators, who report to the coordinator, control the scenarios and act as safety officers. If they determine that a scenario is becoming too volatile and the probability of an injury exists, then they must stop the training. They make sure that the training site is prepared and the role players understand the scenario’s goals, objectives, and parameters. In addition, they evaluate the performance of the role players and the students, as well as critique the students at the end of each scenario and rate their performances of the established training objectives.
Role players, who report to the facilitators, take on a persona as needed by the scenario and create a realistic training dynamic. They provide hands-on experience for the students and deliver situational aspects within the set parameters of the scenario. At the completion of the scenario, they constructively critique each student’s performance.
Site Preparation
One of the first considerations in selecting a training site is identifying safety issues. Poor lighting, exposed or malfunctioning electrical wires and appliances, loose debris, sharp corners, and other problems should be eliminated. The site should be equipped to meet the training needs. If funds exist, technological advances, such as cameras, monitors, and intercom systems, can help
make the training more efficient.
If the site also is used
for other purposes, scheduling
conflicts may arise, which will
require attention.
Time Allocation
Time, because of its limits, must be managed carefully. Scenario setup time and turnaround time for the next one, which also includes the critique and reset time, must be factored into the program. The time required to execute a scenario will depend on its complexity and the number of variables.
As with all physical training,
breaks must be structured to
limit the amount of downtime.
Evaluation Methods
Evaluations can be completed
in many ways, but they
always must be constructive.
After all, students attend training
to learn and know that they
will make mistakes. Therefore,
critiques and evaluations never
should demean or malign them.
Rather, students need to know
where they performed poorly
and also where they did well.
|
The goal is to develop students
to where they can evaluate their
own performance and learn
from their mistakes.
Each training objective
should be evaluated as it relates
to the specific scenario. The
type of scale is not as important
as the way it is used. Students
should have their own individual
evaluation sheet to track
and document any areas where
they need additional or remedial
training. For example, a form
with a field for each training
objective using a rating scale
of 1 to 5 (1 being poor, 3 being
average, and 5 being outstanding
or excellent) can work well.
It also is important to solicit
feedback from the students as
to their views of the training
program.
PREPARING
THE PARTICIPANTS
Before they can train students,
facilitators and role
players must receive adequate
instruction. Facilitators should
be seasoned law enforcement
officers with experience in
training. Role players can be
law enforcement officers or
civilians. If the agency or training site is near a college or university, the scenario-based
training coordinator may opt to
contact the drama department
and solicit students to perform as role players. The main consideration in using nonlaw enforcement
personnel for training is liability. Dynamic training
involves certain inherent risks
of injury, and role players must
understand this. For civilian role players, a signed liability waiver may prove prudent.
Selecting the facilitators and
role players will require considerable
care as they will be
directly responsible for the success
or failure of the program.
Both must thoroughly understand
the safety issues and limit
their actions to the desired
scenario parameters. The role
players specifically must not
ad lib outside the boundaries of
the scenario. Clearly designed
training objectives for each
scenario will help reinforce the
training concept and ensure
the program’s success.
Obviously, students, especially
entry-level ones, cannot
participate in a scenario without the necessary knowledge, skills, and abilities to successfully
complete the training. Student
preparation is essential for both
the success of a scenario-based
training program and, more important,
for an officer’s survival
in an actual deadly encounter.
Such prior training should
include physical conditioning;
motor vehicle and criminal
law; laws concerning arrests,
searches, and seizures; use
of force; subject control and
mechanics of arrest; defensive
tactics; weapons handling; radio and communication procedures; and crime scene investigation.
DEVELOPING THE SCENARIO
A great deal of consideration must go into the design and development of the scenario. Just as with establishing the training goals and objectives, the best place to start is at the end: what to measure or evaluate at the completion of the scenario. Officer safety issues, use of verbal direction and command, scene control, handcuffing techniques, and weapon handling and safety must appear in the scenario.
|
Determining the scene parameters allows for planning every aspect of the scenario. |
|
The type of scenario could involve a traffic stop with a hostile driver, a domestic battery with an uncooperative victim, or possibly a drunk and disorderly subject who refuses to leave a bar; all can provide endless training situations. Determining the scene parameters allows for planning every aspect of the scenario. This includes role players having guidelines and exhibiting those characteristics that students should respond to by vociferation or physical actions. Role players set the stage of the scenario by establishing facts upon which the students will then have to determine what action, if any, to take.
Scenarios can vary from basic and direct to detailed and elaborate. The important thing to keep in mind is what students should accomplish. The whole purpose of scenario-based training is to subject students to real-life situations in a controlled environment where they can learn. After all, lessons learned on the street often prove much more costly, possibly involving an officer’s life.
FINDING THE RESOURCES
Obviously, a training program will require certain resources. Scenario-based training, however, can employ many of those that agencies already possess. The training area or facility represents a key element because it must allow for the creation of a realistic training environment. One cost-effective possibility is using a mobile home, possibly one seized as part of a drug forfeiture.
Other resources include training props and materials (e.g., household furnishings, training weapons and vehicles, protective clothing, first-aid kits, and two-way radios) and trained personnel. If possible, agencies can allocate a portion of their training funds for a scenario-based program and acquire training props and materials over time. In addition, law enforcement grants can offer an alternative solution to funding issues.
CONCLUSION
In today’s world of terrorism, law enforcement officers face many new threats that their training may not have covered. To counter this, scenario-based training offers realistic situations that officers can use to hone their skills and learn new techniques.
Developing a successful scenario-based training program requires establishing firm training goals and objectives that provide officers with skills they can use to complete their tasks effectively and safely. Creating scenarios that incorporate these goals and objectives can allow officers to practice a variety of enforcement techniques and strategies in a safe environment. Such realistic training will give officers a tactical advantage when they face the rigors of enforcing the law, safeguarding the public they serve, and, most important, protecting themselves from those intent on doing them harm.
Endnote
1 For additional information, see Thomas D. Petrowski, “Use-of-Force Policies and Training” (Parts One and Two), FBI Law Enforcement Bulletin, October 2002, 25-32, and November 2002, 24-32.
Sergeant Lynch presented an excerpt from this article at the Future of Law Enforcement Safety Training in the Face of Terrorism conference detailed in the September 2005 issue of the FBI Law Enforcement Bulletin.
ViCAP AlertMissing Person
|
During the fall of 1995, Mr. Crist Nelson Dauberman, Sr. disappeared from his home in Spotsylvania, Virginia. Mr. Dauberman is
on disability due to post-traumatic stress syndrome.
Since his disappearance, his family has not
heard from him. A National Crime Information
Center (NCIC) search of its unidentified dead database
met with negative results. A financial review
did not reveal any activity on his Veteran’s Administration
account or any of his private accounts.
Description of Victim
| NCIC Missing Person Number: | M373634870 |
| Name: | Crist Nelson Dauberman, Sr. |
| Race: White | Sex: Male |
| Age: | 47 at time of incident |
| Date of Birth: | 09/04/1948 |
| Height: 5’10” | Weight: 213 |
| Hair Color: Brown | Eye Color: Green |
| Tattoo: | “Wendy” on left arm (text) |
| Fingerprint Code: | PI 07 14 13 17 PI 12 12 17 14 |
| Pattern: | WU RS RS RS RS WU LS LS LS LS RS AU WU WU WU |
| Place of Birth: | Lock Haven, PA |
Alert to Law Enforcement
Law enforcement agencies should bring this
information to the attention of all crime analysis
units, officers investigating crimes against persons,
correctional custody units, and missing persons
units. Any agency with information regarding
this missing person may contact either Detective
Greg Carter of the Spotsylvania County Sheriff’s
Office, Spotsylvania, Virginia, at 540-582-7200,
ext. 277, or gcarter@spotsylvania.va.us; or Crime
Analyst Glen W. Wildey, Jr., of the Violent Criminal
Apprehension Program (ViCAP), Federal
Bureau of Investigation, at 703-632-4166 or
gwildeyj@leo.gov.
Gratuities
There is No Free Lunch
By Mike Corley
I have spent the past 30 years in two Texas law enforcement agencies. The first was in a city of about 100,000 where I served 4 years. Then, I moved to Richardson, Texas, a Dallas suburb with a population of approximately 90,000 where I have been since 1980.
The policies regarding gratuities vary in each
law enforcement agency. When I worked in the
first department, gratuities, such as free coffee and
half-price meals, were acceptable—a common
practice for the entire staff. They were not hidden or considered a secret. For the most part, I never hesitated to accept them while I worked there.
The Richardson Police Department (RPD), on
the other hand, is completely different. They do not
allow any gratuities or law enforcement discounts.
The policy in Richardson—a bit of a culture
shock—forced me to make a major adjustment. Therefore, I have arrived at my opinions on gratuities after seeing both sides of the issue firsthand.
The matter of gratuities needs more attention— law enforcement officers face this situation every day, but few written opinions exist devoted primarily to this topic. Gratuities are a sensitive topic that few people want to address. Authors write against the dangers of corruption and its unethical genre. Many officers take a stance against corruption, but taking one against gratuities proves much more difficult.
Investigators want to answer the basic questions of who, what, when, where, why, and how. Who relates to all law enforcement officers and how gratuities apply to them. What are gratuities and corruption. When is past, present, and, especially, the future. Where applies to law enforcement everywhere. Corruption and gratuities concern law enforcement personnel all over the globe, although cultural differences may be a major factor regarding accepting gratuities in other countries. How and why are the hardest questions to answer because no clear cut rules or boundaries exist for them when addressing gratuities.
 Assistant Chief Corley serves in the Richardson, Texas, Police Department. |
Many scholars and practitioners claim that accepting gratuities is a precursor to corruption. While I do not disagree with this point of view, I have other opinions about this theory. In addition, I offer four experts’ definitions of corruption.1 First, M. McMullan stated, “A public official is corrupt if he accepts money or money’s worth for doing something he is under a duty to do anyway, that he is under a duty not to do, or to exercise a legitimate discretion for improper reasons.” Second, H. Cohen and M. Feldberg advised, “Corruption involves accepting goods or services for performing or failing to perform duties which are a normal part of one’s job. What makes a gift a gratuity is the reason it is given; what makes it corruption is the reason it is taken.” Third, J. Kleinig said, “Police officers act corruptly when, in exercising or failing to exercise their authority, they act with the primary intention of furthering private or departmental/divisional advantage.” Finally, H. Goldstein defined it as “the misuse of authority by a police officer in a manner designed to produce personal gain for the officer or for others.” I prefer the first definition, published over 40 years ago. There is no minor corruption—any and all corruption is major.2
Gratuities and Gifts
A gratuity, as it applies to this article, is “something
given without claim or demand.”3 Is something
truly given to an officer in
that context? I define gratuity, as
it relates to law enforcement officers,
as a “perk” of the job, presented
primarily for appreciation
and easily justified by the officer
and the presenter. Conversely,
gratuities and gifts are completely
different, and officers
must understand that distinction.
A gift is “something given voluntarily
without payment in return,
as to show favor toward
someone, honor an occasion, or
make a gesture of assistance; present.”4 One-time
offers of appreciation are considered gifts, such as
an item given to an instructor at the citizen’s police
academy (CPA) graduation banquet. Is it improper
for an officer to accept a token of appreciation
from the CPA students? Or, perhaps a Neighborhood
Watch group gives an officer a coffee mug in
recognition for an outstanding presentation. In
both examples, I believe that the acceptance of
these gifts is proper. Officers can accept the gift—a sincere, one-time token of appreciation—with
reverence and dignity.
|
Gratuities are not flattering to the law enforcement image. |
|
Is there such a thing as a free cup of coffee? Or, do people and businesses expect something in return? Individuals in the private sector probably will say that no such thing as a free cup of coffee or lunch exists. Everybody wants something and nothing is free. This also applies to officers on their jobs. Does the store owner really expect nothing in return for that coffee? Probably not. Sometime, and it might be next week, a year, or maybe even 2 years, that owner will want something. He might not ask for a major act of corruption, but he will probably ask, at the very least, for some type of special treatment. Nothing is free; everything comes with a price, which, for free coffee and halfprice meals, is an officer’s dignity. On the other hand, I believe some people truly want to help the police with nothing expected in return. But, the task of trying to identify them proves too great. Officers should assume that everyone expects something for a gratuity, rather than attempt to identify the honest ones. This is not a pleasant stance to take, but the alternative is far too risky.
The Slippery Slope Theory
E. Delattre suggested that officers
who accept gratuities start
down a road that leads to corruption—
the primary reason that
law enforcement administrators
must take a stand against such
acts.5 Why must we only be concerned with gratuities
if they lead to corruption? Throughout my
research, I found many authors who quoted and
agreed with Delattre’s theory of the slippery slope.
But, what if we discovered that gratuities did not
lead to corruption? Does that mean that accepting
gratuities would be appropriate? We should evaluate
gratuities without the slippery slope theory—
law enforcement should prohibit gratuities because
it is the right thing to do.
Gratuities are not flattering to the law enforcement
image. Officers who accept them lose respect
with the community and for themselves. Years
ago, maybe low pay and morale justified that halfprice
meal. But, today, law enforcement salaries
are high enough for officers to pay their own way.
We should not look for or accept what amounts to
handouts in the eyes of the citizens we serve. Law enforcement agencies should prohibit gratuities
because they do not approve of the practice, not
just because they fear the slippery slope.
|
Gestures of Kindness
By now, many people may incorrectly think
that I am against any gesture of kindness from the
public. Officers must not confuse kindness with
gratuities. The kindness of a person offering officers
coffee while they write a report at a restaurant
table should not be confused with a gratuity. When
people offer lemonade to patrol officers working
radar, should they turn down these gifts? Any officer
would be rude to refuse on the basis of not
wanting a gratuity. Officers should accept these
gifts with sincere appreciation for the giver. The
key remains common sense, which may prove a
major flaw in my argument. Common sense cannot
be taught, but it can be learned by officers watching
observing leaders backed with easy-to-understand
policies.
Potential Complications
Law enforcement agencies often find it hard to
maintain a tight policy against gratuities. And, it
usually proves harder on the officers themselves,
rather than on management. Officers usually are
embarrassed when they decline an offer of a halfprice
meal; it takes a lot of courage. Probably one
of the most difficult aspects of a policy that prohibits
gratuities is not the policy itself, but the problems
officers encounter as they try to do the right
thing.
In the early 1990s, I worked the midnight shift
with the RPD. Most of the officers went to a
24-hour restaurant located in another jurisdiction.
Local law enforcement officers regularly ate there
and accepted offers of a half-price meal. The employees
constantly charged RPD officers half
price, even though we repeatedly said we did not
accept them. When officers tried to pay their bills,
they had to go through a big ordeal to have their
receipts changed to reflect the full price. It caused a constant problem for the officers and myself.
About every 2 months, I met with the night manager
(they often changed) and threatened to ban my
officers from the restaurant. Consequently, some
officers justified taking a half-price meal by leaving
a comparable tip, which I believe is the easy
way out. Most officers did leave the large tip, but
only because they did not want to go through the
hassle of getting the receipt corrected. A gratuity
policy clearly must be understood
by both law enforcement
and the private sector to achieve
success—avoiding the problem
does not solve anything. Further,
even if officers leave a large tip,
technically, they still are accepting
a half-price meal.
|
...policies regarding |
|
In another instance, about 2
years ago, I left the office late,
was still in my uniform, and met
my wife at a restaurant. After our
meal, I looked at the receipt and
noticed the half-price amount. I
talked to the young man who rang up our ticket,
explained our policy on gratuities, and said how
much I appreciated the gesture. For several minutes,
I explained our policy and expressed appreciation
for his action even though I would have to
pay full price. The young man respectfully listened
the entire time I talked. When I finally finished, he
politely informed me that Wednesday night was
half-price night for everyone who buys a sandwich.
He did not give me a law enforcement discount
because every customer received the same service.
Needless to say, I was extremely embarrassed. A
policy against gratuities is much larger than the
policy itself—daily practice is difficult.
Conclusion
Policies regarding gratuities vary throughout
the law enforcement profession. Obviously,
I believe in a policy against gratuities. But, does that mean officers should reject all offers, including
acts of kindness? To the contrary, departments
should take a stance against gratuities, but ensure
that their personnel use common sense. Also, they
should keep in mind that although gratuities can
lead to corruption, that should not be the primary
reason to decline them. Instead, agencies should
adopt policies that reject them because it is the
right and honorable thing to do. I would like to end
with a quote from H. Scott
Kingwill, publisher of Law and
Order, “Police occupy a special
spot in our society; they are
highly visible and represent what
is decent in our way of life. As
representatives of the law, they
must set an example of living by
the law. Accepting petty gratuities,
while seeming to be a
harmless ‘perk’ of the job, actually
takes away a little bit of the
shine of the badge. Through the
years, law enforcement pay
scales have improved. Officers can afford to pay
their way. Pride–in their uniform, department, and
position–a plain, old morality, should dictate that
they do not engage in this petty practice. That free
cup of coffee really is not free. It carries an expensive
price in honor and respect.”
Endnotes
1 All definitions appear in John Kleinig, The Ethics of Policing
(Cambridge, UK: Cambridge University Press, 1996), 165-166.
2Ibid.
3Random House Unabridged Dictionary, s.v. “gratuity,”
retrieved on May 4, 2005, from http://www.infoplease.com/ipd/A0462470.html.
4 Random House Unabridged Dictionary, s.v. “gift,” retrieved
on May 4, 2005, from http://www.infoplease.com/ipd/
A0456844.html.
5 Edwin J. Delattre, Character and Cops: Ethics in Policing,
(Washington, DC: American Enterprise Institute for Public Policy
Research, 1989).
Mark Twain once said, “I can live for 2 months on a good compliment.” Wise managers in today’s law enforcement agencies will adopt this adage as a means for leading employees. When used effectively, praise holds many benefits. Empirical research, social psychology, manager and employee surveys, and motivational experts repeatedly have proven this fact. A law enforcement agency that values and implements this ideology will create an environment that helps to alleviate employee stress, improve morale, increase productivity, and retain personnel.
STRESS IN POLICE WORK
Sources
People commonly consider violence and danger or the potential of such the leading antecedents to stress in police work.
Other perceived main stressors include external, uncontrollable factors, such as protracted periods of low activity interspersed with brief periods of excitement. However, analyses of the officers themselves presented a different picture. One study revealed that they perceived most stress as originating within the workplace. Specifically cited were relationships with supervisors. One officer observed, “The most stressful call is the one that summons you to headquarters.”1
When officers in both the United States and the United Kingdom listed significant causes of stress, they cited poor and insensitive supervision among the most primary sources.2 Additional studies evidencing that management and organizational issues accounted for most workplace stress in the police service have supported these findings. This contradicts the long-held belief that factors external to the law enforcement organization primarily lead to stress.
Consequences
Stress represents a person’s internal response to external stimuli. Typically, stress associated with the rigors of police work is defined as “distress,” which occurs when a person faces challenges beyond regular coping abilities, resulting in taxed biological systems and, in turn, negative mental and physical effects. Some of the key consequences of police stress include—
The police agency also will suffer because of the instances of lower morale, inefficiency, increased absenteeism, and friction with citizens due to rudeness or poor service that ultimately can hurt the department’s public image.
Stress also exacts far-reaching burdens as it not only affects officers and agencies but also harms families of law enforcement personnel. This holds particularly true for their spouses, who often experience unusually high levels of stress due to the police occupation.4
PRAISE REAPPRAISED
|
Sergeant Gove serves with the West Hartford, Connecticut, Police Department. |
Fortunately, unlike many of the external stressors of police work, managers can improve their supervisory skills, and organizations can provide a more supportive environment for their employees. In this regard, praise—although not a panacea for the mental and physical ailments common to police officers—has proven to have many benefits that should bear the attention of today’s progressive police managers.
Societal changes have resulted in police agencies moving away from the paramilitary structure of years past. Today’s more-educated officers hold degrees in a variety of areas. Gone are the days when a majority of police applicants held prior military experience, accustomed to taking orders without question. Agency leaders now utilize coaching and mentoring programs better served to influence desired behavior. This manner of lead-an impact on employee moing requires praise to build self-esteem within the developing officer.
Mental and Physical Health
Ample proof exists that job performance.9 stress has debilitating effects on Unfortunately, some man-health and well-being.
How-agers fail to focus on employee ever, empirical studies also motivation
until morale sinks, have shown that simply using motivation becomes lost,
and, forms of social support, such as ultimately, employees quit.10 praise, within the workplace can A reactive response to morale mitigate the
effects of job stress issues, versus a more proactive on physical and mental health.5 To this end, evidence uncovered a substantial buffering effect whereby social
support acts to cushion the blow and make the perception of stress less severe.
Additionally, studies have found that workers with lower levels of social support within the workplace suffered a higher prevalence of cardiovascular disease in strenuous jobs, such as police work, where high demands mix with low control.6 The implications and benefits of social support are obvious as experts cite cardiovascular disease as the leading killer of Americans.7
Morale, Motivation, and Employee Retention
Praise not only promotes physical and mental well-being but also improves motivation.
A recent survey found that “nearly 100 percent of respondents agree
or strongly agree that giving recognition can make approach, will make the task of improving employee attitudes more difficult
than if supervisors nurture behavior and performance from the start.
© Mark C. Ide
The importance of employee retention represents another issue facing police managers. Limited job praise and recognition rank as primary reasons why employees leave.11 Officers who receive ineffective or no praise more likely will believe that “the grass is greener” in another agency and will have no feelings of loyalty to their current employer. This can result in employee turnover, negatively affecting the department. Ultimately, it will cost the agency in new employment, training, and equipment.
Internal Versus External Awards
Some police officers will claim that in lieu of praise and recognition, they would rather receive rewards in their paychecks. Does this mean that money serves as a stronger motivator? Surveys do not bear this out. In studies dating back to the 1940s, recognition and appreciation always have outranked salaries.12 One recent study of 1,500 employees in various work settings revealed that personalized, instant recognition from managers served as the most powerful motivator of 65 potential incentives evaluated, followed by a letter of praise written by the manager.13
Of course, money would motivate if the employer did not pay a fair salary. However, once basic monetary needs are met, money becomes less important. Money is an extrinsic motiva-tor—once it is given, it will become expected. Eventually, if money is withheld, employees will see this as a punishment and the reinforced behavior will stop. However, praise increases personal esteem that then becomes an intrinsic motivator— even if praise temporarily stops, the stock of personal pride developed will motivate and ensure productivity.
In this regard, Abraham Maslow, a humanistic psychologist, explained motivation as a series of needs. In his scheme, lower-order needs, such as physiological, safety, and love, first must be met. Once these become satisfied, they cease to motivate.14 Fair compensation accords some of these lower-order needs. Higher-order needs, such as self-esteem and self-actualization, then motivate. Praise and recognition build esteem needs. Once satisfied, people seek a state of self-actualization where a desire exists to test their potential. Compensation alone will not build this motivation.
Frederick Herzberg, an organizational theorist, further supports the benefits of praise over money. He saw two variables functioning within the work setting. Salary represents a “hygiene,” or “maintenance,” factor, something that acts as an incentive only to do what is required. If agencies meet all hygiene factors, officers are not motivated—they simply are not dissatisfied.15 Praise and recognition, however, are motivators that impel people to do their best work.16
PRAISE IN THE WORKPLACE
Breaking Down Barriers
In an ideal work setting, praise will come from the top and work down. However,
if managers do not receive praise themselves, they may not know how to give
it. Further, they may feel that because it does not represent part of their
department’s culture, it is not part of their job. Also, supervisors are even more prone to stress due to additional pressures required by their position. They confront the same work environment as
officers, but with additional responsibilities, including facing the consequences for decisions they have made and being caught between the wants and
needs of administrators and subordinates.
Additionally, administering praise properly requires supervisors to publicly talk about feelings. In doing so, they make themselves
vulnerable to others, a condition some may find difficult and intimidating,
particularly in an occupation where, for years, they have hidden emotion
to be effective police officers.17 Many will consider it necessary to learn and then practice giving praise.
All levels of leadership should educate, model, demonstrate, and reinforce recognition and feedback skills.18 Additionally, not only should everyone from the chief down provide recognition but command-level staff should hold supervisors responsible for providing officer recognition. Praise opens lines of communication, which builds trust—leading to motivation. Employees are the product of their environment. Supervisors, especially first-line ones, have the opportunity to make an impact and to create a supportive workplace. Progressive leaders will initiate this environment even if it is not pervasive throughout the agency.
|
…management and organizational issues accounted for most workplace stress in the police service…. |
|
Administering Praise
To have maximum effect, supervisors must give praise correctly. To this end, they can gauge their efforts by six important characteristics.
1) Timely: Praise should immediately follow the laudable behavior and be specific. This will ensure that the individual will know and likely repeat the desired behavior.
2) Appropriate: Supervisors should not give an expression of praise without reason or base it solely on personality. Further, they must consider their relationship with the officer (e.g., for a turbulent relationship, managers must give the praise carefully so that the employee will see it as sincere).3) Given separately: Managers must not correct poor performance when giving praise. Of course, when disciplining an officer, kind words can help cushion the blow. However, supervisors must carefully separate these instances; if not, employees will accept future praise with caution as they steel themselves for the anticipated criticism to follow. They also may suspect insincerity.
4) Administered regularly: Supervisors should praise not only spectacular acts
of courage but daily acts of solid police work on routine calls. A type of
Pygmalion effect, or self-fulfilling prophecy, then will follow. As officers
receive recognition more often for good work, it will build their confidence and help to increase performance.
5) Sincere: As trained observers keenly aware of human
behavior, police officers can detect insincerity and will question the
valid city of contrived praise. Also, managers should not confuse praise with flattery— insincere praise used largely to win favor.
Praise must be honest, straightforward, and spoken from the heart.
|
Ample proof exists that stress has debilitating effects on health and well-being. |
|
6) Public or private: Supervisors usually should give praise publicly. This can build esteem and encourage others to strive for similar recognition. However, managers must proceed with caution as some people truly dislike public attention and may prefer praise in private. The type of recognition must match the personality. For instance, if during public praise an individual appears uncomfortable, agitated, or defensive, a change to private recognition likely will elicit a different response.
Methods of Delivery
Face-to-face, spontaneous praise represents the easiest and, more important, the most desired form. Administering it in the presence of upper-level managers can help to bolster the purpose of recognizing the behavior. Supervisors also can give written recognition. For an officer who may prefer private praise, department e-mail and voice mail systems offer less intrusive means of communication. Supervisors also can consider less spontaneous, more formal ways to recognize officers using departmental resources. These include—
CONCLUSION
Common
sense should deem a quick pat on the back for a job well done not only deserved
but necessary. Studies and surveys have proven the results of such reinforcing
behavior stronger than once believed. Social support in the form of recognition
and praise serves to increase morale, motivation, and productivity. Consequently,
the physical and mental health of employees improve and organizations are better
served and run more efficiently.
Police work
represents a stressful, difficult, and, at most times, unforgiving occupation.
Managers need to recognize officers for their commitment to service and show
them their value to the agency. Praise delivers this message and costs nothing
but compassion. Effective police leaders will value and demonstrate this ideology.
Endnotes
1 Hans Toch, “Stress in Policing”; retrieved from http://www.ncjrs.org/pdffiles1/nij/grants/198030.pdf.
2 J. Brown and E. Campbell, “Sources of Occupational Stress in the Police,” Work and Stress 4 (1990): 305-318.
3 U.S. Department of Justice, National Institute of Justice, “On-the-Job Stress in Policing – Reducing It, Preventing It,” National Institute of Justice Journal (Washington, DC, January 2000).
4 Leanor Boulin-Johnson, “On the Front Lines: Police Stress and Family Well-Being,” Select Committee on Children, Youth, and Families, U.S. House of Representatives, Washington, DC, May 20, 1991.
5James LaRocco, James House, and John French, Jr., “Social Support, Occupational Stress, and Health,” Journal of Health and Social Behavior 21 (September 1980): 202-218.
6 Jeffrey Johnson and Ellen Hall, “Job Strain, Workplace Social Support, and Cardiovascular Disease: A Cross-Sectional Study of a Random Sample of the Swedish Working Population,” American Journal of Public Health 78, no. 10 (1988): 1336-1342.
7 American Heart Association, Heart Disease and Stroke Statistics – 2004 Update (Dallas, TX: American Heart Association, 2003).
8 Roy Saunderson, “Survey Findings of the Effectiveness of Employee Recognition in the Public Sector,” Public Personnel Management 33, no. 3 (2004): 255-275.
9 Christopher P. Earley, “Trust, Perceived Importance of Praise and Criticism, and Work Performance: An Examination of Feedback in the U.S. and England,” Journal of Management 12, no. 4 (1986): 457-473.
10 Bob Nelson, “The Ten Ironies of Motivation,” Strategy and Leadership 27 (January-February 1999): 26-31.
11 Bob Nelson, “Dump the Cash, Load On the Praise,” Personnel Journal 75, no. 7 (1996): 65-70.
12 Ibid.
13 Ibid.
14 Charles Swanson, Leonard Territo, and Robert Taylor, Police Administration: Structures, Processes, and Behavior (Upper Saddle River, NJ: Prentice Hall, 2001).
15 Ibid.
16 Supra note 11.
17 Linda Davidson, “The Power of Personal Recognition,” Workforce 78, no. 7 (1999): 44-49.
18 Supra note 9.
The Bulletin staff is always on the lookout for dynamic, law enforcement-related photos for possible publication in the magazine. We are interested in photos that visually depict the many aspects of the law enforcement professions and illustrate the various tasks law enforcement personnel perform. We can use either black-and-white glossy or color prints or slides, although we prefer prints (5x7 or 8x10). We will give appropriate credit to photographers when their work appears in the magazine. Contributors should send duplicate, not original, prints as we do not accept responsibility for damaged or lost prints. Send photographs to: Art Director |
| Bulletin Reports is an edited collection of criminal justice studies, reports, and project findings. Send your material for consideration to: FBI Law Enforcement Bulletin, Room 201, Madison Building, FBI Academy, Quantico, VA 22135. (NOTE: The material in this sectin is intended to be strictly an information source and should not be considered an endorsement by the FBI for any product or service.) |
Corrections
The Bureau of Justice Statistics presents HIV in Prisons and
Jails, 2002. This annual bulletin provides the number of HIV-positive
and active AIDS cases among state and federal prisoners at yearend
2002. It features the number of AIDS-related deaths in prisons, a
profile of those inmates who died, the number of female and male
prisoners with AIDS, and a comparison of AIDS rates for the general
and prisoner populations. Based on the 2002 Survey of Inmates in
Local Jails, the report contains estimates of HIV infection among jail
inmates by age, gender, race, education, marital status, current offense,
and selected risk factors, such as prior drug use. It also includes
information on AIDS-related deaths among jail inmates. Highlights
include the following: between 1998 and 2002, the number of HIVpositive
prisoners decreased about 7 percent, while the overall prison
population grew almost 11 percent; at year-end 2002, 3 percent of all
female state prison inmates were HIV positive, compared to 1.9
percent of males; and in 2002, the overall
rate of confirmed AIDS among prisoners (.48 percent) was nearly 3.5 times the
rate in the U.S. general population (.14 percent). This publication is available
online at http://www.ojp.usdoj.gov/bjs/abstract/hivpj02.htm or by contacting
the National Criminal Justice Reference Service at 800-
851-3420.
Sexual Offenses
The Office of Community Oriented Policing
Services (COPS) presents Illicit Sexual
Activity in Public Places, which describes the
problem of illicit public sexual activity and the
factors that contribute to it, including participants,
locations, motivations, and transactions.
This guide also poses a number of questions to
help understand the issue and identifies numerous
responses to the problem and ways to measure
their effectiveness. This report is available
online at http://www.cops.usdoj.gov/mime/
open.pdf?Item=1460.
Forensics
Census of Publicly Funded Forensic Crime Laboratories, 2002
reports on the organization, functions, budget and expenditures, staffing,
workload, and forensic backlog in the nation’s more than 350
publicly funded crime laboratories. Additional topics include contracting
with external labs, quality control, training, and research conducted
by public forensic laboratories. This publication compliments earlier
data collections and statistical reports from the Bureau of Justice Statistics
documenting similar issues in forensic DNA laboratories. Highlights include
the following: 91 percent of outsourced requests were DNA-related, including
nearly 13,000 casework requests and 205,000 convicted offender samples in
the Combined DNA Index System (CODIS); a typical laboratory in 2002 started
the year with a backlog of about 390 requests, received 4,900 additional
ones, and completed 4,600; and 41 percent of publicly funded laboratories
in 2002 reported outsourcing one or more types of forensic services to private
labs. This report is available online at http://www.ojp.usdoj.gov/bjs/abstract/cpffc102.htm
or by calling the National Criminal Justice Reference Service at 800-851-3420.
Violence
The National Institute of Justice (NIJ) presents
Reducing Gun Violence: Operation Ceasefire in
Los Angeles, which highlights the recent effort—
based on Boston’s successful program—that
focused on an area of the city experiencing high
rates of gun violence and homicide. Researchers
joined with federal, state, and local authorities and
community groups to design an intervention targeting
gangs involved in the violence. These efforts
included prevention services and intensive law enforcement
to deter gun crime. Participants also promoted
the message that all gang members would be
held accountable if any one of them engaged in
violence. Results were mixed, partly because events
precipitated the intervention before the services
component was ready. This NIJ report describes the
program and how government agencies, community
groups, and researchers can form lasting partnerships
to address violence. This report is available
online at http://www.ojp.usdoj.gov/nij/pubs-sum/
192378.htm or by contacting the National Criminal
Justice Reference Service at 800-851-3420.
By Martin J. King, J.D.
In virtually every instance
where a person’s constitutional
rights were violated
by a police officer, a plaintiff
will be able to point to something
the employing entity—
county or municipality—
could have done to prevent
the unfortunate incident. Frequently,
where the alleged
violation of rights is caused by
the use of force by a police
officer, the injured party will
attempt to hold the county or
municipality responsible by
asserting that the harm caused
could have been avoided by
a more adequate training program. This article addresses
the issue of county or municipal
liability under the federal
statute Title 42, United States
Code, Section 1983 (hereinafter
Section 1983), which
permits individuals to hold
government employees and, in
some cases, their employers
accountable for violation of
rights secured by the U.S.
Constitution.1 In particular, this
article explores the contours of
employer liability for claims
that the constitutional violation
was caused by a failure to
adequately or properly train
employees.
In resolving the issue of
liability for failure to train,
focus is placed on the adequacy
of the training program
in relation to the tasks particular
officers must perform.
However, it is not enough to
merely show that a situation
will arise and that an officer
taking the wrong course of
action in that instance will
result in injuries to citizens.
Even adequately trained officers
occasionally make mistakes; the
fact that they do says little about
the training program or the legal
basis for holding a city or
county liable for that mistake. A city or county will not be
liable simply because it employed
the officer whose actions
resulted in a deprivation of a
citizen’s constitutional rights.
Rather, a plaintiff must establish
that government policymakers
either were or should
have been aware that a training
program was inadequate and did
little or nothing about the problem.
Which is to say, policymakers
were deliberately indifferent
to the harm that would
likely result from the failure to
train.2
|
Special Agent King is a legal instructor at the FBI Academy. |
“Deliberate indifference” is
a standard of fault that requires
a showing that government
policy makers acted with conscious
disregard for the obvious
consequences of their actions.3
A pattern of constitutional violations
by officers may indicate
that a lack of proper training,
rather than a one-time negligent
administration of the training
program or factors peculiar to
the officer involved in a single
incident, is responsible for the
plaintiff’s injury.4 If a training
program does not prevent constitutional
violations and a
pattern of injuries develops,
officials charged with the
responsibility of formulating
policy for the agency may be
put on notice that a new program
is needed and a failure
to address the problem may
constitute deliberate indifference.5 In the absence of a
pattern of violations, deliberate indifference may be inferred
from the policy makers’ continued
adherence to a training
program that they knew or
should have known would fail
to prevent violations in usual or
recurring situations.6 In such
cases, the constitutional violation
must be a highly predictable
or plainly obvious consequence
of the failure to train.
A training program must be
quite deficient for the deliberate
indifference standard to be met.
To hold the city or county
liable, a plaintiff must show
that the level of training was so
deficient that it fell below what
is constitutionally acceptable.
Liability does not attach where
an otherwise adequate training
program has occasionally been
negligently administered. Neither
will it suffice to prove that
an injury or accident could have
been avoided if an officer had
received better or more training
sufficient to equip the officer to avoid the particular injurycausing
conduct.7 The fact that
training was imperfect or not in
the precise form that a plaintiff
would prefer is insufficient to
make a showing of deliberate
indifference.8 Such secondguessing
could be made about
almost any encounter resulting
in injury.
While a city or county may
be exposed to liability only
when it deliberately ignores
the obvious consequences of
the inadequacies of its training
program, there is no neat set
of rules that permits a city or
county to determine with precision
when a consequence
will be deemed obvious. Predicting
how a hypothetically
well-trained officer would act
under a specific set of circumstances
is no easy task, particularly
because matters of
individual judgement may be
involved. Nevertheless, one
guiding principle is that by choosing the deliberate indifference
standard of liability for
Section 1983 claims, the U.S.
Supreme Court has made it
difficult for individuals to hold
city and county governments
liable for violations of rights
secured by the U.S. Constitution
based on an alleged failure to
train.
Employer Liability
Under Section 1983
In Monell v. Department of
Social Services of City of New
York, the U.S. Supreme Court
established the fundamental
principle in the law of municipal
liability under Section 1983
that local governments may be
held liable only for their own
conduct and not merely for the
conduct of their employees.9
That is, the government entity
is not vicariously liable for the
actions of its police officers
simply because it employed the
officer and the harm was caused
while the officer was acting
within the scope of his or her
employment. Instead, liability
only attaches to the county or
city for injury caused by actions
or omissions attributable to the
government itself.10 Government
(as opposed to individual)
liability under Section 1983 is
restricted only to those cases in
which “the action that is alleged
to be unconstitutional implements
or executes a policy statement,
ordinance, regulation, or
decision officially adopted or promulgated by that body’s
officers.”11 Government
by way of its policy, in
to the individual employee’s
conduct that directly resulted
the harm, must be identified
causing a violation of a recognized
constitutional right.12
A plaintiff seeking to
city or county government
under Section 1983 must establish
a causal connection between
the injury and a government
policy or custom.13
|
...a plaintiff must |
|
Locating a policy ensures that
liability attaches only for those
deprivations of constitutional
rights resulting from the decisions
of its duly constituted
legislative body or of those
officials whose acts may fairly
be said to be those of the government
itself.14 City or county
government liability under
Section 1983 attaches “where—
and only where—a deliberate
choice to follow a course of
action is made from among various alternatives by
official or officials responsible
for establishing final policy
with respect to the subject
matter in question.”15 The
assessment of what official
possesses final authority
establish policy is determined
by state law. The discretionary
decisions of lesser officials
not be imputed to the agency
actionable policy.16
Identification of a "Policy
Generally, three possible
avenues are open to plaintiffs to
show the existence of a “policy”
that allegedly caused a constitutional
violation.
1) An express written policy
or an actual directive from a policy-making official that,
when enforced, causes a
constitutional violation—in
short, an unconstitutional
policy. Where a plaintiff can
demonstrate that an existing
policy is itself unconstitutional
when applied as
intended or that a specific
action taken or directed by
the government itself violated
a citizen’s constitutional
rights, resolving the
issues of fault and causation
is relatively straight forward.
In these cases, there is
clear governmental action
that can be attributed as
the cause, or moving force,
behind the injury of which
the plaintiff complains.17 A
policy also can be inferred even from a single decision
made by the highest official
responsible for setting
policy within that area of
a government’s business.18
2) Widespread conduct that results in violations of constitutional rights, although not authorized by any written law or policy, that is so permanent and well-settled as to constitute a custom or practice with the force of law may serve as the functional equivalent of a written policy.19 Essentially, a practice of condoning constitutional violations must be established. Because a custom or practice must be established, evidence of only a single alleged incident, particularly if it involved only actors below policy-making level, will typically not be sufficient.
3) An inadequate written policy or a practice that is not unconstitutional itself but which reflects deliberate indifference to persons’ constitutional rights because the deficiency causes officers to violate constitutional rights.20 This is often difficult for plaintiffs to establish because the deprivation of rights is allegedly caused not by affirmatively unconstitutional acts attributable to the government but by omissions or failure to take adequate steps to safeguard constitutional rights.21 Most failure-to-train cases fall into this category. Few training programs are unconstitutional when applied as intended. For example, a county or municipality will rarely have an express written or oral policy permitting the excessive use of force. Thus, for liability to attach, it is necessary to establish the existence of a custom or practice—a policy—that permitted excessive force occur by demonstrating the municipality deliberately failed to adequately train police officers in a relevant respect.22
"Deliberate Indifference" as "Policy"
In City of Canton v.
Harris,23 the U.S. Supreme
Court established deliberate indifference as the standard
required to show the existence
of a policy or custom when a
constitutional violation allegedly
results from a failure to
train. The Court described this
standard as follows:
Only where a failure to train
reflects a “deliberate” or
“conscious” choice by a
municipality—a “policy” as
defined by our prior cases—
can a city be liable for such
failure under Section 1983.
Monell’s rule that a city is
not liable under Section
1983 unless a municipal
policy causes a
