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Policy v. Custom / Operational Policy & Failure to Have a Policy
By Jack Ryan, J.D., with contributions by Lou Reiter

Article Set: 2 of 4
Series: Sexual Misconduct, Sexual Harassment and Sexual Discrimination

Weekly Article distributed to subscribers of the free PATC E-Newsletter

Download a Printable Version of this article Here            Adobe PDF required

Policy v. Custom/Operational Policy

Most police agencies around the United States have made great efforts in developing policies and procedures for their departments.  The most important policies and procedures are those that impact “high risk/ critical tasks.”  High risk/ critical tasks are those recurring police operations that expose the police agency to liability.   While most agencies have formal policies that are consistent with the clearly established law and generally accepted police practices, many agencies operations do not coincide with their formal written policy. The agencies operate instead on customs/practices or “operational policies” that may not be consistent with the law or generally accepted police practices.  In some case, agencies simply have no formal policy on a particular issue, in which case a court will look to evidence of a custom or practice which has the force of policy with respect to liability.i

Garrett began with a tail light violation and an attempted traffic stop.  The officer also suspected DUI.  The driver of the vehicle fled leading to a 45 minute pursuit. The pursuit ended when the suspect vehicle driven by Eric Irby was forced off the road into a ditch.  As an officer tried to apprehend Irby, a struggle ensued.  The officer struck Irby over the head with his gun, but Irby was able to escape across a field with the officers now in foot pursuit.  The officers finally apprehended Irby by “striking him [repeatedly] with a baton or flashlight,”  forcing him to the ground, handcuffing him in front of his body, pepper spraying Irby, and pinning him to the ground by officers kneeling on his back.  A call was put over the radio for leg restraints and an officer responded and hog-tied Irby.  Irby was then placed in the roadway behind a running police cruiser.  When paramedics arrived they found that Irby was “distressed” and asked that the hog-tie be removed.  Irby was taken to the hospital where he was pronounced dead, with the cause of death listed as: “positional asphyxia (hog-tie restraint).”
In analyzing the case, the Unified Government asserted that they had no policy of hog-tying individuals and thus, could not be held liable as an agency.  The Unified Government offered proof that the officer had purchased the hog-tie on his own and had been self-trained in its use.  In rejecting this lack of policy defense, the court found “that plaintiff has presented sufficient evidence to show that the Unified Government had a widespread custom of using the hog-tie restraint on suspects.  For instance, the officers in the case testified in their depositions that they had regularly observed officers employ the hog-tie or hobble restraint in the field. Moreover, on the night of the incident with Irby, Sergeant Nash sent a call out over the police radio for restraints, and both Officers McGee and Eckert responded by bringing hobble or hog-tie cords to the scene, further indicating the hog-tie restraint was frequently used by officers.  The court went on to conclude that agency liability could not rest on an unconstitutional policy because although the plaintiff had proved a policy of hog-tying, they had not proved a policy of unconstitutional hog-tying sufficient to put the agency on notice.
This conclusion did not take the agency off the liability hook.  The court went on to examine the agency’s training on hog-ties.  Obviously, since the agency had a custom or operational policy of hog-tying, they had an obligation to train for this critical task.  In order to prove a failure to train, a plaintiff must prove:
 “(1) the municipality’s training program is inadequate to the tasks that the officer must perform, (2) the inadequacy is the result of the municipality’s ‘deliberate indifference,’ and (3) the inadequacy is ‘closely related to’ or ‘actually caused’ the injuryii

The court concluded that the plaintiff had met the burden to avoid summary judgment on the failure to train claim.  The court looked at evidence presented by the plaintiff concerning police literature and studies on hog-ties and their use.  In addition, testimony from the chief indicated that he had issued an order a few days prior to the incident telling supervisors to stop the practice of hog-tying.   The court found that restraining combative suspects is a recurring police task that requires training.  Having noted that the agency was on notice that officers were using the hog-tie technique, the agency had an obligation to train its officers for this high-risk task.  The court concluded that had the officers who dealt with Irby been properly trained in the dangers of positional asphyxia and hog-tying, they either would not have hog-tied Irby or they would have taken appropriate steps to avoid positional asphyxia.

In 2004, the United States Court of Appeal for the 11th Circuit overturned the trial court’s decision in Garrett.

Failure to Have a Policy

Over the years there have been some law enforcement legal advisors that have taken the position that the less policy an agency has, the less there is for a plaintiff to use to try to hold the agency accountable.  In the current state of civil rights litigation, an agency’s failure to have policies covering high-risk/critical tasks may be viewed as evidence that the agency is deliberately indifferent to the rights of citizens.

Solis v. City of Columbus,iii  provides an example of potential agency liability for the failure to have a policy in place that will protect the rights of citizens in their homes.  Solis involved the execution of a search warrant by a SWAT team following an investigation conducted by Detective Cox. 

Detective Cox was working with an informant who provided information regarding the whereabouts of stolen goods taken in several home invasions.  According to the informant, the suspect, Walker, was storing some of the stolen goods in his home located at 123 Avondale Ave. in Columbus and was storing some of the stolen goods at the home of a friend who lived in a house directly behind Walker’s.  The informant did not know the address of Walker’s friend’s house and the detectives did not want to drive by to get the address for fear of spooking the suspect. Prior to getting a warrant, the SWAT team scouted the location and informed Detective Cox, that the house described by the informant was located at 120 Avondale Ave. The informant had told the detective that Walker always carried a Ruger handgun thus, leading to the decision to use the SWAT team.
On the day the search warrant was executed, Detective Cox observed the SWAT team lined up and realized they may have the wrong house.  The SWAT team conducted a dynamic entry in executing the no-knock search warrant, complete with a flash-bang.  Carmen Solis, age 12 was home with her mom, Nicole Solis, who was 8 ½ months pregnant.  It was alleged that the officers “held guns to Nicole and Carmen Solis’s heads, forced them to the ground, handcuffed them, and subjected them to verbal abuse.   The mother and daughter were kept in handcuffs for 45 minutes. 

In analyzing the claims against the city, the court rejected the plaintiffs’ contention that the City is constitutionally required to have a policy that demands, in all instances, personal visual verification of a search warrant address by the officer in charge of an investigation.  The current written policy regarding verification of search warrant addresses requires a supervisor to review a search warrant prior to its submission to the court to ‘insure the location listed on the warrant is correct’”  The court then went on to assert that this was not simply a run of the mill search warrant execution.  This was a no-knock warrant utilizing a SWAT team, the most intrusive type of home entry that police conduct.  The court continued: “The City clearly was on notice that officers going to the wrong address is a recurring problem in the execution of search warrants, particularly no-knock search warrants.”  The court cited cases and other publication of police executing no-knock warrants at wrong locations. 

The court concluded: “When such an important right is at issue as the right to be secure in one’s home from an unannounced, forcible official entry and search, and when there is such a potential for mistakes—mistakes, as illustrated above, that so readily can have tragic consequences—then a municipality is required to exercise more than usual care.”  Thus, in the case of no-knock warrants, the city should have a policy in place to ensure that the police are entering the correct address, “the court has no problem in concluding that a jury could find the City to have been deliberately indifferent to the rights of its inhabitants by failing to have such a policy.”

The court’s conclusion distinguishes no-knock warrants from all others and determined that a city, town or county could be liable for failing to have a policy in place that ensures that the police are entering the correct address. 


Citations:


i See, Garrett v. Unified Government of Athens-Clarke County, 246 F.Supp. 2d 1262 (M.D. of Georgia 2003).

ii Garrett v. Unified Government of Athens-Clarke County, 246 F.Supp. 2d 1262 (M.D. of Georgia 2003).

iii Solis v. City of Columbus, 319 F.Supp. 2d 797 (S.D. Ohio 2004).


About the Authors:

John “Jack” Ryan is an attorney in Rhode Island, and a graduate Juris Doctorate, Cum Laude from Suffolk University Law School. Jack also has 20 years police experience as a police officer with the Providence Police Department, Providence, RI. His law degree and experience as a police officer provides a unique perspective of legal and liability issues in Law Enforcement.

Jack is a former adjunct faculty member at Salve Regina University and lectures frequently throughout the United States.

Lou Reiter currently is a police consultant, and a retired Deputy Chief of Police for the Los Angeles Police Department.

Lou provides many services to the law enforcement community, including: consultations to attorney firms involved in police civil actions, agency management audits and liability assessments for state, county and municipal police operations, and training to police groups in the high liability areas of use of force, emergency vehicle operations, high risk operations, investigations of citizen complaints, Internal Affairs procedures, investigation of critical incidents, and liability management.


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