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Will I Get Sued?

November 01, 2007  |  by John A. Makholm

So, how do you deal with that issue? Well, first go back and read the above. Now, assuming that you had probable cause or arguable probable cause, then you had a right to use force. Therefore, if you have studied your use-of-force principles and matrix for your jurisdiction and know what use of force is appropriate under what circumstances, you should be in good shape for any lawsuit. You just need to be able to articulate why you used the force you did and how you used it. This of course leads us to that old bugaboo Report Writing.

I am sure that your academy has emphasized report writing in your training, and I hope you had an instructor who made it interesting to you because you're going to be writing a lot of reports in your career, so you better get used to the idea.

My tip for you is that you shouldn't just write adequate reports. Make them thorough and articulate. Here's why: Three or four years after the arrest, when the lawsuit is being filed you will probably not remember much about what took place and neither will anyone else, except the plaintiff (the person suing you).

The plaintiff will remember everything that happened and in great detail. Of course, his version of the events will probably be a magical mystery tour, but he will swear that his account is exactly what happened and the truth. As Mark Twain once wrote: "The reason why truth is so much stranger than fiction is that there is no requirement for it to be consistent."

This is why it is important for you to document the truth in your reports in such a way that years later both you and everyone else who reads your report will know exactly what happened and why. I know this means writing more than you might feel like at the end of a 12-hour shift but, believe me, it will someday save your butt in a civil suit. And even if you don't get sued, a great report certainly won't hurt your criminal case.

An Out-of-Body Experience

I tell my clients and the other officers that I meet to have an out-of-body experience when they are making an arrest, using force, or taking other actions that may result in a lawsuit.

This means that you should look at what you are doing or about to do, not from your eyes in the moment, but from the eyes of someone outside your body who is watching what you are doing. Think about how your actions will look years from today in a sterile courtroom filled with non-police officers who don't know any more about police work than what they see on television. If you follow this rule during your career, I bet you will discover that sometimes you are getting ready to do something that is not really a good idea.

I recall a member of a police academy class asking me if I didn't think it stinks that "all these people are videoing officers?" I asked this recruit why he cared. He went on to point to things like the Rodney King arrest, as proof of how hard it is on officers now with all "these people" having video cameras.

First of all, all of us are also "these people" and, within reason, we all have the right to video whatever we see on the street. A little thing called the Constitution guarantees us certain rights.

Secondly, why would you care? If you conduct yourself at all times like everything you are saying and doing is being captured on video and audio, why would it matter to you? On the other hand, if you are doing things wrong, I can certainly understand why you would not want that memorialized forever on reruns of "COPS" or, worse, in a courtroom.

CONTINUED: Will I Get Sued? «   Page 3 of 4   »

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