Most departments do not keep firearms "qualification" scores, opting instead for a pass/fail system. They reason that it's better if plaintiffs don't have access to the written history of marginal performers for possible use in a lawsuit.

This sounds like good risk management advice, but it's not. Here's why.

Trainers have an obligation to help manage the risk faced by officers in their department, as well as the risk faced by the department itself. The two primary types of risk faced by officers and departments are risk to officer safety and risk of litigation. Decisions made regarding what type of training to do and what records to keep are often geared toward the negative motivator of liability avoidance, when they should be focused on the positive motivator of enhanced officer safety.

However, assuming for a moment that we want to reduce liability, does failing to keep scores really do this? Probably not.

When we shoot someone, it's either intentional or its not. If it is intentional, we could be looking at a federal lawsuit for excessive force under the Fourth Amendment to the U.S. Constitution. If it's not, then we're probably looking at a claim in state court for something akin to gross negligence. Gross negligence is a very high standard for a plaintiff to reach; they have to essentially show that you were so reckless that you took virtually no care in trying to avoid the inadvertent injury.

Your officers' scores on the firing range are all about whether they can hit what they aim at. If we shoot at a bad guy, and miss—hitting an uninvolved person—that wasn't intentional.

Most liability stemming from a use-of-force incident will arise from the decision making that goes into the use of force, i.e. when to shoot and who to shoot, not how to shoot. How we scored on a paper target has little relevance to that.

So the scores that we keep in order to measure an officer's mechanical ability to function a weapon will have little relevance in a plaintiff's case regarding an officer's decision to shoot. If you ask attorneys that you know if they've ever heard of a case where officers' scores were really relevant to their proofs, they will tell you that they have not. Again, it sounds like good risk management advice when someone says that you should throw away the scores, but it's not.

And this misguided policy might be creating problems for ourselves in our effort to reduce liability. Departments have an obligation to properly manage activities that could give rise to constitutional violations and part of that management obligation is to train and then supervise the use of force. This probably means that there should be an effort in place to improve the performance of those officers who struggle to meet a standard. So when we have officers who barely meet the pass/fail standard, and we either do not have a program in place to assist them with the improvement of their skills, or we don't have good documentation of that improvement effort, we could easily face a federal claim of deliberate indifference under the 14th Amendment's Due Process clause.

In this discussion of liability reduction efforts, we have not talked about officer safety very much. Improving officers' skills with weapons goes directly to the obligation we have as trainers to enhance our officers' abilities to manage conflict in a safe manner. We need to provide performance improvement plans for them; otherwise we're not fulfilling our obligations as trainers. In order to do that, we probably need to keep scores so that we can track performance.

The whole idea that we will be able to, somehow, keep information from plaintiff's regarding how poorly an officer did in training is unlikely anyway. Although it may rarely happen, if a plaintiff's attorney wants the information, he or she will get it.

And consider how few incidents we're talking about. First, we're only talking about a few of your officers. Then, only a miniscule percentage of them will actually shoot someone. Now, consider that only a few of those incidents will be of the type where the officer hits an innocent party. And even more goes into this equation. The injured party has to decide to sue (which is likely), and then his or her suit has to survive a Motion for Summary Judgment, which is difficult. Finally, the case has to make its way through a lengthy pre-trial process. Eventually, a very small number of these cases will end up in court, and that's where—maybe—the data on shooting scores could be used.

Why would we pass up the much-needed opportunity to help our officers who have performance problems and to enhance the overall safety of our departments in order to defend against something that is so unlikely to happen?

As a former risk manager, I strongly believe that we should be tracking scores and developing sound performance improvement programs for our officers. That will keep them safer. And the safer they work, the less liability our departments will face.

Isn't that what being a trainer is all about?

 

Author

Steve Ashley
Steve Ashley

Steve Ashley

Steve Ashley served 15 years as a sworn law enforcement officer and has 22 years of experience in police training.

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Steve Ashley served 15 years as a sworn law enforcement officer and has 22 years of experience in police training.

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