Introduction

The possibility of civil suits being filed against a police department is a fear that all police chiefs, administrators and officers have. Such cases often have a high profile in the news and can be very costly for a department, whether they settle, win or lose the suit. Two charges that law enforcement organizations often face are negligent selection and negligent retention. I will approach this problem from the perspective of a police chief who has just lost two major lawsuits for these two charges. I will suggest factors to be included in a program that will outline how officers should be selected for duty, as well as pay special attention to suggested ways in which to prevent officers from becoming disciplinary problems in the first place.

Specification of the Problem

Government agencies may be sued and held liable under state tort law or 42 U.S.C. 1983. In a typical 1983 action against a city or agency, the plaintiff makes the following allegations: (1) that there is or was a policy; (2) that the policy was promulgated by the city or by the agency’s policymaker; (3) that the policy caused the injury to the plaintiff; and (4) that the injury constituted a violation of plaintiff’s constitutional rights. Local agencies once enjoyed sovereign immunity in 1983 cases, but in 1978 (in Monell v. Department of Social Services, 1978) the Court decided that local agencies could be held liable under 1983 for what their employees do, thus depriving local governments of the sovereign immunity barrier (Cordner and Kenney 83). Negligent selection or appointment and negligent retention are two areas in which agencies can be sued.

Review of the Literature and Recommendations

Hiring an individual to be a police officer is different from hiring someone for any other career. A police officer has both great power and great responsibility, and not everyone is fit to fill such a role. Therefore, special and strict attention must be given to the process of hiring someone to be a police officer. Negligent selection or appointment of an unfit officer is the first theory of vicarious liability. A chief of police has the duty to conduct a thorough background investigation on all police applicants, and to pass over or recommend against those who have demonstrated propensities toward violence, untruthfulness, discrimination or other adverse characteristics (Schmidt 1976; Territo 4-5). Education should be one of the first factors that are examined.

In 1992, only 6 percent of all local police departments and 18 percent of state departments required “some” college education (U.S. Department of Justice, 1992: 5). In 2001, the NIJ gave thee number of 14% of departments requiring more than a high school education (NIJ website). It should be required criteria that all new hires have at least a four-year degree. The process of obtaining a four-year degree requires a considerable amount of dedication, concentration and responsibility on the student’s part. These are all qualities that a police officer must possess, and the years spent at a college or university obtaining a degree will assure that the individual has some familiarity with the concepts. Directly stemming from this is the knowledge that a person will have after obtaining a degree. They will have the specified knowledge of their particular major, be it criminology, sociology, psychology or another. They will also have a more general knowledge obtained from taking classes outside of their major, subjects they may not have studied otherwise. A police officer needs to be focused on his duties, but they also need to have a certain broad-mindedness about them. One can never be sure what one will encounter over the course of a day--- this is doubly true for a police officer. Also closely related to the benefits of a liberal education is the amount of diverse people that one meets while studying. One may be familiar to interacting with people of a similar ethnic group, of similar interests and points of view, but a college or university is usually a melting pot for diverse people and ideas. Respect and familiarity with various people and their behaviors are qualities a police officer must have.

Of course, it is quite possible that an applicant may have all the qualities already mentioned, without ever attending a day of continuing education. However, if a civil suit is filed for negligent attention, it will look good in court to be able to truthfully repeat the department’s policy that all new hires must have at least a four-year degree to be considered for appointment. It is note-worthy phenomenon that professionalism increases with an expansion in preservice education (Sherman & National Advisory Commission on Higher Education for Police Officers, 1978; Palombo, 1995; Charles, 20), and it is one that all police chiefs and administrators should act upon.

Other requirements that a law enforcement applicant should meet are rather obvious ones, but are important enough to be mentioned. An applicant should have no history of criminal or other behavior problems. University, training school and even high school principals, counselors and teachers should be contacted by hiring personnel to determine if the applicant has ever displayed behaviors which would be considered problematic. All information that the applicant gives on his application should be double-checked for truthfulness and accuracy. A hiring policy, one that is strictly adhered to, that includes such provisions for all applicants, will only help a police department when faced with a suit alleging negligent selection. It is far better to extend the extra effort at this stage than to lose a considerable amount of money and public confidence when a civil suit is lost. Police academy scores and behavior should also be very strictly considered when hiring an officer. While in the police academy, an officer will have been trained in areas which they will encounter for real after they are hired by a department, so all areas of their training performance should be sharply critiqued. This all assumes that the training staff of the academy is exemplary and equipped to instruct the recruits in all dimensions of their duties, and to assure that they fit the minimum requirements of a police officer. Training to become a law enforcement officer is a discipline where the student will only be as good as the teacher. A rookie officer will inevitably have to learn a great many lessons for themselves, on the street, but the training staff of the academy should strive to keep this to a minimum. Due to the seriousness of the profession, the requirements of law enforcement training should be exacting and thorough, and meticulous and truthful records of the recruits’ performance should be kept by the academy for law enforcement agencies to view later in the hiring process. Hiring staff, to gauge their individual impressions of the applicant, should also interview academy trainers.

Failure to properly train an officer can bring about costly civil suits. For example, in the case of Bordanaro v, McLeod (1989), a civil rights action was brought under 42 U.S.C. 1983 against the municipality, mayor, police chief and several individual officers claiming that the police action constituted numerous constitutional violations. The First Circuit confirmed the liability, which was based on the following findings:

1. The department was operating under rules and regulations developed and distributed to the officers in the 1960’s;

2. The department’s rules and regulations failed to address modern issues in law enforcement;

3. The department failed to provide officers with training beyond that received in the police academy;

4. The City actively discouraged officers from seeking training;

5. The chief of police haphazardly meted out discipline and failed to discipline the officers in the current incident until after they were indicted; and

6. There was no internal investigation of the incident until one year after itsoccurrence (Cordner and Kenney 94).

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