The Educator Bob Wise, Governor                                           Colonel H.E. Hill, Jr., Superintendent

Volume 30, Issue 11                                                                    July 2001

 The plaintiffs filed an excessive force law suit.  During discovery, the plaintiffs then sought the internal affairs and personnel files of one of the defendant law enforcement officers.  The defendants advanced numerous arguments to avoid production of the records but the arguments were rejected by the Court.

 The provisions of the Freedom of Information Act ("FOIA") do not shield law enforcement investigatory materials from discovery requests.  FOIA provisions are not controlling with regard to matters of confidentiality raised in the course of civil discovery.  Moreover, regulatory enactments, such as the code of state regulations, do not dictate matters of confidentiality raised in the course of civil discovery in a law suit.

 Records and information compiled by an internal affairs division of a police department are subject to discovery in a civil litigation arising out of alleged police misconduct if, upon an in-camera inspection, the trial court determines that the requesting party's need for the material outweighs the interests of the police in maintaining the confidentiality of such information.  Before a circuit court is required, however, to engage in an in-camera inspection of records and information compiled by an internal affairs division of a police department to make a determination regarding production of such documents through discovery, the party opposing disclosure must first make a substantial threshold showing that specific harms are likely to result from the disclosure of the requested materials.

 In most instances, the police department should submit a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to.  The affidavit should include how the internal affairs records have been maintained confidential and how their production would adversely affect governmental or privacy interests or create some other substantial risk of harm.  The MacLay Court suggested that carefully crafted protective orders would satisfy any potential harm posed by the disclosure of internal affairs records.

As Police Officers we often live within our vehicles, traveling hundreds of miles a day, each day we are on duty.  With this in mind, it is inevitable that some motor vehicle accidents will occur.  However, we can work to reduce the number of accidents.  One area of concern is accidents which occur when the officer is responding to a call, therefore acting as an emergency vehicle.

 As officers we should be aware of the law governing the use of our cruiser as an emergency vehicle.  Each of us should be familiar with WV Code 17C - 2 - 5.  There are specific  privileges which are set forth under section "b" of this code.  Each of us are familiar with these allowances given to us operating an emergency vehicle.  However, just as important are sections "c" and "d" in this code.  Section "c" sets forth the guidelines that these allowances are only granted when using an audible signal and flashing lights.  Section "d" sets forth the guideline that the operator of an emergency vehicle is not exempt from using due care in regards to the safety of the public.

 The police officer, acting within the law and previous guidelines, assumes the other vehicles on the roadway will give clearance and obey the emergency vehicle.  Having been given clearance on most occasions the officer begins to expect this response from every driver.  The more the officer sees this proper response the more he expects every vehicle to behave in the same manner.

 From the perspective of the citizen, this operator expects that all traffic will obey the rules of the road, which includes stopping at red lights, staying in predictable lanes of travel, etc.  The more this driver experiences these actions from other drivers, the more he will expect it.  The contradiction now becomes apparent.  Each driver, civilian and officer, has expectations of other drivers on the roadway.  These expectations do not always match.  When approaching an intersection, the civilian expects that all other approaching vehicles will obey the traffic laws governing that intersection, the officer operating an emergency vehicle expects that all other approaching vehicles will yield to him.  This creates the potential for an accident. It is the officers responsibility to recognize this potential and use due care.  Remember, "running lights and siren" does not exempt you from responsibility and liability when an accident occurs.

 It is imperative to realize that recruits joining law enforcement organizations today come from a society in which people are becoming more and more removed from rough physical contact - either through sports, play, or confrontation.  The days when most young officers entered into the academy having already withstood their fair share of schoolyard fistfights and actively participated in one or more contact sports, such as boxing or football, are disappearing. More of today's youth either completely avoid confrontation or resort to "posturing' with the threat of guns or the backing of a large group or gang.  Sports and other physical activities commonly take a back seat to home video games, MTV, and surfing the net.

 The first time a police officer faces the "debilitating fear of interpersonal violence" should not be in the middle of a violent confrontation - where his or her life or the safety of others are at stake.  By failing to provide this type of training, we are unnecessarily risking the life and ability of the officer to act decisively under extreme pressure.  Exposing a police officer to the potential dangers of being involved in a brutal engagement with a violent offender without having first-hand knowledge of how to survive a dynamic confrontation could in fact be interpreted as negligent training on behalf of the training institution.  Physical contact training must develop the mind set that one's personal survival is at stake and provide one with the ability to dispose of that threat.

 Interpersonal violence training, especially boxing, has its place in police academy training.  Any revision in an academy curriculum should involve and require interpersonal violence sustainment training.  The key safety measures recommended would be the following:

• More instruction prior to execution

• Better supervision by qualified instructor

• More recovery time in between bouts
It is paramount that the proper training equipment be utilized in these training programs.  The safety gear required to conduct such training is inexpensive relative to most training equipment, and for the return on the training value that is received, it is a most economical investment.  The value of interpersonal violence training is widely recognized, but is in danger of being lost in the shuffle.  Effective interpersonal violence training can be implemented with only minimal cost and potentially significant gains.  A failure to do so could seriously threaten the safety of today's young police officer.

 It was during the late 1890's when flashlights were first sold to the public.   Police soon found the hand-held, portable lighting device very useful in their type of work.  And in a short time, the flashlight had been adopted as an ersatz baton, and found its way into excessive use of force claims.  But it wasn't until Donald Keller, then a Deputy Sheriff with the Los Angeles County Sheriff's Department  invented the heavy duty "Kel-Lite," that the issue of flashlights and force came into its own.  By his own admission, Don Keller said that he invented the heavy duty flashlight primarily as a defensive tool, and secondary as an illumination device.

 If an officer is issued or required to carry a flashlight, he should be trained to use the flashlight as a shooting aid, and also as a defensive tactical tool. In the real world we all know that when a driver is stopped at 2 a.m., and then suddenly exits the car and begins to assault the officer, who is holding a flashlight in his or her hand, the officer will likely use the flashlight to help defend against the attacker.  Even though the officer may be legally justified in the force used, liability may be created from an agency's policy, especially if they totally ban the use of the flashlight as a defensive tool.

 Officers, including the one being assaulted during the traffic stop example, may use "objectively reasonable force" to defend him or herself, based upon the totality of the circumstances known to the officer at the time of the event.   Any restraint of an individual, unlawful or lawful, by the officer, will be considered a use of force.  And, an officer's use of force upon a free citizen is governed by the Fourth Amendment's "objective reasonableness" test.
 
 Flashlights don't necessarily hit people.  At times, however, law enforcement officers are forced to hit people, and sometimes they use a flashlight. Issues such as whether the officer was trained to use the flashlight as a defensive impact tool, or what policies govern its use must be answered by the officer's employer after the lawsuit or criminal charges are filed.

 If a flashlight is to be used as both an illumination device and as a defensive impact tool, then officers must be properly trained.  The United States Supreme Court held in the case City of Canton, Ohio v. Harris, that officers need to be trained in their core duties.  Since the use of a flashlight appears to be a "core duty" then officers need to be trained in its proper usage.  This includes its marriage with firearms.

 An agency's failure to train its officers may result in "deliberate indifference". Specifically the Canton Court ruled that, " Only where failure to train reflects a deliberate or conscious choice by a municipality can a city be held liable for such failure under {42 U.S.C.} Section 1983."  One crucial issue in a failure to train case will be whether inadequate training practices can justifiably be said to represent city policy.  Flashlight training at the very least should allow police employers to stay below the deliberate indifference threshold.

 A flashlight training program must include how to use the flashlight as a defensive impact tool, what areas of the human body to generally avoid striking (unless the officer or a third-party is faced with the imminent threat of deadly force), plus the constitutional limitations on the use of force.  Many criminal justice agencies have implemented flashlight training programs, and in a few cases, have even had their liability insurance premiums lowered. Training and proper policy composition are no magical cure for totally avoiding flashlight liability, however, law enforcement liability can be significantly reduced when flashlights are used as defensive tools by police officers who are confronted with a tense fast evolving situation.
 
1. John G. Peters Jr., Defensive Tactics with  Flashlights, (Albuquerque, New Mexico,      Reliapon Police Products, Inc. 1982) p. 20

2. Graham v. Conner, 490 U.S. 386, 104      L.Ed.2d 443, 109 S. Ct. 1865 (1989)
 

3. Graham, 490 U.S. at 386
4. City of Canton, Ohio v. Harris, et al, 489      U.S. 378, 109 S. Ct. 1197, 103 L.Ed.2d      412 (1989)

5. Canton, 489 U.S. at 390

Posted 8/09/01

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