Reducing exposure in use of force litigation.

The author recently testified as an expert witness in a jury trial involving use of force in a jail. The jury returned a verdict for $170,000 against the jail staff involved. That amount included $50,000 in punitive damages against the sergeant who was present during the incident, $25,000 in punitive damages against each of the four deputies involved in the incident, and $20,000 in compensatory damages. Interestingly, jurors indicated after the trial that the compensatory damages were not awarded because of medical injuries the plaintiff had suffered but, according to various jurors, because "They chained him to a grate like a dog; he's human," because of the plaintiff's emotional trauma and because their decision was "constitutional." In the aftermath of the verdict, the author reflected on how unnecessary the entire situation had been and how frequent use of force litigation is in prisons and jails.

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It began routinely enough. The plaintiff had a car accident, failed a breathalyzer and was booked into a large county jail on a variety of charges. After a verbal confrontation in the booking area and concern on the part of a deputy that the plaintiff might become assaultive, a sergeant and several deputies escorted the plaintiff without incident or resistance to a padded safety cell adjacent to the booking area. The plaintiff was told not to yell or to hit or kick the cell door. The plaintiff was bleeding from a broken nose suffered before he reached the jail, and the evidence suggested that the jail may not have sought the required medical clearance from a hospital prior to admitting the injured plaintiff to the jail.

Jail policy required medical screening upon placement in a safety cell, but the records indicated that did not occur. After two hours of sitting or standing quietly in the safety cell, the plaintiff was increasingly upset with the lack of medical treatment and by the amount of blood he was swallowing from the broken nose. He went to the cell door and yelled and began to kick or hit the cell door to draw attention. A deputy admonished him that he had been warned not to do that, and then a sergeant and several deputies entered the safety cell, took the plaintiff to the ground, applied handcuffs and leg irons in a hog-tied position, and chained the plaintiff on the floor by his restraints to a metal grate in the center of the dry safety cell. That grate serves as the drain when the cell is washed down but it also serves as the toilet for prisoners who need to urinate, defecate or vomit. Testimony suggested that the cell and the grate were not cleaned when there was a change of occupancy.

The plaintiff alleged that he was beaten when the deputies and sergeant entered the cell to put him in restraints and that one of the deputies used a "bar arm" hold to choke him out. A day later, when the plaintiff was released from jail, he needed surgery to repair a crushed larynx. The county denied using excessive force, but none of the five staff members had any memory of going into the cell, placing the plaintiff in restraints, or "grating" him, including the deputy who had had the initial verbal confrontation with the plaintiff and had a detailed memory of that initial interaction. Further, there was no report of any kind on the use of force within the safety cell.

The county had a number of other problems with this case. The jail had camcorders for "planned" uses of force, such as cell extractions, but no camcorder was used for this situation. The safety cell had a built-in video surveillance camera but the videotape from that camera was lost, recycled or destroyed.

The center of the county's defense was that an inmate who was hitting or kicking the cell door might injure himself and that staff were obligated to restrain the person because he had demonstrated he was a danger to himself. However, staff were unable to explain how "grating" an individual would prevent the person from intentionally or unintentionally injuring himself by hitting, kicking or banging his head on the steel grate.

There were one or more Prostraint chairs available in the jail. Those are, of course, specifically designed to restrain someone in a manner that will prevent self-injury. The jail had policy and procedure on the Prostraint chair, and the deputies involved had received training on its use. On the other hand, there was no policy, procedure or training on "grating" a prisoner. It was easy to conclude that the jail staff "grated" the plaintiff rather than using the Prostraint chair because grating was seen as punishment whereas the Prostraint chair was not. It seemed that the jury had no trouble finding that the sergeant and the deputies had impermissibly engaged in corporal punishment.

After the verdict, the sheriff said that the practice of "grating" inmates had been discontinued more than a year before the trial. He said that once an inmate was in a padded safety cell, "nothing they can do can harm themselves," the exact argument the plaintiff's attorneys used at trial.

The verdict made statewide news and was covered on at least one national internet review service. None of the publicity was helpful to the sheriff's office. All of this was because of a practice the sheriff's office itself recognized as inappropriate and unnecessary after giving it serious consideration. This paper, then, is an exploration of ways in which a correctional institution or department can reduce its exposure in use of force litigation.

Poor Practices

The case summarized above illustrates the single largest problem for the defense in use of force litigation. If actual practices are poor, defending those practices in court is an uphill battle. A jail or a prison that regularly uses physical force as punishment (corporal punishment) will likely be held accountable in court. Sometimes a practice involves a relatively low-level use of force, which seldom results in serious injury. The practice is not scrutinized because it has been commonly used for a long time and because there is a rationale that is accepted without real thought or analysis. A good example is the use of chemical agents against an inmate who is "mouthing off" or refusing an order ("get away from the bars") but is locked in a cell by himself. The chemical agent spray is not used as part of a cell-extraction procedure; it is simply punishment for behavior that has already taken place. The rationale that "he was inciting other inmates on the unit" (who were also locked in their cells) or that "we had to maintain the good order of the institution" will not stand muster but are frequently used.

When management ignores or actively condones such practices, they constitute a ticking time bomb. When such practice finally results in death or permanent injury, the jail or prison wins the trifecta: terrible personal tragedy, horrible publicity and a big-time payday for plaintiffs in the litigation that is certain to follow. Use of force policies and practices have also been a frequent focus of the U.S. Department of Justice's Civil Rights Division investigations of jails and prisons, under the authority of CRIPA (Civil Rights of Institutionalized Persons Act). When a DOJ investigation finds unconstitutional use of force, changes can be mandated and the correctional agency may find itself working with an appointed monitor.

In jails and prisons, uses of force will occur and some of these incidents will result in litigation. However, the frequency of use of force is not a given nor does it "come with the territory." Although uses of force may be much more frequent in a jail's booking area than in its general population medium-security housing unit, and they may be extremely infrequent in small minimum-security state prisons, there are also major differences in frequency of uses of force when comparing similar institutions or units. That is, relatively frequent uses of force are simply part of the culture in some jails and prisons, a culture affecting inmates and staff alike. In other institutions, the opposite is true. In the author's experience, there is a distinct correlation between the frequency of use of force incidents and the occurrence of unnecessary or excessive uses of force.

Reports and Documentation

The second major area that leads to unnecessary exposure in use of force litigation concerns record keeping and documentation. It is no secret that some use of force litigation is based on false allegations by inmates. In too many of these cases, the correctional institution has difficulty defending its actions not because staff acted inappropriately, but because the lack of thorough records and reports prevents the institution from corroborating that staff did what they say they did.

A review of all of the common flaws in record keeping and report writing is beyond the scope of this paper. However, a few examples may illustrate the issue. When several staff are involved in a use of force, some agencies fail to require individual reports from each staff member involved in or witnessing the use of force. Thus, instead of several first-hand reports, the agency receives a single summary report, sometimes prepared by a supervisor who was not actually present during the use of force. Sometimes reports are not detailed and omit exactly the kind of information that would allow a judge or jury to decide whether the force used in a situation was appropriate, such as describing the inmate's resistance or assaultive behavior or detailing which staff physically did what to bring the inmate under control. Vague and incomplete reports are sometimes signed off by a supervisor as if they were perfectly reasonable. When the underlying incident reaches trial, no one has any explanation of why the staff involved didn't follow the department's policy or their training on report writing or why the supervisor signed that the report was acceptable.

The author also has experience with situations in which the involved staff members did write separate reports but, on examination, it was obvious the reports were not based on that staff member's personal knowledge or memory because the same paragraph (or more) could be found verbatim in several of the individual reports. There is little that can be done at trial to rebuild a staff member's credibility if he or she has copied portions of someone else's report verbatim and then presented it as his or her own description of events.

Another prime example of inappropriate record keeping has to do with the logs used to document 15-minute checks on inmates on suicide watch, or perhaps 30-minute or one-hour security or welfare rounds on an entire unit. When there is litigation, most often concerning a suicide or a cellmate-on-cellmate assault, the unit or cell logs are among the first documents to be requested in the discovery phase of the litigation. If the department policy requires documented welfare checks every 30 minutes and the relevant log at the time of the incident reflects welfare rounds completed at exactly 2 a.m., 2:30 a.m., 3 a.m., 3:30 a.m. and so on, there is a serious problem. Common sense argues that welfare checks were not completed every half hour, on the half hour, to the minute. The staff member who completed the log will be forced to admit under oath that the log is knowingly inaccurate, that no attempt was made to record the actual times of the welfare checks, and that the staff member is unable to testify as to the actual times of the welfare checks (that occurred closest to the incident that is being litigated). Although these kinds of problems may not by themselves determine the outcome of litigation, they can erode the credibility of the department, its staff and the trial defense.

The responsibility for these kinds of problems with record keeping lies with the management of the institution or the department, not during trial preparation but in day-to-day operations. When sloppy or inappropriate record keeping goes unexamined or is condoned by supervisors and managers, the practice may come back to haunt the department in the midst of a high-profile and potentially very expensive lawsuit.

Some practices with regard to documentation and record keeping are much more egregious. The author has, on more than one occasion, toured a correctional institution and reviewed a unit log or a suicide cell check log to find that the log had been completed in advance for the remainder of the shift, with entries indicating that there was no problem. If a consultant can spot those kinds of blatant falsification of records during an informal tour, what does that say about the effectiveness of supervision and management in that facility? Those are not the issues anyone wants spotlighted in the midst of civil litigation.

Code of Silence

Everyone with more than a bit of experience in law enforcement or correctional work knows the meaning of the term "code of silence." Historically, and with few exceptions, the code of silence has been an integral part of the culture of correctional agencies. However, there is no question that some agencies have worked hard or are working hard to eliminate the code of silence and to replace it as a cultural anchor with a commitment to professionalism and integrity.

Where a code of silence continues to operate, it affects use of force situations perhaps more frequently than any other kind of incident. A code of silence can make a court case on use of force more complicated and more challenging for plaintiffs, but the attempt at cover-up is not undertaken without great jeopardy for the defense, whether officers are actively lying or whether they are passively failing to report actionable behavior to protect one another. There is always the risk that under pressure someone will "come clean."

What may begin rather simply as describing an incident inaccurately to a supervisor (or not describing the incident) gets a bit more difficult for the staff members involved when they must write reports. If there is an internal review or investigation of the incident, the stakes are raised substantially because lying to an investigator is grounds for termination in most correctional agencies. If there is litigation over the incident, the risk is ratcheted much higher when those same staff must testify at depositions under oath. Testifying in court under oath is even worse. The officer who "only was doing what was expected" and trying to help out a co-worker now realizes that this seemingly innocent action could result in the officer serving time for perjury. Thus, the code of silence is a slippery slope and there is always the risk that some individual will decide to get off the slope prematurely.

The defense is in a troublesome predicament in a use of force case within an institution where the code of silence is alive and well. Attorneys on both sides share a distaste for surprises during litigation. If a defense witness or one of the defendants becomes scared and starts to tell the truth, the defense case may collapse even if the actual use of force in the litigation was compliant with both the law and department policy. Even if no one "breaks," the judge or jury may recognize the code of silence for what it is. In a complicated situation with many reports and other documents and a great deal of testimony, it can be almost impossible to invent false testimony that is consistent with all of the other elements in the case.

The answer to this potential problem is much the same as it is with use of force practices. This is something that should be assessed and fixed before some potential seven-figure case goes to trial. If there is a pervasive code of silence in a correctional institution, management either knows or should know, and the former is almost always the case. Also, if a code of silence exists, management can root it out if they are fully committed to doing so: It is a matter of leadership rather than a technical challenge.

Use of an Expert Witness

The author has served as an expert witness on both the plaintiff's side and the defense side (in fact, while the author was a plaintiff's expert in the case described at the beginning of this article, his two prior cases resolved were as an expert for a state department of corrections). From that perspective, there are a number of issues that seem clear regarding the use of experts in correctional use of force litigation; some of these "lessons learned" apply equally to other kinds of correctional litigation.

An expert can be helpful. That is true whether the litigation is against the agency or against individual staff members and whether the issues litigated are policy, procedures or simply the appropriateness of force used.

There is a tendency to believe that the judge or jury (the finder of fact) must determine questions such as whether the force used in a situation was excessive, and thus to dismiss the use of a correctional expert as unnecessary or irrelevant. However, questions almost always arise about options available to staff, the interpretation of policy, commonly accepted correctional practices and much more. In many ways, a lawsuit alleging excessive force is analogous to a claim of correctional malpractice. In a legal malpractice case or a medical malpractice case, it is widely accepted that expert testimony will be required to inform a jury about accepted practices and to help the jury interpret technical issues in the case. (In fact, a judge may dismiss a legal or medical malpractice lawsuit simply because plaintiffs have failed to identify an expert witness.) A use of force case in corrections may not be very different, if the case is about injuries suffered by an inmate during a cell extraction, how many jurors know anything about cell extractions? How will the jury decide if the training was adequate? How will the jury understand optional approaches that may have been available to the department or to the staff involved, or the risks to those staff?

While these are just examples and the work of an expert must be dictated by the specifics of a given case, most of the testimony a jury hears is from the plaintiffs, the defendants or fact witnesses who are clearly supporting the story of one side or the other. Although an expert witness is hired by one side, the expert witness's obligation is to provide an independent analysis to the court. Quite apart from situations everyone has seen involving "dueling" expert witnesses, and the cynical view that you can obtain any expert opinion you are willing to pay for, there are numbers of cases in which the verdict is largely determined by expert testimony and in which experts may be more credible to the judge or jury than the parties in the case.

An expert witness's analysis may also be helpful in prompting an overall reevaluation of the case itself. The author has been involved in several cases in which he declined the case after a review of a fact situation summary and explained to the party wishing to retain him that there were serious flaws in the case. That led either to a decision by the defense to attempt to settle the litigation out of court or to a decision by the plaintiff's attorneys to dismiss the lawsuit.

Scope of an Expert's Work

With expert witnesses, as with so many other things, timing may be almost everything. If an expert witness is to be retained in a case, that expert should be identified and retained early on. That is often not the case. Although federal court and various state courts may differ markedly on the deadlines for identifying experts, there is always a deadline. Far too often an expert is contacted within weeks or even days of the deadline for identifying the expert to the court and to the other side.

When an expert is hired very late in a case, discovery may be closed or almost completed and the attorney or attorneys in the case have long since committed to a general strategy and identified their major issues. However, an expert's analysis can lead to much more than testimony from that expert. The plaintiff's attorneys may be inexperienced with use of force cases or with correctional litigation in general. That is not usually the case with the defense, but even then, defense attorneys often have no knowledge of practices in other jurisdictions or the broader scope of what is generally accepted in American corrections.

If an expert is retained early, that individual's analysis may identify problems with either side of the case that might have otherwise gone unrecognized. He or she may identify documents that should be requested in discovery, and those may lead to important evidence. The expert's analysis may add to or change the focus of depositions. Some or all of this will be lost if the expert is identified late in the proceedings.

Choosing an Expert

If an expert is to be employed on a use of force case, it is obviously important to carefully consider how to choose the "right" expert. From the author's perspective, it is fascinating to be on one side of a case and to review the history and qualifications of the expert on the other side and then to actually read that expert's testimony, usually in the form of a report and/or a deposition. Some "opposing" experts have seemed bright, knowledgeable and strong while others have seemed just silly.

One surprisingly common defense tactic is to identify an expert who is a staff member of the agency involved in the litigation. This raises obvious questions about the independence of the opinions of the expert, and the credibility gap may be widened by questions from the plaintiff's counsel such as, "If your professional opinions in a case like this were that your department had acted wrongly, and those opinions led to a large financial judgment against your department, would that have the potential to affect your career or your professional relationships within the department?" or "How many times have you been asked to testify as an expert for your department and then reviewed the specifics of the case and refused to testify because you thought your department was wrong?"

A related question has to do with identifying an expert who only testifies for the defense or, conversely, for plaintiffs. That, too, can go directly to the credibility of the expert. If an expert has been retained in 100 cases but in each of those cases it was the plaintiff who retained the expert, the next question should be, "How many plaintiff's cases have you been offered but turned down because you thought the actions of the defendants were right and correct?"

At the end of the day, the expert witness chosen should have deep, specific knowledge about the issues being litigated and solid integrity. The author was an expert on the defense side on a case involving an escape from a correctional institution. The plaintiff's expert, who did not visit the institution, wrote a report saying that everything from security procedures to emergency plans to supervision and management at the institution were wrong. It turned out that he had been hired on another case by the same institution as a defense expert and had, eight or 10 months before his current report for the plaintiffs, written a report saying that everything at the institution from security procedures to emergency plans to supervision and management were being done correctly. The case settled and he was spared explaining his diametrically opposed opinions in court and under oath.

That expert also worked full time as an expert witness and had done so for years. That is another dimension that may be considered when choosing an expert witness. Will it compromise the expert's opinion if he or she is a "professional" expert, meaning someone who does nothing other than expert witness work? There may be advantages to using an expert who works in the field, is engaged in other professional activities and does expert witness work part time rather than full time.

Almost without exception, correctional agencies are interested in reducing exposure to liability in use of force situations. That goal is achievable if agencies are willing to revise or eliminate poor practices, ensure thorough contemporaneous reports and documentation, work aggressively to eliminate the code of silence, and maintain a rigorous management review and investigation process. Finally, when use of force litigation does occur, and it will, careful attention should be paid to the choice and use of expert witnesses.

RELATED ARTICLE: Specific Recommendations for Decreasing Exposure in Use of Force Litigation

* Arrange an independent evaluation of the department's use of force policy and use of force practices.

* Ensure that use of force practices con form in detail to use of force policies, changing one or both as necessary.

* Identify and, where possible, change controversial use of force practices before they are at the center of difficult litigation.

* Audit the kinds of records and other documentation that will be available for defense and discoverable by plaintiffs if a use of force situation results in a serious lawsuit.

* Candidly evaluate whether a "code of silence" exists and, if it does, eliminate it.

* Consider whether an expert witness will be necessary or helpful.

* If an expert witness is to be used, retain that individual as early as possible.

* When choosing an expert witness, consider factors such as the expert's independence from the agency being defended, the expert's record of testifying for both the plaintiff's side and the defense side, and consider whether expert witness work is the individual's only professional activity.

Jeffrey A. Schwartz, Ph.D., is president of LETRA, Inc., a nonprofit criminal justice training and research organization in Campbell, Calif.