Matt Dolan, J.D.

November, 2022

Last week, voters in two states approved the legalization of recreational marijuana.  Missouri and Maryland have joined what is a growing number of U.S. states in which recreational marijuana is legal.  While North Dakota, South Dakota and Arkansas voters rejected legalization measures, it is striking to recognize the sheer number of law enforcement officers in the United States who are operating in jurisdictions in which recreational marijuana has been legalized at the state level.  Meanwhile, at the federal level, there are clear signs that federal legalization of marijuana is increasingly likely in the years to come.

For law enforcement leaders, this changing landscape presents some significant challenges.  In the midst of recruiting and retention crises, the most significant challenge may be the approach these leaders take to a new generation who not only have an extensive history of marijuana use, but are also increasingly likely to view off-duty marijuana use as a private matter.  Agency leaders should act now, in cooperation with local elected officials and the community that they serve, to (1) determine whether off-duty marijuana use will continue to be prohibited in the event of federal legalization, (2) define the articulable job-related rationale for why this prohibition is necessary and (3) create fair and legally defensible testing and screening policies.

The Likelihood of Federal Legalization 

Marijuana is a Schedule 1 drugⁱ. Legal gun ownership requires that all citizens — including law enforcement hires — complete an ATF Form 4473 affirming that they are not an unlawful user of a controlled substance, including marijuana.ⁱⁱ  Law enforcement agencies across the country often cite federal law in prohibiting off-duty marijuana use—most notably, under 18 U.S.C. § 922(g)(3), which states that no person “who is an unlawful user of or addicted to any controlled substance” may “possess . . . or . . . receive any firearm or ammunition.”ⁱⁱⁱ

In the past year, however, elected officials at the federal level have shown an increasing interest in changing this law.  On April 1, 2022, the House of Representatives voted in favor of removing marijuana from the list of scheduled substances under the Controlled Substances Act and eliminating criminal penalties for an individual who manufactures, distributes or possesses marijuana.^iv

On October 6, 2022, President Biden made public statements in support of reconsidering the Schedule 1 status of marijuana.  Biden stated, in part, “I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”^v

These political developments should not be entirely surprising in light of the continued increase in support for marijuana legalization across the country and across the political spectrum.  A recent Gallup Poll found that 68% of Americans are in favor of marijuana legalization.^vi And polls indicate that support is increasing among Democrats, Independents and Republicans.

The tide of public opinion in favor of legalization does not mean that there are not any detractors—as evidenced by voters’ rejection of proposed legalization in North Dakota, South Dakota and Arkansas last week.  Despite 68% support for marijuana decriminalization, Americans are evenly split in their views about marijuana’s effect on society, with 49% considering it positive and 50% negative.^vii  Many public health experts and scientists continue to raise concerns about long-term marijuana use and cognitive ability.^viii

Your community may be strongly opposed to the idea of law enforcement officers using marijuana.  But what this national trend does clearly indicate, is that agency leaders will need to gauge community support for off-duty marijuana prohibitions and clearly articulate how this off-duty use impacts the public trust, such that regulating it is job-related and legally defensible. 

Defining the Nexus Between Off-Duty Marijuana Use and On-Duty Work

If federal and state legalization were to become a reality in your jurisdiction, that does not necessarily mean that law enforcement officers cannot be held to a standard of conduct that is higher than what is the bare minimum of legal behavior.  For well over a century, courts have recognized that police officers are routinely prohibited from engaging in behavior that would be otherwise lawful or even constitutionally protected.  As far back as 1892, for instance, the Massachusetts Supreme Court held that, “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”^ix

“Conduct Unbecoming an Officer” standards exist, in large part, due to the recognition that the sensitive nature of police work requires officers to be held to a higher standard than the general public.  Social media posts, inflammatory political activity and countless other legally protected off-duty actions can, and do, result in legally defensible discipline—up to and including termination—when the unique authority of a law enforcement officer’s job responsibilities is taken into account.

For many law enforcement agencies, however, federal legalization will require a specific articulation of marijuana prohibition that has not been necessary in the past.  What seemed obvious 20 years ago is no longer so obvious, in light of legalization and cultural normalization.  Many law enforcement leaders point to the difficulty in testing for marijuana impairment—as opposed to alcohol impairment—as rationale for prohibiting its use.  But the simple fact that something is more difficult to test or detect seems unlikely to be a reasonable justification for prohibition in and of itself. 

Agency policies will need to clearly define how off-duty marijuana use is substantially detrimental to an individual’s ability to perform that individual’s duties and/or is substantially disruptive to agency operations. 

Practical Considerations 

As we noted in a recent article on trends in police staffing, the pool of qualified applicants for police work is not only shrinking, but this problem shows no signs of turning around in the coming years.^x  This means that police leaders will be required to make difficult decisions regarding recruiting and retention, in light of the realities of available applicants, in the years ahead.  We at the Dolan Consulting Group are strongly opposed to lowering hiring standards regarding honesty, morality and personal integrity, such as a past record of lying, severe mental illness or engaging in serious criminal behavior.  But can we legitimately and realistically consider other existing standards, including marijuana use?

As we described in detail in the aforementioned article, it seems extremely unlikely that many agencies will be capable of providing the same law enforcement services that they have in the past if they continue staffing according to existing personnel policies.  Is off-duty marijuana use similar to visible tattoos or beards—something once thought to be taboo for officers that has become permissible in light of new cultural norms?  Are citizens unconcerned with whether an officer uses marijuana off-duty, if the alternative to accepting that behavior could mean increased wait times when calling 911 and a decreased police presence in their community?  Or is off-duty marijuana use a more permanent red line issue for maintaining community support?  This is a question that will be answered differently for different jurisdictions. 

For those agencies that seek to take measures to minimize the risk of on-the-job impairment without instituting outright use prohibitions, the Federal Aviation Administration (FAA) approach to alcohol use for airline pilots offers a potential template.  The “Bottle to Throttle” policy prohibits airline pilots from consuming alcohol within 8 hours of flying.^xi  Many airlines have increased that timeframe to further decrease the likelihood that significant amounts of alcohol are still in a pilot’s system while on-duty.^xii  Law enforcement agencies may want to consider a marijuana use policy similar to the “Bottle to Throttle” rule if they choose to place clear limits on off-duty use without opting for outright prohibition.

For those law enforcement leaders who will maintain a prohibition on off-duty marijuana use, it is necessary to lay out the community expectations and/or medical evidence of long-term impairment upon which the decision is based.  It is also necessary to consider the widespread use of CBD, which is widely legal and advertised as an alternative to traditional pharmaceutical treatment for a variety of ailments that contains less than 0.3% THC.  CBD products promise to treat ailments without the “high” associated with heightened THC.  However, many drug testing methods currently in use can result in a positive test when the only product used by the officer was CBD.^xiii  Agency policies should also address the use of CBD, in addition to the use of marijuana.  Drug Recognition techniques will likely need to be an integral part of drug testing and evidence of impairment may need to exceed a positive test result alone.

Conclusion 

As law enforcement agencies grapple with how to respond to the prospect of state and federal legalization of marijuana, it seems clear that now is the time to develop policies and procedures in cooperation with the communities they serve.  Agency leaders that wait for federal legalization before having these conversations may be most likely to see substantial discord and confusion if they are caught completely unprepared.

Views of personal marijuana use—whether from medical experts or the community at large—will continue to be contentious, and no attorney can answer these policy questions for your agency.  But the conversations around policy and procedure should begin now so that your agency is prepared to make legally defensible personnel decisions if and when federal legalization becomes a reality.

About the Author

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.  

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group. 

His training courses include Internal Affairs Investigations: Legal Liability and Best Practices, Supervisor Liability for Law Enforcement, Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, and Confronting Bias in Law Enforcement.

Disclaimer: This article is not intended to constitute legal advice on a specific case. The information herein is presented for informational purposes only. Individual legal cases should be referred to proper legal counsel.

References

As part of the ongoing national conversation around police reform, many are calling for a college degree requirement for officers in agencies and states where such a requirement does not currently exist. These calls reflect a widespread belief that a university education is likely to result in improved conduct by law enforcement officers.

But is there any evidence that this belief is true? There has actually been a significant amount of social science research devoted to measuring whether college-educated officers perform differently than officers who lack a college degree. In fact, almost every study of police behavior has included officer education level as a control variable. So, what have we learned?

Does Higher Education Mean Higher Standards of Conduct?

In 2000, the National Research Council of the National Academies was charged by Congress to review and summarize all of the existing research on policing within the United States. They convened a committee of eighteen policing scholars from the academic fields of criminal justice, criminology, law, sociology, political science and public administration who spent four years pouring over all of the existing published research about policing. Regarding the topic of the influence of education on officer performance, the committee reviewed more than 30 published studies between 1960 and 2000 that had examined such officer behaviors as arrest, use of force and citizen complaints.[1]

After reviewing all of these studies, the committee reported the following: “The evidence reviewed by the committee does not permit conclusions regarding the impact of education on officer decision making.” The committee came to this conclusion because all of the research they reviewed provided inconsistent results. For example, while one study revealed officers with a college degree used less force than officers without a college degree, the next study they reviewed found there was no difference between the two in terms of use of force.[2] 

Since 2000, there have been more research studies published that have measured the impact of college education on officer behavior.  But the findings are still inconclusive with respect to the impact, if any, of a college education on officer behavior.

We examined a number of studies published since 2000 to illustrate this point. We found two studies on officer traffic enforcement behavior (i.e., how proactively they stop and cite motorists) that included a measure of officer education level. One study found a college degree had no impact,[3] while the other found that officers without a college degree engage in more proactive enforcement.[4] Another study examined criminal arrest productivity and found no difference between college-educated officers and those without a bachelor’s degree.[5] And a fourth study examined how often officers proactively searched citizens and found no difference between officers with or without a bachelor’s degree.[6] 

Two studies measured officers’ organizational commitment,[7] and found officer education level had no impact. Three studies measured officer job satisfaction, with one finding college-educated officers had lower job satisfaction than officers without a degree[8] and two finding college degree had no impact on satisfaction.[9] One study examined officer seatbelt usage while on duty[10] and another measured officer openness to de-escalation training.[11] Both of these studies found that whether or not the officer had a college degree had no impact. Two more studies examined officers’ voluntary engagement in community policing activities and both found that a college degree made no difference.[12] 

Regarding use of force, we found six studies that compared the frequency of use of force between officers with and without a bachelor’s degree. Four of the studies found that officers with at least a bachelor’s degree used force less often than officers with less than a bachelor’s degree.[13] However, two of the studies found no difference between officers with or without a bachelor’s degree in their rates of use of force.[14]  Regarding citizen-generated or internal complaints of misconduct, six studies examined if the officer’s education level was associated with reports of misconduct. Four of the studies found that whether or not an officer had a bachelor’s degree was unrelated to how many misconduct allegations the officer received,[15] yet two studies found that officers with a bachelor’s degree received fewer allegations of misconduct.[16] 

Why the Inconsistencies?

Why are these results so inconsistent? Many scholars have pointed to the difficulty in defining or quantifying “college education”. In most studies, “college education” is measured as whether or not the officer has a bachelor’s degree, but education is much more complex than that. Is the officer who is ten credit hours short of graduating different from the officer who completed her degree? What about grades? Does the officer who graduated by the skin of his teeth and after taking a few failed courses over again have the same education as the officer who completed his degree with a perfect 4.0 grade point average? Is a graduate from a school with low academic standards just as educated as a student who graduated from an Ivy League or flagship state university?[17]

What about one’s major or the type of curriculum studied? Does a degree in chemistry or graphic design better prepare an individual to become a successful law enforcement officer? Is a degree in psychology or communications better preparation for a career in law enforcement than a degree in criminology or criminal justice?

Even among criminal justice and criminology programs, the focus and the material taught varies tremendously. At most four-year universities, criminology/criminal justice course content is strongly grounded in sociology (emphasizing social theories related to issues of race, class and gender), and the majority of the faculty are individuals who hold doctorates but have never worked a day in the criminal justice system. Some have never even held a full time job in any realm before becoming a professor.[18]  

However, in a few university programs around the nation, and at most community colleges, the overwhelming majority of the faculty are former law enforcement and correctional officers, and the course work is more vocational in nature.[19] Some of these programs even offer police academy certification. Are the students who emerge from these two models of criminal justice education equally equipped for (or even interested in) a law enforcement career?

Why Is College So Important?

Why would we think that a college education would make an individual a better law enforcement officer? There are many assertions behind this idea that law enforcement officers should be college educated. One is the belief that a college education develops valuable knowledge, skill and ethics within the individual. It is argued that a college education improves one’s capacity to critically analyze problems, communicate verbally and in writing and develop greater sensitivity to other cultures and beliefs.[20]  

It is debatable whether all types of college education experiences actually develop these skills in graduates. But even if it does, the empirical evidence reveals that the influence of a college education on an officer’s work behavior are, at best, mixed. For more than sixty years now, the empirical research has failed to show the sorts of dramatic differences in officer behavior that many police reformers had hoped to see.

More and more Americans are also questioning the value of a college degree in general. College and university enrollments in the U.S. have been in steep decline since 2019. Between 2019 and 2020, before the pandemic struck, undergraduate enrollments in the U.S. fell by 3.1%, which amounts to more than 600,000 students electing to forgo college. From 2020 to 2021, undergraduate enrollments fell a further 4.6%, and from 2021 to 2022 they fell another 4.7%. That is a 12.4% decrease across the last three years. Community colleges were hit even harder, declining 10.6% in enrollments from 2020 to 2021, and decreasing 7.8% from 2021 to 2022.[21]

Several recent studies have sought to determine the reasons for the declining interest in college. Surveys of current, former and potential college students have revealed that there are a number of common reasons for taking a pass on going to college. These reasons include the belief that college degrees are no longer a guarantee of getting a good-paying job. Many point to a growing number of alternative, low-cost ways to learn new skills and information on their  own. Others surveyed believe that the information learned in college today is often irrelevant to the actual work world. Many believe that exposure to actual work practices is more valuable than classroom learning in many occupations. For some, the rising cost of education makes college inaccessible without going deep into debt with student loans.[22] Finally, some see college as a hostile environment for individuals who hold centrist or conservative political or religious views.[23] Regardless of the reasons, there are simply fewer and fewer college graduates available to attract to the law enforcement profession.

Even before these recent declines, college education was not evenly distributed across ethnic and racial groups. In 2018, only 43.5% of Asian adults and 64.8% White adults lacked a four-year college degree. However, 74.8% of African-American adults and 81.7% of Hispanic adults lacked a four-year degree.[24] Requiring a college degree for entry into a career field severely limits the number of qualified African-American and Hispanic-American applicants as agencies across the country already struggle to recruit and retain officers who reflect the racial diversity of the communities that they serve.  

Table 1. U.S. College Education Distribution by Race / Ethnicity 

Source: 2018 Census Data

Conclusion

During this period in law enforcement history, when the profession is struggling to attract enough qualified candidates to fill officer vacancies across the nation, does it make sense to limit the pool of potential applicants even further by requiring applicants to have a college degree? Six decades of empirical research has failed to reveal any evidence that college-educated officers behave significantly differently than non-college-educated officers. What the student learns and how much the student grows as an individual varies dramatically from student to student, major to major, and college to college. Fewer and fewer young Americans are pursuing a college education—even at the community college level—so the number of college graduates available to recruit is dwindling. So it might not be wise to require any level of college education as a prerequisite to apply.

What is likely a better strategy is to simply look for the qualities in the individual that some seem to believe a college education fosters. Your agency may have been hoping that a college education requirement would attract applicants who possess valuable knowledge, skills, ethics, a capacity to critically analyze problems, an ability to communicate verbally and in writing, and sensitivity to other cultures and beliefs. Instead of requiring a college degree, your agency could utilize assessment centers with written tests, role-play scenarios and interviews to detect these characteristics in applicants, no matter their level of formal education. It may also make sense to carefully screen for these attributes in the background investigation, academy and field training phases of the hiring process.  

As there is no firm evidence that a college education makes an individual a dedicated and outstanding law enforcement officer, agencies that adopt this requirement are likely to miss out on many excellent candidates by excluding them completely from their pool of applicants at a time when so many agencies are already facing historically significant recruiting challenges.

Before excluding a massive number of otherwise qualified and competent applicants, one should be fairly certain that the requirement in question is demonstrably relevant to a successful career in law enforcement.  When it comes to the requirement of a college degree, the evidence is far from compelling.  And the mere fact that many officers throughout the country prove themselves to be outstanding assets to their agencies and communities–in spite of the fact that they never received a college degree–serves as compelling evidence that the college requirement is unnecessary.

About the Authors

Richard R. Johnson, Ph.D.

Richard R. Johnson, PhD, is a trainer and researcher with Dolan Consulting Group. He has decades of experience teaching and training on various topics associated with criminal justice, and has conducted research on a variety of topics related to crime and law enforcement. He holds a bachelor’s degree in public administration and criminal justice from the School of Public and Environmental Affairs (SPEA) at Indiana University, with a minor in social psychology. He possesses a master’s degree in criminology from Indiana State University. He earned his doctorate in criminal justice from the School of Criminal Justice at the University of Cincinnati with concentrations in policing and criminal justice administration.

Dr. Johnson has published more than 50 articles on various criminal justice topics in academic research journals, including Justice Quarterly, Crime & Delinquency, Criminal Justice & Behavior, Journal of Criminal Justice, and Police Quarterly. He has also published more than a dozen articles in law enforcement trade journals such as the FBI Law Enforcement Bulletin, Police Chief, Law & Order, National Sheriff, and Ohio Police Chief. His research has primarily focused on police-citizen interactions, justice system responses to domestic violence, and issues of police administration and management. Dr. Johnson retired as a full professor of criminal justice at the University of Toledo in 2016.

Prior to his academic career, Dr. Johnson served several years working within the criminal justice system. He served as a trooper with the Indiana State Police, working uniformed patrol in Northwest Indiana. He served as a criminal investigator with the Kane County State’s Attorney Office in Illinois, where he investigated domestic violence and child sexual assault cases. He served as an intensive probation officer for felony domestic violence offenders with the Illinois 16th Judicial Circuit. Dr. Johnson is also a proud military veteran having served as a military police officer with the U.S. Air Force and Air National Guard, including active duty service after the terrorist attacks of September 11, 2001. Before that, he served as an infantry soldier and field medic in the U.S. Army and Army National Guard.

Matt Dolan, J.D.

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.  

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group. 

His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, Supervisor Liability for Public Safety, Confronting Bias in Law Enforcement and Internal Affairs Investigations: Legal Liability and Best Practices.

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

References

[1] National Research Council of the National Academies (2004). Fairness and Effectiveness in Policing: The Evidence. Washington, DC: National Research Council of the Academies.

[2] Ibid.

[3] Johnson, R. R. (2011). Officer attitudes, management influences, and police work productivity. American Journal of Criminal Justice, 36(4), 293-306.

[4] Kennedy, S. M. (2022). Police Education and its Influence on Traffic Enforcement Performance. Lynchburg, VA: Master’s Thesis: Liberty University.

[5] Rydberg, J., & Terrill, W. (2010). The effect of higher education on police behavior. Police Quarterly, 13(1), 92-120.

[6] Rydberg, J., & Terrill, W. (2010). The effect of higher education on police behavior. Police Quarterly, 13(1), 92-120.

[7] Johnson, R. R. (2015). Supervisor feedback, perceived organizational support, and organizational commitment among police officers. Crime and Delinquency, 61(9), 1155-1180; Rief, R. M., & Clinkinbeard, S. S. (2020). Exploring gendered environments in policing: workplace incivilities and fit perceptions in men and women officers. Police Quarterly, 23(4), 427-450.

[8] Ingram, J. R., & Lee, S. U. (2015). The effect of first-line supervision on patrol officer job satisfaction. Police Quarterly, 18(2), 193-219.

[9] Brady, P. Q., & King, W. R. (2018). Brass satisfaction: Identifying the personal and work-related factors associated with job satisfaction among police chiefs. Police Quarterly, 21(2), 250-277; Johnson, R. R. (2012). Police officer job satisfaction; a multidimensional analysis. Police Quarterly, 15(2), 157-176.

[10] Wolfe, S., Lawson, S. G., Rojek, J., & Alpert, G. (2020). Predicting police officer seat belt use: evidence-based solutions to improve officer driving safety. Police Quarterly, 23(4), 472-499.

[11] Smith, M. R., Engel, R. S., Isaza, G. T., & Motz, R. T. (2022). De-escalation training receptivity and first-line police supervision: findings from the Louisville Metro Police Study. Police Quarterly, 25(2), 201-227.

[12] DeJong, C., Mastrofski, S. D., & Parks, R. B. (2001). Patrol officers and problem-solving: an application of expectancy theory. Justice Quarterly, 18(1), 31-61; Engel, R. S., & Worden, R. E. (2003). Police officers’ attitudes, behavior, and supervisory influences: an analysis of problem solving. Criminology, 41(1), 131-166.

[13] Donner, C. M., Maskaly, J., Piquero, A. R., & Jennings, W. G. (2017). Quick on the draw: assessing the relationship between low self-control and officer-involved police shootings. Police Quarterly, 20(2), 213-234; McElvain, J. P., & Kposowa, A. J. (2008). Police officer characteristics and the likelihood of using deadly force. Criminal Justice & Behavior, 35(4), 505-521; Paoline, E. A., & Terrill, W. (2007). Police education, experience, and the use of force. Criminal Justice and Behavior, 34(2), 179-196; Rydberg, J., & Terrill, W. (2010). The effect of higher education on police behavior. Police Quarterly, 13(1), 92-120.

[14] Ingram, J. R., Terrill, W., & Paoline, E. (2018). Police culture and officer behavior: application of a multi-level framework. Criminology, 56(4), 780-811; Paoline, E. A., Terrill, W., & Somers, L. J. (2021). Police officer use of force mindset and street-level behavior. Police Quarterly, 24(4), 547-577.

[15] Brandl, S. G., Stroshine, M. S., & Frank, J. (2001). Who are the complaint-prone officers? Journal of Criminal Justice, 29(6), 521-529; Ingram, J. R., Terrill, W., & Paoline, E. (2018). Police culture and officer behavior: application of a multi-level framework. Criminology, 56(4), 780-811; Paoline, E. A., & Terrill, W. (2007). Police education, experience, and the use of force. Criminal Justice and Behavior, 34(2), 179-196; Terrill, W., & Ingram, J. R. (2016). Citizen complaints against the police: an eight city examination. Police Quarterly, 19(2), 150-179.

[16] Harris, C. J. (2010). Problem officers? Analyzing problem behavior patterns from a large cohort. Journal of Criminal Justice, 38(2), 216-225; Manis, J. Archbold, C., & Hassell, K. D. (2008). Exploring the impact of police officer education level on allegations of police misconduct. International Journal of Police Science & Management, 10(4), 509-523.

[17] Manis, J. Archbold, C., & Hassell, K. D. (2008). Exploring the impact of police officer education level on allegations of police misconduct. International Journal of Police Science & Management, 10(4), 509-523.

[18] Cooper, J. A., Walsh, A., & Ellis, L. (2010). Is criminology moving toward a paradigm shift? Evidence from a survey of the American Society of Criminology. Journal of Criminal Justice Education, 21(3), 332-347; Wright, J. P., & DeLisi, M. (2015). Conservative Criminology: A Call to Restore Balance to the Social Sciences. New York: Routledge.

[19] Castellano, T. C., & Schafer, J. A. (2005). Continuity and discontinuity in competing models of criminal justice education: Evidence from Illinois. Journal of Criminal Justice Education, 16(1), 60-78; Cordner, G. (2016). The unfortunate demise of police education. Journal of Criminal Justice Education, 27(4), 485-496.

[20] Baro, A. L., & Burlingame, D. (1999). Law enforcement and higher education: Is there in impasse? Journal of Criminal Justice Education, 10(1), 57-73; Cordner, G. (2016). The unfortunate demise of police education. Journal of Criminal Justice Education, 27(4), 485-496; Shernock, S. K. (1992). The effects of college education on professional attitudes among police. Journal of Criminal Justice Education, 3(1), 71-92.

[21] Neitzel, M. T. (2022, May 26). New report: the college enrollment decline worsened this spring. Forbes. Downloaded from: https://www.forbes.com/sites/michaeltnietzel/2022/05/26/new-report-the-college-enrollment-decline-has-worsened-this-spring/?sh=6417839624e0

[22] ECMC Group LLC (2022). Report: Gen Z Teens Want Shorter, More Affordable, Career-Connected Education Pathways. Minneapolis, MN: ECMC Group LLC.

[23] Dodge, S. (2022, April 26). While other schools struggle, Hillsdale College enrollment has surged during COVID-19. Here’s why. MLive. Downloaded from: https://www.mlive.com/news/jackson/2022/04/hillsdale-college-enrollment-surged-during-covid-19-heres-why.html; Jesse, D. (2021, October 8). Why some small conservative Christian colleges see growth where other schools see declines. The Detroit Free Press. Downloaded from: https://www.freep.com/in-depth/news/education/2021/10/08/conservative-christian-colleges-grow/7396185002/

[24] Statistica Inc. (2019). Percentage of Educational Attainment in the United States in 2018, by Ethnicity. New York: Statistica Inc.

In many law enforcement agencies, fundamental operational tasks are often assigned exclusively to a relatively small number of officers who do not have the resources to accomplish their objectives without help from others throughout the agency.  Recruiting, for instance, should be an agency-wide undertaking in which all officers see themselves as playing an important role in recruiting the next generation of officers.  A small number of designated recruiters simply cannot succeed in the mission in the absence of agency-wide support. 

Community policing is another area in which a small number of chosen officers cannot successfully implement a philosophy that should be demonstrated in every aspect of agency operations, from patrol to investigations.  This problem of over-specialization, whereby the vast majority of officers feel little or no responsibility to contribute to fundamental areas of operation, is one that deserves attention from law enforcement leaders across the country.

In analyzing case studies of disastrous outcomes in the realm of internal affairs, this problem of over-specialization, coupled with a lack of ownership by first-line supervisors, is a common theme.  The detectives assigned to the Internal Affairs Division or to the Professional Standards Division are too often tasked with identifying potential misconduct, conducting the investigations and making recommendations for possible discipline without the active assistance of first-line supervisors in the field.  The sentiment often seems to be that the job of an FTO or sergeant is not to identify problems as early as possible and address them. Rather, it seems to be that once a problem is significant enough, internal affairs will deal with it.

The obvious problem with this mentality is that it fails to take into account the fact that, by the time misconduct issues are serious enough to generate attention from internal affairs, it may be too late to effectively address the problem and significant damage may already have been done.  This damage is often in the form of harm to members of the public, the officer and the community’s trust in the agency. 

Ultimately, the questions that are posed to leaders in a law enforcement agency when allegations of police misconduct emerge are: What did you know?  When did you know it?  What did you do?  It seems highly unlikely that members of the public are interested in the internal finger-pointing that may take place between the chief’s office, Internal Affairs and sergeants in the field in regard to who dropped the ball. 

Ultimately, internal affairs operations are vital for the agency as a whole and leaders throughout the department.  First-line supervisors must be engaged in “inspecting what they expect” and having the difficult conversations as early as possible.  Allowing an officer to develop a reputation for discourtesy, poor report writing or other minor performance issues without confronting the problem—all in the name of “that’s not my job”—is a proven recipe for legal liability and public trust disasters.

Police misconduct will always occur to some degree, in some shape or form, because officers are human beings and are not infallible.  The amount of damage done by instances of police misconduct is largely dictated by how proactive or reactive the department’s leaders were in recognizing their duty to intervene.  That duty begins long before an excessive use of force incident or case of citizen abuse is unfolding on their watch.  Agencies that identify and address problems—even those involving serious misconduct—before the local media or social media brings them to light, are able to demonstrate that, in spite of calls to the contrary, the agency is capable and willing to “police themselves”.  This is the ultimate mission of internal affairs operations.

Many of these issues were discussed at length in the 2022 report commissioned by the City of Baltimore, Anatomy of the Gun Trace Task Force: Its Origins, Causes and Consequences.[1] The quotes below from that report are quite telling.

“The historical failures of the accountability function are starkly illustrated in the experiences of the former BPD members who were prosecuted.  Several of them engaged in misconduct that should have ended their BPD careers, but did not do so because of profound weaknesses in the system for investigating, charging, and adjudicating allegations of misconduct.  Instead of suffering the consequences for their actions, these officers learned that there were inadequate institutional constraints and guardrails to prevent them from engaging in misconduct or punishing them if they did.”[2]

“Some supervisors have cultivated plausible deniability for the actions of their unit members. They have spent too little time directly observing personnel under their command, blaming the volume of paperwork and administrative tasks for absorbing their time. They have been more concerned about the bottom-line numbers than about how those numbers are generated.”[3]

Similarly, in late 2020, the Minneapolis Police Department and City of Minneapolis publicly acknowledged that their Internal Affairs Division would begin working closely with city attorneys to ensure that internal investigations were conducted thoroughly and lawfully in order to minimize the risk of legitimate discipline being overturned at arbitration.  This decision came following years of internal failures to impose discipline in a fair, consistent and timely manner, which led to many cases of police misconduct going unpunished.[4] 

Beyond the problems within the Internal Affairs Division in Minneapolis, there were also cases of first-line supervisors giving positive performance evaluations to officers while they were simultaneously being investigated for serious offenses that could result in termination.  There were various other examples of supervisors’ failure to identify and document conduct issues that contributed to arbitration decisions overturning officer suspensions and terminations.  For example, after a rookie officer shot and killed an unarmed woman who had called 911 for help, it was revealed that serious red flags about that officer had been identified and documented by FTOs and sergeants during the first months of the recruit’s career. Unfortunately, these warnings were never addressed by the department’s leadership.[5]

Internal affairs training should be offered to first-line supervisors in policing, not just those who are designated as “internal affairs” on their business cards.  First-line supervisors should have a familiarity with the process of receiving complaints, or proactively directing complaints generated by themselves or other officers.  They should be made aware of the investigative standards and the due process considerations that are an integral part of agency discipline that is legally and ethically defensible.  In many cases, the more isolated the Internal Affairs Division’s work becomes, the more harmful it is to agency operations.

Baltimore and Minneapolis are only two prominent examples of a much broader problem:  The failure to recognize that, in addition to those designated to work in the Internal Affairs Division, first-line supervisors and field training officers are crucial to a functional internal system of accountability.  In the midst of calls to increase civilian oversight, there is likely no better way to defend an agency’s ability to police itself than to ensure that all first-line supervisors are acutely aware of their vital role in the internal affairs functions of their departments.

About the Author

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.  

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group. 

His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, Supervisor Liability for Public Safety, Confronting Bias in Law Enforcement and Internal Affairs Investigations: Legal Liability and Best Practices.

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

References

[1] Steptoe & Johnson, LLC (2022). Anatomy of the Gun Trace Task Force Scandal: Its Origins, Causes, and Consequences. Washington, DC: Steptoe & Johnson.

[2] Steptoe & Johnson LLP, Anatomy of the Gun Trace Task Force, iv.

[3] Steptoe & Johnson LLP, Anatomy of the Gun Trace Task Force, xxv.

[4] Jaconsen, Jeremiah (2020, December 29). Minneapolis Police Disciplinary Changes. Minneapolis KARE 11 News: https://www.kare11.com/article/news/local/minneapolis-police-announce-disciplinary-process-changes/89-7eb47ff3-8125-4c3c-839f-dc0df7bced92.

[5] Fox 9 News (2018, September 6). Prosecutors: Mohamed Noor’s work history shows ‘reckless disregard for human life’. Minneapolis-St. Paul Fox 9 News: https://www.fox9.com/news/prosecutors-mohamed-noors-work-history-shows-reckless-disregard-for-human-life; Jany, Libor (2018, September 6). Filing: Mohamed Noor raised red flags among psychiatrists, training officers; Report shows psychiatrists, officers had their concerns. Minneapolis Star Tribune, https://www.startribune.com/judge-rejects-motion-to-seal-medical-records-in-trial-for-officer-who-killed-justine-ruszczyk-damond/492518991/.

Activists and politicians are often quick to demand specific changes in police practices before there is firm evidence to support the effectiveness of their proposals. A prominent example is found in the call for “de-escalation training”, despite the fact that there are many different (and sometimes conflicting) definitions of what “de-escalation training” actually means.

As providers of verbal de-escalation training at Dolan Consulting Group, we read the positive course evaluations from the trainees who attend our courses. We also frequently receive feedback from law enforcement officers whose careers have been made better and safer as a result of our verbal de-escalation training. But what do we know about the impact de-escalation training has on the outcomes of interactions with the public? Does de-escalation training result in decreased incidences of violence? Are students leaving the training with useful tools to do their jobs better and more safely? What does the social scientific evidence reveal? 

General Studies of De-escalation Training

Studies that evaluate de-escalation training within a law enforcement  environment are very recent – only occurring within the last four years. Before these law enforcement research studies existed, a research team from the University of Cincinnati, headed by Dr. Robin Engel, examined all of the existing research on de-escalation training in fields other than law enforcement.[1] This team located and examined every scientific study available that evaluated some form of de-escalation training. They defined de-escalation training as any program, “based on a process designed to defuse situations and reduce the likelihood of physical or verbal confrontation between parties.”[2] Also, in order to be considered in their study, the training had to involve only de-escalation training, thus they excluded evaluations of mental health crisis intervention team training, of which verbal de-escalation is only one small part.

The research team found 64 studies that evaluated the impact of verbal de-escalation training. The studies ranged in date from 1976 to 2016. A total of 86% of the studies involved verbal de-escalation training for medical staff in hospitals, nursing homes and psychiatric facilities. The remaining 14% of studies took place within schools, psychological counseling centers and business workplaces. There were 58 different verbal de-escalation training programs across the 64 studies, so nearly every study encountered a different type of de-escalation training program.

Nevertheless, there were similarities across the programs, as 63% included instruction on types and causes of aggression, and warning signs of impending aggression. Approximately 56% of the training programs discussed techniques and strategies for handling someone who is already aggressive, while 41% also addressed methods for defusing situations before someone becomes aggressive. The training curricula ranged in length from a few hours to several days. All of the training involved classroom instruction and nearly all of the  training programs also included role-play scenarios.[3]

Most of the studies surveyed the participants before and after the training course in order to measure their perceptions of the training they received. Of those studies in these various non-law enforcement professions, about 90% of participants perceived they had greater confidence and knowledge for handling confrontation situations after the training and more than 87% were satisfied with the training. About 60% indicated that they were safer after the training and more than 78% indicated they experienced less violence at work after the training.[4]

Approximately one third of the studies also evaluated actual behavioral outcomes after the training, such as documenting whether de-escalation techniques were actually used by participants, changes in the number of incidents of violence and changes in injuries from violence. Of the studies that measured whether or not de-escalation techniques were actually used, 92% found that de-escalation techniques were regularly employed after the training. Of the studies that measured incidents of physical violence, 52% of the studies found a decrease in the number of violent incidents after the training and 100% of the studies found a decrease in the severity of violent incidents after the training.

Additionally, 77% of the studies found fewer employee and client injuries occurred after the training.[5] This evidence suggests that general de-escalation training in medical, psychiatric, school and workplace settings results in fewer—and less serious—incidents of violent behavior in these settings. 

Evaluations of Police De-escalation Training

Regarding the impact of de-escalation training within a law enforcement agency, only a few studies exist and all of these studies are very recent. While we look forward to further studies on the topic of verbal de-escalation training’s impact on law enforcement officers in the future, the studies that are currently available show striking results.

Halifax Regional Police Department (2017)

A research team from the RAND Corporation evaluated the impact of de-escalation training on officers with the Halifax Regional Police Department in Canada during 2017. The patrol personnel of this department received a brief, 3.5 hour verbal de-escalation course. This half-day training included classroom instruction, followed by role-play scenarios designed to have the attendees practice the techniques taught within the classroom.[6]

After the training was complete, the research team randomly called on officers to participate in videotaped training scenarios with police instructors who simulated agitated citizens. Before the de-escalation training took place, 64 officers participated in these videotaped scenarios and served as a comparison group to see if the training had changed officer behaviors. Compared to the officers who had not received the de-escalation training, the officers who had received the training were significantly more likely to utilize the techniques taught in the  training. Specifically, the trained officers were significantly more likely to greet the citizen in the scenario, introduce themselves and their agency, repeat the citizen’s statements back to the citizen in a reflective manner and explain the citizen’s options. The trained officers were 6% less likely to use force in the scenarios. When force was used, the trained officers took 7% longer before resorting to the use of force.[7]

The researchers then examined the actual incidences of use of force and citizen complaints recorded by the department. Over the five years before the training, the department averaged 2.68 use of force incidents per 1,000 calls for service. During the year after the training of the patrol personnel, the department averaged 2.63 use of force incidents per 1,000 calls for service. This was a decline of 2%. Over the five years prior to the training, the department averaged 48 citizen complaints per year, but in the year following the training, only 43 complaints were received. This was a decline of approximately 7%. With each officer receiving only a few hours of training, small decreases in use of force incidents and citizen complaints were revealed.[8]  

Louisville Metropolitan Police Department (2019)

A research team headed by Dr. Robin Engel from the University of Cincinnati, examined the impact of verbal de-escalation training on the Louisville Metro Police Department in Kentucky. Over the course of several months during 2019, all of the sworn personnel employed by this agency received de-escalation training. Each employee received two full days of training that included both classroom instruction and role-play scenarios for the purposes of honing the skills taught in the classroom.[9]

The personnel who received the training were surveyed before the training and again three more times after receiving the training. A year after receiving the training, greater than 60% of the personnel reported having used de-escalation tactics at least once in their last 60 days of work. Compared to their survey responses before receiving the training, the personnel demonstrated significantly more positive attitudes about the usefulness of de-escalation techniques.

Using official agency statistics, the research team compared the years before and after the training. It found that in the period after the training, use of force incidents declined by 28%, citizen injuries from use of force declined by 26% and officer injuries declined by 36%. Although the year after the training included the period of the COVID-19 pandemic, it also included the period of prolonged protests and civil unrest in Louisville surrounding the police shooting of Breonna Taylor. In addition, Louisville experienced more than a 100% increase in responses to violent crimes between 2019 and 2020. Therefore, it is unlikely that these reductions in incidents and injuries were due to reductions in the number of police-citizen contacts during the pandemic.[10]

Tempe Police Department (2019)

A research team headed by Dr. Michael White from Arizona State University evaluated the impact of verbal de-escalation training on the Tempe Police Department in Arizona. One hundred officers from the department’s patrol division were selected for the study and half of these personnel completed a two-day verbal de-escalation training program involving both classroom instruction and role-play scenarios. The entire sample of officers was surveyed before, as well as one  year after, the training. The survey’s purpose was to see if the training changed officer behaviors and determine if the trained officers’ responses differed from the officers who did not receive the de-escalation training.[11]

The research team found that both the trained and untrained officers reported positive perceptions of verbal de-escalation tactics, and both groups frequently used these tactics. The officers who had completed the training shared with their peers the techniques that they had learned and the untrained officers also learned from watching the trained officers interact with citizens. Nevertheless, the officers who had received the formal training were still more likely than the untrained officers to use de-escalation tactics, engage in more officer safety techniques (such as maintaining distance and using the contact and cover system), engage in compromise with citizens and exercise a willingness to walk away from situations.[12] 

Conclusions

The impact of verbal de-escalation training has been evaluated in law enforcement, hospital, educational, business and psychiatric settings. Despite the fact that these evaluations have included training courses of different lengths and different types of curricula, the findings are consistent. Verbal de-escalation training provides individuals with knowledge, tools and tactics that give them greater confidence and control in situations involving interpersonal conflict.

While de-escalation training does not eliminate all conflict and violence, by applying the knowledge, tools and tactics they learned, individuals can defuse more conflict situations that might otherwise have led to violence. The existing evidence is growing and consistently reveals the same conclusions.

De-escalation training has been associated with decreases in violence, the severity of the violence and injuries resulting from violence. Curricula and quality may vary, as is the case in any area of training, but the available research clearly indicates that training in verbal de-escalation benefits contact professionals, including law enforcement officers. As common sense would dictate, the research proves that training nurses, teachers and police officers in “how to talk to people” makes a positive difference for them and the people they encounter in their workplaces. 

Armed with this knowledge, it would seem that any people-intensive industry or profession would be well-served to prioritize routine training in verbal de-escalation skills.

About the Author

Richard R. Johnson, PhD, is a trainer and researcher with Dolan Consulting Group. He has decades of experience teaching and training on various topics associated with criminal justice, and has conducted research on a variety of topics related to crime and law enforcement. He holds a bachelor’s degree in public administration and criminal justice from the School of Public and Environmental Affairs (SPEA) at Indiana University, with a minor in social psychology. He possesses a master’s degree in criminology from Indiana State University. He earned his doctorate in criminal justice from the School of Criminal Justice at the University of Cincinnati with concentrations in policing and criminal justice administration.

Dr. Johnson has published more than 50 articles on various criminal justice topics in academic research journals, including Justice Quarterly, Crime & Delinquency, Criminal Justice & Behavior, Journal of Criminal Justice, and Police Quarterly. He has also published more than a dozen articles in law enforcement trade journals such as the FBI Law Enforcement Bulletin, Police Chief, Law & Order, National Sheriff, and Ohio Police Chief. His research has primarily focused on police-citizen interactions, justice system responses to domestic violence, and issues of police administration and management. Dr. Johnson retired as a full professor of criminal justice at the University of Toledo in 2016.

Prior to his academic career, Dr. Johnson served several years working within the criminal justice system. He served as a trooper with the Indiana State Police, working uniformed patrol in Northwest Indiana. He served as a criminal investigator with the Kane County State’s Attorney Office in Illinois, where he investigated domestic violence and child sexual assault cases. He served as an intensive probation officer for felony domestic violence offenders with the Illinois 16th Judicial Circuit. Dr. Johnson is also a proud military veteran having served as a military police officer with the U.S. Air Force and Air National Guard, including active duty service after the terrorist attacks of September 11, 2001. Before that, he served as an infantry soldier and field medic in the U.S. Army and Army National Guard.

References

[1] Engel, R. S., McManus, H. D., & Herold, T. D. (2020). Does de-escalation training work? A systematic review and call for evidence in police use-of-force reform. Criminology & Public Policy, 19(4), 721-759.

[2] Engel et al. (2020), p. 727.

[3] Engel et al. (2020), pp. 728-730.

[4] Engel et al. (2020), pp. 731-734.

[5] Engel et al. (2020), pp. 734-736.

[6] Giacomantonio, C., Goodwin, S., & Carmichael, G. (2020). Learning to de-escalate: evaluating the behavioral impact of Verbal Judo training on police constables. Police Practice and Research, 20(4), 401-417.

[7] Giacomantonio et al. (2020), pp. 401-417.

[8] Giacomantonio et al. (2020), pp. 412-414.

[9] Engel, R. S., Corsaro, N., Isaza, G. T., & McManus, H. D. (2020). Examining the Impact of Integrating Communications, Assessment, and Tactics (ICAT) De-escalation Training for the Louisville Metro Police Department: Initial Findings. University of Cincinnati Center for Police Research and Policy.

[10] Engel, R. S., Corsaro, N., Isaza, G. T., & Motz, R. (2021). Examining the Impact of Integrating Communications, Assessment, and Tactics (ICAT) De-escalation Training for the Louisville Metro Police Department: Supplemental Findings. University of Cincinnati Center for Police Research and Policy.

[11] White, M. D., Mora, V. J., Orosco, C., & Hedberg, E. C. (2021). Moving the needle: can training alter officer perceptions and use of de-escalation? Policing: An International Journal, 44(3), 418-436.

[12] White et al. (2021), 418-436.

About two years ago, in the Spring of 2020, newly hired police recruits were about to begin their all-important field training program.  They were ready to put their academy training to use in the field.  But the one-two punch of COVID-19 and the “no contact, no complaint” mentality that permeated the profession in the wake of civil unrest and calls for defunding the police lead to a training gap for far too many officers in far too many agencies.

In 2020 and 2021, wave after wave of individuals joined the law enforcement profession. These brave men and women chose a law enforcement career during a period when being a law enforcement officer was very unpopular. They completed their academy training, in which they learned the most rudimentary skills required for law enforcement officers. Then, they graduated to field training with a field training officer (FTO), where they would be expected to begin practicing their basic skills in a real-world environment. They would learn how to make vehicle stops, handle calls for service, make arrests, complete the booking process, testify in court, identify suspicious circumstances, “read” people and de-escalate interpersonal conflicts, all under the tutelage of an experienced FTO.

They were to complete their field training period and then begin solo patrol, while still on probation, under the watchful coaching of street sergeants. These field supervisors would continue to provide training, guidance and feedback as the rookie officers completed their first years on the job, encountering many scenarios for the first time.

Unfortunately, far too many law enforcement officers hired over the last two years simply did not get that caliber of field training and field supervision experience. First, the pandemic hit. Traffic, crimes and calls for service declined during lockdowns. The jails discouraged agencies from booking arrestees and many courts closed down most operations. Administrative functions within law enforcement agencies that could be performed remotely from home or one’s patrol vehicle were encouraged so that personnel could avoid the police station. In-service training was canceled or shifted to online learning. Proactive stops were discouraged. And thousands of new officers across the nation spent their crucial field training periods and rookie years standing by and doing remarkably little.

Then, the civil unrest and “defund the police” protest movement gave these rookie officers some valuable civil disturbance experience, but denied them more routine policing experiences. The anti-police movement fostered a “no contact, no complaint” mentality among many experienced officers, which in turn denied rookie officers valuable field experience. Their FTOs often adopted this mentality and subsequently infected many of the rookie officers with the same mindset, as the avoidance of proactive policing became the norm within the agency, precinct or shift.

At the same time, high turnover in the law enforcement profession meant that thousands of officers moved up in the ranks to become new FTOs or sergeants across the nation. Instead of conducting proper field training and proactive shift work, however, their time was spent social distancing, managing protests and responding only to calls for service that could not be resolved over the phone. This was compounded by the impact had by months of anti-police rhetoric, talks of “reimagining” public safety by replacing cops with social workers and the defunding of municipal agencies, which ultimately damaged the morale of the officers these FTOs and sergeants were supposed to train and lead.

Now, two years later, agency leaders across the country are realizing that we have a real problem. The unintended consequences of these COVID safety measures and political pressures resulted in modified training and operational responses that often did not work. Critical skill development—professional responses to crimes in progress, traffic enforcement and field contacts—have been compromised.  We must, with a sense of urgency, foster and protect our investment in police talent. We must clarify the true mission of our agencies and restore confidence in officers’ abilities to proficiently perform fundamental law enforcement tasks.

A new group of officers that were denied valuable training, coaching, and experience in fundamental proactive police work was born. A new group of FTOs and field supervisors that were denied training and experience in how to lead in a proactive police work environment was also born. As the pendulum swings back toward proactive policing, in response to the inevitable spikes in crime that de-policing fosters, many officers, FTOs and field supervisors are ill-equipped to take on revived proactive policing tasks. These groups of new officers are being labeled “COVID cops” within many agencies, and they are in desperate need of the training that they did not receive over the course of the last two years. Likewise, their newer front-line supervisors and FTOs were also denied similar guidance, experience, and training for their current roles.

Simply telling these officers to “go out there and get guns off the street” is not enough. Public safety and officer safety are imperiled when inexperienced officers jump into action without proper training and experience. Legal liability and damage to public trust is a regrettable and predictable outcome.

The Basics: Just Like Blocking and Tackling

Anyone who has ever closely watched a football game recognizes good blocking and tackling when they see it on the field. They can describe it and even identify when these actions are performed the right way or the wrong way. Executing an effective block or tackle on the football field, however, is an entirely different task. Blocking another player or tackling the ball carrier in a manner that is effective and does not result in a penalty takes practice, coaching and repetition. The concepts of blocking and tackling may be simple, but the actual performance takes practice. The same is true for the basic skills of policing. We can teach the basic concepts in the academy, but the real learning happens through practice and repetition in the field.

Adults learn best by doing. Failing to “do” results in a failure to learn.  We achieve the greatest skill retention when we think, see, say, hear and perform skill tasks. Retention is the measure of success in training, particularly when we can draw from those training lessons from our long-term memory while under stress because we have practiced the skill repeatedly.  This is why it is so crucial to put FTOs and supervisors in the teaching mode to exponentially accelerate skill retention and improve operational outcomes. Proper training turns response into a reaction, instead of a thought process, and slows down the game with tenacity, assurance and boldness. 

We must ask ourselves, have we abandoned the long-term retention of core competencies during this unprecedented time of COVID protocols and political pressures? Are we producing confident officers who can react confidently (and properly) to critical situations?

Just as is the case with football, success always begins with solid fundamentals. We must return to the basics to get back on track. The field training program is the gatekeeper of these fundamentals policing. Those who cannot demonstrate the fundamentals in the field need coaching or, if no improvement occurs, termination as a probationary officer. Many field training programs have been adversely impacted and trainees deprived of developing the knowledge, skills and ability to proficiently perform. Not only were traffic stops, field interrogations and physical arrests minimized, but simultaneously, patrol officers were directed not to enforce certain selected statutes and ordinances over the last two years. In many agencies, patrol personnel were directed to avoid reporting certain types of incidents, not respond to certain offenses and avoid engaging in proactive investigations or stops during their free patrol time. This contributed to the decrease or even termination of proactive, officer-initiated enforcement in some agencies. “Reps” (repetitions) of the aforementioned skills lead to decision-making and problem solving, giving rookies the opportunity to receive feedback, in turn producing  better outputs. This is how officers truly learn the core competencies of the profession. In many departments, because of the last two years, new officers have not experienced sufficient reps executed at the speed required to develop self-reliant and confident officers.

No skill set is more fundamental than the use of force—the officer’s lawful attempt to gain compliance by physical means, based on the level of resistance presented. Control options for use of force must include verbal direction, compliance controls and physical controls—not just the intermediate level weapons and deadly force. Officers need to physically train for all control options.  If they haven’t been properly trained in field training, then it is the task of front-line supervisors to train them.  Failing to close this training gap presents a huge set of liability, officer safety and public safety risks.

In many agencies, some officers are reluctant to use force or make stops when it is appropriate to do so. At times, this hesitancy has been tolerated or even encouraged. This results in long term deprivation of repeatable law enforcement mechanics and confident skill execution. This reluctance exacerbates the problems posed by inexperienced officers and eliminates opportunities for them to develop confidence in their problem-solving and decision-making skills. It compromises the delivery of professional police services and puts both officers and citizens at significant risk. Furthermore, these conditions create an environment ripe for bad habits that will take much longer to correct than the time required to instill good habits in the first place. 

What is predictable is often preventable, and we need to make up lost ground. We need to create a robust training infrastructure to reinstate the “blocking and tackling” fundamental skills of law enforcement to prevent tragedies. There are no mulligans or do-overs in law enforcement. Investment in our talent is absolutely imperative for officers to make safe, ethical and lawful decisions while citizens look to them to take control.

The Front-Line Leadership Gap

While many new officers were denied the proper field training experiences they needed over the last two years, new FTOs and sergeants began their new roles in a similarly problematic way. Lockdowns and social distancing caused many FTO and field supervisor training courses to be canceled. Even when training opportunities were available, personnel shortages due to COVID and the demands of civil disturbances meant agencies could not spare any personnel to attend training. Just as many new officers need to be retrained (or receive the basic initial training they were denied), it is now time for individuals who became supervisors or FTOs over the last two years to learn the skills they need to lead officers in this environment of rising crime rates and heightened civil liability.

The necessity of “leading from the front” is difficult to over-emphasize in this area.  If sergeants have allowed their personnel to fall into the trap of a purely reactive policing strategy of “no contact, no complaint”, the way forward begins with a change in their own actions in the field. Courageous leadership is required to show officers what proactive patrol strategies look like. Supervisors cannot credibly critique subordinates for failure to engage when they are also guilty of the very same behavior.

Front-line supervisors must “inspect what they expect” on a regular basis and be willing to confront lack of activity or inappropriate behaviors when they observe them. Front-line supervisors and FTOs may not have caused the present crisis of COVID Cops who lack the skill set necessary to engage in proactive police work, but it largely falls to them to correct the deficiencies that they see. 

The Liability Associated with Skill Depreciation

Any police-public contact can potentially become a high-risk situation. Lack of repeated encounters with the public, especially under difficult circumstances, means that when high-risk incidents occur, officers are less prepared to act in the best manner possible. Because they lack the ‘reps’ performing in these situations, they are more likely to make mistakes that pose a threat to officer safety, public safety and trigger liability.  Common sense dictates that officers with little or no experience dealing with X, or have not shown proficiency in performing X, will make costly mistakes when encountering X for the first time in years, or for the first time in their careers.

One of the most concerning examples of this skill depreciation is the problem of officers who do not have the training, practice and confidence necessary to effectively gain compliance – either through verbal de-escalation when possible or effective use of physical control techniques when necessary. Presumably, basic weapons training (firearms, baton, ECD, etc.) has been conducted to meet agency and state standards, even for the COVID Cops. But if that is all that they have been effectively trained to do, it is tragically unsurprising when they fail to recognize other use of force options to gain lawful compliance that lie between verbal de-escalation and the use of a firearm.

This basic lack of repetition leading to insufficient skill sets, and in turn leading to critical performance failures, is not unique to law enforcement. Imagine suffering from an ailment that requires heart surgery. Which surgeon do you want to conduct the procedure? One who has conducted hundreds of heart surgeries over the last three years? Or one who has conducted only two surgeries over the last three years, out of an abundance of caution because, after all, heart surgeries are risky and could invite lawsuits when conducted incorrectly?  

Now apply this same concept to law enforcement. If a loved one is in a heated dispute with a hostile neighbor, customer or employee, which officer do you want responding to the call for service? An officer who has successfully handled hundreds of disputes of varying kinds with varying dynamic threats over the course of the last two years? Or a COVID Cop who has only attended a few disturbances, mostly as the backup officer, and has never actually gone “hands on” with a subject over the course of his two-and-a-half years in law enforcement? Which of these two officers is more likely to deal with an assailant competently and which is more likely to trigger liability and risk the safety of everyone involved? 

No Time is Better than the Present

Front-line supervisors, FTOs and the officers that they lead, need retraining and they need it as soon as possible. Habits are being formed that will only become harder and harder to break. We cannot get back the last two years, but we can mitigate the skill depreciation and training failures by revving up efforts to enhance training—particularly in the areas of tactical and front-line leadership training.

For many agency leaders, there is a temptation to relax training standards in the face of staffing shortages and a sense that the “pressure is off” compared to what the national dialogue was a year ago. But this is exactly the time when agency leaders should be prioritizing training—especially for the most inexperienced officers—as much as possible.

With the current trajectory of crime, assaults on officers, serious traffic accidents, drug overdoses and declining quality-of-life, law enforcement leaders must make an immediate and dramatic impact with proactive patrol strategies. Replace the reactive policing strategies of the pandemic with a clearly enunciated statement of support for their officers and a commitment to proactive, professional policing. Re-fund police training to fill the aforementioned gaps. Commit to dynamic, realistic, evidence-based and relevant training based on practice and repetition. Give officers a frame of reference, contextual conditioning and stress inoculation to slow down the game and build  the professional confidence to consistently resolve any problem. It is time to make up for the training deficiencies the policing profession incurred over the last two years. It is time to get back to work.

About the Author

Lt. Dan Lind has more than 33 years of law enforcement experience and retired after 30 years with the Grand Rapids Police Department. He served as the Training Bureau Commander for 20 years, and previously held Sergeant (Team Leader) on the Department’s full-time SWAT and Street Crimes Unit. Additional assignments included Detective Unit Fugitive Apprehension Team, Patrol, Background Investigator, Recruiter, FTO, and Instructor. The vast majority of his career has been dedicated to Tactical Operations, Training, Personnel Development and most notably the development and implementation of dynamic scenario-based training.

Lt. Dan Lind (Ret.) and Attorney Matt Dolan teach FTO Training: Legal Liability and Best Practices.

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.  

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group. 

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

In the months ahead, law enforcement agencies will be struggling to fill vacant positions in an extremely difficult recruiting environment.  Beyond the labor shortage that appears to be impacting countless professions from nursing to transportation to hospitality, law enforcement vacancies seem particularly difficult to fill.  This is true not only because of the rigors of the job, but also because of the sustained anti-police rhetoric which has dominated so much of popular culture in the last two years.  Even many of the agencies that were defunded only a year ago are now being tasked to pull a “U-Turn” and increase staff in the face of a surge in violent crime.  

Confronted with pressures to hire officers as quickly as possible and generate recruit classes that are more diverse, there will inevitably be the temptation to cut corners and ignore red flags to get “boots on the ground”.  These increasing pressures may unfortunately mean that those boots are not filled with qualified men and women who demonstrate the character traits and competencies necessary to successfully serve their communities.  Making these short-term fixes even more appealing are their delayed consequences; bad hires may not become public safety, legal liability or public trust disasters for many months.  Short-term thinking could motivate hiring decisions that may fill the ranks today but make for bad headlines for years to come.

At this moment, the law enforcement profession, and the citizens who depend on it, need agency leaders and other key personnel to meet the ethical challenge of resisting the temptation to hire unqualified applicants who, in the long run, can inflict tremendous damage on agencies, the profession and the communities that these agencies serve.  

The last thing that officers and citizens need now is “warm bodies” hired into the law enforcement field who will ultimately bring disrepute to the profession, rather than further the mission to protect and serve.  By learning from the mistakes of the past, being wary of common hiring pitfalls and understanding the long-term impact of negligent hiring practices, agency leaders can uphold their integrity and that of the profession without contributing to the detriment of their agencies and communities.

We’ve Been Here Before

Law enforcement’s hiring frenzies of the 1980s and early 1990s should teach us that bad things happen when we “hire them now and ask tough questions later.”  Skyrocketing violent crime rates, an economic recession and federal funding assistance to hire more police officers nationwide resulted in hiring surges in law enforcement agencies across the nation during the aforementioned decades.  Accomplishing the goal of getting “boots on the ground” quickly, however, often came at the expense of hiring quality candidates.  

The New York City Police Department’s hiring frenzy directly contributed to a corruption scandal in the 1990s.  In May 1992, a joint drug task force in New York City revealed a ring of corrupt NYPD officers who stole drugs and money, sold drugs themselves, and engaged in various forms of brutality.  An investigation by the Mollen Commission revealed that, in the midst of the hiring frenzy, overwhelmed background investigators were not conducting thorough investigations and the department was placing applicants in the academy before background checks had even been completed.

The authors of the Mollen Commission Report stated that, “[a]pproximately 20 percent of the officers suspended or dismissed should never have been admitted into the Department.”  The Commission noted this failure to follow proper applicant screening procedures when it wrote, “[t]he Department has routinely admitted applicants to the Department—and put them on the streets as sworn officers with guns and shields—before their background checks are complete. Eighty-eight percent of the (corrupt) officers in our study, for example, entered the Police Academy before the completion of their background (investigation).” 

The Commission revealed that during the hiring surge, background investigations were often not completed until after the applicant became a sworn police officer.  “This is particularly troublesome because by the time recruits have graduated from the Police Academy and become sworn members of the Department, much time, energy and money has been invested in them. Consequently, the focus shifts from the question of whether the applicant is qualified, to how the Department could justify dismissing a sworn police officer, which carries a heavier burden of proof.”

The same scenario was repeated in many other law enforcement agencies across the nation during that era.  A 1985 corruption investigation of the Miami Police Department uncovered a group of corrupt officers that eventually became known as the “Miami River Cops”.  This investigation revealed a contingent of twenty Miami officers who engaged in murders, robberies, burglaries, drug deals, and bribes.  An investigation by the lead prosecutor in the case revealed that, just as had occurred in New York City, the Miami Police Department had gone through a hiring surge, beginning in 1980, in response to a spike in violent and drug crime.  This resulted in a curtailing of thorough background investigations.  Every single one of the twenty convicted Miami River Cops had been hired after 1979 (during the hiring surge) and many had past histories of criminal behavior, violence, drug and alcohol abuse, or mental health issues before their date of hire.  Similar situations contributed to criminal scandals in New Orleans, Louisiana and Gary, Indiana in the early 1990s, and the Rampart Division Scandal for the Los Angeles Police Department in the late 1990s.

While these cautionary tales do not indicate that every bad hire will result in criminal behavior or an extreme case of corruption, they do illustrate the disastrous results that can come from cutting corners on the background investigation process.  Throughout the country, there are less egregious examples of the outcomes of hiring frenzies.  For instance, there are agencies in which department members are forced to deal with problem officers while the police chiefs or sheriffs who were responsible for these hires have long since retired from the profession.  A leader’s greatest legacy in law enforcement is the men and women that carry on after the leader has left.  Hiring people that have no business joining the ranks of law enforcement hurts the agency and the profession.  The damage done by today’s bad hires on tomorrow’s recruiting efforts is incalculable.  

A State Certification is Not a Replacement for a Thorough Background Investigation

The temptation to rush the background investigation and hiring process is often heightened when the applicant is already a certified officer.  So, despite any behavioral issues an applicant may have displayed through past employment with other agencies, he or she represents an opportunity to expedite the process of getting “boots on the ground” without the time and money investment of academy training.  While many officers seek lateral employment opportunities for legitimate reasons, there are some who have left their past employers out of necessity due to conduct issues, but have managed to maintain their state certification.  

This national problem of “gypsy cops” is not a new one.  Toxic officers engage in misconduct in one agency after another over the course of a career and, in the meantime, cost thousands of dollars in lawsuits and inflict damage to agency reputations and morale along the way.  These officers leave one agency, where they are widely known to be a serious problem, only to find a new home within a new agency where their bad behavior continues until it is time to move again.  

As states across the country look to improve the processes by which officers are certified and de-certified, agency leaders should resist falling into the trap of assuming that their state boards of certification are ultimately responsible for hiring decisions.  Make no mistake: if unqualified officers with checkered pasts are hired and engage in misconduct, the fact that they were certified by the state at the time of their employment does not absolve the agency from liability in a court of law or in the court of public opinion. 

Going Beyond Automatic Disqualifiers

An agency’s automatic disqualifiers, whether related to past criminal convictions, drug use or other clear “red flags”, are a vital part of the vetting process.  However, no compilation of automatic disqualifiers—no matter how well drafted—will render a thorough background investigation less important.  Possible disqualifiers related to temperament and character will inevitably emerge that do not fit neatly into one of the automatic disqualifier categories.  Past supervisors, neighbors, family members and others are invaluable sources of information.  The information they provide may not be in the form of a criminal conviction or even an arrest.  It may not point to prohibited drug use.   It may, however, reveal issues pertaining to anger management, mental health, alcohol abuse, trustworthiness or any other of a multitude of concerning character traits.

The fact that a candidate occupies the problem house or apartment in a community is relevant.  The fact that the police are called to their residence on a regular basis in response to noise complaints is relevant.  The fact that multiple supervisors or personal references describe them as somehow prone to anger is relevant.  Even if none of these pieces of information are a part of our list of automatic disqualifiers, they are still relevant.

It seems likely that the over-reliance on automatic disqualifiers is born of an interest in speed and convenience.  Conducting home visits, canvassing neighborhoods and interviewing references all require significant time and effort.  Agency leaders are tempted to expedite the hiring process by focusing less on these fundamental investigative techniques.  As important as it is to process applicants as quickly as possible, neglecting these tried-and-true background investigation strategies may lead to missing those critical pieces of information that do not show up on a criminal record or social media account. 

Hiring the Wrong People Today Makes it Harder to Recruit the Right People Tomorrow

In 2022 and beyond, hiring decisions will be made that will profoundly impact the future of American policing.  Who will be our next generation of law enforcement officers?  Beyond the legal liability concerns related to negligent hiring, the societal costs are much greater.  

If agency leaders give in to the temptation to fill recruit classes hastily with a short-sighted mindset in order to “hit their numbers” in hiring, without due regard for the quality of the people being hired on, what is the predictable impact on the occurrence of police misconduct on and off the job?  If the past is repeated and these hiring frenzies continue to result in unqualified individuals being hired, and in turn a rise in instances of misconduct, the challenge of recruiting will only get much more difficult.

It has never been harder for law enforcement agencies to hide their problem people than it is today.  The odds of a bad hire becoming the face of the agency is greater than ever before.  Therefore, the legal, public safety and public trust costs of negligent hiring decisions have never been a greater risk.

For the generation of leaders in law enforcement who will be retiring in the coming years, the most significant impact they will have on your agencies and their communities may be the role you play in vetting and hiring the next generation of officers who will answer the call long after they retire.  That may well be their legacy, for better or for worse.  

About the Author

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.  

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group. 

His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, Supervisor Liability for Public Safety, Confronting Bias in Law Enforcement and Internal Affairs Investigations: Legal Liability and Best Practices.

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

Across the nation, government employers are issuing COVID-19 vaccine mandates.  These mandates range from requiring either a weekly negative COVID test or a vaccine, to a zero tolerance vaccine mandate as a condition of continued employment.  Further complicating matters is the fact that different local governments seem to be accepting medical and religious exemptions to these policies in dramatically different ways.

The issues presented by these vaccine mandates are novel as a result of two distinct factors:

First, COVID-19 is not a public health threat identical to the likes of smallpox.  Case law siding with a government interest to require inoculations from these and similar diseases is not identical to the present questions we face.  The rate of hospitalization and death—particularly among the young—are so distinct when comparing COVID-19 to past outbreaks of smallpox and other outbreaks addressed in past cases, that the questions are qualitatively different.  These details matter when it comes to questions of government interference with individual liberty.

Second, the fact that the medical treatments necessary to inoculate an employee from COVID-19 is uncertain and potentially unending also presents a unique set of questions.  Requiring a smallpox vaccine is a one-time proposition.  Measures to combat COVID-19 may prove to be an ongoing, and even unending, proposition which arguably moves mandate outside the realm of a simple vaccination to an ongoing medical regimen by which the employer periodically informs employees that new medical treatments will be required throughout the year.

This article is not intended to give a full and comprehensive review of the relevant legal and practical considerations involved.  It is not intended to give a comprehensive “road map” to relevant case law on this subject.  Rather, in light of the unique nature of these vaccine mandates, this article is intended to give both first responders and government employers information to consider when making decisions that could impact public safety, personal liberty and legal liability.

Employee Rights and COVID-19 Vaccine Mandates

At the present time, the FDA has not approved a new round of “booster” shots for the general public, but prominent government officials are indicating that the possibility of new booster approval is coming.  With that approval, it is foreseeable that many of the same employers who are seeking to mandate the initial vaccination will similarly mandate the next round of boosters, with potentially more to come in the future.  Therefore, even for employees who have already received their vaccination, that may not prove to be sufficient to be deemed “fully vaccinated” as new boosters are approved and distributed.  That makes this issue relevant, not only to the currently unvaccinated, but to the first responders who have already taken the first vaccination but will be required to submit to further booster vaccination shots moving forward.

Now, or in the event of future booster mandates, employees should be aware of the two most commonly cited exemptions sought by employees.  The first are medical exemptions and they are fairly straight-forward in principle, but extremely case-specific relative to an individual employee.  Likely to require the cooperation of a medical professional, those seeking a medical exemption are asserting that it is medically unnecessary, or possibly medically dangerous, for them to receive the vaccination, according to the professional opinion of a licensed medical professional. 

The second, religious exemptions, are distinct from medical exemptions in that there is likely no need to gain the consent of a religious leader or theologian to assert the exemption.  You do not need a priest, rabbi or pastor to somehow approve of your request.  All that is required is that the employee has a sincerely held religious belief that would be violated by receiving the vaccine.  For practical purposes, the issue is whether an individual has sought their conscience through prayer or meditation and have concluded that it would be a violation of their conscience.  A sincere belief that a higher spiritual power is informing your discernment that the medical treatment in question poses a threat to you, your unborn child or your family is likely sufficient under the law to assert a religious objection and seek an exemption and accommodation.

There are three practical points to be considered whenever an employee is facing pressure from an employer to receive a medical treatment to which they object on medical or religious grounds.  More fundamentally, these considerations should be kept in mind when receiving any directive which an employee believes is a violation of conscience: 

(1) Make the objection and request for exemption and accommodation known in writing.  The request does not need to include any intimate details beyond the simple assertion that you are making.  

(2) If your employer rejects the request for an exemption and you have chosen based on careful consideration not to receive the medical treatment—do not resign from your position but allow your employer to take adverse employment action so as to avoid any confusion as to the nature of your separation.  As with any directive which you believe is a violation of your conscience, asserting your right to object should not be subject to confusion due to your resignation.  This may be relevant in the event that you explore future legal options with regard to your termination.  

(3) If your employer rejects the request for an exemption and you have chosen not to receive the medical treatment, based on careful consideration—make sure that you have retained a clear written record of your request for exemption and accommodation.  This may be relevant in the event that you explore future legal options with regard to any side effects that you suffered as a result of the medical treatment you received without your full consent, as it was a condition of your employment.

Management Considerations

As with any significant policy initiative, employers should consider the clear purpose of the rule, particularly if the violation of the policy could result in termination.  Clearly define the government interest—public safety, employee safety, etc.—and be sure to clearly articulate the “why” behind the policy in communicating it to employees.  Whenever possible, go beyond the “ask, tell, make” approach.  Instead, take the time to address employee concerns and err on the side of giving employees more time (rather than less) to come into compliance.  Furthermore, if the employer has plausible information indicating that the policy implementation will mean terminating a large number of officers, deputies, firefighters or EMTs, make sure you consider the practical impact that those terminations will have on public safety and employee safety.

In implementing any vaccination mandate policy, clarify whether exemption requests will be considered and how those requests will be evaluated.  In accepting or rejecting exemption requests, be careful to clearly articulate—for the purpose of fair treatment as well as future litigation—why each and every request was accepted or rejected on its own merits without bias or favoritism prohibited by law.

Also, with respect to exemption requests, be very clear and intentional in whose word is taken at face value and who is subject to further investigation.  Any investigation as to the sincerity with which a religious exemption is requested, for instance, should not appear to be based on favoritism, politics or protected class membership, among other lawfully prohibited factors.  Similarly, investigations into medical exemption requests should be undertaken only after considering the possible legal implications of requiring personal health information that may have ramifications under statutes such as the Americans with Disabilities Act (ADA).  

Lastly, employers should be mindful of possible disparate impacts of vaccine mandate enforcement.  Are more racial minority employees likely to be disciplined or terminated?  Or more female employees?  Or more pregnant female employees?  Although a policy’s disparate impact does not necessarily mean that the policy itself is unlawfully discriminatory, employers should expect any disparate impact will be subject to legal scrutiny.

About the Author

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability. His training focuses on helping agency leaders create sound policies and procedures as a proactive means of minimizing their exposure to costly liability. A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.

His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, and Supervisor Liability for Public Safety.

Disclaimer: This article is not intended to constitute legal advice on a specific case.  The information herein is presented for informational purposes only.  Individual legal cases should be referred to proper legal counsel.

In 1829, Sir Robert Peel famously put forth his nine principles for policing which has served as a model for representative democracies throughout the world.  The First Peelian Principle, crafted by the creator of the Metropolitan Police in London and the man often credited with being the father of modern policing, simply states that “the basic mission for which the police exist is to prevent crime and disorder”.  This principle has guided American policing policies for generations.  But there is a new model that has emerged in recent years that seeks to discard the First Peelian Principle in favor of other objectives.

I refer to this model as the “First Do No Harm” model of policing.  Borrowing from the often misunderstood medical concept, this terms is intended to paint a picture of a defensive policing model focused not on preventing crime but on minimizing legal liability, citizen complaints, negative publicity and disparate racial impacts.  The prevalence of violent crimes, including homicides, are not significant considerations in this new model.  

When the COVID-19 pandemic first broke, many agencies effectively communicated to the public what normal operations in which they would and would not be engaged.  Minor traffic violations, misdemeanors and property crimes would not be enforced due to fear of contagion.  Similarly, the fear of lawsuits, public outcry and much more have resulted in many agencies experiencing a seventeen-month stretch of limited enforcement.

In some ways, this approach is not new.  De-policing in times of public outcry has been frequent and widely documented.  What is new is that the “First Do No Harm” model is being pursued as a long-term strategy and is being codified into law in a way that de-policing was not.

De-Policing Versus a Formalized “First Do No Harm” Model

The strategy of de-policing is intended to decrease officer interactions with citizens and suspects.  This is done in order to minimize the likelihood of controversial enforcement actions that could have negative results for individual officers as well as their agency leaders and elected officials.  It is not new.  Whether referred to as “No Contact, No Complaint” or “Hands Off” or any number of other terms, the strategy of disengaging from proactive policing strategies have proven time and again to be disastrous for society’s most vulnerable.  De-policing results in more innocent men, women and children being victimized and fewer criminals being successfully prosecuted.  And these disastrous results disproportionately harm those in low-income and disproportionately Black and Hispanic neighborhoods.

But in light of the recent public proclamations by some local political and law enforcement leaders, it seems clear that de-policing is being elevated from an informal and generally short-term reaction to public scrutiny, into a more permanent strategy.  

There is a logical argument in favor of formalizing the “First Do No Harm” approach which is distinct from any debate regarding the wisdom of such an approach.  If cities are going to engage in de-policing, for better or for worse, then there is arguably an ethical obligation to formalize this policy for officers and citizens.  Officers are entitled to concrete guidance regarding the rules of engagement and citizens are entitled to know what police leaders will and will not direct their officers to do in their official capacity.  Residents and business owners in cities across the country are being put on notice that “low level” crimes are no longer police matters.

The Hippocratic Oath and Law Enforcement

The Hippocratic Oath, from which the “First Do No Harm” model is derived, is often misunderstood.  As Dr. Robert Shmerling, a physician writing for the Harvard Medical School Health Blog, recently stated:

[I]f physicians took “first, do no harm” literally, no one would have surgery, even if it was lifesaving. We might stop ordering mammograms, because they could lead to a biopsy for a non-cancerous lump. In fact, we might not even request blood tests — the pain, bruising, or bleeding required to draw blood are clearly avoidable harms.

But doctors do recommend these things within the bounds of ethical practice because the modern interpretation of “first, do no harm” is closer to this: doctors should help their patients as much as they can by recommending tests or treatments for which the potential benefits outweigh the risks of harm.

As Dr. Shmerling points out, it would be clearly unethical for doctors to allow patients to suffer and die out of an abundance of caution with respect to their own responsibility.  But police agencies across the country, at the behest of elected officials, are pursuing such an approach.  If more people are shot, stabbed, murdered, raped and otherwise victimized, that is a function of factors outside of law enforcement’s control, the argument asserts.  We cannot arrest our way out of this problem is the common mantra.  If crime and disorder spreads, under this model, the policing strategies are not to blame.  We know this because so many police leaders and elected officials remind us continually that issues like “systemic racism” and gun control policies are to blame, not the nature of police activity.  

The Value of Naming the New Model

In order to assess the costs and benefits of what we are seeing in departments across the country, it would be helpful to name it.  The “First Do No Harm” model of policing is in its infancy.  We do not yet know the extent of the impacts it will have in the months and years to come.  But it seems clear that assessing crime patterns and quality of life developments without considering the impact of law enforcement strategies makes the task of common sense analysis impossible.

As an attorney who has spent nearly 9 years training and advising law enforcement professionals in the areas of legal liability and risk management, the assumption has always been that managing—rather than eliminating—liability should be the goal due to the nature of the job.  If you are pulling over drunk drivers and responding promptly to calls for service and acting when you see crimes in progress, there is going to be some liability.  The “First Do No Harm” model seeks to move our agencies much closer to zero liability.  It seems safe to assume that legal liability will be lessened because the less police officers engage in police work, the less often costly mistakes will be made.

But the more fundamental question is: if the “First Do No Harm” model is the future of policing for many communities, why should those citizens incur the cost of a police department in the first place?  Why pay a doctor who simply observes a patient but provides no actual medical remedy?  The new model may actually prove to be one of the strongest arguments in favor of de-funding the police.  

The Nine Peelian Principles, taken as a whole, emphasize the vital importance of gaining the consent of the governed.  Sir Robert Peel asserted that if the police do not have voluntary cooperation and support of the public, their operations are not sustainable.  It would seem helpful to describe the “First Do No Harm” approach to the public clearly and honestly so that they can make informed decisions about the kind of policing that they will support.

Citizens deserve to be as informed as possible when it comes to the safety of themselves and their families.  And if the human costs of this new model of policing prove too heavy for them to bear, they are entitled to know what allowed the contagion of violence to spread.  

It is called the “First Do No Harm” approach to policing.  And it may have very serious consequences.

About the Author

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability, risk management and ethical leadership.  His training focuses on helping agency leaders create ethically and legally sound policies and procedures as a proactive means of minimizing liability and maximizing agency effectiveness.  

A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.

His training courses include Confronting the Toxic Officer, Recruiting and Hiring for Law Enforcement, Making Discipline Stick®, and Confronting Bias in Law Enforcement.