Basic SWAT

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Basic SWAT

• Legal Issues in SWAT

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Legal Issues

• Justification of SWAT existence
• Use/Non-Use of SWAT
• Excessive Use of Force
• Less-Than-Lethal Force
• Search and Seizure
• Media and SWAT Teams
• Legal/Other issues related to Training

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Disclaimer

• While efforts have been made to review the
  accuracy of this information with respect to
  legality in each jurisdiction, it should only be
  used as a beginning resource, and does not
  necessarily express the views of the Texas
  Tactical Police Officers Association. Standard
  legal sources within your jurisdiction must be
  checked to confirm the information before relying
  on it, therefore this information is accepted AS
  IS with no warranties expressed or implied.

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• IT IS THE DUTY OF EVERY PEACE OFFICER TO PRESERVE
  THE PEACE WITHIN HIS JURISDICTION, AND TO EFFECT
  THIS PURPOSE YOU MUST USE ALL LAWFUL MEANS.

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• What establishes the need to be concerned about
  legal issues?

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• 42 U.S.C. Section 1983
• Every person who, under color of any statute,
  ordinance, regulation, custom, or usage, of any
  state or territory or the District of Columbia,
  subjects or causes to be subjected, any citizen
  of the United States or other person within the
  jurisdiction thereof to the deprivation of any
  rights, privileges, or immunities secured by the
  Constitution and laws, shall be liable to the
  party injured in an action at law, suit in equity
  or other proper proceeding for redress.

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• Monell v. Department of Social Services, 436 U.S.
  658, 58L, Ed. 2d. 611, 98 S. Ct. 2018 (1978)

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• Texas Tort Claims Act (or other State Tort Laws)
• Use of tangible property or use of motor driven
  equipment
• Limit of Liability 300,000 per plaintiff or
  500,000 per Incident
• Found in the Civil Practice and Remedies Code
• Scope of Duty vs. negligence
• Defense of officer by City
• Home Rule vs. General Law ( City Charter)

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• Texas Penal Code (39.84)
• violation of civil rights of person in custody

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• Police Chiefs
• Internal sanctions

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• All equates to

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• How are they going to figure out how to blame
  this shit on me?

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• Peter Kraska and Victor Kappeler, (Eastern
  Kentucky University) Militarizing American
  Police The Rise and Normalization of
  Paramilitary Units (1997)
• Diane Cecilia Weber, Cato Institute B Briefing
  Papers) Warrior Cops, The Ominous Growth and
  Paramilitarism in American Police Departments
  (August 26, 1999)

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• Salinas v. Carpenter, 980 F.2d 299 (5th Circuit
  1992)
• (w)e do not say that this crisis was properly
  handled or that Sheriff Carpenter made no
  mistakes. We only say that there was denial of
  Junita Hermosillos constitutional rights

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• DeShanney v. Winnebago Count Department of Social
  Services. 489 U.S. 187 (1989)
• . A states failure to protect an individual
  against private violence generally does not
  constitute a violation of the due process clause,
  because the clause imposes no duty on the state
  to provide members of the public with adequate
  protective services.
• . The substantive due process clause is phrased
  as a limitation on the states power to act, not
  as a guarantee of certain minimal levels of
  safety and security while it forbids the state
  itself to deprive individuals of life, liberty
  and property without due process of law, its
  language cannot fairly be read or imposes an
  affirmative obligation on the state to ensure
  that those interests do not come to harm through
  other means.

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• DELIBERATE INDIFFERENCE!!!!

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• Downs v. United States, 522 RI 2nd 990 (1975)

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• Allen v. The City of Winter Haven, 541 So.2d 128
  (Fla. App. 1989)
• narcotics raids and other police actions against
  fortified locations are extremely dangerous not
  only to law enforcement personnel but also to
  criminal suspects and innocent bystanders if
  carried out without detailed planning,
  coordinated efforts, and trained personnel.
  Police operations that are improvised only on the
  spot for a single assignment are highly
  ineffective law enforcement techniques and
  obvious sources of great potential liability...

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• International Association of Chiefs of Police
  (IACP)

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• .the presence of a SWAT unit tends to decrease
  the number of shooting incidents. (A balance of
  Forces (2d ed.), Model Deadly Force Policy and
  Procedure, Kenneth J. Matulia.)

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• When do you use SWAT vs. Patrol/CID/Narcotics/etc?
  
• Community expectations/allowances
• City Fathers/ Administrators
• Under-reaction vs. over-reaction

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• Excessive Use of Force/Deadly Force
• .Other than random attacks, all such cases
  begin with the decision of a police officer to do
  something, to help, to arrest, to inquire. If
  the officer had decided to do nothing, then no
  force would have been used. In this sense, the
  police officer always causes the trouble. But it
  is trouble which the police officer is sworn to
  cause, which society pays him to cause and which,
  if kept within Constitutional limits, society
  praises the officer for causing.

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• Plakas v. Drinski, 19 F. 3d 1143, 1149 (7th Cir.
  1994)

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• Tennessee v. Garner (1985)
• Seizure v. self-defense?

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• . In fact not a single precedent which holds
  that a government unit has a constitutional duty
  to supply particular forms of equipment to police
  officers.
• to permit every jury in this type of case to
  hear expert testimony that an arrestee would have
  been uninjured if only the police had been able
  to use disabling gas or a capture net or taser.
  And then decide that a municipality is liable
  because it failed to buy this equipment we think
  it clear that the Constitution does not enact a
  police administrators equipment list.

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• George Washington ONeal, Jr. v. DeKalb County,
  Georgia 850 F. 2d 653

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• Excessive use of Force/Non-Deadly Force
• Graham v. Conner 490 U.S. 386 (1989)
• Three important points were made by the court
• The nature and severity of the crime at issue
• Whether the suspect poses an immediate threat to
  the safety of the officers or others,
• Whether the suspect is actively resisting arrest
  or attempting to evade arrest by flight

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• . Careful attention to the facts and
  circumstances of each particular case including
  the severity of the crime at issue, whether the
  suspect poses an immediate threat to the safety
  of the officers or others, and whether he is
  actively resisting or attempting to evade arrest
  by flight

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• The reasonableness of the particular force used
  must be judged from the perspective of a
  reasonable officer at the scene, rather than with
  20/20 vision of hindsight. In most cases
  implicating excessive force, not every push or
  shove, even ifit may later seem unnecessary in
  the peace of a judges chambers, violates the
  Fourth Amendment.

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• Other important Cases

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• No knock vs. knock and Announce
• Texas Code of Criminal Procedures
• 15.25 May break Door
• In cases of a felony, the officer may break the
  door of any house for purposes of making an
  arrest, if he be refused admittance after giving
  notice of his authority and purpose.

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• Wilson v. Arkansas No. 94-5707 (1995)
• Even though the S.C. said it would not attempt in
  this ruling to write a comprehensive catalog of
  factors that might justify a search in which
  police did not knock and announce their presence.
  

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• It did mention several factors that in the past
  have been considered relevant, including
• Whether an announcement might increase the risk
  of physical violence against officers or others
• Whether police officers have reason to believe
  that evidence would likely be destroyed if
  advance notice were given
• Whether police are pursuing a fugitive
• It would be senseless ceremony to require an
  officer in pursuit of a recently escaped arrestee
  to make an announcement prior to breaking the
  door to retake him

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• Requirement of City to provide best equipment
• McCormack v. City of New York (2000)

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• Media and SWAT Teams
• Can the media accompany teams on raids?
• Wilson et al. V. Layne, Deputy United States
  Marshal et al. (1999)

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In Review

• No case law requiring a SWAT or similar team
  although Salinas v. Carpenter came close!
• No case law requiring less than lethal means be
  used before deadly force, IF DEADLY FORCE IS
  JUSTIFIED!
• No case law requiring special equipment be
  purchased or used
• The reasonableness test for use of force is
  based on three factors as discussed in Graham v.
  Connor
• Knock and Announce unless an authorized exception
  exists
• No best equipment purchase required
• Media CAN NOT run warrants with your team

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In Review

• Training/Failure to Train
• City of Canton, Ohio v. Harris 489 U.S. 378, 109
  S.Ct. 1197 (1989)
• Must show deliberate indifference

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In Review

• . The inadequacy of police training may serve
  as a basis for 1983 liability only where the
  failure to train in a relevant respect amounts to
  deliberate indifference to the constitutional
  rights of persons with whom the police come into
  contact with.
• . A city is not liable under 1983 unless a
  municipal policy or custom is the moving
  force behind the constitutional violation. Only
  where a failure to train reflects a deliberate
  or conscious choice by the municipality can the
  failure be properly thought of as an actionable
  city policy.

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Examples

• Not requiring negotiators to attend yearly
  training as required by Texas P.C.
• Having a policy or custom that allows SWAT
  officers to be placed on a long-rifle as a sniper
  and ask him to shoot without having training in
  the use of the weapon or the use of force

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• Examples for SWAT that are questionable under
  Canton v. Harris
• Having a SWAT Team and not training
• Placing SWAT officers in sensitive positions
  without training
• Not following industry standards training
  mandates by recognized organizations I.e., TTPOA,
  NTOA, IACP
• Not following TCLEOSE rules or other POST
  recommendations

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• TRAINING PROGRAMS

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• Essential elements of Training Programs
• Planned and regular training exercises based on
  specific objectives
• Comprehensive, covering all aspects of
  operational aspects of the SWAT function
• Weapon skills
• Team tactics and coordination
• Decision making skills (practical, table-top)
• Leadership skills

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• Allows for
• Feedback, critique of effectiveness of the
  training
• Identification of weaknesses or areas of
  deficiency
• Provide a basis for future training
• Identification of minimum levels of acceptable
  performance
• Minimal waste of time
• Minimal waste of money and assets
• the focus of specific objectives

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Valid Training

• Training programs should be based on specific
  objectives consistent with the unique assignments
  a SWAT officer might be reasonably expected to
  encounter
• Based on industry standards in adequacy and
  type (realistic and job specific)
• Conducted by competent instructors
• Sources for competent training (TTPOA, NTOA,
  IACP, HK, TEES, Def Tec, Sage, etc.

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Documentation

• Properly prepared and documented lesson plan
• Lesson plans give structure to training
• Provides documentation of training for future
  litigation
• Allows for a qualified instructor to take over
  lesson in the absence of primary trainer
• Provides a foundation for future training
• Aids in assessing future training needs
• Provides a basis for evaluation of training
  effectiveness

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Weapons Training

• Weapons Training must include
• Standards of safety
• Handling, operation, transport and maintenance
• Decision making skills
• Deployment policy

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• Specialty Impact Munitions
• Safety precautions
• Manufacturers guidelines

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• Chemical Agents
• Deployment limitations
• Hazards and warnings

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• Training Program Essentials
• Document, Document, Document ALL TRAINING!
• Properly constructed lesson plan by TCLEOSE
  certified instructor
• Maintain the lesson plan on file-FOREVER!
• All participants in the training sign a TCLEOSE
  roster
• Submit and sign roster to TCLEOSE under proper
  class code (3301 for Basic SWAT schools and 3300
  for all other SWAT related classes

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• TCLEOSE Rules Governing Training
• Academy and Agreement Trainers
• Must have a Training Coordinator that is a
  licensed Instructor
• Must have a Training Advisory Board
• Must meet at least once per year to set training
  goals
• Must keep minutes of meeting and send to TCLEOSE
• Must have BIO file on Advisory Board
• Must maintain training file which contains
• lesson plan, TCLEOSE roster, test and key