Litigaphobia Rears Its Ugly Head (Again)
It should be no surprise that police response patterns respond broadly to attacks, physical & verbal, aimed at themBy Dave Grossi | Jan 13, 2017
Back in 1986, three health care professionals combined the terms litigation with phobia to coin the term “litigaphobia.” They came up with the term after researching and interviewing police officers over their fear of being sued. As they applied the term, it pertained to that fear being “so great” among some officers that it became a “preoccupation” that “interfered” with them doing their jobs. Now, 30 years later, the Pew Research Center, a non-partisan fact tank based in Washington, D.C., recently has released a study that seems to confirm that that fear has deepened. In this latest study, they found that 72% of officers are now less willing to stop and question suspicious persons. A whopping 93% are more concerned about their safety than in years past. And 75% are reluctant to use force even when it is appropriate to do so.
While this latest study delved into a whole lot more than just litigaphobia (i.e., police/race relations, force policy and procedure, body cameras, manpower staffing), due to time and space limitations, this short piece will only concern itself with the three issues described above.
Stop, Question and Frisk (72%)
In October 2016, I authored a piece for CalibrePress.com where I discussed the apparent confusion as well as some history on how the U.S. Supreme Court came to hear the whole stop-and-frisk issue. As a short refresher, the court concluded that the issues of “stop” and “frisk” must be bifurcated. The reasonable suspicion that led up to the stop is not sufficient to justify the frisk. There must be something more: additional facts that would lead that reasonable officer to believe the suspect may be armed or dangerous for the frisk component to kick in.
In what some law officers call the “Ferguson Effect,” there is little doubt that a lot of officers have become less active in their self initiated policing efforts out of a fear their actions will be second-guessed by not only their superiors and the public, but also by politicians, who have little or no idea what our jobs entail.
While the impact of the “Ferguson Effect” can be debated, crime stats appear to bear this suspicion out. Notwithstanding the confusion in the media or the press about “stop, question, and frisk” it would appear that any drop in proactive policing might be attributed to the “litigaphobia” issue more than anything else. One only needs to review the backlash that the Freddy Gray/Baltimore Police Department incident created to see the connection.
Officer Safety Concerns (93%)
As the preliminary year-end stats seem to bear out, this fear does not appear to be irrational at all. Preliminary data reveals that 135 officers died in 2016. Nearly half (64) were shot, with 21 being killed in ambush-style killings, an increase of 167%.
Despite what many in the media may think, this is not a big city phenomenon: Show Low, Ariz.; Canonsburg, Penn.; Hughson, Calif.; Ludowici, Ga.; and Urbandale, Iowa—all saw members of their agencies gunned down. And while the big-city shootings (Dallas, San Antonio, Baton Rouge, Kansas City, and New York) got most of the press, the impact of all these murders has obviously been felt as the 93% statistic bears out.
Reluctance to Use Force (75%)
This Pew study surveyed 7,917 officers from 54 agencies (all with at least 100 sworn officers) between May 19 and August 14, 2016. Notwithstanding the litigaphobia issue, the 75% figure appears to be attributed more toward the agency/department heads than the local/federal prosecutors. Only three in ten (7%) say they are “extremely supportive” of the direction that top management is taking their organization. The number gets a little more notable when one factors in the “very supportive” figure (23%). Only 39% give their departments high marks when it comes to training and a slightly lower number (31%) say their agency adequately equips them with the tools needed to do their jobs.
Getting to the specifics on use of force, about one-in-four (26%) say their force policies are too restrictive. Adding to this force reluctance figure (even when it is justified) less than half (43%) say their agency disciplinary process is fair. 86% of the officers polled reported that the “public does not understand the risks associated with police work.” With 100% of the jury pool being culled from this same public, is it any wonder why an officer wouldn’t trust their career (or freedom) to a civilian jury asked to accept that their force application was proper, justified and reasonable?
When one factors in the litigaphobia issue and the lack of support that officers feel they’re getting from their agencies, it isn’t hard to see why the vast majority of officers are reluctant to engage in legitimate “stop-and-frisk” activity, as well as using reasonable force even when it is appropriate to do so.
With the upcoming change in personnel at the Department of Justice and respective U.S. Attorneys Offices, it might be interesting to revisit this entire litigaphobia and reluctance to use force issue in another four years.