Police Legal Advisors in the USA: Past, Present, and FutureCarol A. Archbold
Taylor and Francis LtdGPPR_A_157949.sgm10.1080/15614260600579664Police Practice & Research1561-4263 (print)/1477-271X (online)Original Article2006Taylor & Francis71000000March 2006Dr [email protected]
Over the last three decades police work has become very complex due to continuous changein criminal law, social change, and an increased demand for police accountability andprofessionalism. In response to those changes, some law enforcement agencies have adoptedin-house police legal advisors as part of their police liability management efforts. This paperprovides a look at the past and present use of police legal advisors in law enforcement agen-cies in the USA. The history of police legal advisors in the USA is presented through areview of past literature. To provide a look at the current state of police legal advisors, thispaper presents the findings of a recent national study of police legal advisors in US lawenforcement agencies. Using telephone interviews with 354 large law enforcement agencies,as well as qualitative survey data, this study reveals that less than half of the largest lawenforcement agencies in the USA employ an in-house police legal advisor. Several factorsthat influence the adoption of police legal advisors within police agencies are also discussed.
The work environment of police officers in the USA has become increasingly complex.The complexity of police work has resulted from continuous change in criminal law,social change, and an increased demand for police accountability and professionalism.Some of the most significant changes in police work occurred in the 1960s with severallandmark court case decisions, including Miranda v. Arizona (1966), Mapp v. Ohio(1961), and Escobedo v. Illinois (1964). These decisions redefined the manner in whichpolice officers conduct official police procedures including incidents involving arrest,
Carol A. Archbold is an Assistant Professor at North Dakota State University in Fargo, North Dakota, USA. Herresearch interests include police accountability, police liability management, media and crime, and race and thecriminal justice system. Correspondence to: Dr Carol Archbold, North Dakota State University, Department ofCriminal Justice and Political Science, PO Box 5101, Fargo, ND 58105, USA. Email: [email protected]
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and search and seizure. In response to the various changes occurring in the police workenvironment at that time, specifically those changes to criminal law, some law enforce-ment agencies began to adopt in-house police legal advisors. Police legal advisors areindividuals with training and experience in practicing law that are employed by policeagencies to provide legal advice to police personnel, as well as make changes to policetraining and department policies that could otherwise result in liability claims orlitigation.
Several documents that served as key sources of information for law enforcementagencies in the 1960s and 1970s highlighted the importance of adopting police legaladvisors into police organizations. First, O. W. Wilson discussed the importance ofemploying police legal advisors for legal guidance within law enforcement agencies inhis text, Police administration (1963). The Task report of the 1967 President’s Commis-sion on Law Enforcement and Administration of Justice supported the adoption ofpolice legal advisors to keep police agencies abreast of any changes in law. The NationalAdvisory Commission on Criminal Justice Standards and Goals (1973) suggested thatlarge police agencies should establish a police legal unit with at least one attorney as afull-time legal advisor. The American Bar Association (1973) also noted that policelegal advisors could play an integral role in police organizations, as they could be adirect, immediate source of legal advice for police personnel. Despite the obvious needfor police legal advisors in law enforcement agencies and the suggestions of severalimportant criminal justice commissions, this topic has been given little attention byboth legal and police scholars since the 1970s.
Gerald M. Caplan (1967) wrote one of the few pieces of literature published on thistopic. The purpose of Caplan’s article was to support the adoption of police legaladvisors into police organizations as a way to deal with the changes that were takingplace in criminal law at that time. More specifically, Caplan (1967) provided a compre-hensive description of his vision of how police legal advisors could use their expertiseto improve police recruitment and hiring standards, police training, and departmentpolicies, and to also ensure that police agencies were keeping up with the changes incriminal law. His article pointed out that police legal advisors were being grosslyunderutilized by American law enforcement agencies during a time when their legalexpertise was needed the most (Caplan, 1967). Given the changes in law and societythat were taking place during the 1960s, Caplan’s vision for the adoption of in-housepolice legal advisors was warranted.
Today, the need for in-house police legal advisors is also necessary as litigation andliability claims involving law enforcement officers continue to increase (Archbold &Maguire, 2002; Franklin, 1993; Human Rights Watch, 1998; Kappeler, 2001). Inaddition, there has been an increase in demand by citizens and government agencies toimprove police accountability and professionalism by making changes to police train-ing, department policies and standards, and police management (Archbold, 2004;United States Department of Justice, 2001; Walker, 2001, 2005). With these issues inmind, this paper explores the extent to which Caplan’s vision for the adoption of policelegal advisors within US police organizations has materialized since 1967. More specif-ically, this paper revisits several of the issues raised in Caplan’s earlier article including
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the adoption, role, and training of police legal advisors in American law enforcementagencies. It is important to revisit this topic as the costs resulting from police-involvedliability incidents and litigation continue to increase. This paper concludes with a briefdiscussion of how police legal advisors play a key role in modern police liabilitymanagement in some of the largest law enforcement agencies in the USA.
Review of the Literature
Since the early 1960s, there have been only a few pieces of published academic literatureon the use of police legal advisors in US law enforcement agencies. In 1966, RaymondBancroft conducted a general study of urban police practices on behalf of the NationalLeague of Cities. The purpose of the study was to explore the practices of municipalpolice agencies related to personnel, management, training, and community relations(Bancroft, 1966). Only a few questions on Bancroft’s survey inquired about the use ofpolice legal advisors within police agencies. The survey asked whether or not the policeagencies employed a police legal advisor, and if so, whether the position(s) was full orpart time. Police agencies that reported that they did not employ police legal advisorswere asked to identify their source(s) of legal advice. Bancroft found that ‘only5 percent of the law enforcement agencies surveyed reported that they employ a policelegal advisor on either a full or part-time basis’ (Bancroft, 1966, p. 6). Even though thisstudy was not focused specifically on the use of police legal advisors in police agencies,it has been the only attempt to use empirical data to find out more about such positionswithin American police agencies. In fact, Bancroft’s study was the first to explore theprevalence of the use of police legal advisors in the USA.
In 1967, Gerald Caplan wrote an article on the use of police legal advisors by lawenforcement agencies in the USA. Caplan (1967) described the need for employingpolice legal advisors due to the changes in criminal law that were beginning to impactAmerican policing. He also described the duties of police legal advisors, availabletraining and education programs for police legal advisors, their role both withinpolice agencies and their communities, and some of the sources of resistance to hiringpolice legal advisors at that time. Caplan’s article is important because he takes theposition that police legal advisors should be a part of American law enforcementagencies to help accommodate the changes in law that ultimately impact police proce-dure. He bases his argument in the context of necessity due to rapid change in thepolice work environment. Caplan’s article was not based on a systematic analysis ofcases; instead it was based on his professional experience working within the criminaljustice system.
In 1972, Wayne Schmidt wrote a technical report on behalf of the Police LegalSection of the International Association of Chiefs of Police (IACP) that outlined someguidelines for creating and maintaining a police legal unit. This report explained theneed for such positions within law enforcement agencies, the history of police legaladvisors in the USA, the organizational structure of police legal units, both staff andoperational duties in police legal units, and the training of police legal advisors(Schmidt, 1972).
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An article published in the Canadian Police College Journal in 1981 discusses a surveyof US police legal advisors that was conducted by a group of Canadian Barristers in aneffort to glean information on the potential impact of such a position in Canadianpolice forces. The survey instrument contained questions that focused on the jobfunctions of police legal advisors, resistance experienced by police legal advisors whileon the job, and some of the benefits that result from employing police legal advisorswithin police organizations (Christopher, Paul, Kehler, McMartin and MorrisonBarristers and Solicitors of Victoria, BC, 1981). The authors concluded that the addi-tion of police legal advisors in Canadian law enforcement agencies could benefit theCrown Counsel by providing legal advice on a day-to-day basis to officers, and alsobenefit the public through enhanced officer accountability and a higher standard ofpolicing (Christopher et al., 1981). These findings parallel the information presentedin earlier police legal advising literature written by Caplan (1967) and Schmidt (1972).
In the past ten years, the topic of police legal advisors has occasionally re-emerged inpublications that are circulated primarily among police practitioners. For example, in1994 there was a short article published in The Police Chief that described the role ofpolice legal advisors within police management teams (Becker, 1994). The October1998 issue of The Police Chief also featured an article written by the Police Legal Sectionof the IACP on the importance of employing police legal advisors within law enforce-ment agencies (International Association of Chiefs of Police, 1998). This articlecontained virtually the same information on police legal advisors as was presented inthe IACP report Guidelines for a police legal unit written by Wayne Schmidt roughly30 years earlier. Although important, the 1998 IACP article does not contain any newor updated information on police legal advisors that is based on systematic research oranalysis.
From a global perspective, there is little published information on the use of policelegal advisors within police agencies across the world. Brian McCargo (1995) examinedcivil actions against the police in the USA, England, Scotland, Wales, Canada, andNorthern Ireland. McCargo (1995) compared the frequency of civil litigation involvingthe police from 1985 to 1994 across several countries, as well as the way that each coun-try deals with litigation involving the police. This report indicates that police legal advi-sors are used in several countries outside of the USA. Even more interesting, the reportidentifies several functions of police legal advisors that are similar across all of thecountries in the study (McCargo, 1995). Besides McCargo’s 1995 report, very little hasbeen written about the use of police legal advisors in countries outside of the USA.
A review of the published literature on police legal advisors reveals just how littleattention has been given to this topic. Using systematic data collection and analysis, thispaper begins to fill the gap in the literature by providing an updated look at some of theissues surrounding the adoption, purpose, and role of police legal advisors in modernlaw enforcement agencies in the USA. More specifically, this paper will explore thefollowing research questions:
1. What is the prevalence of the use of police legal advisors/legal units by municipaland county law enforcement agencies in the USA?
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2. What are some of the factors associated with the decision to adopt police legal advi-sors/legal units as part of police organizations?
3. What are some of the role(s) and duties of police legal advisors/legal units in thecontext of police organizations?
Methods
Some of the early literature made specific suggestions as to which law enforcementagencies should employ police legal advisors. For example, O. W. Wilson (1963) hintedat a trend of the largest police organizations adopting full-time police legal advisors tohandle any legal issues that arise involving sworn police personnel. The NationalAdvisory Commission on Criminal Justice Standards and Goals (1973) suggested thatpolice agencies that employ 200 or more police officers could easily justify creatingpositions in their organizations for police legal advisors. Similarly, the American BarAssociation (1973) asserted that police administrators in larger police departmentsneed full-time, in-house police legal assistance. The sampling frame for the currentstudy is based on the suggestions of early literature, and includes all municipal andcounty law enforcement agencies that employ 200 or more sworn police officers.
Data collection for this study occurred in two phases. First, the 1999 Law EnforcementManagement and Administrative Statistics (LEMAS) report provided a list of all lawenforcement agencies that employ 200 or more sworn police officers (Reaves & Hart,1999).1 The LEMAS report contained a total of 354 municipal and county police agenciesthat met this criterion. Telephone interviews conducted with personnel in the chiefs andsheriffs offices in all 354 agencies inquired about the use of police legal advisors withineach police organization. Telephone interviews consisted of the following questions:
1. What person(s)/group is responsible for liability management in your policeagency?
2. Does your police agency use a police legal advisor in its effort to control liabilityinvolving police personnel?
3. If police legal advisors are used by your agency, how do these positions fit into thepolice organizational structure?
Data from telephone interviews reveal the prevalence of the use of police legal advisorsby police agencies, and also provide descriptive information on how some of the largestUS law enforcement agencies deal with their police liability issues.
The second phase of data collection involved a nation-wide survey of police legaladvisors. Police legal advisors identified through initial telephone interviews received acopy of the survey instrument. The survey instrument contained open-ended questionsto explore the reasons why police legal advisors were adopted by the police organiza-tions, which person(s) or group was responsible for the adoption of such positions, andwhat duties police legal advisors are responsible for within each police organization.Surveys were sent directly to the police legal advisors in each of the police agencies. Asecond round of surveys and follow-up letters were mailed to the police agencies thathad not responded within three weeks of receiving the initial survey.
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Approximately one third (32.51%) of the police legal advisors responded to thesurvey.2 The intent to collect survey data was not to use it in a statistical analysis of anysort. Instead, the survey data provide an in-depth, descriptive account of the purposeof employing police legal advisors in modern law enforcement organizations. The datafrom all telephone interviews and returned surveys were used in a thematic, qualitativedata analysis. Each of the open-ended questions from the survey instrument becamepart of the qualitative analysis, which consisted of an examination of emerging themesand categories of both similar and contrasting responses from each of the participatingpolice legal advisors. The following section outlines the results of the qualitative analy-sis using both survey and telephone interview data.
Findings
Gerald Caplan outlined a vision for the use of police legal advisors in American lawenforcement agencies in the late 1960s. Part of his vision included more law enforce-ment agencies adopting police legal advisors to accommodate the changes in criminallaw that were beginning to have an impact on police procedure at that time. Caplanstated that police legal advisors would play a key role in changing police training anddepartment policies to ensure compliance of police agencies to new or reformed crim-inal law (Caplan, 1967). To support his position, Caplan detailed the training availableto police legal advisors, and also, the role that police legal advisors would play withinpolice organizations (Caplan, 1967). Using current data sources, the following sectionsrevisit these issues raised by Gerald Caplan over three decades ago.
Prevalence of the Use of Police Legal Advisors in US Law Enforcement Agencies
The prevalence of the use of police legal advisors in US police agencies has only beenexamined once since the late 1960s. A nationwide survey of police departmentsconducted on behalf of the National League of Cities found that only 14 of 276 (5%)survey respondents employed police legal advisors, and six of the 14 legal advisors werepart-time employees (Bancroft, 1966). Caplan (1967) noted that research conductedby the President’s Commission on Law Enforcement and Administration of Justicesupports the view that police legal services were inadequate at best, and often nonexist-ent in American police agencies during that time. He believed that so few police agen-cies employed police legal advisors because they had not recognized the importance ofstaffing their agencies with law-trained personnel (Caplan, 1967). Based on Caplan’sassessment and the study sponsored by the National League of Cities, it would be safeto conclude that police legal advisors were grossly underutilized by police agencies inthe late 1960s–early 1970s.
The current study used telephone interviews to examine the prevalence of the use ofpolice legal advisors in US police agencies that employ 200 or more sworn police offic-ers. Telephone interviews reveal that less than half (163 of the 354 or 46%) of the lawenforcement agencies use only a police legal advisor(s) on an either full- or part-timebasis. Risk managers were also identified as a key police liability management tool in 14
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of the 354 police agencies. The other 177 police agencies reported that they rely solelyon city/county attorneys or district attorneys to handle legal issues involving lawenforcement personnel in their agencies.3 This finding is surprising given the level ofimportance that was placed on police legal advisor positions by the President’sCommission on Law Enforcement and Administration of Justice, the American BarAssociation, and the IACP, as well as the significant changes that have taken place incriminal law since the 1960s–1970s. The adoption of police legal advisors over the last30 years is discussed in greater detail in the conclusion section of this paper.
Resistance to the Adoption of Police Legal Advisors
Caplan identified three sources of resistance in hiring police legal advisors into policeagencies, including city attorneys or corporation counsels, police executives, and moreattractive career opportunities that offer more prestige and higher salaries (1967).Caplan noted that
city attorneys resisted the hiring of police legal advisors because they believed that provid-ing legal services to police agencies was part of their duty, therefore hiring an in-housepolice legal advisor would create an ‘overlap’ in legal services provided to police agencies.(1967, p. 304)
Caplan also stated that police executives were resistant to hiring legal personnel intotheir organizations because of their hesitancy to hire civilians or to ‘change the statusquo.’ In addition, he noted that police managers were also hesitant because they werenot well informed of the benefits that legal advisors could bring to their organizations(1967). And finally, Caplan identified the availability of other jobs that could offermore prestige and higher salaries compared to that offered by police agencies as a thirdsource of resistance to hiring police legal advisors (Caplan, 1967).
In the current study, an analysis of the survey data reveals findings that are differentthan Caplan’s earlier assertion that police executives and city attorneys were a majorsource of resistance in hiring police legal advisors. For example, almost half of thesurveyed police legal advisors (25 out of 53) reported that the person(s) responsible forinitiating the adoption of their position was the chief of police or sheriff. In most cases,police legal advisors reported that their chief of police or sheriff recognized an increasein liability claims or payouts from lawsuits in their own agencies or neighboring policeagencies, and sought out the expertise of police legal advisors to deal with the problem.Sixteen of 53 (30%) police legal advisors reported that it was the initiative of either thecity or county attorney alone, or in collaboration with local police chiefs or sheriffs thatprompted the adoption of their positions.
The most plausible explanation for police managers and city/county attorneys nolonger being sources of resistance to hiring police legal advisors would be that the twogroups share a common interest—to keep police-involved litigation and liability casesto a minimum. It could also be the case that city/county attorneys are already taskedwith legal duties involving other city or county agencies, in addition to their otherdaily tasks; therefore to provide immediate legal aid to local police agencies to the
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desired level of the police agency may not always be possible. It is also likely thatpolice executives have come to realize the need and benefits of employing full-time,in-house legal advisors above and beyond what is offered to them by their city/countyattorneys.
Reasons for the Adoption of Police Legal Advisors
Caplan identified the change in criminal law as one of the main reasons why policeagencies should adopt police legal advisors (1967). He acknowledged police legaladvisors as a major mechanism in ensuring that police officers are better trained in thelaw and that they are ‘more sensitive to judicial pronouncements’ that were takingplace at that time, particularly in the areas of policy planning and investigation(Caplan, 1967, p. 303). Since there were so many changes taking place in criminal lawthat impacted police procedures, Caplan stated that police legal advisors would becomea necessary part of police organizations.
Consistent with the assertions made by Caplan, analysis of survey data in the currentstudy reveals that most police agencies adopted police legal advisors out of necessity.Several of the survey respondents reported that an increase in lawsuits (and payoutsresulting from those lawsuits) prompted the creation of their positions within theirpolice agencies.
There was an increase in third party lawsuits, which made the Sheriff concerned. Thesheriff wanted to become more proactive instead of the reactive responses that had takenplace in the past. By hiring a legal advisor, a proactive approach to liability would bepossible.
We adopted an in-house legal advisor because of the costs of outside claims management.A private law firm was handling all liability claims for the Sheriff’s office. Cost was alsoreduced by 50% when the risk management department was established.
The chief of police was concerned about risk and liability issues among police managers,and instituted a plan for quality assurance that involves risk management and legal advise-ment by a team of lawyers.
Another factor reported in the adoption of police legal advisors stems from bothlegal and social changes in the work environment of law enforcement officers. In thecurrent study, some of the police legal advisors reported that the need for full-time, in-house legal advice has become very important because of the complex changes in lawsthat impact police procedures.
The sheriff realized that as more and more laws were passed, it was becoming difficult tocomply with and ensure compliance. The basis for creating the position (police legal advi-sor) was to assist deputies in enforcing the law and to aid in complying with law governingour employees.
Our police legal advisor helps officers understand statutes, ordinances, search and seizure,and civil liability issues. Also, forfeiture litigation and legislation.
There was a significant need to have in-house council for the police department in orderto ensure timely and appropriate responses to law enforcement legal issues.
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A third reason for adopting an in-house police legal advisor was because of negativepublicity by the media sparked by controversial incidents involving police liability.This was the case with some of the police legal advisors responding to the survey, asthey reported that several highly publicized police-related liability incidents promptedthe creation and implementation of their position within police organizations.
The legal advisory unit was implemented when the police department began self-criticismand evaluation in the wake of an incident that resulted in the beating death of a citizen bythe police. The police department’s top management recognized the need for change in thepolice department’s approach to police misconduct and the management of risks.
We have had police legal advisors sporadically for a long time. There was concern overconsent decrees in other cities. Also, there were two large payouts in civil suits over a policeshooting and fatal traffic accident.
The three main factors for adopting police legal advisors that emerged from thesurvey data can be categorized as reactive. In contrast, only a few police legal advisorsreported that their police agencies hired police legal advisors as a proactive tool to helpimprove the quality of police services provided to citizens. Only 5% (3 of 53) of thepolice legal advisors were adopted proactively in an effort to improve police servicesprovided to the public. This finding suggests that the use of police legal advisors bypolice organizations is primarily for the benefit of police agencies, and not specificallyfor any direct benefit to the public.
Duties of Police Legal Advisors in Police Organizations
Caplan affirmed that the duties of police legal advisors ‘should not be put into the formof a blue print to be used by all U.S. law enforcement agencies’ (1967, p. 304). He statedthat the duties of police legal advisors should be tailored to fit the specific needs of eachindividual law enforcement agency. However, Caplan did identify several generalcategories where the legal expertise of police legal advisors could benefit policeagencies. Those categories of duties include providing legal advice to police adminis-trators in regard to police training, policy development and maintenance, and themanagement of legal problems involving all law enforcement personnel.
Caplan noted that the changes taking place in criminal law would ultimately influ-ence police department policies (1967). It would be the responsibility of police legaladvisors to examine department policies to make sure that they are in compliance withthe changing law. A benefit of maintaining (and often revising) department policies isthat law enforcement agencies can protect themselves from litigation for use ofimproper police procedures that may conflict with formal law. In regard to policetraining, Caplan asserted that police legal advisors could assume a primary role in therecruitment and training of police officers, and that they could also foresee trends inthe law and adjust operating procedures to cope with the changes (1967). By employ-ing police legal advisors, all police personnel can be quickly informed of the changes inlaw, and could also be adequately trained (or retrained) to accommodate thosechanges. Caplan assumed that each of these duties expected of police legal advisors
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would contribute to the overall level of quality of police services provided by policeorganizations.
An analysis of survey data in the current study reveals that the duties of modern daypolice legal advisors are similar to those described by Caplan in 1967. For example,most of the police legal advisors (89%) reported that their positions/programs haddirect and significant impact on any changes in police department policies. Only 6 outof 53 police legal advisors reported that they had no impact on department policies. Inthose cases, police legal advisors described their position as being ‘too new’ to draw anyconclusions about its influence or impact on policies and procedures.
The type of department policies that police legal advisors reported that they mostoften influence includes policies focused on internal police personnel issues, and citizen-related department policies. An analysis of the survey data suggests that police legaladvisors make changes that impact liability costs associated with work-related injuriesand motor vehicle incidents involving employees, loss or damage to department prop-erty, as well as sexual harassment and discrimination suits filed by employees within lawenforcement agencies. Policies that impact people outside of the police organization(citizens) are also a major concern of police legal advisors. Some of the most commonpolicies mentioned in the surveys include policies on use of force, field contacts withmentally ill or disabled persons, vehicular pursuits, searches and frisks, propertyseizures, arrest and custody procedures, and most recently, racial profiling policies.
We have made changes to our policies on use of force and police pursuits. Also since I havebeen in this position, I headed up the Commission on Accreditation of Law EnforcementAgencies (CALEA) accreditation and we re-wrote the entire policy manual three timesduring my tenure.
I review or write policies to minimize high risk incidents. Also, I changed the policy so thatthere is no shooting from moving vehicles, no strip searches without a warrant consent orarrest, and no racial profiling.
On certain occasions we may be asked to look at specific operational policies to suggestimprovement for the sake of reducing a particular type of loss. For example, we were askedto look at the emergency response policy, which required agency units responding to a callto adhere to state law regarding intersections. State law requires the exercise of ‘due care’when approaching an intersection with a red light or stop sign. We recommended a changerequiring out units to come to a full stop under these conditions and ensure all traffic hadstopped before proceeding. Our intersection collisions under emergency response modedropped significantly.
Agency attorneys evaluate draft policies for legal sufficiency. For example, the writtendirective on arrest and search procedures is regularly updated to reflect new state statutesand case law.
According to several police legal advisors, each stage of police training is affected bythe work of police legal advisors in relation to police officer exposure to liability begin-ning in the academy, and all the way through to in-service training seminars.
We teach classes at the local and regional training academies to new recruits and within ouragency to experienced officers. We also endeavor to keep our officers current on the lawthrough regular issuance of legal bulletins and similar updates.
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We have made extensive changes in our Field Training Officer (FTO) program to reflect avariety of state and federal law changes such as pursuits and use of force.
Risk Management and the police legal advisor routinely receive the training schedule forall training (basic to advanced) for the police department. Suggestions are routinely madewhich are acted upon to change or improve police training.
The analysis also uncovered some of the creative ways that police legal advisorstrain police officers to keep up with the constant changes in law that also often requirechanges in procedures. For example, one police legal advisor noted that he uses videosduring roll call to update officers on any important changes that might impact fieldcontact with citizens. Several other police legal advisors stated that they distributelegal bulletins through the use of paper memos or by sending police officers messagesover their mobile data terminals in their patrol cars. One police legal advisordescribed how he plays a role in choosing the content of training videos that areproduced, and sometimes distributed to other law enforcement agencies to use intheir training programs.
Findings from the current study suggest that the duties of police legal advisors inmodern law enforcement agencies have changed very little since Caplan’s article waspublished in 1967. However, one noticeable change in police legal advisors’ duties isthat some law enforcement agencies are now using a combination of both police legaladvisors and risk managers to identify potential risks, and to ultimately make changesto policy and police training to reduce or lower police officers’ exposure to those risks,as well as the costs associated with those risks. It is likely that Caplan’s vision of policelegal advisors back in 1967 included duties that were intended to focus on police liabil-ity management, as litigation involving police personnel was beginning to increase atthat time. Kappeler (2001) reported the increase in police-involved litigation by indi-cating that civil suits filed against the police increased by 124% from 1967 to 1971(p. 3). However, it is unlikely that Gerald Caplan could have foreseen as dramatic anincrease in police-involved litigation and liability incidents that has taken place overthe past three decades.
Training Programs for Police Legal Advisors
There were two premiere training programs for police legal advisors offered at theNorthwestern University Law School and the University of Wisconsin Law School atthe time that Caplan’s article was published (Caplan, 1967). Caplan explained that bothtraining programs provided law students with hands on opportunities to learn aboutlegal issues directly relevant to law enforcement by requiring that part of their trainingtake place within police agencies. The Northwestern police legal advisor trainingprogram required one-year placements within law enforcement agencies beforecompleting a thesis to earn a Master of Law degree (Caplan, 1967). The police intern-ship program at the University of Wisconsin Law School also offered summer place-ments in police agencies for law students (Caplan, 1967). Both of these programsprovided police legal advisor training that would allow law students to concentratetheir studies specifically on legal issues inherent in police work. Both of the programs
at Northwestern Law School and the University of Wisconsin Law School dissolved bythe mid-1970s because of a dissipation of funding and resources.4
Today, formal police legal advisor training programs affiliated with law schools oruniversities that offer both instruction and certification specifically geared towardpolice liability issues are virtually non-existent. There is only limited training availablefor police legal advisors through professional associations, such as the IACP LegalSection, which offers periodic training seminars on police civil liability issues.5 The lackof formal training for police legal advisors that results in formal certification becomesobvious when you attempt to locate such training programs on the Internet. For exam-ple, www.officer.com serves as one of the most comprehensive websites for lawenforcement practitioners on both a national and international level. This website doesnot provide any information on formal police legal advising training.
In some cases, specialized training to become a police legal advisor is not completelynecessary if the police legal advisor has had some prior law enforcement experience.The experience of working as a law enforcement official would provide some insightinto police liability incidents that are of concern to both police managers and policeofficers. In the current study, over one-third of the police legal advisors that respondedto the survey (38%) reported that they have had both professional experiences in lawenforcement and in practicing law. A police legal advising article in The Police Chiefmagazine noted that the benefits of having police legal advisors that have had prior lawenforcement experience is that they will have first-hand knowledge of police liabilityissues, and that police officers may feel more comfortable seeking legal advice fromsomeone that has prior law enforcement experience (Becker, 1994). In contrast, Caplanstated that police legal advisors with prior policing experience might tailor his/herduties around the good of the police department, ‘resulting in isolation from externalagencies’ (1967, p. 307). Further research is needed to explore this issue as there has notbeen any kind of empirical exploration of what type of training and previous profes-sional experience will result in the most effective police legal advisors.
Discussion and Conclusion
The use of police legal advisors in American law enforcement agencies has been virtu-ally ignored by both legal and police scholars in the past 25 years. This paper begins tofill the gap in the literature as it presents a descriptive account of the prevalence ofpolice legal advisors, their duties within modern American police agencies, and someof the circumstances surrounding the adoption of such positions in police agencies. Itis especially important to revisit this topic as police-involved litigation and liabilityclaims continue to increase in law enforcement agencies in the USA.
The principal research findings presented in this paper indicate that police legaladvisors have become an integral part of police liability management in police agenciesthat have adopted such positions. One of the most significant findings of this study isthe prevalence of adoption of police legal advisors in law enforcement agencies in theUSA since the late 1960s. Telephone interviews reveal that less than half (46%) of all ofthe largest US law enforcement agencies employ police legal advisors to manage police
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liability and other legal issues. This finding is surprising if you consider the level ofimportance that was placed on the adoption of police legal advisor positions by variouscriminal justice commissions and groups within the law enforcement social systemfour decades ago. In addition, police exposure to liability has increased significantlysince the late 1960s because of social, political, and legal changes that have impactedpolice work. For example, failing to adjust police policies and procedures to accommo-date any changes in law have resulted in an increase in police-involved litigation andliability claims resulting in settlements (Beh, 1998; Livingston, 1999). All of thesechanges, especially the changes in law, and ways to enforce those changing laws, haveimpacted police work. To accommodate these changes, police organizations need tohave access to full-time legal advice, such as in-house police legal advisors or legal units.
There are several factors that have impacted the adoption of police legal advisors intoAmerican law enforcement agencies over the past three decades. First, there is a lack offormal, standardized training available for police legal advisors today compared to thespecialized programs mentioned by Caplan back in 1967. Currently, there are annualseminars that present information that is germane to police legal advisors sponsored bythe IACP—Legal Section. However, the type of specialized police legal advisor trainingaffiliated with universities or law schools that results in some type of certification thatexisted in the late 1960s is no longer available.
In addition to limited training opportunities, there is also a lack of information orliterature available on this topic. If police/legal scholars and practitioners are notresearching or writing about police legal advisors in police organizations, there is notgoing to be any type of manual or ‘how-to’ guide that explains the potential benefits ofhaving such programs/positions, or instructions on how to set up such a programwithin police agencies. The lack of information available on police legal advising isapparent, as the topic is not discussed in most of the leading books on police adminis-tration and management.6 In the texts where the topic is briefly mentioned, it is usuallyin relation to the specific types of liability incidents commonly related to police work,not in the context of using liability management or risk assessment within police orga-nizations. Further, the topic is not frequently presented or discussed in any detail in theliterature that is circulated primarily among police practitioners.
The lack of information available to police managers also became apparent duringinitial telephone interviews conducted with police personnel for the current study.Most of the police agencies that already employ police legal advisors wanted to knowmore about how other police agencies are using police legal advisors to manage policeliability within their agencies. Some of the police agencies that reported that they didnot employ police legal advisors were interested in the results of this study in case theydecide to adopt a police legal advisor in the future. The telephone interviews conductedin the first phase of data collection for this study clearly indicate that there is an interestby police administrators to learn more about how police legal advisors play a role inpolice liability management.
A lack of resources available to police agencies to adopt such positions into theiragencies could be another factor that could have an impact on the adoption of policelegal advisors. Other law enforcement programs that are meant to enhance police
74 C. A. Archbold
professionalism, such as community-oriented policing, have government grants avail-able for police agencies that are interested in implementing these kinds of programs.Perhaps police legal advisors would be more common in American police agencies ifmore financial resources were available to contribute to the costs of adopting suchprograms or positions.
All of the previously mentioned explanations for the lag in the adoption of police legaladvisors by US police agencies in the past three decades are based on assertions madein earlier police legal advising literature, and from the research findings from the currentstudy. In order to get a better understanding of why some large police agencies have notyet adopted police legal advisors, additional research is necessary. Future research onthis topic should include evaluation-based studies to measure the effectiveness or impactof such positions within police agencies. Researchers could also explore how the char-acteristics of local city government or political culture are associated with the use ofpolice legal advisors by law enforcement agencies, as well as the extent to which crisisincidents and high profile lawsuits impact the adoption of police legal advisingprograms. Finally, future research should examine the similarities and differences in theways that police legal advisors are used in the USA and other countries around the world.
There are several policy implications related to the findings associated with thisstudy. First, police agencies that employ police legal advisors will have immediate andfull-time access to legal advice, which can be useful in determining the type of policeaction taken in high-risk situations that often lead to litigation or liability claims beforethe interaction takes place (for example, serving a high-risk warrant). Next, a positionof this sort could also be useful to agencies that consistently pay out millions of dollarsin settlements and liability claims by identifying which police-involved incidents resultin lawsuits and liability claims, and ultimately, make changes to department policy,procedure, and police training in an effort to reduce or control organizational loss. Andfinally, police legal advisors play an important role in keeping police agencies abreastof any changes in the law that might impact the manner in which they do their job. Inmodern policing, this is something that occurs on a frequent basis.
Acknowledgement
I would like to thank the following individuals for their feedback throughout the courseof this study: Mr Gerald M. Caplan of the McGeorge School of Law in Sacramento,California; Dr Samuel E. Walker of the University of Nebraska–Omaha; Dr HermanGoldstein of the University of Wisconsin–Madison Law School; and Mr WayneSchmidt of the Americans for Effective Law Enforcement Inc. in Park Ridge, Illinois. Iwould also like to thank Dr Melissa Schrift and Dr Jane Peterson for providing feedbackon a rough draft of this manuscript.
Notes1[1] The LEMAS data have limitations due to the nature of mail surveys. For a description of some
of the limitations to the LEMAS data, see Walker and Katz (1995).
Police Practice and Research: An International Journal 75
2[2] Qualitative samples are often small compared to samples used in quantitative studies, butusually generate large amounts of textual, descriptive data. For more details on qualitativesample sizes see Miles and Huberman (1994). It is also important to note that one of theresults of using a small sample in qualitative research is a limited level of generalizability ofthe findings of qualitative studies. This is the case with the present study as only one-third ofthe surveys were returned for analysis.
3[3] It is likely that police legal advisors and city/county attorneys work together on legal issuesinvolving local law enforcement. However, the scope of the current study is to focus solely onhow police legal advisors play a role in American police agencies. Future research shouldexamine how city/county attorneys and legal advisors work together.
4[4] Telephone interviews with both Herman Goldstein of the University of Wisconsin–Madison,and Wayne Schmidt of the International Association of Chiefs of Police in May 2001.
5[5] Telephone interviews with both Herman Goldstein and Wayne Schmidt in May 2001, andalso through exhaustive searches on the Internet.
6[6] A scan of the table of contents of 10 leading police management and police administrationtextbooks revealed that police legal advisors were not mentioned as an important part ofmodern police management. This observation is important because it reflects the lack ofinformation available for both police scholars and practitioners on this topic of study.
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Court Cases
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