You probably read the headline to this article and thought to yourself, “Of course I’m ready for our Prison Rape Elimination Act (PREA) audit. I have clear boundaries with inmates, I know we have a policy regarding PREA at our agency, and I am not the PREA coordinator, so I don’t have to worry about it too much.”

That is an admirable starting point; however, there is a bit more to it. Whether it’s your facility’s first audit or a process you’ve been through before, everyone has a role in preparing for a PREA audit. PREA standards are quite inclusive, so everyone at your facility—from volunteers to top administrators—should be trained on and continually practice compliance with them.

Many people often think of “prison rape” in a stereotypical way—an inmate sexually abusing another inmate. While that is often true, prison rape can also involve staff, volunteers and contractors working in our facilities. You might be tempted to think this an extremely rare occurrence—why would someone risk their career for a relationship with an inmate? I had my doubts, too—until my eyes were suddenly forced wide open. Within the first few months of taking the helm of an agency with a jail, I uncovered a dangerous and disappointing culture involving several corrections officers in my facility.

By the time it was over, three corrections officers were terminated. Two of the three were booked into the very jail in which they worked, for having inappropriate relationships with inmates. I spent the rest of my career acutely aware that prison rape between inmates and officers does in fact occur. We worked diligently to eliminate it through education, procedures and removing opportunities for sexual abuse within the facility.

Intent of the PREA Standards
After my experience at that facility, which I oversaw for 12 years, I welcomed the PREA standards—so much that I became a certified PREA auditor to help other facilities better prepare to abide by the law.

For adult facilities, PREA includes 43 standards. Together, the standards have three clear goals regarding sexual safety for those in confinement: to prevent, detect and respond to sexual abuse.

Prevention
The PREA standards address prevention in several major ways. Screening who we hire, who we allow to volunteer, and who has access to our facilities is paramount. The PREA standards provide guidance on looking into the background of individuals we employ, both paid staff and volunteers. They also set forth the minimum education everyone entering the facility should receive regarding the prevention of sexual abuse and provide guidance for checking the backgrounds of those going through the promotion process.

The purpose of a PREA audit is not to say, “Gotcha!”, or to catch anyone doing something wrong.

Screening of inmates is equally important. A comprehensive intake screening that assesses the risk of victimization or abusiveness is a key component in prevention. This screening information helps us with decisions regarding housing and classification.

Prevention is also achieved by understanding the physical layout of your facility. You work in it every day and know the layout well. You should do your part to identify areas in your facility that could be considered “blind spots.” It’s important these areas can be checked, watched or even eliminated in the facility. During the PREA audit, the auditor will do a thorough tour of the facility, looking for these hidden places and how they are addressed through facility upgrades and monitoring technology.

Specific examples of preventive steps the auditor will be looking for include:

  • How inmates are briefed about sexual abuse and reporting
  • How the facility limits cross-gender viewing and searches
  • How staff announces that someone of the opposite gender is entering the housing unit

Detection
At least six weeks before the auditor arrives, you will see a notice posted in all housing areas of the facility. The notice provides the date of the audit and a way for inmates to contact the auditor about any concerns they have regarding their sexual safety in the facility.

The auditor will also be checking and testing systems for inmate reporting of sexual abuse. For example, inmates should have telephone access to an outside confidential support service for reporting allegations. The facility must also have a policy in place that allows a third party to submit a complaint on behalf of an alleged victim.

But it’s not just about having systems in place. Every jail employee has a duty to watch for warning signs of sexual abuse among inmates, staff and others. Taking allegations seriously, and ensuring referrals of any these allegations for investigation, is the crux of detection.

Response
By its very name, PREA is intended to eliminate rape in jails and prisons through a zero-tolerance policy. We are not yet there, making it necessary that PREA standards address what happens when prevention fails but detection is successful. How we respond to these incidents is often indicative of our level of professionalism and commitment to ensuring the safety of staff and inmates.

Auditors will review how a facility that has an allegation of sexual assault responds in a coordinated fashion. The standards help define first responder duties. They set forth protocols for collecting evidence, performing forensic medical examinations and conducting investigations. The standards provide guidance on incident reviews and how staff must protect a victim from their abuser. Finally, the response includes data collection on any incidents and how records are maintained.

The Process
PREA audits involve two main stages: policy review and the site visit. The policy review takes place prior to the site visit. The auditor reviews each PREA standard and ensures the facility has a policy that addresses, and is compliant, with each standard.

During the site visit, the auditor takes a full tour of the facility and the grounds and works to gain an understanding of inmate movement and daily life. This is likely where you come in. The auditor chooses random inmates, staff and volunteers to interview. The auditor wants to know whether there is a compliant policy in place, but also wants to see whether the policy is being followed and practiced regularly.

Should you be chosen for one of these interviews, you should be ready to explain the PREA training you have received. You will also likely get questions about the daily facility operations. This could include addressing how cross-gender searches and viewing are handled, how you respond to incidents, the announcements (or lack of announcement) of cross-gender staff in a housing unit, the screening of inmates, and other preventive measures.

Realistic Expectations
Even if you and your facility are just getting started on PREA implementation, if your facility uses Lexipol policies, you have a head start because Lexipol policies address PREA standards. Of course, just having a policy in place is not enough—when preparing for a PREA audit, you must ensure the policy is also the practice. And be sure you’re referencing the appropriate standards—PREA standards distinguish between Adult Jails and Prisons, Lockups and Juvenile Facilities. They are facility-type specific and there are important nuances to each. The standards and FAQs can be found at www.prearesourcecenter.org.

The purpose of a PREA audit is not to say, “Gotcha!”, or to catch anyone doing something wrong. Auditors and those who oversee PREA understand the real world. We have experience in facilities and we rarely expect facilities to be fully compliant on the first go-round. By the end of the facility visit we almost always identify something for improvement. The auditor will prepare an interim report and provide corrective action items to be achieved during a corrective action period, which can be last up to 180 days. Auditors also provide guidance to facilities to help them achieve full compliance by the end of the period.

It takes work to be fully PREA compliant and to diligently eliminate sexual abuse in confinement. However, I can’t subscribe to any ideology that rape and sexual abuse in our facilities is something we ignore, nor should you.

So, ask yourself again: Are you ready for your next PREA audit?

Tim Evinger

TIM EVINGER is a training developer for Lexipol and a DOJ-certified PREA Auditor for Juvenile and Adult Facilities. He served three terms as Sheriff of Klamath County, OR, following 12 years of experience at the Klamath Falls Police Department. Tim is a member of the International Association of Chiefs of Police, a life member of the Oregon State Sheriffs Association and a certified instructor through the Oregon Department of Public Safety Standards and Training. He is also an FAA-licensed pilot and drone pilot, a certified advanced SCUBA diver, and a licensed private investigator in Oregon and California.

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Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.

Earlier this year, a firefighter in Florida made headlines when she battled with her department over her desire for a light-duty assignment during pregnancy. The collective bargaining agreement between Indian River County and the firefighters’ union prohibited light or restricted duty “for non-duty related illness, injury, or condition (such as pregnancy), except as required by applicable law.” The department eventually shifted course and granted the light-duty assignment, vowing to change the policy.

In another case out of Florida, a fire department’s policy prohibited firefighters from being on light duty in their first trimester, regardless of their medical condition and whether a doctor had recommended light duty. Instead, the women had to wait until their second trimester. The policy was found to be discriminatory under Title VII of the Civil Rights Act of 1964 because it treats pregnant firefighters differently from their male colleagues. The department entered into a consent decree with the Justice Department, agreeing to change the policy.

So this leads to our question:
Do fire departments have to provide light duty for female firefighters who become pregnant?

The answer is a bit more complicated than a simple yes or no. There is no federal law that mandates that pregnant firefighters be provided with light-duty assignments. States are free to legislate such a light-duty requirement for pregnant employees, but generally they do not.

If a light duty assignment would be given to an employee with one type of medical disability, it cannot be denied to a pregnant employee.

However, here’s the rub: Fire departments that provide light-duty assignments cannot deny such assignments to pregnant firefighters. Doing so would likely constitute discrimination under the Pregnancy Discrimination Act as well as gender discrimination under Title VII of the Civil Rights Act of 1964.

Employers often provide light-duty assignments for personnel who suffer line-of-duty/worker’s compensation-type injuries. In fact, many worker’s comp insurers offer a reduction in premiums to employers who follow this practice as it has proven to reduce overall comp costs. Once the practice of providing light-duty assignments for worker’s comp cases is established, denying light-duty positions to other types of disabilities risks running afoul of discrimination laws. The reality is, if a light-duty assignment would be given to an employee with one type of medical disability, it cannot be denied to a pregnant employee.

Curt Varone

CURT VARONE has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook(2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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We change—we all change. I’ve changed. I’m better now than I was three decades ago. This is what I sometimes think about as I sit at my home office desk, writing training bulletins for Lexipol, reflecting on my career as a police field training officer, training program coordinator and training program supervisor. If only I knew then what I know now, I would have been better. This is probably something you’ve thought to yourself as well.

This isn’t about guilt. I’m not trying to forgive myself for anything. I’m quite proud of the officers I trained and what they’ve been able to accomplish since passing in and out of the patrol cars I occupied. Our training office included two seats, a windshield, a steering wheel, a radio and—in time—a Mobile Data Computer (which made life so much easier). We operated in the system we were provided, recognizing it as well as a fish recognizes water. We always did the best we could with what we were provided—me agonizing over how I could get my trainee to a place where I felt comfortable saying he or she would be “good to go” on the street; them struggling to comprehend and apply all the complexities of policing a busy, urban, high-crime city with a reputation for toughness.

Two years into my career, I was drafted by a tough-as-nails on the outside (but soft-as-marshmallow on the inside, once you got to know him) lieutenant who, for reasons I still can’t explain, thought I was a “good cop.” Two years in, I was still trying to figure out effective application of Terry v. Ohio, among many other things. But because the lieutenant needed field training officers, he looked around for people he thought were good cops. This makes sense, but if I knew then that being a “good cop” and being a “good teacher” were two completely separate (although arguably complementary) things, I would have taken a dramatically different approach to the job.

Naturally, I went to the requisite Field Training Officer (FTO) school, where I learned basic information about teaching, evaluation and vicarious liability. Literally, that’s all I remembered about FTO school: Fill out your evaluations, do it in a timely manner, and if your trainee messes up, know that you can be sued (try not to let your trainee screw up). What I don’t remember learning about was the concept of “learning”—that is, how adults learn and how I might be able to affect that. If only I knew then what I know now.

Everything was going along swimmingly. Right up until he accidentally shot himself on-duty as I stood directly next to him.

And then I was assigned my first trainee. I was doing a great job! I found that I was a natural trainer. I taught, I evaluated, I was a role model. Everything was going along swimmingly. Right up until he accidentally shot himself on-duty as I stood directly next to him. OK, he didn’t actually shoot himself … or maybe it would be more accurate to say he didn’t actually shoot himself.

All I was trying to do was introduce him to the local pawn shop and its owners, with whom I’d appropriately developed a professional relationship. They were happy to show my trainee their gun safe. Who would have thought they would accidentally leave a round chambered in the .22 caliber semi-auto pistol the owner thought he’d show off? And how was I to know my trainee would immediately violate firearm safety rules 1 and 2 (“Treat all guns as if they are loaded” and “Keep your finger off the trigger until you’re ready to fire”)? Well, remember “vicarious liability”? Especially that part about “don’t let your trainee screw up”? I never forgot that lesson.

By the way, my trainee was fine. The gun discharged into the gun safe and the bullet fragmented. He was hit with a small fragment in his thigh, but was otherwise uninjured. We were allowed to continue working together and I didn’t even lose my FTO position, although I never took my trainees back to the pawn shop. Thereafter, I found it was enough to simply drive by and point it out. For some reason, after passing the pawn shop, our conversation would always turn to a review of basic firearms safety rules.

It was rare the lessons I learned impacted me like that unexpected shot. Typically, they came far too late to do anything other than apply them to future assignments. Maybe that’s true with all learning, but my education was slow to develop. It came mostly through life experience and some rudimentary coaching from lieutenants and other mentors. Only much later, when I invested a significant amount of time reading, observing and reflecting, was I able to identify the lessons from these experiences.

This leads me to confess that I’m confident I made every mistake possible in the decades I spent as a police field training officer. Although I probably made several garden-variety, single-incident errors, those aren’t the ones I’m talking about here. My confession concerns more fundamental blunders—thinking I was a “teacher,” an “evaluator” and a “role model” when a trainee accompanied me. At the time, I considered this role ambiguity “being flexible.” Perhaps it was a form of situational leadership, an adaptation to what I believed the trainee—or the organization—needed from me at any given time.

In hindsight, this was an essential flaw in my training paradigm. You might be thinking, “That’s what training officers do—they teach, they evaluate, they serve as role models. These aren’t flaws, that’s how we do business!” Clearly, I felt that way for many years. Now I know there’s a different, perhaps better, approach.

Before we get to that, we need to explore the advantages and disadvantages of the teacher, evaluator and role model mindsets. And that will be the subject of my next article, as we continue to explore my evolution as an educator in Part 2.

Roger Buhlis

ROGER BUHLIS is a Law Enforcement Training Content Developer for Lexipol. He worked as an officer and sergeant for 26 years before retiring in 2012. Roger continues to teach policing professionals and has 30 years of experience training and teaching. In retirement, Roger earned a master’s degree in Adult Education in 2015.

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Lexipol, the leading provider of state-specific policies and training for public safety agencies, recently announced the introduction of its Fire Policies and Training solutionn for Alabama fire departments. The new service includes policy and procedural content and related training delivered via an online platform and mobile app.

“This new solution will complement our current Alabama law enforcement and corrections policy and training offerings for complete public safety coverage.”

Lexipol helps public safety agencies reduce risk and liability associated with out-of-date or incomplete policies and enhances organizational effectiveness through improved policy management and training. Developed by fire service professionals and public safety attorneys, the Lexipol Alabama Fire Policy Manual includes more than 165 policies and 25 procedures for high-risk operations that are continuously updated to meet changes in laws and best practices. The subscription-based service also includes short, scenario-based training bulletins, to reinforce policy content understanding, as well as accountability reporting.

“We are pleased to introduce our policy and training solution to Alabama fire departments,” said Lexipol CEO Michael Davis. “This new solution will complement our current Alabama law enforcement and corrections policy and training offerings for complete public safety coverage.”

The Alabama Fire Policies and Training solution is available to the more than 800 fire departments in the state.

To learn more about Lexipol’s Fire Policies and Training solutions, visit www.lexipol.com/fire.

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Editor’s note: This article is part of a series. Click here for the previous article.

Gordon Graham here and thanks for taking the time to read this next iteration in my series on what “real risk management” is all about. The tough thing about this series is that many of you have been reading from the start, but some of you have just joined us and are reading this as a solo work. Although I design each of these writings to stand alone, I encourage you to read the series if you can find the time (here’s a link to the first article).

Enough on that.

The overall goal of these articles is to familiarize you with the 10 Families of Risk that you face in public safety operations, and to get you thinking about the control measures you need to have in place to address these risks. If you go back to the start of this article series, I have given you some thoughts on external risks, legal and regulatory risks, strategic risks and, in the last few articles, some organizational risk management. Here is a repeat of the graphic I used to start this discussion.

We addressed the “policy” component in my last article—and a sincere thank-you for your kind emails regarding that article, as well as for those of you who are Lexipol client agencies. Now it is time to move onto the “training” pillar.

Public safety training can be put into three separate (but hopefully complementary) components: initial academy-based training, training provided to probationary employees (also referred to as the field training officer, or FTO, process in law enforcement) and continued professional training.

Let’s start with initial training. While there’s always room for improvement, I feel confident most academies and initial training programs are doing a good job preparing law enforcement officers, corrections officers and firefighters. It is my belief that initial training needs to be viewed as a foundation for everything that follows, but I also believe there needs to be a thread throughout all training focusing on the “core critical tasks” in every job description in public safety. More on core critical tasks in just a bit.

“I hear this over and over again around the U.S.—field training is a ‘problem lying in wait.’”

My worries with training start with probationary training. On a national level I have concerns about it. Here we are in 2018 and I still talk to cops and firefighters fresh out of the academy who are greeted by an FTO or company officer or veteran firefighter who tells the young graduate, “Forget everything you learned at the academy—just listen to me and you will be fine.”

I hope that is not going on in your department but before you jump to reassure me, ask yourself this: How do you know it’s not? I hear this over and over again when I talk to program attendees around the U.S.—field training is a “problem lying in wait” (if that term is new to you, consult the earlier articles in this series). Please make sure your FTOs understand what their role is in the training process.

Let’s move onto to the third component of training—ongoing training. Here is a scary thought for your consideration: After a young cop or a firefighter in your department graduates the academy or completes whatever initial training is required—and assuming they do not attempt to promote within your agency—when is the next time they must take a serious test for which they must study? How do you know what your people really know about their core critical tasks prior to their involvement in an incident?

Many of you reading this are police chiefs and senior executives in corrections. Downstream in litigation you are going to be on the stand as a named defendant in a lawsuit and you are going to be asked this question: “Chief, when was the last time this officer (the defendant who is the focus of a lawsuit) was trained and tested on the use of force policy?”

What will your answer be, Chief?

For those leaders in the fire service, someday you may face a lawsuit involving retaliation against an employee who is a member of a protected class. And when that happens, you’ll be asked this question: “Chief, when was the last time your discriminatory harassment policy was updated? And can you produce training records to show your firefighters know and understand this policy?”

What will your answer be, Chief?

The sad news is that, too often, the only time you find out that your officers or firefighters don’t know the shooting policy or the inmate safety checks policy or the social media policy is AFTER the incident occurs and it ends up in a tragedy. There has got to be a better way to train our personnel—and that will be our focus in the next piece in this series.

TIMELY TAKEAWAY—Please make sure that your FTOs, veteran employees and company officers understand how critical their role is in the overall process of training public safety personnel.

Gordon Graham

GORDON GRAHAM is a 33-year veteran of law enforcement and the co-founder of Lexipol, where he serves on the current board of directors. Graham is a risk management expert and a practicing attorney who has presented a commonsense risk management approach to hundreds of thousands of public safety professionals around the world. Graham holds a master’s degree in Safety and Systems Management from University of Southern California and a Juris Doctorate from Western State University.

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Lexipol, the leading provider of state-specific policies and training for public safety agencies, recently announced the introduction of a Probation Policies and Training solution for California. The solution addresses pressing needs and provides guidance on high-risk policy and training issues, policy management, and related training.

The service is easily customized for different probation models and includes policy content, management, and related training delivered via an online platform and mobile app. It is Lexipol’s first offering for probation departments and complements the company’s current corrections, fire and rescue, and law enforcement offerings in California.

“The new probation policies, along with our juvenile detention policies, create tailored coverage for the needs of each probation department in the state.”

Lexipol policy solutions help public safety agencies reduce risk, liability and costs associated with out-of-date or incomplete policies. Developed by community corrections professionals and public safety attorneys, the Lexipol California Probation Policy Manual includes more than 100 policies continuously updated to meet changes in laws and best practices. The subscription-based service also includes up to 20 short training bulletins per month, each highlighting a different probation-specific scenario to reinforce policy content and officer accountability.

“We are pleased to expand our corrections offerings in California,” said Lexipol CEO Michael Davis. “The new probation policies, along with our juvenile detention policies, create tailored coverage for the needs of each probation department in the state.”

The Probation Policies and Training solution is available to the 59 county probation departments in the state.

To learn more about Lexipol’s Probation Policies and Training solutions, visit www.lexipol.com/probation.

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Like many of you, there are a few incidents during my 30+-year career that stand out from the rest. These incidents begin with us responding to the scene with the intention of making a difference by saving lives and property—and quickly transition to realizing there is nothing we can do to make a positive impact.

By our very nature, public safety professionals (whether or not we receive a paycheck) are wired the same way: We respond to each incident with the desire to make a difference, especially when it comes to saving lives. We arrive on scene programmed and trained to provide an assessment and take the appropriate actions to begin making a difference. We may see terrible things—the agony of a family who has lost all their possessions, people killed, or maimed, helpless individuals caught in the throes of homelessness or addiction. But we react to each by “doing stuff.” These actions serve to distract us from fully realizing what has occurred. When the public reacts in wonder and appreciation of our efforts, it’s not uncommon to hear us say, “We’re just doing our job.”

But in this article, I want to raise awareness to the few incidents where “doing stuff” isn’t an option. Tragically, there are some calls where there is nothing we can do. For most of us, such calls are, thankfully, rare. But as awareness of post-traumatic stress disorder (PTSD) and overall responder mental health increases in the fire service, incident commanders must recognize the unique nature of such calls and take steps to reduce responders’ exposure to critical incident stress. There is a reason to risk exposing responders to critical incident stress when there is a potential reward—but when there is nothing we can do, the best option may be to limit our personnel’s exposure to the full magnitude of the tragedy.

Providing frequent breaks and frequent crew rotations and staging away from the incident stressors can be key to reducing the amount of stress responders will absorb.

The Stress of Just Standing Around
Public safety professionals are “doers” and “fixers.” Many of our spouses and significant others complain that when they talk to us about a problem, we rarely listen—because as responders and “fixers,” we are too busy trying to formulate a plan on how to “fix it.” It is what makes us truly great at what we do, even if it’s not always appreciated. Faced with an emergency where our action is needed, we put our heads down and focus on what we can do to make things better. But, in a few cases, when there isn’t anything we can do to have a positive impact, we’re left without direction and in turn, the incident begins to have a different impact on us.

Responders left to stand around can become very aware of what’s going on around us—much more aware than we are used to being. We see the deceased bodies, we hear the cries of others who have been involved in the incident, we note the arrival of family members and their initial reaction to the incident, and yes, as morbid as it may seem, we become aware of the smells, too. If nothing is done to prevent it, on-scene responders will be exposed to this stress until they are released from the scene. And that’s stress that can be managed and exposure that can be reduced.

Limit Personnel Involved in Recovery
After the initial assessment of the scene is complete, response objectives are generally developed and implemented. If the incident quickly transitions from a response to a recovery operation, incident commanders should reevaluate what resources are needed and consider managing their personnel differently.

When an incident transitions from rescue to recovery, resource requirements will likely change. Timeliness of the recovery should be balanced with using minimal personnel resources to work effectively. This should be a calculated and deliberate decision—incident commanders should use only those people needed to accomplish the task, not just “whoever is available.”

Anyone who is not directly involved in the recovery effort should be removed from the immediate scene and relocated to a remote staging location where they are not exposed to the incident stressors. If they are no longer needed, they should be released from the incident.

Limit Overall Exposure
Additionally, try to limit how long individuals are exposed to the stressors. At hazardous materials incidents, any exposure to a hazardous material is a consideration, but we also understand reducing the dose can greatly reduce the effect of any material with which we come into contact.

The mental stressors present in traumatic scenes work in much the same way. Providing frequent breaks and frequent crew rotations and staging away from the incident stressors can be key to reducing the amount of stress responders will absorb.

Fire service and other public safety leaders are aware of the effects of critical incident stress now more than ever. We now understand how critical incident stress affects responders and how to care for those who experience effects from exposure. Critical Incident Stress Management (CISM) programs and Critical Incident Stress Debriefings (CISD) are critically important. But they are also reactive approaches.

We need to develop proactive measures to reduce the exposure to this stress and to reduce the time anyone is exposed.

We need to integrate ways to reduce this stress into chief officer development training, incident command courses and officer development programs. The training should focus on crew resource management and the reduction of critical incident stress exposure while balancing achieving the incident goals.

The more we can do to reduce the initial impact, the less we will need to care for those injured mentally and suffering from its lasting effects.

Bruce Bjorge

BRUCE BJORGE's 33-year fire service career has included command and training positions with career, combination, volunteer and military fire agencies. Currently, he serves as a paid-on-call Battalion Chief with the Western Taney County Fire Protection District in Branson, Mo., and as the Fire Training Coordinator for Lexipol. Bruce holds Training Officer and 1403 Live Fire Facility Instructor credentials from the International Society of Fire Service Instructors and is a graduate of the National Fire Academy’s Training Program Management course. He teaches at the University of Missouri Fire & Rescue Training Institute and the College of the Ozarks Fire Science program. Bruce has been an active instructor and evaluator for the past 26 years and served as Western Taney County FPD’s Assistant Chief of Training for seven years.

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State v. Corcilius, 2018 (Or. App. 2018)

I love it when the courts tackle tough legal questions and give us clear answers. But if ever there was a case for stinky puns, this is it. And it takes 10—count ’em, 10—long pages of astute legal reasoning and incisive dissenting arguments in the annals of the Oregon Court of Appeals.

Just the facts: Ryan Corcilius was driving from California to Oregon; his bladder was bursting by the time he stopped in Portland. A gas station would not grant admission to their restroom because he wasn’t a paying customer. Neither would the nearby Subway sandwich shop, unless he bought food, but the line was too long to wait to buy a sandwich.

Now in a panic, Corcilius found a wall and began to wet it (to quote Super Troopers (2002), “When you gotta go, you gotta go”). A security guard saw liquid flowing across the pavement. Apparently unable to view the precise source, but seeing Corcilius’s pose and using his keen sense of smell, the security guard confirmed the liquid was urine and called the police. In response to the investigation and complaint of the astute security guard, an officer issued a misdemeanor citation to Corcilius for “offensive littering.”

But is letting flow a stream of urine actually “littering”? According to the great State of Oregon, “A person commits the crime of offensive littering if the person creates an objectionable stench or degrades the beauty or appearance of property or detracts from the natural cleanliness or safety of property by intentionally discarding or depositing any rubbish, trash, garbage, debris or other refuse upon the land of another without permission of the owner, or upon any public way or in or upon any public transportation facility.” The members of the appellate court set out to determine, as a matter of law, a series of complex and burning questions: Does leaving urine (by whatever means) create a stench? Is urine “rubbish, trash, garbage, debris or other refuse”? Is urinating on a wall “discarding” rubbish, trash, etc.? If it isn’t “discarding” could it be “depositing”? Or is it just going with the flow?

Along the way, the court pondered whether urine is “miscellaneous useless valueless waste.” What about those who practice urophagia? Yeah, it’s a thing to drink urine. For some, it is an alleged aphrodisiac—Google it! There is even a steroid used to treat anemia that is extracted from the urine of pregnant house cats. I’d prefer to eat more spinach and broccoli.

Bottom line: Was the officer legally correct to issue a citation for littering? It took 10 pages of small print and 11 footnotes to say “no.” At least we have an answer—and cops all over Oregon are certainly better off with this solid legal guidance from the court.

Pee S. This case does nothing to invalidate ordinances prohibiting urinating in public.

For a similar case, check out: “Hey, Officer, I Was Breaking the Law Because I Have To…”

Ken Wallentine

KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.

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It’s been a week since one of your officers shot a suspect during a burglary attempt. Although the officer’s actions were reasonable considering the circumstances, the suspect turned out to be an unarmed homeless man, stealing food from the local 7-11. Not surprisingly, the case garnered a lot of attention. Now, with the media interviews complete and the investigation underway, you take a deep breath. Maybe things can start to get back to normal around here.

But just then your assistant knocks on the door. You’ve been served with a Freedom of Information Act request. A local newspaper wants the officer’s training records, proof of her firearms qualifications, and information on any other shootings she’s been involved in. The request also asks for your agency’s Use of Force Policy. Here we go again…

Requests for public records are governed under state-specific laws. The names vary—Public Records Law, Open Records Law, Right-to-Know Law, Sunshine Law—but for this article we’ll use Freedom of Information Act (FOIA). Regardless of the name or the way in which the request is submitted, the result is the same: Your agency must respond, and generally within a mandated timeframe.

Equally important to transparency is a law enforcement agency’s responsibility to protect sensitive information.

Responding to Freedom of Information Act requests can be stressful and confusing. What information must you provide? What can and should you redact? What will be the impact of releasing the information, and who should be aware of the release? Often, complying with such requests involves balancing the need for transparency against the potential negative impact of release.

Don’t wait for an officer-involved shooting or other critical event to determine your agency’s policy and process for complying with records requests. Following are five tips to consider now, so you have the needed guidelines to follow in the heat of a critical incident.

1. Commit to Transparency

A request for public records can seem accusatory—the implication is that your agency won’t release the information voluntarily, so the media organization or member of the public is using the law to compel you to comply. But that’s hardly the complete picture. Law enforcement agencies gather immense amounts of information and records in the course of regular business. It’s your responsibility as a law enforcement leader to ensure these records are secure. Going through the FOIA process is often the best way to ensure records don’t fall into the wrong hands and are being used responsibly.

One way to combat the negative feelings associated with public records requests is to commit to transparency in your policy. Simply stating that your agency is committed to complying with the law sets a tone for you, your staff and those making requests. Rather than setting up the situation as “us vs. them,” it underscores that you’re ready and willing to comply.

2. Designate a Records Officer

A key step in being prepared to promptly respond to Freedom of Information Act requests is to designate who in your agency will respond to the requests. In small agencies, this will often be the chief, but in medium or larger agencies, it may be an assistant chief, lieutenant or deputy sheriff.

The open records officer is responsible for the retention, release and destruction of records. They should be familiar with the records retention laws of your state and maintain documentation as to which records need to be retained, for how long and in what format. Equally important to retention is the timely destruction of records after the retention period has passed. Timely destruction of records achieves two purposes: First, it reduces costs associated with archiving of records, which can be especially expensive when it comes to video records. Second, if the record exists, it can be subject to an open records request even if the retention period has passed. So if you’re not required to keep it, it’s best to lawfully destroy it.

3. Outline the Process

Defining the process by which your agency will respond to a FOIA request will also help with prompt, transparent compliance. Your process should cover:

  • Documenting when you received the request
  • Documenting when you replied to it and how
  • What to do if you need more time to comply with the request than the law provides
  • What to do if you don’t have the record requested, or if it’s in a different format than the request
  • Lawful reasons for denying a request and what information you provide to the requestor when denying the request, including a possible appeals procedure
  • What fees, if any, are charged for records duplication and release

4. Protect Sensitive Information

Equally important to transparency is a law enforcement agency’s responsibility to protect sensitive information. We may think of records as boring documents, but they often contain information that can be misused. The specific types of documents subject to release restrictions will be detailed in your state’s open records law, but some examples include:

  • Personal identifying information (Social Security numbers, driver’s license numbers, addresses, medical information, etc.)
  • Home addresses of officers
  • Information that could jeopardize the safety of a victim or witness
  • DNA records
  • Officer discipline, promotion and grievance records

Sometimes a document will include information subject to release but also information subject to withholding. In such cases, it will be appropriate to redact certain information before releasing the document. Note: Make a copy of the document you created with redactions before releasing it. This will provide proof you didn’t release inappropriate information.

You may also want to consider how your documents are structured before releasing. In the example at the beginning of this article, the records request included the agency’s Use of Force Policy. If your policy also includes tactical or procedural information that could jeopardize officer safety if it was released, you may want to consider redactions.

5. Build into Policy

Records retention and release should be built into your agency’s policies. A comprehensive Records Maintenance and Release Policy is the first place to start. It should cover the responsibilities of the open records officer, the process for responding to requests and denying requests, types of information that may be subject to release restrictions, and the agency’s process for dealing with inadvertent release of records.

But don’t stop there. Other policies that should include guidance on records maintenance and release include:

  • Officer-Involved Shooting
  • Portable Audio/Video (Body Cams)
  • Media Relations
  • Protected Information

Once your policies are squared away, remember the importance of regularly training on them. You want officers to be prepared to respond to FOIA requests and be familiar with proper records retention. Developing the policies and putting them on the shelf isn’t enough; you must review them frequently.

Balancing Act

Responding to Freedom of Information Act requests can be stressful and challenging, especially when the requested records land in a grey area. Following an officer-involved shooting, for example, it’s common to receive requests for body cam video. Leaders must balance the benefit of transparency afforded by release the video with the impact it might have on the investigation and on the family members of the suspect or the victim. You don’t want to gain a reputation for stonewalling on records requests or making things unduly burdensome for those requesting records, but at the same time you don’t want to haphazardly release swaths of records into the public domain where you have little to no control over them.

The process is there for a reason—the key lies in following it and communicating as clearly and openly as possible along the way.

Derek Clepper

DEREK CLEPPER is a licensed attorney in Pennsylvania, where he has served as prosecutor for more than 50 jury trials and thousands of bench trials. Currently, he serves as a content developer for Lexipol and led the development of Lexipol’s Law Enforcement policy manuals for Georgia, Indiana, Iowa, Alabama, Pennsylvania, Montana and Virginia. Derek teaches constitutional law, criminal procedure and mock trials at the college level. He lives in Boiling Springs, Pa., with wife Sara and four sons.

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Juillerat v. Mudd, 735 Fed. Appx. 887 (6th Cir. 2018)

An officer was parked, positioned to block traffic, alongside a truck stuck under a low railroad crossing. Another driver, Maki Juillerat, came upon the scene and decided to drive his car around both vehicles rather than stop behind them. The officer subsequently stopped Juillerat, citing him for both driving on the wrong side of the road and disregarding the officer’s attempt to stop traffic.

A month later Juillerat told Dr. Mary Sweeney, a therapist treating him for post-traumatic stress disorder, that “he already hates cops” and was recently cited by an officer. Dr. Sweeney didn’t report any threat, but her written notes state Juillerat “reported both suicidal and homicidal ideation” and that Juillerat had thought about shooting the officer, without sharing specific plans, because he viewed the officer as unfair and inconsistent. The therapist wrote Juillerat was soon due to appear in court on the traffic citation.

To be technical, although “false arrest” is often shouted when someone disagrees with the legitimacy of an arrest, it more accurately refers to “false imprisonment.”

After a staff review of Dr. Sweeney’s notes, another staff member contacted police and conveyed Juillerat’s statement about shooting the officer. An investigator spoke with Dr. Sweeney, who said Juillerat did not pose a threat. So, the investigator informed the officer and closed the investigation with no further action.

But then the officer filed his own criminal complaint against Juillerat for making a terroristic threat. His complaint recited the threat, but left out the part where Dr. Sweeney said she did not perceive Juillerat as “an imminent risk to anyone.” A prosecutor then filed a charge and obtained an arrest warrant. Another officer found Juillerat and arrested him, but after 10 days in jail, the court released Juillerat and dismissed the charges.

Juillerat then decided to sue the officer, the hospital staff and the police department for false arrest and other claims, but a trial court dismissed all claims. Juillerat appealed, but only on his single claim of false arrest.

To be technical, although “false arrest” is often shouted when someone disagrees with the legitimacy of an arrest, it more accurately refers to “false imprisonment.” In this case, the court used other technical points in its opinion. The officer “is not off the hook just because he did not [physically] arrest Juillerat.” If his actions caused the alleged false imprisonment, he could still be liable.

The court also pointed out that Juillerat technically sued under an incorrect theory—a misstep that protected the officer from a false arrest suit. Juillerat’s arrest was lawful because it was based on an arrest warrant issued by a magistrate. However, Juillerat could have claimed malicious prosecution and sued the officer for failing to tell the prosecutor and court about the therapist’s conclusion that Juillerat didn’t present an actual threat. Though the court didn’t explicitly say so, it seems this is a case where the officer got off on a technicality.

Ken Wallentine

KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.

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