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Reducing Exposure in Use of Force Litigation

NCJ Number
Corrections Today Volume: 71 Issue: 3 Dated: June 2009 Pages: 76-82
Jeffrey A. Schwartz
Date Published
June 2009
7 pages
This paper discusses ways in which a correctional institution or department can reduce its risk of being found liable in use-of-force litigation.
When a jail or prison regularly uses physical force as punishment (corporal punishment), it will likely be held accountable in court for any given use-of-force incident. Based on the author's experience with use-of-force litigation, he argues that there is a correlation between the frequency of use-of-force incidents in a correctional facility and the occurrence of unnecessary or excessive uses of force. The second major area linked to unnecessary risk for liability in use-of-force litigation pertains to recordkeeping and documentation. Defenses in such litigation often fail because facility staff have failed to keep thorough records and reports that corroborate the staff's version of what happened. Individual reports should be required from each staff member who was involved in or witnessed the use-of-force incident. A third factor that threatens to undermine the defense in use-of-force litigation is the existence of a "code of silence," which has been a feature of the culture of correctional agencies for years. The code of silence, which can lead to attempts at covering up the truth about use-of-force incidents, can place the defense on shaky ground. When the officers involved (participants or witnesses) are either lying under oath or are passively failing to report actionable behavior to protect one another, there is always the risk that someone will tell the truth or unwittingly offer inconsistent testimony. This article also discusses the use of an expert witness. Whether testifying on behalf of the plaintiff or defendant, an expert witness can inform a jury about accepted correctional practices and help the jury interpret technical issues in the case. The expert witness chosen should have specific knowledge and experience pertinent to the issues being litigated.