Agencies should have in place systems for routinely evaluating:
- (a) uses of force;
- (b) significant adverse events; and
- (c) patterns of events that involve risk of physical harm, the deprivation of constitutional rights, or a substantial threat to community confidence and trust in the police.
a. Purposes of incident review. Section 13.07 indicates the importance of conducting fair and thorough investigations of allegations of misconduct against officers. To ensure that their internal accountability measures are effective, agencies should also conduct self-assessments, beyond investigations and adjudications, to identify policing errors and the means for preventing them. Adverse events in policing often are the result of deficiencies in training, policy, staffing, supervision, equipment, interagency coordination, and officer conduct that, once identified, can be addressed and mitigated. Thus, agencies should have in place systems to engage in routine, thorough, timely, and objective review of uses of force that rise to a certain level, regardless of whether there is any indication of wrongdoing. Agencies also should review other significant adverse events and patterns of events, even those that are less severe. Such reviews may be used to determine whether agency employees complied with applicable policy and law as well as to identify what modifications to agency policies, practices, and training are needed to help prevent future negative outcomes.
b. Covered events. Agencies should review all shootings and other uses of force serious enough to create a significant risk of injury, regardless of whether someone was actually injured. Agencies also should review other significant adverse events, such as police pursuits resulting in serious injury or death, serious deprivations of constitutional rights, and other incidents that threaten public confidence in the police.
Just as significant individual events may undermine community trust and reveal avoidable obstacles to sound policing, patterns of negative events, including less-critical adverse incidents, may do so. Thus, although agencies may choose not to routinely assess every minor incident that results in an accidental constitutional violation or minor injury, agencies should routinely identify and assess patterns of adverse events, including minor incidents. Reviewing footage from body-worn cameras and the outcome of lawsuits and other court proceedings, such as suppression motions, may aid in this process. Agencies also may seek to review other events, including accidents or incidents that could have resulted in adverse outcomes, but did not do so, or that indicate significant policy violations.
c. Content of incident review. In order to conduct reviews effectively, agencies should have protocols in place that determine how reviews should be conducted, what aspects of them should be communicated to the public, and how the agency should respond to recommendations and assess progress towards preventing future adverse events. At a minimum, an agency system for routinely reviewing incidents should ensure that relevant information about each incident is obtained, preserved, reviewed, and evaluated. The system should determine whether employees followed applicable policies and procedures. And it should evaluate the adequacy of applicable policies, training, and supervision as well as identify what modifications to agency policies and practices could be made to help prevent future events. Incident reviews should result in written reports, and in conducting incident reviews, agencies should avoid interfering with ongoing criminal or misconduct investigations.
d. System-based reviews. Although, for accountability purposes, it is important to hold individuals responsible for violations of applicable policy and law, analyzing the systemic causes of negative outcomes often is useful in preventing them, especially when they do not result from intentional departures from policy or training. One method for systemic review is the sentinel-event review. In a sentinel-event review, an agency convenes a team to carry out a detailed review of past adverse or “near miss” events for the exclusive purpose of determining what factors contributed to the events and identifying steps that an agency or community could take to improve future outcomes. This assessment often implements root-cause analysis—a method of identifying systemic causes of complex events.
The goal of a sentinel-event review is to discover systemic causes of errors in a non-blaming fashion because doing so can promote institutional change in a manner likely to engender widespread participation and acceptance. Towards this end, sentinel-event-reviews are conducted separately from disciplinary and legal processes and may involve a broad range of stakeholders.
Sentinel-event reviews and similar processes have been used successfully in medicine, aviation, and other high-risk industries. Agencies may wish to consider whether they could be similarly effective and cost-effective for preventing negative outcomes in policing. If so, in designing sentinel event reviews, agencies should consider: whether community members and affected individuals should participate; when the process should occur relative to legal and administrative proceedings; and whether and how information from sentinel-event reviews should be shared beyond the agency.
1. Self-assessment. Just as institutions in other industries engage in organizational introspection to improve, strong law-enforcement agencies embrace frequent, systematic, and ongoing self-assessments in order to identify errors and to correct policies and administrative, supervisory, training, and tactical practices that make policing less effective or more harmful than it need be. An agency’s willingness to identify errors, hold individuals accountable when appropriate, and implement reforms to prevent future harm also can be an important component of building community trust in law enforcement. This Section therefore recommends agencies engage in a broad practice of self-assessment, one that goes beyond ad hoc reviews of adverse incidents—sometimes referred to as “critical incidents”—that draw public scrutiny, or review only of narrow categories of adverse events, such as officer-involved shootings or domestic-violence homicides. Experts and commentators nearly universally endorse evaluating adverse incidents and near misses that could have resulted in an adverse outcome as a means of identifying reforms for law-enforcement agencies. See, e.g., Final Report of the President’s Task Force on 21st Century Policing 22 (2015) (calling on agencies to work with community members to “review cases involving officer-involved shootings and other serious incidents” and “implement nonpunitive peer review of critical incidents”); Nat’l Inst. of Just., Mending Justice: Sentinel Events Reviews 1-2 (2014); Int’l Assoc. of Chiefs of Police, National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions 19 (2013).
2. Sentinel-event-review systems. Common processes for assessing adverse events often serve two purposes; they identify individuals who have failed to comply with agency standards, and they highlight weaknesses in agency systems. Some experts worry that using the same systems for both purposes can hinder the process of identifying and implementing improvements in agency policy and practice to prevent negative outcomes. Systems designed to both assess blame and uncover systemic problems may deter full and forthright participation by officers, and recommendations may underemphasize forward-looking reforms in the process of assessing blame. See John Hollway et al., Root Cause Analysis: A Tool to Promote Officer Safety and Reduce Officer Involved Shootings Over Time, 62 Vill. L. Rev. 883 (2017).
Commentators have looked to other industries for self-assessment tools that separate the process of allocating responsibility from the process for identifying strategies for preventing future negative outcomes. In particular, scholars and policing experts have endorsed sentinel-event review as a promising tool for policing reform. See, e.g., Karen B. Friend et al., Sentinel Event Reviews in the Criminal Justice System: A Review of the Literature, Crim. Just. Stud. 1 (2020); John F. Hollway & Ben Grunwald, Apply Sentinel Event Reviews to Policing, 18 Criminology & Pub. Pol’y 705 (2019); Barbara E. Armacost, Police Shootings: Is Accountability the Enemy of Prevention?, 80 Ohio St. L.J. 907 (2019); Hollway et al., Root Cause Analysis, supra; Joanna C. Schwartz, Systems Failures in Policing, 51 Suffolk U. L. Rev. 535 (2018); James M. Doyle, Learning About Learning from Error, 14 Ideas in Am. Policing (May 2012). A sentinel-event review is a nonblaming assessment of the complex causes of adverse or high-risk events for purpose of identifying ways to prevent future harm. See Nat’l Inst. of Just., NIJ Strategic Research and Implementation Plan: Sentinel Events Initiative, 2017–2021 (2017); Nat’l Inst. of Just., Paving the Way: Lessons Learned in Sentinel Event Reviews (2015).
As John Hollway, Calvin Lee, and Sean Smoot have framed it, sentinel-event review using root-cause analysis “is not a substitute for current mechanisms for accountability and remediation. Rather, it serves as a necessary complement to those retrospective mechanisms, providing a forward-looking form of event review focused on community and officer safety, seeking to prevent future undesired outcomes and gradually improving the safety of a system through targeted reforms over time.” Hollway et al., Root Cause Analysis, supra, at 887. Thus, sentinel-event review may be especially valuable for negative events that result despite compliance with agency policy. “When an officer follows all established protocols and nonetheless discharges his firearm in the proportionate use of force or self-defense, the officer has acted correctly, but the system has failed.” Id. at 906. As evidence develops indicating whether sentinel-event review in policing is effective at preventing negative outcomes in policing, whether sentinel-event reviews are cost-effective relative to other efforts to prevent negative outcomes, and whether they work to build community trust, agencies may wish to consider engaging in such reviews.