It is NOT Militarization Equipment - It IS Required Officer & Citizen Safety Equipment

Dr. Frank Kardasz. 

September 15, 2014

Revised August 23, 2020

There is a DUTY to Equip

There has been much discussion about police "militarization."  Militarization refers to a manner of dress and the types of equipment being used by progressive law enforcement agencies who care enough about officer safety to provide their people with the best equipment.  I read an article once about a city council that opposed the police acquisition of an armored-style vehicle for their community.  One ill-informed pundit wrote that police officers accept the risks when they take the job and that  "military-style" equipment is unnecessary.

The recent "Defund-the-Police" movement can be predicted to lead to shortages of needed officer-safety equipment as less money is allocated to such items.  As a consequence, citizens and officers may be injured or killed.

Tragedy

 

The situation reminded me of the 1991 assassination of my then Phoenix Police Officer-colleague Leonard Kolodziej.  Leonard was working patrol one day when he responded to a call of loud noises - possible firecrackers - at a Phoenix residence.  Unbeknownst to Leonard, the noises were actually rifle-shots from a deranged sniper barricaded in a nearby home who had just, for no apparent reason, shot and killed a woman passer-by and wounded another man.

When Leonard stopped his patrol car near the location he was immediately shot in the neck and shoulder by the sniper.  The audio tapes from Leonard's last radio transmission recorded only unintelligible gurgling noises from his blood-filled windpipe.  He was able to activate his lights, siren, and press the red "999" (officer-down) button on his patrol-car computer, alerting others to a deadly threat.  Within a few minutes responding officers determined that the sniper was keeping them from extracting Leonard from the location.  They needed to place a large, bullet-resistant object or vehicle between the sniper and Leonard so that they could go in behind that barricade and save him.  At the time, the Department had no such vehicle nor barricade.  Responding officers finally commandeered a citizen’s large truck and positioned it between the sniper and Leonard so that they could bring him out - but by then it was too late.   The community lost a fine officer, husband and father.  The sniper later committed suicide during a five-hour standoff.

The T.J. Hooper Case

Now, consider the possibility that what is being called "militarization" equipment is instead potentially "life-saving" equipment.  Also think about the potential liability of NOT obtaining safety equipment when it is available.  The 1932 T.J. Hooper [60 F2d 737 (2d Cir. 1932)] case brings some legal-light to the issue of whether or not liability attaches to an organizations' failure to obtain available safety equipment.  The T.J. Hooper case involves tugboats and two-way radios, but the underlying obligation of an employer to obtain and use available technology when it can save lives is highlighted in the case and may also be applicable to law enforcement equipment.

In the T.J. Hooper case the plaintiffs were shipping two barges full of cargo when the ships encountered a storm. The barges sank and the cargo was lost (Lawnix, 2013).  The defendants owned the two tugboats that accompanied the barges.

The plaintiffs sued the defendants, claiming that the tugs were not seaworthy because they were not equipped with effective radio sets capable of receiving warning of the storm.  At the time, a statute had been enacted that required passenger steamers to carry such radios.

The defendants asserted that they did not have a duty, by statute or otherwise, to carry radio sets.  They asserted that the radio sets were new technology and that the statute that required passenger steamers to carry radios did not include tugs.  The trial court entered judgment in favor of the plaintiff and the defendant appealed.

Issue: If a new technology has been shown to be so extensive as to be a nearly universal practice or custom, but not required by statute, is a party not using the technology liable for damage that the new technology could have prevented?

Holding and Rule: Yes. The court held that unless the tugs were under a duty to be equipped with radios, a suit for negligence must fail. However, the standard of seaworthiness is not dependent on statutory enactment or unchanging standards.  The standard changes with advancing knowledge, experience, and the changed appliances of navigation.  The use of the radio was shown to be so extensive as to amount almost to a universal practice in the navigation of coast wise tugs along the coast.  The court held that there was a duty on the part of the tug owner to supply effective receiving sets.

 

Lesson

Hopefully, the aforementioned information can help a police administrator somewhere who is trying to convince an ill-informed politician that technology and equipment is not about militarization, it is about preventative precautionary measures, and failure to obtain safety equipment may expose the organization to liability.

We all wish our local police could attire in  snazzy dress uniforms worthy of publication in a fashion magazine while driving slow-moving, tiny-shiny cars as they smile and wave while performing mostly non-enforcement, happy crime-prevention training activities: However, policing in modern America is not Mayberry - for those of you who recall the Andy Griffith Show. 

The calls to "demilitarize" and "defund" should not result in increasing the risks to law enforcement officers by failing to supply the safety equipment they need.  Precautionary and preventative safety equipment must continue to be provided in order to stay one step ahead of the criminals who intend to harm.  It is  negligence when community leaders fail to equip peacekeepers with safety equipment.

References

Lawnix. (2013). The T.J. Hooper - Case Brief. Retrieved from http://www.lawnix.com/cases/the-tj-hooper.html

The T.J. Hooper, 60 F2d 737 (2d Cir. 1932).