Public Risk Nov/Dec 2017 by Moire Marketing Partners

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION NOVEMBER/DECEMBER 2017

IN THE LINE OF FIRE:

AN INTIMATE LOOK AT

AND THE ROLE OF EMPLOYERS PAGE 6

ALSO IN THIS ISSUE

UNDERSTANDING THE NEW FEMA SELF-INSURANCE STANDARDS PAGE 10

De-Escalating Public Discord:

EVOLVING LAW ENFORCEMENT POLICY CHANGES PAGE 14

NOV/DEC 2017 | Volume 33, No. 10 | www.primacentral.org

CONTENTS

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

PRESIDENT Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN PAST PRESIDENT Terri L. Evans Risk Manager City of Kingsport Kingsport, TN PRESIDENT-ELECT Jani J. Jennings, ARM Insurance & Safety Coordinator City of Bellevue Bellevue, NE DIRECTORS Brenda Cogdell, AIS, AIC, SPHR Risk Manager, Human Resources City of Manassas Manassas, VA

IN THE LINE OF FIRE:

An Intimate Look at PTSD and the Role of Employers By Jessica Rice & W.A. Hogsten

Scott J. Kramer, MBA, ARM City/County Director of Risk Mgmt Montgomery County Commission Montgomery, AL Forestine Carroll Risk Manager Memphis Housing Authority Memphis, TN Sheri Swain Director of Enterprise Risk Management Maricopa County Community College District Tempe, AZ Lori J. Gray Risk Manager County of Prince William Woodbridge, VA Donna Capria, CRM, CIC, AINS Risk & Insurance Coordinator WaterOne of Johnson County Lenexa, KS NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Jennifer Ackerman, CAE 703.253.1267 • jackerman@primacentral.org

10 Understanding the New FEMA Self-Insurance Standards By Mark Ferraro

IN EVERY ISSUE

Public Risk is published 10 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org

DE-ESCALATING PUBLIC DISCORD:

Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year. Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine.

By Michelle Molinario

POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314.

Evolving Law Enforcement Policy Changes

| 4 NEWS BRIEFS | 19 ADVERTISER INDEX

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

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MESSAGE FROM PRIMA PRESIDENT AMY J. L ARSON, ESQ.

t seems very strange to me that I’m already writing my last column of 2017, when it seems like just yesterday I was being sworn in as the 2017–18 PRIMA President. A lot of good things have happened for PRIMA in 2017. In a time when many things seem to be beyond our control, let’s look back at our successes! After a successful 2017 Annual Conference in Phoenix, AZ, early-bird registration for PRIMA’s 2018 Annual Conference being held in Indianapolis, Indiana, June 3–6, opens in January. Next year’s conference, “Revving Up Risk Management,” promises to be one of our best conferences yet. Plan to come and help celebrate 40 years of PRIMA, because we are better together. 2017 PRIMA Institute: This year’s Institute had a record-breaking 123 attendees, not including the resident ghosts at the Sheraton Gunter Hotel. The curriculum and faculty were OUTSTANDING, and prior to leaving, many of the attendees were already looking forward to returning next year! 2017 ERM Training (both public sector and higher education): This year, PRIMA’s enterprise risk management (ERM) workshops had the highest number of registrants since we began to offer the training! We have also had multiple in-house training sessions that were new in 2017. If you are interested in having ERM brought in-house to your group, please contact the Education department at education@primacentral.org. 2017 Webinars and Podcasts: We are closing out the 2017 Webinar series with November’s topic of Risk Analysis and December’s topic discussing ERM and decision

“

So, as we close out 2017 and look forward

to 2018, I wish for good will and peace in our individual communities, our great country and for the world… Reach out to your PRIMA friends via PRIMAtalk, LinkedIn, or by phone.

“

Where Has 2017 Gone???

Remember, you are never alone, you are part of the PRIMA family.

making. This year, not only did we have timely and interesting topics again, but we also had attendance numbers that exceeded the prior years. So, as we close out 2017 and look forward to 2018, I wish for good will and peace in our individual communities, our great country and for the world. I hope that 2018 brings a year of understanding and acceptance of things that are different, and remind you all that if you are faced with a situation that is new and challenging, remember that you are not alone. Your fellow PRIMA members are here to help you face those challenges. Reach out to your PRIMA friends via PRIMAtalk, LinkedIn, or by phone. Remember, you are never alone, you are part of the PRIMA family.

Here’s to a GREAT 2018!

Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

NEWS BRIEFS

NEWS Briefs

NYC LIBRARIES WILL FORGIVE ALL CHILDREN’S FINES Library books are free, until they aren’t: Patrons who rack up $15 in late fees at New York City’s public libraries are blocked from taking out more books until the fine is paid. Among those with suspended privileges are 160,000 children, most of them from the city’s poorest neighborhoods, who cannot afford to pay. “Learning is a right. Reading brings you to new worlds,” said Octavia Loving, a 17-year-old student at Special Music High School, as she stood amid the stacks at Countee Cullen Library in Harlem, one of the neighborhoods with the highest concentration of children with blocked cards, according to library officials. “They shouldn’t block us from reading because of money.” In October, the city’s three library systems—the New York Public Library, which serves Manhattan, the Bronx and Staten Island; the Queens Library; and the Brooklyn Public Library—will forgive all fines for children 17 and under and unblock their cards, reports The New York Times. The one-time amnesty is being underwritten by the JPB Foundation, a philanthropy that supports civic causes, which will make up $2.25 million of the shortfall in revenue from the forgiven fines.

They shouldn’t block us from reading because of money.

PUBLIC RISK | NOVEMBER /DECEMBER 2017

“

Learning is a right. Reading brings you to new worlds…

Octavia Loving, a 17-year-old student at Special Music High School

Arizona public schools soon will get 200 new teachers as part of a new scholarship program that promises recipients free tuition at one of the state’s three public universities for every year they teach in the state. The scholarship program, the Arizona Teachers Academy, is one of the initiatives Arizona Gov. Doug Ducey proposed in January to help address a persisting statewide shortage of qualified teachers. The Arizona Republic published a firstof-its-kind analysis in June that found 22 percent of 46,000 teachers across the state during the 2016–17 school year were not fully qualified to teach. According to a survey published by the Arizona School Personnel Administrators Association, the state’s schools continue to have difficulty filling all of their open positions with qualified teachers.

IF POOR PEOPLE NEED A SEX CHANGE, NEW HAMPSHIRE WILL NOW COVER IT Medicaid money can now be used in New Hampshire to pay for sex change surgery deemed medically necessary, after a legislative committee voted 6–4 to approve new rules for the health care program that serves low-income households, reports The New Hampshire Union Leader. The vote came after more than two hours of sometimes emotional testimony over the issue of gender reassignment, and whether it is ever truly medically necessary. Health and Human Services Commissioner Jeffrey Meyers presented the rules change to the Joint Legislative Committee on Administrative Rules (JLCAR), saying the specific exclusion of “gender reassignment surgery” from Medicaid coverage is discriminatory and in violation of the Affordable Care Act (ACA). “The department is undertaking this effort so that gender reassignment surgery would be a covered benefit and the entire continuum of care for the treatment of gender dysphoria would be available for those who are Medicaid beneficiaries,” he said. Supporters and opponents of the rule change turned out for the vote, with many speakers urging the committee to reject the change.

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Several pointed out that a federal judge in Texas has already imposed an injunction on federal enforcement of the transgender health mandate in the ACA, and that the Trump administration is likely to take action against the mandate as well. Other opponents, some of them Medicaid beneficiaries, said the program could not afford the additional cost. Meyers pointed out that while the injunction prohibits the U.S. Department of Justice from enforcing rules promulgated by the Obama Administration, it does not constrain states from adopting rules at their discretion. “We take the position that the ACA prohibits discrimination, so we believe we are acting in response to a law adopted by Congress,” he said. JLCAR Chairman John Reagan said the committee is only empowered to vote on the legality of the rule, and not the policy issues it raises. The costs of the traditional Medicaid program, serving more than 130,000 New Hampshire residents, are split 50–50 by the state and federal government. Meyers said the cost of the new benefit to the program would be around $286,000 a year, based on actuarial estimates.

We take the position that the ACA prohibits discrimination, so we believe we are acting in response

“

TO ATTRACT TEACHERS, ARIZONA OFFERS THEM FREE COLLEGE

to a law adopted by Congress.

Jeffrey Meyers, Health and Human Services Commissioner

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

IN THE LINE OF FIRE:

AN INTIMATE LOOK AT

AND THE ROLE OF EMPLOYERS BY JESSICA RICE & W.A. HOGSTEN

PUBLIC RISK | NOVEMBER /DECEMBER 2017

NE OF THE WIDELY MISUNDERSTOOD AFFLICTIONS THAT PUBLIC SAFETY PERSONNEL are faced with is also one of the most prevalent. Yet, it is still considered taboo. Stigmas surrounding mental health cause most employers to shrug their shoulders and look the other way. If it cannot be legally linked to job tasks, then employers are off the hook, right? Not exactly. Over the past few years, I have had the opportunity to work with some of the most dedicated and hard-working police and fire officers in the industry. Here, one battalion

chief shares his intimate experience with post-traumatic stress disorder (PTSD). While this is one officer’s story, the circumstances are shared by multitudes across the country.

INTIMATE REFLECTION

JESSICA RICE, RISK MANAGEMENT (RM): HOW MANY YEARS HAVE YOU BEEN ON ACTIVE DUTY IN A PUBLIC SAFETY POSITION? W.A. Hogsten, Battalion Chief (BC): I have been a member with the Orange Volunteer Fire Company for 32 years. My career as a paid firefighter started with the Winchester (Va.) Fire Department as a firefighter/medic, where I served for 4½ years. We were the first paid medics in that area, running about 12 calls per shift. For the past 24 years, I have been working for the Charlottesville (Va.) Fire Department. RM: DO YOU HAVE A MILITARY BACKGROUND? BC: No, in fact it is one of my biggest regrets in life.

RM: CAN YOU DESCRIBE THE SCOPE OF RESPONSIBILITIES YOU HAVE HAD ON AN ACTIVE EMERGENCY CALL? BC: The duties have run the gamut of things from fire suppression, minor injury treatment, traumatic injuries, technical rescues, hazardous materials… RM: WHEN DID YOU FIRST REALIZE THAT YOU WERE EXPERIENCING CHANGES THAT AFFECTED DAILY LIFE? BC: I first noticed a change in my demeanor about 3 to 4 years ago when I didn’t recognize the “man in the mirror.” He was a broken person walking around in a fog. It is really difficult to identify a definitive time. One of my biggest indicators was an inability to remember

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

IN THE LINE OF FIRE: AN INTIMATE LOOK AT PTSD AND THE ROLE OF EMPLOYERS

“

In a nutshell, multiple encounters with devastation and loss has changed my

worldview drastically over the past five years, almost to the point of being cynical. Reading

“

scholarly literature on PTSD, depression, and trauma led me to seek help.

W.A. Hogsten, Virginia Battalion Chief

simple things. Like, I recently placed my keys in a place so I would not forget them, now I cannot find them. RM: CAN YOU DESCRIBE WHAT THOSE SIGNS AND SYMPTOMS WERE? BC: The first demonstrative sign was sadness, the little things that used to bring me a great deal of pleasure—there was just no joy in them. Trouble sleeping was (and still is) a major problem. I also found myself avoiding things that I did not want to be a part of or see. I have been told by my wife that I have nightmares, although I cannot remember any of them but have woke up sweating and “amped-up.” Sometimes my mind wanders and I find it hard to stay on task. Again, the issue that has become prevalent as of late is remembering simple things, such as walking to the barn and forgetting why I was there. RM: WHO NOTICED THEM FIRST? BC: My wife and my boys were the first to notice changes. My son has Asperger’s and speaks very candidly. One day, I was having a “bad day”; he came up to me and said, “You need a happy-hug.” That was one of the ‘ah-ha’ moments that forced me to realize that something was wrong and that it affected

PUBLIC RISK | NOVEMBER /DECEMBER 2017

my family. That is a tough realization to face when you are the one that fixes things and then suddenly you are the one that needs to be fixed. RM: WERE YOU ABLE TO IDENTIFY A CAUSE(S) FOR THE CHANGES IN YOUR PERSONAL OUTLOOK? IF SO, HOW? BC: In a nutshell, multiple encounters with devastation and loss has changed my worldview drastically over the past five years, almost to the point of being cynical. Reading scholarly literature on PTSD, depression, and trauma led me to seek help. In the process of writing a research paper on Public Safety PTSD I completed several self-assessments. Each one showed that I was in the upper percentile for having PTSD. RM: CAN YOU EXPLAIN WHAT A “TRIGGER” IS AND HOW SOMEONE MIGHT RECOGNIZE ONE? BC: Someone cannot recognize a trigger until they recognize that something is wrong. It takes a certain amount of self-realization. Having worked over 20 fatality scenes in a 12-month period, the biggest trigger I have is the odor of a fire scene where there are injured people. It is an odor that no firefighter or investigator

can forget. Once you develop PTSD, other things can subtly trigger symptoms: places, feelings, anniversaries, or situations. A trigger is something that activates a negative or harmful response.

RECOGNIZING THE SIGNS

During a recent meeting with police and fire officers, the faces of personnel were very telling of the events of a tumultuous summer. Our public safety personnel had just worked through three events involving civil unrest, multiple emergencies with fatalities, and a structure fire that resulted in a total loss. On the horizon was a series of hurricanes with unknown paths and magnitudes. Certain responses and appearances would be understandable given the circumstances. Exhaustion was to be expected. However, there was something almost unidentifiable that was detected in a couple of the officers. Statistically speaking, public entities have active safety personnel who are silently fighting a battle with stress and anxiety; however, not many of these entities are talking about it. The signs and symptoms of vicarious trauma are a result of exposure to traumatic, violent, or gruesome events that can either be acute or cumulative. Police PTSD Stress Disorder Resource Center

(www.PolicePTSD.com) provides the following list of signs and symptoms: • • • • • • • • •

Lack of interest and motivation; New addictions; Memory loss; Isolation or disappearance for periods of time; Increased irritability, contempt, or sudden outbursts of anger; New obsessive compulsive behavior; Overeating/weight gain; Anorexia/weight loss; Extreme paranoia and nightmares

WORKPLACE PROGRAMMING AND EMPLOYEE SUPPORT

A handful of states currently recognize PTSD in workers’ compensation laws, while several others have bills waiting to pass through legislation. This risk management topic is gaining momentum and public entities are now faced with developing mitigation measures. Risk managers can help organizations implement initiatives to combat the effects of PTSD.

 Training – educate managers on pertinent federal and state laws, organizational policies and procedures, recognizing signs, and available resources.  Promote wellness – promote existing organizational initiatives for health and wellness: physical activity, nutrition, sleep, smoking cessation, medical exams, etc.  Counseling – offer debriefing after any traumatic event, promote use of employee assistance programs, locate and promote peer (public safety) support teams/ councilors, locate a PTSD counseling specialist or psychologist.

WORDS OF ENCOURAGEMENT RM: WHAT HAS BEEN THE GREATEST TOOL, RESOURCE, OR MEANS OF SUPPORT FOR YOU THROUGHOUT YOUR JOURNEY? BC: Aside from my faith, the greatest benefit from the incipient stages of recognition

was diagnosis by a qualified psychologist that uses the currently accepted screening tools. Another thing that I have found to be helpful is challenging physical exercise and stress management. RM: WHAT ADVICE WOULD YOU GIVE TO OTHER PUBLIC SAFETY PERSONNEL WHO MAY BE STRUGGLING? BC: Seek help ASAP from a trusted source. A comprehensive assessment of your signs and symptoms will help with the diagnosis. Only then can treatment and healing begin. NOTE that the healing is a marathon, not a sprint. It takes work, fortitude, and peer support. Find what works for you. Jessica Rice is the risk manager for City of Charlottesville, Va. W.A. Hogsten is a battalion chief with the Charlottesville, Va. Fire Department.

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

Understanding the NEW FEMA Self-Insurance Standards BY MARK FERRARO

PUBLIC RISK | NOVEMBER /DECEMBER 2017

HE ROBERT T. STAFFORD DISASTER RELIEF AND EMERGENCY ASSISTANCE ACT (STAFFORD ACT) requires that any public entity or private nonprofit that receives funding for certain projects secure property insurance to protect the project from losses from the same type of peril that caused the

damages. For many years applicants had asked FEMA to allow their entity’s self-insurance program to qualify as acceptable insurance to meet these requirements.

In response, FEMA issued FEMA Recovery Policy FP 206-086-1, Public Assistance Policy on Insurance. Effective for all disasters that occur after June 29, 2015, this policy lays out the steps and responsibilities for an applicant to have their self-insurance plan approved by FEMA as part of the insurance requirements of the Stafford Act. As more fully explained in the previous articles Understanding The FEMA Insurance Process (September 2017) and The Care and Feeding of Your FEMA Project Specialist (October 2017), the Stafford Act requires that certain permanent repairs, replacements and restoration costs be insured against future loss. Known as the Section 311 – Obtain or Maintain Insurance provision, applicants must comply with the insurance requirement as a condition of their assistance grant. This requirement is generally limited to buildings, contents, equipment and vehicles. This insurance requirement does not apply to temporary facilities. The Recovery Policy states the insurance requirements as such: “The Stafford Act requires that applicants insure facilities and their contents with the “types and extent” of insurance that is reasonably available, adequate, and necessary to protect against future loss to the property. Types refers to the hazard(s) that caused the disaster-related damage and extent refers to the amount of insurance required.”

The new policy on self-insurance does not change any of the insurance requirements of FEMA. It simply gives a new avenue to use existing self-insurance plans to comply with the Section 311 insurance requirements of the Act. The requirements to comply with the selfinsurance policy are very straight forward. Most of the elements of the policy are very similar to those required in GASB 10, Accounting and Financial Reporting for Risk Financing and Related Insurance Issues issued November 1989 with subsequent revisions. The Recovery Policy allows self-insurance to be used for both flood and non-flood damages funding by FEMA. Entities that in prior years have claimed that they are and have been “self-insured” for property losses will now have to produce a plan for approval or will be forced to purchase risk transfer products.

THE APPROVAL PROCESS

a. The applicant’s self-insurance plan must be deemed acceptable by FEMA in order to comply with the insurance requirement. The applicant’s self-insurance plan should specify: i. The authority for developing, implementing, and enforcing the plan; ii. The financial arrangement used to fund the plan and pay for losses, which includes a system for fixed contributions and a formalized plan to pay losses as they occur; iii. How funds will be distributed;

iv. The hazards/perils covered; v. Commercial property insurance and/ or reinsurance, including blanket policies; standard flood insurance policies; insurance pools; or a combination of these sources that provide additional coverage; and vi. An inventory of property covered by the plan, which includes the location of individual properties and an estimate of the current replacement costs of the properties. b. For properties located in a Special Flood Hazard Area (SFHA): i. For the purposes of complying with the requirements of Section 311 of the Stafford Act and this policy, FEMA will only consider approving a self-insurance plan for any property located in an SFHA once the applicant has otherwise met the flood insurance purchase requirements of the National Flood Insurance Act. ii. Only the Federal Insurance Administrator has the authority to approve self-insurance plans to meet the statutory requirement to purchase flood insurance up to the maximum limit of coverage provided by the NFIP for State-owned structures and their contents in an SFHA. iii. Determinations from the Federal Insurance Administrator that a State’s plan of self-insurance exempts it from the flood insurance purchase requirement of the National Flood Insurance Act do not constitute approval of a self-insurance plan:

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

UNDERSTANDING THE NEW FEMA SELF INSURANCE STANDARDS

1) For any other hazard; or 2) That meets the requirements of Section 311 of the Stafford Act and this policy. Unfortunately, applicants are having great difficulty in meeting these requirements for a number of reasons. Here are some of the obstacles being encountered. I. Approval of a self-insurance plan must start with the state agency under contract to FEMA to administer funding grants. A little known aspect of the FEMA grant process is that the state contracting department is actually the grantee and is responsible to FEMA for any errors in funding. Individual public entities are technically sub-recipients or sub-grantees. If there is a funding error, FEMA “claws back” the money from the state, not the individual entity. States therefore have a vested interest in assuring themselves that applicants can comply with the insurance requirements. Otherwise the financial penalty can be very severe to the state agency. II. Lack of a written plan. Twenty six years after the initial adoption of GASB 10 we have seen little evidence that “self-insurance” plans have written coverage documents or operating procedures. III. Flood insurance under a self-insurance plan must be the equivalent of that which is required by the National Flood Insurance Act. There is a difference of opinion as to what this actually means. Does it mean an entity has to purchase National Flood Insurance Program (NFIP) coverage for each building and its contents, if required in a Section 311 Obtain Maintain condition? Or does it mean any insurance or self-insurance combination that is equivalent to available NFIP insurance coverage? The dynamics of the flood requirement are very challenging. Every building in a SFHA would have to have NFIP equivalent coverage up to $500,000 for the building and $500,000 for the contents, each subject to a maximum $2,000 deductible. (There is some movement internal to FEMA to allow a $25,000 deductible for compliance purposes, as this is the highest deductible available in the NFIP program.)

PUBLIC RISK | NOVEMBER /DECEMBER 2017

We have seen some evidence that state pools are offering NFIP equivalent coverage in their property programs. That type of coverage can certainly be used to comply with the Section 311 Obtain Maintain insurance requirements.

Working with the state commissioner’s office on these criteria is essential to developing a proper self-insured plan. FEMA cannot override the State commissioner’s opinion on commercial risk transfer product availability.

Appealing the Section 311 Obtain Maintain insurance requirements remains the same in the new policy. Applicants are free to argue that the insurance requirements themselves are either unnecessary; the insurance is not reasonably available; or that the design of their current self- insurance program is adequate to meet the insurance requirements. When the applicant seeks an insurance review, they will be asked the following questions:

The applicant and the state insurance commissioner cannot comment or offer an opinion on the state of the flood insurance market place. FEMA’s position is that NFIP coverage is readily available, reasonably priced and adequate to protect assets funded by FEMA. Flood insurance pricing excess of the NFIP program limits can be argued and appealed but rarely succeed.

a. Whether commercial or pool insurance coverage for the hazard or category of property exists, the conditions under which insurers offer coverage, or whether likesituated parties have substantially similar coverage; b. Whether the applicant can obtain the amount of insurance coverage, and if not, why (for example, if the amount of insurance FEMA requires exceeds the value of the property); c. The likelihood of repetitive damage; d. Whether Section 403 hazard mitigation measures reduce future risk to the property; e. Information describing the alternative to insurance and an explanation as to why it provides adequate protection against future loss; f. The affordability of the types and extent of insurance, including the amount of retained risk required as part of available insurance policies, and the cost of insurance in relation to the applicant’s operating budget; and g. The possibility of renewing an existing insurance policy. The negotiation with this process starts with the applicant required to suggest what specific types of coverage and the limits of coverage they want to provide that are reasonably available, adequate, and necessary to protect against future loss. The applicant is free to involve the state insurance commissioner to certify that certain coverages have availability, coverage and pricing issues. Outside of the NFIP coverage, the state insurance commissioner has the final say on reasonableness, adequacy and availability.

It should be noted that state governments cannot claim self-insurance for flood insurance coverage without the approval of the Federal Insurance Administrator (FIA). Approval of a self-insurance flood program by the FIA is not approval of a self-insurance plan in this policy. The approved states for self-insured flood programs are: Florida, Georgia, Iowa, Kentucky, Maine, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, and Vermont. The use of the self-insurance option for property coverages as required under Section 311 will probably never achieve much use or traction among applicants. Once public entities identify how their property self-insurance program operates there will be an eventual shift in how FEMA funds “uninsured” and “self-insured” property losses. Currently FEMA will reimburse any applicant for expenses incurred to repair, restore or replace damaged, insurable property. Their current operating theory is that lack of risk transfer does not trigger a duplication of benefits issue. However, as self- insurance plans gain traction, FEMA is most probably going to revisit their definition of “duplication” of benefits. When that happens, self-insurance programs will have to be viewed as a source of funding that is not duplicative of FEMA funding. Mark Ferraro is a senior policy advisor for Kinne Associates, disaster planning and recovery associates.

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Evolving Law Enforcement Policy Changes BY MICHELLE MOLINARIO

PUBLIC RISK | NOVEMBER /DECEMBER 2017

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DE-ESCAL ATING PUBLIC DISCORD: EVOLVING L AW ENFORCEMENT POLICY CHANGES

OT OFF THE PRESS

July 5, 2016 was a hot Tuesday in Baton Rouge, La., just as many were in the past. Yet, this particular evening rocked the public peace unlike a typical Tuesday, as this was the day that a 37-year-old African American man by the name of Alton Sterling was shot after he engaged in a physical confrontation with officers of the Baton Rouge Police Department.

Sterling was in the parking lot of a Triple S Food Mart, allegedly selling CDs and waiving a handgun in a cavalier manner. The officers responded to the scene, but Sterling would not submit to their verbal commands. A stun gun was deployed, but this did not subdue Sterling. A physical struggle ensued, which moved to the ground. One of the officers exclaimed, “He’s got a gun!” Two shots were fired, followed by three more. A loaded .38 revolver was found in Sterling’s right front pocket. Sterling was pronounced dead at the scene, and thereafter, the streets of Baton Rouge filled with angry protesters. The shooting of Alton Sterling was highly publicized in the media. Much of the controversy involved questions about whether Sterling was in fact reaching for the weapon or whether the officers over-reacted using deadly force. Sterling’s death followed several other high profile shootings by police officers that were broadcast nationally in the media. The number of news stories on law enforcement incidents is seemingly on the rise, but are officer-involved shootings actually more prevalent? Some news outlets are reporting that the number of police shootings in recent years appears to mirror what has been seen in the past.1 2 Approximately 1,000 officer-involved-shootings occur annually. More than half involve individuals brandishing guns, leaving officers little choice but to defend themselves. The other half generally involve knives, toy weapons, or no weapons at all.3 The media’s focus seems to be on the number of police-related shootings, rather than discovering whether the officer was legally justified in using deadly force. The general public is demanding a policy change within the institution of law enforcement. One policy change proposal calls for mandatory “de-escalation” attempts by police before deadly force can be used, even though the United States Constitution does not require it. This article seeks to shed light on the controversy surrounding mandatory de-escalation policies. Could the addition of this requirement in a dangerous situation have unintended consequences? Or, can de-escalation tactics simply provide officers another tool in which to peacefully resolve violent situations?

WHAT AMOUNT OF FORCE IS CONSTITUTIONALLY PERMITTED? The Fourth Amendment of the United States Constitution provides freedom from unreason-

PUBLIC RISK | NOVEMBER /DECEMBER 2017

able searches and seizures. This includes the right to be free from the imposition of force that is unreasonable, i.e. force that is excessive. Since 1989, the U.S. Supreme Court case of Graham v. Connor has governed the legal biosphere regarding whether a use of force is reasonable. The standard is “objective reasonableness” in light of the circumstances presented to the officers. Like many other legal frameworks, the reasonableness of a particular use of force is judged by examining various factors, such as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and, whether the suspect is actively resisting or attempting to evade arrest by flight.4 There is no constitutional requirement to attempt de-escalation or utilize alternative methods of less lethal force when the use of deadly force is legally justified. “In some cases…the availability of alternative methods of capturing or subduing a suspect may be a factor to consider.”5 However, police officers “are not required to use the least intrusive degree of force possible” as long as the force actually used was reasonable.6 In fact, the United States Supreme Court recently affirmed that the framework for analyzing excessive force claims is set out in Graham. See County of Los Angeles v. Mendez, 16-369, 2017 WL 2322832 (U.S. May 30, 2017). The Court [once again] held that if the force used was “reasonable”, there can be no excessive force claim. The Court further rejected the Ninth Circuit’s judge-made “provocation rule”, which extended constitutional liability for injuries resulting from a use of force—even if the force was found to be reasonable—if the officer intentionally or recklessly provoked the violent confrontation

and the provocation amounted to a separate Fourth Amendment violation. Id. The reasonableness of force is reviewed from the perspective of the officer on the scene at the time of the incident, and not with the benefit of 20/20 hindsight. The problem is, that in reality, officer-involved shootings are being evaluated afterthe-fact, and with the benefit of 20/20 hindsight. Imagining the circumstances as they were known to the officers at the time the events were unfolding can be challenging. Because of this, it is especially important that the Courts focus on what the officers themselves perceived at the time, which is the “objective reasonableness” test. While the Constitution does not require de-escalation, some law enforcement agencies are adopting such policies and procedures, in a genuine effort to respond to the public’s concern. Law enforcement agencies in New York, Chicago and Dallas, for example, have agreed to implement de-escalation policies in connection with Department of Justice consent decrees.7 Currently, 34 states do not require law enforcement agencies to implement de-escalation training.8 The vast majority of police regulatory boards that oversee law enforcement training and certification do not mandate de-escalation training.9 Keep in mind that officers at police academies across the country have always been trained in de-escalation tactics, but there has been less emphasis on such methods over the past 20 years. A recent Police Executive Forum survey of 281 law enforcement agencies found that the average officer received 58 hours of firearms training and 49 hours of defensive tactics training, compared to 8 hours of de-escalation training.10

SHOULD LAW ENFORCEMENT AGENCIES REQUIRE DE-ESCALATION TRAINING AND IMPLEMENT MANDATORY DE-ESCALATION POLICIES? To gain momentum in addressing the public’s concern, a group of 11 national police organizations issued a model policy for police departments to use nationwide that incorporates the concept of de-escalation for the first time.11 The purpose behind the policy is to “value and preserve human life.” The Department of Justice defines de-escalation as “the strategic slowing down of an incident in a manner than allows officers more time, distance, space and tactical flexibility during dynamic situations on the street.”12 As part of the new model policy, law enforcement officers would be taught to consider alternative uses of physical force “whenever feasible.”13 Ultimately the organizations involved with crafting the sample policy determined that if there is an opportunity to de-escalate, it should be attempted.

De-escalation training involves a mind-set change. The de-escalation mantra is “Slow down. Back off. Take cover.” Traditional law enforcement training, however, focuses on moving quickly to control a dangerous situation. Historically, officers have been trained to “Ask. Tell. Make.” At first blush, it appears that the de-escalation mantra cannot be reconciled with traditional training. Proponents say, however, that de-escalation tactics are simply another “tool” in an officer’s toolbox to “make” an individual do what they are told. For example, officers arriving on-scene, in a downtown metropolitan area, responding to a call involving a homeless man screaming profanities at bystanders, were taught to approach, one on each side, each taking an arm, each cuffing and then transporting the man to a hospital. An officer who has attended de-escalation training said that in a similar situation, she arrived on-scene, made eye-contact with the homeless man, engaged in a conversation, reassured the man she wanted to help him, and walked the un-cuffed man to the ambulance who was transported to the hospital.14 Opponents, however, say de-escalation policies may have unintended consequences. Officers are

faced with dangerous situations that are tense and rapidly evolving. Under those circumstances, slowing down the situation to create more time, distance, and space to de-escalate the threat of violence may simply not be feasible and could endanger innocent bystanders, as well as the officers that are enlisted to protect and serve. Critics argue that requiring de-escalation may create a mindset that causes officers to hesitate and place themselves in harm’s way. The President of the International Association of Chiefs of Police reminds us, “An officer can only de-escalate a situation if the person they’re dealing with is willing to de-escalate.”15 Recently, a video was released by the Fairbanks Police Department demonstrating a deadly incident where a suspect fired his weapon and violently assaulted bystanders on the street. In the name of “de-escalation,” the assailant walked the streets with a gun and even had time to take a hostage before he was finally killed by police. Some say that the attempt to “de-escalate” caused further danger to the community while attempting to avoid the use of deadly force.16 At this time, there are no scientific studies that demonstrate the impact of de-escalation policies and training.17 So, it is unknown whether an emphasis on de-escalation will cause more harm to police officers and the community or whether it will bring peaceful resolutions to dangerous situations.

FINAL THOUGHTS

De-escalation policies are a thoughtful approach to addressing the public’s concerns. For every successful de-escalation story, it seems there is a story of an officer being injured attempting to de-escalate a dangerous situation. The debate will likely continue until adequate research and scientific studies demonstrate that de-escalation policies and training reduce officer-involvedshootings without increasing harm to officers and the public. Michelle Molinario is a partner with Jones, Skelton & Hochuli, P.L.C. FOOTNOTES

1 “We’re Not Seeing More Police Shootings, Just More News Coverage,” Elliot C. McLaughlin, CNN, available at http://www.cnn.com/2015/04/20/us/ police-brutality-video-social-media-attitudes/. 2 “De-Escalation Training to Reduce Police

Shootings Facing Mixed Reviews at Launch,” Tom Jackman, October 15, 2016, THE WASHINGTON POST, available at https://www.washingtonpost. com/local/public-safety/de-escalation-trainingto-reduce-police-shootings-facing-mixedreviews-at-launch/2016/10/14/d6d96c74-915911e6-9c85-ac42097b8cc0_story.html?utm_term=. facf9e2d52cb. 3 “Not Trained to Not Kill. Most states neglect ordering police to learn de-escalation tactics to avoiding shooting,” Curtis Gilbert, American Public Media Report, May 5, 2017, available at http://www.apmreports.org/story/2017/05/05/ police-de-escalation-training. 4 Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872 (1989). 5 Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.2005.) 6 Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir.1994). 7 “Not Trained to Not Kill. Most states neglect ordering police to learn de-escalation tactics to avoiding shooting,” Curtis Gilbert, American Public Media Report, May 5, 2017, available at http://www.apmreports.org/story/2017/05/05/ police-de-escalation-training. 8 Id. 9 Id. 10 “Long Taught to Use Force, Police Warily Learn to De-escalate,” Timothy Williams, June 27, 2015, The New York Times, available at https://mobile. nytimes.com/2015/06/28/us/long-taught-to-useforce-police-warily-learn-to-de-escalate.html. 11 “National Police Groups Add ‘De-Escalation’ to New Model Policy on Use of Force,” Tom Jackman, THE WASHINGTON POST, January 17, 2017, available at https://www.washingtonpost.com/ news/true-crime/wp/2017/01/17/national-policegroups-add-de-escalation-to-new-model-policyon-use-of-force/?utm_term=.87d71c20bf9d. 12 “Police De-Escalation Training Policy Shift,” Matt Kenyon, POWERDMS BLOG, available at https:// www.powerdms.com/blog/police-de-escalationtraining-policy-shift/. 13 Id. 14 “Not Trained to Not Kill. Most states neglect ordering police to learn de-escalation tactics to avoiding shooting,” Curtis Gilbert, American Public Media Report, May 5, 2017, available at http://www.apmreports.org/story/2017/05/05/ police-de-escalation-training. 15 “De-Escalation Training to Reduce Police Shootings Facing Mixed Reviews at Launch,” Tom Jackman, October 15, 2016, The Washington Post, available at https://www.washingtonpost.com/ local/public-safety/de-escalation-training-toreduce-police-shootings-facing-mixed-reviewsat-launch/2016/10/14/d6d96c74-9159-11e69c85-ac42097b8cc0_story.html?utm_term=. facf9e2d52cb. 16 “The Dangers of “De-Escalation,” February 26, 2017, Tactics and Weapons, available at http:/ lawofficer.com/tactics-weapons/the-dangers-ofde-escalation. 17 “Not Trained to Not Kill. Most states neglect ordering police to learn de-escalation tactics to avoiding shooting,” Curtis Gilbert, American Public Media Report, May 5, 2017, available at http://www.apmreports.org/story/2017/05/05/ police-de-escalation-training.

NOVEMBER /DECEMBER 2017 | PUBLIC RISK

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