We have previously discussed many of the risks involved in managing confidential informants (covert human intelligence sources, CHIS, HUMINT, human sources). Here we will discuss the possibility of lawsuits and how an agency needs to defend against them. In Richmond, Virginia, the family of Troy Howlett, a young man who died following a drugs overdose are seeking damages of $13 million. Mr. Howlett was an informant for Hopewell Police Department and a number of officers are named in the lawsuit including the former Chief. I will be interesting to see the evidence that is tendered in this case by the defendants and Mr. Howlett’s grieving family. As we wait for details it is worth considering what factors are likely to have relevance in deciding a case like this. From a policing perspective it is always good to look at these things from the opposite standpoint, namely – if you were the lawyer how would you try and prove negligence on the part of the defendants. In general terms, with any case of negligence what must be proven is that someone did something they should not have, or didn’t do something they should have, and as a result someone was harmed. There must also be proof of the proximity of the negligence to the harm. We can look at this by asking a number of questions.
Was the person an informant? If accepted, we move on. If it is denied by the police, then: Did the person believe they were an informant? Here it will come down to proving the nature of the interactions between the police and the informant. If they were an informant, then all records in connection with the management of that person become relevant. This includes everything about how that person was managed. It is very difficult to refuse to disclose details as they are directly relevant to the case.
What policies and procedures does the agency have in relation to managing confidential informants? These will have to be produced in court. Were these adhered to by all the officers involved.?
What officers were involved in managing the informant, had any interaction with the informant, or were supervising those who were managing the informant?
What training have those officers had in relation to managing informants? Who delivered that training and what records are there of the training content they received? What was the duration of that training? Specifically, what training did they have in managing risk?
What specific risks were identified in relation to using the informant? How were those risks being managed? All risk documents will need to be produced including details of the risk methodology being used.
Once these details have been obtained then it comes down to examining was the behavior of the officers/agency reasonable. Reasonable is what the average person thinks?
Is it reasonable for the police to send a known drug user to buy drugs for them? Is it reasonable for the police to send a known drug addict to buy drugs for them? Was the informant coerced in anyway by the police? Did they make an ‘informed decision’ about what they were doing? Were the risks fully explained to them?
While courts decide the relevant factors in each particular case with regard to liability, there is one other question that needs answered. Is it ethical to send a drug addict to buy drugs for the police?
If the officers are not properly trained to manage informants, there is negligence by any officer that permitted the behavior. If there are not comprehensive policy and procedures in relation to managing informants, the agency has been negligent. If there has not been an adequate risk management process employed, the agency has been negligent.
At HSM Training we provide Police Chiefs with expert advice on how to manage confidential informants safely and effectively. It is much better to invest in training and systems, or pay a lot more later to defend a lawsuit. One percent of this lawsuit would give most agencies a state of the art informant management software solution and adequate training for their officers.
