Tight budgets, personnel shortages and being tasked to do more with less should be familiar to anyone who has been in policing long enough to experience a few cycles of this repetitive drama. Nationwide hiring projections further indicate future staffing issues as the societal role of police becomes increasingly complex.
However, emergencies and critical incidents do not idly stand by until resources become available. Police agencies and their officers must respond immediately. While large agencies have the capacity, even with reduced budgets and personnel, to handle these calls, smaller agencies often must rely on support from neighboring municipal agencies pursuant to mutual aid agreements.
A mutual aid agreement is a contractual relationship between municipalities outlining the resources – personnel, facilities, equipment and supplies – provided in the event of an emergency need. These resources fill the capability gap among emergency service agencies.
There are different types of mutual aid agreements depending on the services to be provided and the extent of those services. Agreements may be local, regional, intrastate and interstate. While these agreements can cover different areas of emergency response, the focus here is on police agency support.
Mutual aid agreements are covered by state statutes. General Municipal Law §209-m in New York is one example. The New York law states that the chief executive officer of a municipality can enter into such an agreement with another municipality, or the chief executive officer can delegate this power to the chief of police.
The law further provides that the requesting municipality is liable for all damages in connection with the aid, as well as reimbursement of the assisting municipality for salaries and other expenses, although this same section states that the assisting municipality can waive this coverage and assume all expenses.
If a responding officer from one town goes into another town where the officer no longer has the same general powers under the state’s Criminal Procedure Law geographical area of employment provisions, section 209-m (5) provides the following:
While engaged in duty and rendering services in such local government the officers and members of such police department or police force shall have the same powers, duties, rights, benefits, privileges and immunities as if they were performing their duties in the local government in and by which they are normally employed.
Aside from state statutory guidelines for mutual aid agreements, county, city, or town laws may also provide statutory requirements.
Prior to entering into an agreement, a contracting police department should ensure that other police departments have comparable training and procedures. Topics like use of force, arrests, crowd control policies, K-9 use and specialized unit deployments need to be reviewed and coordinated where there are inconsistencies. Most important, municipal insurance coverage must be discussed with insurance carriers.
A mutual aid agreement needs to be a cohesive, well-drafted document. At minimum, a mutual aid agreement must contain the following:
Even though there are thousands of such agreements in place across the country it is always a good idea to review your agency’s mutual aid agreement and enabling state law to ensure the agreement is up to date and continues to meet the needs of the parties.
If a police officer is injured when performing duties in response to another municipality’s request for aid, the workers’ compensation claim is covered by the requesting municipality. This is usually addressed by the state statute outlining the requirements of a mutual aid agreement, but it is also covered under the common law “borrowed servant” rule wherein the employer borrowing (the “special employer”) an employee from another employer (the “general employer”) is liable for the borrowed employee’s actions and injuries. This applies even though a permanent relationship of employer-employee does not exist. The rule requires an express or implied contract or agreement between the parties. A mutual aid agreement is an express agreement.
An injured police officer’s recovery may not be limited to workers’ compensation benefits obtained from a “special employer” under a mutual aid agreement if there is no equal right of control over the employee. In Garcia v. City of South Tucson, 131 Ariz. 315 (1981), a Tucson police officer was shot in the back by a South Tucson police officer while assisting at a call of an armed barricaded subject. The Tucson officer was rendered a paraplegic and recovered a verdict of more than $3.5 million for his injuries. The Arizona Court of Appeals disagreed with the defendant City of South Tucson’s claim that it become the injured officer’s statutory employer through the mutual aid agreement, thereby preventing a civil claim for damages in addition to worker’s compensation coverage.
One of the more questionable coverage areas is in the context of 42 U.S.C. §1983 liability. The assisting municipality may still be held liable for civil rights violations resulting from failure to train, failure to discipline, failure to supervise, negligent hiring, or negligent retention. In these instances, the municipality is liable only if the plaintiff can show a municipal policy or custom instituted on behalf of a final municipal policymaker. A chief of police may or may not be a final policymaker depending on the level of oversight from the municipality.
Police department involvement in a multi-agency task force, which may be subject to a mutual aid agreement, does not shield it from liability for the wrongful acts of its members. A task force is not a local government entity subject to a civil rights lawsuit under Monell v. Dept. of Social Services, 436 U.S. 658 (1978), unless the agencies forming the task force specifically intended it to be one. (See eg., Hervey v. Estes, 65 F. 3d 784 (9th Cir., 1995))
As with any joint law enforcement endeavor, the coordinating agencies must ensure they are on the same operational channels when entering into mutual aid agreements. Joint operational plans for task force involvement should be reviewed for best practices and up-to-date legal standards. Police departments across the country have functioned well together in assisting one another with resource allocations, and mutual aid agreements have been a part of that coordination of capabilities, but it is worthwhile for police administrators to periodically review the terms of these agreements and for individual officers to have read and understood their roles in these efforts.
Terrence P. Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator. He is a tenured professor of legal studies at Western Connecticut State University and an attorney consulting on law enforcement liability, disciplinary cases, critical incidents, and employment matters. He is the author of “ Homeland Security Law: Issues and Analysis ,” Cognella Publishing (2024).
