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Any time a law enforcement officer uses
deadly force, the likelihood that a lawsuit will follow
is almost a certainty. Most of these lawsuits are brought
in the federal courts as civil rights claims based upon
the Fourth Amendment to the United States Constitution.
These actions are brought under a federal statute, 42 U.S.C. § 1983
which creates civil liability when a person, acting under
color of law, violates federally protected rights of another,
causing damage. Under § 1983, a governmental entity,
specifically a town, city or county are not liable for all
of the actions of their employees. Governmental entities
are only liable in cases where some policy, custom, rule
or ordinance causes the employee to commit the violation
or where the entity has failed to supervise, discipline
or train the employee and this failure leads to a foreseeable
constitutional violation. i
The focus of this article is on training
with respect to law enforcement’s
use of deadly force. The article will begin with a summary of the law with respect
to law enforcement training and then proceed to the more specific area of firearms
training.
The foundation case on failure to train
is City of Canton v Harris. ii Geraldine Harris was arrested
by the Canton Police and brought to lock-up. During the
booking process she fell to the floor several times. When asked if she needed
medical
assistance, she responded incoherently. No medical attention was ever summoned
for her. Following her release, relatives brought her to the hospital where
she was treated for several emotional ailments.
During the lawsuit which followed on Harris’ claims, evidence was established
that shift commanders had the sole discretion to determine whether or not a detainee
needed medical attention. It was further established that the shift commanders
were given no training to assist them in making these medical evaluations. Harris
prevailed on her claim at the trial court level, but the United States Court
of Appeals for the 6th Circuit vacated the finding against the city because of
the jury instructions. The 6th Circuit would have applied a standard of recklessness,
intentional or gross negligence.
The United States Supreme Court held that “a municipality may be held liable
under § 1983 for violations of rights guaranteed by the Federal Constitution,
where violations result from the municipality’s failure to adequately train
its employees, only if that failure reflects a DELIBERATE INDIFFERENCE on the
part of the municipality to the constitutional rights of its inhabitants.
It should be noted that failure to train
cases can be established in two ways. The first involves
a lack of training in an area where there
is a
patently obvious need for training, for example an officer who is untrained
in deadly
force unreasonably
shoots someone. The second method of establishing a failure to train
by an agency is to establish a pattern of conduct by officers that
would put
the
final policymaker
on notice and the policymaker failed to respond with training. Certain
forms of conduct are beyond the reach of failure to train. For example,
in Walker
v. City of New York, a plaintiff who spent nineteen years in jail for
a crime he
did not commit brought a failure to train claim based on the department’s
failure to train its officers not to commit perjury. iii Walker’s wrongful
conviction was based upon perjured testimony by a police officer. The United
States Court of Appeal for the 2nd Circuit asserted: “If the conduct on
which the claim is based is such that a common person would know the right response
without training, there is no duty to train.” Some additional language
from the Walker case provides further guidance as to when training is required.
Specifically: when policy makers know “to a moral certainty that officers
will confront a particular situation” and where “the situation present(s)
a difficult choice or is there a history of mishandling by employees” and
where “the wrong choice frequently result(s) in a deprivation of constitutional
right.” iv
Should policy makers know to a “moral certainty” that officers will
be faced with making decisions on whether or not to use deadly force? Is the
decision to use deadly force a difficult choice? Will the wrong choice frequently
result in deprivations of a constitutional right? Decision making training with
respect to the use of deadly force falls squarely within the description of a
law enforcement task for which there is a patently obvious need for training.
For many years law enforcement agencies
trained officers the “how to” shoot
by using marksmanship courses for firearms training. Officers would stand at
various distances from paper targets and take aim. As training progressed, agencies
began creating combat and stress courses that incorporated officer movement,
target movement and limits on the amount of time an officer would have to fire.
While these courses are sufficient in training officers how to shoot; they fail
in training an officer when to shoot and they fail to reflect the conditions
under which most officers are required to work.
Almost 25 years ago, the courts began telling
law enforcement that firearms training had to be more reflective
of the conditions that officers would face while working.
In Popow v. City of Margate, v an officer in foot pursuit of
a suspected kidnapper fired as the kidnapper ran down the
street. As a result, the officer accidentally
shot Mr. Popow, killing him. While the court’s reasoning in Popow with
respect to the constitutional analysis of an accidental shooting would not be
followed by courts today, the court’s assertions with respect to firearm’s
training is still being cited by courts.
In addressing the City of Margate’s liability with respect to firearms
training the court noted that the officer involved testified in his deposition
that he was initially trained on deadly force at the police academy ten years
prior to the shooting. His continued firearms training with respect to firearms
consisted of going to a range twice a year. The court noted that there was no
training with respect to low light conditions, moving targets or firing in residential
areas. The court concluded that it was entirely foreseeable that an officer from
the City of Margate, a largely residential area, would have to pursue a fleeing
(moving) suspect at night (low-light). The court remanded the case back to the
trial court after deciding that a jury could find the training provided by the
City of Margate was grossly inadequate vi
The need for training on the “when to” shoot is now an accepted fact
among the courts. Unfortunately, many police agencies, due to a lack of resources,
still have not developed training in this area. The failure to have “judgment” or “decisional” training
with respect to the use of deadly force is a risk that agencies cannot afford
to take.
In Zuchel v. Denver, vii the United States
Court of Appeal examined a case which began when members
of the Denver Police
Department
responded to a disturbance
call at a fast-food restaurant. Upon arrival, officers
were told that the
subject responsible for the disturbance had gone around
the corner. As officers turned
the corner they observed Zuchel, who had his back to the
officers, arguing with
some teenagers. Someone shouted that Zuchel had a knife.
As the officers approached Zuchel turned toward the officers,
at which
time Officer
Spinharney fired four
times, killing Zuchel. A pair of fingernail clippers was
found
next to Zuchel. Officer Spinharney’s partner testified that she was surprised when Officer
Spinharney fired because she was right next to Zuchel and about to grab him.
Following a civil trial against the City
of Denver, (the case against Officer Spinharney had been
settled prior
to trial);
a jury came
back with a verdict
against the city for $330,000 based upon a failure to adequately
train. The City of Denver appealed. In upholding the verdict,
the court cited
testimony
by a
Denver police detective as well as testimony from the plaintiff’s expert
on police training. The detective testified that the only “shoot-don’t
shoot training” that existed at the time of Zuchel’s death “consisted
of a lecture and a movie.” The plaintiff’s police practices expert
testified that if the only “shoot-don’t shoot” training officers
received was a lecture and a movie, then the training was grossly inadequate.
In reviewing these two decisions, Popow
and Zuchel, it is clearly established that law enforcement
agencies must
conduct
firearms
training on a regular
basis; the firearms training must reflect the environment
that officers are likely
to face, i.e. moving targets, moving officers, low-light
conditions and residential areas if applicable to the agency
being trained;
and finally
agencies must
conduct
decision making training with respect to when to use deadly
force. Annual or semi-annual qualification courses are
simply insufficient
for purposes
of assisting
officers in making deadly force decisions and for purposes
of avoiding liability.
Qualification courses and other courses
which emphasize speed under stress and marksmanship, without
decision making
skills
may actually
enhance
liability. Noted police practices expert G. Patrick Gallagher
while speaking to groups
nationally
has recounted the story of an agency that determined that
one of their officers had been involved in a bad shooting,
fortunately
for the officer’s intended
target, the officer missed. In order to remediate the officer’s
mistake, the agency sent the officer to the range where
he underwent re-training. As a
result, his shooting skills were enhanced, but his decision-making
skills with respect to deadly force remained unchanged.
Thus, the agency now had a more skilled
shooter who would more likely hit his target when he made
a bad decision.
Many cases emphasize the need for enhanced
decision making skills with respect to use of force decisions.
Allen v.
Muskogee viii serves as
one example.
In Allen, officers responded to a call of a suicidal man.
Upon their arrival at
the scene they observed Mr. Allen, seated alone, in his
vehicle with a gun. Within 90 seconds of their arrival,
the officers
rushed the
car in
an attempt
to disarm
Mr. Allen, rather than isolating and negotiating with him.
When
the officers rushed the car, Allen made a sudden movement
toward the
officers leading
the officers to believe they were in danger of being shot.
The officers opened fire and killed Allen. A police practices expert reviewing the
case based his opinion of the department’s
training on the deposition of a training officer who testified that the officers’ rushing
of the car was consistent with their training. The expert opined that if rushing
the vehicle was consistent with the department’s training then the department’s
training was “contrary to every piece of training material in existence.” As
a result the court allowed the case to go forward against
the agency. If the agency could have put forth documented
training scenarios based upon this type
of recurring incident, the plaintiff would not have been
able to go fourth on this type of claim.
A recent case from
the United States District
Court, Rhode Island provides an example of how documented
training that
incorporates
shoot-don’t shoot
may diminish or eliminate an agency’s liability in
a failure to train case. Young v. City of Providence ix involved every police department’s worst
nightmare. Two uniformed police officers responded to a call of two women fighting
outside a late-night restaurant that was a common gathering spot after the local
bars closed. When the officers arrived at the scene they observed a Hispanic
male in the parking lot with a gun. One of the officers took cover behind a telephone
pole and remained there throughout the ordeal. The second officer, who had completed
field training by only eight days, took cover behind the passenger wheel-well
of the police cruiser, using the engine block as cover. The officers ordered
the man to drop the gun and get on the ground. When the man complied with the
officers’ commands the officer behind the cruiser no longer had a visual
observation of him. The officer then left his position and moved behind the rear
bumper of the suspect’s vehicle in an attempt to
see him. As the officers continued shouting orders
to take the Hispanic subject into custody, a second man
came out of the restaurant
brandishing a firearm. The
second man,
an African American male, wearing a heavy winter coat began
approaching the Hispanic male. The officers ordered the
man to drop his gun
and
when he failed
to do so,
both officers fired. Each of the officers fired, what would
prove to be, fatal shots. As other officers arrived on
the scene of
this shooting
it
was learned
that the African American male was an off-duty police officer,
Cornel Young Jr., who was apparently going out to assist
his brother officers.
In a bi-furcated trial a jury determined
that the officer who fired at Officer Young from behind
the telephone pole
had acted
reasonably
while
the second
officer who had moved from his position of cover behind
the police vehicle prior to the
shooting had acted unreasonably. The only clear distinction
between the two officers was that one arguably left a good
position of
cover, while
the second
remained
in a position of cover. Prior to the case moving on to
its second phase where the plaintiff was alleging that
the shooting
was
the result of
the police
department’s
failure to train its officers, the judge issued summary judgment for the department
and the training officers who were named as defendants in the suit. x
In dismissing all of the failure to train
claims the court cited to the documented training that the
police department had conducted. This training included scenario based decision making training that included shoot-don’t shoot decision
making. The training also included training on an interactive firearms simulator
where officers would have to give verbal commands, make decisions regarding cover,
and in some cases make the ultimate decision of whether to shoot or don’t
shoot. As a result of the documented training the court concluded that the plaintiff
would not be able to succeed on a claim that the department or its trainers were
deliberately indifferent with respect to firearms and deadly-force based training. xi
In addition to the case law, model policies
on use of force direct that agencies must conduct shoot-don’t training. xii In a lawsuit that includes a failure
to properly train on deadly force, police practices experts will use these model
policies to support an opinion that the generally accepted police practice or
the national standard is to conduct this type of training. An agency that fails
to conduct this type of training faces the possibility that liability will be
found if the failure in training has led to a bad shooting.
In developing shoot-don’t shoot training, agencies should try to foresee
as many possible scenarios that officers are likely to face. Every possible scenario
cannot be foreseen, but many can be and training should be geared to the recurring
circumstances that officers must deal with. Some examples would include situations
that may be de-escalated by a proper police response; response to emotionally
disturbed persons; response to off-duty situations; response to suicide-by-cop
situations; decision making with respect to good citizens who are in possession
of firearms i.e. the store owner with a gun who is pursuing the robber from his
store; vehicle involved firearms scenarios; circumstances where missed shots
may endanger innocent persons; and persons turning with innocent objects in their
hands.
Obviously, all of the scenarios should be
conducted with varying environmental conditions such as
low-lighting; residential or densely populated areas;
and movement of both suspects and officers. The scenarios
should also encompass a full force continuum evaluation with respect
to officer response i.e. did the officer give verbal commands? Did the officer use other
tools where they may have effectively resolved the event without resorting to
deadly force where appropriate? Did the officer give a
warning (where appropriate) before using deadly force?
In managing risk by conducting shoot-don’t shoot training, agencies may
consider purchasing a firearms training simulator. The current technology in
these simulators has greatly advanced over the past few years allowing training
officers to escalate and de-escalate scenarios in accordance with the response
of the officer involved in the training. Some of the more advanced simulators,
such as Advanced Interactive Systems, AIS® simulator, have scenario authoring
capability such that agencies can develop their own scenarios. An agency that
does not have the resources for scenario development can also purchase canned
scenarios that have been developed by their simulator’s manufacturer. For
example, AIS has hundreds of pre-produced scenarios, each containing numerous
branching options depending on officer response, for all of the various law enforcement
functions.
While no agency is immune from a lawsuit,
no agency can afford to sit back in a defenseless posture.
One of the most effective methods of avoiding agency liability is through proper, thorough and documented training.
No agency can afford to be without such training. Proper
training will undoubtedly lead to better decisions by officers as well. These better decisions also place
the individual officer in a position of strength when the lawsuit is filed. Although no officer or agency likes to be served with a lawsuit, there is
a great deal of satisfaction when the suit is dismissed due to the investment of the agency
and officer in training and professionalism.
____________________________________
Author: Jack Ryan, J.D., is a retired
police captain from the Providence Police Department,
Providence, Rhode Island.
He is admitted to the practice of law in Rhode Island
and the United Stated Federal District Court. Jack is a
national
trainer for Public Agency Training Council (PATC) and
conducts training on Civil Liability and Risk Management
for Law
Enforcement Agencies and Schools throughout the United
States. Captain Ryan has been recognized by the Federal
Courts as
an expert in police practices and law enforcement policy
and training. Jack is also a co-director of the Law Enforcement
Liability and Risk Management Institute. (LLRMI).
Jack Ryan may be contacted through LLRMI/PATC
at 800-365-0119 or through www.patc.com
____________________________________
Citations:
- Note, State Government entities and state
actors acting in their official capacity cannot
be sued in federal court under § 1983 due
to the Eleventh Amendment’s bar against
such suits. See E.G. Will v. Michigan Department
of State Police, 491 U.S. 58 (1989).
- City of Canton v Harris, 489 U.S. 378
(1989).
- Walker v. City of New York, 974 F.2d
293 (2d Cir. 1992).
- Id.
- Popow v. City of Margate, 476 F.Supp.
1237 (Dist. N.J. 1979).
- Note, the standard for failure to train
was set forth in City of Canton v. Harris which
was decided after Popow and is a “deliberate
indifference” standard.
- Zuchel v. Denver, 997 F.2d 730 (10th
Cir. 1993).
- Allen v. Muskogee, 119 F.3d 837 (10th
Cir. 1997).
- Young v. City of Providence, 2004 U.S.
Dist. LEXIS 1847 (R.I. 2004).
- Note, the case is currently under appeal
to the United States Court of Appeal 1st Circuit.
- Note, the author of this article was
one of the defendants who was granted summary
judgment
in this decision.
- See International Association of Chiefs
of Police Model Policy on Use of Force and the
accompanying concept paper revised August 2001.
(“Finally, firearms training with respect
to the use of deadly force cannot be limited
to routine firearm qualifications and proficiency
testing. It is recommended that all officers
authorized to carry firearms be required to
qualify with each authorized firearm on at least
a semiannual basis and preferably three times
per 12 month period. But, in addition to proficiency
testing, it is strongly recommended that police
agencies provide (1) routine instruction and
periodic testing on the agency use-of-force
policy and (2) instruction and practical exercises
in making decisions regarding the use of deadly
force. In the latter instance, it is important
that an element of firearms training include
realistic use of force simulation exercises.
This includes night and/or reduced light shooting,
shooting at moving targets, strong hand/weak
hand firing, and combat simulation shooting.
Firearms training should attempt to simulate
the actual environment and circumstances of
foreseeable encounters in the community setting,
whether urban, suburban, or rural. A variety
of computer simulation training is available
together with established and recognized tactical,
exertion, and stress courses. In essence, acceptable
firearms training and evaluation are no longer
limited to target practice. Scrutiny of firearms
training will normally include an evaluation
of the relevance and utility of such instruction.”)
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