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Legal/Liability Issues in the Training Function
By Jack Ryan
Police agencies have an obligation to train
its police officers for the recurring tasks that officers will face
during their career. Where it is foreseeable that a
police officer will face a particular task that may
result in harm to another person, the officer’s agency
must provide training in how to conduct that task in
a manner which is consistent with generally accepted
practices in law enforcement. What is “generally
accepted” is defined by the law enforcement
profession and by court decisions analyzing police
conduct.
Training serves as a means toward high-level
performance by police officers. Training is an input
toward proper performance. Unfortunately, many
agencies conduct training to avoid, or in response to
civil liability rather than to promote high-level
performance. Over the past two decades, attacks
on training have become one of the weapons for
persons who file lawsuits against the police.
The foundation case on failure
to train
is City of Canton v Harris
*1. 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 trial 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, which 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.*2 Walker’s wrongful conviction was
based upon perjured testimony by a police officer. The United
States Court of Appeal for the 2nd Circuit held: “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.” The court, in its decision provided a
three-part analysis for determining when a duty to
train is established:
- Plaintiff has to show that a policy maker knows to
a moral certainty that his or her employees will
confront a given situation.
- The plaintiff must show that the situation either
presents the employee with a difficult choice of the
sort that training or supervision will make less difficult
or that there is a history of employees mishandling
the situation.
- The plaintiff must show that the wrong choice by
the city employee will frequently cause the
deprivation of a citizen’s constitutional rights.
When considering the areas of training that must be
covered, an agency can simply apply this three-part
test. For example, does the chief know to a moral
certainty that officers may face deadly force
situations? Second, is deadly force a situation that
presents officers with a difficult choice of the sort
that training or supervision would make easier?
Finally, if an officer makes the wrong choice in a
deadly force situation, is it likely to lead to a
constitutional violation?
A case from the United States
Court of Appeals for
the 10th Circuit involved injuries suffered by a
quadriplegic during a car stop.*3 Clarence
Paul, a partial quadriplegic was riding as a passenger
in Lloyd Gildon’s auto. Gildon’s wife had reported the
vehicle stolen. Officer Gilpatrick of the Altus,
Oklahoma Police Department stopped the vehicle.
During the stop, the officer ordered Paul out of the
vehicle. Paul responded that he was paralyzed and
unable to get out. The officer then allegedly
chambered a round into his shotgun. Paul then rolled
down the window and again informed the officer that
he was paralyzed and could not get out of the car.
Paul testified that two officers grabbed him by the
neck and pulled him from the vehicle. Officer
Gilpatrick placed his knee on Paul’s neck and back
while he handcuffed him. During this ordeal Clarence
Paul urinated on himself and became unconscious.
He asked the officers to call him an ambulance. Paul
was taken to the hospital where it was determined
that his neck was fractured and his hip was
sprained. Paul filed a lawsuit alleging that the police
department improperly trained officers to place their
knees on suspect’s neck while handcuffing them.
The city introduced training materials from the
Council of Law Enforcement Educational Training that
specifically included instructions not to place a knee
on a suspect’s neck “for obvious medical reasons.”
The city took the position that if Officer Gilpatrick did
put his knee on Paul’s neck he acted in violation of
this training.
The court refused to grant the city’s request for
summary judgment after reviewing an incident report
left by one of the officers at the scene. The report
asserted: “Gilpatrick then brought the subjects (sic)
right arm around the middle of his back and had his
knee on the subject’s neck. The way we’re
instructed to handcuff in the felony prone position.”
The court concluded that there was an issue of fact
as to what the officers were actually trained to do.
Thus, from an agency liability standpoint the entire
case rests on what the officer was trained; was he
trained as stated in the report? Or, was he trained in
accord with the CLEET lesson plan?
This case also provides a good example of why
training must be documented at two levels, first,
what was trained; second, who was trained. At trial
in cases like this, the agency and its trainers may be
in an adverse position to the officer since the agency
and its trainers will not be liable if it can be shown
that the officer acted inconsistently with
documented training.
A case involving the City of
Plano, Texas Police
Department provides an excellent summary of the
failure to train analysis.*4 The plaintiff in
Gabriel v. City of Plano was described by the
court as an “itinerant preacher and anti-abortion
activist” who has engaged in a number of anti-
abortion protests near R.C. Clark High School in
Plano, Texas. On three separate occasions during
late August and early September, Gabriel
demonstrated near the school. He was issued
warnings that placed limits on his conduct on the
first two occasions. Although school officials
complained of Gabriel’s disruptive behavior he was
not issued a citation. On September 3rd 1996,
Gabriel’s protest escalated and “caused agitation”
among students. Gabriel was swinging his protest
sign in such a manner as to disrupt the flow of
students from buses. When officers approached him,
he refused to identify himself and swung his sign at
one of the officers. The officers informed him that
he was violating the Texas Education Code, by
disrupting school, and asked him to leave. Gabriel
left the scene and was not arrested nor issued a
citation.
Gabriel filed a lawsuit alleging that his rights were
violated when officers asked him to leave the area of
the school under the threat of arrest. His claim
against the police department was based in a failure
to train argument.
In its analysis of the facts in this case the court
explained that Gabriel’s burden with respect to his
claim “is three-fold; he must prove that:
- his rights were violated as a result of
- a municipal custom or policy of
- deliberate indifference to his rights.”
“In failure to train cases, the plaintiff can prove the
existence of a municipal custom or policy of
deliberate indifference to individuals’ rights in two
ways. First, he can show that a municipality
deliberately or consciously chose not to train its
officers despite being on notice that its current
training regimen had failed to prevent tortuous
conduct by its officer. Second, under the ‘single
incident exception’ a single violation of federal rights
may be sufficient to prove deliberate indifference,
The single incident exception requires proof of the
possibility of recurring situations that present an
obvious potential for violation of constitutional rights
and the need for additional or different police
training.” The court concluded that Gabriel failed to
meet the necessary burden for a failure to train
claim.
Failure to Train Use of Force
Any time a law enforcement officer uses significant
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, 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.*5
The focus of this section is on training with respect
to law enforcement’s use of force.
Applying the three-part need for training test from
Walker: 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.
Even “combat” training programs do not adequately
address “decisional” training needs.
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,*6 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.
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*7 the United
States Court of Appeal for the 10th Circuit 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.
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*8 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 of the
officers, 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.
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.
In addition to the case law,
model policies on use of
force direct that agencies must conduct shoot-don’t
training.*9 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. Agencies that
cannot afford these simulators should be creative.
Deadly force decision-making training with an
inexpensive paintball gun or even a squirt gun is
better than no training at all.
In many lawsuits, police practice experts are hired to
review the actions of officers in using force. These
experts are sometimes allowed to testify to tactical
mistakes that officers made in confronting the
subject that in some way escalated the situation to
where force had to be used. The expert, in many
cases will then focus on failure in police training that
caused the mistakes.
Two cases from the United
States Court of Appeal
for the Tenth Circuit provide a good
example.*10 In Allen v. City of
Muskogee,*11 the police received calls
concerning a suicidal man. The police responded to
the man’s sister’s home where the man was seated
alone in his vehicle with a gun. Within 90 seconds of
their arrival, the police rushed the vehicle and
attempted to grab the gun from the subject. When
the startled subject moved, officers believed he was
turning the gun toward them and the officers opened
fire killing the man.
A department training officer was deposed and was
asked whether the shooting officers, in approaching
the subject, had acted consistently with their
training. The training officer responded that the
officers had acted consistently with their training. A
police practices expert provided testimony indicating
that police officers are trained to isolate and
negotiate with subjects who are suicidal and holding
themselves hostage. The expert then concluded
that if the training officer was correct concerning the
officers acting consistently with their training, then
the training was inconsistent with every bit of police
training nationally.
The second case, Carr v.
City of Oklahoma
City,*12 also involved a use of deadly
force. Oklahoma City police officers were called to
an apartment building for an assault. The officers
met with the landlord who reported that he had been
assaulted by Randall Carr. The officers went to
Carr’s apartment and initially received no response.
After meeting a second time with the landlord, the
officers returned to Carr’s apartment and knocked at
the door. Carr opened the door and “was acting
very excited and aggressive.” As the officers
attempted to handcuff Carr, he assaulted the
officers and fled on foot.
The officers pursued Carr on foot and confronted him
when he came to a fence that he could not climb.
Carr ran toward one of the officers with a concrete
block raised over his head. The officers indicated
that they commenced firing while Carr had the
concrete block raised over his head. An impartial
witness testified that the shots were fired after the
concrete block had already been thrown.
As part of the resulting lawsuit, the plaintiff attacked
the agency’s training on several accounts. Among
the attacks were allegations that the agency
had “inadequate training as to control of subjects
who might threaten officers with items similar to the
concrete used by Randall; failure to train officers to
stop discharging their weapons after the threat had
stopped; inadequate training to recognize when the
use of a rock would justify deadly force; inadequate
training in subject control tactics; failure of the City’
Firearms Training Simulator (FATS II Series machine)
to provide any shoot/don’t shoot shoot training
relating to situations with a rock or other similar
object; failure to train officers properly in the
recognition and proper handling of emotionally
disturbed persons; and inadequate training to
recognize that an emotionally disturbed person
should have been approached cautiously and in a
non-confrontational manner.”
The court noted the essential elements of a failure to
train claim in use of force:
- The officers exceeded constitutional limitations
on the use of force-Plaintiff must first prove that
officer’s use of force was excessive.
- The use of force arose under circumstances that
constitute a usual and recurring situation that
officers face (foreseeability).
- The inadequate training must be so inadequate as
to demonstrate a deliberate indifference on the part
of city policy makers toward persons with whom the
police have contact.
- There is a direct causal link between the
constitutional deprivation and the inadequate
training. (The deficient training must be the cause
of the injury.)
A plaintiff must prove all of the four elements in order
to establish a failure to train claim with respect to
use of force.
In applying the four-factor approach to the facts of
this case, the court found that the first two
elements were met. It should be noted that this was
a review of summary judgment, thus the court was
reviewing the facts in the light most favorable to the
plaintiff. The court found that the officers exceeded
the constitutional limitations on the use of force and
that use of deadly force is a recurring situation which
officer must deal with. The court went on to find
that Carr had failed to prove that the City policy
makers were on notice with regards to any
deficiencies in training and since they were not on
notice they had not acted with deliberate
indifference. On this point, the court asserted that
the allegation was that the officer’s had shot Carr in
the back after the threat from the concrete block
had passed. The court, after reviewing police
training asserted that it was clear that the agency
did not train officers to shoot people in the back
when they were no longer a threat, thus, the training
did not cause the injury that was alleged.
In its analysis, the court cited important language
from Canton which is worth noting here:
“In resolving the issue of a city’s liability [for
failure to train], the focus must be on adequacy of
the training program in relation to the tasks the
particular officers must perform. That a particular
officer may be unsatisfactorily trained will not alone
suffice to fasten liability on the city, for the officer’s
shortcomings may have resulted from factors other
than a faulty training program. It may be, for
example, that an otherwise sound program has
occasionally been negligently administered.”
Thus, for purposes of agency liability with respect to
training, a court will review the program itself. How
is this done? The court will review documented
training by reviewing lesson plans, training outlines
and the deposition testimony of trainers regarding
the content of the training. It should be noted
where a sound training program is negligently or
deliberately indifferently administered by a particular
training officer, the agency will not be liable but, the
training officer may have liability as an individual.
Where poor training leads to an injury to a third party
[other than a police officer] the training officer can
and likely will be a defendant in the lawsuit.
Use of Force-Emotionally Disturbed and
Mentally Ill Persons
While the force continuum remains constant for
controlling and arresting all persons, a number of
cases suggest that agencies must conduct training
for dealing with the emotionally disturbed and
mentally-ill persons in the context of use of force.
Many agencies have policies related to civil
commitments and dealing with the mentally ill, yet
few agencies actually conduct training related to
these policies and even fewer
train on tactics and
use of force in the context of the emotionally
disturbed and the mentally ill.*13
In Gaddis v. Redford
Township and City of
Dearborn Heights*14 the United States
Court of Appeal upheld a lower court’s dismissal of a
lawsuit against officers and two municipalities for a
shooting involving an emotionally disturbed person.
The incident in Gaddis began when an officer
observed Joseph Gaddis driving his automobile in a
slumped-over position. The officer believed Gaddis
was drunk and pulled him over. When the officer got
out of his police car, Gaddis took off again. The
officer pursued Gaddis and was joined by other
officers. When Gaddis was finally stopped, Officer
Bain approached the driver’s side of the car and told
Gaddis to step out of the car. When Gaddis stepped
out he had his hands in his pockets. The officer told
him to take his hands out of the pockets. As Gaddis
pulled his hands out, some of the officers observed a
knife in his hand. The officer tactically created some
distance and began yelling at Gaddis to drop the
knife, leading to a two to three minute standoff.
At some point during this standoff, Gaddis said to
Bain “Why are you doing this to me, Chris, like you
did to me in California.” Bain testified that this remark
led him to believe that Gaddis was not rational since
Bain had no prior contact with Gaddis. Following an
assertion by Gaddis that he wanted to leave, Officer
Bain moved in and pepper-sprayed him. Shortly
thereafter a second officer, Burdick, went over the
trunk of Gaddis’ vehicle and tried to tackle him, which
caused Gaddis to violently react and strike Burdick
with a “windmill” type motion. Officer Bain and
Officer Duffany testified that they observed Gaddis
stabbing at Officer Burdick causing them to open fire,
shooting sixteen rounds in a single burst, hitting
Gaddis in the torso, right arm, buttocks, and left
thigh.
In the resulting lawsuit, Gaddis’ expert Dr. Jim Fyfe
(Commissioner of Training NYPD) provided an affidavit
that asserted his opinion “that the officers deviated
from proper police techniques for dealing with
emotionally disturbed persons (EDPs). In particular,
he testified that officers using correct police
techniques would recognize that ‘techniques of
intimidation and force’ are not likely to work on EDPs
in the way they may work on rational persons. He
testified that police should instead have picked a
single officer to talk calmly to the EDP, and should
have refrained from unnecessary displays of force.
Fyfe criticized Bain’s use of pepper spray, and
described Burdick’s attempt to tackle Gaddis by
surprise from behind as a ‘terrible tactic.’”
Although the court upheld the summary judgment for
the officers, the court asserted:
“We acknowledge that a suspect’s apparent
mental state is one of the facts and circumstances
of the particular case that should be considered in
weighing an excessive force claim. Moreover, the
opinions of qualified experts such as Mr. Fyfe are
often entitled to be given weight in this
determination.”
This is an area where agencies need to provide some
level of training, particularly as courts begin to
recognize such training as a generally-accepted
police practice.
A case providing insight into the importance of such
training was decided by the United States District
Court for Nevada and denied summary judgment for
the Las Vegas Metro Police Department on a failure
to train claim related to dealing with the mentally ill
in the use of force context.
The case, Herrera v.
Las Vegas Metropolitan Police
Department*15 involved a call to the
police to assist in taking David Herrera, who was
described as having severe mental illness and being
delusional, for an involuntary commitment to a
hospital. At the outset, it should be noted that the
court was considering a summary judgment motion
and the facts examined by the court were not
agreed upon facts, but instead were the facts
reviewed in a light most-favorable to Herrera’s
estate.
The call prompted the response of four officers and a
supervisor to the Herrera’s mother’s home. The
police were told of Herrera’s mental illness; that
there were no firearms in the house; and that
Herrera was alone. David had previously been
holding a small paring knife before the police arrived.
The officers decided to use a “devastator” pepper-
spray canister and a “low-lethality shotgun” loaded
with bean bag pellets. The officers were given the
key to the house by Herrera’s mother and attempted
to use it to gain entry. When Herrera kept re-locking
the door, the officers kicked it in. The officers then
confronted Herrera, who was holding a knife. One
officer fired four shots from the bean-bag shotgun,
buckling Herrera at the knees; two officers
approached and tried to knock the knife from his
hands with their batons; a third officer approached
and sprayed Herrera with the pepper spray. The
officers continually told Herrera to drop the knife, but
he did not. Instead, he held the knife up and told
the officers they would have to kill him. According to
the officers, Herrera began moving toward the
officers causing Officer Woodruff to shoot Herrera
several times, killing him.
In its consideration of the failure to train claim, the
court concluded:
“that the evidence provided by plaintiff, indicating
that the police were inadequately trained in dealing
with the mentally ill and using impact projectiles, is
sufficient to survive summary judgment. Plaintiff’s
expert, retired Captain Van Blaircom, who is former
chief of police for the City of Bellevue, Washington,
testified that the Defendant officers should have
known that the manner in which they approached
the decedent would escalate the confrontation.
According to Van Blaircom, the officer’s
treatment of the situation, combined with their
statements that a mentally ill person should be
treated as any other person, regardless of the
situation, indicates that the police department’s
training dealing with the mentally ill falls well below
the reasonable standard of contemporary care.”
Upon reviewing these cases, one must recognize that
courts are taking into account a person’s mental
illness and further have determined that where
officer’s know of the mental illness or emotional
disturbance, officer’s may have an obligation to alter
their tactics where they can safely do so. Further,
an agency that fails to train officers that these
circumstances may require different treatment may
face liability for deficient training.
The International Association of Chiefs of Police
(IACP) implemented a model policy on “Dealing with
the Mentally Ill in 1997. The policy asserts:
Dealing with individuals in enforcement and related
contexts who are known or suspected to be mentally
ill carries the potential for violence, requires an
officer to make difficult judgments about the mental
state and intent of the individual, and requires
special police skills and abilities to effectively and
legally deal with the person so as to avoid
unnecessary violence and potential civil litigation.
Given the unpredictable and sometimes violent nature
of the mentally ill, officers should never compromise
or jeopardize their safety or the safety of others
when dealing with individuals displaying symptoms of
mental illness. In the context of enforcement and
related activities, officers shall be guided by this
state’s law regarding the detention of the mentally ill.
Officers shall use this policy to assist them in defining
whether a person’s behavior is indicative of mental
illness and dealing with the mentally ill in a
constructive and humane manner.
The policy also provides a number of suggested
tactics when dealing with the mentally ill:
Should the officer determine that an individual may
be mentally ill and a potential threat to himself, the
officer, or others, or may otherwise require law
enforcement intervention for humanitarian reasons as
prescribed by statute, the following responses may
be taken.
Request a backup officer, and always do so in
cases where the individual will be taken into
custody.
Take steps to calm the situation. Where possible,
eliminate emergency lights and sirens, disperse
crowds, and assume a quiet non-threatening manner
when approaching or conversing with the individual.
Where violence or destructive acts have not
occurred, avoid physical contact, and take time to
assess the situation.
Move slowly and do not excite the disturbed
person. Provide reassurance that the police are there
to help and that he will be provided with appropriate
care.
Communicate with the individual in an attempt to
determine what is bothering him. Relate your concern
for his feelings and allow him to ventilate his
feelings. Where possible, gather information on the
subject from acquaintances or family members and/or
request professional assistance if available and
appropriate to assist in communicating with and
calming the person.
Do not threaten the individual with arrest or in
any other manner as this will create additional fright,
stress, and potential aggression.
Avoid topics that may agitate the person and
guide the conversation toward subjects that help
bring the individual back to reality.
Always attempt to be truthful with a mentally ill
individual. If the subject becomes aware of a
deception, he may withdraw from the contact in
distrust and may become hypersensitive or retaliate
in anger.
While the model policy was actually developed to
assist law enforcement with dealing with the mentally
ill in non-arrest situations, this policy is now being
looked by some police practice experts as defining
the tactics that officers should use whenever they
are dealing with a known mentally ill or emotionally
disturbed person. Training officers would be well-
advised to conduct training related to these tactical
considerations for dealing with the mentally ill or
emotionally disturbed persons.
Courts have also considered the use of particular
types of tactics and restraints on persons who are
afflicted with psychological or physical impairments
that may make the use of the tactic or restraint
more dangerous to the person’s health or well-being.
Cruz v. Laramie,
provides a typical set of
facts seen in these cases.*16 The
Laramie, Wyoming Police Department received a call
that a man, later identified as Cruz, was running
around naked near an apartment complex. The first
officer on scene found Cruz on a stairwell landing on
the exterior of the apartment complex. Cruz was
“jumping up and down, yelling and kicking his legs
in the air.” A second officer arrived and upon
seeing Cruz, immediately called for an ambulance.
The officers on scene, along with a third who had
arrived, tried to calm Cruz and persuade him to come
down the stairs. Cruz initially refused but at some
point started toward the officers who were at the
bottom of the landing with batons at the ready
position.
As Cruz attempted to pass the officers, the three
wrestled him to the ground and placed him face
down. They were able to handcuff Cruz; however,
he continued kicking and flailing about. A fourth
officer who had arrived at the scene decided after
assessing the situation to shackle Cruz’ ankles using
a nylon flex-cuff and then attach the flex cuff to the
handcuffs with a metal clip. The evidence presented
by the parties in this case did not agree as to the
distance between Cruz’ hands and ankles as a result
of this hog-tie (or maybe hobble-tie) restraint. The
court indicated that if the distance was less than 12”
then the restraint would be a “hog tie” if the
distance was more than 12” then the restraint would
be a “hobble tie.” The officers noted that Cruz
calmed markedly following the use of this restraint.
In fact, just prior to the arrival of the ambulance,
one of the officers noticed that Cruz had “blanched.”
CPR was immediately begun; however, Cruz was
pronounced dead upon his arrival at the hospital.
Autopsy results indicated that Cruz had a large
amount of cocaine in his system at the time of his
death. As in many cases, two experts disagreed:
one indicating that Cruz died from positional
asphyxia, the second indicating that Cruz died from
the cocaine.
In ruling on the constitutionality of hog tie restraints,
the United States Court of Appeals for the 10th
Circuit asserted:
The conduct at issue involves the tying of the
decedent’s arms behind his back, binding his ankles
together, securing his ankles to his wrists, and then
placing him face down on the ground. We note that
while sister circuits may characterize the hog-tie
restraint somewhat differently; we understand such
to involve the binding of the ankles to the wrists,
behind the back, with 12 inches or less of
separation. We have not heretofore ruled on the
validity of this type of restraint. We do not reach
the question whether all hog tie restraints constitute
a constitutional violation per se, but hold that officers may
not apply this technique when
an individual’s diminished capacity is apparent. The
diminished capacity might result from severe
intoxication, the influence of controlled substances,
a discernible mental condition, or any other condition
apparent to the officers at the time, which
would make the application of a hog tie restraint
likely to result in any significant risk to the
individual’s health or well-being. In such situations,
an individual’s condition mandates the use of less
restrictive means for physical restraint.
The court then looked at the facts of this particular
case and determined that the officers had clear
notice of Cruz’ diminished capacity. The court
pointed out that one of the officers on scene called
for an ambulance prior to Cruz’ restraint based upon
observations of his condition. After concluding that
a constitutional violation had occurred, the court
granted qualified immunity to the officers since prior
to this decision, the law on hog tying of persons with
diminished capacities had not been clearly
established.
The foregoing cases make clear that tactics in
approaching and controlling the mentally ill and
emotionally disturbed will be considered where an
injury results and a lawsuit is brought. As such use
of force training as well as training on use of
restraints should include some discussion and
scenarios for dealing with the mentally ill. Policy and
training on this issue should limit the ability of a
plaintiff’s attorney to claim that an agency or
individual trainer has been deliberately indifferent to
training in this critical task.
Failure to Train Policies
In dealing with policy, agencies must recognize that
in order for policy to protect an
agency from liability,
an agency must provide training for the policy before
a court will recognize its
implementation.*17 In Munger,
officers in Montana were called to a bar for an
intoxicated and unruly patron, Lance Munger. When
the officers arrived they found Munger outside the
bar, however, Lance Munger followed the officers
back into the bar. The officers then ejected Lance
Munger from the bar and prohibited him from
returning as well as prohibiting him from going to his
vehicle. The temperature outside was 11º with a
wind chill factor of minus 20º-25º. Lance Munger
was wearing only a T-shirt. After Munger walked off,
the officers went looking for him because they found
his coat and recognized the danger of the cold
weather. Munger died in an alley of hypothermia.
In dealing with the “duty to protect” issue, the court
concluded that the officers in this case had created
the danger to Munger by ejecting him and not
allowing him to return or go to his car on this frigid
night. The court concluded that the officers had
affirmatively placed Munger in a position of danger.
In analyzing the agency liability claim, the court cited
evidence presented by the plaintiff that “it was the
custom of the defendants to offer assistance to
intoxicated persons, by taking those persons home,
to another location, or as a last resort, to the law
enforcement center so they could sleep it off,
without making an arrest or any formal charges.”
The Glasgow Police Department argued, since they
had such a custom or policy against what the
officers did in this case, there should be no agency
liability. The court rejected this claim after finding
that the plaintiffs provided sufficient evidence, for
purposes of summary judgment, that although the
agency had such a policy or custom, they had failed
to train officers in this policy or custom and thus was
liable under a failure to train theory. The court
asserted: “In our view, a custom and policy of
helping intoxicated individuals could be in place and
yet the departments could have failed to implement
the policy because they did not train their officers
adequately.”
Failure to Train/Off-Duty Action
The United States Court of
Appeal for the 10th
Circuit, in Brown v. Gray,*18
reviewed an off-duty police shooting. An officer
involved in a road rage incident chased a man and
shot him three times. The officer reported that the
man had pointed a gun at him.
At issue in the case was a policy that required
officers to be “always armed and always on duty.” It
should be noted that while few agencies still maintain
this policy, many agencies have a custom of off-duty
officers being always armed and always on duty. Do
policy makers know that their officers carry firearms
while off-duty? Do policy makers know that their off-
duty officers who witness a crime against a person
(for example, a hand-bag snatch from an elderly
woman), is likely to take police action. If the answer
to these questions is yes, then the agency could be
found to have notice of a custom of being always
armed and always on duty which has the force of
policy.
Although the Denver Police Department had the
policy requiring officers to be always armed and
always on-duty, the agency did not conduct training
on the use of force in the context of off-duty
action. A captain from the Denver Police Department
testified that the agency chose consciously not to
distinguish off-duty from on-duty use of force
because the two were identical. A police practices
expert testified that the two circumstances were
very different and there should have been distinct
training for the off-duty circumstance.
How are the two different? One simply has to
consider an officer’s use of force continuum in these
distinct situations. While on-duty an officer has the
command presence of his or her uniform; hands-soft
and hard; pepper-spray; handcuffs; an impact
weapons; bullet-proof vest; available back-up
officers and his or her firearm. While off-duty an
officer has his or her hands and their firearm.
Certainly the use of force issues change.
This is another area that training officers can cover
in the context of use of force to make officers aware
of these distinctions. By conducting such training,
the trainer will make a failure to train claim on this
issue difficult for a plaintiff to make and thereby
reduce agency exposure to liability.
Failure to Train/ Warrant Execution
Officers must be trained for the recurring tasks which
the particular officers may face. The training a
particular officer must receive will be determined by
the officer’s assignment. For example, a rookie
officer that is not allowed to draft search warrants
would not need to be trained in the drafting of
search warrants, whereas a detective that will be
regularly drafting search warrants must be trained for
this task.
Taylor v. County of Berks,*19
provides an example of agency liability for failing to
train officers for a specific task. The case revolved
around the execution of a search warrant. On May
6, 2000, Ernestine Taylor was looking out the rear
window of her home at 319 Moss Street when she
observed a squad of police officers approaching her
rear door. Recognizing that the officers were about
to break down her door, she began yelling that
officers were at the wrong house. The officers
demanded that she open her door, but by the time
she got downstairs the officers had struck the door
several times, splintering it. The officer then held
Taylor at gunpoint while they began searching the
house. The officers left after they received word via
the police radio that they had gone to the wrong
house and they should have been at 317 Moss
Street.
Taylor filed a lawsuit alleging, among other things,
that the officers had not been properly trained to
verify the location named in the warrant before
forcing entry into a home. The city sought to be
dismissed from the lawsuit arguing that Taylor could
not prove that the city had a policy or practice of
knocking down the doors of incorrect houses. The
court asserted that the city had failed to address
Taylor’s failure to train allegation. In its review, the
court noted that the department’s policy made “no
mention of a requirement that, or a procedure by
which, officers verify that they are at the correct
location before doing damage to a home. Given that
Berks County officers perform raids in backyards of
rowhouses where there are not numbers and where it
is easy to mistake one home from another, a
reasonable jury could conclude that the [city’s]
failure to train its officers to verify their location
constitutes deliberate indifference as to whether the
officers violate citizen’s rights by entering their
homes illegally.
Taylor makes several propositions clear. First,
officers must be trained for the recurring tasks they
are likely to face. Second, the training may vary
from assignment to assignment. Third, officers who
are transferred into a new assignment that has
differing tasks must receive training on any new
tasks that may lead to third party constitutional or
tort injuries. This training must take place before
they are faced with the new task-remember- is the
officer faced with making a decision of the type that
training would better prepare the officer to make? If
yes, then training is required. Finally, it should be
recognized that there may be specific training issues
that are unique to a particular department or a
particular demographic circumstance. For example,
the difficulty in distinguishing the rowhouses, cited
by the court in this case would not be an issue in
many agencies where there simply are no rowhouses.
Citations:
1 City of Canton v
Harris, 489 U.S.
378 (1989).back
2 Walker v. City of
New York, 974
F.2d 293 (2d Cir. 1992).back
3 See, Paul v. City
of Altus, No. 96-
6376 (10th Cir. 1998).back
4 See, Gabriel v.
City of Plano, 202
F.3d 741 (5th Cir. 2000).back
5 Monell v.
Department of Social
Services, 436 U.S. 658 (1978).back
6 Popow v. City of
Margate, 476
F.Supp. 1237 (N.J. 1979).back
7 Zuchel v.
Denver, 997 F.2d 730
(10th Cir. 1993).back
8 Young v. City of
Providence, 2004
U.S. Dist. LEXIS 1847 (R.I. 2004).back
9 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.”)back
10 Allen v. City of
Muskogee, 119
F.3d 837 (10th Cir. 1997) and Carr v. City of
Oklahoma City, 337 F.3d 1221 (10th Cir. 2003).back
11 Allen v. Muskogee,
119 F.3d 837 (10th
Cir. 1997).back
12 Carr v. City of
Oklahoma City,
337 F.3d 1221 (10th Cir. 2003).back
13 National Instructor
Gary Barney (Chief
[ret.] of Carmel, Indiana) who conducts law
enforcement training nationally on “Confronting the
Mentally Ill” for Public Agency Training Council,
reports that in an informal survey conducted in his
classes it is reported that among agencies attending
his classes 1 in 30 to 1 in 40 are actually conducting
this type of training.back
14 Gaddis v.
Redford Township and City
of Dearborn Heights, 364 F.3d 763 (6th Cir.
2004).back
15 Herrera v. Las
Vegas Metropolitan
Police Department, 298 F.Supp 2d 1043 (Dist.
Nevada 2004).back
16 Cruz v.
Laramie, 239 F.3d 1183
(10th Cir. 2001)back
17 See, Munger v.
City of Glasgow,
227 F.3d 1082 (9th Cir. 2000).back
18 Brown v.
Gray, 227 F.3d 1278
(10th Cir. 2000). back
19 Taylor v. County
of Berks, 2003
U.S. Dist. LEXIS 23699 (E.D. PA. 2003).back
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